General Principles

Question 1

What is the due-process principle of fair warning? (Q)

Answer 1

The due-process principle of fair warning provides that individuals may not be convicted, fined, or otherwise punished by the government unless they have been given notice that the particular conduct has been deemed criminal. Criminal laws that do not give adequate notice of what conduct is prohibited are void for vagueness.

Question 2

What is the rule of lenity? (Q) (Russo)

Answer 2

The rule of lenity is a rule of statutory construction that directs if a criminal statute is subject to two equally plausible interpretations, the ambiguity should be resolved in the defendant’s favor. If possible, statutes are construed according to their plain meaning. (Bell v. US - transporting two girls = one violation)

Question 3

What is an ex post facto law? (Q) (Russo)

Answer 3

An ex post facto law is a law that criminalizes conduct or increases the punishment retroactively. (Rogers v. Tennessee)

Question 4

What is the definition of actus reus under the MPC? (Q) (Russo)

Answer 4

The component of a crime that describes the proscribed physical action, or, in some cases, inaction.

Question 5

Is possession an act that can satisfy the actus reus requirement for a crime? (Q) (Russo)

Answer 5

Yes. Possession is an act that can satisfy the actus reus requirement for a crime if the defendant was aware of the possession and had the opportunity to terminate the possession. The actus reus and mens rea must exist at the same time for criminal culpability.

Question 6

What is an omission? (Q) (Russo)

Answer 6

An omission is a failure to act. Generally, a defendant may not be held liable for an offense based on an omission unless the defendant had some duty to act. Legal duties are often imposed by statute or contract.

Question 7

When may a defendant incur a legal duty to take reasonable steps to aid or protect a person? (Q) (Russo)

Answer 7

A defendant may incur a legal duty to take reasonable steps to aid or protect a person if: The defendant shares a special relationship with the person (e.g., a parent-child relationship), the defendant created the circumstances giving rise to the person’s peril, the defendant voluntarily offered assistance to the person in a manner that prevented others from offering aid, or the defendant is a landowner.

Question 8

What is mens rea? (Q) (Russo)

Answer 8

Mens rea, or guilty mind, is the criminal intent required for the commission of a crime.

Question 9

What are the four types of intent as definted by the MPC? (Q) (Russo)

Answer 9

In descending order of culpability, a defendant can act purposely, knowingly, recklessly, or negligently.

Question 10

What does the mens rea purposely require? (Q) (Russo) (MPC)

Answer 10

The mens rea purposely requires that the defendant have as his “conscious objective” to behave in that way or cause that result. If a crime is defined by the attendant circumstances, then a person acts purposely if he knows, believes, or hopes that those circumstances exist.”Concious Objective.” US v. Bailey (Prison Escape)

Question 11

If a crime requires a particular type of conduct or circumstances, what does the mens rea knowingly require? (Q) (Russo) (MPC)

Answer 11

Knowingly requires that the defendant is aware that her conduct is of that particular nature or that those particular circumstances exist. If a crime requires a particular result, then a defendant acts knowingly if she is aware that it is “practically certain” that her conduct will cause that result. “Practically Certain”

Question 12

In the context of mens rea, what is willful blindness? (Q)

Answer 12

In the case of crimes that require a mens rea of knowledge, willful blindness is a defendant’s “purposeful ignorance” of a fact that is highly likely to be true. If a defendant lacks actual knowledge of illegal conduct because the defendant consciously avoided information that would have exposed the truth, the doctrine of willful blindness holds that the knowledge requirement is satisfied, despite the defendant’s subjective ignorance.

In other words, the willful-blindness doctrine prevents a defendant from actively avoiding confirmation of the illegal nature of an act simply to avoid criminal liability.

US v. Jewell (Didn’t “know” there was weed in the car)

Question 13

What does the mens rea recklessly require? (Q) (Russo) (MPC)

Answer 13

The mens rea recklessly requires that the defendant act with “conscious disregard” of a “substantial and unjustifiable” risk that an element of a crime exists or will result from his conduct. The person’s disregard of the risk must be a “gross deviation” from the standard of conduct that a law-abiding person would observe in the situation. AWARE OF RISK.

Question 14

What does the mens rea negligently require? (Q) (Russo) (MPC)

Answer 14

The mens rea negligently requires that a defendant should have been aware of a substantial and unjustifiable risk that an element of a crime exists, or will result from her conduct, and her failure to perceive the risk must be a “gross deviation from the standard of care that a reasonable person would observe in the situation.” In cases in which liability is based on negligence, some jurisdictions require proof that the defendant acted with gross negligence (i.e., with a greater deviation from the standard of care than what is required in civil negligence cases). SHOULD HAVE BEEN AWARE OF RISK.

Question 15

Under the MPC, what is the difference between recklessness and negligence? (Q) (Russo) (MPC)

Answer 15

Under the MPC, the difference between recklessness and negligence is in the perception of risk (awareness): a reckless defendant perceives a risk (aware) and a negligent defendant does not. Negligence requires that the defendant fail to perceive a substantial, unjustifiable risk that his or her conduct will produce a harm. Recklessness requires that the defendant perceive a substantial, unjustifiable risk that his or her conduct will produce a harm and consciously disregard that risk.

Question 16

In the context of criminal law, what is the definition of strict liability? (Q) (Russo)

Answer 16

In the context of criminal law, strict liability is criminal liability imposed on a defendant without any showing of mens rea, or culpability. For a strict liability crime, merely committing the actus reus is enough for criminal liability to attach, even if the defendant honestly and justifiably believes that he is engaging in a legal act.

Staples v. US (No long sentence for legal gun owners semi-auto)

Question 17

What is the doctrine of transferred intent? (Q) (Russo)

Answer 17

The doctrine of transferred intent imposes criminal liability on a defendant who intends to harm one person but actually harms an unintended victim. In criminal law, unlike tort law, intent only transfers to alternative victims of the intended crime. Transferred intent does not convert the intent to commit one crime into the intent to commit a different crime.

Question 18

What is “Scienter”?

Answer 18

Scienter is a presumption that criminal statutes require the degree of knowledge sufficient to make a person legally responsible for the consequences of his or her act or omission.

Question 19

What was the Supreme Court’s definition of willful blindness stated in Global -Tech Appliances v. SEB (2011)? (Russo)

Answer 19

The defendant must subjectively believe that there is a high probability that a fact exists and the defendant must take deliberate actions to avoid learning of that fact.

Question 20

What is a mistake of fact? (Q)(Russo)

Answer 20

A mistake of fact occurs if a criminal defendant misunderstood some fact that negates an element of the offense. If the mistake of fact negates the mens rea for the offense, the mistake may be a defense to the charge.

For example, if an individual is charged with larceny but believed that the property he took was rightfully his, this misunderstanding negates any intent to deprive another of the property. Most jurisdictions require that the mistake be a reasonable one, but some jurisdictions allow even an unreasonable mistake as a defense to specific-intent crimes. The MPC allows the defense for both reasonable and unreasonable mistakes.

Question 21

Can a mistake of fact relieve a defendant of criminal liability? (Q) (Russo)

Answer 21

Yes. A mistake of fact can relieve a defendant of criminal liability if the mistake negates the required mens rea, or culpability, for the crime. Most jurisdictions require that the mistake be a reasonable one, though some allow even unreasonable mistakes to have this effect. The MPC allows the defense for both reasonable and unreasonable mistakes.

Question 22

What is a mistake of law?

Answer 22

A mistake of law is a defense that a criminal defendant misunderstood, or was ignorant of, the law as it existed at the time. In other words, the defendant mistakenly believed that his conduct was not a crime.

With narrow exceptions, mistake of law is not recognized as a defense.

Question 23

What are the exceptions to the general rule that a mistake of law is not a defense? (Q) (Russo)

Answer 23

The exceptions to the general rule that a mistake of law is not a defense are: the applicable law had not been published or otherwise made reasonably available to the defendant, the defendant relied on a statute or judicial decision that was later overturned or deemed unconstitutional, or the defendant relied on an official interpretation of the law. If the defendant is making a reliance argument, the defendant’s reliance must be reasonable. Also, reliance on an official interpretation of the law does not include private individuals or attorneys.

Question 24

Can a mistake of law excuse a defendant from criminal liability?

Answer 24

No. Generally, mistakes of law do not excuse criminal liability. Ignorance of the law is not an excuse for criminal conduct. However, a mistake of law may excuse a defendant if the defendant acted in reasonable reliance on an official interpretation of the law, a court decision, or a statute that was valid at the time of the defendant’s conduct.

Good Ex. People v. Weiss (Lindbergh baby, detective, negated mens rea)

Bad Ex. People v. Marrero (Didn’t know about specificity of NY handgun law)

Question 25

Under what circumstances do concurrent causes exist? (Q) (Russo)

Answer 25

Concurrent causes exist if multiple forces combine to cause a result and no one of those forces alone would have been sufficient to cause the result. In these cases, each force is deemed to be a but-for cause of the result. If an actor hastens a victim’s impending death, the actor will usually be held responsible for causing the death.

Question 26

What is the substantial-factor test for causation? (Q) (Russo)

Answer 26

The substantial-factor test for causation is sometimes used if multiple forces combine to cause a result, any one of the forces alone would have been sufficient to cause the result, and it is impossible to tell which force caused which portion of the result. In these cases, each force is treated as an actual cause, so long as it was a substantial factor in bringing about the result. Was the defendant’s conduct a substantial factor in bringing about the result (death)? (Jennings)

Question 27

What is proximate cause? (Q) (Russo)

Answer 27

Proximate cause is the legal cause of a result. A defendant’s actions are a proximate cause if the result is a natural and probable consequence of those actions. In order to be criminally liable, a defendant’s conduct must be both the actual cause and the proximate cause of the result.

Question 28

Is a criminal defendant liable for harm to a victim exacerbated by an infirmity of the victim, such as a health condition? (Q) (Russo)

Answer 28

Yes. A defendant is liable for the full extent of harm inflicted on a victim, such as a health condition, even if it is the result of the victim’s own infirmity. Under the criminal law, the defendant takes the victim as the defendant finds the victim. If the victim has a preexisting health condition that exacerbates the harm caused by the defendant’s conduct, that will not break the causal chain as to the defendant. This is true regardless of whether the defendant knows of the condition before acting. (State v. Smith - Diabetic gets punched)

Question 29

What two types of causation must be present for a defendant to be found guilty of a crime that requires a particular result? (Q) (Russo)

Answer 29

If a crime requires a particular result, then the defendant must actually and proximately cause the prohibited result. Both actual cause and proximate cause must be present for criminal liability to attach.

Question 30

What is an intervening cause? (Q) (Russo)

Answer 30

An intervening cause is a force that intervenes between the time of the defendant’s act and the time of the result. Because a victim’s refusal to seek medical treatment and negligent medical treatment are foreseeable, they do not break the causal chain. However, grossly negligent or reckless medical treatment generally will break the causal chain. Foreseeable responses of the victim, or of third parties, to the defendant’s actions will not break the causal chain. (Smith)

Breaks the chain between what the actor did and the cause of death. If responsive action gets the person killed, it is judged foreseeable. If person evades and then gets randomly killed, that’s an intervening cause.

Question 31

What is the acceleration test for causation? (Q) (Russo)

Answer 31

Was the death of the fatally injured victim hastened by the unlawful act(s) of the defendant? (Oxendine)

Question 32

What is the likelihood for survival test for causation?

Answer 32

Person is trying to make sure the person will die because help can’t get to them. Intent and causation.

Question 33

What was the common law rule for causation? (Q) (Russo)

Answer 33

Year and a day. If the person died more than a year and a day after the injuries occurred, it is presumed that the death was unforeseeable. Rebuttable in present day due to medical examiner’s report.

Question 34

What is first degree murder (common law)?

Answer 34

A killing committed with malice aforethought, an intentional (“willful”) killing committed with “deliberation and premeditation” or “prior calculation and design”, both are killings done in the commission of certain statutory “serious” felonies.

Question 35

What is second degree murder (common law)?

Answer 35

Intentional killing without deliberation and premeditation, killings upon a sudden quarrel, without reflection or planning.

Question 36

What is express malice (common law)? (Q) (Russo)

Answer 36

Express malice is when a defendant acted with the unlawful intent to kill.

Question 37

What is the formula for manslaughter under common law?

Answer 37

Intentional killings committed in the heat of passion, caused by:

(A) “Reasonable” provocation (objective)
(B) Which in fact “provoked” the defendant to heat of passion (subjective)
(C) From which a reasonable person so provoked would not have “cooled off” between the time of provocation and killing (objective)
(D) The defendant did not, in fact, “cool off” (subjective)

Question 38

What is implied malice (common law)?

Answer 38

Explosions not caring who lives or dies, firing into a crowd. Lack of concern for human life.

Question 39

What is voluntary manslaughter (common law)?

Answer 39

(First degree) - Killings following provocation (heat of passion/out of character), intentional killings in “imperfect” self defense.

Question 40

What is involuntary manslaughter (common law)?

Answer 40

(Second degree) - No intent to kill, unintentional killings resulting from recklessness not rising to the level of implied malice.

Question 41

Under the MPC, when is an act voluntary?

Answer 41

Under the MPC, an act is voluntary when it is a bodily movement that is a product of the effort or determination of the actor.

Question 42

What rule did Rogers v. Tennessee (2000) add? (Q)

Answer 42

Retroactive application by the judiciary of a change in the common law of crimes does not violate either the Ex Post Facto or Due Process Clause unless the application is “unexpected and indefensible.”

Question 43

What does unexpected and indefensible mean in the context of Rogers v. Tennessee (2000)? (Q) (Russo)

Answer 43

The year and a day rule was based on long outdated skepticism about the capabilities of medical science, has been abolished in many jurisdictions, and has never been the basis for a judgment in a murder case in Tennessee. Therefore the retroactive application of the abolition of the rule is neither unexpected nor indefensible and does not violate the Due Process Clause.

Question 44

What is the substantial factor rule for causation?

Answer 44

Under the substantial factor rule, if a defendant’s actions were a concurrent cause of death, he cannot escape liability simply because another person contributed to the death. (Jennings)

Question 45

What is a specific-intent crime? (Q) (Russo)

Answer 45

A specific-intent crime requires an intent to perform the prohibited act combined with an intent to bring about the prohibited result.

Question 46

What is a general-intent crime? (Q) (Russo)

Answer 46

A general-intent crime requires an intent to perform the prohibited act but does not require an intent to cause any specific result.

Question 47

Can involuntary acts, such as seizures, sleepwalking, etc. establish the element of actus reus? (Q) (Russo)

Answer 47

No. Involuntary acts (e.g., reflexes or movements made while the actor is unconscious or asleep) cannot constitute the actus reus.

Question 48

What should you think about when analyzing a mistake of law problem?

Question 49

Under the MPC, when is an act voluntary?

Answer 49

Under the MPC, an act is voluntary when it is a bodily movement that is a product of the effort or determination of the actor.

Question 50

Under the MPC, is deliberate ignorance seen as knowledge?

Answer 50

The MPC treats deliberate ignorance as knowledge. Specifically, the MPC imputes knowledge of a fact if a person is aware of a high probability that the fact exists unless the person actually believes the fact does not exist.

US v. Jewell (Didn’t “know” there was weed in the car)

Question 51

Do reckless mistakes negate recklessness? (Russo)

Answer 51

No. (State v. Sexton - Pointing a gun at someone)

Question 52

Will a victim’s preexisting condition break the causal chain? (Q) (Russo)

Answer 52

No. A victim’s preexisting condition that exacerbates the harm caused by the defendant’s conduct will not break the causal chain to the defendant. This is true whether or not the defendant knew of the condition before acting. (State v. Smith - Diabetic)

Question 53

What is the test for actual cause? (Q) (Russo)

Answer 53

The test for actual cause, or cause-in-fact, is the but-for test. This test requires that the harm actually be caused by the defendant’s actions. In other words, the harm would not have occurred but for the defendant’s actions.

Question 54

What is the test for proximate cause? (Q) (Russo)

Answer 54

Proximate cause requires that the harm be a natural and foreseeable consequence of the defendant’s actions as opposed to a remote or unlikely consequence.

Question 55

Do foreseeable causes break the causal chain? (Q) (Russo)

Answer 55

If the intervening cause is foreseeable, it does not break the causal chain and does not relieve the defendant from liability.

Question 56

Do unforeseeable causes break the causal chain? (Q) (Russo)

Answer 56

If the intervening cause is unforeseeable, it is a superseding cause that relieves the defendant from liability.

Question 57

What is implied malice? (Q) (Russo)

Answer 57

Malice is implied when the defendant acted with knowledge that his or her actions were dangerous to human life and consciously and intentionally disregarded that risk (“extreme recklessness”)