Handout Crim

Question 1

Jurisdiction

Answer 1

• The United States has the power to criminalize and to prosecute crimes that:
  o Occur anywhere in the U.S.;
  o Occur on ships and planes; or
  o Are committed by U.S. nationals abroad

Question 2

When can States punish crimes?

Answer 2

States can only punish crimes with some connection to the state.
For example:
o A crime that occurs in whole or in part inside the state
o Conduct outside the state that involved an attempt to commit a crime inside the state
o A conspiracy to commit a crime if an overt occurred within the state

Question 3

Actus Reus

Answer 3

No such thing as a “thought” crime. Wanting or hoping to commit a crime is not itself a crime.
1. There must be some physical act in the world

2. Act must be voluntary (i.e., willed by the defendant)
   o Involuntary act does not satisfy the actus reus requirement
   “Voluntary” does not necessarily mean the person wanted to do it. It means that he had motor control over the act.

The failure to act can be sufficient actus reus
o Failure to comply with a statutory duty;
 E.g., the failure to file a tax return, failure to register for selective service, etc.
o special relationship between defendant and victim;
 E.g., parents’ failure to take care of their children
o Voluntarily assuming a duty of care that is cast aside
The defendant causes a danger/peril and fails to mitigate harm to the victim caused by the peril

Question 4

Specific Intent

Answer 4

Defendant committed the actus reus for the very purpose of causing the result that the law criminalizes.

Memorize the four categories of crimes that are specific intent crimes under the common law. Remember FIAT.
1) First-degree murder—not all murders
Exam Tip 2: MBE questions will expressly state whether the defendant has been charged with first-degree murder.
2) Inchoate crimes: CATS—Conspiracy, ATtempt, and Solicitation
3) Assault with attempt to commit battery
4) Theft offenses: e.g., larceny, embezzlement, forgery, burglary, robbery
Exam Tip 3: The main reason to memorize the FIAT crimes is that there are some defenses—most notably voluntary intoxication and unreasonable

Question 5

Malice

Answer 5

I am certain that there are only two malice crimes: Arson and Murder

Malice exists when the defendant acts in reckless disregard of a high degree of harm. The defendant realizes the risk and acts anyway.

Question 6

General Intent

Answer 6

o Catchall category
o Requires an intent to perform an act that is unlawful
 Knowledge that the act is unlawful is not required. It is sufficient to intend to perform the act that the law condemns.
o Generally, acts done knowingly, recklessly, or negligently under the Model Penal Code (MPC) are general-intent crimes.
 Examples include battery, kidnapping, rape, and false imprisonment.
Exam Tip 4: On the MBE, the most commonly tested general intent crimes are manslaughter and battery

Question 7

Strict Liability

Answer 7

o There is no state of mind requirement; the defendant must merely have committed the act
1) Statutory/Regulatory offenses
2) Morals offenses

Exam Tip 5: If an MBE question contains a statute, read it carefully for mens rea language.
“With intent to…” = specific intent
“Knowingly or recklessly….” = general intent
No mens rea language = consider specific intent

Question 8

MPC Mens Rea

Answer 8

• The MPC expresses mens rea as: purpose, knowledge, recklessness, and negligence. The MPC also recognizes some strict liability crimes.
• Hierarchy of mental states:
  1) Purpose—highest level of culpability
  2) Knowledge
  3) Recklessness
  4) Negligence—lowest level of culpability
• Look for the mens rea requirement in the statute through words like “knowingly” or “intent to”
• If there is no mens rea language, assume the prosecutor must prove recklessness.
  1. Purposely
  The defendant’s conscious objective is to engage in the conduct or to cause a certain result.

2. Knowingly or Willfully
   The defendant is aware that:
   o Her conduct is of the nature required to commit the crime; and
   o The result is practically certain to occur from this conduct
3. Recklessly
   The defendant acts with a conscious disregard of a substantial and unjustifiable risk that constitutes a gross deviation from the standard of conduct of a law-abiding person.
4. Negligently
   The defendant should be aware of a substantial and unjustifiable risk and acts in a way that grossly deviates from the standard of care of a reasonable person in the same situation.

Question 9

Transferred Intent Doctrine

Answer 9

• When a defendant has the requisite mens rea for committing a crime against Victim A, but actually commits the crime against Victim B, the law transfers the intent from Victim A over to Victim B.
  Note 1: Transferred intent

Question 10

Vicarious Liability

Answer 10

• Holds a person or entity liable for an actus reus committed by someone else
• A corporation can be liable for the actions of its high-level employees or the Board of Directors.

Question 11

Merger

Answer 11

• A defendant can be convicted of more than one crime arising out of the same act.
• A defendant cannot be convicted of two crimes when those two crimes merge into one.
• Two categories of merger:
  1) lesser-included offenses; and
  2) The merger of an inchoate and a completed offense

Question 12

Merger and Lesser-Included Offenses

Answer 12

o Lesser-included offense—an offense in which each of its elements appears in another offense, but the other offense has something additional

Exam Tip 6: Think of each element as a different geometric shape.
If the elements of Offense # 1 are a circle and a square,
And the elements of Offense # 2 are circle, square, and triangle, then
Offense #1 is the lesser-included offense of Offense #2; Offense #2 is the greater-included offense of Offense #1.
Remember:

Note 2: If there are two separate victims, the crimes against each victim do not merge together.

Question 13

Merger and Inchoate and Completed Offenses

Answer 13

o Attempt—A defendant who actually completes a crime cannot also be convicted of attempting that crime.
Example 18: If you attempt to rob someone and you succeed in robbing them, you can only be convicted of robbery only, not also attempted robbery.
Example 19: If you try to rob Person A, but actually rob Person B, you can be convicted of attempted robbery of Person A and actual robbery of Person B.

o Solicitation—Merges into the completed offense
Example 20: If the defendant solicits another person to commit a murder, and the other person commits the murder, the defendant is liable for the murder only, but not for solicitation because it merges into the murder.

o Conspiracy and a completed substantive offense do not merge!
 A defendant can be convicted of both conspiracy to commit a crime and committing the crime itself.

Question 14

Children

Answer 14

At common law:
* Children under the age of 7 were never capable of committing a crime.
* Children at least 7 but less than 14 years old were rebuttably presumed to be incapable of committing crimes.
* Children at least 14 years old could be charged as adults.
Exam Tip 7: On the MBE, children are more likely to be the victims of crime than the perpetrators.

Question 15

Principals

Answer 15

• Defendants whose acts or omissions form the actus reus of the crime
• Can be more than one principal to a particular crime
• Ask: Who committed the actus reus that gives rise to the offense?

Question 16

Accomplices

Answer 16

• Theory for holding people other than the principal responsible for the crime committed by the principal
  o Same degree of responsibility as the principal
• People who assist the principal either before or during the commission of a crime
• Must act with the intent of assisting the principal to commit the crime; bystanders, even approving ones, are not accomplices
• Liable for both the planned crime and any other foreseeable crimes that occur in the course of the criminal act
  An accomplice can be liable even if he or she cannot be a principal or even if the principal cannot be convicted.

Exception: A person protected by a statute cannot be an accomplice in violating the statute

Question 17

Accessories After the Fact

Answer 17

People who assist the defendant after the crime has been committed (e.g., obstruction of justice or harboring a fugitive)

Question 18

Aiders/Abettors and Conspiracy

Answer 18

In addition to accomplice liability for the substantive crime, individuals who aid or abet a defendant to commit a crime may also be guilty of the separate crime of conspiracy if there was an agreement to commit the crime and an overt act was taken in furtherance of that agreement.

Question 19

Mental States of Accomplices

Answer 19

• Majority and MPC Approaches—the accomplice must act with the purpose of promoting or facilitating the commission of the offense; the accomplice must intend that her acts will assist or encourage the criminal conduct.
• Minority Approach—the accomplice is liable if he intentionally or knowingly aids or causes another person to commit an offense.
• Criminal Facilitation—under the majority rule, a person who is not guilty of the substantive crime (because he did not act with intent) may nevertheless be guilty of the lesser offense of criminal facilitation for simply assisting

Question 20

Mistake

Answer 20

Often, a defendant will claim that some mistake—regarding either facts in the world or the state of the law—negates his mens rea and thus he cannot be convicted of a crime for which there are both actus reus and mens rea elements.

Question 21

Mistakes of Law

Answer 21

o Mistakes about what the law forbids and what it permits ignorance of the law is no excuse.

o Three potential exceptions:
1) Reliance on high-level government interpretations
Note 4: Relying on your own lawyer’s advice does not generally fall into this exception.

2) Lack of notice
3) Mistake of law that goes to an element of specific intent (applies only to the “FIAT” crimes or specific-intent crimes)

Question 22

Mistakes of Fact

Answer 22

o Key starting point: Determine whether the crime is a specific intent crime (FIAT), a general intent crime, or a strict liability crime.
a. Strict Liability: Mistake of fact is nevera defense to strict liability crimes
 Must be a voluntary act, but the defendant’s state of mind is irrelevant

b. General Intent: Mistake of fact is a defense only if the mistake is reasonable and goes to the criminal intent.

c. Specific intent: Mistakes of fact are a defense whether the mistake is reasonable or unreasonable. The only question is whether the defendant held the mistaken belief.

Question 23

Insanity

Answer 23

• Four Different Tests:
  1) M’Naghten: Defendant either did not know the nature of the act or did not know that the act was wrong because of a mental disease or defect

2) Irresistible Impulse: Defendant has a mental disease or defect that prevents the defendant from controlling himself

3) Durham Rule: Defendant would not have committed the crime but for his having a mental disease or defect (rarely used because so defendant-friendly)

4) Model Penal Code: Due to a mental disease or defect, the defendant did not have substantial capacity to appreciate the wrongfulness of his actions or to conform his conduct to the law
Note 5: All four tests require that the defendant have a mental disease or defect. Being a sociopath is not enough to constitute insanity.

• Majority—the Defendant has the burden of proving insanity either by a preponderance of the evidence or clear and convincing evidence.
  o Some jurisdictions require the defendant to introduce evidence of insanity, and then the burden of persuasion shifts to the prosecution to prove sanity beyond a reasonable doubt.

Question 24

Intoxication

Answer 24

• Covers alcohol, drugs, and medications
• Can be involuntary or voluntary

Question 25

Invluntary Intoxication

Answer 25

o Occurs when a person:
 Doesn’t realize that she received an intoxicating substance (e.g., “date rape” drugs);
 Is coerced into ingesting a substance; or
 Has an unexpected or unanticipated reaction to prescription medication.
o Can be a valid defense to general-intent, specific-intent, and malice crimes when it negates the mens rea necessary for the crime

Question 26

Voluntary intoxication

Answer 26

o Occurs when a person intentionally ingests the substance, knowing it is an intoxicant
o Voluntary intoxication is a defense only to specific-intent crimes (FIAT crimes), and only if it prevented the defendant from forming the mens rea
 Not a valid defense if the defendant got drunk in order to commit the crime

o Under the MPC, voluntary intoxication is only a defense to crimes for which a material element requires purpose or knowledge, and the intoxication prevents the formation of that mental state.

Question 27

Inchoate Crimes Acronym

Answer 27

Remember CATS: Conspiracy, Attempt, Solicitation

Question 28

Common Law Conspiracy

Answer 28

a. Common law conspiracy requires:
 An agreement;
 Between 2 or more people;
 To commit an unlawful act.

Question 29

Modern Law Conspiracy

Answer 29

Federal law, the MPC, and a majority of states add a fourth element: The performance of an overt act in furtherance of the conspiracy
Editor’s Note 1: The MPC does not require an overt act if the conspiratorial crime is a felony in the first or second degree.

Question 30

MPC Conspiracy

Answer 30

Under the MPC and in most states, only the defendant must actually agree to commit the unlawful act.

 The other people with whom the defendant agrees can be undercover agents, for example.

o Agreement can be explicity or implicit
 Simply knowing a crime is going to occur and doing nothing about it does not turn a bystander into a co-conspirator; there must be an agreement.

o Purpose of the conspiracy: Unlawful act
 If what the conspirators agree to do is not a crime, there is no conspiracy even if they think what they’re doing is wrong.

o Overt act
 Required under federal law, the MPC, and in a majority of states
 Can be lawful or unlawful, as long as it furthers the conspiracy

Question 31

Scope of Conspiracy

Answer 31

o At common law, each co-conspirator can be convicted both of:
1) _Conspiracy; and
2) All substantive crimes committed by any other conspirator acting in furtherance of the conspiracy.

o Relationships of co-conspirators
 Chain Conspiracy: Co-conspirators are engaged in an enterprise consisting of many steps; each participant is liable for the substantive crimes of his co-conspirators

 Spoke-Hub Conspiracy: Involves many people dealing with a central hub; participants are not liable for the substantive crimes of their co-conspirators because each spoke is treated as a separate agreement rather than one larger general agreement

Question 32

Withdrawal from a conspiracy

Answer 32

Common law—it’s impossible to withdraw from a conspiracy, because the crime is complete the moment the agreement is made.

o Federal and MPC—a conspirator can withdraw prior to the commission of any overt act by communicating her intention to withdraw to all other conspirators or by informing law enforcement.
 After an overt act—a conspirator can withdraw only by helping to thwart the success of a conspiracy.

o Even if a defendant cannot withdraw from the conspiracy (e.g., because a conspiracy had already been formed), the defendant can limit his liability for substantive crimes by:
 Informing the other conspirators of withdrawal; or
 Timely advising legal authorities.

Question 33

Attempt

Answer 33

• Attempt is a specific intent_ crime
  1. Requirements
  1) specific intent to commit a particular criminal act; and
  2) substantial step towards perpetrating the crime

o Attempt is a specific-intent crime even when the completed offense is only a general-intent crime.
Editor’s Note 2: Common-law murder is a malice crime, not a general-intent

Question 34

Defenses to Attempt

Answer 34

o Defenses for speciifc-intent crimes can be used as a defense to attempt

o Certain defenses (e.g., voluntary intoxication and unreasonable mistake of fact) are available even if they wouldn’t be available had the crime been completed.

Question 35

Merger and Attempt

Answer 35

o Attempt merges into a complete offense.
o You cannot be convicted of both attempted murder and murder of the same person in the same episode.
conspiracy to commit murder and murder.

Question 36

Solicitation

Answer 36

• Occurs when an individual intentionally invites, requests, or commands another person to commit a crime
• If the person agrees, the crime is conspiracy instead.
• If the person commits the offense, the solicitation charge will merge into the completed offense.