overview; essential elements of crime; accomplice liability; inchoate offenses

Question 1

merger

Answer 1

• CL: midsdemeanor merged into felony (if conduct was both)
• modern law: generally no merger of crimes (but solicitation and attempt -> merges into substantive offense)

Question 2

exception to merger (inchoate crime where there’s no merger)

Answer 2

• conspiracy – does NOT merge with completed offense (conspiracy and completed crime are distinct offenses–D may be convicted of and punished for both)

Question 3

merger and MPC

Answer 3

a D CANNOT be convicted of more than one inchoate crime when conduct culminates in same offense

(e.g., D who conspired to commit burglary and then actually attempted to commit burglary could not be convicted of both conspiracy and attempt)

Question 4

elements of a crime

Answer 4

• actus reus (physical act)
• mens rea (mental state), and
• concurrence of act and mental state

*crime may also require proof of a result and causation (act caused harmful result) – homicide

Question 5

actus reus requirement

Answer 5

• D must have did a VOLUNTARY physical act OR failed to act imposing legal duty to act (reflexive act does not count or an act performed while unconscious)
• omission as an act: failure to act gives rise to liability only if
  1. there is a legal duty to act
  2. D has knowledge of facts giving rise to duty to act; and
  3. it is reasonably possible to perform the duty

Question 6

circumstances where legal duty to act can arise

Answer 6

1. by statute
2. by contract
3. relationship b/w parties (parent/spouse has duty to protect child/spouse)
4. voluntary assumption of care by D for the victim
5. D created peril for the victim

***for omission to be a criminal act… there MUST be a DUTY TO ACT

Question 7

mental state/mens rea

specific intent

Answer 7

• specific intent to engage in the illegal conduct
• importance of specific intent crimes –> qualifies for additional defenses not available for other crimes (i.e., voluntary intoxication and unreasonable mistake of fact)

Question 8

major specific intent crimes

Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts

Answer 8

• solicitation - intent to have person solicited commit crime
• conspiracy - intent to have crime completed
• attempt - attempt to complete the crime
• first degree premeditated murder
• assault - intent to commit a battery
• larceny - intent to permanently deprive the other of their interest in prop taken
• embezzlement - intent to defraud
• false pretenses - intent to defraud
• robbery - intent to permanently deprive the other of their interest in prop taken
• burglary - intent to commit a felony in dwelling
• forgery - intent to defraud

Question 9

malice mens rea

Answer 9

• common law murder and arson
• malice: reckless disregard of an obvious risk
• defenses like voluntary intoxication do NOT apply to malice crimes

Question 10

general intent mens rea

Answer 10

• all crimes not so far mentioned = general intent crimes (unless they are strict liability crimes)
• D has awareness of all factors constituting the crime / awareness of acting in barred manner

Question 11

general intent crimes

BRKF

Answer 11

battery
rape
kidnapping
false imprisonment

Question 12

strict liability offenses

Answer 12

• D can be found guilty from mere fact that they committed the act
• examples: selling alc to minors; statutory rape
• defenses that negate state of mind (e.g., mistake of fact) are NOT AVAILABLE

Question 13

MPC mens rea terms

P
K
R
N

Answer 13

• MPC does away with CL distinctions b/w general and specific intent
• purposely: conscious object to engage in barred conduct (subjective test)
• knowingly: awareness that conduct is of a particular nature or will cause particular result (subjective test)
• recklessly: consciously disregarding a substantial and unjustifiable risk that prohibited result will follow and this disregard is a gross deviation from standard of care that a RP would exercise (subjective and objective)
  e.g., driving earthmoving equipment while drunk
• negligently: failure to be aware of a substantial and unjustifiable risk (objective standard used)

Question 14

transferred intent

HBA

Answer 14

• intend to kill A but instead kill B (intent is transferred to the killing of B)
• applies to homicide, battery, arson (does NOT apply to attempt)
• note: person found guilty of a crime on basis of transferred intent is usually guilty of TWO crimes (the completed crime AND the attempt against intended victim)

Question 15

concurrence of mental fault with act

Answer 15

• D must have had the intent necessary for the crime AT THE TIME they committed the act (and intent must have prompted the act)

Question 16

causation

Answer 16

some crimes (homicide) require result and causation

Question 17

accomplice liability

Answer 17

• CL: parties to crime included principals in first degree; principals in second degree; accessories before the fact; accessories after the fact
• modern statutes:

1) principal: person who causes crim result (liable for principle crime)

2) accomplice: one who aids, advises, or encourages principal in commission of crime (liable for principal crime if accomplice intended to aid/encourage crime) - see below

3) accesssory after the fact (hiding someone after they robbed a bank; or cop not arresting the guy after guy gives him money and he just committed a robbery)
- still treated separately (punishment bears no relationship with principal offense)
- liable for separate, less serious crime of being accessory after the fact

Question 18

accomplice liability mental state

Answer 18

to be convicted of a substantive crime as accomplice, accomplice must have:
1) intent to aid principal in the commission of a crime; and
2) intent that the principal commit the substantive offense

NOTE: mere knowledge that a crime will result is not enough for accomplice liability – at least where aid given is in form of sale of ordinary goods at usual price

BUT selling at higher price b/c of buyer’s purpose may be enough to constitute intent

Question 19

when substantive crime has recklessness or negligence

Answer 19

intent element is met if accomplice:

(1) intended to facilitate crime and (2) acted with recklessness/negligence (whichever is required by the particular crime)

Question 20

scope of accomplice liability

Answer 20

accomplice liable for crimes they aided AND for any other foreseeable crimes

Question 21

exclusion from accomplice liability

Answer 21

person who withdraws from crime before it is committed cannot be G as an accomplice

Question 22

inchoate offense
conspiracy

Answer 22

(1) agreement between 2 or more persons to commit a crime
(2) intent to enter into agreement and achieve illegal objective
(3) majority of states require OVERT ACT– mere preparation will be enough (any little act can be overt act in furtherance of conspiracy)

at CL: no act needed for conspiracy (just first 2 elements)

Question 23

conspiracy agreement requirement (2 approaches)

Answer 23

• modern approach: only one party have genuine criminal intent
• CL approach: at CL, conspiracy requires at least TWO GUILTY MINDS

Question 24

termination of conspiracy

Answer 24

ends upon completion of wrongful objective

Question 25

liability for co-conspirator’s crimes

Answer 25

a conspirator can be liable for crimes committed by OTHER CONSPIRATORS if the crimes:
(1) were committed in furtherance of the objectives of conspiracy, and
(2) were foreseeable

Question 26

defenses to conspiracy

Answer 26

• WITHDRAWAL from conspiracy: generally not a defense, BUT WITHDRAWAL can be defense to crimes committed in furtherance of the conpisracy (INCLUDING the target crime of the conspiracy)
• for withdrawal to be effective, conspirator has to perform affirmative act that NOTIFIES all members of their withdrawal

Question 27

solicitation

Answer 27

• asking another to commit a crime WITH INTENT that person solicited commit the crime

*it is NOT necessary that person solicited agree to commit the crime!

Question 28

defenses to solicitation

Answer 28

• MPC recognizes renunciation as a defense if D prevents commission of crime (persuading person solicited not to commit the crime); CL doesn’t recognize

Question 29

solicitation and merger

Answer 29

• if person solicited commits crime solicited, both that person and solicitor can be held liable for that crime (CANNOT BE CONVICTED OF BOTH SOLICITATION AND COMPLETED CRIME if person solicited does complete it — there’s merger with solicitation)
• if person solicited agrees to commit crime, both can be held liable for conspiracy (BUT DUE TO MERGER, solicitor can’t be punished for BOTH solicitation and conspiracy because the solicitation merges into the conspiracy)

Question 30

attempt

Answer 30

• act to commit a crime but YOU DON’T COMPLETE IT (e.g., attempted robbery)
• requires (1) specific intent to commit the crime and (2) an overt act in furtherance of the crime
• most states and MPC require that the act/omission constitute a SUBSTANTIAL STEP in a course of conduct planned to end in commission of a crime

*NOTE: attempt is a specific intent crime - even when crime attempted is not (e.g., common law murder - does not require specific intent to kill, but attempted common law murder requires specific intent to kill)

Question 31

defenses to attempt

Answer 31

• ABANDONMENT: not a defense at common law; MPC: fully voluntary and complete abandonment is a defense
• IMPOSSIBILITY
  1. legal impossibility - a defense BUT VERY RARE
  2. factual impossibility: substantive crime is not capable of completion due to some physical/factual condition (unknown to D) – NOT DEFENSE (e.g., throws guards out of car and they discover no money in the car…)

Question 32

attempt and merger

Answer 32

• merges into substantive offense (i.e., D charged ONLY with attempt may not be convicted of completed crime) -> cannot be convicted of attempted murder and murder