Crim L Overview ..

Question 1

Brief

Answer 1

A person who actually commits a physical act that has been made illegal by law with the accompanying state of mind may be charged with and convicted of a crime.

Question 2

Inchoate Offenses

Answer 2

Crimes include not only actual criminal acts, but also certain preparatory crimes (“inchoate offenses”).

Question 3

ESSENTIAL ELEMENTS OF A CRIME - Physical Act

Answer 3

Must be voluntary act

Question 4

ESSENTIAL ELEMENTS OF A CRIME - Mental State

Answer 4

1. Specific Intent
   a. Requires doing an act with a specific intent or objective
   b. Cannot infer specific intent from doing the act
   c. Major specific intent crimes are solicitation, attempt, conspiracy, assault, larceny, robbery, burglary, forgery, false pretenses, embezzlement, and first degree premeditated murder
2. Malice
   a. Applies to common law murder and arson
   b. Generally shown with (at least) reckless disregard of an obvious or high risk that a particular harmful result would occur
3. General intent
   a. Defendant must be aware that she is acting in the proscribed manner and that any attendant circumstances required by the crime are present
   b. Can infer general intent from doing the act
4. Model Penal Code
   a. Purposely—conscious object to engage in act or cause a certain result
   b. Knowingly—as to nature of conduct: aware of the nature of conduct or that certain circumstances exist; as to result: knows that conduct will necessarily or very likely cause result
   c. Recklessly—conscious disregard of a substantial and unjustifiable risk that circumstances exist or a prohibited result will follow, and this disregard is a gross deviation from a “reasonable person” standard of care
   d. Negligently—failure to be aware of a substantial and unjustifiable risk that circumstances exist or a prohibited result will follow, and this disregard is a gross deviation from a “reasonable person” standard of care

Question 5

Mental State - Specific Intent

Answer 5

1. Specific Intent
   a. Requires doing an act with a specific intent or objective
   b. Cannot infer specific intent from doing the act
   c. Major specific intent crimes are solicitation, attempt, conspiracy, assault, larceny, robbery, burglary, forgery, false pretenses, embezzlement, and first degree premeditated murder

Question 6

Mental State - Malice

Answer 6

2. Malice
   a. Applies to common law murder and arson
   b. Generally shown with (at least) reckless disregard of an obvious or high risk that a particular harmful result would occur

Question 7

Mental state - General intent

Answer 7

3. General intent
   a. Defendant must be aware that she is acting in the proscribed manner and that any attendant circumstances required by the crime are present
   b. Can infer general intent from doing the act

Question 8

Mental state - Model Penal Code (4)

Answer 8

4. Model Penal Code
   a. Purposely—conscious object to engage in act or cause a certain result
   b. Knowingly—as to nature of conduct: aware of the nature of conduct or that certain circumstances exist; as to result: knows that conduct will necessarily or very likely cause result
   c. Recklessly—conscious disregard of a substantial and unjustifiable risk that circumstances exist or a prohibited result will follow, and this disregard is a gross deviation from a “reasonable person” standard of care
   d. Negligently—failure to be aware of a substantial and unjustifiable risk that circumstances exist or a prohibited result will follow, and this disregard is a gross deviation from a “reasonable person” standard of care

Question 9

Accomplice Liability

Answer 9

.

Question 10

Elements of Accomplice Liability.

Liability?

Accessory after the fact?

Answer 10

1. Must be intentionally aiding, counseling, or encouraging the crime - active aiding, etc. required.
   Mere presence NOT enough even if by presence defendant seems to be consenting to the crime or even if D fails to notify the police.
2. 2. If crime is one of recklessness or negligence, accomplice must intend to facilitate commission and act with recklessness or negligence
3. Liability is for the crime itself and all other foreseeable crimes
4. Accessory after the fact (is not an accomplice)
   a. Helping someone escape
   1) Not liable for the crime itself
   2) A separate lesser charge

Question 11

Defenses to Accomplice Liability

Answer 11

1. Withdrawal is an affirmative defense if prior to the crime’s commission.
   a. If encouraged crime, must repudiate encouragement
   b. If provided material, must neutralize the assistance
   c. Or may notify police or otherwise act to prevent crime

Question 12

Inchoate Offenses - Solicitation, Conspiracy, and Attempt

Answer 12

Solicitation, Attempt, Conspiracy. (SAC)

Question 13

Solicitation (elements)

Answer 13

ELements:
a. Asking someone to commit a crime
b. With the INTENT that the crime be committed.

Question 14

Solicitation (Defenses)

Answer 14

Defenses:
a. The refusal or the legal incapacity of the solicitee is no defense.
b. If legislative intent is to exempt solicitor, that is a defense.

Question 15

Conspiracy: Elements

Answer 15

Elements:
a. An agreement;
b. An intent to agree;
c. An intent to achieve the objective of the agreement; and
d. An overt act (most jurisdictions)

Question 16

Conspiracy: Liability

Answer 16

Liability—each conspirator is liable for all crimes of other conspirators if foreseeable and in furtherance of the conspiracy

Question 17

Conspiracy Defenses

Answer 17

a. Withdrawal
1) General rule—can only withdraw from liability for future crimes; no withdrawal from conspiracy possible because agreement coupled with act completes crime of conspiracy
2) M.P.C. recognizes voluntary withdrawal as defense if the defendant thwarts conspiracy (e.g., informs police)
b. Factual impossibility is no defense

Question 18

Conspiracy MERGER

Answer 18

No merger - can be convicted of both conspiracy and substantive defense

Question 19

Attempt: Elements

Answer 19

Elements:
a. Specific intent; and
b. Overt act—a substantial step in the direction of the commission of the crime (mere preparation not enough).

Question 20

Attempt: Defenses

Answer 20

Defenses:

a. Factual impossibility is no defense
1) Factual impossibility arises when defendant sets out to do an illegal act, but cannot complete the act due to some unknown reason

b. True legal impossibility is always a defense
1) Legal impossibility arises when defendant sets out to do a legal act that he believes is illegal

c. Abandonment generally no defense after the substantial steps have begun
1) M.P.C. recognizes abandonment as defense if (i) fully voluntary and (ii) complete (i.e., not a postponement due to unfavorable circumstances)

Question 21

DEFENSES/JUSTIFICATIONS

Answer 21

A. Insanity
B. Intoxication
C. Self-defense
D. Necessity
E. Duress
F. Mistake
G. Entrapment

Question 22

Insanity (4 tests)

Answer 22

1. M’Naghten test—disease of the mind caused a defect of reason so defendant lacked the ability at time of his actions to know wrongfulness or understand nature and quality of actions
2. Irresistible impulse test—unable to control actions or conform conduct to law
3. Durham test—crime was product of mental disease or defect
4. M.P.C. test—combination of M’Naghten and irresistible impulse tests.

Question 23

Intoxication

Answer 23

1. Voluntary intoxication is a defense if it negates “specific intent”

Question 24

Self-Defense:
1. Nondeadly force (“NDF”)
2. Deadly force (“DF”)
3. Defense of others or dwelling

Answer 24

1. Nondeadly force (“NDF”)—a person may use NDF in self-defense if she reasonably believes force is about to be used on her; no duty to retreat
2. Deadly force (“DF”)
   a. A person may use DF if she is:
   1) Without fault;
   2) Confronted by unlawful force; and
   3) Reasonably believes that she is threatened with imminent death or great bodily harm
   b. Duty to retreat before using DF
   1) Majority rule—no duty to retreat
   2) Minority rule—duty to retreat, except:
   a) When it cannot be done safely, and
   b) In one’s home
   c. DF in self-defense may be used by original aggressor only if he tries to withdraw (e.g., run for door) and communicates that withdrawal to the original victim, or if sudden escalation of violence by original victim
   d. Use of DF to arrest—officer must reasonably believe suspect armed or presents a danger to the public
   e. If fact-finder determines absence of right to self-defense, defendant may be guilty of voluntary manslaughter under “imperfect self-defense” theory
3. Defense of others or dwelling
   a. NDF—person reasonably believes that NDF is necessary to protect other or dwelling (or to end unlawful entry)
   b. DF—only if a person reasonably believes that she is threatened with death or great bodily harm

Question 25

Necessity

Answer 25

1. Choice of evils—harm to society exceeded by harm of criminal act
   a. Objective test
   b. Not available if defendant is at fault for creating situation requiring choice
   c. Traditionally, choice had to arise from natural forces; modern cases do not have this requirement

Question 26

Duress

Answer 26

1. Defendant performs a criminal act under a threat of death or serious bodily harm to him or another
   a. Threat must be made by another human
   b. Traditionally, threat to property was not sufficient; MPC now recognizes threat to property as sufficient if harm threatened outweighs harm of criminal act

Question 27

Mistake

Answer 27

1. Mistake of fact
   a. Must negate state of mind
   b. Malice and general intent crimes—mistake must be reasonable
   c. Specific intent crimes—mistake can be reasonable or unreasonable
   d. Strict liability—mistake is not a defense
2. Mistake of law
   a. Generally not a defense

Question 28

Entrapment

Answer 28

1. Elements:
   a. Criminal design originated with authorities; and
   b. Defendant was not predisposed to commit crime

Question 29

Homicide

Answer 29

A. Murder
B. Manslaughter

Question 30

MURDER: ELEMENTS OF COMMON LAW MURDER

Answer 30

Elements of common law murder:
a. Unlawful;
b. Killing of another human being; and
c. With malice aforethought
1) Malice means
a) Intent to kill;
b) Intent to do serious bodily harm;
c) Reckless indifference to unjustifiably high risk to human life (depraved heart murder); or
d) Felony murder
d. One of these four intents plus a lack of justification and no provocation and the defendant kills—what is the crime? Common law murder.

Question 31

MURDER: DEFENSES

Answer 31

Defenses:
a. Justification (self-defense); and
b. Provocation (reduces the crime to voluntary manslaughter)

Question 32

MURDER: FELONY MURDER

Answer 32

Felony murder:
a. If defendant has a substantive defense to the underlying felony, he usually has a defense to felony murder; “procedural” defenses (e.g., statute of limitations) generally no defense
b. The killing must be foreseeable.
c. Deaths caused while fleeing from a felony are felony murder, but deaths that arise after defendant has found some point of temporary safety are not.
d. Majority rule—defendant is not liable for felony murder for the death of a co-felon as a result of resistance by the victim or the police

Question 33

Manslaughter

Answer 33

1. Two kinds—voluntary and involuntary
2. Voluntary manslaughter
   a. Elements:
   1) Adequate provocation;
   2) Gave rise to heat of passion; and
   3) No adequate cooling-off period
   b. Failed self-defense claim is voluntary manslaughter
3. Involuntary manslaughter
   a. Types:
   1) Killing resulting from criminal negligence; or
   2) Misdemeanor manslaughter

Question 34

Cauasation

Answer 34

1. General rule—defendant is liable for all natural and probable consequences of his conduct unless the chain of causation is broken by the intervention of some superseding factor
   a. Superseding factors:
   1) Acts of nature;
   2) Coincidence; or
   3) Negligent medical care not a superseding factor unless gross negligence or intentional malpractice.b. Two commonly encountered rules:
   1) Hastening an inevitable result; and
   2) Simultaneous acts by two or more partiesc. Add a causation analysis to any homicide question that presents the issue

Question 35

Battery

Answer 35

1) Unlawful application of force to another;
2) Resulting in bodily injury or offensive touching

Question 36

Assault

Answer 36

1) Intent to commit battery (see a., supra); or
2) Intentional creation (other than by mere words) of a reasonable apprehension in the mind of the victim of imminent bodily harm

Question 37

False imprisonment

Answer 37

False imprisonment
1) Unlawful;
2) Confinement of a person;
3) Without his valid consent

Question 38

Kidnapping

Answer 38

Kidnapping
1) Some movement or concealment of a victim in a “secret” place
2) Some courts hold that “kidnapping” is committed when the victim is moved during the commission of another crime to a location that places her in more danger than that necessarily involved in the commission of the other crime

Question 39

Rape

Answer 39

e. Rape
1) Any penetration of the female sex organ by the male sex organ (many states have made gender neutral);
2) Without the victim’s effective consent;
a) Intercourse accomplished by actual force;
b) Intercourse accomplished by threats of great and immediate bodily harm;
c) Intercourse where the victim is incapable of consenting due to uncon- sciousness, intoxication, or mental condition; or
d) Intercourse where the victim is fraudulently caused to believe that the act is not intercourse
3) In the absence of a marital relationship between the woman and the man (most states have abolished or modified this element)

Question 40

Larceny

Answer 40

Larceny
1) Taking;
2) And carrying away;
3) Of tangible personal property;
4) Of another with possession;
5) By trespass;
6) With intent to permanently deprive that person of her interest in the property

Question 41

Embezzlement

Answer 41

Embezzlement
1) The fraudulent;
2) Conversion;
3) Of personal property;
4) Of another;
5) By a person in lawful possession of that property

Question 42

False pretenses

Answer 42

1) Obtaining title;
a) If title is not obtained, the crime is larceny by trick
2) To personal property of another;
3) By an intentional false statement of a past or existing fact;
4) With intent to defraud the other

Question 43

Robbery

Answer 43

1) A taking;
2) Of personal property of another;
3) From the other’s person or presence;
4) By force or threats of immediate death or physical injury to the victim, a member of his family, or some person in the victim’s presence;
5) With the intent to permanently deprive him of it

Question 44

Receipt of stolen property

Answer 44

1) Receiving possession and control;
2) Of “stolen” personal property;
3) Known to have been obtained in a manner constituting a criminal offense;
4) By another person;
5) With the intent to permanently deprive the owner of his interest in it

Question 45

Theft

Answer 45

Theft—not a traditional common law offense, but many modern statutes and the M.P.C. consolidate larceny, embezzlement, false pretenses, and receipt of stolen goods under the single heading of “theft”

Question 46

Burglary

Answer 46

Burglary
1) A breaking;
2) And entry;
3) Of a dwelling;
4) Of another;
5) At nighttime;
6) With the intent to commit a felony in the structure

Question 47

Arson

Answer 47

Arson
1) The malicious;
2) Burning;
3) Of the dwelling;
4) Of another

Question 48

Defenses

Answer 48

1. Based on elements—required element has not been met
2. Lack of required mental state
3. Traditional defenses
   a. Insanity
   b. Intoxication;
   c. Infancy;
   d. Self-defense;
   e. Duress or necessity;
   f. Mistake of fact;
   g. Consent (rare); and
   h. Entrapment (rare)