CRIMINAL LAW & PROCEDURE

Question 1

ASSAULT & BATTERY

Answer 1

Assault - two theories at common law:
(1) Assault as a threat - general intent crime
—> Intentional creation of victims’ reasonable apprehension of imminent bodily harm
—> Words alone are usually insufficient
(2) Assault as an attempted battery - specific intent crime
—> Specific intent crime because it involves an attempt

Battery - an unlawful application of force to the person of another resulting in bodily injury or offensive touching
—> I.e., a completed assault
—> General intent crime

**Note - under modern statutes, both assault and battery have “aggravated” counterparts, which usually arise when the assault or battery is carried out with the use of a weapon.

Question 2

RAPE

Answer 2

Common law - unlawful carnal knowledge of a woman by a man other than her husband, without effective consent

Modern statutes
> The slightest penetration is sufficient to complete the crime
> Marital status insignificant
—> Most states have abolished elements of marital status
> Lack of effective consent - exists if:
(a) Penetration is accomplished by force or threat of immediate bodily harm;
(b) Vicitm is incapable of consenting due to lack of capacity (e.g., unconsciousness, intoxication, etc.); or
(c) Victim is fraudulently caused to believe the act is not intercourse

**Note - fraud or trickery lone does not constitute rape
>There must be penetration without contemporaneous consent or capacity to consent
—> E.g., convincing someone you plan on marrying them in order to have intercourse is not rape.

Question 3

FALSE IMPRISONMENT & KIDNAPPING

Answer 3

False imprisonment
> The unlawful confinement of a person without their consent
—> Consent cannot be obtained through coercion, threat, or deception

Kidnapping
> The unlawful confinement of a person that involves either:
(a) Some movement of the victim; or
(b) Concealment of the victim in an unknown, hidden, or secret location

**Note - false imprisonment can become kidnapping if the victim is moved and/or concealed

Question 4

Murder

Answer 4

The unlawful killing of another human with malice aforethought

Malice aforethought - arises when no mitigating facts reduce the killing to a lesser crime and the defendant commits the killing with one of the following mental states:
(1) Intent to kill
(2) Intent to inflict great bodily injury
(3) Depraved/malignant heart - a killing committed with reckless indifference to an unjustifiable risk of human life
(4) Felony murder - a killing caused during the attempt or commission of an inherently dangerous or statutorily enumerated felony
—> Intent required = the intent necessary to commit the underlying felony
—>Statutorily enumerated felony = statute dictates that a killing resulting from the crime constitutes felony murder

Causation - D’s act must both be the actual and proximate cause of the victim’s death
> Any act by D hastening the victim’s death, even if already inevitable, is considered a cause

Question 5

STATUTORY MODIFICATIONS TO COMMON LAW MURDER

Answer 5

Most jurisdictions classify murder crimes into various “degrees” by statute

First-degree murder - arises if killing is either:
(a) Deliberate & Premeditated - D must have killed dispassionately and must have considered or reflected on his killing, even if only momentarily
—> Specific intent crime - voluntary intoxication and mistake of fact are valid defenses
(b) Felony murder - killing during an enumerated felony
—> Many states list felonies that may serve as the basis for felony murder

Second-degree murder - a homicide not arising to the level of first-degree murder

** Note - if first-degree murder is not mentioned as a possibility in MBE question or answer choices, assume the question involves second-degree murder, which is often the “default murder” on the MBE.

Question 6

FELONY MURDER

Answer 6

A killing that occurs during the attempt or commission of certain enumerated felonies
> Intent to commit felony = the intent necessary to commit the underlying felony

Felonies allowing for felony murder
(1) Inherently dangerous felonies
(2) Statutorily enumerated felonies
—> I.e., the criminal statute states that a killing occurring during its commission constitutes felony murder

Limitations on liability for felony murder
>D must be guilty of the underlying felony
—> Valid defenses to the underlying felony are also defense to felony murder
>The underlying felony cannot itself be a killing
—>E.g., involuntary manslaughter cannot be felony murder
> Victim death must be a foreseeable result of the felony
> Victim death must be caused before D reaches a place of temporary safety
> D is not liable for the death of a co-felon killed by police or the original victim

Question 7

VOLUNTARY MANSLAUGHTER

Answer 7

A killing resulting from an adequate provocation (heat of passion killing) or imperfect self-defense

Adequate provocation - required elements:
(1) Provocation would cause sudden and intense passion in an ordinary person, causing him to lose self-control
(2) D was in fact provoked (i.e., D actually lost control)
(3) There was insufficient time for an ordinary person to cool off between the provocation and the killing
—> Very subjective and fact-based
(4) D did not cool off between the provocation and the killing
> *Note - adequate provocation is not a defense to murder
—> But it can be a mitigating factor that reduces a murder charge to voluntary manslaughter

Imperfect self-defense
> If D murders while acting in self-defense, his criminal liability can be reduced to voluntary manslaughter if either:
(a) D initiated the altercation that required self-defense, or
(b) D unreasonably believed that deadly force was necessary
>** Note - not recognized in all jurisdictions.

Question 8

INVOLUNTARY MANSLAUGHTER

Answer 8

A killing committed with criminal negligence or during the commission of an unlawful act not constituting felony murder

Criminal negligence
> Arises if D is grossly negligent
>E.g., D is texting while driving and hits and kills a pedestrian in a crosswalk

Commission of an unlawful act
> The requisite unlawful act is any felony or misdemeanor not giving rise to liability for felony murder

** Note - If MBE questions simply state “manslaughter” without distinguishing between voluntary and involuntary manslaughter, both types must be considered.