Criminal Law

Question 1

Property Crimes

Answer 1

Larceny, and compare embezzlement, false pretenses, receiving stolen property
Modern Statutes: consolidated crime of Theft

Question 2

Larceny

Answer 2

• Specific Intent
  1. Taking (exercise of control)
  2. Asporation (some movement)
  3. Corporal personal property of another (no larceny of real property)
  4. From possession of another
  5. Wrongully – either
  A. Without permission or
  B. With permission obtained by deception (larcy by trick)
  6. With intent to permanently deprive

Question 3

Taking and Asporation of the property of another

Answer 3

Usually if Defendant asports the property there is also a completed taking
Sometimes there is no taking because despite asporation D has not exercised real control
- Asporation: only some movement of the property (small)
- Taking: some control adverse to owner
To complete the taking for larceny Defendant need not remove the property from the premises
Defendant need only take property from someone with a greater right to possession than Defendant
Ex: Stealing your car back from someone who is entitled to keep it until you pay your bill, even though its your car they have a greater right to possession and you will be guilty of larceny

Question 4

Intent to Permanently Deprive

Answer 4

At the time of the taking the defendant must have intended to either:
- Permanently keep the property himself or
- Do something with the property that would create at least a high risk that the owner would never get the property back
Taking with intent to return cannot be larceny
What controls is what Defendant intended to do with the property at time of the taking not what actually happened it
Critical issues is whether the intended use of the property involved a high enough risk of permanent loss to the owner

Question 5

Continuing Trespass Rule

Answer 5

when a crime requires both a particular act and an intent the defendant must have the required intent when he does the act constituting the crime
Exception- Some Larceny cases, continuing trespass rule
- Did I borrow it or Did I steal it?
If you take property with permission and formed intent after committing acts to commit crime, you are not guilty of trespass
If you take property without permission but with intent to return it and then form the intent to keep it you are guilty of larceny (during that wrongful possession formed intent to permanently deprive)
Forming the intent after the taking and during the possession is sufficient only if the original taking was wrongful (without consent or with consent obtained by deception)

Question 6

Embezzlement

Answer 6

1. Possession of property of another under trust arrangement
2. Conversion of that property (use of it contrary to the terms of the trust arrangement) and
3. With intent to defraud
   - Cant take money with intent to pay it back, still guilty of embezzlement.
   - If money is marked for one thing and you used it for another you converted the money
   Intent to return or replace converted property does not show the lack of intent to defraud required for embezzlement

Question 7

Custody/Possession and Larceny/Embezzlement

Answer 7

A person who has possession of the property of another can commit embezzlement but not larceny of that property
A person who has only custody of the property of another does not have possession and can commit larceny of that property
Possession requires extensive and discretionary control
- Usually an employee has only custody of employers property and thus commits larceny by taking it

Question 8

False Pretenses

Answer 8

1. Obtaining title to property from another (Take $ you take title)
2. By means of a misrepresentation of
   A. Present fact or
   B. Past fact and
3. With intent to defraud
   Not sufficient misrepresentations: unkept promise, or misrepresentation of future fact
   Obtaining something by misrepresenting your intention to keep promise to be pay for is false pretenses (misrepresentation of present fact)
   Usually an affirmative misrepresentation is required. But failure to correct a misunderstanding is sufficient if Defendant creates the misunderstanding

Question 9

Receiving Stolen Property

Answer 9

1. Receiving (taking possession)
2. Of property acquired by larceny (or some other property crime)
3. Knowing that the property is stolen
4. With intent to permanently deprive
   Property must actually be stolen property when received by defendant
   - Not recovered stolen property and then person agreed to let it be used

Question 10

Theft

Answer 10

A person commits theft it he unlawfully exercises control over the property of another without effective permission and with the intent to deprive the other of the property

Question 11

Robbery

Answer 11

Larceny in which property is taken either by
A. Force (violence)
B. Threat (intimidation)

Question 12

Force in a Robbery

Answer 12

Robbery by force: force must be used to obtain property or prevent victim from immediately regaining it
- Force must be closely related to the taking of the property
Ex: later see man who took property and he knocks you unconscious then
- No force involved I defendant lifts item from victims pocket or defendant slips item from victims hand without resistance

Question 13

Threats in a Robbery

Answer 13

A. Threats must be of imminent physical harm
B. Victim must be put in fear of harm
C. Threat must be such as would cause apprehension of immediate harm in a reasonable person
Action constitutes a threat only if a reasonable person would be put in fear of immediate harm

Question 14

Extortion

Answer 14

obtaining property by means of other threats such as:
A. Do something other than physical harm (as a threat to reveal an embarrassing fact or damage victim’s property) or
B. Do physical but not imminent harm (later harm)

Question 15

Burglary

Answer 15

1. Entry
2. By breaking
3. Of the dwelling of someone else
4. During the night time
5. With the intent to commit a felony inside the structure

Question 16

Dwelling for Burglary

Answer 16

Place actually used as sleeping
Burglary can be committed by entering a part of a dwelling, can be by going from one room to another room
Burglary is not committed by entering a thing within a dwelling

Question 17

Entry for Burglary

Answer 17

can be by an instrument

Question 18

Breaking for Burglary

Answer 18

Breaking requires only some force to create an opening

Question 19

When must defendant form intent for burglary?

Answer 19

Defendant must have necessary intent at time of entry

Defendant need not carry out the intent to be guilty

Question 20

Modern Burglary

Answer 20

1. Expanded places covered
2. Eliminate need for breaking
3. Eliminate requirement that entry be in the night time and
4. Expand intent

Question 21

Intent to Commit a Felony in Burglary

Answer 21

1. Prosecution must prove:
   A. Defendant entered with intent to commit certain acts and
   B. Those acts if committed by Defendant would be a felony
2. Need not prove Defendant knew that law made theses acts a felony
   Mistaken believed that ones intended conduct will be a felony is not intent to commit a felony

Question 22

Arson

Answer 22

1. Malicious
2. Burning
3. Of another’s dwelling
   Burning requires:
   A. Some physical damage
   B. By fired (not smoke or heat) and
   C. To a part of the structure itself
   - Awareness of a high risk is enough to make burning malicious
   - Arson requires that some part of the structure be burned by fire (objects in structure do not count)

Question 23

Homicide Flow Chart

Answer 23

1. Did defendant cause death of victim??
   If yes
2. Did defendant act with malice aforethought
   If yes to both then murder unless:
3. Was there also adequate provocation?
   If yes, voluntary manslaughter
4. If yes to 1 and no to 2 did defendant either
   A. Act with criminal negligence (involuntary manslaughter)
   B. Cause death while committing misdemeanor (involuntary manslaughter)

Question 24

Causation in Homicide

Answer 24

If no causation defendant is often guilty of attempted murder
3 kinds of causation
1. Factual causation: But for acts of the defendant, victim would not have died as and when he actually did die
2. Year and one day rule: Victim must die within a year and one day from the infliction of the injury
3. Proximate causation

Question 25

Proximate Causation in Homicide

Answer 25

Defendant intends to cause victims death, death factually causes victims death, BUT death occurs in an unexpected manner
- Does this break the chain of causation?
Proximate causation exists if the victims death naturally results from the defendants actions even if this occurs in an unexpected manner unless the events are extremely unusual
BUT proximate causation is lacking if a superseding factor is interjected into the chain of causation. Ex:
- Independent of the defendants actions
- Unforeseeable and
- The sole immediate cause of the victims death
If an intended death occurs in an unexpected way, there may be a lack of proximate causation
An intervening event cannot break chain of proximate causation if it only becomes a contributing cause of death
A defendant who simply speeds up death of dying victim does factually cause the victims death

Question 26

Murder

Answer 26

A killing is with malice aforethought and therefore murder if the defendant acted with
1. Intent to kill
2. Intent to cause serious bodily injury
3. Awareness of extremely high risk that death will result (abandoned and malignant heart doctrine or depraved mind murder) or
4. Intent to commit a felony
If defendant acted with one of other malice states intent to kill is not necessary for murder
Knowingly engaging in high risk activity can be malice

Question 27

Felony Murder

Answer 27

Accidental deaths cause during commission of a felony are murder
If the defendant has a defense to the underlying (predicate felony) are murder
The death must have been foreseeable OR some courts instead require the felony to have been dangerous as committed
All cofelons are guilty of a felony murder if the death was foreseeable to them
Merger Rule: Felony murder cannot be based on felony assault (or battery) causing death of victim (merges into death of victim)
- A death during a felony may be foreseeable to some of the felons but not to others

Many courts will not apply felony murder if the fatal shot was not fired by one of the felons (the agency rule)
Courts are most reluctant to apply felony murder where person killed is one of the felons

Question 28

Degrees on Murder

Answer 28

Some statutory provisions divide murder into degrees. Most killings with malice aforethought are second degree murder. Some killings are first degree murder:
- Certain Felony Murders
- Premeditated Murders
Premeditation requires some conscious consideration over whether or not to kill
A provoking incident, even if not enough to reduce killing to voluntary manslaughter, may show absence of premeditation

Question 29

Voluntary Manslaughter

Answer 29

An intentional killing that would otherwise be murder is reduced to voluntary manslaughter if three things are shown:
1. Objectively reasonable provocation
2. This actually caused the defendant to kill the victim and
3. Defendant acted on that before an objectively sufficient cooling period elapsed
Some situations are insufficient as a matter of law Ex: Mere Words

Question 30

Involuntary Manslaughter

Answer 30

A killing is involuntary manslaughter if the defendant killed either
1. In the course of committing a misdemeanor or
2. With criminal negligence
Where negligence is used for criminal liability it requires more negligence than is necessary for civil liability

Question 31

Liability for Omissions

Answer 31

Criminal liability can sometimes rest upon a person failure to act
Omission can be sufficient only if:
The defendant has a legal duty to act which can arise from:
1. Criminal Law
2. Tort Law (creating the peril)
3. Contract Law
4. Any other body of law
The defendant was aware of the facts giving rise to the duty to act and performing the duty was possible

Where Defendant has no legal duty to act criminal liability cannot rest upon defendant’s failure to take action

Question 32

Rape

Answer 32

sexual intercourse by a male with a woman not his spouse without the woman’s effective consent and by force
Fraud will render womans consent ineffective only if the fraud goes to the nature of the act
- Has to be told that what she is doing is not sex, even though it is. Lying to have sex is not rape

Question 33

Kidnapping

Answer 33

A. Confining or restraining a person or
B. Moving (asporting) a person and
Without authority of law

Where the victim of a crime such as robbery or rape is confined or moved during the crime many courts hold that kidnapping does not also occur unless the confinement or movement is not merely incidental to the other crime because it:
A. Increases the risk to the victim or
B. Makes successful completing of the crime more likely

Question 34

Possession Offenses

Answer 34

Crimes consisting of possession do not necessarily involved either an act or an omission
Possession by actual physical control must involve more than momentary control
Constructive Possession: requires the ability to exercise actually physical control with awareness of that ability for a period sufficient to enable the person to terminate the possession

Question 35

All parties are guilty of a crime who

Answer 35

All persons are guilty of a crime who:
A. Commit the act constituting the crime (primary actors) or
B. Participate in it (as aiders and abettors or accomplices) either before or during its commission or
C. Use an innocent agent to commit it
Assistance to the primary actor after the crime is complete does not create liability for the crime (common law: accessory after the fact)
Acquittal of one participant does not affect liability of others

Question 36

Aiding and Abetting: Accomplice Liability

Answer 36

Participation in the offense and with the required intent
Participating can be either encouraging or assisting the primary actor
- Mere presence at scene of commission of crime not enough
To have required intent aider and abettor must both:
A. Know the primary actor is going to commit the offense and
B. Intend (which means want) to encourage or assist him in doing so
Look for evidence that defendant had motive for wanting primary actor to successfully commit crime
Ex: Financial motive that crime be completed
- Presence pursuant to an agreement to aide is sufficient to show participation (even if you didn’t actually look out but you agreed to do it)
- An aider and abettor can be convicted even if the primary actor is acquitted
- A person who actually assists or encourages another in committing a crime is most likely to have the intent to assists or encourage if the evidence shows a motive to want the primary actor to successfully commit the crime

Question 37

Exceptions to liability as aider and abettor (accomplice liability)

Answer 37

Exceptions to liability as aider and abettor
A participant in an offense is not guilty of the offense if either:
1. The participant is a member of the class of persons protected by the crime (statutory rape)
2. The crime inherently involves several types of participants and only some are made liable
In a drug sale case purchaser is not aider and abettor to sale

Question 38

Attempt

Answer 38

It is a crime to attempt to commit an offense
To commit criminal attempt a person must:
1. Go far enough (do something constituting a substantial step) towards commission of the crime
2. With intent to commit the crime
Defenses: Impossibility of success
- Abandonment of attempt is not a defense

2 part intent

1. Intent to complete the conduct constituting the attempted crime
2. Any intent necessary for the attempted crime

Question 39

Impossibility

Answer 39

Impossibility is quite different from mistake as a defense generally. Impossibility situations all involve mistaken beliefs by the defendants that the attempts will be successful. Impossibility applies only in attempt

Question 40

Factual Impossibility

Answer 40

Mistake about ones ability:
Factual impossibility:
It will be impossible for Defendant to perform the conduct she has set out to perform or cause the result she has set out to cause BUT defendant mistakenly believes she will be successful
- Guilty of Attempt

Mistake About Circumstances
Factual impossibility:
Defendants intended conduct if completed would not constitute a crime, because on of the circumstances is not what is required for the crime BUT defendant is mistaken about the circumstances
If the circumstances was as defendant believed it to be, her intended conduct would constitute a crime
- Guilty of Attempt

Question 41

Legal Impossibility

Answer 41

Mistake about criminal law
Legal impossibility:
Defendants intended conduct would not constitute a crime if completed. But defendant thinks it would be a crime because defendant is mistaken about the criminal law
- Not Guilty of Attempt

Question 42

Solicitation

Answer 42

1. Asking someone to commit and offense
2. With intent that the person commit that offense
   Solicitation is a crime even if it is immediately rejected

Question 43

Conspiracy

Answer 43

1. Entering into an agreement to commit a crime and
2. With the intent that the crime be committed
   Modern Statutes often require an overt act in furtherance by one member of the group
   Possible Defenses: withdraw, no meeting of minds (acquittal of co-conspirators)
   Not a defense impossibility

Withdrawal

Question 44

Co-Conspirator Rule

Answer 44

all members of a criminal conspiracy are guilty of crimes committed by other members of that conspiracy if those crimes are both:
1. Committed in furtherance of the scheme
and
2. Foreseeable result of the scheme

Question 45

Defenses of withdrawal from the conspiracy

Answer 45

Withdrawal is no defense to the crime of conspiracy
An effective withdrawal is a defense to a crime for which the defendant is liable under the co-conspirator rule

For a withdrawal to be effective it must be:

1. Fully communicated to all of other members of the conspiracy and
2. Before the crime is committed

No meeting of minds
Defendant charged with conspiracy must be acquitted upon proof that all other members of the alleged conspiracy have been acquitted or its equivalent
Equivalents of acquittal:
- Not guilty by reason of insanity
- Person did not intent to go though with the crime (secret reservations)
Ex: undercover police officer

Conspiracy defendant is entitle to acquittal only upon showing that all of the other co-conspirators were acquitted or its equivalent

Question 46

Ignorance of Mistake of Fact

Answer 46

Ignorance of mistake concerning a matter of fact will affect criminal liability only if:
It shows defendant lacked the intent required for the crime and the mistake was objectively reasonable

If mistake shows absence of a necessary specific intent it need not be reasonable
Specific intent crimes: larceny, other property crimes with intent to deprive or defraud, burglary (intent to commit offense), attempt and conspiracy (intent to complete target offense), any offense defined as going something “with intent to”
- NOT specific intent crimes: arson and rape
Modern analysis: mistake of fact requires acquittal whenever it shows the lack of whatever mental state is required for the crime
Larceny prosecution where defendant took property mistakenly believing it belonged to defendant: no intent to deprive another of that persons property

Question 47

Criminal Intent

Answer 47

Crimes generally require means rea or intent

• Defendant need not have known anything about the law
• Defendant must have been aware of the facts that constitute the crime

Exceptions:
Strict Liability crimes do not require awareness of all the fact
A. statutory rape: no knowledge of victim’s age required
B. Bigamy: defendant need not know at time of second marriage he still has a living spouse
C. Regulation Crimes (low penalty, enforcement device for regulatory scheme)
No defenses at all to strict liability crimes

Question 48

Modern Statute Mens Rea

Answer 48

Purpose: a conscious desire
Knowledge: awareness of a particular certainty
Recklessness: awareness of a substantial risk
Negligence: reasonable person would have been aware of a substantial risk
- “I think I can make it” = awareness
If mens rea is silent recklessness will be applied

Question 49

Transfered Intent in Criminal Law

Answer 49

IF defendant intends to injury one person and accidently inflicts a similar injury upon another person she will be treated as if she intended to injure the person actually harmed

Question 50

Ignorance of Mistake of Law

Answer 50

Ignorance that the criminal law makes one’s conduct a crime is not a defense
A defendants affirmative (but mistaken) belief that the criminal law did not prohibit her conduct is a defense if:
1. That belief was objectively reasonable and
2. The defendant relied upon:
A. A statute later held invalid
B. A judicial decision later overruled
C. An official interpretation of the law by a public official
A defense of mistake of law cannot be based on advice of counsel
- Occasionally the mens rea of ca crime requires knowledge that he law is being violated. IF this is the case advice of counsel may show the lack of that mens rea
IF a crime requires awareness of the law even unreasonable ignorance or mistake that shows lack of awareness will required acquittal

Question 51

M’Naghten Rule

Answer 51

Defendant is entitled to acquittal only if facts show that at the time of the crime
1. He has a serious mental disease or defect;
2. This cause a defect in his reasoning abilities;
3. As a result he did not either
A. Understand the nature of the act he was doing or
B. Understand that his act was wrong

• Some jurisdictions would say a mentally impaired defendant should be acquitted under M’Naughten if the evidence shows the person believed the conduct was morally permissible
• Under M’Naghten, an insanity defense cannot be based upon loss of control

Question 52

Model Penal Code Insanity (modern)

Answer 52

A defendant is not guilty by reason on insanity if as the result of serious mental illness or defect, he either,
A. Has lost the substantial capacity to understand his act or its wrongfulness; or
B. Has lost the substantial capacity to conform his conduct to the law’s requirement
- Loss of control may be a defense under MPC or irresistible impulse test

Question 53

Unconsciousness

Answer 53

Criminal liability must be based upon a voluntary act of the defendant
If the defendant was unconscious her behavior cannot constitute the necessary voluntary act
- Impaired consciousness (such as sleep walking) may show absence of a voluntary act but not insanity

Question 54

Intoxication

Answer 54

Involuntary Intoxication either:
1. Defendant did not know substance was intoxicating or
2. Defendant consumed substance under duress
Treated as a mental illness and insanity test applied

Voluntary Intoxication: defendant should be acquitted only if the crime requires proof of a specific intent and the intoxication shows he lacked the intent
- Only applies to specific intent crimes, not general intent
Applied to homicide: can disprove premediation, cannot disprove malice aforethought, can reduce murder to manslaughter

Modern Statutory Approach: Voluntary intoxication requires acquittal if:
Crime requires mental state higher than recklessness and intoxication shows lack of this mental state
- There is no voluntary intoxication defense if recklessness is sufficient for liability
Minority: Voluntary intoxication is completely irrelevant to criminal liability (Supreme Court says this is constitutionally permissive)

Question 55

Entrapment

Answer 55

Majority: Subjective Rule
Entrapment occurs only if
A. The defendant was not predisposed to commit crimes of that sort charged and
B. Police officers created the intent to commit the offense in her mind

Minority: Objective Rule
Entrapment occurs if police activity would cause a reasonable and unpredisposed person to form the intent to commit the crime

Question 56

Necessity of Choice of Lesser Evils Defense

Answer 56

Necessity of Choice of Lesser Evils Defense
Generally it is a defense that:
A. Defendant believed that committing the crime would prevent an imminently threatened harm
B. Defendant believed this threatened harm would be greater than the harm that would result form commission of the crime and
C. Those beliefs were objectively reasonable

Necessity is not a defense if either:

1. The defendant wrongfully created the situation making the choice necessary or
2. The defendant killed another to avoid his own death

A defendant charged with escape is likely to have a defense of necessity only if defendant attempted to surrender to authorities as soon as the immediate threat was over

Question 57

Duress or Coercion

Answer 57

General Rule: It is a defense that the defendant was compelled to commit the crime by a threat that if he did not do so the threatening person would do:
A. Imminent and physical harm
B. To a defendant or a third person
Exception: Duress is not a defense to a crime that consist of an intentional killing
Duress is available as defense to even murder if the prosecutions theory of guilt does not require proof of intent to kill

Question 58

Self Defense

Answer 58

It is a defense that the defendant believed that:
A. He was in imminent danger of being illegally physically harmed by another
B. The force he used was necessary to prevent the threatened harm and
C. These beliefs were objectively reasonable

Question 59

Deadly Force and Self Defense

Answer 59

If a crime involved deadly force, Defendant has a defense only if she reasonably believed:
1. She was threatened with imminent death or serious bodily injury and deadly force used was necessary to prevent that harm to her
Need to Retreat (minority rule): any opportunity to retreat must be taken before using deadly force
- Applies only if retreat possible with complete safety
- No duty to retreat when attacked in one’s own home
- General Rule for retreat: opportunity to retreat is a factor to consider in determining whether deadly force was reasonable

Question 60

Aggressor Rules in Self Defense

Answer 60

A person who starts a fight cannot use force in self-defense during the fight
An aggressor regains the right to use force in self-defense during a fight by either
A. Withdrawing from the fight or
B. Giving notice of desire to do so

Question 61

Imperfect Defense in Homicide Cases

Answer 61

A defendant charged with murder who actually but unreasonably believed killing was necessary in self-defense:
Not entitled to acquittal but should be convicted of manslaughter rather than murder

Question 62

Defense of Other Persons

Answer 62

1. The defendant believed that another person was threatened with imminent unlawful physical harm by a third person
2. The defendant believed that the force she used was necessary to prevent the harm and
3. These beliefs were objectively reasonable
   Availability of defense turns on whether it reasonably appeared to defendant that the person she aided was in the right

Question 63

Defense of Property

Answer 63

It is a defense that force can be used to defend property
Limits:
Only nondeadly force can be used to defend property
Force can only be used to prevent the interference and not to regain the property except in immediate pursuit