Crim Add-ons

Question 1

Does underlying offense of felony murder usually merge into felony murder charge?

Answer 1

YES

Question 2

If burglar fails to complete felony, is he guilty of attempting that felony

Answer 2

YES, guilty of burglary + attempted xyz

Question 3

Common law conspiracy vs. MPC conspiracy

Answer 3

CL: two guilty minds

MPC: one guilty mind + overt act

Question 4

Is factual impossibility a defense?

Answer 4

NO, never a defense to attempt

(e.g. tried to poison someone and didn’t realize you used cilantro)

Question 5

Under CL, are children 7-14 capable of committing crimes?

Answer 5

Yes, REBUTTABLY PRESUMED capable of committing crimes

Question 6

If a person says “I’m not scared” while assault occurs, does this impact charge?

Answer 6

Yes, if indicates that person was in no fear of imminent harm , could negate assault charge

Question 7

CL: if co-conspirators tried together and one acquitted on conspiracy, can other be guilty?

Answer 7

CL: NO, if at same trial, CANNOT convict one person of conspiracy if others acquitted at same trial

Question 8

Under MPC, if no default mens rea, what do you read in?

Answer 8

RECKLESSNESS (conscious disregard of substantial/unjustifiable risk)

Question 9

When can reliance on attorney advice provide a defense

Answer 9

Usually, not a mistake of law defense UNLESS negates required mental state for crime

Question 10

Can you abandon an attempt after taking a substantial step?

Answer 10

NO, too late

Question 11

In burglary, can ‘breaking’ element occur if guest enters room in home where they do not have permission?

Answer 11

YES, even if they have been invited into home

Question 12

When may deadly force not be used in one’s own dwelling?

Answer 12

when intruder is in process of EXITING

Question 13

What burden of proof is required for affirmative defenses (self-defense, insanity, etc.)

Answer 13

Any burden acceptable. Legislature decides

Question 14

Forgery vs. false pretenses

Answer 14

Forgery = making false instrument of LEGAL significance

False pretenses = making false instrument of SOCIAL (historical, art, pop culture) significance

Question 15

Does lawfully entering but then breaking to EXIT a dwelling count as burglary?

Answer 15

No, the breaking must occur when ENTERING a dwelling to create OPENING

Question 16

Is assault a lesser included offense of robbery?

Answer 16

YES

Question 17

When can therapist warn third parties of risk?

Answer 17

When patient makes credible threat of physical violence against ascertainable victim OR notify law enforcement, take other steps

Threat need NOT be imminent

Question 18

Is mistaken belief of owning property a defense to larceny?

Answer 18

YES, can negate required intent

Question 19

What standard of proof is required for affirmative defenses?

Answer 19

Affirmative defense = justifies/excuses criminal conduct, so burden NOT automatically on prosecution (who must bear burden for all ELEMENTS of crime)

State chooses which party bears burden, and can choose any standard of proof

Question 20

Fraud in factum vs. fraud in inducement for sexual assault

Answer 20

Fraud in factum: negates consent bc victim unaware of consent

Fraud in inducement: does not negate consent bc victim aware he provided consent

Question 21

Does MPC recognize larceny, embezzlement, and false pretenses?

Answer 21

NO, all treated as single statutory crime of THEFT

But all of these crimes are recognized in common law jurisdictions

Question 22

If a statute is violated giving rise to negligence per se, are there any ways in which the violation could be reasonable?

Answer 22

Yes, if defendant was disabled, physically incapacitated, or a child

Question 23

Under MPC, if MR is identified for one element of the crime, does it apply to other elements?

Answer 23

YES applies to other material elements unless there is a clear contrary purpose

Question 24

Involuntary manslaughter vs. depraved heart murder MR standard

Answer 24

Involuntary manslaughter: Negligence (lack of care, maybe someone will get killed)

Depraved heart murder: Recklessness (would be shocking if someone didn’t get killed)

Question 25

Can you back out of conspiracy after committing overt act? 3 perspectives

Answer 25

Majority/federal rule: CAN withdraw from a conspiracy BEFORE overt act CL: completely bars withdrawal as defense Minority/MPC: withdrawal as defense AFTER overt act IF defendant makes effort to thwart conspiracy

Question 26

Redline doctrine

Answer 26

D NOT GUILTY of felony murder if co-felon dies at hands of victim or police (followed by most states) BUT depraved heart murder still possible

Question 27

Does conspiracy require proof that D had specific intent for unlawful purpose?

Answer 27

YES, even if intended crime does NOT require specific intent

Question 28

Is 'breaking' for burglary satisfied if a person uses a key to unlock a door without permission?

Answer 28

YES, even if they have a key, this still satisfies breaking if done without owner's CONSENT

Question 29

Do an attempted and completed crime merge if their intended targets are different?

Answer 29

NO, not if the two crimes have different victims Charges can be tried together or separately

Question 30

Can a person with IQ of 60 be given death sentence?

Answer 30

NO, 8A prohibits this for people with intellectual disability (IQ of 70 or lower)

Question 31

Vindictive prosecution doctrine

Answer 31

bars prosecution from punishing defendant for exercising right (e.g. appeal)

Question 32

JMOL standard (historical v today)

Answer 32

Historical: if scintilla of evidence supported verdict for non-movant Today: if SUFFICIENT/SUBSTANTIAL evidence exists to support verdict

Question 33

is 'adequate provocation' a question of fact or law?

Answer 33

question of FACT to be tried by jury even if likely unreasonable, still can give to jury to consider

Question 34

Under CL, can you prosecute only one person for a conspiracy, or must multiple be prosecuted?

Answer 34

Just one, don't need to prosecute multiple

Question 35

If a person stops taking anti-seizure medication and then has a seizure while driving, does voluntarily stopping taking medication establish fault?

Answer 35

Likely not sufficient answer, pick answer that goes further. It is BECAUSE that action consisted engaging in reckless/criminally negligent activity

Question 36

When is abandonment NOT a defense to attempt?

Answer 36

When it was motivated by 1) desire to avoid detection 2) decision to delay crime to a later time or 3) selection of another objective/victim

Question 37

Does arson require intentional burning?

Answer 37

NO, can be MALICIOUS (recklessness okay)

Question 38

For a strict liability offense that has no MR requirement and solely AR, is intent relevant for an attempt?

Answer 38

YES, even if there is no mens rea requirement for statute, ATTEMPT is a specific intent crime, and so still requires requisite mens rea

Question 39

Is there a reasonable person standard for attempt?

Answer 39

NO, does not matter what a reasonable person would think

Question 40

Do most jdx have imminent danger or substantial step test?

Answer 40

SUBSTANTIAL STEP

Question 41

Attempt elements

Answer 41

1) D had specific intent 2) D or his agent performed act in futherance 3) target crime not completed

Question 42

If a party solicits another to commit a crime and solicitor has intent to commit that crime, will solicitor be found guilty of attempt if party attempts crime?

Answer 42

YES

Question 43

Do common law property crimes apply to trade secrets and other intangible property?

Answer 43

NO, only relate to TANGIBLE property

Question 44

Robbery elements

Answer 44

Larceny PLUS Battery OR assault

Question 45

Minority rule retreat doctrine

Answer 45

A person must retreat before using DEADLY force in self-defense if person is OUTSIDE home and can do so with REASONABLE SAFETY

Question 46

Majority rule for accomplice liability

Answer 46

Accomplice who has purpose of PROMOTING or FACILITATING commission of offense, AIDS or ABETS PRIOR TO or DURING crime

Question 47

Is a threat to damage property sufficient for robbery?

Answer 47

NO, need threat of serious physical injury to victim/close family member/other present person

Question 48

Is burglary of an open store possible?

Answer 48

NO, if it was open to the public at time, did not 'break' Robbery or larceny more likely

Question 49

In jury instructions, must a court apply mens rea to verbs or objects of criminal statute?

Answer 49

BOTH Eg. "knowingly possessing marijuana" = knowingly possessing AND KNOWING it was marijuana

Question 50

Must a person be physically moved to be kidnapped?

Answer 50

NO, can be CONFINED/CONCEALED for SUBSTANTIAL PERIOD

Question 51

Can killing be reduced to voluntary manslaughter if a person 1) mistakenly believed the person was the provoking party or 2) accidentally killed another person while trying to kill provoker

Answer 51

YES and YES

Question 52

When is duplicate permissible under best evidence rule?

Answer 52

Admissible UNLESS question of 1) AUTHENTICITY or 2) UNFAIR

Question 53

If initial taking of property is not wrongful (e.g. lost property) and you then change your mind to keep, is this larceny?

Answer 53

NO, if initial taking is not wrongful, doctrine of continuing trespass does not apply

Question 54

If lifeguard gives assurance that body of water is safe, does it generate duty?

Answer 54

YES, when person undertakes risk based on assurance, duty is generated IF lifeguard knew person took on risk

Question 55

If a person does not KNOW that there was reckless danger posed by act, can he be charged w depraved heart murder?

Answer 55

NO, MPC/most jdx require ACTUAL knowledge of danger to human life

Question 56

MPC Insanity test

Answer 56

1) does not appreciate wrongfulness of act OR! (one or the other) 2) conform conduct to the law (irresistible impulse)

Question 57

Majority rule re: person killed during felony by someone other than perpetrator or accomplices

Answer 57

NO criminal liability for perpetrator

Question 58

Is an act robbery if a person believes they are recovering their own property?

Answer 58

YES, bc CLAIM OF RIGHT cannot be used to justify robbery in most states

Question 59

For attempted robbery charge, do larceny/assault/battery merge?

Answer 59

YES, even if robbery is merely attempted, these are all lesser included offenses

Question 60

MPC rule on charging for multiple inchoate crimes

Answer 60

Under MPC, person may be concurrently PROSECUTED for, but not CONVICTED of, more than 1 inchoate offense

Question 61

MPC rule on conspiracy

Answer 61

Defendant does NOT need to perform overt act in furtherance so long as one party commits overt act