Crim Law

Question 1

Actus Reus

Answer 1

A required component of every common law crime, along
with mens rea
D must perform a voluntary physical act, i.e., a voluntary
bodily movement

Question 2

Mens Rea

Answer 2

The mental element required at the time a crime was committed
• A required component of every common law crime, along
with actus reus

Question 3

Specific Intent

Answer 3

D must have a specific intent or objective to commit the given crime
» Specific intent must always be proven; never inferred
» Mistake of fact and voluntary intoxication are available defenses

Question 4

General Intent

Answer 4

D must be aware of his actions and any attendant circumstances
» May be inferred from the act itself
» Note — most crimes are general intent crimes

Question 5

Malice Intent

Answer 5

D acts with reckless disregard or undertakes an obvious risk, from which a harmful result is expected
» Applies to arson and common law murder

Question 6

Actual Causation

Answer 6

But for D’s conduct, the result would not have occurred
» For homicide and manslaughter, any act by D that
hastens victim’s death is a cause-in-fact, even if death
is already inevitable

Question 7

Proximate Cause

Answer 7

The actual result is the natural and probable consequence of D’s conduct, even if it did not occur exactly as expected
» Superseding factors break the chain of causation
» Intervening acts must be entirely unforeseeable to shield D from liability (e.g., victim’s refusal of medical treatment, third-party medical negligence — both are foreseeable and D is liable)

Question 8

Specific Intent Crimes

Answer 8

Attempt
Larceny & Robbery
Forgery
False Pretenses
Embezzlement
Conspiracy
Assault
Burglary
First-degree murder
Solicitation

Question 9

Accomplice

Answer 9

One who aids, encourages, or counsels principals committing a crime, with the intent to encourage its commission
• Mere presence at the crime is not enough; there must be some assistance

Question 10

Accomplice Liability

Answer 10

Accomplice is liable for the original crime and other

foreseeable crimes committed by the principles in its furtherance

Question 11

Withdrawal - Accomplice

Answer 11

D can effectively withdraw before the crime is committed or becomes unstoppable
» D must negate or repudiate initial aid or encouragement

Question 12

Accessory After the Fact

Answer 12

Different than accomplice liability
• Involves helping someone escape or avoid apprehension
• Gives rise to a separate, lesser charge of obstruction of justice

Question 13

General Intent Crimes

Answer 13

1) Battery
2) Rape
3) Kidnapping
4) False imprisonment

Question 14

Malice Crimes

Answer 14

1) Common law murder (malice aforethought)

2) Arson

Question 15

Strict Liability Crimes

Answer 15

1) Statutory rape
2) Regulatory crimes
3) Administrative crimes
4) Morality crimes (e.g., bigamy, polygamy)

Question 16

Transferred Intent

Answer 16

D may be held liable if he intends the harm caused, but causes it to a different victim or object than intended
• Often applies to homicide, battery, and arson
» Does not apply to attempt
• Defenses and mitigating circumstances may also be
transferred

Question 17

Effect of Transferred Intent

Answer 17

D is usually charged with two crimes:
1) Attempt (to commit the originally intended crime)
2) The actual resulting crime
• E.g., D intends to shoot A, but kills B; D can be charged with
the attempted murder of A and the actual murder of B
» Note — merger does not apply because there are
different victims

Question 18

Solicitation

Answer 18

Inciting, urging, or otherwise asking another to commit a crime with the intent that they commit the crime
• No affirmative response from the solicited party is required
Merges with offense.

Question 19

Defenses to Solicitation

Answer 19

Very few defenses apply to solicitation
• Refusal by the solicitee is not a defense
• Impossibility and withdrawal are not defenses
• MPC allows renunciation as a defense, but common law does not
» Most jurisdictions follow the common law approach

Question 20

Conspiracy

Answer 20

An agreement between two or more people to commit a crime

Question 21

Elements of Conspiracy

Answer 21

1) An agreement between two or more people
» I.e., a “meeting of the minds”
» Express agreement is not required
» Parties do not need to know of each other’s existence
2) Intent to enter into the agreement
3) Intent to commit the target crime or pursue the unlawful
objective
4) An overt act in furtherance of the target crime
» Any slight act will suffice under most modern statutes
» Not a required element at common law

Question 22

Defenses to Conspiracy

Answer 22

Impossibility is not a defense to conspiracy

• Withdrawal is not a defense to conspiracy but may be a defense to liability for co-conspirators’ subsequent crimes

Question 23

Co-Conspirator Liability

Answer 23

Each conspirator is liable for co-conspirators’ crimes that are:

1) Foreseeable, and
2) Committed in furtherance of the conspiracy

Question 24

Acquittal of Co-Conspirators

Answer 24

If all alleged co-conspirators are acquitted, no party can be convicted of conspiracy
• However, a person can be convicted of conspiracy even if his co-conspirators have not been found or charged

Question 25

Withdrawal from Conspiracy

Answer 25

One cannot withdraw from the conspiracy itself » One can withdraw from co-conspirators’ subsequent crimes, including the target offense of the conspiracy • Affirmative act required — withdrawal is effective when the withdrawing party makes an affirmative act that notifies his co-conspirators he is withdrawing • Must be timely — withdrawal must give enough time for coconspirators to abandon plans for the target offense • The withdrawing party must attempt to neutralize the effect of any assistance he provided to the original conspiracy

Question 26

Attempt

Answer 26

An act, done with the intent to commit a crime, that constitutes an overt or substantial step towards committing the crime but falls short of completing the crime • I.e., an incomplete act that would be a crime if completed

Question 27

Overt Act Attempt

Answer 27

D must commit an act beyond mere preparation • Substantial step — D must take a substantial step towards committing the target crime

Question 28

Defenses to Attempt

Answer 28

Legal impossibility • Legal impossibility is a defense • Factual impossibility is not a defense • Abandonment is not a defense — liability for the attempt arises once D commits an overt act concurrently with the intent to commit a crime (i.e., D will be liable for attempt of a given crime before he can abandon the crime)

Question 29

Merger

Answer 29

Merger concerns the relationship between an inchoate offense and its completed substantive offense • When merger applies, the inchoate offense (e.g., attempt) merges into the target offense, prohibiting D from being prosecuted for both crimes Only Solicitation and Attempt and FMR

Question 30

Insanity

Answer 30

Depending on jurisdiction, one of four tests is used to determine whether D was so mentally ill when he committed a crime that he should be entitled to acquittal • A defense to all crimes, regardless of the intent requirement

Question 31

Four Insanity Tests

Answer 31

M'Naghten Irresistible Impulse MPC Durham

Question 32

M'Naghten Test

Answer 32

D doesn’t know right from wrong » Due to a mental disease or defect, at the time of the offense D lacked the ability to know the wrongfulness of his conduct or understand the nature and quality of his act

Question 33

Irresistible Impulse Test

Answer 33

D acted due an irresistible impulse | » Due to a mental illness, D was unable to control his actions or conform his conduct to the law

Question 34

MPC Insanity Test

Answer 34

Combination of M’Naghten & Irresistible Impulse » As a result of D’s mental disease, D lacked the capacity to either appreciate the criminality of his conduct or conform his conduct to the requirements of the law

Question 35

Durham Test

Answer 35

But for his mental illness, D would not have acted | » D’s conduct was the product of a mental illness

Question 36

Infancy Defense

Answer 36

A defense to criminal liability for minors • Under 7 years old — no criminal liability • 7-14 years old — rebuttable presumption against criminal liability

Question 37

Diminished Capacity Defense

Answer 37

A defense based on D’s mental defect • Available if D can show that he has some mental defect short of insanity that prevented him from forming the mental state required for the crime • Usually limited to specific intent crimes

Question 38

Due Process Defense

Answer 38

The Due Process Clause forbids D from being tried, convicted, or sentenced if, as a result of his mental disease or defect, D is unable to either: a) Understand the nature of the proceeding brought against him, or b) Assist his lawyer in the preparation of his defense

Question 39

Voluntary Intoxication

Answer 39

``` A defense to specific intent crimes • Voluntary intoxication = D chose to consume an intoxicant » Alcoholics and addicts are voluntarily intoxicated • Not available if D becomes intoxicated in order to commit the crime (i.e., “liquid courage”) • Only a defense to specific intent crimes ```

Question 40

Involuntary Intoxication

Answer 40

A defense to all crimes | • Arises when D was given an intoxicant without her knowledge or forced to consume an intoxicant

Question 41

Self Defense

Answer 41

May be used in response to imminent threats of unlawful force

Question 42

Non-Deadly Force

Answer 42

May be used if D: 1) Is not at fault (i.e., not the initial aggressor); and 2) Reasonably believes it necessary to protect himself from imminent unlawful force • Note — the amount of force permitted depends on the nature of the provoking offense; it must generally be proportionate

Question 43

Deadly Force

Answer 43

May be used if D: 1) Is not at fault (i.e., not the initial aggressor); and 2) Is confronted with unlawful force that threatens imminent death or great bodily harm • No duty to retreat under majority rule » Minority rule requires retreat if safely possible

Question 44

Self Defense Initial Aggressor

Answer 44

Available if either: a) Initial aggressor effectively withdraws before the need for self-defense arises and communicates his desire to do so; or b) Victim of the initial aggression suddenly escalates a minor dispute into a deadly altercation

Question 45

Defense of Others

Answer 45

Same rules apply as for self-defense | • D can defend another if D reasonably believes the person he is protecting could have legally defended himself

Question 46

Defense of Dwelling

Answer 46

Only non-deadly force may be used • Only non-deadly force is allowed to prevent or terminate an unlawful entry or attack on one’s dwelling • Deadly force may be used to protect oneself or others, but never to protect property alone

Question 47

Defense of Property (not dwelling)

Answer 47

* Non-deadly force may be used to prevent unlawful interference with possessions or trespass on property * Must first request that the perpetrator stop the interference

Question 48

Recovery of Property Defense

Answer 48

Force may not be used to regain possession of property wrongfully taken, unless one is in immediate pursuit of the wrongful taker » E.g., if a thief steals A’s suitcase at the airport curb, A can only use reasonable force if he is immediately pursuing the thief to recover his suitcase

Question 49

Necessity Defense

Answer 49

A valid defense when commission of a crime is reasonably necessary to avoid an imminent and greater injury to society • Objective test — commission of the crime must be reasonably necessary; good faith alone is insufficient • Exceptions — necessity is not available if: a) Crime committed results in the death of another b) D originally caused the circumstances giving rise to the necessity

Question 50

Duress Defense

Answer 50

A valid defense to a crime D committed under reasonable belief that the crime was necessary to prevent death or serious bodily harm to D or a member of D’s family • E.g., someone points a gun at D and threatens to kill him if he does not rob a bank • Exception — duress is not a defense to homicide crimes

Question 51

Consent Defense

Answer 51

A valid defense when victim consents to the crime • Almost never available, unless the crime is a minor assault or battery, or requires non-consent as an element (e.g., rape) • Consent must be given freely by a party capable of consenting

Question 52

Entrapment

Answer 52

An available defense to criminal liability if a law enforcement agent has induced D to commit a crime

Question 53

Elements of Entrapment

Answer 53

1) Criminal design originated with law enforcement » Criminal design = idea or plan for the crime 2) D was not otherwise predisposed to commit the crime » D must have no criminal predisposition » Law enforcement providing an opportunity for a person to commit a crime is not, by itself, entrapment

Question 54

Mistake of Law

Answer 54

Almost never a defense • Lacking awareness or knowledge that an act constitutes a crime, even if reasonable, is not a defense to that crime • Exceptions — very rare 1) Reasonable reliance on an invalid statute 2) The crime itself requires knowledge of the law

Question 55

Mistake of Fact

Answer 55

Available as a defense only if it negates a requisite intent element (i.e., mens rea) for the crime ``` Specific intent - Any mistake of fact is a defense Malice & general intent - Only a reasonable mistake of fact is a defense Strict liability (i.e., no intent) - Mistake of fact is never a defense ```

Question 56

Assault

Answer 56

1) Assault as a threat — general intent crime » Intentional creation of victim’s reasonable apprehension of imminent bodily harm » If assault involves touching, it is considered battery 2) Assault as an attempted battery — specific intent crime » Specific intent crime because it involves attempt

Question 57

Battery

Answer 57

An unlawful application of force to the person of another resulting in bodily injury or offensive touching » I.e., a completed assault

Question 58

CL Rape

Answer 58

Unlawful carnal knowledge of a woman by a man other than her husband, without effective consent • The slightest penetration is sufficient to complete the crime

Question 59

ML Rape

Answer 59

Lack of “effective consent” exists if: 1) Intercourse is accomplished by force or threat of immediate bodily harm 2) Victim is incapable of consenting due to lack of capacity » E.g., unconsciousness, intoxication, or some mental condition 3) Victim is fraud

Question 60

What does not constitute rape?

Answer 60

Fraud or trickery alone 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 61

False Imprisonment

Answer 61

The unlawful confinement of a person without their consent » Consent cannot be obtained through coercion, threat, or deception

Question 62

Kidnapping

Answer 62

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

Question 63

CL Murder

Answer 63

The unlawful killing of another human with malice aforethought

Question 64

Malice Aforethought

Answer 64

arises when no mitigating facts reduce the killing to a lesser crime and D commits the killing with one of the following mental states: Intent to Kill Intent to inflict GBI Depraved Heart FMR

Question 65

Depraved Heart

Answer 65

A killing committed with | reckless indifference to an unjustifiable risk of human life

Question 66

First Degree Murder

Answer 66

arises if a killing is either: 1) Deliberate & premeditated — D must have killed in a dispassionate manner and must have considered or reflected on his killing, even if only momentarily 2) Killing during an enumerated felony

Question 67

Second Degree Murder

Answer 67

Any homicide not arising to | first-degree murder

Question 68

FMR

Answer 68

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

Question 69

FMR Felonies

Answer 69

BARRK ``` Burglary Arson Robbery Rape Kidnapping ```

Question 70

Voluntary Manslaughter

Answer 70

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

Question 71

Adequate Provocation Elements VM

Answer 71

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

Question 72

Imperfect Self Defense Elements VM

Answer 72

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 deadly force was necessary • Note — not recognized in all jurisdictions

Question 73

Involuntary Manslaughter

Answer 73

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

Question 74

Criminal Negligence IM

Answer 74

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

Question 75

Larceny

Answer 75

The taking and carrying away of another’s tangible personal property without consent (i.e., trespassory) and with the intent to permanently dispossess the person of the property

Question 76

Taking Larceny

Answer 76

Obtaining control or possession » If D already has possession at the time of the taking, it is not larceny (but may give rise to embezzlement)

Question 77

Carrying Away Larceny

Answer 77

The slightest movement will suffice

Question 78

Without Consent Larceny

Answer 78

Against victim’s free will (i.e., by trespass) | » The use of fraud or duress negates consent

Question 79

Intent to Permanently Deprive Larceny

Answer 79

must exist during taking » Specific intent crime — not larceny if D takes property as security for a debt owed or believing it belongs to D » Permanently = for an unreasonable period of time » Continuing trespass — when one borrows property with the intent to return it, but later keeps it; larceny arises at the moment D decides not to return the property

Question 80

Lost Items Larceny

Answer 80

Larceny can arise if the true owner is known or ascertainable and D decides to keep the property (must be lost or misplaced; larceny cannot arise for abandoned property)

Question 81

Embezzlement

Answer 81

Fraudulent conversion of another’s personal property by one in lawful possession

Question 82

Fraudulent Conversion Embezzlement

Answer 82

D uses another’s property beyond the scope of or inconsistent with D’s possessory rights

Question 83

Lawful Possession Embezzlement

Answer 83

D must have lawful possession at the time of conversion

Question 84

False Pretenses

Answer 84

Obtaining title to another’s property using false statements of past or existing fact, with intent to defraud

Question 85

Elements of False Pretenses

Answer 85

1) Obtaining title » Obtaining ownership, not mere possession 2) By false statements » Must be an intentional false statement 3) Of past or existing fact » Misrepresentation regarding a future event is not sufficient 4) Intent to defraud » Victim must be deceived or act in reliance on the false statement in passing title to D

Question 86

Larceny by Trick

Answer 86

Obtaining possession of another’s personal property using false statements of past or existing fact » Larceny by trick — D acquires possession but not title

Question 87

Receipt of Stolen Property

Answer 87

Receiving possession and control of personal property known to have been illegally obtained, with the intent to permanently deprive the owner of her interest in it

Question 88

Elements of Receipt of Stolen Property

Answer 88

1) Receipt of possession and control » Physical possession is not required — D can have possession or control by designating the property’s location or arranging to sell it for the original thief 2) Of stolen personal property » Property must have been stolen when D receives it and D must know or have reason to know it was stolen

Question 89

Forgery

Answer 89

Creating or altering a written document with purported legal significance to be false, with the intent to defraud

Question 90

Creating or Altering Forgery

Answer 90

E.g., drafting, adding, or deleting from a document’s | contents

Question 91

Legal Significance Forgery

Answer 91

A document that carries legal value (e.g., a check or | contract, but not a painting)

Question 92

False Forgery

Answer 92

Modifying the document into something it is not; changing its legal significance, not just changing it to be inaccurate

Question 93

With Intent to Defraud Forgery

Answer 93

» Specific intent crime | » Note — actually defrauding somebody is not required; the mere intent to defraud is sufficient

Question 94

Robbery

Answer 94

The wrongful taking of another’s personal property from his person or presence by force or threat of injury, with the intent to permanently deprive. Threats of future harm are insufficient.

Question 95

Extortion

Answer 95

Obtaining property through threats of future harm or exposing information

Question 96

Burglary

Answer 96

Breaking and entering into the dwelling house of another at nighttime with the intent to commit a felony therein Note — on the MBE, where modern rules for burglary conflict with common law elements, apply modern rules

Question 97

Breaking Burglary

Answer 97

Can be actual or constructive » Actual — opening or enlarging (e.g., opening unlocked door) » Constructive — entry by threat, force, fraud, or duress » Entering with consent or through a wide open door is not a breaking

Question 98

Arson

Answer 98

The malicious burning of the dwelling house of another

Question 99

Burning Arson

Answer 99

Requires some damage to structure caused by fire » Damage from smoke, water, or explosions is not sufficient at common law

Question 100

Dwelling House Arson

Answer 100

Structure where someone lives » Common law requirement » Note — On MBE it can be a non-residential structure

Question 101

Damages for Arson

Answer 101

Must be charring or something more • Discoloration, blackening, or other lesser damage is insufficient