Criminal Law

Question 1

Elements of Crimes:

Answer 1

Generally, crimes have common elements, each of which the prosecution must prove beyond a reasonable doubt.

EXAM TIP: Be alert to a problem where the evidence fails to prove one of these essential elements. Remember that a missing element = not guilty.

EXAM TIP: The Model Penal Code (MPC) is a minority rule. You should only apply it if the question directs you to do so. Otherwise, you should apply the majority rule, which is often the modern rule, or the common law (CL) rule if there is no modern majority rule.

Question 2

Actus Reus = Guilty Act

Answer 2

o Voluntary conscious act that causes an unlawful result; or

 Reflexes or sleepwalking lack volition, so they are not considered criminal acts.

 Acts performed under duress are volitional, but may be excused under a defense of duress defense.
EXAMPLE: The defendant kills his son by stabbing him after his son surprises him from behind. The defendant claims his act was a conditioned response from his military training and from his experience as a jungle fighter during World War II. This evidence is irrelevant, because even if his reaction was a conditioned response, it satisfied the volition requirement and is a voluntary act. Had he killed his son while sleepwalking, or during an epileptic seizure, there would be no voluntary act.

o Omission when the defendant has a duty and the ability to act.

 Statutory duties (law enforcement)

 Legal duty by contract (lifeguard/nursing home)

 Status relationship (Husband/wife, parent/child)

 Voluntary undertaking to rescue that is abandoned

 Failing to help after creating risk (hit & run)

EXAMPLE: Nursing home employees who abandoned elderly residents during hurricane Katrina committed a criminal omission; however, individuals who drove out of the city with plenty of room for passengers and ignored the pleas for assistance by others on foot did not commit a criminal omission, even though it was obvious they were about to be engulfed by rising waters.

Question 3

Mens Rea = Guilty Mind

Answer 3

o Categories (normally defined by statute)

 Purpose means that the conscious objective of the act is to bring about the prohibited result.

• Note: for inchoate offenses (solicitation, attempt, conspiracy), intent almost always refers to an act that is done purposefully.

 Knowledge means that the defendant knows, with almost absolute certainty, that the act will produce the prohibited result.

 Recklessness means that the defendant is aware that the conduct creates an unjustifiable risk, but ignores that risk and engages in the conduct anyway.

• “D knew the risk but didn’t care.”

 Criminal negligence creates an unjustifiable risk without subjective awareness that they are doing so, but a reasonable person would have been aware of the risk.

• “D did not realize he created the risk, but should have, because a reasonable person in that situation would have.”

 Some terms refer to multiple categories:

• Intent: Acts intentionally with purpose or knowledge.
• Willful: Acts purposefully or knowingly, with moral turpitude (similar to intent).

Question 4

Types of Intent

Answer 4

 Specific intent requires proof that the defendant intended to create a specifically prohibited harm; includes acts done purposefully or knowingly (“with intent to”).

• Nullified by an honest but unreasonable mistake of fact or by voluntary intoxication.

 General intent only requires a desire to do the prohibited act; includes reckless and negligent states of mind.

• Nullified by an honest and reasonable mistake of fact.

EXAMPLE: The defendant is charged with Battery with Intent to Commit Murder. The state of mind required to commit a battery is a general intent (unlawfully applying force to another). In contrast, the intent to murder the victim is a specific intent element, requiring proof that the defendant acted with the purpose of killing the victim when they committed the battery.

Question 5

Strict liability

Answer 5

has no mens rea element. A voluntary act = guilt.

 Mistake of fact is never a defense (e.g., for statutory rape, where the defendant mistakenly believes the victim was of legal age).

Question 6

Transferred intent

Answer 6

occurs when the defendant intends to produce a criminal result against one party, but harms another instead. The intent transfers from the intended victim to the unintended victim.

Question 7

Concurrence

Answer 7

requires the prosecution to prove that the act that caused the criminal result was actuated (set in motion) by the requisite criminal state of mind.

EXAMPLE: Common law burglary is the unlawful breaking and entering of the dwelling of another at night with the intent “to commit a felony or larceny therein.” If the defendant breaks into a house to escape from the rain, and then sees a valuable item and decides to steal it before he leaves, this is NOT burglary because the breaking and entering was not actuated by the requisite mens rea – there is no concurrence. Burglary requires proof beyond a reasonable doubt that the defendant broke and entered the dwelling with the intent to commit a felony or larceny once inside. Here, the intent was formed after the entry, so there is no burglary.

Question 8

Causation

Answer 8

o Actual cause (cause in fact) can be satisfied by one of three tests:

 But for: The result would not have occurred but for D’s conduct.

 Substantial factor: Multiple causes/parties are responsible for the result, but D’s act was a substantial factor in causing the criminal result.

 Acceleration: The defendant’s conduct speeds up an inevitable death, even if briefly.

EXAMPLE: D1 stabs the victim in the heart with a knife. Simultaneous with this stabbing, D2 shoots the victim in the head. Medical testimony conclusively establishes that either the knife or bullet wound alone was sufficient cause to instantly kill the victim. Either D1 or D2’s act can be considered the actual cause of the victim’s death.

EXAMPLE: D1 shoots the victim in the chest. D2 then runs over the victim and kills him instantly. Medical evidence establishes that the victim would have died from the gunshot wound, but that he died more quickly as the result of being run over. Both D1 and D2 are substantial factors, and D2 is an accelerating factor.

Question 9

Proximate cause

Answer 9

requires the resultant harm to be within the risk created by the defendant’s conduct in crimes involving negligence or recklessness, or sufficiently similar to that intended in crimes requiring intent.

 In some cases, an intervening event that occurs between the defendant’s actual cause and the criminal result can break the chain of proximate cause. The question becomes whether the intervening event supersedes (cuts off) the defendant’s responsibility.

• If the intervening event is foreseeable, it will not supersede. D is still responsible.

o Foreseeable = simple negligence or unknown special sensitivities/vulnerabilities of the victim (you must take the victim as you find him).

• If the intervening event is unforeseeable, it normally will supersede. It relieves D of responsibility and breaks the casual connection to the criminal result.

o Unforeseeable = grossly negligent or reckless conduct.

EXAMPLE: Both a bank teller who dies of a heart attack because of the shock caused by a robbery, and a guard who is shot in the arm and later dies due to ordinary medical malpractice, are considered to have died proximately from the robbery. Both deaths are objectively foreseeable consequences of an armed bank robbery.

 To relieve D of responsibility (break causal connection), the intervening cause must be a superseding cause. To supersede, it must be unforeseeable.

Question 10

Assessing Foreseeability

Answer 10

o Determine whether the intervening cause was a dependent or responsive intervening cause, or merely a coincidence.

 Dependent or responsive interventions will not supersede, unless they are a totally abnormal response to the defendant’s act.

EXAMPLE: The defendant sees the victim on an ocean pier and begins shooting at him. In order to avoid harm, the victim dives into the ocean. The currents are too strong, and the victim drowns. This is not an abnormal response to the defendant’s conduct, and therefore is foreseeable. The defendant is the proximate cause of the victim’s death.

 Independent/coincidental interventions will supersede the defendant’s responsibility, except when an independent intervening force was foreseeable.

EXAMPLE: A bank customer is shot in the toe by the defendant during a robbery. While waiting for the EMT to dress the wound and transport him to the ER, the bank customer is killed by a serial killer who happens to be walking past the bank. The serial killer is unrelated to the robbery. This is not foreseeable, and the independent intervening cause will supersede the defendant’s act and break the causal connection to the victim’s death. The defendant is not the proximate cause of the victim’s death.

Question 11

Criminal Homicide

Answer 11

unlawful killing of a human being by another

o A killing is unlawful when it is:

 Committed as a result of a criminal state of mind (criminal mens rea); and

 Without legal justification or excuse (no defense).

o Homicide + malice = murder.
o Homicide without malice = manslaughter.

Question 12

Murder

Answer 12

= unlawful killing of a human being + malice

o Actus reus is the criminal act that causes death (an act + volition or omission when the defendant had a duty).

o At common law, death requires the victim to have been “born alive.”

o Death must be caused by someone else (suicide is not homicide).

o If the victim is already dying, speeding up the death is considered to be the cause-in-fact of the death.

Question 13

Year and a Day Rule

Answer 13

 At common law a death that occurs after more than a year and a day is unforeseeable.

 Most states have eliminated this rule or extended the time period beyond one year, during which the defendant can be held responsible.

Question 14

The defendant does not have to personally kill to be responsible (four circumstances):

Answer 14

 Accomplice: may be held liable for the killer’s act.

 Conspiracy: all members of the conspiracy can be held responsible if:

• The homicide was a reasonably foreseeable result of the conspiracy; and
• The homicide was committed in furtherance of the conspiracy.

 Substantial Factor: where the defendant and a third-party cause the victim’s death (actual cause)

• Note that proximate cause must still be determined.

 Co-Felon: if the killing = felony murder, then co-felons may also be guilty of murder.

Question 15

Malice is established by

Answer 15

 Intent to Kill: The defendant acts with the purpose to kill another or with knowledge that their conduct will kill another.

• Deadly Weapons Doctrine: intent to kill is inferred from the defendant’s use of an instrument that is designed to kill or that is used in a manner likely to kill or inflict grievous bodily harm (swinging a bat at the victim’s head).

 Intent to Cause Serious Bodily Harm: The defendant acts with the conscious desire or substantial certainty that their act will result in the victim’s serious/grievous injury. Serious/grievous bodily harm = significant but not fatal injury.

EXAMPLE: The defendant drives her car over the victim’s legs, intending to break them in order to perpetrate an insurance scam. However, the victim ends up dying as a result of the injuries sustained. The defendant acted with the necessary malice for murder.

 Depraved-Heart Murder

• Unintentional killing resulting from:

o Reckless or grossly negligent conduct;

o That creates an extreme risk to others; and

o Demonstrates a wanton indifference to human life and a conscious disregard of an unreasonable risk of death or serious bodily injury.

EXAMPLE: Death caused by forcing someone to play Russian roulette or pushing a heavy flower pot off a fifth-story balcony onto the busy street below.

Question 16

Any unlawful killing + malice = murder

Answer 16

even if the defendant did not set out to kill someone or did not even expect that their conduct would cause death.

Question 17

Felony Murder

Answer 17

Malice is automatically established by causing death during the commission of the “right type” of felony.

• Felony murder is:

o An intentional or accidental killing;

o Proximately caused;

o During the commission or attempted commission;

o Of a serious or inherently dangerous felony (BARRK).

• Obstacles for prosecution

o “Right type of felony” – (1) felonies listed in a statute, or (2) felonies that are independent of the killing and inherently dangerous.

 The majority of states require the killing to be collateral (independent) to the felony. If the primary purpose of the felony is to cause serious physical harm, the felony is not independent and fails the collateral felony test. Felonies that fail this test are manslaughter, aggravated battery, aggravated assault, and mayhem.

 BARRK: Burglary; Arson; Rape; Robbery, and Kidnapping

• The ‘right type’ of felonies that satisfy the independent and inherently dangerous requirement.
• Exception: Burglary with the intent to commit murder or cause serious injury, because the primary purpose of this crime is to cause serious harm. Therefore, it is not an independent felony.

EXAMPLE: The defendant pretended to be a doctor with a cancer cure and induced the victim to pay $5,000 for a medically worthless ointment that the defendant claimed would cure cancer. Practicing medicine without a license is a felony in the jurisdiction. If the victim had received competent medical treatment, the cancer would have been detected and cured. In an abstract jurisdiction (majority), this would not be the “right type of felony” because practicing medicine without a license is not dangerous to human life in all situations. If the victim dies of cancer, the defendant can be charged with felony murder in a context jurisdiction (minority) because the context of the commission in this particular situation was inherently dangerous.

o “Right connection to felony”

 The death must be a foreseeable outgrowth of the felony.

 Liberally applied – only coincidences are ruled out.
o “Right time” – the death must be the result of
injuries inflicted during the commission, attempt, or immediate flight from a felony.

 Felony starts when the defendant could be convicted of attempt.

 Terminates when the defendant reaches temporary safety.

Question 18

Co-felon Responsibility:

Answer 18

When a crime is committed by multiple people and the victim is killed by one felon, whether the co-felon is responsible for that killing will vary depending on jurisdiction.

• Modern majority agency rule limits felony murder responsibility to a killing committed by a co-felon.

o Exempts felony murder responsibility for killings committed by non-felons.

o Some majority jurisdictions will still apply the felony murder rule when a non-felon kills another non-felon (the victim aims at a felon, but kills a bystander instead).

• Common law: Felony murder responsibility attaches to all felons for any homicide committed during a felony. Only requires that the killing be proximately caused by the commission of the felony.

EXAMPLE: Immediately following a burglary, while the felons are still in flight, the homeowner trips, causing a fatal injury, while running down the stairs to call the police. All co-felons are liable for felony murder for this death.

• Exceptions:

o Non-violent felon – Minority common law rule: a co-felon is exempt from felony murder responsibility if they are not armed and did not participate/have knowledge of the other co-felons’ intent.

o Deserving victim – Minority common law rule: a co-felon is exempt from felony murder responsibility when anyone kills another co-felon.

o Redline limitation – Majority common law rule: a co-felon is exempt from felony murder responsibility if the police or victim kills a co-felon.

EXAMPLE: A bank robber would not be charged with felony murder under the Redline limitation if the police justifiably kill her accomplice.

Question 19

Murder by Degrees:

Answer 19

Many jurisdictions divide murder into degrees.

EXAM TIP: Remember, all murders require proof of malice. Therefore, distinguishing between first and second-degree murder will always turn on proof of an additional “ingredient” to establish first-degree murder. Malice is always the base mens rea element.

Question 20

First-degree murder

Answer 20

is the most egregious category of murder.

 Common law and most degree jurisdictions: Proof that the defendant’s decision to kill was done with both premeditation and deliberation (P&D) elevates second-degree to first-degree murder. The defendant must consciously decide to kill, so they must actually intend to kill. Implied malice is not enough.

 Premeditation means the defendant must think about the act of killing.

• Common law – Can premeditate immediately.
• Modern majority – Some time is necessary to think, but it can be brief. Most jurisdictions require that the premeditation occurred after the intent to kill was formed, which means proof of some reflection.

 Deliberate means the defendant must make a deliberate choice to kill, which requires rational thought.

• Voluntary intoxication or diminished capacity may prevent deliberation.

EXAMPLE: Jerry walked into the ice cream shop and told Ben he had just “scored” with Ben’s new girlfriend. Ben was outraged and decided in a split second to beat Jerry to death with his ice cream scooper. Jerry died as a result of the beating. Ben would likely be guilty of second-degree murder, rather than first-degree murder because he did not premeditate the death.

EXAM TIP: The modern majority rule requires the jury to find that premeditation occurred after the intent to kill was formed, which means proof of some reflection to distinguish first-degree murder from spur-of-the-moment killings. The minority position resembles the common law view that little or nothing more than intent to kill is required in order to find premeditation and deliberation (like the time it takes to decide to pull a trigger) —basically collapsing the distinction between premeditated, deliberated, and intentional killings.

Question 21

Second-degree murder

Answer 21

is any killing with malice, but without the additional element to prove first-degree murder. In a jurisdiction that defines first-degree murder only as murder with premeditation and deliberation, any murder committed without the purpose to kill must be second-degree murder.

Question 22

Voluntary manslaughter

Answer 22

(heat of passion) is an intentional killing mitigated by adequate provocation or other circumstances negating malice.

o Adequate provocation: Heat of passion negates the malice element. An intentional killing without malice is manslaughter.

 Objective Component

• A provocation that would lead a reasonable person to lose self-control and fly into a sudden homicidal rage.

o Mere words are not enough (generally).

o Rage must be hot – be sure that a reasonable person would not have cooled off.

 Subjective Component

• There must be a causal connection between the provocation and the killing.
• The defendant must actually have been provoked and must not have cooled off.

EXAMPLE: A hit man finds his wife in bed with the person he is hired to kill and shoots him. Even though a reasonable person would be provoked, he was not. This defendant killed for another reason, so this is not voluntary manslaughter.

o Mitigating circumstances can strip malice from intent to kill (reduces murder to manslaughter).

 Diminished mental capacity (minority): mental disturbance short of insanity.

 Imperfect self-defense (many states): an honest but unreasonable judgment of necessity to use homicidal self-defense or defense of others.

Question 23

Involuntary manslaughter

Answer 23

is an unintentional killing resulting from unjustified risk creation (recklessness or gross negligence) that is not sufficiently extreme to rise to the level of implied malice.

o Unjustifiable Risk of Death or Injury to Others

 Recklessness: The defendant is subjectively aware of the risk and ignores it.

 Gross Negligence: The defendant is unaware of the risk, but a reasonable person would have been aware.

• Examples include mishandling loaded weapons, driving dangerously (DUI), and shaking a baby so hard that it causes death.

Question 24

Misdemeanor-Manslaughter (majority):

Answer 24

An unintentional killing that occurs during the commission or attempted commission of a misdemeanor that is malum in se, or of a felony that is not of the inherently dangerous type required for felony murder.

Question 25

Other Crimes against the Person

Answer 25

• Battery is the intentional or reckless or criminally negligent unlawful application of force to a victim. o General intent crime established when:  The defendant unlawfully applies force (can be indirect – D throws rock at victim);  The defendant does so intentionally, recklessly, or as a result of a criminally negligent state of mind; and  The defendant has no legal justification/excuse. EXAMPLE: If John tells his trained parrot to attack a visitor, John may be guilty of battery even though he did not personally touch the visitor. o In most jurisdictions, simple battery (misdemeanor) can be elevated to aggravated battery (felony) when the defendant:  Causes serious bodily injury;  Uses a deadly weapon; or  There is a special category of victim (child, pregnant woman, or police officer). o Defenses  Valid consent.  Self-defense and defense of others, as long as proportional force is used.  Prevention of a crime, so long as proportional force is used.

Question 26

Assault

Answer 26

is a specific Intent crime. o Common law: Attempted battery is the only way to commit criminal assault. This type of assault requires an intent to commit a battery. Under the common law, an intent merely to frighten (even where accompanied by some fear-producing act, such as pointing an unloaded gun at the victim) will not suffice. Because an intent to injure is required, recklessness or negligence that comes close to causing injury (such as driving a car recklessly but just missing a victim) will not suffice for an assault. o Modern majority: A defendant commits criminal assault by attempting to commit battery or by intentionally causing the victim to fear an immediate battery.  Failed attempted battery requires proof that the defendant intended to actually batter a victim, but failed. So long as the defendant intended to commit battery, there is no defense that the victim was not aware of the assault or that the defendant was not presently able to commit the battery.  Fear of battery assault: The defendant never intended to actually batter the victim, but instead, intended to put the victim in fear of an immediate battery. The defendant must act with threatening conduct intended to cause reasonable apprehension of imminent harm to the victim. • Reasonable apprehension o This requires more of an “expectation” than a “fear” – the victim must simply anticipate that battery will result in immediate bodily harm. o The victim must be aware of the threat of harm. o No assault when a reasonable person would not expect imminent bodily harm. EXAMPLE: A defendant who says, “If you don’t pay me back, I will hit you” has probably not committed an assault. If they raise their fist in conjunction with this threat, the defendant has committed a fear-type assault.  Assault can rise to aggravated felony assault when: * The defendant commits assault with a dangerous weapon. * The defendant acts with the intent to rape or murder. * The victim is specially protected by statute.

Question 27

Mayhem

Answer 27

o Common law: Intent to maim or do bodily injury accompanied by an act that either:  Dismembers; or  Disables the victim’s use of some body part useful in fighting. o Modern majority: Statutes have expanded the scope of the crime to include permanent disfigurement. o The crime is aggravated battery in jurisdictions that do not recognize the crime of mayhem. EXAMPLE: Bob intended to disfigure Emily and slashed her in the face with a razor. This is mayhem in modern jurisdictions.

Question 28

False Imprisonment

Answer 28

is the confinement of one person by another when it is intentional, against the law, and the victim is fully confined. EXAMPLE: After discovering Diane cheating on him with another man, Jack left Diane in the bedroom, locked the door behind him, and said through the locked door, “If you beg, I may let you out for breakfast.” The bedroom was on the first floor and there were windows to the outside that were open. Though Jack intended to lock his wife in the room, the availability of other exits means that he is not guilty of false imprisonment. Had this been a third-floor bedroom, he would have been guilty.

Question 29

Kidnapping

Answer 29

o Common law: The unlawful restraint of a person’s liberty by force or show of force so as to send the victim into another country. o Modern majority: It is usually sufficient that the victim is taken to another location or concealed. o The majority of jurisdictions require some movement of the victim (asportation). Mere restraint is not enough (in a minority of jurisdictions unlawful restraint is enough).

Question 30

Rape

Answer 30

o Common law: The original crime of rape had three elements:  Carnal knowledge of a woman (vaginal penetration of the victim by the defendant) not his wife;  Against her will (without consent); and  By force or threat of force (“NO” was not enough/resistance was required). o Modern majority: There is no implied resistance requirement. The focus is on objective evidence of lack of consent.  Penetration alone satisfies the “force” requirement.  If a reasonable person in the defendant’s situation would have known the victim was not consenting, that establishes the “against the will” and without consent element.  Mistake of fact can be a defense, because there is no requirement to prove extrinsic force. However, the mistake must be both honest and reasonable.  Consent is determined objectively from observable circumstances. o Other non-consensual sexual contact is generally covered under a separate crime (sexual assault, sexual contact, sexual battery, or indecent acts). o Statutory rape: If the victim is under the statutorily prescribed age of consent (usually 16), intercourse is rape, even if the victim expresses consent, because the victim is considered legally incapable of giving consent. It is no defense that the defendant mistakenly believed that the victim was of legal age.

Question 31

Bigamy

Answer 31

is the crime of marriage by one individual to more than one other person.

Question 32

Incest

Answer 32

is the crime of sexual relations between individuals who are closely related. The degree of relationship required varies by state.

Question 33

CRIMES AGAINST PROPERTY

Answer 33

1) Theft Crimes involve some taking of property from the victim by the defendant. The key to analyzing theft crimes is to examine three criteria: * How the defendant obtained the property (trespass, delivery, or trick). * Whether the defendant acquired custody, possession, or title to the property. * Whether the defendant had the intent to permanently deprive (steal) the property at some time while still in unlawful possession of the property. EXAM TIP: Intent to permanently deprive (or steal) is the key to all theft offenses. If the defendant never forms the intent to permanently deprive before the property is restored to the rightful possessor, the defendant cannot be guilty of any form of theft offense. An unlawful taking, even with intent to temporarily deprive, is never

Question 34

General Framework:

Answer 34

o Larceny: unlawful taking of property in someone else’s possession with intent to steal. o Embezzlement: unlawful conversion of property in your possession with intent to steal. o False Pretenses: obtaining title to property owned by someone else through fraud. o Larceny by Trick: obtaining possession, but not title, through fraud, with intent to steal.

Question 35

Forms of Control:

Answer 35

o Title = legal ownership, and implies possession. o Possession = full dominion and control over the property, but does not require title. o Custody = physical control of property in someone else’s possession without full dominion over the property – possessor places strict limits on permissible use of the property.

Question 36

Larceny

Answer 36

• Common law: o Trespassory taking; o And carrying away; o Of tangible personal property;  Modern statutes have expanded the kinds of property to include theft of services and other intangibles. o Of another; o With intent to permanently deprive or steal (specific intent).  Continuing Trespass Doctrine: If a defendant takes property, but at the time intends the taking to be temporary, and later decides to permanently deprive the owner of the property, the doctrine of continuing trespass establishes concurrence between the unlawful taking and the requisite intent to steal.  There is no intent if you think the property is yours, no matter how unreasonable.  Intent is satisfied if the defendant recklessly exposes property to loss or deals with property in a manner involving substantial risk of loss.  If, at the time of taking, the defendant intends to return the property to the victim unconditionally and within a reasonable time, there is no intent (only applies if the defendant has the ability to return the property).  Returning property DOES NOT establish the absence of intent to steal. A defendant is guilty of larceny if they intended to permanently deprive at the time of the taking or at any time prior to returning the property. EXAMPLE: Susie goes into a grocery store with the intent to steal some candy. She walks up the candy aisle and selects a few bags of candy. She stuffs the bags in her jacket pockets. As she turns to leave the aisle, she realizes that a small child just watched her put the candy in her pockets. Susie feels guilty for stealing in front of the child so she takes the candy out of her pockets and puts it back on the shelf. Susie is guilty of larceny. The crime was complete before she returned the items. She took it and moved it with the requisite intent to steal. o Abandoning stolen property with the hope that it will be returned is still larceny. o The defendant can negate the intent element by:  pawning the property, but with the intent to reacquire the pawned property and return it to the owner.  intending to replace or pay for the property at a later time.

Question 37

Embezzlement

Answer 37

is the unlawful conversion of property already in the defendant’s possession with the intent to permanently deprive (statutory crime). • Unlawful conversion; o Conversion means transforming someone else’s property to your own – there must be some action toward the property that seriously interferes with owner’s rights, i.e. selling, consuming, damaging, claiming title to it. * Of the tangible personal property of another; * By one who is already in lawful possession; * With the intent to permanently deprive or steal. o Specific fraudulent intent to steal can be negated by an honest belief that the defendant has a right to the property.

Question 38

Robbery

Answer 38

needs all of the elements of larceny plus two additional elements: * The taking must be from the victim’s person or presence (area within their control); and * The taking occurs through force or threat of force that places the victim in actual fear at the time of the taking. * The taking must be a trespassory taking of personal property with the intent to steal. o An honest mistaken belief of right negates the intent to steal.

Question 39

Theft by false pretenses

Answer 39

is obtaining title to property owned by someone else through fraud. • False representation of present or past material fact by the defendant; * Who knows the representation is false; * Which causes the victim to pass title to his property to the defendant; and • The defendant intends thereby to defraud. EXAMPLE: Terry tells a car dealer that she paid for a car, and is there to pick up the keys. The dealer signs over the title to Terry, who got title by false pretenses.

Question 40

Larceny by trick

Answer 40

is obtaining possession of property (not title) through fraud. * This is a form of larceny where the defendant obtains possession of property by means of a representation or promise that they know to be false at the time they take possession. * Writing a fake check is larceny by trick, not false pretenses, because title does not pass until the check clears (most jurisdictions have a specific crime for this conduct). EXAM TIP: For both false pretenses and larceny by trick, the evidence must show that the defendant obtained the property as the result of reliance on the material misrepresentation. If the defendant has the intent to steal, but the property is delivered to the defendant without such reliance, neither crime has occurred.

Question 41

Extortion

Answer 41

(blackmail) is obtaining the property of another by threat of future harm to the victim or their property. • Tip: If it’s a threat of present harm, it’s probably robbery, not extortion.

Question 42

Receiving stolen property

Answer 42

is the receipt of stolen property, known to be stolen, and with the intent to permanently deprive the owner (this was a common law misdemeanor).

Question 43

Forgery

Answer 43

is fraudulently making a false writing with apparent legal significance with the intent to make wrongful use of the forged document. • The alteration must be material (change the meaning or effect of the document) to qualify (signing a false signature on a will).

Question 44

Burglary

Answer 44

is the breaking and entering of the dwelling of another at night with intent to commit a felony or larceny once inside. • Breaking o Common law requires some force. o Modern majority has relaxed this requirement to include slight enlargement of an opening. EXAM TIP: Watch for statutes that have deleted the “breaking” element altogether. o Common law and modern majority: Entry by fraud, deception, or threat qualifies as breaking. o Breaking to exit is not sufficient for burglary. • Entering o Entry = placing any portion of the body inside the structure.  In most jurisdictions, if a tool used for breaking into the building (crowbar) crosses the threshold, it is NOT enough to establish entry. Compare - if a tool used for “taking” something (pole with a hook) crosses the threshold it is sufficient to establish entry (under common law it was insufficient). • Dwelling house of another o Common law: This was a home where people lived, whether occupied or not and included structures on the “curtilage” such as storage sheds. o Modern majority: Includes almost any structure, whether or not it is a “dwelling.” • At night o Modern majority generally dispenses with this requirement. • With intent to commit a felony or larceny therein: Breaking and entering must be accompanied by simultaneous felonious intent or intent to commit larceny (intent after breaking is insufficient).

Question 45

Arson:

Answer 45

• Common law: Arson is the malicious burning of a dwelling of another. o Malice is established by intent or extreme recklessness. o Requires proof that some portion of the structure was damaged as the result of burning.  With respect to the burning requirement, it was not necessary that the dwelling be substantially or totally damaged. Although a mere blackening of the surface was not enough; there must have been some charring (i.e., slight burning) of the premises. Additionally, mere burning of the furniture or other contents of the dwelling, without fire damage to the structure itself, is not arson. • Modern majority: There is no requirement that the property be the “dwelling of another.” Modern statutes now define arson to include most buildings, as well as vessels and personal property. Arson also includes situations where an owner maliciously burns his own structure or property

Question 46

INCHOATE CRIMES

Answer 46

1) Inchoate crimes are “incomplete” crimes. All require specific intent (purpose) to commit the target offense. * Solicitation is trying to get someone else to commit your crime – the key is the communication. * Attempt is “almost” committing a crime – the key is evidence that the defendant crossed the line from preparation to perpetration. * Conspiracy is planning to commit a crime with someone else – the key is evidence that the defendant crossed the line from thinking about the crime to collective preparation to commit the crime.

Question 47

Solicitation

Answer 47

is the crime of trying to get someone else to commit your crime. * Enticing, advising, inciting, inducing, urging, or encouraging another to commit the target offense. * Common law: This was a misdemeanor and the crime solicited had to be a felony or breach of the peace. * Modern majority: The rule is now broader and is defined as requesting another to commit any offense. * Specific intent is required. The defendant must intend the solicitee to perform criminal acts (mere approval of an act is not enough). * The offense is complete when the solicitation is made. * Once the solicitation is communicated, the solicitor cannot withdraw from the solicitation. * There is no requirement that the solicitee commit the target offense BUT if they do (or attempt to) solicitation merges into that offense and the solicitor will be charged as an accomplice to the target offense, not with solicitation.

Question 48

Attempt

Answer 48

is “almost” committing a crime. • Two elements: o Specific intent or purpose to bring about a criminal result; and o A significant overt act in furtherance of that intent that proves the defendant went past the point of preparation and began perpetration. • Specific intent for attempt is the purpose (objective) to commit a target offense. This is true regardless of whether the target offense is a specific intent, general intent, or strict liability crime. EXAMPLE: A and B attack C. A intends to kill C, but B intends only to seriously injure him. If C does not die, then only A can be convicted of attempted murder. Even in a jurisdiction that recognizes murder based on a mens rea, which itself does not require specific intent to kill (e.g., murder based on intent to seriously injure), to be guilty of attempted murder, one still must have a specific intent to kill.

Question 49

Jurisdictional approaches to determining attempt:

Answer 49

o Common law: The defendant is required to perform the last act necessary to achieve the intended result. o Model Penal Code (MPC): An act is sufficient as long as it is a “substantial step” toward commission that indicates a purpose to complete the offense. o Many Jurisdictions use the proximity test: Ask how close in time and physical distance the defendant was to the time and place the target offense was to be committed. o Some jurisdictions use the equivocality test: The defendant’s conduct unequivocally indicates that he was going to complete the target offense. EXAMPLE: At common law, the defendant would have to pull the trigger to be guilty of attempted murder. Today, loading bullets while located in proximity to the intended victim with a clear line of sight would likely be sufficient to prove attempt.

Question 50

Defenses to Attempt

Answer 50

o Abandonment  Common law: There is no defense once the attempt is complete (moved from preparation to perpetration).  Model Penal Code: A voluntary complete abandonment is a defense. o Legal impossibility: The defendant is not guilty if they thought they were committing a crime, but it’s not actually a crime. EXAMPLE: A visitor from Germany goes to McBurgers on her first day in the U.S. In Germany, customers must pay for “McKetchup.” Believing the same is true in the U.S., the visitor sees ketchup sitting out on a counter and decides to take some without paying for it. Even though the visitor believes she is stealing ketchup, she cannot be convicted of attempted larceny because it is not a crime to take ketchup in a U.S. McBurgers. o Factual impossibility: If the defendant would have committed the offense had the facts been as they believed them to be, the defendant is guilty of attempt, even if it was factually impossible to complete the crime. EXAMPLE: The defendant, believing his pistol is working, points it at the victim and pulls the trigger intending to kill the victim. Because the pistol is defective and jams, it was factually impossible for the defendant to commit the offense of murder. The defendant is still guilty of attempted murder.

Question 51

Conspiracy

Answer 51

is the crime of planning to commit a crime with someone else. • A conspiracy requires an agreement between two or more persons to commit a crime and an overt act (committed by any conspirator) in furtherance of the conspiracy. There must be intent to agree and specific intent (purpose) to commit an unlawful act. EXAMPLE: Jerry solicits two people to kidnap his wife so that he may extort money from her family. Once the two people agree to do so, a conspiracy has been entered into.

Question 52

Overt Act Requirement

Answer 52

o Common law does not require an overt act; the agreement itself is a crime. o Modern majority rule requires an overt act in furtherance of the conspiracy. Beginning preparation to commit the crime is all that is required; it can be very trivial (unlike the requirement in attempt where the defendant must go beyond preparation to beginning perpetration). EXAMPLE: In the example above, Jerry giving the kidnappers keys to a car in payment for their participation would be enough to qualify as an overt act for conspiracy, but would be insufficient to convict for an attempted kidnapping.

Question 53

Co-conspirator liability/Pinkerton Doctrine:

Answer 53

Each co-conspirator is liable for the crimes of all other co-conspirators where the crimes were both a foreseeable outgrowth of the conspiracy AND committed in furtherance of a conspiratorial goal.

Question 54

"Chain” relationship:

Answer 54

Where several crimes are committed under one large scheme in which each member explicitly or implicitly knows of the other parties’ participation and a community of interest exists, one single conspiracy results and all “links in the chain” are responsible for the crimes of each other. EXAMPLE: In a drug distribution conspiracy, each member of the distribution effort is connected implicitly by a chain to the other. Therefore, all participants are liable for any crime that was a foreseeable outgrowth of the conspiracy and committed in furtherance of the conspiracy.

Question 55

“Wheel and spoke” relationship:

Answer 55

Where one common member enters into agreements to commit a series of crimes with others, multiple conspiracies exist and the tip of each “spoke” is connected to a common “wheel,” but not to other “spokes.”

Question 56

Procedural Issues

Answer 56

o Common law: If there are only two conspirators, acquittal of one co-conspirator requires acquittal of the other, because two guilty parties are needed for a conspiracy conviction. If one person feigned agreement, then no conspiracy existed because there was no true meeting of the minds. o Model Penal Code permits conviction of a single party when the other conspirator feigned agreement or is acquitted (a “unilateral conspiracy”).

Question 57

Wharton Rule:

Answer 57

If the target offense requires two or more people as a necessary element they cannot be convicted of a conspiracy to commit the crime. But, if the agreement involves an additional person not essential to the definition of the crime, the “third-party exception” allows for all parties to be convicted of conspiracy. EXAMPLE: Dueling requires proof of an agreement to engage in private combat. If A and B engage in a duel, they are guilty of the crime of dueling but not of conspiracy to duel. If a third party encourages A and B to duel, then all three can be convicted of conspiracy to duel.

Question 58

Defenses

Answer 58

o Withdrawal (Common law and MPC): Complete and voluntary withdrawal severs liability for future crimes, but is no defense to the conspiracy itself. Requires notice to all conspirators. o Renunciation (MPC only): Withdrawal and an affirmative act to thwart the conspiracy can eliminate responsibility for the conspiracy itself.

Question 59

Accomplice:

Answer 59

Accomplice liability is not an offense, but a way to link an accomplice to a crime committed by someone else. An accomplice is charged as if they were the principal (one who committed crime). • Rule: The defendant is criminally responsible as an accomplice if: o They do some act (or omission w/duty to act) that facilitates the principal’s commission of the crime (or attempt), including encouragement with the purpose of bringing about the commission of the crime. • Modern (minority): Accomplice responsibility may be established when a provider of goods or services has knowledge that he is assisting in the commission of a crime and benefits (seller knows buyer will commit arson and sells him an explosive device). EXAMPLE: John is in a bank when three armed robbers come in and announce, “Everyone get down, this is a robbery!” John turns to his friend and says, “I wonder if they realize there are surveillance cameras on the ceiling?” A robber hears this, looks on the ceiling and sees the camera, and shoots it. John may have done something that facilitated the commission of the robbery, but he did not act with the purpose of doing so. Therefore, he is not an accomplice. EXAMPLE: Tom, John, and Harry decide to burglarize a home. Tom is the getaway driver, John is the lookout, and Harry will go into the home to steal jewelry. Harry enters the home while John acts as the lookout. Harry exits with the jewelry and they all drive away. No one else is in the area, so John never has to alert anyone. Tom and John are both guilty of burglary as accomplices. They both did some act to facilitate commission of the crime with the purpose to do so. It does not matter that Harry could have committed the crime without their assistance. • Scope: Accomplices are responsible for crimes that are purposefully facilitated and all others that are reasonably foreseeable outgrowths of the primary crime. This is an objective test. It is no defense that the accomplice did not expect the crimes to happen. EXAMPLE: In the example above, if Harry killed the homeowner, Tom and John are both responsible as accomplices for the burglary (the primary offense) and for the murder (the secondary offense) because it is foreseeable that a burglar may engage in violence if confronted by the homeowner. It does not matter if Tom and John did not expect Harry to use violence.

Question 60

Defenses to accomplice

Answer 60

o Common law: An accomplice can withdraw by giving the principal perpetrator timely notice of withdrawal and nullifying the effect of their prior facilitation. o Model Penal Code: To remove accomplice responsibility, the accomplice must either:  Render any prior assistance to the perpetrator completely ineffective,  Provide the police w/timely warning of the plan, or  Make a proper effort to prevent the perpetrator from committing the original crime

Question 61

o Principal in the first degree:

Answer 61

The trigger puller – the perpetrator who performs the act with the requisite mental state.

Question 62

o Principal in the second degree:

Answer 62

One who aids or abets and is present at the scene (getaway driver).

Question 63

o Accessory before the fact:

Answer 63

One who aids or abets but is NOT present at the scene.

Question 64

o Accessory after the fact:

Answer 64

one who aids or abets the principal after the commission of the crime.  Requires proof: * of a completed felony; * that the accessory knew of the commission of the felony; and * that the accessory personally gave aid to the felon to hinder their apprehension, conviction, or punishment. EXAMPLE: Harry’s wife knows that he is going to burglarize a home. When he gets home, he tells her things went bad and he had to shoot the homeowner. When police come to the home looking for Harry, his wife lies and tells them he is not home. Harry’s wife is an accessory after the fact and can now be charged with burglary and murder.  In all modern Jurisdictions one who meets the requirements to be a common law accessory after the fact is charged with a distinct crime, such as hindering apprehension or obstruction of justice, not with the crimes committed by the principal.

Question 65

DEFENSES

Answer 65

1) Two broad categories: • Excuse defenses “forgive” the defendant for committing an unjustified crime because of some disturbance of the defendant’s mental process, thus nullifying culpability for the crime (insanity, involuntary intoxication, and duress). EXAM TIP: All excuses turn on one ultimate question: Was the defendant’s mental process overwhelmed to the point that it is unfair to hold them accountable for the crime? • Justification defenses establish that what is normally unlawful was not unlawful under the particular facts of the case, and thus nullify the “reus” of the crime (self-defense, defense of others, defense of property, and necessity). EXAM TIP: All justification defenses turn on one ultimate question: Was it truly necessary for the defendant to take the law into their own hands and commit an act that is normally unlawful?

Question 66

Excuse of Lack of Mental Responsibility

Answer 66

• Insanity: If the defendant was legally insane at time of his criminal act, no criminal responsibility will be imposed. o Four Tests:  M’Naghten test: Focuses on the defendant’s reasoning abilities. The defendant will be relieved of criminal responsibility upon proof that at time of commission: * The defendant suffered from a severe mental disease or defect, and * As a result, was unable to know either: o The nature and quality of his act; OR o That what he was doing was wrong (delusional self-defense). • At the very least, the defendant has to be unable to understand that what he is doing is morally wrong. Some jurisdictions will deny a defendant the M’Naghten defense if the defendant understands that their conduct is illegal, even though they believe that it is morally right. EXAMPLE: The defendant kills a police officer who pulls him over for a traffic violation. Psychiatric evidence establishes that at the time of the killing, the defendant suffered from severe schizophrenia and that as a result, he was convinced the police officer was a Martian sent to earth to kill the defendant and everyone else in the community. The defendant is considered insane, and is excused under M’Naghten.  Irresistible impulse test: The defendant is not guilty if he had a mental disease that kept him from controlling his conduct. EXAMPLE: The defendant has an intense urge to kill the President in order to impress an actress. If the defendant was acting under an irresistible impulse, the defendant is considered insane under the irresistible impulse test, even if he knew that what he was doing was wrong.  MPC test: The defendant is not responsible for their criminal conduct if, at the time of such conduct and as a result of a mental disease or defect, they lacked substantial capacity to appreciate the criminality (wrongfulness) of their conduct or to conform their conduct to the law.  Durham (or New Hampshire) Rule: The defendant is not criminally responsible if the unlawful act was the product of a mental disease/defect – it would not have been committed “but for” the disease/defect.

Question 67

Intoxication

Answer 67

o Involuntary intoxication is a defense to any crime requiring proof of general or specific intent, so long as it negates mens rea. o Voluntary intoxication may be a valid defense to a specific intent crime if it negates the requisite mental state (may negate purposeful or knowing mental state). It is not a defense to general intent crimes and won’t negate recklessness, negligence, or strict liability. EXAMPLE: The defendant voluntarily drank himself silly, and then punched a student. If the defendant is charged with simple battery, his voluntary intoxication is no defense, because there is specific intent is not required. If, however, the defendant is charged with battery with intent to inflict grievous bodily harm, his voluntary intoxication may be raised to nullify his ability to form that specific intent element. EXAM TIP: Voluntary intoxication may reduce first-degree murder to second-degree murder, but not to manslaughter.

Question 68

Duress

Answer 68

excuses criminal conduct where the defendant reasonably believes that the only way to avoid an unlawful threat of great bodily harm or imminent death is to engage in unlawful conduct. o Duress is not a defense to murder, except to excuse the underlying felony in felony murder

Question 69

Justification Defenses

Answer 69

• Self-defense is an honest and reasonable judgment that it is necessary to use force to defend against an unlawful imminent threat of bodily harm. o The defendant is a victim of an unlawful threat (not initial aggressor). o The defendant is in imminent danger of unlawful bodily harm (would call police otherwise). o The defendant uses proportional force (no more than reasonably necessary) to prevent imminent harm.

Question 70

Homicidal self-defense

Answer 70

(deadly force) is permitted only in response to an imminent threat of death or grievous bodily harm. o Unclean Hands: The first aggressor may not claim self-defense.  Common law: The first aggressor could regain the right to self-defense only by complete withdrawal perceived by the original victim.  Modern majority: The same rule as the common law, but the first aggressor will regain the right of self-defense if the original victim responds to the aggression with excessive force. EXAMPLE: Abe takes a swing at Bob in a bar. Bob responds by pulling out a gun and aiming it at Abe. In modern jurisdictions, Abe’s right of self-defense is now restored, and he is legally justified in swinging his butcher knife at Bob to prevent himself from being shot.

Question 71

Retreat Rule

Answer 71

 Common law: The victim of unlawful violence had a duty to retreat before a use of deadly force. • Eliminated in 35 states (stand your ground jurisdictions).  In states that retain the retreat rule, retreat is NOT required in the defendant’s own home, car, or office, and is not required if retreat is not feasible.

Question 72

Defense of a Third Person

Answer 72

o A defendant is justified when it is necessary to defend a third party who is facing an unlawful imminent threat of bodily harm. Deadly force is only justified when there is a threat of death or grievous bodily harm. o Majority: Looks at the reasonableness of the defendant’s belief that the third person was being unlawfully attacked. If the defendant was reasonable but mistaken, they can still claim defense of others. o Minority: The defendant steps into the shoes of the victim attacked—if the third party was the first aggressor or failed to retreat when required by law, the defendant has no defense.

Question 73

Defense of Property:

Answer 73

Reasonable non-deadly force is justified in defending one’s property from theft, destruction, or trespass where the defendant has a reasonable belief that their property is in immediate danger AND uses no greater force than necessary. o Deadly force may never be used to defend property (no spring or trap guns). o Deadly force may be used where the defender reasonably believes that the threat to property involves an imminent threat to life (confronting a burglar in your home in the middle of the night).

Question 74

Necessity

Answer 74

justifies the commission of what is normally a crime when: o it is necessary to avoid an immediate threat of greater harm to persons or property; o no reasonable alternative to breaking the law will avoid greater harm; and o the defendant is not responsible for causing the harm.  Common law: Necessity is never defense to murder, unless it is raised as a defense to the underlying felony for felony murder.  Model Penal Code: The defendant can raise necessity for all charges, even homicide, which might result in acquittal, if the defendant kills one person to save multiple lives. EXAMPLE: The pilot of a commercial passenger plane with numerous passengers would likely be permitted to raise the defense of necessity in an MPC jurisdiction if she were to crash land her disabled plane on a highway, knowing it would kill a few motorists, because it is the only way to save the lives of the passengers.