Criminal Law

Question 1

Actus Reus

Answer 1

Criminal liability generally requires a voluntary physical act. The act must be under the defendant’s motor control, but speech may also qualify. An omission may constitute the actus reus if the defendant had a legal duty to act, was aware of the duty, and had the ability to perform it.

Question 2

Mens rea

Answer 2

the mental state or state of mind a defendant must have at the time of committing a criminal act in order to be held criminally liable. It is a foundational element of criminal law and, when paired with the actus reus (the physical act), establishes criminal responsibility.

Question 3

four levels of mens rea under the MPC

Answer 3

1. Purposefully – The defendant has a conscious objective to engage in conduct or cause a specific result.
2. Knowingly – The defendant is aware that their conduct is of a particular nature or that a result is practically certain to occur.
3. Recklessly – The defendant consciously disregards a substantial and unjustifiable risk.
4. Negligently – The defendant should have been aware of a substantial and unjustifiable risk, but failed to perceive it.

Question 4

Specific Intent Crimes

Answer 4

A specific intent crime requires the defendant to commit the actus reus with the particular purpose of bringing about a specific result that the law prohibits.

(Mnemonic: BAM ACTS – Burglary, Assault (attempted battery), Murder (first degree), Attempt, Conspiracy, Theft, Solicitation)

Question 5

Malice Crimes

Answer 5

A malice crime is committed when the defendant acts with reckless disregard of a high risk of harm, knowing the risk and acting anyway.

(Mnemonic: I AM – Intent to kill, Arson, Murder)

Question 6

General Intent Crimes

Answer 6

A general intent crime requires the intent to perform the act itself, and the act is unlawful. The defendant need not know that the act is unlawful.

Question 7

Strict Liability Crimes

Answer 7

Strict liability crimes do not require a specific state of mind. It is sufficient that the defendant voluntarily committed the act; no mens rea is required.

Question 8

Causation

Answer 8

To establish criminal liability for a result crime like homicide, the prosecution must show:

1. Actual cause (“but for” causation): but for the defendant’s conduct, the result would not have occurred.
2. Proximate cause: the result must be a foreseeable consequence of the defendant’s actions.

An intervening act will break the chain only if it is extraordinary and unforeseeable. An act that accelerates death may still be a proximate cause.

Question 9

Transferred Intent

Answer 9

The doctrine of transferred intent applies when the defendant intends to harm one person but accidentally harms another. Transferred intent does not apply to attempted crimes.

Question 10

Merger Doctrine

Answer 10

A defendant cannot be convicted of both an inchoate offense and the completed crime. Attempt and solicitation merge into the completed offense. However, conspiracy does not merge. A lesser-included offense merges into the greater offense.

Question 11

Accomplice Liability

Answer 11

A person is an accomplice if they intentionally assist or encourage the principal with the purpose of promoting or facilitating the commission of the offense.

However, for crimes requiring only recklessness or negligence (e.g., involuntary manslaughter), accomplice liability can be based on acting with the same mental state.

Question 12

Accessories After the Fact

Answer 12

A person who helps a defendant after the commission of the crime, knowing the crime was committed, may be guilty as an accessory after the fact.

Question 13

Accomplice + Conspiracy

Answer 13

If there is an agreement and an overt act, an accomplice may also be guilty of conspiracy, in addition to accomplice liability.

Question 14

inchoate offenses

Answer 14

solicitation

conspiracy

withdrawal from conspiracy

attempt

Question 15

Solicitation

Answer 15

Solicitation occurs when a person intentionally invites, requests, or commands another to commit a crime.

If the other person agrees, it becomes conspiracy, and if the crime is committed, solicitation merges with the completed crime.

Question 16

Conspiracy

Answer 16

Conspiracy is an agreement between two or more people to commit an unlawful act, plus an overt act in furtherance.

• Chain conspiracy: multiple linked conspirators can all be liable for co-conspirators’ crimes.
• Spoke-hub conspiracy: no liability for acts of others unless spokes agree with each other.

Question 17

Withdrawal from Conspiracy

Answer 17

• Common Law: cannot withdraw after agreement is made.
• MPC/Federal Rule: may withdraw before the overt act by informing all co-conspirators or law enforcement.
• After an overt act: must help thwart the success of the conspiracy.

Question 18

Attempt

Answer 18

Attempt requires (1) specific intent to commit a crime, and (2) a substantial step toward committing the crime.

• A mere preparation is not enough.
• Under** common law,** abandonment is not a defense after the substantial step is taken.
• Some jurisdictions recognize voluntary abandonment if not due to fear of detection or a better opportunity.
• Attempt merges into the completed crime.

Question 19

Murder

Answer 19

Unlawful killing of a human being with malice aforethought, which includes:

Intent to kill

Intent to inflict serious bodily injury

Depraved heart (reckless indifference to human life)

Felony murder

Question 20

First-Degree Murder

Answer 20

Deliberate, premeditated killing OR felony murder during an inherently dangerous felony (BARRK: Burglary, Arson, Robbery, Rape, Kidnapping)

Question 21

Second-Degree Murder

Answer 21

All other murders with malice. Includes depraved-heart and non-premeditated intent-to-kill murders.

Question 22

Felony Murder

Answer 22

Liability for killing during the commission or attempted commission of a dangerous felony.

• Must be independent of the homicide.
• Majority (agency theory): only liable for killings by co-felons or agents.
• Minority: liable even for killings by police/resisters.
• Not liable if co-felon is killed by victim or police.

Question 23

Voluntary Manslaughter

Answer 23

Intentional killing mitigated by adequate provocation and committed in the heat of passion.

Requires:

• Objective provocation (reasonable person standard)
• Subjective provocation
• No reasonable time to cool off (objective + subjective)

Question 24

Involuntary Manslaughter

Answer 24

Unintentional killing due to criminal negligence or recklessness.

• Criminal negligence = gross deviation from reasonable standard of care
• MPC: reckless conduct with awareness of risk
• Must be causally connected to the death

Question 25

Battery

Answer 25

Unlawful application of force to another. It is a **general intent** crime and does not require physical contact (e.g., throwing something).

Question 26

Assault

Answer 26

Two types: 1. Attempted battery (specific intent) 1. Intentional creation of fear of harm (general intent)

Question 27

Kidnapping

Answer 27

Unlawful confinement of a person against their will by moving or hiding them for a substantial time.

Question 28

Rape

Answer 28

Unlawful sexual intercourse without consent. Modern statutes do not require force—lack of consent is sufficient. Gender-neutral.

Question 29

Statutory Rape

Answer 29

Sexual intercourse with a person under the age of consent. A strict liability offense—mistake about age is not a defense.

Question 30

Larceny

Answer 30

Trespassory taking and carrying away of personal property with intent to permanently deprive the owner. **Continuing Trespass Rule:** initial wrongful taking without intent may convert to larceny if intent later forms.

Question 31

Embezzlement

Answer 31

Fraudulent conversion of property lawfully possessed by the defendant.

Question 32

False Pretenses

Answer 32

Obtaining **title** to property through a false representation of a material past or present fact with intent to defraud.

Question 33

Larceny by Trick

Answer 33

Obtaining **possession**, not title, through deceit.

Question 34

Robbery

Answer 34

Larceny by force or threat of imminent harm.

Question 35

Extortion

Answer 35

Obtaining property by threat of future harm or revealing information.

Question 36

Receipt of Stolen Property

Answer 36

Requires: 1. Control over stolen property 1. Knowledge it is stolen 1. Intent to permanently deprive Some states require actual knowledge; others allow inference from suspicious circumstances.

Question 37

Burglary (CL)

Answer 37

Breaking and entering the dwelling of another at night with intent to commit a felony therein.

Question 38

Arson

Answer 38

Malicious burning of another’s dwelling (modernly includes other structures, explosions, and own property).

Question 39

Forgery

Answer 39

Making or altering a false writing with legal significance and intent to defraud.

Question 40

insanity defense tests

Answer 40

* **M’Naghten:** did not know nature of act or that it was wrong * **Irresistible Impulse**: could not control actions * **Durham Rule**: act was the product of mental illness * **MPC**: lacked substantial capacity to appreciate wrongfulness or conform conduct

Question 41

Voluntary Intoxication

Answer 41

Defense only to specific intent crimes if it negates the mental state.

Question 42

Involuntary Intoxication

Answer 42

Defense to all crimes if it prevents formation of mens rea.

Question 43

Self-Defense

Answer 43

Non-deadly: permitted if reasonably believes in imminent unlawful harm Deadly: permitted if reasonably believes deadly force is imminent **Majority**: no duty to retreat **Minority**: retreat required if safe to do so, except in home

Question 44

Defense of Others

Answer 44

Same rights as if defending self.

Question 45

Defense of Property

Answer 45

Only non-deadly force permitted.

Question 46

Duress

Answer 46

Crime committed under threat of death or serious bodily harm. Not a defense to intentional homicide

Question 47

Necessity

Answer 47

Crime committed to avoid greater natural harm. Not a defense to homicide.

Question 48

Mistake of Fact

Answer 48

**Specific intent:** any mistake (even unreasonable) is a defense **General intent:** only reasonable mistake is a defense

Question 49

Ignorance of the Law

Answer 49

Not a defense unless: 1. The law was not reasonably made available 1. D relied on an official interpretation (entrapment by estoppel)

Question 50

Entrapment

Answer 50

Available when: 1. Government induces the crime, and 1. D was not predisposed to commit it

Question 51

Attempted Crimes & Impossibility

Answer 51

**Factual impossibility** (crime could not succeed due to facts): NOT a defense **Legal impossibility** (even if completed, it would not be a crime): valid defense

Question 52

deadly force in self-defense

Answer 52

The use of deadly force in self-defense is justified when a person (1) actually and reasonably believes that deadly force is necessary to prevent imminent serious bodily harm or death and (2) is not the initial aggressor. Additionally, a person generally has no duty to retreat before using deadly force.

Question 53

bigamy at common law

Answer 53

Common-law bigamy is a strict liability crime, **so proof of the actus reus is alone sufficient to support a conviction.** Additionally, **mistake of fact is no defense** to strict liability crimes—even if the defendant's mistake was honest and reasonable.

Question 54

conspiracy

Answer 54

Conspiracy requires an agreement between two persons to commit a crime, but the agreement need not be express. It can be implied from conduct demonstrating an intent to jointly achieve a shared criminal objective.

Question 55

accomplice liability

Answer 55

"Accomplice liability is imposed when a person provides even ***slight*** aid or encouragement to the principal with the **specific intent that the encouraged crime be completed**—even when that assistance is not ultimately necessary to complete the crime. An accomplice is liable for all crimes that are** reasonably foreseeable** outcomes of the crime they aided-not just the ones they specifically intended. **BUT**, if a crime is committed that is not in furtherance of the crime for which the accomplice provided assistance, there is no liability for that crime"

Question 56

kidnapping & defenses

Answer 56

"Kidnapping is: - the intentional and unlawful confinement of another - against that person's will (e.g., by threat) - coupled with either moving or hiding that person. A perpetrator **need only move the victim a short distance**—even a few feet—to satisfy the movement element of kidnapping. But if the kidnapping occurs incident to the commission of another offense, then the movement of the victim must be more than is necessary to complete the other offense. Otherwise, the perpetrator can only be convicted of the other offense—but not kidnapping. **Defenses** to kidnapping include consent, lack of intent, lawful authority, and in some cases, parental privilege or duress. These defenses negate either the unlawfulness or mens rea required for the crime."

Question 57

depraved-heart murder

Answer 57

Depraved-heart murder is an unintentional killing committed with a wanton and willful disregard of an unreasonable risk to human life.

Question 58

intentional killing vs. unintentional killing

Answer 58

"An ***intentional*** killing gives rise to first-degree murder, common-law murder based on an intent to kill or cause serious bodily harm, or voluntary manslaughter. In contrast, an ***unintentional*** killing gives rise to second-degree murder based on felony murder or depraved-heart murder as well as involuntary manslaughter."

Question 59

search warrant requirements

Answer 59

"To be constitutionally valid, a search warrant must: - be based on probable cause - be supported by a sworn oath or affidavit - be issued by a neutral and detached magistrate and - particularly describe the place to be searched and the items to be seized."

Question 60

improper out of court identification

Answer 60

"**Due process** requires the suppression of unreliable testimony identifying the defendant as the perpetrator of the charged crime since it may inhibit the defendant's right to a fair trial. ** In-court identification testimony may be unreliable if it stems from unnecessarily suggestive out-of-court identification procedures arranged by police.** Therefore, such in-court identification testimony is admissible only if the prosecution demonstrates that it is sufficiently reliable—i.e., poses no substantial likelihood of misidentification. **HOWEVER**, an improper out-of-court identification **does not always taint an in-court identification**—e.g., a witness's in-court testimony may be reliable despite a suggestive identification procedure if the witness could accurately describe the perpetrator before that procedure. Therefore, in-court identification testimony will only be suppressed if it is rendered unreliable by an improper out-of-court identification."

Question 61

when double jeopardy attaches

Answer 61

"Double jeopardy protects criminal defendants from undue harassment and expense by forbidding multiple punishments and a second prosecution for the same offense. This protection attaches once the defendant is in jeopardy of a conviction—i.e., when: - the jury is impaneled and sworn (jury trial) or - the first witness is sworn in (bench trial). But if a criminal charge is dismissed before the defendant is put on trial before a trier of fact (judge or jury), then jeopardy does not attach and the defendant can later be prosecuted for the same offense."

Question 62

double jeopardy and subsequent greater offenses

Answer 62

When a conviction of a lesser included offense stems from a guilty plea, the **double jeopardy clause bars a subsequent prosecution for the greater offense *UNLESS*** (1) an event necessary to establish the greater offense occurred after the plea was entered or (2) the greater offense was charged before the plea was entered.

Question 63

burden of proof hierarchy

Answer 63

"Burden of proof hierarchy: 1. beyond a reasonable doubt (e.g., criminal prosecutions) 2. clear and convincing evidence (e.g., fraud, child custody) 3. preponderance of the evidence (most civil cases) Due process **requires that the government prove every element of a criminal offense beyond a reasonable doubt. ** Therefore, when the defendant asserts a defense (e.g., alibi) that negates an element of the crime, the **burden of proof must remain on the prosecution to prove that element.** In other words, the **burden may not be shifted** to the defendant to disprove the element. To be proper, a jury instruction must reflect this constitutional requirement."

Question 64

what evidence may the jury consider at a grand jury proceeding

Answer 64

Grand jury proceedings are used to determine whether probable cause exists to issue an indictment against an individual. In making this determination, the grand jury may consider **any relevant evidence**—even if that evidence was illegally obtained

Question 65

handwriting exemplars

Answer 65

The taking of handwriting exemplars does NOT violate the Fourth Amendment (no reasonable expectation of privacy), the Fifth Amendment (no protection for physical evidence), OR the Sixth Amendment (not a critical stage of prosecution).

Question 66

volunteered statements under *Miranda*

Answer 66

"According to Miranda v. Arizona, a defendant's motion to suppress an incriminating statement should be granted if the statement was made when the suspect was in custody and interrogated without receiving Miranda warnings An interrogation occurs when police direct questions, words, or actions at a suspect that they know or should know are reasonably likely to elicit an incriminating response. **Volunteered statements**—i.e., spontaneous or unprompted remarks—**are not the product of interrogation. ** As a result, such statements are **admissible** even if the suspect had not been Mirandized before making them. And any physical evidence derived from volunteered statements is also admissible."