Criminal Law

Question 1

What are the tests for insanity?

Answer 1

M’Naghten Rule

Irresistible Impulse Test

Durham (New Hampshire) Test

ALI/Model Penal Code

Question 2

What is the M’Naghten Rule?

Answer 2

Defendant does not know right from wrong or does not understand his actions

A defendant is entitled to acquittal if (1) a disease of the mind, (2) caused a defect of reason, (3) such that defendant lacked the ability at the time of his actions to either know of the wrongfulness of his actions or understand the nature and quality of his actions

Delusions, belief that one’s actions are morally right, or loss of control due to mental illness are not defenses

Question 3

What is the Irresistible Impulse Test

Answer 3

An impulse the defendant cannot resist

A defendant is entitled to acquittal only if, because of mental illness, he was unable to control his actions or conform to conduct under the law

Question 4

What is the Durham (New Hampshire) Rule?

Answer 4

But for the mental illness, defendant would not have done the act

Question 5

What is the Model Penal Code Rule?

Answer 5

A defendant is entitled to acquittal if he had a mental disease or defect, and, as a result, he lacked the substantial capacity to either: (1) appreciate the criminality of his conduct, or (2) conform his conduct to the requirements of the law

This test is the “modern trend”

Question 6

What are the general rules for use of nondeadly force and use of deadly force in self-defense?

Answer 6

Nondeadly force - justified when a person reasonably believes force is necessary to avoid imminent injury or to retain property

Deadly force - the person reasonably believes that he is threatened with death or grave bodily harm (generally no duty to retreat, but minority rule requires a duty to retreat)

Same standards apply to defense of others (to protect another person)

Question 7

When may the aggressor assert self-defense?

Answer 7

She (1) effectively withdraws from the confrontation, (2) communicates to the other her desire to withdraw, or

The victim of the initial aggression suddenly escalates the minor fight into a deadly altercation and the initial aggressor has no chance to withdraw

Question 8

What are the elements of battery?

Answer 8

(1) Unlawful application of force
(2) To another
(3) Resulting in either bodily injury or an offensive touching

Generally a misdemeanor

Question 9

What are the elements of aggravated battery?

Answer 9

(1) Battery with a deadly weapon,
(2) Battery resulting in serious bodily harm, or
(3) Battery of a child, woman, or police officer

Generally a felony

Question 10

What are the elements of assault?

Answer 10

(1) An attempt to commit a battery, or
(2) (a) The intentional creation, other than mere words, (b) of a reasonable apprehension in the mind of the victim of (c) imminent bodily harm

If there has been an actual touching of the victim, then battery and not assault

Question 11

When does assault become aggravated assault?

Answer 11

Assault committed with a deadly weapon or with intent to rape or maim

Question 12

What is the difference from attempted battery assault and regular assault?

Answer 12

Attempted battery assault is a specific intent crime to intend but fall short of causing a battery

Regular assault is not a specific intent crime but instead is only a creation of reasonable apprehension of assault

Question 13

What are the types of homicide?

Answer 13

Murder

Voluntary manslaughter

Involuntary manslaughter

Felony murder

Question 14

What are the elements of murder?

Answer 14

Definition - the unlawful killing of a human with malice aforethought

Malice aforethought exists if committed with one of the following states of mind:

• Intent to kill
• Intent to inflict great bodily injury
• Reckless indifference to an unjustifiably high risk to human life (“abandoned and malignant heart”), or
• Intent to commit a felony (felony murder)

Intentional use of a deadly weapon gives a permissive inference of intent to kill

Question 15

When is murder in the first degree?

Answer 15

When defendant made the decision to kill in a cool and dispassionate manner, even if only for a brief period of time

• The decision to kill was deliberate and premeditated

First degree murder based on premeditation requires a specific intent, which may be negated by the defense of voluntary intoxication.

• If the defendant was so intoxicated that he was unable to premeditate, he can only be convicted of second degree or common law murder, which requires only reckless indifference to human life (and for which voluntary intoxication is not a defense)

Question 16

What is voluntary manslaughter?

Answer 16

A killing that would be murder but for the existence of adequate provocation

Provocation is adequate only if:

• (1) It would arise a sudden and intense passion in the mind of an ordinary person, causing him to lose self-control
  
  • Such as exposure to a threat of deadly force, finding your spouse in bed with another, or being a victim of a serious battery
• (2) The defendant was actually provoked
• (3) There was not sufficient time for the passions of a reasonable person to cool, and
• (4) The defendant did not in fact cool off

Question 17

What is involuntary manslaughter?

Answer 17

A killing committed with criminal negligence (or recklessness under the MPC)

Some states require the killing occur during the commission of an unlawful act

Foreseeability of death may also be required

Question 18

What is felony murder?

Answer 18

Any death caused in the commission of, or in an attempt to commit, a felony.

Malice is implied from the intent to commit the underlying felony

Felonies included (BARRK): burglary, arson, rape, robbery, kidnapping

• Some jurisdictions may include more felonies

Death must have been a foreseeable result to the felony

In most jurisdictions, a felon is not liable for the killing of a co-felon as a result of resistance

Under the “proximate cause” theory, felons are liable for the deaths of innocent victims other than a co-felon

Under the “agency” theory, the killing must be committed by a felon or his agent (i.e. an accomplice)

Question 19

What is false imprisonment?

Answer 19

(1) Unlawful confinement
(2) Of a person
(3) Without the person’s valid consent

The MPC requires confinement “interfere substantially” with the victim’s liberty

Question 20

What is kidnapping?

Answer 20

Same elements of false imprisonment plus:

Either (A) some movement of the victim, or (B) concealment of the victim in a secret place

Aggravated kidnapping includes kidnapping for ransom, for the purpose of committing other crimes, for offensive purposes, and for child stealing

Question 21

What is rape?

Answer 21

Intercourse without effective consent

Under the traditional rule and the MPC, a husband cannot rape his wife, but many states have abolished this exception where the parties are estranged or separate

The slightest penetration is enough

Statutory rape occurs when the victim is under the age required for consent

Question 22

What types of lack of effective consent constitute rape?

Answer 22

Actual force

Threats of great and immediate bodily harm

Victim incapable of consenting

Victim fraudulently caused to believe that the act was not intercourse

Question 23

What is larceny?

Answer 23

(1) A taking
(2) And carrying away
(3) Of tangible personal property
(4) Of another
(5) By trespass
(6) With intent to permanently deprive
* The intent must exist at the time of the taking

Question 24

What is the continuing trespass rule of larceny?

Answer 24

If the defendant wrongfully takes property without the intent to permanently deprive, but later decides to wrongfully keep the property, then the defendant is guilty of larceny

Question 25

What is larceny by trick?

Answer 25

When the victim is **tricked by a misrepresentation of fact** into giving up custody of the property * If the victim is **tricked** into **giving up title** to the property, then **false pretenses**

Question 26

What is embezzlement?

Answer 26

(1) **Fraudulent** * Defendant must intend to defraud (2) **Conversion** (3) Of **personal property** (4) Of **another** (5) By a person in **lawful possession** of the property

Question 27

What is the difference from larceny and embezzlement?

Answer 27

In embezzlement, the defendant misappropriates property while it is in his rightful possession In larceny, the defendant misappropriates property not in his possession

Question 28

What is false pretenses?

Answer 28

(1) Obtaining **title** (2) To personal **property of another** (3) By an i**ntentional false statement** (4) With **intent to defraud**

Question 29

What is robbery?

Answer 29

The same elements of larceny, plus: * By **force or threats** of immediate death or physical injury

Question 30

What is receipt of stolen property?

Answer 30

(1) Receiving **possession and control** (2) Of **stolen personal property** (3) **Known** to have been obtained illegally (4) By **another person** (5) With i**ntent to permanently deprive**

Question 31

What is burglary?

Answer 31

(1) A **breaking** (2) And **entry** (3) Of a **dwelling** (4) **Of another** (5) At **nighttime** (6) With the **intent to commit a felony** in the structure Modern statutes often eliminate the requirements of a breaking, a dwelling, and nighttime

Question 32

What is arson?

Answer 32

(1) **Malicious** * Intentional or reckless disregard of an obvious risk (2) **Burning** (3) Of the **dwelling** (4) Of **another** **Damage is not required**, charring is sufficient Many modern statutes expand dwelling to be commercial structures, cars, etc.

Question 33

What are the different intents for mental state?

Answer 33

**Specific intent** - intent to engage in **proscribed conduct** (subjective test) * Attempt always must be a specific intent crime (i.e. murder may only require general intent, but attempted murder requires specific intent) **General intent - awareness** of acting in proscribed conduct (subjective test) **Malice - Reckless disregard** of an **obvious or high risk** that the particular harmful result will occur (subjective test) **Strict liability** offenses - an offense that does not require any awareness of the factors constituting the crime (no subjective/objective test; irrelevant because of strict liability) * Defendant can be found guilty from the mere fact she committed the act

Question 34

What are the requisite intents for major offenses?

Answer 34

Specific intent * Solicitation * Attempt * Conspiracy * First degree premeditated murder * Assault (attempted battery) * Larceny, robbery * Burglary * Forgery * False pretenses * Embezzlement General intent * Battery * Rape * Kidnapping * False imprisonment Malice * Common law murder * Arson Strict liability * Statutory rape * Selling liquor to minors * Bigamy

Question 35

What are the different intents required for specific intent crimes?

Answer 35

Solicitation - intent to have the **person solicited** commit the crime Attempt - **intent to complete** the crime Conspiracy - **intent to have the crime completed** First degree premeditated murder - premeditated **intent to kill** Assault (attempted battery) - **intent to commit a battery** Larceny, robbery - **intent to permanently deprive** the other of his interest in the property taken Burglary - **intent to commit a felony** in the dwelling Forgery - intent to **defraud** False pretenses - intent to **defraud** Embezzlement - intent to **defraud**

Question 36

When does a person act purposefully?

Answer 36

**Conscious objective** to engage in proscribed conduct (subjective test)

Question 37

When does a person act knowingly?

Answer 37

**Awareness** that conduct is of a particular nature or will cause a particular result (subjective test)

Question 38

When does a person act recklessly?

Answer 38

**Consciously disregarding** a substantial and unjustifiable risk (subjective and objective test)

Question 39

When does a person act negligently?

Answer 39

**Failure to be aware** of a substantial and unjustifiable risk (objective test)

Question 40

What is transferred intent?

Answer 40

When the defendant intends harm that is actually caused, but the **harm is to a different victim or object** A person found guilty of a crime on the basis of transferred intent is **usually guilty of two crimes**: the **completed crime** against the actual victim **and attempt** against the intended **victim**

Question 41

What are the modern rules for accomplice liability?

Answer 41

**Principal** - person who **commits the illegal act or who causes an innocent agent to do so** * Liable for the principal crime **Accomplice** (includes common law accessory before the fact) - person who **aids or encourages** principal to commit the illegal conduct * **Liable for principal crime** if accomplice i**ntended to aid or encourage** crime **Accessory after the fact** - person who **aids another to escape** knowing that he has committed a felony * **Liable for** separate, less serious crime of being an **accessory after the fact**

Question 42

What is the mental state required to be convicted as an accomplice?

Answer 42

**Dual intent**: (1) the **intent to assist** the principal in the commission of the crime, and (2) the **intent that the principal commit the offense**

Question 43

What is the scope of liability for an accomplice?

Answer 43

(1) **The crime** he counseled, and (2) **any other crimes committed** in the course of committing the crime contemplated, as long as the other crime was **probable or foreseeable**

Question 44

What are the requirements to withdraw as an accomplice?

Answer 44

Withdrawal must occur **before** the crime becomes unstoppable **Repudiation** is sufficient withdrawal for mere encouragement **Attempt to neutralize** assistance is required i**f participation went beyond mere encouragement** Notifying the police or taking other action to prevent the crime is also sufficient. A mere withdrawal from involvement without taking any additional action is **not sufficient**

Question 45

What is solicitation?

Answer 45

Culpable conduct - solicitation of another to commit a crime Mental state - specific intent that the person solicited commits the crime Overt act - no act other than solicitation Merger into substantive offense? - Yes Is withdrawal a defense? Generally, No

Question 46

What is conspiracy?

Answer 46

Culpable conduct - agreement between two or more people to commit a crime Mental state - specific intent to (a) enter into an agreement, and (b) achieve the objective Overt act - act in furtherance of the conspiracy (no overt act required under common law) Merger into substantive offense? No Withdrawal a defense? No, except for further crimes of co-conspirators

Question 47

What is attempt?

Answer 47

Culpable conduct - performance of an act that would be a crime if successful Mental state - specific intent to commit the particular crime attempted Overt Act * Model Penal Code - substantial step test * Traditional rule - act dangerously close to success Merger into substantive offense? Yes Withdrawal a defense? Generally, No

Question 48

What is the general rule for withdrawal/abandonment of inchoate crimes (soliciation, conspiracy, attempt)?

Answer 48

Abandonment is not a defense at common law **If defendant had the intent and committed an overt act, she is guilty of attempt despite the fact that she changed her mind and abandoned** the plan before the intended crime was completed The **Model Penal Code** provides that a **fully voluntary** and **complete abandonment is a defense** **For conspiracy**, withdrawal **may be a defense** to **crimes committed in furtherance of the conspiracy,** but withdrawal from the **actual conspiracy is not a defense** * Because the conspiracy is complete as soon as the agreement is made and an overt act is performed

Question 49

When does a conspiracy terminate?

Answer 49

Upon completion of the wrongful objective A conspirator may be held liable for crimes committed by other conspirators if the crimes (1) were committed **in furtherance of** the objective crime, and (2) were **foreseeable**