Criminal Law and Procedure

Question 1

Modern merger rule

Answer 1

Generally no merger of crimes, two exceptions:

(1) solicitation or attempt merges into the completed crime
(2) lesser included offenses merge into the larger crime

Question 2

General elements of a crime

Answer 2

Actus reus, mens rea, concurrence, harmful result and causation.

Question 3

Actus reus defined

Answer 3

Voluntary act. Not reflexes, not unconscious/sleep walking, not conduct that is not a product of actor’s will.

Sometimes omissions if: (1) there is a legal duty to act, (2) D has knowledge of facts that give rise to duty, (3) the duty is reasonably possible to perform.

Question 4

Specific intent defined and list of specific intent crimes.

Answer 4

D does the act with a specific intent, and the prosecution must produce evidence tending to prove the requisite specific intent.

Some defenses apply only to specific intent crimes: voluntary intoxication, unreasonable mistake of fact.

SAC-FAL-BEFF:

Solicitation
Attempt
Conspiracy

First-degree murder
Assault
Larceny/Robbery

Burglary
Embezzlement
Forgery
False pretenses

Question 5

Required state of mind (mens rea) for common law murder and arson

Answer 5

Only Malice, shown by reckless disregard for an obvious or high risk that a particular harmful result would occur.

Question 6

General intent defined

Answer 6

Defendant must be generally aware that he is acting in an illegal way and have at least awareness of high likelihood that any attendant circumstances required for the crime are present.

Jury can infer general intent merely from the doing of the act. Prosecution does not need to prove intent by any other evidence.

Question 7

MPC approach to fault

Answer 7

Four categories of mental state: Purposely, knowingly, recklessly, negligence.

Purposely: Person acts with conscious intent to engage in the conduct (similar to specific intent definition)

Knowingly: Person acts with general awareness that their conduct is illegal or that certain circumstances exist (similar to general intent definition).

Recklessly: Consciously disregards a substantial and unjustifiable risk by a gross deviation from the reasonable person standard of care.

Negligence: Person fails to be aware of the substantial and unjustifiable risk, gross deviation from the reasonable person standard of care. Objective standard. Higher standard the civil negligence. Just like tort law, violation of a statute/regulation may be evidence of liability.

Question 8

Transferred intent

Answer 8

Intent and defenses transfer from one crime/victim to another. But never for attempts.

Question 9

Common law accomplice liability

Answer 9

Four types:

(1) the principal in first degree (the main actor);
(2) principal in second degree (aid, command, encourage AND present at crime);
(3) accessories before the fact (aid, command, encourage BUT NOT present at crime);
(4) accessories after the fact (assisting after the crime).

Question 10

Modern forms of accomplice liability

Answer 10

Three types:

Principal (the main actor)

Accomplice: anyone who (1) with intent to assist and intent that the principal commit the crime and (2) actual aids, counsels, or encourages the principal before or during the commission of the crime.

Accessory after the fact: only for felonies, and after the felony is completed, knowingly helping the felon escape.

Question 11

Modern accomplice liability mens rea

Answer 11

Dual intent required:

If principal’s requisite mens rea is purposely or knowingly, the accomplice must have (1) the intent to assist the principal, and (2) the intent that the principal commit the main offense.

If principal’s requisite mens rea is recklessly or negligently, the accomplice must have (1) intended to facilitate and (2) acted with either recklessness or negligence depending on what mens rea the main act required.

Question 12

Scope of accomplice liability

Answer 12

An accomplice is responsible for the actual crimes planned AND for any that were also committed that were foreseeable.

Question 13

Withdrawing from accomplice liability

Answer 13

An accomplice can avoid liability by withdrawing if the crime hasn’t happened yet.

If the accomplice only encouraged, then the accomplice must repudiate the encouragement.

If the person gave material assistance, then the accomplice must neutralize the assistance.

If it is impossible to withdraw in either way, then the accomplice may call the authorities to withdraw, as long as the crime hasn’t started yet.

Question 14

Define inchoate offenses and list major ones

Answer 14

Solicitation, attempt, conspiracy.

A complete crime in itself. Conspiracy does not merge, so D can be convicted of conspiracy and final crime.

Solicitation and attempt DO merge, so D cannot be convicted of both one of those and the final crime.

Question 15

Solicitation

Answer 15

Inducing someone else to commit a crime with the specific intent that the person commit the crime.

Mistake of fact and withdrawal are no defense.

Question 16

Conspiracy

Answer 16

(1) an agreement between two or more person; (2) an intent to enter into the agreement; (3) an intent to achieve the objective of the agreement.

At common law, the agreement itself was enough to complete the offense. Today, most states require and overt act in furtherance of the conspiracy.

The agreement can be express or implied.

Specific intent, dual intent: intent to agree and intent to achieve the objective.

Common law “bilateral approach”: at least two parties with criminal intent. Modern MPC “unilateral” approach: just one party with criminal intent suffices (i.e., an undercover police officer won’t defeat the conspiracy).

Question 17

Wharton’s Rule

Answer 17

Wharton rule: where a substantive offense requires N number of people (n is 2 or more), a conviction for conspiracy requires that the conspiracy involve at least N+1 people.

Question 18

Where a conspirator is liable for crimes of other co-conspirators

Answer 18

May fall under regular accomplice liability, or two-part test:
the other crimes were (1) committed in furtherance of the conspiracy and (2) were foreseeable.

Question 19

Defenses to conspiracy

Answer 19

Factual impossibility is no defense.

At common law, withdrawal was no defense. Modern MPC approach allows withdrawal if the defendant informs the police.

Withdrawal will shield against liability from subsequent crimes after the withdrawal IF D (1) notifies all members of the conspirators of withdrawal and (2) neutralizes any material assistance he provided.

Question 20

Attempt

Answer 20

(1) a specific intent to commit the crime, and (2) an overt act in furtherance of the crime.

Intent: D must have intent to perform an act and obtain a result that, if achieved, would constitute a crime.

Over act is more than mere preparation. Traditional rule: close proximity to actually completing the crime. MPC approach: A substantial step suffices.

Defenses:

(1) Legal impossibility works because there was NO CRIME that could have been committed.
(2) Factual impossibility is NOT a defense (includes when D is mistaken about the attendant circumstances).
(3) Abandonment: majority rule is abandonment is no defense. MPC says it is if (1) fully voluntary and (2) complete abandonment.

Question 21

List of insanity defenses

Answer 21

M’Naghten Rule, Irresistible impulse, Durham test, MPC test

Question 22

M’Naghten Rule

Answer 22

An insanity defense.

D is entitled to acquittal if D can show:

(1) a disease of mind, (2) caused a defect of reason, and (3) D lacked the ability at the time to know the wrongfulness of his actions or understand the nature and quality of his actions.

Question 23

Irresistible impulse test

Answer 23

An insanity defense.

D is entitled to acquittal if D can show: a mental illness caused D to be unable to control his actions or to conform his conduct to the law.

Question 24

Durham test

Answer 24

An insanity defense.

Almost no one uses this test.

D is entitled to acquittal if D can show but for some mental disease or defect D would not have committed the crime.

Question 25

MPC insanity defense test

Answer 25

D is entitled to acquittal if D can show: D had mental disease or defect that caused him to lack substantial capacity to either (1) appreciate the criminality (wrongfulness) of his actions; or (2) conform his conduct to the requirement of the law. Combines M'Naghten and Irresistible Impulse tests.

Question 26

Intoxication defense

Answer 26

Voluntary and involuntary intoxication. Voluntary intoxication: intentional taking of a substance known to be intoxicating whether or not the person intended to actually become intoxicated. Voluntary intoxication can be defense to specific intent crimes but NOT general intent crimes, strict liability crimes, or crimes requiring malice, recklessness, or negligence. Will often downgrade first-degree murder to second-degree murder, but will NOT downgrade second-degree murder to manslaughter. Involuntary intoxication: ingestion of an intoxicating substance unknowingly, under duress, or pursuant to medical advice (and unaware of intoxicating side-effects).

Question 27

Voluntary intoxication definition and explanation

Answer 27

Voluntary intoxication: intentional taking of a substance known to be intoxicating whether or not the person intended to actually become intoxicated. Voluntary intoxication can be defense to specific intent crimes but NOT general intent crimes, strict liability crimes, or crimes requiring malice, recklessness, or negligence.

Question 28

For what crimes can and can't voluntary intoxication be a defense?

Answer 28

Voluntary intoxication can be defense to specific intent crimes but NOT: (1) general intent crimes, (2) strict liability crimes, or (3) crimes requiring malice, (4) recklessness, or (5) negligence. Will often downgrade first-degree murder to second-degree murder, but will NOT downgrade second-degree murder to manslaughter.

Question 29

Involuntary intoxication

Answer 29

Involuntary intoxication: ingestion of an intoxicating substance unknowingly, under duress, or pursuant to medical advice (and unaware of intoxicating side-effects).

Question 30

Necessary proof of malice mens rea

Answer 30

Prosecution must show: reckless disregarded an obvious or high risk that the particular harmful result would occur.

Question 31

6th Am and post-charge lineup

Answer 31

6th Am guarantees right to attorney at all critical stages. A post-charge lineup is a critical stage. The attorney must be present for the entirety of the lineup, not just when the defendant is presented to the witness.

Question 32

Ways the 4th Am allows warrantless search and seizure within the suspects home

Answer 32

Consent, plain view, community caretaker exception

Question 33

Defenses to attempt

Answer 33

Defenses: (1) Legal impossibility works because there was NO CRIME that could have been committed. (2) Factual impossibility is NOT a defense (includes when D is mistaken about the attendant circumstances). (3) Abandonment: majority rule is abandonment is no defense. MPC says it is if (1) fully voluntary and (2) complete abandonment.

Question 34

Generally when is defense by force available as proper justification?

Answer 34

Defense of self, defense of others, defense of property, prevent crime, necessity

Question 35

Self-defense

Answer 35

Non-deadly force and deadly force are appropriate as the defendant reasonably believes necessary; no duty to retreat. For deadly force, defendant must reasonably believe he is being attacked with deadly force or great bodily harm. The initial aggressor may not use deadly force in self-defense unless withdrawal/retreat or sudden escalation.

Question 36

Defense of others

Answer 36

D can use force to defend others if the other requirements of defense are met; very few jurisdictions require special familial or legal relationship between D and potential victim. Reasonable appearance of right to use force is all that is necessary to trigger a defense of others justification.

Question 37

Defense of a dwelling

Answer 37

D may use non-deadly force to defend dwelling when D has reasonable belief it is necessary in the face of unlawful entry or attack. D may use deadly force to defend dwelling when (1) the entry is violent AND (2) D reasonably believes it's necessary.

Question 38

Defense of property

Answer 38

D may use non-deadly force to defend property if reasonable belief it's necessary and the harm reasonably appears imminent. D may only use non-deadly force to regain stolen property if D was in hot pursuit of the thief (i.e., can't track the thief down, lie in wait, then attack). D may never use deadly force to defend property.

Question 39

Necessity as affirmative defense/justification

Answer 39

D is allowed to commit an otherwise criminal act if D reasonably believed the conduct was necessary to prevent a harm to society that would be greater than the harm caused by the otherwise criminal conduct. Objective test. Necessity not available where D himself initiates the harm to society.

Question 40

Excuse of duress

Answer 40

NEVER AVAILABLE FOR INTENTIONAL HOMICIDE. D may be excused of a criminal act if D did it with reasonable belief D or someone else was under threat of imminent death or great bodily harm. Some jurisdictions also allow for duress when the threat is against PROPERTY.

Question 41

Mistake of fact defense

Answer 41

Mistake of fact will only ever be a viable defense if the mistake negates state of mind. Necessary but not sufficient condition. Specific intent crimes: ANY mistake of fact that negates mens rea is a defense. General intent crimes: only REASONABLE mistake of fact that negates mens rea is a defense. Strict liability crimes: mistake of fact never available.

Question 42

Mistake of law defense

Answer 42

Not knowing the law is no defense. Mistake of law might be a viable defense if it negates an intent required by statute. Example: statute prohibits knowingly selling gun to convicted felon, and seller knew buyer was convicted of assault but mistakenly thought assault was only a misdemeanor. This mistake of law negates the required intent.

Question 43

Entrapment

Answer 43

Generally, the intent to commit the crime must come from the officers and not D himself. Requires showing (1) the criminal design came from officers and (2) D was not predisposed to committing the crime.

Question 44

Battery

Answer 44

General intent crime Elements: Unlawful application of force to another resulting in injury or offensive touching.

Question 45

Assault

Answer 45

(1) An attempted battery, or | (2) The intentional creation (not just words) of a reasonable apprehension of imminent bodily harm.

Question 46

Definition common law murder

Answer 46

Intentional killing of another human being with "malice aforethought" Malice aforethought = one of (1) intent to kill [which can be INFERRED from using a deadly weapon], (2) intent to inflict great bodily harm, (3) reckless indifference to an unjustifiably high risk to human life, (4) intent to commit a felony [felony murder] Malice is present in (1) and implied in (2), (3), and (4)

Question 47

Definition common law voluntary manslaughter

Answer 47

Intentional killing of another human being resulting sudden intense passion resulting from adequate provocation, no time to cool off, and actually no cooling off. Adequate provocation = a battery or deadly force, or fining spouse cheating in bed.

Question 48

Definition common law involuntary manslaughter

Answer 48

Three main types: (1) Death caused by D's criminal negligence (MPC says "recklessness"). A great deviation from reasonable person standard of care. (2) Killing caused in the course of a misdemeanor. The misdemeanor must be either an inherently wrongful act or death foreseeable or natural consequence of the unlawful act. (3) A foreseeable killing caused in the course of an unenumerated felony for felony murder.

Question 49

Statutory homicides

Answer 49

All murders start out as second degree murders. Can be bumped up to first degree if: (1) the killing was deliberate and premeditated: D made the decision to kill in a cool manner and actually reflected on the killing (even just a second is sufficient). (2) Felony murder rule: a killing committed during the course of an enumerated felony. [If the killing happens during an UNenumerated felony, it might drop back down to second degree murder.]

Question 50

Statutory felony murder

Answer 50

Felony murder rule: a killing committed during the course of an enumerated felony. Can be tacked on to co-conspirators if the death was (1) caused in furtherance of the conspiracy and (2) the death was a foreseeable consequence of the conspiracy. "during the course of an enumerated felony": the timeline interrupts if D reaches a "place of temporary safety." After that, any killings that happen cannot be the basis of felony murder. Deaths that DON'T count: death of co-conspirator, death of a person by police, death of a person by victim fighting back. Narrow exception for person killed by police or victim when being used as a human shield.

Question 51

Causation and homicides

Answer 51

P must show actual cause and proximate cause Actual cause: but-for test. At common law, also year-and-a-day rule (mostly abandoned in U.S.). Proximate cause: satisfied if death was a "natural and probable" result of D's conduct. Weird cases where causation still satisfied: (1) Hastening an inevitable result (2) Simultaneous acts (3) Preexisting condition makes victim unusually susceptible to death. Intervening acts: only cut off causation where coincidence or so outside foreseeable risk of harm caused by D.

Question 52

False imprisonment

Answer 52

Unlawful confinement of a person without his valid consent.

Question 53

Kidnapping

Answer 53

Confinement of a person that involves (1) "some movement" of the victim, or (2) concealment.

Question 54

Rape (generally): elements

Answer 54

"Carnal knowledge" of a woman by a man not her husband without effective consent. Today, penetration without effective consent. Insufficient consent: (1) consent by force, (2) consent by threat of force, (3) victim incapable of consent, (4) consent by fraud

Question 55

Statutory rape

Answer 55

Carnal knowledge of a person under the age of consent. Mistake as to age does not matter.

Question 56

Larceny (elements):

Answer 56

Specific intent crime. A taking and carrying away of personal property of another by trespass with intent to permanently deprive the person of his property. Applies to personal property only. The property must be "possessed" by D, which is a greater scope of authority to deal with a piece of personal property. Different from "custody" (e.g., in a bailment relationship) which only refers to limited authority to deal with a piece of personal property. The "movement" need only be slight. "By trespass": just means the property was taken without consent. If the taking was by consent induced by misrepresentation, then "larceny by trick." Must intend to permanently deprive and that intent must exist at the time of the taking. But if that intent did not exist at the taking but happens later, doctrine of "continuing trespass" will still make D guilty of larceny. Example: D wants to borrow car, victim allows D to borrow car, while using the car D decides to keep it and drives away.

Question 57

Larceny by trick

Answer 57

Obtaining POSSESSION of property of another by intentional false statement with intent to defraud. Larceny by trick = Mere possession, not title. [If title, then it's the crime of "false pretenses."] Remember: opposite letters in last word Larceny by TTTrick: PPPossession False PPPretenses: TTTitle.

Question 58

Embezzlement

Answer 58

Fraudulent conversion of another's property by a lawful possession of that property. Look first at the embezzler and the property: depends on the legality of the initial possession. If the embezzler initially had lawful possession but then fraudulently converts it, THEN it's embezzlement. Different from larceny because in embezzlement the POSSESSION was lawful WHEN IT STARTED; whereas in larceny the POSSESSION was unlawful ab initio.

Question 59

False pretenses

Answer 59

Obtaining TITLE to someone else's property by knowing false statement with intent to defraud. Different from larceny by trick by the legal authority over the property. False pretenses applies to TITLE, the highest form of property ownership. Larceny by trick applies to only POSSESSION. Remember: opposite letters in last word Larceny by TTTrick: PPPossession False PPPretenses: TTTitle.

Question 60

Robbery

Answer 60

A taking of personal property of another from the other's person by force or intimidation within intent to permanently deprive him of it. Basically an aggravated larceny accomplished by threat or threat of force.

Question 61

Extortion

Answer 61

Basically blackmail

Question 62

Receipt of stolen property

Answer 62

Receiving possession and control of "stolen" personal property KNOWN TO HAVE BEEN OBTAINED BY A CRIME with intent to permanently deprive the owner. "manual possession" is not necessary, i.e., D need not have actually manually handled the item.

Question 63

Burglary

Answer 63

A breaking and entering of the dwelling home of another at night with the intent to commit a felony therein. Requires actual BREAKING; walking in through an open back door does not count. "Constructive breaking," i.e., by fraud, threat, etc. counts as a breaking. Dwelling means used for sleeping purposes. Must have intent to commit a felony therein.

Question 64

Arson

Answer 64

The malicious burning of the dwelling of another. Mens rea: Malice: intent or knowledge that the structure would burn, or reckless disregard of OBVIOUS RISK that the structure would burn.

Question 65

Cumulative sentences for similar crimes and Blockburger

Answer 65

If legislature clearly intended, Blockburger does not prevent cumulative sentences from being imposed for crimes tried in a single trial, even when the Blockburger test is met.

Question 66

Arrest warrants and searches incident to arrest at home of third-parties (i.e., a friend of the suspect)

Answer 66

If there are exigent circumstances, the police can do anything. But under normal circumstances, police CAN execute an arrest warrant of a suspect at a third-party's home JUST to arrest the person. But if the police want to find or use any evidence in the third-party's home, then they must ALSO get a search warrant for the third-party's home. If the police don't get a separate search warrant, the search is unconstitutional and any evidence found is the fruit of the unconstitutional search.

Question 67

Plain view doctrine requirements

Answer 67

Police don't need a warrant to search or seize an item in plain view if: (1) the police are legally where the item is found; (2) the item is in plain view; (3) the item is immediately apparently (i.e. there's probable cause to suspect it is) part of a crime; (4) it is actually part of a crime.

Question 68

Requirements to search car after driver arrested

Answer 68

if (i) the arrestee is unsecured and still may gain access to the interior of the vehicle, or (ii) the police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle.

Question 69

Seizure definition/test

Answer 69

Whether a reasonable person would feel they are not free to leave. Totality of the circumstances. Officer must use force or show ability to use force.

Question 70

To plead guilty, the defendant must know:

Answer 70

(1) the nature of the charge to which the plea is offered, (2) of the maximum possible penalty, (3) the right not to plead guilty, and (4) that by pleading guilty she waives her right to a trial.

Question 71

Double jeopardy and appeals: if a conviction is overturned on appeal...

Answer 71

Double jeopardy clause prevents the prosecution from bringing charges for a crime more serious than the conviction that was overturned on appeal.

Question 72

Test for speedy trial violation and potential remedy

Answer 72

Whether a prosecution violates right to speedy trial: look at totality of the circumstances and especially weigh: (1) length of delay (2) reason for delay (3) has D asserted the right? (4) prejudice to D? Remedy: dismissal with prejudice

Question 73

Robbery definition

Answer 73

Taking and carrying away of personal property of another from the other's person or presence by force or intimidation Threats to destroy dwelling home will suffice, but other personal property not. Others person "or presence" can include another room in the home other than where victim is

Question 74

For felony murder, the underlying felony must

Answer 74

The underlying felony must be independent of the killing. Thus, an assault or battery that directly causes a death cannot be the basis of felony murder.

Question 75

Can assault or battery be the basis of a felony murder prosecution? Why or why not?

Answer 75

No. Because for felony murder, the felony must be independent of the killing, and if assault or battery result in a killing they are not independent.

Question 76

When a defendant is prosecuted for a statute that proscribes "knowing" conduct, what level of certainty must the defendant have had about the attendant circumstances of the proscribed conduct?

Answer 76

The defendant must know the attendant circumstances are either "necessary" or even merely "very likely."

Question 77

A statute criminalizes taking women across state lines for immoral purposes. A takes B across state lines for immoral purposes. Can B be prosecuted for aiding and abetting A's commission of that crime? Why or why not?

Answer 77

No, because a member of a class a criminal statute is designed to protect cannot be prosecuted as an accomplice under that statute.

Question 78

Common law conspiracy versus MPC approach

Answer 78

Common law elements: (1) Specific intent to complete target offense and (2) two or more guilty minds. Withdrawal: not available as defense to conspiracy itself, but can preclude subsequent offenses if: notice and act indicating withdrawal. MPC elements: (1) specific intent to complete target offense, (2) one guilty mind suffices, (3) some kind of overt act in furtherance of the conspiracy. Withdrawal: not available as defense to conspiracy itself, but can preclude subsequent offenses if: notice and act to thwart the conspiracy in some way.

Question 79

Common law arson versus modern arson

Answer 79

Common law arson: malicious burning of the dwelling house of another. Modern arson: the malicious burning of any structure or dwelling (including your own).

Question 80

Is it common law arson to burn your own house?

Answer 80

No!

Question 81

When can police open closed containers in a car as part of a search?

Answer 81

If they have probable cause to believe the container has evidence of a crime.

Question 82

Compare and contrast Automobile Exception with Search of a car incident to arrest

Answer 82

Automobile exception (very broad): If police have probable cause to believe the car contains evidence of a crime, they can stop the car and search ANY PART of the car that could contain what they're looking for. Search incident to arrest (very narrow): police can search a car incident to lawful arrest only if: (1) arrestee might access the car because unsecured, or (2) the police reasonably believe there's evidence in the car RELATED TO THE CRIME OF THE ARREST.

Question 83

Timeline of proper Terry Stop from initiation to finding drugs on the person and arrest

Answer 83

Police may stop a person if reasonable suspicion. Police may then also frisk if there's separate, additional reasonable suspicion that the person might have a weapon. When performing the frisk, cop only pats outer layer of clothing. If cop PLAINLY feels contraband like drugs, then they can seize that and arrest.

Question 84

Minimum and maximum juries and voting rules

Answer 84

Minimum 6, and if 6, conviction must be unanimous. But more than that, unanimous verdict not necessary.

Question 85

Does intent transfer for an attempt?

Answer 85

No!

Question 86

Double jeopardy: When does it prevent a subsequent prosecution for a lesser or greater included offense? Exceptions?

Answer 86

Attachment of jeopardy for a greater offense will bar later prosecution for all lesser included offenses. Attachment of jeopardy for lesser offenses wholly within others will bar prosecution for the greater offenses EXCEPT if not all the facts of the greater offense were in existence at the time of the prosecution.

Question 87

Explain fruit of poisonous tree and standing

Answer 87

Defendant must have standing to challenge under FPT, meaning he had a right to privacy in the original search (the "tree"). Fruit of poisonous tree really only helps when: one unconstitutional search leads to all kinds of other otherwise admissible evidence.

Question 88

Burdens for prosecution versus defendant when defendant raises affirmative defense

Answer 88

Prosecution has burden to prove all elements beyond a reasonable doubt But plaintiff can be forced to prove affirmative defense

Question 89

Does "exigent circumstances" apply even when the police create them?

Answer 89

Yes.

Question 90

Miranda "custody" test

Answer 90

(1) Would a reasonable person understand free to leave? | (2) If no, are the pressures like a station house questioning? If yes, then in "custody."

Question 91

Is defendant entitled to be present at jury selection?

Answer 91

Yes