Criminal Law I

Question 1

Elements of a Crime

Answer 1

1. Actus Reus
2. Mens Rea
3. Concurrence
4. Causation

Question 2

Actus Reus - Defined

Answer 2

The actus reus of an offense consists of (1) a voluntary act; (2) that causes; (3) social harm.

Question 3

Actus Reus - Affirmative Acts

Answer 3

An affirmative act will suffice for criminal liability if it involves some conscious and volitional movement.

Exception - A defendant may be held liable if he caused his unconsciousness or was aware of pending unconsciousness.

Question 4

Actus Reus - Negative Acts

Answer 4

A defendant’s failure to act may support criminal liability if:

1. He was under a legal duty to act,
2. He had the requisite knowledge, and
3. It was possible for him to act.

A legal duty to act may arise from:

1. a relationship between the parties (e.g., parent-child);
2. statute;
3. a contract;
4. creating a situation of peril.

Question 5

Mens Rea - Defined

Answer 5

The state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime.

Question 6

Mens Rea - Purposely

Answer 6

A person acts purposefully if it is his conscious desire to engage in certain conduct or cause a certain result.

Under the Model Penal Code, purposely denotes the mental state resulting in the highest level of criminal culpability.

Question 7

Mens Rea - Knowingly

Answer 7

A person acts knowingly if he is aware that his conduct will result in certain consequences or is practically certain that his conduct will cause a specific result.

Under the Model Penal Code, knowingly describes to the mental state resulting in the second-highest level of criminal culpability.

Question 8

Mens Rea - Levels

Answer 8

Under the Model Penal Code, the four levels of mens rea are:

1. Purposely
2. Knowingly
3. Recklessly
4. Negligently

Question 9

Mens Rea - Recklessly

Answer 9

A person acts recklessly if he is aware of a substantial risk that a certain result will occur as a result of his actions. The risk must be substantial enough that the action represents a gross deviation from what a reasonable law abiding person would do.

Under the Model Penal Code, recklessly denotes the minimum level of culpability required for criminal liability when the statute does not specify the required mental state.

Question 10

Mens Rea - Negligently

Answer 10

A person acts negligently if they should have been aware of a substantial and unjustifiable risk that a certain consequence would result from their actions.

“Criminal negligence” is conduct that represents a gross deviation from the standard of reasonable care.

Question 11

Concurrence

Answer 11

The mens rea and actus reus must be present at the same time.

Question 12

Intent - Defined

Answer 12

At common law, a person “intentionally” causes the social harm of an offense if:

1. It is his desire to cause the social harm; or
2. he acts with knowledge that the social harm is virtually certain to occur as a result of his conduct.

Question 13

General Intent - Defined

Answer 13

The intent to perform an act even though the actor does not desire the consequences that result.

This is the state of mind required for the commission of certain common-law crimes not requiring a specific intent or not imposing strict liability.

Question 14

Specific Intent - Defined

Answer 14

The intent to accomplish the precise criminal act that one is later charged with.

At common law, the specific-intent crimes were robbery, assault, larceny, burglary, forgery, false pretenses, embezzlement, attempt, solicitation, and conspiracy.

Question 15

Causation - Cause in Fact

Answer 15

But for the defendant’s act or omission, would the harm (death) have occurred at the same time anyway?

If the answer is yes, then defendant was not a cause in fact of the death.

If the answer is no, then defendant is the cause in fact of the death.

Question 16

Causation - Proximate Cause

Answer 16

Proximate cause is present when the result occurs as a natural and probable consequence of the defendant’s act
and there is no intervening factor sufficient to break the chain of causation.

Question 17

Causation - Proximate Cause Factors

Answer 17

1. Extent of culpability of any intervening factor
2. Extent of culpability of defendant (de minimis)
3. Time delay between defendant’s act and the death
4. Extent to which victim made a voluntary decision to assume risk
5. In general: foreseeability

Question 18

Malum In Se - Defined

Answer 18

Malum in se crimes are inherently dangerous, bad, or immoral (e.g., the common law felonies).

Question 19

Malum Prohibitum

Answer 19

Malum prohibitum offenses are not prohibited because of any basic immorality but out of necessity to regulate the general welfare (e.g., prohibition against driving on the wrong side of the road)

Question 20

Accomplice Liability

Answer 20

Providing some aid to the principal perpetrator while also having the required mens rea. Examples include aiding and abetting, assisting, soliciting, encouraging, etc.

An accomplice can be charged with the same crime that the principal can be charged, and to the same degree (i.e. first degree murder, etc).

He will be liable for all crimes committed by the principal actor that are “a natural and probable consequence” of the crime in which the accomplice is arrested.

Question 21

Accomplice Liability - Prosecution’s Burden

Answer 21

To gain a conviction, the prosecution must show:
1. Assistance to the principal in committing an offense
2. Mens Rea
a. Intent to assist the principal to engage in the conduct
that forms the basis of the offense; and
b. The mental state required for the crime as stated in
the definition of the substantive crime.

Note - Cause-in-fact relationship between accomplice’s act and commission of substantive offense is not required

Question 22

Inchoate - Defined

Answer 22

Activity that is performed after the formation of the mens rea but short of attainment of the criminal goal, is described as “inchoate” — imperfect or incomplete — conduct.

The three inchoate offenses are attempt, conspiracy, and solicitation.

Question 23

Attempt - Defined

Answer 23

A criminal attempt occurs when a person, with the intent to commit an offense, performs “some act done towards carrying out the intent.”

The action must constitute a substantial step, beyond mere preparation, toward commission of the offense.

Question 24

Conspiracy - Defined

Answer 24

A conspiracy is an agreement between two or more persons to commit an unlawful act or series of unlawful acts.

Question 25

Solicitation - Defined

Answer 25

The criminal offense of urging, advising, commanding, or otherwise inciting another to commit a crime.

Question 26

Cruel and Unusual Punishment - Defined

Answer 26

The Eighth Amendment prohibition against cruel and unusual punishment imposes a number of different limits on criminal law:

1. Inherently barbaric or degrading punishment is prohibited. Torture, death by painful or lingering methods, and forfeiture of citizenship are probably also prohibited.
2. Penalties that are so grossly and outrageously disproportionate to the defendant’s conduct are also prohibited.

Question 27

Death Penalty - Generally

Answer 27

The death penalty is constitutionally permissible if it is imposed under a procedure that adequately assures evenhanded determinations as to whether the penalty is appropriate in a particular case.

The death penalty is an unconstitutionally disproportionate penalty for the rape of an adult woman, or the rape of a child (at least when the defendant did not intend to kill the victim).

Murderers who are younger than 18 or mentally impaired generally cannot be executed.

Question 28

Homicide - Defined

Answer 28

Black’s Law Dictionary defines homicide as the killing of one person by another.

Question 29

Murder - Defined

Answer 29

At common law, murder was defined as the unlawful killing of a human being by another human with malice aforethought.

Question 30

Manslaughter - Defined

Answer 30

A statutorily created crime defined as an unlawful killing of a human being without malice aforethought.

Question 31

Malice Aforethought - Defined

Answer 31

Malice aforethought is the requisite mental state for common-law murder, encompassing any one of the following four mental states:

1. An intent to kill a human
2. An intent to do serious bodily harm to a human
3. An extremely reckless disregard for the value of human life (depraved heart)
4. An intention to commit a felony (felony-murder rule)

Question 32

Degrees of Murder

Answer 32

Modern statutes often divide murder into first and second degree. First degree murder includes:

1. Premeditated killings in which the intent to kill is formed with some reflection, deliberation, reasoning, or weighing, rather than on sudden impulse.
2. Killing during enumerated felonies
3. Killing by poison, bomb, lying in wait, and torture

Second degree murder includes all killings committed with malice aforethought that are not specifically raised to first degree murder are typically classified as second degree murder.

Question 33

Felony-Murder Rule - Defined

Answer 33

A killing—even an accidental one—will be murder if it was caused with the intent to commit a felony. All co-felons are liable if one of them accidentally causes a death, even when a co-felon is killed, although courts many times will find an exception when a co-felon is the victim.

Question 34

Felony-Murder Rule - Limitations

Answer 34

1. Death of another must be “foreseeable” (Proximate Cause)
2. Felony must be “dangerous” (Dangerous Felony)
3. Felony must be “independent” (Independent Felony Rule)
4. One of the felons must “directly” cause death (Agency Limitation)
5. Death must be caused in perpetration of felony (Proximate Cause)

Question 35

Voluntary Manslaughter - Defined

Answer 35

Black’s Law Dictionary defines voluntary manslaughter as an act of murder reduced to manslaughter because of extenuating circumstances such as adequate provocation (arousing the “heat of passion”) or diminished capacity.

Question 36

Voluntary Manslaughter - Elements

Answer 36

The common law requires all four of the following elements:

1. Reasonable provocation
2. The defendant was actually provoked;
3. Absence of adequate cooling period; and
4. No actual cooling off

Question 37

Involuntary Manslaughter - Defined

Answer 37

Black’s Law Dictionary defines involuntary manslaughter as homicide in which there is no intention to kill or do grievous bodily harm, but that is committed with criminal negligence or during the commission of a crime not included within the felony-murder rule.

Question 38

Misdemeanor Manslaughter - Defined

Answer 38

Unintentional killings caused during the commission of an unlawful act are involuntary manslaughter (unless the unlawful act supports application of the felony murder rule).

Question 39

Insanity - Three Stages

Answer 39

There are three stages during which potential mental illness of the accused is relevant:

1. Insanity at the time of the alleged crime
2. Incompetency at the time of trial
3. Insanity at the time of the scheduled execution

Question 40

Insanity - M’Naghten Test

Answer 40

A person is insane if, at the time of his act, he was laboring under such a defect of reason, arising from a disease of the mind, that:

1. he did not know the nature and quality of the act that he was doing; or
2. if he did know it, he did not know that what he was doing was wrong, i.e., the accused at the time of doing the act did not know the difference between right and wrong.

Question 41

Insanity - Irresistible Impulse Test

Answer 41

Generally speaking, a person is insane if, at the time of the offense:

1. He “acted from an irresistible and uncontrollable impulse”;
2. He “lost the power to choose between the right and wrong, and to avoid doing the act in question, as his free agency was at the time destroyed”; or
3. The “[defendant’s] will … has been otherwise than voluntarily so completely destroyed that his actions are not subject to it, but are beyond his control.”

Question 42

Insanity - ALI/Model Penal Code Test

Answer 42

A person is not responsible for his criminal conduct if, at the time of the conduct, as the result of a mental disease or defect, he lacked substantial capacity to:

1. appreciate the “criminality” or the moral “wrongfulness” of his conduct; or
2. to conform his conduct to the requirements of the law.

Question 43

Insanity - Durham Test

Answer 43

A person should be excused if his unlawful act was the product of a mental disease or defect. Pursuant to this rule, the jury would determine whether the defendant was suffering from a mental disease or defect at the time of the offense and, if so, whether the disease caused the criminal conduct in a but-for sense.

Question 44

Insanity - Federal Test

Answer 44

In federal courts, a person is excused if he proves by clear and convincing evidence that, at the time of the offense, as the result of a severe mental disease or defect, he was unable to appreciate:

1. the nature and quality of his conduct; or
2. the wrongfulness of his conduct.

Question 45

Effect of an Insanity Acquittal

Answer 45

In many states, a person found NGRI is automatically committed to a mental facility on the basis of the verdict. He may be detained as long as he is both mentally ill and dangerous to himself or others.

He is constitutionally entitled to release from a mental facility if he is no longer mentally ill (even if he remains dangerous to himself or others) or is no longer dangerous (even if he continues to suffer from a mental illness).

Question 46

Voluntary Intoxication - Defense

Answer 46

General intent - not a defense

Specific intent - can be a defense, but is not a defense if the defendant purposely became intoxicated in order to establish the defense.

Fixed Insanity - due to long term use of intoxicants, a traditional insanity defense may be permitted.

Question 47

Involuntary Intoxication - Defense

Answer 47

At common law, involuntary intoxication can be a defense, possibly even to general intent crimes.

Question 48

Self-Defense - Generally

Answer 48

At common law, a non-aggressor is justified in using force upon another if he reasonably believes such force is necessary to protect himself from imminent use of unlawful force by the other person.

Question 49

Self-Defense - Deadly Force

Answer 49

Deadly force is only justified in self-protection if the actor reasonably believes that its use is necessary to prevent imminent and unlawful use of deadly force by the aggressor.

Question 50

Self-Defense - Elements

Answer 50

1. Necessity - Force should not be used against another person unless, and only to the extent that, it is necessary.
2. Proportionality - A person is not justified in using force that is excessive in relation to the harm threatened.
3. Reasonable-Belief - The defendant subjectively believed that he needed to use deadly force to repel an imminent unlawful attack, and the defendant’s belief must be one that a reasonable person in the same situation would have possessed.

Question 51

Duty to Retreat - Generally

Answer 51

A majority of jurisdictions today apply a “no retreat” rule: a non-aggressor is permitted to use deadly force to repel an unlawful deadly attack, even if he is aware of a place to which he can retreat in complete safety.

A minority of jurisdictions provide that an innocent person threatened by deadly force must retreat rather than use deadly force if he is aware that he can do so in complete safety.

Question 52

Duty to Retreat - Castle Doctrine

Answer 52

The castle doctrine provides that a non-aggressor is not ordinarily required to retreat from his dwelling, even though he knows he could do so in complete safety, before using deadly force in self-defense.

Question 53

Self Defense - Defense of Others

Answer 53

The majority rule does not require a special relationship between the defendant and the person in whose defense they acted.

The minority rule requires that the person whom the defendant aided must either have been a member of the defendant’s family or the defendant’s employee or employer.

Question 54

Mistake of Law - Generally

Answer 54

A mistake about the legal effect of a known fact or situation.

Generally, it is not a defense to a crime that the defendant was unaware that his acts were prohibited by law, even if the ignorance or mistake was reasonable.

Question 55

Mistake of Law - Exceptions

Answer 55

1. If the statute says that the actor must be aware that he is acting illegally to be guilty
2. Omission to act, duty based on status rather than activity, or mala in prohibitum rather than mala in se
   - Not a usually successful defense/exception
3. Reliance on official declaration of the law
4. Mistake of different law (or mistake of “other” law
   - Treated similarly to a mistake of fact defense

Question 56

Mistake of Fact - Generally

Answer 56

The defense asserting that a criminal defendant acted from an innocent misunderstanding of fact rather than from a criminal purpose.

Question 57

Mistake of Fact - Strict Liability Crimes

Answer 57

Under no circumstances does a person’s mistake of fact negate his criminal responsibility for violating a strict-liability offense.

Question 58

Mistake of Fact - Specific Intent Crimes

Answer 58

A defendant is not guilty of an offense if his mistake of fact negates the specific-intent portion of the crime, i.e., if he lacks the intent required in the definition of the offense.

Question 59

Mistake of Fact - General Intent Crimes

Answer 59

The ordinary rule is that a person is not guilty of a general-intent crime if his mistake of fact was reasonable, but he is guilty if his mistake was unreasonable.

Question 60

Consent - Defense

Answer 60

Consent of the victim is generally not a defense, unless it negates an element of the offense, in which case it can be a complete defense.

Question 61

Consent - Elements

Answer 61

Whenever consent is sought as a defense, it must be established that:

1. The consent was voluntarily and freely given,
2. The party was legally capable of consenting, and
3. No fraud was involved in obtaining the consent.

Question 62

Willful Blindness - Defined

Answer 62

Most jurisdictions permit a finding of knowledge when the actor is guilty of so-called “willful blindness” or “deliberate ignorance.” It generally exists if the actor:

1. is aware of a high probability of the existence of the fact in question; and
2. takes deliberate action to avoid confirming the fact, or
3. purposely fails to investigate in order to avoid confirmation of the fact

Question 63

Strict Liability - Generally

Answer 63

Strict-liability offenses, are crimes that, by definition, do not contain a mens rea requirement regarding one or more elements of the actus reus.

Question 64

Attempt - Six Stages

Answer 64

When a person commits a crime, it is part of a six-stage process:

1. The actor conceives the idea of committing a crime.
2. He evaluates the idea, in order to determine whether he should proceed.
3. He fully forms the intention, i.e., resolves, to go forward and commit the crime.
4. He prepares to commit the crime, for example, by obtaining any instruments necessary for its commission.
5. He commences commission of the offense.
6. He completes his actions, thereby achieving his immediate criminal goal.

Question 65

Attempt - Punishment

Answer 65

Anglo-American law does not punish a person during the first three stages of a crime. Until the third step occurs, the actor lacks a mens rea.

Question 66

Attempt - Substantial Step

Answer 66

The “substantial step” required for a criminal attempt is any conduct that has reached the fifth stage of criminality i.e., conduct that has passed the preparatory stage and moved to the point of perpetration of the target offense.

Question 67

Attempt - Specific Intent

Answer 67

An attempt is a specific-intent offense, even if the target offense is a general-intent crime.

Question 68

Pure Legal Impossibility

Answer 68

Pure legal impossibility arises when a defendant sets out to do things that he believed would, if completed, constitute a crime, but that are in fact not criminal. Pure legal impossibility is a defense to a charge of attempt.

Question 69

Factual Impossibility

Answer 69

Factual impossibility arises when a defendant sets out to do things that would, if completed, constitute a crime, but there is no chance that the defendant will complete the act because of factors of which he is unaware. Factual impossibility is universally rejected as a defense to a charge of attempt.

Question 70

Abandonment - Defense

Answer 70

To the extent that a defense of abandonment is recognized today, it applies only if the defendant voluntarily and completely renounces his criminal purpose.

Question 71

Pinkerton Doctrine - Defined

Answer 71

A party to a conspiracy is responsible for any criminal act committed by an associate if: (1) it was committed in furtherance of the conspiracy; and (2) is a foreseeable consequence of the unlawful agreement.

Question 72

Larceny - Defined

Answer 72

Common law larceny is the trespassory taking and carrying away of the personal property of another with the intent to permanently deprive the possessor of the property.

Question 73

Possession - Generally

Answer 73

A person has possession of property when he has sufficient control over it to use it in a reasonably unrestricted manner.

Possession is actual if the person is in physical control of it; it is constructive if he is not in physical control of it but nobody else has actual possession of it, either because the property was lost or mislaid or because another person has mere “custody” of it.

Question 74

Custody - Generally

Answer 74

A person has mere “custody” of property if he has physical control over it, but his right to use it is substantially restricted by the person in constructive possession of the property.

Question 75

Larceny - Good Faith Belief

Answer 75

A person is not guilty of larceny if he takes property belonging to another person based on a good faith belief that he has a right to possess the property.

Question 76

Embezzlement - Defined

Answer 76

A fraudulent conversion of the property of another by a person who is in lawful “possession” (as opposed to mere “custody”) of it.

Question 77

Embezzlement - Elements

Answer 77

1. Defendant comes into the possession of property of another in a lawful manner
2. Through entrustment by or for the owner, and
3. Defendant thereafter fraudulently converts the property.

Question 78

Larceny - Exceptions

Answer 78

1. Breaking bulk - Bailee who opens packages trusted to him for delivery thereby ends his own lawful possession.
2. Employees and servants - An employee or servant to whom the employer or master entrusted his goods was deemed to have mere “custody” with constructive possession remaining with the employee or master.
3. Transactions contemplating relatively simultaneous exchanges - Buyer hands over money for a purchase to seller, seller does not hand over the item to be purchased
4. Custody obtained by trick - Where custody (but not title) is obtained by deceit, constructive possession is retained.

Question 79

False Pretenses - Defined

Answer 79

A fraudulent appropriation of title to another’s property through a representation of a material present or past fact that the defendant knows to be false and through which he intends to and actually causes the victim to pass title to his property.

Question 80

False Pretenses - Elements

Answer 80

1. Knowingly
2. Using a false representation (written or oral)
3. Of a material fact
4. To secure title (not simply possession)
5. To the property of another
6. Where there was a reliance on the representation.

Question 81

Robbery - Elements

Answer 81

1. Taking
2. The personal property
3. Of another
4. From another’s person
5. By force or violence (or threats thereof)
6. With the intent to deprive him of it permanently

Question 82

Burglary - Elements

Answer 82

1. Breaking and entering
2. The dwelling
3. Of another
4. At nighttime
5. With the intent to commit a felony therein

Question 83

Rape - Elements

Answer 83

To prove rape, the prosecution generally had to establish:

1. Defendant had sexual intercourse
2. With a woman
3. Who was not his wife
4. Using physical force or the threat of force
5. Without her consent

Question 84

Attempt - Staples Test

Answer 84

An attempt occurs “when it becomes clear what the actor’s intention is and when the acts done show that the perpetrator is actually putting his plan into action”.