Particular Crimes

Question 1

MPC Murder

Answer 1

No Degrees!

210.2
Murder when:
(a) committed purposely or knowingly; or
(b) committed recklessly under circumstances manifesting extreme indifference to the value of human life.

Question 2

Common law murder

Answer 2

“the unlawful killing of another human being with malice aforethought.”

No degrees!

Question 3

Different definitions of “malice aforethought”

Answer 3

1. Intent to kill — includes knowing death would result, even without specific desire for it. Only one that is considered “express malice.”
2. Intent to cause grievous bodily harm — knowledge sufficient as well.
3. Depraved-heart murder — unintentional homicide under circumstances evincing a depraved mind or an abandoned and malignant heart.
4. Felony-Murder Rule — death that results while engaged in committing a different felony.

Question 4

Division of Murders into Degrees

Answer 4

Change initiated by PA legislature. Now adopted by widely by all states.

Question 5

PA Degrees of Murder — What constitutes first degree murder?

Answer 5

Murder that is willful, deliberate, and premeditated.

Willful = intentional

Deliberate = to evaluate and reflect on (weigh the pros and cons)

Premeditate = to think about beforehand.

Question 6

PA Degrees of Murder — How far in advance must you premeditate or deliberate?

Answer 6

Many jurisdictions have obliterated the distinction between degrees by requiring premeditation and deliberation only momentarily before killing (State v. Guthrie).

Other states, such as Michigan (People v. Morin) hold that premeditation and deliberation characterize a thought process undisturbed by hot blood. Though there is no minimum time, it must be long enough to afford a reasonable man time to subject the nature of his response a “second look”

Question 7

PA Degrees of Murder — Premeditation v. Deliberation

Answer 7

You can premeditate (think about before hand) without deliberating (weigh pros and cons), but you cannot deliberate without premeditating (it is encompassed).

Question 8

PA Degrees of Murder — Counterintuitive results of deliberate & premeditate?

Answer 8

Dad who constantly beats his son ends up killing him from a beating that caused internal hemorrhage = not first degree. ◊ Midgett v. State

Son who shoots terminal dad after promising not to let him suffer = First degree. State v. Forrest

Question 9

Common Law Manslaughter

Answer 9

“Unlawful killing of another human being WITHOUT malice aforethought.”

Voluntary manslaughter = intentional (think heat of passion)
Involuntary manslaughter = unintentional (negligent killing)

Question 10

Common Law Manslaughter — Rule of Provocation elements

Answer 10

1. There must have been adequate provocation
2. The killing must have been in the heat of passion
3. It must have been a sudden heat of passion—that is, the killing must have followed the provocation before there had been a reasonably opportunity for the passion to cool.
4. There must have been a causal connection between the provocation, the passion, and the fatal act.

Question 11

Common Law Manslaughter — Provocation: What constitutes “adequate” provocation?

Answer 11

Must be “calculated to inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than reason.”

Objective standard — the reasonable man.
We don’t care about peculiar frailties of mind.
Words alone are NOT adequate provocation (CL only)
…. but combined with conduct indicating present intention and ability to inflict bodily harm typically counts.

Question 12

Common Law Manslaughter — Provocation: Misdirected retaliation (wrong person)

Answer 12

Provocation doctrine may only be applied when the killing is done to the person that has done the provocation.

Question 13

MPC Manslaughter

Answer 13

210.3

Homicide = manslaughter when
(a) committed recklessly or
(b) committed under the influence of EXTREME MENTAL OR EMOTIONAL DISTURBANCE (EMED) for which there is reasonable explanation or excuse.

Question 14

MPC Manslaughter — EMED questions for fact finder

Answer 14

1. Did the defendant act under the influence of an extreme emotional disturbance? (subjective inquiry – assess solely from the defendant’s viewpoint).
   ® If yes, proceed to Q2
2. Is there a reasonable explanation or excuse for the extreme emotional disturbance? (objective-subjective inquiry)
   ® Asking - would a reasonable person have had an extreme emotional disturbance (NOT saying the killing was reasonable… but the EMED).
   VERY hard for a jury to apply (hard to separate the EMED from the killing).
   Determined from the viewpoint of a person in the actor’s situation under the circumstances he believes them to be.

Question 15

Manslaughter: Common Law’s Provocation v. MPC’s EMED

Answer 15

EMED is MUCH broader than the provocation doctrine (permits manslaughter instruction in larger number of circumstances)
□ Allows words alone
□ Standard allows for more “subjunctivization”
□ No cooling off rule (time implications)
® Does not have to be spontaneously undertaken. “rather, it may be that a significant mental trauma has affected a defendant’s mind for a substantial period of time, simmering in the unknowing subconscious and then inexplicably coming to the fore.”
□ No special provocation event needed
□ No misdirected retaliation rule (can work even if killed wrong person)

Question 16

Depraved Heart Murder

Answer 16

Common Law

Implied malice aforethought

“Utter disregard for the value of human life” “conscious disregard for life”
“A willingness to act not because one intends harm, but because one simply doesn’t care whether gracious harm results.”

Question 17

MPC’s “version” of Depraved Heart Murder

Answer 17

Accounts for the same type inside of it’s Murder definition in 210.2
(a) purposely or knowingly OR
(b) recklessly with EXTREME INDIFFERENCE TO THE VALUE OF HUMAN LIFE

Question 18

How does the MPC draw the line between reckless murder and reckless manslaughter?

Answer 18

If the recklessness is with “extreme indifference to the value of human life” = murder.

Question 19

Involuntary Manslaughter

Answer 19

Common Law

Manslaughter (“unintentional killing of another human being WITHOUT malice aforethought”) done unintentionally.

Homicide committed with criminal negligence (gross deviation from the standard of care a reasonable person would exercise in the actor’s situation)

Question 20

MPC Negligent Homicide

Answer 20

210.4

Negligent homicide when it is committed negligently.

(which according to 2.02 we know means that the actor should have been aware of the substantial and unjustifiable risk of death associated with his conduct but he is not)

Question 21

Felony Murder Rule — General Rule

Answer 21

Common Law

If death results from an acto’s conduct while he is committing or attempting to commit a felony, the actor is guilty of murder.
A felony + a killing = murder

Imposes liability for murder based on the underlying culpability associated with the felony, so separate proof of mens rea is not needed — malice aforethought is IMPLIED in.

In effect, the murder becomes a strict liability offense in this situation.

Question 22

Felony Murder Rule — Justifications

Answer 22

Optional allocation of resources (don’t have to examine mens rea separately).
Deterrence of doing felonies if you are going to get charged with murder…
Sends a message to denounce that taking of a life.
Minimization of the utility of perjury

Question 23

MPC’s version of Felony Murder Rule

Answer 23

Doesn’t have FMR per se, but

210.2(b)
includes (after depraved heart murder) that depraved heart murder (recklessness + indifference) is PRESUMED if the actor is envolved in the commission or attempt or fleeing of robbery, rape or deviate sexual intercourse by force or threat of force, burglary, kidnapping, or felonious escape.

significance = “presumption” of recklessness / indifference the defendant can rebut. Evidence of lack of mens rea can still be relevant under the MPC.

Question 24

Felony Murder Rule — Inherently Dangerous Felony

Answer 24

Limitation of FMR. Adopted in great majority of states.

FMR only applies to inherently dangerous felonies.

Facts of the Case Approach (majority) = considers the manner in which the felony was perpetrated in the case at bar.

In the Abstract Approach (minority) = looks at the statute for the predicate felony. Considered inherently dangerous if the felony as definiendo cannot be committed without creating a substantial risk that someone will be killed. (child abuse would not count because you can technically beat a child in a way that doesn’t kill them)

Mens Rea evidence is irrelevant because the malice aforethought is implied in.

Rationale:
- Deterrence only works related to inherently dangerous felonies where it is foreseeable someone might get killed. It is illogical to apply to felonies that are not inherently dangerous.
- Malice aforethought is implied in for FMR, which would make way more sense if someone is committing an inherently dangerous felony.

Question 25

Felony Murder Rule — Independent Felony/Merger Rule

Answer 25

FMR limitation.

FMR only applies when the predicate felony is independent of the homicide.

If the predicate felony, in the abstract, has an assaultive aspect, the felony merges with the homicide and the FM rules does NOT apply (even if it includes non-assaultive conduct as well).

Ask:
1. Was the felony an integral part of and included in fact with the homicide? (if not, no merger. FMR can apply.) (if yes, proceed to Q2).
2. Did the homicide result from conduct for an independent felonious purpose, opposed to a single course of conduct with a single purpose? (if yes, no merger FMR can apply. If no = merge No FMR).

Ex: the predicate felony cannot be “assault with a deadly weapon” -> the purpose of the felony was the assault that led to the death.
Contra. “armed robbery” = NO MERGE. Purpose of felony was different (get money).

Rationale:
We don’t want to use felonies that are inherent alongside the homicide to get around the mens rea element.

Question 26

Felony Murder Rule — Killings “in the Perpetration” or “in furtherance” of a felony

Answer 26

FMR Limitation

1. Agency Approach (majority)
   - FMR does not apply if the person who directly causes the death is a non-felon (State v. Sophophone).
2. Proximate Causation Approach (minority; MO)
   - A felon may be held responsible for a killing committed by a non-felon if the felon set in motion the acts which resulted in the victims death.

Question 27

Felony Murder Rule — Res Gestae Doctrine

Answer 27

FMR Limitation

FMR only applies to homicides occurring within the res gestae of the predicate felony (considering timing, distance, and causation)

Includes acts committed before, during, or after the happening of the principal occurrence, when those acts are so closely connected with the principal occurrence to basically become part of it.

Question: is the killing close enough to the underlying felony? Look at the homicidal conduct, NOT to the time of death.

Temporal and distance requirements generally satisfied if the predicate felony and homicide are part of “one continuous transaction.”

Is a limitation, but also could be an extension (ex: on the run for 4 days…)

Question 28

Capitol Murder — Furman v. Georgia 1972

Answer 28

Held death penalty was cruel and unusual because of the unguided discretion that surrounded in.
It was being distributed arbitrarily (and discriminatorily) by juries and was extremely infrequent (meaning it must be arbitrary and it must be cruel since it’s clearly unnecessary).

Question 29

Capitol Murder — Reactions to Furman

Answer 29

Most states changed their death penalty laws then to either (1) add new statutes to provide guidance (bifurcated trials, parties can introduce aggravating/mitigating factors, meaningful appellate review) OR (2) they eliminated discretion by creating mandatory death sentences for certain crimes (SCOTUS immediately renders this unconstitutional).

Question 30

Capitol Murder — MPC approach

Answer 30

Requires finding murder PLUS at least one aggravating factor:

1) D was in prison at the time
2) D had previous murder/violent felony conviction
3) D committed multiple murders at time
4) D knowingly created great risk to many
5) Murder was during robbery, rape, kidnap,…
6) Murder committed to avoid arrest
7) Murder for money
  8) Murder was especially heinous, atrocious

Question 31

Capitol Murder — Gregg v. Georgia

Answer 31

Issues: (1) is DP per se unconstitutional? no (2) may Georgia use it here (MPC model)? yes since they adopted aggravating factors and automatic appeal

Question 32

Capitol Murder — Process courts use to answer whether DP is unconstitutional (and framework for all 8th Amendment challenges).

Answer 32

1. What the the views of the American people currently?
2. Whether it is excessive — whether the punishment is consistent with “dignity of man”
   two prongs under this ^
   (a) the punishment must not involve the unnecessary and wanton infliction of pain
   (b) the punishment must not be grossly out of proportion to the severity of the crime.
3. Presume validity. Heavy burden on petitioner for SCOTUS to deem anything unconstitutional.

Question 33

Rape — Common Law

Answer 33

Forcible sexual intercourse by a male with a female, not his wife, without her consent.

Focus was on force and the extent women resisted. Generally had to resist “to the utmost” and the perpetrator had to have used the amount of force needed to overcome this resistance. (threats to use extreme force likely to cause serious injury = resistance not requires [no resistance is resistance to the utmost].

Question 34

Rape — Traditional Common Law Bias’

Answer 34

Only female victims. Only male perpetrators.
Marital immunity rule.
Victims sexual history admissible.
Corroboration rule (can’t be only victims testimony)
Cautionary “Hale” instruction = giving jury instructions about being super careful and skeptical of rape accusations.

Question 35

Rape — How much force is required? (list approaches)

Answer 35

1. Common Law
2. Traditional Approach
3. Forcible Compulsion
4. Reasonable Force
5. No Force
6. MPC

Question 36

Rape — How much force is required?: Common Law

Answer 36

Amount of force required to overcome the utmost resistance

Question 37

Rape — How much force is required?: Traditional Approach

Answer 37

Amount of physical force required to overcome victims resistance (unless victim prevented from resisting due to reasonable threat/fear).

Question 38

Rape — How much force is required?: Forcible Compulsion

Answer 38

Forcible compulsion can take the form of physical, moral, psychological, and/or intellectual force used to compel a person to engage in sexual intercourse against that person’s will.

Amount of force used to overcome solely verbal resistance is not enough.

Question 39

Rape — How much force is required?: Reasonable Force

Answer 39

Reasonable amount of force is a context based inquiry. “Reasonable resistance is that which is suitable under the circumstances.”

state v. King (voluntary intoxication)
The reasonable resistance of an unconscious person is extremely low

Question 40

Rape — How much force is required?: No Force

Answer 40

No more force is required than that inherent in the act of sexual penetration (MTS)

Question 41

Rape — How much force is required?: MPC

Answer 41

For Sexual Assault by Aggravated Force / Restraint 213.1

uses or explicit or implicit threats to use aggravated force or restraint AND this threat causes submission.

Question 42

Rape — Consent: MPC

Answer 42

213.0
Consent may be express or inferred from behavior (action and inaction) in the circumstances

Ineffective if person is incompetent or under the circumstances precluding the free exercise of consent.

Consent may be revoked or withdrawn at any time.

Question 43

Rape — Affirmative Consent

Answer 43

Permission to engage in sex must be affirmative and it must be given freely, but that permission may be inferred either from acts or statements reasonably viewed in light of the surrounding circumstances.

Permission is demonstrated when the evidence is sufficient to demonstrate that a reasonable person would have believed the alleged victim had affirmatively and freely given authorization to the act.

Question 44

Rape — Mens Rea: non-MPC Jurisdictions

Answer 44

Rape is typically a general intent crime requiring a morally blameworthy state of mind regarding consent.

Under CL approach to mistake of fact = good faith/reasonable mistakes will exculpate for general intent crimes (but this is a minority approach). Normally even reasonable mistakes of fact will not exculpate.

Question 45

Rape — Mens Rea: MPC

Answer 45

Most of MPC 213 requires recklessness, but some (Aggravated Physical Force 213.1) requires knowingly.

Doesn’t use general/specific intent definitions.

If the mistake negates the level of culpability beyond a reasonable doubt, conviction cannot be reached.

Question 46

Rape — Mens Rea: Statutory Rape

Answer 46

Most US jurisdictions treat sex with individual under the age of consent as a strict liability crime (Garnett)

MPC 213.8 requires men’s rea of recklessness.

Question 47

Larceny — Common Law

Answer 47

“the trespassory taking and carrying away of personal property of another with intent to steal”

Question 48

Larceny: Trespassory Taking

Answer 48

A wrongful taking without the consent of the rightful possessor — an offense against possession; interfering with their ability and right to possess the property.

If you rightfully obtain possession, no trespassory taking, no larceny.

Question 49

Larceny: Constructive Possession

Answer 49

A person is in constructive possession when, although they do not have actual possession, the person has the intent and capability to maintain control and dominion over the item.

Jewelry store handing over a ring to look at = still in constructive possession due to proximity.
Same with car dealerships and test driving, as long as they go with you.

State v. Jones
Payroll chick immediately notified jones of mistake and started the reversal process. This constituted constructive possession.

Question 50

Larceny: Custody

Answer 50

Custody means that you have the property under your control (doesn’t have to be physical) but in a limited way, for a limited purpose.
Still considered to be in the constructive possession of the rightful owner.

Question 51

Larceny: Bailee’s and Breaking Bulk

Answer 51

A bailee is said to be in possession of the package, but only has custody over the item inside the package.

Breaking bulk = legal fiction. A bailee who opens the bale and takes any of its contents is guilty of trespassory taking since the item inside of the bale was in constructive possession of the bailor until he opened it.

Question 52

Larceny: Employees

Answer 52

Employees are in custody only of their employer’s property as long as it is used in furtherance of the employment relationship.

Once the employee exceeds the limits of employment with the property, you have possession (and have committed larceny).

Question 53

Larceny: Aiding the Taking

Answer 53

If the owner actively aids in the actus reus, it cannot be trespassory taking (they consented implicitly).

Slight but significant difference between allowing an opportunity to steal (trap) v. actively helping.

Question 54

Larceny: Carrying Away element (asportation)

Answer 54

The slightest “carrying away” movement suffices. Still has to be a carrying away movement though.

Dude who opens box with intent to steal what’s inside = no carrying away
Picks up thing inside box = carrying away.

NOT INCLUDED IN MPC THEFT

Question 55

Larceny: intent to steal element

Answer 55

Intent must be to permanently deprive the owner of his property.

If you can prove somehow that you were planning to return it all along, can’t be intent.

Question 56

Larceny: intent element — what if you initially intend to barrow, but then later decide to keep it?

Answer 56

Continuing Trespass (CL legal fiction)

Although you didn’t have intent to steal when you took it, CL legal fiction says that the initial trespass continues as long as the wrongdoer remains in possession of the property.

If anytime during that possession you decide to steal/keep it will satisfy intent to steal.

Question 57

Larceny: intent element — what if the actor believed the property was rightfully theirs?

Answer 57

Claim of Right doctrine

If someone takes property when they truly believe it is theirs, even if it is unreasonable belief, no intent = no larceny.

Also in MPC 223.1

Question 58

“Larceny by Trick”

Answer 58

Larceny that in order to gain possession, D unlawfully uses fraud or trickery.

Where a defendant, at the time of acquiring property, knows that the use he communicates to the owner is not the true use to which the property will be put once in his hands.
Lying to get possession.

Question 59

Robbery: common law

Answer 59

Larceny by using violence or intimidation.

Need all of the elements of larceny + violence/intimidation.

Question 60

Robbery: MPC

Answer 60

222.1

Guilty of robbery if in the course of theft, he inflicts or threatens bodily harm, or commits/threatens to immediately commit a felony.

Must be “in the course of committing theft” meaning it occurs in an attempt to commit theft or in the flight after the attempt/commission.

Question 61

False Pretenses: Statutory Traditional Approach - Elements

Answer 61

1. False representation of existing fact
2. Made with intent too defraud the property’s owner and
3. The property owner was defrauded (gave up property in reliance on false representation).

Question 62

False pretenses: what constitutions a false representation?

Answer 62

Must be a false representation of existing fact.
Can be written, verbal, or conduct based.

No disclosure alone is generally insufficient (unless duty to disclose)

Question 63

False Pretense v. Larceny by Trick

Answer 63

Larceny by trick takes possession only.

False pretenses involves the transfer of both possession AND title.

Question 64

False Pretenses: how do you know if title passed?

Answer 64

Q: Did the person intend to give/part with the property permanently? (if yes, assume title passed).

Special purpose
If the property is given for a special purpose the title doesn’t pass until that special purpose is satisfied.
(Ex: give lawyer money to pay settlement. Lawyer pockets and doesn’t pay settlement. Title didn’t pass)

Question 65

False Pretenses: Must reliance on false representation be the sole reason for the victim’s decision to part with property?

Answer 65

No — only needs to be materially relied upon. Can count even if the victim relied on other things as well (People v. Whight)

Question 66

MPC’s version of False Pretenses

Answer 66

223.3 Theft by Deception

Guilty if purposely
(1) creatures false impression as to law, value, intention, or other state of mind or
(2) prevents another from acquiring info which would affect judgment of a transaction or
(3) fails to correct false impression which the deceiver previously created or reinforced or which the deceiver knows to be influencing another to whom he stands in fiduciary/confidential relationship or
(4) fails to disclose a known lien, adverse claim, or other legal impediment to the enjoyment of property.

Question 67

MPC Theft by Deception v. Traditional False Pretenses

Answer 67

MPC broader.

e.g. value of property, reinforcing false impression counts, etc.

Covers false representations of the FUTURE
Covers omissions
Covers failure to correct

Question 68

Embezzlement: definition + elements

Answer 68

Statutory offense created to fill gaps in larceny law. When someone already possesses the property, and then misappropriates it.

No universal definition, but at a minimum involves:
1. the defendant obtained personal property of another in a lawful manner, and
2. The defendant thereafter fraudulently converted the property
(sometimes 3rd requirement that the D came into lawful possession as a result of entrustment by the property owner).

Question 69

Embezzlement: Bailee example

Answer 69

Bailee in lawful possession of the package, sells/gifts the package without breaking bulk. Can’t be larceny…

Question 70

MPC’s Embezzlement

Answer 70

223.2 Theft by Unlawful Taking or Disposition (covers embezzlement)

(1) Movable Property. A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof.
(2) Immovable property. A person is guilty of theft if he unlawfully transfers immovable property of another or any interest therein with purpose to benefit himself or another not entitled thereto.