CRIMINAL LAW

Practice Packet

Disclaimer: All questions and answer explanations/model answers contained herein are compiled from various sources, so they are not professor specific. Model answers should be used primarily for issue spotting. If the statements of law in the answers are different from the law stated by your professors, use the law provided by your professor. Additionally, the format of the model answers may not be the same as expected by your professors. (i.e. IRAC, CRAC, etc.) Always draft your answers using the guidelines set forth by your professors.

CRIMINAL LAW – MULTIPLE CHOICE QUESTIONS QUESTION 1: Defendant was driving his automobile at a legal speed in a residential zone. A child unexpectedly darted out in front of him and, with no opportunity to avoid it, Defendant struck and killed the child. It turns out that Defendant’s driver’s license had expired three months earlier but that Defendant had neglected to check when it was due to expire. Driving without a valid driver’s license is a misdemeanor under a statute in this particular jurisdiction. Is Defendant guilty of manslaughter?

A. Yes, because of the application of the misdemeanor manslaughter rule.

B. Yes, because driving with an expired license violated a statute designed to protect life constituted criminal negligence.

C. No, because Defendant was not criminally negligent, and the violation of the statute was

not the proximate cause of the child’s death.

D. No, because Defendant had no criminal intent. QUESTION 2: Joe is attempting to join the ALA fraternity at Calvert College and is going through a week of "testing" by the fraternity brothers. All those wishing to join the fraternity are required to do whatever the fraternity brothers ask. One night, the fraternity brothers went to Joe's bedroom and ordered him to go to a fountain in the center of town. Once there, they ordered him to drink a significant amount of alcohol. Reluctantly, Joe drank the entire bottle until he became intoxicated. A Calvert City Statute states "any person who appears in any public place while intoxicated is guilty of a crime." Did Joe violate this statute? A) Yes, because he voluntarily drank the alcohol and became intoxicated in public. B) Yes, because he voluntarily joined the fraternity. C) No, because the fraternity brothers ordered him to drink the alcohol. D) No, because he did not voluntarily appear in public. QUESTION 3: Sam was playing with a pistol he reasonably believed was not loaded. He purposely pointed it at Bob and pulled the trigger. To Sam's great surprise, the pistol discharged, and the bullet struck and killed Bob. Sam is charged with first-degree murder, which is statutorily defined as "the unlawful killing of another person purposefully or knowingly." Did Sam have the requisite state of mind to be found guilty under this statute? A) Yes, because his mistake as to whether the pistol was loaded does not negate the requisite mens rea. B) Yes, because he purposely pointed the gun and pulled the trigger. C) No, because he did not commit the requisite actus reus. D) No, because he did not intend to kill Bob.

QUESTION 4: Vance had cheated Dodd in a card game. Angered, Dodd set out for Vance's house with the intention of shooting him. Just as he was about to step onto Vance's property, Dodd was arrested by a police officer who noticed that Dodd was carrying a revolver. A statute in the jurisdiction makes it a crime to "enter the property of another with the intent to commit any crime of violence thereon." If charged with violating the statute, Dodd should be found A) not guilty, because Dodd did not have the requisite mens rea. B) not guilty, because to convict him would be to punish him simply for having a guilty mind. C) guilty, because he was close enough to entering the property and he had the necessary state of mind. D) guilty, because this is a statute designed to protect the public from violence, and Dodd was dangerous. QUESTION 5: Bella was three years old. Anna, aged 21, was hired by Bella's parents to care for Bella as a live-in babysitter. Anna took Bella to the Surf City beach. She knew Bella could not swim, so she put Bella's inflatable swim-ring firmly around her waist and put her at the water's edge to play in the sand. Anna then went a few yards away to the lifeguard stand and began flirting with Julian, a lifeguard employed by Surf City to ensure the safety of the beachgoers and carry out rescues if necessary. A large wave struck Bella and dragged her into the water. A number of nearby beachgoers saw Bella tip over in her swim-ring but did nothing about it. Anna and Julian also saw Bella tip over, but they were so intent on their flirting that they took no action to rescue Bella. Bella drowned. Which of the following individuals can be found guilty of a crime for Bella's death?

I. The nearby beachgoers who failed to act. II. Anna, who was employed to care for Bella and placed Bella in the perilous

situation.

III. Julian, who was employed to ensure safety and rescue beachgoers if necessary.

IV. Bella's parents, who entrusted Bella to Anna's care.

A) III. only. B) II. and III. C) II. and IV. D) I., II., and III. QUESTIONS 6 AND 7 ARE BASED ON THE FOLLOWING FACTS: On Sunday morning at about 2:00 a.m., Kip was collecting cans and bottles in an alley at the rear of Bill's house. He noticed a partly open window at the rear of Bill's house and his curiosity caused him to look inside. He saw some power tools. He raised the window and entered so he could steal several of the tools. Such a theft would constitute grand larceny. Under the applicable statute, burglary is a crime that requires the actor to have the specific intent to steal at the moment of breaking and entering.

QUESTION 6: Did Kip have the requisite mental state for the crime of burglary? A) Yes, because at the time he entered he intended to steal the tools. B) Yes, because he knew Bill had not expressly given him permission to enter. C) No, because he did not go to Bill's house intending to steal the tools. D) No, because he did not form the intent until he actually saw the tools. QUESTION 7: Assume these additional facts. The area where the tools were stored was in a dark corner of the room. Kip ignited his cigarette lighter to better see the tools. Concentrating on the tools, he inadvertently knocked over a jar of paint thinner, which shattered and spilled its contents when it hit the floor. This startled Kip, and he dropped his cigarette lighter into the puddle of thinner, which ignited. The fire spread rapidly, ultimately destroying the house. Under the applicable statute, arson requires specific intent to burn a dwelling. Did Kip have the requisite mental state for the crime of arson?

A) Yes, because the fire started while he was attempting to commit a felony. B) Yes, because his intent to start the fire can be inferred from his intent to steal the power tools. C) No, because the fire was accidentally started. D) No, because he acted reasonably in trying to see better in a dark corner of the room. QUESTIONS 8 AND 9 ARE BASED ON THE FOLLOWING FACTS: Bill and Chuck hated Vic and agreed to start a fight with him and kill him, if the opportunity arose. Bill and Chuck met Vic in the street outside a bar and began to push him around, Ray, Sam, and Tom, who also hated Vic, stopped to watch. Ray threw Bill a knife. Sam told Bill, “Kill him.” Tom, who made no move and said nothing, hoped that Bill would kill Vic with the knife. Chuck held Vic while Bill stabbed and killed him. QUESTION 8: On a charge of murdering Vic, Sam is

A. not guilty, because his words did not create a “clear and present danger” not already existing. B. not guilty, because mere presence and oral encouragement, whether he has the requisite intent,

will not make him guilty as an accomplice. C. guilty, because with the intent to have Bill kill Vic, he shouted encouragement to Bill. D. guilty, because he aided and abetted the murder through his mere presence plus his intent to see

Vic killed. QUESTION 9: On a charge of murdering Vic, Tom is

A. not guilty, because mere presence, coupled with silent approval and intent, is not sufficient. B. not guilty, because he did not tell Bill ahead of time that he hoped Bill would murder Vic. C. guilty, because he had a duty to stop the killing and made no attempt to do so. D. guilty, because he was present and approved of what occurred.

QUESTION 10 IS BASED ON THE FOLLOWING: VEHICULAR MANSLAUGHTER. Whoever in the course of driving a motor vehicle as defined in the Vehicle Code is criminally negligent in driving such vehicle or omits to do anything that is his duty to do and shows a wanton and reckless disregard for the safety of other persons and as a result of such act or omission causes the death of a human being is guilty of vehicular manslaughter. Vehicular manslaughter is punishable by a sentence of not more than 10 years in the state prison or not more than one year in the county jail. QUESTION 10: Defendant, driving along at a reasonable rate of speed, was distracted by a child carrying a silver balloon. He went through a boulevard stop light and killed a pedestrian. He is charged with vehicular manslaughter. Of the following definitions of criminal negligence, which is the most favorable to the Defendant?

A. Criminal negligence is something more than the slight negligence necessary to support a civil

action for damages. It means disregard for the consequences of the act and indifference to the rights of others.

B. Any person who drives a motor vehicle should realize the danger to others. If he fails to respond to surrounding circumstances, he is criminally negligent. Criminal negligence involves reckless disregard for the lives or safety of others.

C. To find the defendant guilty of criminal negligence, the jury must find as a fact that he intentionally did something he should not have done or intentionally failed to do something he should have done under circumstances that demonstrate a conscious disregard of a known danger that his conduct would produce the result which it did produce.

D. Criminal negligence is something more than the slight negligence usually required for tort liability. It is something less than the wanton misconduct required for civil liability under the guest statute. It is, of course, conduct that demonstrates something less that the abandoned and malignant heart required for murder.

QUESTION 11: In which of the following situations is defendant most likely to be convicted of common-law murder?

A. During an argument in a bar, Norris punches Defendant. Defendant, mistakenly believing that Norris is about to stab him, shoots and kills Norris.

B. While committing a robbery of a liquor store, Defendant accidentally drops his revolver, which goes off. The bullet strikes and kills Johnson, a customer in the store.

C. While hunting deer, Defendant notices something moving in the bushes. Believing it to be a deer, Defendant fires into the bushes. The bullet strikes and kills Griggs, another hunter.

D. In celebration of the Fourth of July, Defendant discharges a pistol within the city limits in violation of a city ordinance. The bullet ricochets off the streets and strikes and kills Abbott.

QUESTION 12: Bart was delusional and for months thought actively about killing his sister. He carefully designed a complex and devious plan and visualized each and every detail, including the layout of the building where the crime would take place. Up to this point, had Bart committed a crime?

(A) Yes, because he affirmatively planned a crime. (B) Yes, because he had the requisite mens rea. (C) No, because there was no actus reus. (D) No, because he was delusional.

QUESTION 13: Andrew habitually slept with a loaded pistol under his pillow because he feared for his safety if someone broke into his house at night. He knew that he had a propensity to sleepwalk and that he occasionally committed violent acts while sleepwalking. One night while he was sleepwalking, he aimed the pistol at his wife, pulled the trigger, and killed her. The noise of the discharging pistol awoke him.

Under these facts, can Andrew be found guilty of killing his wife?

(A) Yes, because he will be deemed to have acted voluntarily in creating the conditions that

led to the shooting his wife. (B) Yes, because he will be deemed to have acted intentionally. (C) No, because he acted involuntarily in shooting his wife. (D) No, because he acted recklessly in shooting his wife.

QUESTION 14: Jay intended to kill Bertha by planting a bomb in Bertha’s office. He did not intend harm to anyone else. Bertha entered her office accompanied by Charlie, when the bomb exploded as planned. Both Bertha and Charlie died.

If Jay were found, guilty of causing the death of Charlie, it would be because

(A) He acted knowingly. (B) He acted recklessly. (C) He acted intentionally. (D) He acted negligently.

QUESTION 15: Jean was playing with a pistol owned by Karen. Jean playfully pointed it at Karen. Jean was aware that the pistol might be loaded but she did not inspect it to find out. Karen believed the pistol was not loaded but did not inspect it to find out. Karen believed the pistol was not loaded and challenged Jean to pull the trigger. Jean, assuming that Karen would not have challenged her to pull the trigger if the pistol were loaded, purposely pointed it at Karen and pulled the trigger. To Jean’s great surprise, the pistol discharged, and the bullet struck and killed Karen. Jean is charged with murder under a statute that defines murder as the “reckless killing of another person.”

Can Jean be convicted under this statute?

(A) No, because Karen challenged Jean to pull the trigger. (B) No, because Jean did not specifically intend to kill Karen. (C) Yes, because Jean intended to point and discharge the pistol. (D) Yes, because Jean realized the risk and nevertheless pulled the trigger.

QUESTION 16: Alice shoots at Betty, intending to kill her, but her aim is bad and she hits Carla instead, killing her. She is charged with first degree murder, which is statutorily defined as “the unlawful killing of a person purposefully or knowingly.” If Alice is charged with violating this statute, would she be convicted?

(A) No, because her intent was to kill Betty, not Carla. (B) No, because she was negligent in firing the gun. (C) Yes, because she intended to kill a person. (D) Yes, because she was negligent in firing the gun.

QUESTION 17: Willard was the breeder and owner of vicious guard dogs. He trained his dogs to attack strangers at night. He often sold and leased his canine animals to various businesses and factory owners who used the guard dogs to frighten away intruders from entering their premises at night. One evening

Willard was in the backyard of his home training three of his guard dogs. The backyard was enclosed with a chain-link fence and latched gate that prevented the dogs from running out. After the training session, Willard opened the gate and permitted the dogs to run loose in his front yard. Minutes later, Monkman was walking along the sidewalk in front of Willard’s house when he was attacked by one of the dogs. Monkman sustained severe injuries and died as a result of the attack.

Willard should be found guilty of

(A) murder. (B) involuntary manslaughter. (C) voluntary manslaughter. (D) reckless endangerment.

QUESTION 18: Betty had a brain disorder in the portion of her brain that regulated consciousness. Not knowing about the disorder, Betty drove two of her friends home from work because the drive was quite short. While driving, she lost consciousness and slammed the car into a tree. Both friends were killed. Can Betty be held criminally liable for the deaths of her friends?

(A) No, because Betty was only offering assistance in driving the others and the law does not punish “good Samaritans.”

(B) No, because the law only punishes people for voluntary acts and Betty did not act voluntarily.

(C) Yes, because Betty committed a voluntary act when she agreed to drive passengers. (D) Yes, because Betty knew of her condition and voluntarily drove the car.

QUESTION 19: Bill drove a large truck as part of his tree removal business. For years, he parked his truck along the driveway in front of his home without incident. He did this because he never considered the situation to be risky, even though the overhead power lines fall within a few feet of the top of his truck. While climbing on his truck, a neighborhood child was injured by the overhead power lines.

Putting aside any issues of civil liability, can Bill be found guilty under a statute criminalizing “reckless behavior on one’s property which results in an injury to others”?

(A) Yes, because Bill should have seen the risks inherent in parking the truck under the

power lines. (B) Yes, because his behavior caused a substantial, unjustifiable risk. (C) No, because although his behavior caused an unjustifiable risk, Bill was not aware of the

risk. (D) No, because it is not clear that Bill’s actions caused the risk to the child.

QUESTION 20: Holly often visited her ailing uncle in prison. She was having a drink one day and told the bartender at the local tavern that on Sundays she visited the penitentiary. The bartender asked if, while she was visiting, she would also visit the bartender’s uncle and give him the weather report. Holly thought this was a bit odd, but the bartender assured her that his uncle used to travel a lot and just liked to hear about the weather in cities he knew. The bartender promised to provide her the weather report every week if she would pass it on to his uncle. The weather reports Holly later conveyed seemed to make the bartender’s uncle very happy. Holly was later charged with “knowingly assisting organized crime.” The government asserts that the weather reports were actually coded messages about the activities of a local crime syndicate. Holly claimed she did not know anything about any criminal activity, and the prosecution does not challenge her claim.

If Holly truly did not know about the secret nature of the messages, could she be convicted? (A) Yes, because she knew she was delivering information, and that information in fact

assisted the syndicate. (B) Yes, because a reasonable person would have known that these messages were not mere

weather reports. (C) No, because Holly did not in fact know that the weather reports were assisting the

criminal activity. (D) No, because Holly should only be found guilty if she intended to assist the syndicate.

QUESTION 21: Dobbs, while intoxicated, drove his car through a playground crowded with children just

to watch the children run to get out of the way. His car struck one of the children, killing her instantly.

Which of the following is the best theory for finding Dobbs guilty of murder?

(A) Transferred intent (B) Felony murder with assault with a deadly weapon as the underlying felony (C) Intentional killing, since he knew that the children were there and he deliberately drove

his car at them (D) Commission of an act highly dangerous to life, without an intent to kill but with disregard

of the consequences Questions 22-23 are based on the following fact situation. Dunbar and Balcom went into a drugstore, where Dunbar reached into the cash register and took out $200.00. Stone, the owner of the store, came out of the back room, saw what had happened, and told Dunbar to put the money back. Balcom took a revolver from under his coat and shot and killed Stone. Dunbar claims that Stone owed her $200.00 and that she went to the drugstore to try to collect the debt. She said that she asked Balcom to come along just in case Stone made trouble but that she did not plan on using any force and did not know that Balcom was armed. QUESTION 22: If Dunbar is prosecuted for murder on the basis of felony murder and the jury believes her

claim, she should be found

(A) guilty, because her companion, Balcom, committed a homicide in the course of a felony. (B) guilty, because her taking Balcom with her to the store created the risk of death that

occurred during the commission of a felony. (C) not guilty, because she did not know that Balcom was armed and thus did not have the

required mental state for felony murder. (D) not guilty, because she believed she was entitled to the money and thus did not intend to

steal. QUESTION 23: If Dunbar is prosecuted for murder on the basis of being an accessory to Balcom in committing a murder and the jury believes her claim, she should be found

(A) guilty, because in firing the shot Balcom was trying to help her. (B) guilty, because she and Balcom were acting in concert in a dangerous undertaking. (C) not guilty, because she had no idea that Balcom was armed and she did not plan to use

force. (D) not guilty, because she was exercising self-help and did not intend to steal.

QUESTION 24: Husband and Wife were chronic alcoholics. One afternoon Husband drank a fifth of Jack Daniels bourbon and was stone drunk when Wife returned home from work. When Wife saw Husband’s condition, she got very angry because they had planned to go out to dinner and celebrate their 10th

anniversary. While Husband was passed out on the living room couch, Wife decided to fix herself a martini, a cocktail consisting of gin and a twist of lemon. After drinking two martinis, Wife became extremely inebriated. A short while later, Wife began preparing a third martini and tried to slice a lemon for the drink. As she did so, the knife slipped and she severely cut her hand. With blood gushing from the wound, Wife called to Husband to help her. He momentarily awoke, stood up, but fell back on the couch. He failed to render any assistance, and Wife bled to death. If Husband is subsequently charged with manslaughter, he will be found

A. guilty, because he owed wife a duty to assist her. B. guilty, because criminal negligent conduct cannot be negated by voluntary intoxication. C. not guilty, because Wife caused her own injury. D. not guilty, if he was physically unable to assist her.

QUESTION 25: The Anglo-American criminal law is founded upon certain basic premises which have been more or less strictly observed by courts and legislatures when formulating the substantive laws of crimes. These basic premises concern the requirements of (1) act, (2) mental state, (3) concurrence, (4) harm, (5) causation, (6) punishment, and (7) legality. The first of these basic premises concerns the requirement of an act. As a general rule, it is commonly said that conduct, to be criminal, must consist of something more than a mere “bad state of mind.” With regard to the requirement of an act, in which of the following cases would the defendant, if charged with criminal homicide, most likely be acquitted because there was no act?

(A) Aaron was a chronic sleepwalker. On Monday, Aaron got into a violent argument with his next-door neighbor, Sidney. The next night, while he was sleep, Aaron left his home and walked to Sydney’s house. He entered the front door which was unlocked and ascended the stairs to Sydney’s bedroom. While still sleepwalking, Aaron went inside and strangled Sydney to death.

(B) Bernie suffered from an incurable malignant brain tumor. One night he stabbed his roommate, Reggie, to death. Bernie later stated that he could remember the occurrence clearly. A physician testified that Bernie’s brain tumor could at times deprive him of his ability to control his movements.

(C) Cassandra was an epileptic. As she was driving to work one morning, she had an epileptic seizure. As a result, she lost control of her vehicle which went through a red light and struck a group of school children who were crossing the street. Two young girls were killed in the accident.

(D) Dozer, a drug addict, injected himself with a speedball, containing a mixture of heroin and cocaine. A few seconds later, Dozer began to hallucinate. Believing that he was a rabid dog, Dozer attacked his girlfriend, Giselle, and bit off her nose and ears. Giselle dies from her wounds.

QUESTION 26: Miracle Pharmaceutical Company manufactures RESIST, a drug used in the treatment of AIDS. RESIST has proven effective in suppressing the virus so that persons infected with HIV are able to live longer. Due to a production error over 1,000 bottles of RESIST were manufactured with a 50% deficiency in its advertised potency level. When Mercury Morris, Miracle’s president, learned of this situation, he authorized the defective bottles to be sold because he didn’t want to lose any money on the existing contracts with his retail customers. Rock Stone was an individual infected with the AIDS virus. He started taking RESIST after it had been prescribed by his physician. Rock purchased three bottles of RESIST with the reduced potency level. Six months later, Rock died from the AIDS virus. Subsequently it was determined that if Rock had taken RESIST at its normal potency level, he would have lived at least three months longer. RESIST, however, would not have prevented Rock’s eventual death from the AIDS virus. It simply would have prolonged his life.

Which of the following BEST states Mercury Morris’ liability for Stone’s death?

(A) He should be held strictly liable for authorizing the sale of RESIST in its defective condition.

(B) He should be held liable for fraud because he had knowledge of the drug’s reduced potency level.

(C) He should be found guilty of either murder or manslaughter for hastening Stone’s death. (D) He should not be found guilty of either murder or manslaughter because Stone’s death

was proximately cause by the AIDS virus and not the ingestion of RESIST. QUESTION 27 Which of the following is most likely to be found to be a strict liability offense?

A. A city ordinance providing for a fine of not more than $200 for shoplifting B. A federal statute making it a felony to possess heroin C. A state statute making it a felony to fail to register a firearm D. A state statute making the sale of adulterated milk a misdemeanor

QUESTION 28 Dan was an alcoholic who frequently experienced auditory hallucinations that commanded him to engage in bizarre and sometimes violent behavior. He generally obeyed their commands. The hallucinations appeared more frequently when he was intoxicated, but he sometimes experienced them when he had not been drinking. After Dan had been drinking continuously for a three day period, an elderly woman began to reproach him about his drunken condition, slapping him on the face and shoulders as she did so. Dan believed that he was being unmercifully attacked and heard the hallucinatory voice telling him to strangle his assailant. He did so, and she died. If Dan is charged with second degree murder, his best chance of acquittal would be to rely on a defense of

A. intoxication B. lack of malice aforethought C. self-defense D. insanity

CRIMINAL LAW – MULTIPLE CHOICE ANSWERS QUESTION 1: C is the best response because it correctly identifies that Defendant will not be found guilty and it cites the central reason why. The key here is that there’s no relation between the licensing violation and the death. Apart from that, these facts indicate that the Defendant did nothing wrong—these facts indicate that it was the child’s fault that he got run over, since the facts state that the child was killed before the Defendant could prevent it. Since the Defendant was not even negligent, he couldn’t be liable. QUESTION 2: A. This question asks what is a voluntary actus reus. A is correct because even though he drank the alcohol reluctantly, he voluntarily had acquiesced to the requirements of the “testing” by the fraternity brothers. QUESTION 3: D. This is correct because John lacked the purposefulness (i.e., desire) to kill required by the statute. QUESTION 4: B is the best answer because it correctly states that, if convicted, Dodd would be punished simply for having a guilty mind, when the statute requires an act (entering the property of another). A is incorrect because the facts explicitly state Dodd did have the requisite mens rea, intent. C is incorrect because there is no provision in the statute for being “close enough” to the property of another. This option is a distractor that might be attractive because it was evident Dodd was about to commit a crime under the statute. D is also distractor or “foil,” as it focuses on (probably accurate) public policy goals, though those are not explicitly stated in the fact pattern, and would not negate the mens rea and actus reus requirements.

QUESTION 5: B. Both Julian and Anna, because they had the duty to act. Anna, because she had the contractual duty arising from her employment, and because she is the one who put Bella in the perilous situation. Julian, because of the contractual duty arising from his employment. QUESTION 6: A. This is the correct answer because, at the time Kip raised the window in order to enter Bill’s house, Kip had the intent to steal the tools. QUESTION 7: C. This is the correct answer because, under the statute, Kip must have had the specific intent of starting the fire. Because the fire started accidentally, albeit through Kip’s negligence, the requisite mens rea is missing. QUESTION 8: C is the best response because it arrives at the correct result. One is liable for a crime, as an accomplice, if he procures, counsels, or commands the commission of a felony. Naturally this would require that he intend that the felony be committed which can be shown when Sam said, “Kill him.” A is incorrect because the “Clear and present danger” test is used to determine the validity of a law designed to forbid advocacy of unlawful conduct; B is too broad; and D is incorrect because mere presence is not enough. QUESTION 9: A is the best response because it arrives at the correct result and identifies the reason why Tom will be acquitted. All Tom did was hope that Vic would be killed which is Mens rea only; C is wrong law because there is no general duty to aid others. B is too broad and too narrow; if he encouraged at the time he would be guilty; D is wrong because Tom needs to do something, no actus reus. QUESTION 10: C is the best response because it introduces the strongest subjective element into the definition of criminal negligence. The key here is that the question is asking the most favorable definition for the defendant, not the most reasonable definition. The way to determine this is to identify the response that creates the most difficult standard to meet, since that’s the definition under which the Defendant will most likely be exonerated. By stating that criminal negligence requires that the Defendant intentionally do something he shouldn’t have done or intentionally failing to do something he should have done, indicating a conscious disregard of a known danger. Although Defendant’s behavior was negligent, he probably did not disregard a known danger. A is not the best answer because Defendant disregarded the consequences of not watching where he was going; B is not favorable to Defendant because he failed to respond to surrounding circumstances (the stop light); D is not the best answer because Defendant would be found guilty since Defendant’s conduct probably constitutes gross negligence. QUESTION 11: B is the best response where Defendant is most likely guilty of murder. Murder is an unlawful killing with malice aforethought. Malice is satisfied by either intent to kill or do serious bodily injury, depraved heart, or felony murder. The most applicable category here is felony murder. Felony murder is murder committed during the course of a dangerous felony, even though there is not intent to kill or cause serious bodily harm. Armed robbery is a classic dangerous felony. Here, Defendant killed Johnson while committing a robbery. A is not the best answer because Defendant would be guilty of manslaughter under the imperfect self defense doctrine (Defendant must be aggressor or honestly but unreasonably believes deadly force was necessary.) C is incorrect because although Defendant was negligent, there was no depraved heart murder (extremely negligent conduct which a reasonable man would realize creates a very high degree of risk to human life and which results in death. D is wrong because Defendant’s act is not serious enough to be characterized as common law murder. Violation of a city ordinance is usually a misdemeanor not a felony so no felony murder. No depraved heart because Defendant was aiming at the street and the bullet ricocheted. Question 12: C is correct. This question asks about the difference between attempting a crime and merely thinking about committing one. There was no actus reus, therefore, no crime.

Question 13: A is correct. The fact that Andrew kept a loaded pistol knowing he was a sleepwalker who committed violent acts while sleepwalking equates the shooting to a voluntary act, which suffices for criminal homicide at some level. Question 14: B is correct. Although Jay did not intend to kill the others, he was aware of the risk and chose nevertheless to plant the bomb; this constitutes reckless conduct, which equates to specific intent under the circumstances. Question 15: D is correct. This is correct because Jean recognized the risk that the pistol might be loaded and proceeded to pull the trigger. This equates to “recklessness,” which is all the statute requires. Question 16: C is correct. This is correct because Alice intended to kill a person. The doctrine of transferred intent is the operative concept here. Question 17: A is correct. According to LaFave, “extremely negligent conduct, which creates what a reasonable person would realize to be not only an unjustifiable but also a very high degree of risk of death or serious bodily injury to another –though unaccompanied by any intent to kill or do serious bodily injury– and which actually causes the death of another” constitutes “depraved-heart” murder. Since Willard had trained his guard dogs to attack at night and then opened the gate to let them run loose, he will be criminally responsible for the murder of Monkman. Such conduct on Willard’s part is more extreme than the gross or criminal negligence standard sufficient for involuntary manslaughter. Willard will be liable on the theory of depraved heart murder. Question 18: B is correct. The law only punishes those who act consciously and voluntarily. Because the cause of the accident was the unknown brain disorder, Betty will not be found guilty of any crime. Although offering to drive her friends was a conscious and voluntary act, the specific cause of the accident was her disorder, not her offer to drive. Question 19: C is correct. Most jurisdictions require that the defendant must have been personally aware of the risk involved in order to be convicted of criminal recklessness. This subjective requirement is more stringent than the usual tort standard, which speaks of only a substantial deviation from the standard of care. In addition, the statute here does not adopt a negligence standard. Question 20: C is correct. In proving the mental state of knowledge, the key issue is whether the defendant herself knew the true nature of her activity. The issue is not whether a reasonable person would have known the activity was criminal (an objective standard) because knowledge requires a subjective determination. Note that the statute requires a showing of knowledge, not intent. Further, the government did not contest Holly’s claim that she did not know of the criminal activities. Question 21: D is the best answer because it most closely mirrors the facts and offers a basis on which Dobbs could be found guilty of murder. The key here is that Dobbs had no intent to kill or cause a serious injury. Note that the question asks for the best theory for convicting Dobbs. That means the best option will be the one that is most closely related to the facts, and legally correct. Note also that this means one of these options will result in Dobb’s conviction and the other three won’t. Murder is the unlawful killing with malice aforethought. Malice aforethought required either intent to kill or do serious bodily injury, felony murder, or depraved heart murder. Depraved heart murder occurs where Defendant engages in extremely negligent conduct, which a reasonable man would realize creates a very high degree of risk to human life, and which results in death. Option D, with its language “without intent to kill but with disregard of the consequences” coupled with an act highly dangerous to life, essentially reflects this rule. The key is that answer D recognizes that murder does not require intent. That’s important here because Dobbs clearly didn’t intend to kill the children, and probably didn’t even know death was likely to result, so he couldn’t be liable for any intent related crime. Since D recognizes this, and provides a theoretical basis on which Dobbs could be convicted of murder, it’s the best response. A is incorrect because it misapplies the doctrine of transferred intent. B is incorrect because the felony is not sufficiently “independent” from homicide to be covered by the felony murder rule. The felony murder rule is where a killing is committed during the course of a dangerous felony (or an attempt), the homicide is considered first degree murder, even though there is no intent to kill or cause great bodily

harm. Such felonies typically include rape, kidnapping, mayhem, arson, robbery, and burglary. The kind of conduct involved in an assault with a deadly weapon is the kind of personal violence that kills. In fact, assault with a deadly weapon would itself require the intent to do serious bodily harm, or to kill, so the “independence” required by the felony murder rule would be lacking. C is incorrect because the reasoning it states is insufficient to convict Dobbs of intentional killing. No requisite intent. Question 22: D is the correct response because it correctly identifies the central reason Dunbar will be acquitted: she had no intent to steal. Felony murder must be committed during the course of a dangerous felony. Here, there is no felony. Question 23: C is the best response because it arrives at the correct result and identifies the correct basis on which Dunbar will be acquitted. The key here is that accomplice liability requires the intent that the crime be committed. That element is missing here. Dunbar did not procure, counsel or command Balcom to kill Stone. A is incorrect because it focuses on Balcom’s state of mind; B is incorrect because there is no dangerous undertaking; D is incorrect because it does not focus on the intent for murder, which will acquit Dunbar. Question 24: D is correct because if Husband is physically unable to assist wife, then he will not be guilty of manslaughter for failing to aid her from bleeding to death. (A) states the general rule, but is not the best answer based on the facts because one cannot be held criminally liable for failing to do an act which he is physically incapable of performing. Question 25: A is correct because one is not guilty of murder if he killed the victim while asleep or in the clouded state between sleeping and walking. B is incorrect because the facts are not clear whether Bernie acted voluntarily. B is incorrect because Cassandra’s voluntary act of driving the car and recklessness on the basis of her knowledge that she was epileptic is enough to make her guilty of manslaughter. D is not the best answer because voluntary intoxication (either by drugs or alcohol) would not result in an acquittal. Question 26: C is the correct answer. Under enterprise liability, a corporate agent who engages in criminal conduct is personally liable notwithstanding the fact that he acted in behalf of the corporation within the scope of his office. Mercury authorized the misbranded and adulterated drugs to be sold and taking RESIST at reduced levels of potency hastened Stone’s death. Since Mercury’s conduct was the legal cause of Stone’s death, it would subject him to criminal liability. Question 27: D is the best response, because it most closely fits the classic attributes of a strict liability offense. Note that the question here asks which crime is most likely to be found a strict liability offense. Thus, you must consider the elements of a strict liability crime, and see which option is the best fit. This requires comparing options, since all of them will have some elements of a strict liability offense. The purpose of strict liability crimes is to help the prosecution where the mental element will be difficult to prove, or the harm caused is such that it's worth convicting people who lack "guilty minds." Strict liability crimes generally have the following attributes: (1) they are regulatory in nature; (2) they do not involve serious penalties; (3) they involve serious harm to the public; and (4) it's easy to determine true facts (e.g., for crime of selling narcotics, element of defendant's knowledge as to whether what he's selling is a narcotic - e.g., mistaking cocaine for powdered sugar - is easy to check, so it's appropriate for strict liability). In fact, statutes regulating food, drugs and misbranded articles, as well as hunting license requirements and the like, are all common forms of valid strict liability statutes. (Compare this with statutes imposing strict liability for failure to register as a felon, which would be a due process violation - since there would be no circumstances to "move one to inquire" as to the necessity to register.) Furthermore, making such a crime a strict liability crime would not be consistent with the purposes of strict liability: That is, to help the prosecution where the mental element will be difficult to prove, or the harm caused is such that it's worth convicting people who lack "guilty minds." D involves the sale of adulterated milk. The seriousness of the harm to the public, the fact that it's a misdemeanor instead of a felony, and the difficulty of proof of a "guilty mind" all make it a candidate for strict liability. Since D recognizes this, and none of the other options are as satisfactory, D is the best response. Question 28: D is the best response, because it most closely applies to these facts, and it provides a valid defense to murder. Note that the question asks Dan's "best chance" of being acquitted. That means three of

these options will result in a conviction, and one won't. The most common test for insanity is the M'Naghten Rule, which requires that defendant have a diseased mind which caused a defect of reason, such that when Defendant acted he either didn't know his act was wrong or he didn't understand the nature and quality of his actions (e.g., mistaking someone's head for a baseball and hitting it with a bat). Here, it's not necessary to do a strict analysis under M'Naghten to appreciate the fact that Dan's off his rocker, and didn't know what he was doing was wrong. Since the facts indicate Dan has a promising insanity defense, and insanity is a good defense to murder, D is the best response.

CRIMINAL LAW - SHORT RESPONSE QUESTIONS & ANSWERS

1. During an argument, Harry slaps Sally. Angered, Sally responds by shooting and killing Harry. A

statute in the jurisdiction defines homicide as follows:

(A) Murder in the first degree is an intentional and premeditated or purposeful killing of another. (B) Murder in the second degree is the killing of another committed with extreme indifference to the

value of human life or all other murder at common law. (C) Manslaughter is the killing of another in the heat of passion upon an adequate legal provocation or

a killing caused by gross negligence.

What is the least serious crime with which Sally can be charged? Explain.

2. Betty had a brain disorder in the portion of her brain that controlled consciousness. She drove two of her friends home from work, even though she knew that she suffered from this condition, because the drive was quite short. While driving, she lost control of the car and slammed into a big tree. Both friends were killed. Apparently, while driving, Betty lost consciousness and ran off the road.

Can Betty be held criminally liable for the deaths of her friends?

3. While testifying as a sworn witness in a civil trial, Willy was asked on cross-examination if he had

been convicted of stealing $200 from his employer on August 16, 1977. Willy said, "No, I have never been convicted of any crime." In fact, Willy pled guilty to such a charge and had been placed on probation. Willy was then charged with perjury on the ground that his statement denying the conviction was false. A statute in the jurisdiction defines perjury as knowingly making a false statement while under oath. At trial, the state proved Willy’s statement and the prior conviction. Willy proved that the attorney who represented him in the theft case had told him that if he was placed on probation and he completed the probationary period, he had not been convicted of a crime. Willy established that he served his probationary period satisfactorily and had been discharged from probation. The advice of Willy’s attorney was incorrect.

What must the jury find in order to convict Willy of perjury?

4. Marianna harbored a deep hatred of her sister Katherine. After years of growing resentment,

Marianna was consumed with jealousy of her more successful, intelligent, and attractive sister. She began to craft an elaborate plan to kill her sister. However, before she took any steps to commit the murder, her plot was discovered.

Can Marianna be held criminally liable for her scheme? Explain.

5. Victoria got into a heated argument with her boyfriend. Eventually, the boyfriend ran at her with a large chef’s knife. Victoria wrestled it away from him, but during the struggle the knife fell and badly cut the boyfriend’s foot, resulting in serious injury.

Putting aside any affirmative defenses, can Victoria be convicted of intentionally wounding her boyfriend? Explain.

6. Defendant was charged with attempted murder after he planted a bomb on a commuter train full of

people. The bomb was inoperable, as it did not have a necessary component that would allow it to detonate. Although the bomb was harmless, there was much media coverage of its discovery because the train was filled with hundreds of people. The defendant asserts that he knew the bomb would not work and that he wanted merely to show that security measures are lacking in the country’s transportation system.

If he is believed, will this argument allow him to successfully rebut the government’s case for attempted murder? Explain.

ANSWERS QUESTION 1 Sample Answer: Manslaughter, because even where it can be shown that the killing was intentional, as here, the defendant may be able to show that he was provoked to act, sufficient to make the killing manslaughter rather than murder. However, the provocation must be serious enough to provoke a reasonable person to kill, not just serious enough to provoke this defendant. Being slapped during an argument could possibly be enough to provoke someone to kill. QUESTION 2 Sample Answer: Yes, Betty could be held responsible for the deaths of her friends. The chargeable criminal act would not be unconsciously running off the road. Rather, it would be getting into the car to drive her friends when she knew there was a substantial risk that her medical condition could result in serious dangers to all of them. Under those circumstances, her knowledge, coupled with her conduct, would make for culpability and criminal liability. QUESTION 3 Sample Answer: that Willy knowingly made a false statement. Here, the statute states that perjury requires knowingly making a false statement while under oath. Regardless of whether Willy should or should not have relied on his attorney's opinion, he didn't knowingly make a false statement. Because the statute requires that the defendant act knowingly, Willy cannot be guilty; he lacks the necessary mental state. The jury will be hard pressed to find Willy guilty. QUESTION 4 Sample Answer: No, because Marianna had not taken any steps in furtherance of her plan. The law punishes culpable intent together with actions, but the criminal law does not punish mere thoughts. In this case, even if Marianna fully intended to carry out her plan, she might not have gone through with it. Therefore, no criminal charge can be maintained against her. QUESTION 5 Sample Answer: If Victoria did not mean to inflict harm upon her boyfriend, she will not likely be convicted of intentional wounding. The state of mind of intent requires that a defendant purposefully cause the harm prohibited by the crime. With respect to the facts above, Victoria does not appear to have acted with intent to harm. While the struggle might have been reckless due to the presence of the large knife, the requirement here involves more than subjective awareness of a substantial risk. QUESTION 6 Sample Answer: A showing of intent is required for the attempted murder charge, so the mere act of planting an explosive device that appeared dangerous on a train would not be enough to convict. The government must demonstrate beyond a reasonable doubt that it was the defendant’s purpose to kill or seriously injure others. If the defendant is believed, he could avoid such a conviction, as he knew that the bomb could not explode. The argument that a killing would be impossible under the circumstances will not provide a defense. The question relates to the defendant’s intent. If he is believed as to his state of mind, he will prevail on this charge. If he is not believed, however, the fact-finder could conclude that the defendant intentionally took all steps necessary to carry out his plan, and the defendant will be convicted of attempted murder.

CRIMINAL LAW – ESSAY QUESTIONS & SAMPLE ANSWERS

Criminal Law Essay Question QUESTION #1

Brad and Angie are two famous Hollywood stars who are romantically linked. They decided to

leave the glitter of Hollywood and spend the weekend on South Beach. As always, they traveled with their

celebrity impersonators/decoys, Sam and Pam, who are married.

Sam always had a crush on Angie, which upset Pam very much. On Sunday morning, Sam went

for a drive with Pam in their rented Mercedes Benz. As they were crossing over Biscayne Bay, Sam

mentioned that Angie looked lovely the evening before. This comment angered Pam and they began

fighting. As Sam got angrier, he began driving faster. Pam was screaming at him. Sam lost control of the

car, swerved off the road, and landed in Biscayne Bay. As the car started to go under water, Sam was able

to break his window and swim out of the car. Sam was relieved to see that the water was about four feet

deep and thus, the rented car might be salvageable. As he was wading to shore, he saw Pam, who was still

inside the car. He thought to himself, “Too bad the water is so shallow. I am so sick of dealing with your

crap.”

Once he got to shore, he hailed a cab and headed for the airport to catch his flight back to

Hollywood. While exiting the cab at the airport, a man mistook Sam for Brad and started yelling “You are a

jerk! I can’t believe you left Angie like this. You have no shame!” The man lunged at Sam and attempted to

hit him on the head with his laptop. Sam pulled out his gun and shot the man, who died immediately.

Pam’s body was found two days later. She had drowned.

What crimes have been committed under Common Law? What defenses, if any, are implicated by these facts?

Criminal Law Grading Guideline 2010

___ (3) ISSUE: Whether Sam will be held liable for homicide against Pam?

___ (7) RULE: Homicide is the unlawful killing of a human being with malice aforethought. Actus Reus is a voluntary act that was willed or directed by the actor, or an unlawful omission.

Generally a person does not have a legal duty to act affirmatively on behalf of others. However there is a legal duty to act affirmatively b/c special relationship such as husband and wife, or if the person created the peril.

Mens Rea is the mental state the actor has regarding committing the crime. Recklessness- deliberate perpetration of a knowingly dangerous act or omission with indifference as to whether anyone is harmed is sufficient for depraved heart murder.

Causation is the link between the act and harm that resulted; actual cause -result would not have happened “but for” for the D’s act. Proximate cause- result w/in risk created by D’s act/omission. Where victim’s death was a probable consequence of D’s conduct, D may be guilty of murder, even if D did not foresee the events that resulted in the victims death.

____ (12) ANALYSIS: Actus Reus is Sam’s omission, not helping Pam out of the car and safely to shore.

Sam had a duty to make sure his wife got safely to shore; because of special relationship; husband and wife, and because Sam created the peril - he caused the car to land in the water. Mens Rea here is implied. The prosecution may consider this as a depraved heart murder/ there was conscious disregard for Pam’s life- extreme recklessness, Sam’s actions caused an unjustifiable risk to Pam’s life. Sam disregarded the fact that Pam might drown in the car. His thoughts indicate that he was aware that if the water was deeper she could drown, “Too bad the water is so shallow…” He saw her inside the car when he left, the car was in water, he did not assist, he walked away. Causation Pam would not have drowned but for Sam’s omission. Since the water was only 4 ft deep he could have easily gone back to get her out of the car.

His omission was the actual and proximate cause of Pam’s death. CONCLUSION: Sam may be guilty of homicide; depraved heart murder.

He had a duty and he failed to act, exhibiting conscious disregard for Pam’s life. ______________

____ (3) ISSUE: Whether b/c Sam did not realize that Pam could drown in 4ft of water, this could be involuntary manslaughter rather than murder?

____ (7) RULE: Involuntary manslaughter is the killing of a human being without malice aforethought, but proximately resulting from some act done in a criminally negligent (grossly negligent) manner or during the commission of a crime not included in the felony murder rule. The Mens Rea is Criminal Negligence, the failure to conduct yourself as a reasonable prudent person and thereby create an unjustifiable risk. In manslaughter, when liability for negligence is at issue, one must consider whether the defendant should have been aware of the risk of death and was not, and the degree of deviation he exhibited from what would be considered reasonable behavior. ____ (12) ANALYSIS: Sam was criminally negligent by leaving Pam in the car. Sam’s thoughts indicate he wanted Pam to die, but he assumed she would not die, as there was only 4 ft. of water. “Too bad the water is so shallow. I am so sick of dealing with your crap.” A reasonable person would have considered the fact that Pam might die, because after the crash into the bay, she was still trapped in the car. A reasonable person would have helped Pam out of the car. . The charge could be involuntary manslaughter, if Sam should have known she could die, but was in fact unaware of the risk of leaving Pam in the car, in the bay.

CONCLUSION: To succeed in mitigating the charge to involuntary manslaughter, Sam would have to prove that he was unaware of the risk he created by leaving his wife in the car, in the bay.

_____ (3) ISSUE: Whether Sam will be liable for murder or voluntary manslaughter for killing the man who attacked him? ____ (5) RULE: Homicide/ Murder (as previously stated). Voluntary manslaughter, is when the D intentionally kills another upon adequate provocation, in sudden heat of passion, without sufficient time to cool off. Common law provocation can be established by; such acts as aggravated assault or serious battery, threat of deadly force (mere words not enough), or observation of a spouse committing adultery. The provocation must be sufficient to cause an ordinary man to lose self control. Modern rule, juries will determine adequate provocation. _____(10) ANALYSIS: Sam’s act of pulling out his gun and shooting his attacker was in response to the provocation of the man’s assault with the laptop. Sam’s use of a gun, a deadly weapon, allows the inference that that he had the intent to cause grievous bodily harm or death, which satisfies the mens rea requirement for murder. However, if the victim’s attempt to hit Sam with a laptop is considered adequate provocation, it will mitigate murder to voluntary manslaughter. Heat of passion can be established by Sam’s sudden angry response when attacked, he had no time to cool off. CONCLUSION: If Sam can establish adequate provocation by the victim, the crime may be mitigated to voluntary manslaughter

______________

_____ (3) ISSUE: Whether Sam is justified in homicide of the victim by establishing self defense? _____(5) RULE: Self Defense, one is justified in using force, if such force is necessary to protect oneself from imminent use of unlawful force by another. However, the force used can never be more than the force initially encountered. A majority of jurisdictions apply a “no retreat” rule, even if person can safely retreat. (In Fl you can stand your ground in any place where a person “has a right to be,” that person has “no duty to retreat” if attacked and may meet force with force.) _____ (10) ANALYSIS: The imminent unlawful force was that Sam may be injured by being hit in the head with the laptop. This occurred in Fl. and Sam has the right to stand his ground to defend himself. Although the assault could cause bodily harm, it was not deadly force. Shooting someone with a gun, which is using deadly force, would be considered responding with excessive force. Therefore, Sam will not be able to use self defense b/c he used deadly force in response to non-deadly force. CONCLUSION; Sam will not be successful with his use of self- defense because he used more force than necessary. ______ (20) Writing Skills

(5) IRAC (5) Organization & Style

(5) Logic Clarity of Analysis (5) Legal Language, Articulation

________ (100) TOTAL

Criminal Law Question

QUESTION #2

Alice’s adult son, Carl, borrowed Alice’s car to take a group of his friends to a party one Saturday

night. One of Carl’s friends, Steve, had a plastic bag containing five grams of cocaine, which he passed

around to Carl and others in the car. After Carl and his friends ingested some cocaine, Steve, with Carl’s

consent, put the bag containing the remaining four grams of cocaine in the glove compartment. When Carl

returned home, he parked the car in the garage. Unbeknownst to Alice, the bag of cocaine remained in the

glove compartment.

On Monday morning, Alice got in the car and agreed to take Carl to his workplace before driving

to hers. They were late, and, in trying to make up the time, she exceeded the speed limit. Before they got to

Carl’s workplace, Alice was stopped by a police officer, who, intending to give her a speeding ticket, asked

for her driver’s license and automobile registration.

As Alice was removing the automobile registration from the glove compartment, she dislodged the

plastic bag that Carl’s friend Steve had left there, and the white powdery cocaine spilled all over the front

seat in plain sight of the police officer. Carl blurted out, “Oh man! I knew that Steve left that there on

Saturday night, but I had forgotten it.”

The officer arrested Alice and Carl. They were both charged with possession of cocaine in

violation of the following statute: “It is a felony in the second degree to possess cocaine in excess of three

grams. ‘Possession’ means exercising dominion and control of the substance with intent to do so.”

1. Does Alice’s conduct provide the requisite actus reus and mens rea for a conviction of

possession of cocaine? Explain fully.

2. Does Carl’s conduct provide the requisite actus reus and mens rea for a conviction of

possession of cocaine? Explain fully.

Criminal Law Grading Guidelines QUESTION #2

ISSUES COMMENTS

I. ACTUS REUS AND MENS REA AS TO ALICE 60% WEIGHT OVERALL

• Alice has probably not met the actus reus element of the statute—i.e.,

(30% weight for discussion of actus reus)

• The act or omission that comprises the physical element of a crime specified in the statute.

• Under this statute, the actus reus is twofold: there must be possession of more than three grams of cocaine, and, implicitly, possession must have been undertaken voluntarily.

• Alice probably did not have sufficient control or proximity of the cocaine to constitute “possession.”

• Notwithstanding that it was in her car, • She had no knowledge it was there; • She took no actions suggesting that she was

exercising or intended to exercise dominion or control over it.

• A person can incur criminal liability only if the act is voluntary.

• To meet this requirement of the crime of possession, Alice would have to have voluntarily placed the cocaine in the glove compartment or consented to its being placed there.

• She did neither. • Thus, Alice’s conduct does not provide the requisite

actus reus element of the crime because she did not “possess” the cocaine.

• Mens rea is the state of mind that gives rise to culpability and that is specified by statute as an element of a crime.

(30% weight for discussion of mens rea)

• Alice’s conduct does not provide the requisite mens rea.

• The statute given in the facts is a specific-intent statute, i.e.,

• It requires possession “with intent to do so.” • Thus, as applied to the facts, it means that • Alice must have intended to possess the cocaine,

which

• Encompasses the notion that she had knowledge that it was in the glove compartment or

• That it was there under circumstances that she could be charged with the knowledge that it was there.

• The facts as given suggest that she was totally ignorant of the presence of the cocaine.

• It is not likely that, under these circumstances, she could be charged with knowledge merely because the car was hers.

II. ACTUS REUS AND MENS REA AS TO CARL 40% WEIGHT OVERALL

• Actus reus: • (20% weight for discussion of actus

ISSUES COMMENTS reus)

• The facts show clearly that Carl • Consented to his friend’s having put the cocaine in

the glove compartment and

• Knew it was there. • Thus, Carl’s act of consenting that the cocaine be put

in the glove compartment, coupled with his knowledge, is clearly an act voluntarily undertaken.

• The remaining question is whether the “possession” component, as it relates to actus reus, is satisfied.

• The fact that the cocaine was not his (i.e., it was Steve’s) is irrelevant—if Carl “possessed” it, ownership is irrelevant.

• The arguable fact is whether he had sufficient dominion and control over the cocaine.

• Carl clearly had dominion and control over the car at the time Steve placed the cocaine in the glove compartment.

• Thus, it can be easily said that Carl “possessed” the cocaine at that time.

• Extra credit for students who note that possession is an ongoing crime so that it suffices that Carl had dominion and control at one point in time.

• If it is necessary to establish Carl’s possession at the time of the arrest, it is arguably less certain that he “possessed” it.

• Because, at the time, he was just a passenger. • However, that fact should not change the result, i.e.,

• He still had access to the cocaine and was the only

one in the car who knew it was there.

• These facts provide the necessary actus reus predicate to the crime.

• Mens rea: (20% weight for discussion of mens rea) • The remaining question is whether Carl “possessed”

the cocaine “with intent.”

• The knowledge component of “intent” is clearly satisfied, i.e.,

• Carl’s remark, “I knew Steve left that there…” • The fact that he “forgot” does not negate the

knowledge element.

• Moreover, the fact that Carl had affirmatively consented to Steve’s placing it in there evidences Carl’s knowledge.

• The specific intent aspect of the mens rea component is also satisfied.

• There is no doubt that Carl intended that the cocaine be in the glove compartment.

• Accordingly, Carl’s knowledge (i.e., “intent”) coupled with his act (dominion and control) satisfy the actus reus and mens rea components of the crime charged.