Criminal Law Themis Questions

By federal statute, it is unlawful to knowingly possess any endangered species of fish or wildlife.  Any person who violates this statute is guilty of a misdemeanor and is subject to a fine of not more than $50,000 or imprisonment of not more than six months, or both.  Congress indicated that the statute should be applied as broadly as possible to accord the endangered species maximum protection.

Which of the following is likely the minimum that the prosecution must establish in order to obtain a conviction of a defendant found in possession of an endangered bird?

Answer: The defendant knowingly possessed the bird.

Most criminal offenses have a requisite mens rea—i.e., a legally proscribed mental state that the defendant must have possessed while committing the prohibited act.  To obtain a conviction, the prosecution must prove that the defendant, at a minimum, possessed the requisite mens rea.  But when determining how to appropriately apply the statute's mens rea requirement, courts may also need to look at the legislative intent behind the statute.

Here, the statute plainly states that it is unlawful to knowingly possess any endangered species of fish or wildlife.  As a result, mere proof that the defendant possessed the bird—without a showing that she did so knowingly—is insufficient to obtain a conviction (Choice D).

However, Congress indicated that the statute should be applied as broadly as possible to accord the endangered species maximum protection.  Requiring proof that the defendant knew that the bird was a member of an endangered species would undermine Congress's intent.  It would narrow the statute's applicability to only those individuals who knowingly possessed the animal and knew it was endangered (Choice A).  As a result, the prosecution must establish, at a minimum, that the defendant knowingly possessed the bird.

The mother of a 16-year-old girl found out that the girl and one of her teachers were selling the girl's prescription sedatives to other students.  The mother confronted the teacher and told him that she was reporting him to the school authorities and the police.  To prevent her from doing so, the teacher pulled out a gun and shot at the mother, but he missed the mother and instead hit the girl, who had just entered the room.  The teacher then ran away from the scene of the shooting.  Crying out in pain, the girl begged the mother to call for help.  The mother, angry at the girl for her actions, told her, "That's what you get for being a criminal."  The mother delayed summoning medical assistance.  The girl died shortly thereafter, but would have lived had medical assistance been timely provided.

Can the police properly charge the teacher with the murder of the girl?

Answer: Yes, because the teacher intended to harm the mother when he shot the gun.

Common law murder is the unlawful killing of another with malice aforethought.  Malice aforethought can be established by any of the following mental states:

• intent to kill

• intent to cause serious bodily injury

• reckless indifference to human life (depraved-heart murder)

• intent to commit a felony (felony murder)

Under the doctrine of transferred intent, when a defendant acts with the intent to kill or harm one person (the mother) and that act directly results in harm to another (the girl), the defendant's intent is transferred to the unintentionally harmed person (Choice B).  Therefore, the teacher had the requisite intent to be charged with the murder of the girl.

However, to be charged with murder, the defendant also must have caused the unlawful death.  Causation must be both:

• actual – (1) the unlawful death would not have occurred but for the defendant's conduct or (2) when multiple causes exist, the defendant's conduct was a substantial factor in causing that result and

• proximate – the unlawful death was a foreseeable consequence of the defendant's actions.

Here, the girl would not have died but for the teacher's conduct.  And since actions by a third party that contribute to the victim's death are generally deemed foreseeable—as is the possibility that the victim may not receive timely medical treatment—the mother's delay in calling for medical assistance was foreseeable (Choice A).  Therefore, the police can properly charge the teacher with the murder of the girl.

A convenience store clerk was complaining about his financial troubles to his best friend.  The friend said that the clerk's employer had been cheating the clerk out of a decent salary for too many years, and that the employer owed the clerk.  The friend suggested that if the clerk robbed the store during another clerk's shift, he would never get caught.  The friend offered to loan the clerk his gun to use to scare the clerk on duty.  Both men agreed that no one would get hurt in the process.  The next day, the clerk carried out the plan to rob the store while the friend waited outside in a car.  During the robbery, the clerk accidentally discharged the gun, and a customer was shot and died instantly.  The clerk panicked and left the store empty-handed.  The friend drove the clerk back to his mother's house, told him to lay low, and then drove home.  The clerk later decided that he needed to get out of town quickly.  He stole his mother's car, which was more reliable than his own, to drive to a nearby state.

For which of the following charges would the friend most likely be convicted and punished?

Answer: Felony murder

Parties to a crime
Modern view	Common law	Definition	Liability
Principal	Principal (first degree)	Performs criminal act with requisite intent or uses innocent agent to commit criminal act	Target & foreseeable crimes
Accomplice	Principal (second degree)	Present at crime & aids/encourages principal with intent that principal commit crime
	Accessory before the fact*	Not present at crime but aids/encourages principal with intent that principal commit crime
Accessory after the fact		Knows principal has committed felony & helps principal avoid arrest or conviction	Independent crime
*Common law liability requires conviction of principal.

An accomplice (the friend) is a person who aids or abets a principal (the clerk) prior to or during the commission of the offense with the purpose of promoting or facilitating the commission of the offense.  An accomplice is liable to the same extent as the principal for:

• the crime for which the accomplice provided encouragement or assistance and

• other crimes committed by the principal that were a natural and probable consequence of the accomplice's conduct.

Here, the friend encouraged the clerk to rob the convenience store and loaned the clerk a gun to facilitate the commission of the robbery.  The clerk took a substantial step toward committing the robbery with the specific intent to commit the crime, but he failed to complete it.  Therefore, the clerk could be prosecuted for attempted robbery.  However, he unintentionally killed a customer during the attempted robbery—thereby giving rise to felony murder.

Felony murder is an unintended killing proximately caused by and that occurs during the commission or attempted commission of an inherently dangerous felony (e.g., robbery).  The underlying felony, as the lesser included offense, typically merges into the felony-murder charge.

The friend, as an accomplice, is liable for crimes committed by the clerk that were a natural and probable consequence of the encouraged robbery, which includes felony murder.  Therefore, the friend could be successfully convicted and punished for felony murder—but not attempted robbery since it would merge into felony murder (Choices C & D).

A mother with a terminal illness told her son that she was in a great deal of pain.  She requested that he end her suffering by taking her life.  After unsuccessfully attempting to dissuade his mother, the son, who had no medical training, researched the matter on the Internet.  Acting in compliance with his mother's request, the son injected his mother with drugs that resulted in her quick and painless death.  He did not financially benefit from his mother's death in any way, as she had properly devised all of her property to a charity.

Of the following crimes listed in descending order of seriousness, which is the most serious crime of which the son may be convicted?

Answer: Murder

Common law murder is the unlawful killing of another with malice aforethought.  Malice aforethought requires proof of one of the following mental states:

• Intent to kill (as seen here)

• Intent to inflict serious bodily injury

• Reckless disregard of an obvious or unjustifiably high risk of causing death or serious bodily injury (depraved-heart murder)

• Intent to commit an inherently dangerous felony (felony-murder rule)

Since consent is never a defense to murder, a person who commits a mercy killing can still be prosecuted for murder.  As a result, the mother's consent is not a defense to murder, and the son can be properly convicted of this crime.

A carpenter was using a nail gun in the construction of a small outdoor deck on a house.  The carpenter knew that the nail gun could fire a nail with sufficient force to kill a human being at close range.  Aware of the presence of three other carpenters on the other side of the nearly finished deck, one of whom the carpenter disliked, the carpenter fired the nail gun twice at a table located between himself and the other three carpenters.  The first nail from the gun struck the table but the second nail, ricocheting off the table, struck and killed the disliked carpenter.  At trial, a jury, based on this evidence, found the carpenter guilty of murder.

If the carpenter appeals his conviction on the ground that the evidence was not sufficient to support his conviction, how should the appellate court rule?

Answer: Affirm the conviction, because the evidence is sufficient to establish that the carpenter acted with malice aforethought.

Common-law murder is the unlawful killing of another with malice aforethought.  One type of malice aforethought arises when a defendant acts with reckless disregard of an obvious or unjustifiably high risk of causing death or serious bodily injury.  This is commonly referred to as depraved-heart murder.

Here, the evidence is sufficient to establish that the carpenter committed depraved-heart murder when he fired a nail gun in the direction of the other carpenters who were standing close by.  That is because he knew that the nail gun could generate enough force to kill a human being, thereby disregarding an obvious risk of causing death or serious bodily injury when he fired it.*  As a result, the appellate court should affirm the carpenter's conviction.

The defendant, his brother, and his best friend formed a plan to rob a bank.  On the day of the crime, the defendant and his brother entered the bank carrying guns, while the best friend stayed in the car to act as a getaway driver.  After the defendant received one bag of money from a bank teller, he saw a security guard pull out a gun.  The defendant tried to shoot the security guard but instead shot his brother.  The defendant panicked and ran out of the building toward the getaway car.  The security guard chased the defendant and fired a shot toward him as he approached the car.  The shot hit the best friend, who was in the driver's seat of the car.  Shortly thereafter, the police arrived and arrested the defendant.  The brother and the best friend later died as a result of their gunshot wounds.

For which of the following crimes is the defendant most likely to be convicted and punished?

Answer: One count of felony murder for the death of the brother

Felony murder is the unintended killing of another proximately caused by and during the commission or attempted commission of an inherently dangerous felony.  The death of a cofelon (i.e., an accomplice) can support a felony-murder conviction when the defendant unintentionally kills the cofelon while committing or attempting to commit the inherently dangerous felony.

Here, the defendant unintentionally killed his brother while committing bank robbery—an inherently dangerous felony.  As a result, the defendant may be properly convicted of felony murder for the death of the brother.

However, most jurisdictions do not consider it felony murder when a cofelon is killed by a victim or a police officer during the commission of an inherently dangerous felony.  Here, the defendant's best friend was killed by the security guard—not the defendant.  As a result, the defendant may not be properly convicted of felony murder for the death of the best friend

After a woman and her roommate got into a fight, the woman and her boyfriend formulated a plan to get back at the roommate.  The woman planned to distract the roommate while the boyfriend would sneak into the apartment through the open back door to steal her new camera, which was on the kitchen counter.  The woman and her boyfriend headed back to the apartment and put their plan into action.  However, the plan went awry when the roommate heard a noise and went into the kitchen to find the boyfriend with her camera in hand.  Panicked, the boyfriend pushed the roommate to the floor and ran out of the apartment with the camera.

The boyfriend is most likely to be convicted of which of the following crimes?

Answer: Robbery only

Robbery requires proof that:

• the defendant unlawfully took and carried away the victim's personal property with the specific intent to permanently deprive the victim of that property (i.e., larceny) and

• the property was taken from the victim's person or presence by force (i.e., battery) or intimidation (i.e., assault).

Since larceny and battery/assault are necessarily committed during a robbery, they are lesser included offenses to robbery.  And under the doctrine of merger, lesser included offenses merge into the more serious crime.  So if the elements of robbery are proved, the defendant may only be convicted of robbery—not robbery and its constituent offenses.

Here, the boyfriend unlawfully took the roommate's camera with the intent to steal it (larceny).  He accomplished this larceny by pushing the roommate to the floor (battery) before running out with the camera.  Therefore, the boyfriend may properly be convicted of robbery.  But the boyfriend cannot also be convicted of battery since this lesser crime merged into the completed robbery (Choice D).

(Choices A & B)  Burglary requires an unlawful entry into another's building or structure with the specific intent to commit a crime therein.  But here, the boyfriend lawfully entered the apartment because the woman let him into the apartment by leaving the back door open and consented to the boyfriend's entry.

A woman broke into her former lover's house at night with the intent to take back various items of her clothing that the former lover had refused to return to her.  After conducting a search and being unable to find the clothing, she came across another woman's clothing.  Extremely angry, she took a cigarette lighter and lit the lover's bed on fire, destroying the bed.

With which of the following common-law crimes can the woman be properly charged?

Answer: Neither arson nor burglary.

Common-law arson is defined as the malicious (i.e., intentional or reckless) burning of another's dwelling.  Mere scorching (i.e., discoloration due to heat) of the walls, smoke damage, and burning of the dwelling's contents are all insufficient to support a common-law arson conviction.*  Here, the woman burned only the former lover's bed—not a part of the actual structure of the building—so she cannot be properly charged with arson (Choices A & C).

Common-law burglary is defined as the unlawful breaking and entering of another's dwelling at nighttime with the specific intent to commit a felony therein.**  And the requisite intent must exist at the time of entry.  Here the woman broke and entered the house of her former lover at night to recovery her own clothing—not to commit a felony therein.  As a result, she cannot be properly charged with burglary (Choices B & C).

A woman broke into her ex-husband's house late one night when she knew he was away on business, intending to take a sculpture that he had been awarded in their divorce settlement.  She searched the entire house but was unable to find the sculpture.  She figured he had probably sold the sculpture, which made her furious because he knew how much she loved it.  In a rage, she slashed a painting of his new girlfriend before leaving the house.

Of which of the following crimes is the woman guilty?

Answer: Burglary and attempted larceny.

Common law burglary* requires proof of the following:

• an unlawful breaking and entering of another's dwelling at night and

• the specific intent to commit a felony (e.g., larceny) therein.

Once the defendant enters the dwelling with the requisite intent, the burglary is complete.  This means that there is no need to prove that the defendant completed the underlying felony to obtain a burglary conviction.

A burglary defendant who did not complete the underlying felony is also guilty of the attempted commission of that felony.  That is because the defendant (1) specifically intended to commit the felony and (2) performed an overt act in furtherance of the felony—the unlawful breaking and entering.

Here, the woman is guilty of burglary because she broke into her ex-husband's home at night with the specific intent to commit larceny (Choices A & B).  Larceny is the unlawful taking and carrying away of another's personal property (sculpture) with the specific intent to permanently deprive the owner of that property.  Although the woman did not complete the larceny because she did not actually steal the sculpture, she is still guilty of attempted larceny (Choice C).

A man planned to rob a city bank.  Waiting until he saw the bank's security guard leave the building to take a walk around the perimeter, the man entered the bank and walked up to a teller with his hand pointed in his pocket, as if he had a gun.  The teller had her back to the man and did not see him at all.  Before the teller could turn around, the security guard reentered the building.  Seeing the guard, the man took his hand out of his pocket and ran out of the building.  The man was arrested and charged with attempted robbery of the bank.

Should the man be found guilty?

Answer: Yes, whether or not he abandoned his plan

Under the modern prevailing view, a defendant is guilty of attempt if the defendant:

• had the specific intent to commit a crime (e.g., robbery) and

• took a substantial step toward the commission of that crime.

In most jurisdictions, the crime of attempt is completed once the defendant has taken a substantial step by engaging in conduct that exceeds mere preparation and tends to effect the commission of the crime.  As a result, a defendant who has taken a substantial step may not legally abandon (or withdraw from) the attempt due to a change of heart or fear of apprehension.*

Here, the man possessed the specific intent to rob the bank when he entered the building, pretending to have a gun in his pocket.  This entry constituted a substantial step toward the commission of the bank robbery and completed the attempt.  As a result, the man could not abandon or withdraw from the attempt by running out of the bank and should be found guilty of attempted robbery (Choice C).

A daughter was homeschooled by her bohemian parents for most of her life.  The parents did not believe in mainstream medicine, so they taught the daughter about homeopathic remedies as part of her homeschooling.  She helped her parents with their extensive garden as part of her daily chores.  Unfortunately, the daughter was lonely, she did not believe in homeopathy, and she wanted to eat meat, so she resolved to kill her parents by poisoning them but making it look like an accident.

Among the plants the daughter was growing was the castor oil plant, which her parents used to treat a variety of skin conditions and to stimulate the immune system.  However, the seeds of the castor oil plant contain the toxin called ricin, which is deadly if ingested by humans.  The daughter extracted the seeds from a castor oil plant, crushed them, and then added the ricin powder to her parents' oatmeal.  Unbeknownst to the daughter, she had actually picked the wrong plant, known as the "false castor oil plant," which was similar in appearance but did not produce poisonous seeds.  After the parents ate the oatmeal laced with the harmless seeds, they suffered some gastric distress.  They went to the garden to find an herbal remedy, and noticing that all of the false castor oil plants were missing, they suspected that someone untrained in plant species had tried to poison them, so they called the police.  The police were able to piece together what actually happened, and they arrested the daughter for attempted murder.

Could the daughter be found guilty of attempted murder?

Answer: Yes, because factual impossibility is not a defense to the crime of attempted murder.

A defendant who failed to complete a criminal act (as seen here) is guilty of attempt if the defendant:

• took a substantial step toward the commission of a crime (e.g., murder)

• with the specific intent to commit the crime.

Under the subjective "substantial step" test, the conduct must exceed mere preparation and tend to effect the commission of the attempted crime.  It does not matter whether the crime attempted is factually impossible to commit due to circumstances unknown to the defendant.  As a result, factual impossibility is never a defense to attempt (Choice A).

Here, the daughter took a substantial step toward murdering her parents when she put what she believed to be poisonous castor oil seeds in their oatmeal with the specific intent to kill them.  However, she could not have killed them because she had unknowingly used the innocuous seeds from the false castor oil plant.  But since factual impossibility is never a defense to attempt, she can still be found guilty of attempted murder.