California Bar Exam-2010 Criminal Law

Front 1

What is the general exam approach to criminal law?

Back 1

MBE directs examinees to answer questions according to the "generally accepted view" unless otherwise noted. In Criminal Law, the examiners may tell you the law to apply if there is no prevailing view.
1. The call of a question might tell you the common law applies or that the state follows the MPC approach.
2. A fact pattern might also include a statute that you are to apply to the facts; 3. Finally, a question might reference a well-known legal doctrine (e.g. the wharton rule or the M'naughten test.

Note: If they don't tell you whether the common law or statutory version of the crime applies, it likely means that specific elements of the crime are not relevant to the question-for example, the question may concern whether voluntary intoxication is a defense to a crime, in which case the relevant factor is what type of mental state the crime requires, not other elements of the crime that may vary from jurisdiction to jurisdiction.

Front 2

What is the rule on Jurisdiction?

Back 2

Generally, a state has jurisdiction over a crime if:any act constituting an element of the offense was committed in the state, an act outside the state caused a result in the stte, the crime involed neglect of a duty imposed by law of the state, there was an attempt or conspiracy outside the state plus an act inside the state, or there was an attempt or conspiracy inside the state to commit an offense outside the state.

Front 3

What are the sources of criminal law?

Back 3

There is no federal common law of crimes; all federal crimes are statutory. A majority of the states retain common law crimes. The modern trend is to abolish common law crimes either expressly by statute or impliedly by the enactment of comprehensive criminal codes.

Front 4

What are the theories of punishment?

Back 4

Theories justifying criminal punishment include incapacitation of the criminal, special deterrence of the criminal, general deterrence of others, rehabilitation, and education of the public.

Front 5

How are crimes classified?

Back 5

2 classes: Felonies, which are generally punishable by death or imprisonment for more than one year, other crimes are misdemeanors.

Front 6

What is the rule on vagueness and other constitutional limitations?

Back 6

Due process requires that a criminal statute not be vague. There must be 1. fair warning (i.e. a person of ordinary intelligence must be able to discern what is prohibited), and 2. no arbitrary and discriminatory enforcement. The Constitution places two substantive limitations on both federal and state legislatures- no ex post facto laws and no bills of attainder.

Front 7

What is the rule on interpretation of criminal statutes?

Back 7

Criminal statues are construed strictly in favor of defendants. If two statutes address the same subject matter but dictate different conclusions, the more specific statute will be applied. The more recently enacted statute will control. Under new comprehensive codes, crimes committed prior to the effective date of the new code are subject to punishment and prosecution under the law as it existed at the time of the offense.

Front 8

What are the rules on merger?

Back 8

1. CL: At common law, if a person engaged in conduct constituting both a felony and a misdemeanor, she could be convicted only of the felony. The misdemeanor merged into the felony.
2. Modern law- No mergerL There is no longer any merger, except that one who solicits another to commit a crime may not be convicted of both the solicitation and the completed crime (if the person solicited completes the crime). Similarly, a person who completes a crime afer attempting it may not be convicted of both the attempt and the completed crime. Conspiracy, however, does not merge with the completed offenese (e.g. one can be convicted of both robbery and conspiracy to commit robbery).

3. Rules against multiple convictions for the same transaction: Double jeopardy prohibits trial or conviction of a person for a lesser included offense if he has not been put in heopardy for the greater offense. However, a court can impose multiple punishments in a single trial where the punishments are for two or more statutorily defined offenses specifically intended by the legislature to carry separate punishments, even though the offenses arise from the same transaction and constitute the same crime.

Front 9

What are the Elements of a crime?

Back 9

A crime almost always requires proof of a physical act (actus reus) and a mental state (mens rea), and a concurrence of the act and the mental state. It may also require proof of a result and causation (i.e. that the defendant caused the harmful result).

Front 10

What is the rule on actus reus?

Back 10

Defendant must have either performed a voluntary physical act or failed to act under circumstances imposing a legal duty to act. An act is a bodily movemnt.

ET act must be voluntary if D was unconscious, the act was not voluntary, and thus the d cannot be convicted of a crime based on this act (the only exception to this rule would be if the defendant knew he was likely to become unconscious and commit the act).

Front 11

When is an ommision an act?

Back 11

1. There is a specific duty imposed by law;
2. D has knowlege of the facts giving rise to the duty to act; and 3. It is reasonably possible to perform the duty.

A legal duty to act can arise from a statute, contract, relationship between the defendant and v (e.g. parent has a special duty to protect the child from harm), voluntary assumptio of care by the defendant for the victim, or the creation of peril for the victim by the defendant.

ET: For an omission to be a criminal act, there must be a duty to act. There is no general good sameritan law requiring people to help others in trouble. Thus, a defendant is not liable for the failure to help or rescue another person unless he has a duty to do so- no matter how easy it would ahve been to render help. Moral outrage is not enough.

Front 12

When is possession an act?

Back 12

Criminal statutes that penalize the possession of contraband generally require only that the defendant have control of the item for long enough to have an opportunity to terminate the possession. Possession need not be exclusive to one person, and possession may also be constructive, meaning that actual physical control need not be proved when the contraband is located in an area that is within the defendant's dominion and control.
a. Scienter requirement: Absent a state of mind requirement in the statute, the defendant must be aware of his possession of the contraband, but he need not be aware of its illegality. However, many statutes add a state of mind element (e.g. knowingly) to possession crimes. Under such statutes, the defendant ordinarily must know the identity or nature of the item possessed. On the other hand, a defendant may not consciously avoid learning the true nature of the item possessed; knowledge or intent may be inferred from a combination of suspicion and indifference to the truth.

Front 13

MENTAL STATE
What is the rule on specific intent?

Back 13

!. A crime may require not only the doing of an act, but also the doing of it with a specific intent or objective. The existence of a specific intent cannot be inferred from doing of the act. The major specific intent crimes and the intents they require are as follows:

Soliciation: Intent to have the person solicited commit the crime.
Attempt: Intent to complete the crime.
Conspiracy: intent to have crime completed
First degree premeditated murder: premeditation
Assault: Intent to commit batter
Larceny and robbery: Intent to permanently deprive the other of his interest in the property taken.
Burglary: Intent to commit a felonly in the dwelling
Forgery; False pretenses; Embezzlement: Intent to defraud

Front 14

Exam tip:

Back 14

Don't forget that attempt is a specific intent crime- even when the crime attempted is not. Thus, although murder does not require a specific intent to kill (i.e. reqcklessly disregarding a high risk to human life would be enough), attempted murder requires the specific intent to kill. Without that intent, the defendant is not guilty of attempted murder.

Front 15

What is the rule on malice?

Back 15

The intent necessary for malice crimes (common law murder and arson) sounds like specific intent, but it is not as restrictive; it requires only a reckless disregard of an obvous or high risk that particularly harmful result will occur. Defenses to specific intent crimes (e.g. voluntary intoxication) do not apply to malice crimes.

Front 16

What is the rule on general intent crimes?

Back 16

Almost all crimes require at least general intent, which is an awareness of all factors constituting the crime; i.e. defendant must be aware that she is acting in the proscribed way and that any required attendant circumstances exist. The defendant need not be certain that all the circumstances exist; it is sufficient that she is aware of a high liklihood that they will occur.

a. Inference of intent from act: A jury may infer the required general intent from merely doing the act.
b. Transferred intent: a d can be liable under the doctrine of transferred intent where she intends the harm that is actually caused, but to a different victim or object. Defenses and mitigating circumstances may also usually be transferred. The doctrine of transferred intent applies to homicide, batter, and arson. It does not apply to attempt.

Motive distinguished: Motive is the reason or explanation for the crime; it is different form intent to commit the crime. movive is immaterial to substantive criminal law.

Front 17

What is the rule on strict liabilty offenses?

Back 17

A SL or public welfare offense is one that does not require awareness of all the factors constituting the crime; i.e. d can be founds guilty for the mere fact that she committed the act. Selling liquor to minors and statuory rape. Mistake of fact defenses not available.

Front 18

How does the MPC analyze fault?
I Purposely Knew I was Recklessly Negligent

Back 18

MPC eliminates common law distinctions between general and specific intent crimes and adopts the following categories:
1. Purposely: A person acts purposely when his conscious object is to engage in certain conduct or cause a certain result.

Knowingly: A person acts knowingly when he is aware that his conduct is of a particular nature or knows that his conduct will necessarily or very likely cause a particular result. Knowing conduct satisfies a statute requiring willful conduct.
3. Recklessly: A person acts recklessly when he knows of a substantial and unjustifiable risk and consciously disregards it. Mere realization of the risk is not enough. Thus, recklessness involes both objective (unjustifiable risk) and subjective (awareness) elements. Unless the statute specifies a different degree of fault or is a strict liability offense, the defendant must have acted at least recklessly to be criminaly liable.

b. Negligence: A person acts negligently when he fails to be aware of a substantial and unjustifiable risk, where such failure is a substantial deviation from the standard of care. To determine whether a person acted negilgently, an objective standard is used. However, it is not just the reasonable person standard used in torts. The defendant must have taken a very unreasonable risk.

Front 19

What is the rule on vicarious liabiility cases?

Back 19

A vicarious liability offense is one where the person without fault may nevertheless be held liable for the criminal conduct of another (usually an employee). The trend is to limit vicarious liability to regulatory crimes and to limit punishment to fines.

Front 20

What is the rule on enterprise liability?

Back 20

At common law, a corporation does not have capacity to commit crimes. Under modern statutes, corporations may be held liable for an act performed by: . an agent of the corporation acting within the scope of his office or employment; or 2. a corporate agent high enough in hierarchy to presume his acts reflect corporate policy.

Front 21

What is the rule on concurrence of mental fault with physical act?

Back 21

The defendant must have had the intent necessary for the crime at the time he committed the act constituting the crime, and the intent must have actuated the act. For example, if D is driving to V's house to kill him, he will lack the necessary concurrence for murder if he accidentally runs V over before reaching his house.

Causation: Some crimes (e.g. homicide) require result and causation.

Front 22

What is the rule on accomplice liability?
Principal 1st actually engaged, The second principal (who commanded, and encouraged and was there), The accessories before and after the fact.

But now they're all parties to the crime.

Back 22

Parties to a crime:
1. CL: parties to a crime included the prinicipal in the first degree (person who actually engaged in the act or omission that constitutes the offense or who caused an innocent agent to do so), principal in the second degree (person who aided, commmanded, or encouraged the principal and was present at the crime), Accessory before the fact (person who assisted or encouraged but was not present), and accessory after the fact (person with knowledge that the other committed a felony, assisted him to escape arrest or punishment). At common law, conviction of the principal was required for conviction of an accessory and the charge must have indicated the correct theory of liability.

Modern: Most jurisdictions have abolished the distinctions between principals in the first degree and principals in the second degree or accessories before the fact. All such "parties to the crime" can be found guilty of the principal offense. For convenience, however, think of the one who actually engages in the act or omission as the principal and the other parties as accomplices.

Front 23

What is the mental state required for accomplice liability?

Back 23

To be guilty as an accomplice, most jurisdictions require that the person give aid, counsel, or encouragement to the principal with the intent to encourage the crime. In the absence of a statute, most courts would hold that mere knowledge that a crime will result is not sufficient, at least where the aid given is in the form of a sale of ordinary goods at ordinary prices. However, procuring an illegal item for selling at a higher price because of the buyer's purpose may constitute a sufficient "stake in the venture " to constitute intent.

Front 24

What is the scope of accomplice liability?

Back 24

An accomplice is responsible for the crimes he did or counseled and for any other crimes committed in the course of committing the crime contemplated to the same extent as the principal, as long as the other crimes were probable or foreseeable.
1. Inability to be principal no bar to accomplice liability: One who may not be convicted of being a principal may be convicted of being an accomplice. Ex. At common law a woman cannot be convicted of being a principal in a rape but can be found guilty as an accomplice if she aids the principal.
2. Exclusions from liability:
a. Members of the class protected by a statue are excluded from accomplice liability: woman can't be accomplice for transporting women accross state lines for immoral purposes.
b. A party necessary to the commission of a crime, by statutory definitino who is not provided for in the statute is excluded from accomplice liability. Ex. If a statute makes the sale of heroin illegal, but does not provide for punishment for the purchaser, he cannot be found guilty under the statute as an accomplice or seller.

c. Withdrawal: A person who effectively withdraws from a crime before it is committed cannot be held guility as an accomplice. Withdrawal must occur before the crime becomes unstoppable. Repudiation is sufficient withdrawal for mere encouragement. 2. Attempt to neutralize assistance required if participation went beyond mere encouragement.
Notifying the police or taking other action to prevent the crime is also sufficient.

Front 25

What are the elements of solicitation?

command and counsel

Back 25

Inciting, counseling, advising, urging, or commanding another to commit a crime, with the intent that the person solicited commit the crime. It is not necessary that the person solicited respond affirmatively.

Front 26

What are the defenses to solicitation and what is the doctrine of merger?

Back 26

1. It is not a defense that the person solicited is not convicted, nor that the offense solicited could not have been successful. In most jurisidictions, it is not a defense that the solicitor renounces or withdraws the solicitation. However, it is a defense that the solicitor could not be found guilty of the completed crime because of a legislative intent to exempt her (e.g. a woman cannot be found guilty of soliciting a man to transport her accross state lines for immoral purposes).

2. If the person solicited commits the crime solicited, both that person and the solicitor can be held liable for that crime. If the person solicited commits acts sufficient to be liable for attempt, both parties can be liable for attempt. If the person solicited agrees to commit the crime, but does not even commit acts sufficient for attempt, both parties can be held liable for conspiracy. However, under the doctrine of merger, the solicitor cannot be punished for both solicitation and these other offenses.

Front 27

What are the elements of conspiracy?

Back 27

1. An agreement between 2 or more persons;
2. An intent to enter into the agreement;
3. An intent by at least two persons to acheive the objective of the agreement. A majority of states now require an overt act, but an act of mere preparation will suffice.

Front 28

What is the agreement requirement for conspiracy?

Back 28

The parties must agree to accomplish the same objecive by mutual action. however, the agreement need not be express; it may be inferred from joint activity.
1. Implications of requirement of two or more parties: A conspiracy at common law must involve a meeting of the minds between at least two independent persons. This requirement presents the following issues:
a. husband and wife: At common law, a husband and wife could not conspire together but this distinction has been abandoned in most states.
2. Corporation and Agent: There can be no conspiracy between a corporation and a single agent acting on its behalf. There is a split of authority as to whether the agents of a corporation can be deemed co-conspirators with the corporation.

Front 29

Agreement requirment con't:

Back 29

Wharton rule: Where two or more people are necessary for the commission of the substantive offense (e.g. adultery, dueling), there is no crime of conspiracy unless more parties participate in the agreement than are necessary for the crime (e.g. because it takes two people to commit adultery, it takes three people to conspire to commit adultery). Exception: WR does not apply to agreements with "necessary parties not provided for" by the substantive offense; both parties may be guilty of conspiracy even though both are necessary for commission of the substantive offense.

Agreement with person in protected class: If members of a conspiracy agree to commit a crime designed to protect persons within a given class, persons within that class cannot be guilty of the crime itself or conspiracy to commit that crime. Likewise, the nonprotected person cannot be guilty of conspiracy if the agreement was with the protected person only.

What is the effect of acquittal of some conspirators: Under the traditional view, the acquittal of all persons with whom a defendant is alleged to have conspired precludes the conviction of the remaining defendant. In some jurisdictions following the traditional view, a conviction for conspiracy against one defendant is allowed to stand when the alleged co-conspirator is acquitted in a separate trial.

Front 30

What is the MPC approach to the agreement requirement?

Back 30

Unilateral approach, defendant can be convicted of conspiracy regardless of whether the other parties have all been acquitted or were only feigning agreement.

Front 31

What is the rule on the mental state?

Back 31

Specific intent. Parties must have: 1. the intent to agree and 2. the intent to achieve the objective of the conspiracy.

Overt act: Most states require that an act in furtherance of the conspiracy be performed. AN act of mere preparation is usually sufficient.

Front 32

What is the rule on liability for coconspirator's crimes?

Back 32

A conspirator may be held liable for crimes committed by other conspirators if the crimes: 1. were committed in furtherance of the objectives of the conspiracy and 2. were foreseeable.

Front 33

What is the rule on termination of a conspiracy?

Back 33

The point at which a conspiracy terminates is imporatant because acts and statements of coconspirators are admissible against a conspirator only if they were done or made in furtherance of the conspiracy. A conspiracy usually terminates upon completion of the wrongful objective. Unless agreed to in advance, acts of concealment are not part of the conspiracy. Note also that the government's defeat of the conspiracy's objective does not automatically terminate the conspiracy.

Front 34

What are defenses to conspiracy?

Back 34

1. Impossiblity is NOT a defense.
2. Generally, withdrawal from the conspiracy is not a defense to the conspiracy, because the conspiracy is complete as soon as the agreement is made and an act in furtherance is performed. Withdrawal may be a defense to crimes committed in furtherance of the conspiracy, including the substantive target of the conspiracy.
1. when withdrawal effective: To withdraw, a conspirator must perform an affirmative act that notifies all members of the conspiracy of her withdrawal. Notice must be given in time for the members to abandon their plans. If she has also provided assistance as an accomplice, she must try and neutralize the assistance.

Front 35

Exam tip:

Back 35

Withdrawal from a conspiracy is another important test issue. You must be careful here not to let your feelings get in the way of an answer. Remember that a conspiracy is complete upon the agreement with the requisite intent and an overt act. Since the overt act can be a prepatory act, the conspiracy is usually complete very soon after the agreement. If the crime is complete, the defendant is guilty of conspiracy-even if the facts show that she had second thoughts, told her co-conspirators that she was backing out, warned the police, hid weapons, etc. These actions come too late; defendant is guilty of conspiracy. (such actions may relieve defendant of criminal liability for her co-conspirator's acts after this withdrawal, but they have no effect on the crime of conspiracy).

Front 36

Punishment-no merger:

Back 36

Conspiracy and the completed crime are distinct offenses; i.e., there is no merger. A defendant may be convicted of and punished for both.

Front 37

What is the rule when there are a number of conspiracies in multiple party situations?

Back 37

In complex situations, there may be a large conspiracy with a number of subconspiracies. In such situations, it is important to determine whether members of one subconspiracy are liable for the acts of another subconspiracy. The two most common situations are:
1. Chain relationship: A chain relationship is a single, large conspiracy in which all parties to subagreements are interested in the single large scheme. In this case, all members re liable for for the acts of the others in furtherance of the conspiracy.
b. Hub and spoke relationship: In a hub-and-spoke relationship a number of independent conspiracies are linked by a common member. Although the common member will be liable for all the conspiracies, the members of the individual conspiracies are not liable for the acts of the other conspirators.

Front 38

What are the elements of attempt?

Back 38

Attempt is an act done with intent to commit a crime, that falls short of completing the crime.
A. Mental state: To be guilty of attempt, the defendant must intend to perform an act and obtain a result that, if achieved, would constitute a crime. Regardless of the intent necessary for the completed offense, an attempt always requires a specific intent (i.e. the intent to commit the crime). Ex. To be guilty of attempt to commit murder, defendant must have had the specific intent to kill another person, even though the mens rea for murder itself does not require a specific intent to kill.

ET: Attempt to commit a crime defined as the negligent production of a result is logically impossible because a person does not intend to be negligent. Thus there can be no attempted negligent homicide.

B. Overt act: Defendant must commit an act beyond mere preparation for the offense. Traditionally, most courts followed the proximity test, which requires the act be "dangerously close" to successful completion of the crime (e.g. pointing a loaded gun at an intended victim and pulling the trigger, only to have the gun not fire or the bullet miss its mark is sufficient). However, today most state criminal codes (MPC) require tthat the act or omission constitute a "substantial step in a course of conduct planned to culminate in the commission of the crime: that strongly corroborates the actor's criminal purpose.

ET note that the overt act requried for attempt is much more substantial that overt act required for conspiracy.

Front 39

What are defenses to attempt?

Back 39

1. Impossiblility of success: Legal impossibility arises only when the defendant did, or intended to do, acts that would not constitute a crime under any circumstances. So defined, all states (and MPC) will recognize this as a defense. Factual impossibility- that it would be factually impossible for the defendant to complete his plan is not a defense.

ET: If you get stumped on a question that asks whether impossibility is a defense, ask "If D were able to complete all of the acts that he intended to do, and if all of the attendant circumstances actually were as the defendant believed them to be, would the defendant have committed the crime? The answer will usually be yes, in which case the impossibilty is factual and not a defense. In the unusual case where the answer is no, the deednant most likely has a legal impossibility defense.

Abandonment: Abandonment is not a defense. If d had the intent and committed the overt act she is guilty of attempt despite teh fact that she changed only her mind and abandoned the plan before the intended crime was completed.

Front 40

What is the rule on prosecution for attempt-merger

Back 40

Attempt merges with the completed crime. Thus, d cannot be found guilty of both. D charged only with completed crime may be guilty of attempt but not vice versa.

Front 41

What is the rule on insanity?

Back 41

There are several formulations of the test to be applied to determine whether, at the time of the crime, the defendant was so mentaly ill as to be entitled to an acquittal:
1. M'Naughten Rule, Under this, a d is entitled to acquittal only if he had a mental disease or defect that caused him to either: 1. not know that his act would be wrong; or 2. not understand the nature and quality of his actions. Loss of control because of mental illness is no defense.

2. Irresistible impulse test: Under this test, a d is entitled to acquittal only if because of mental illness, he was unable to control his actions or conform his conduct to the law.

Durham/New Hampshire test: D is entitled to an acquittal if the crime was the product of the mental illness (i.e., crime would not have been committed but for the disease). Broader than M'naughten or IIT
ALI/MPC: D is entitled to an acquittal if he had a mental disease or defect, and, as a result, he lacked the substantial capacity to either apprieciate the criminality of his conduct or conform his conduct to the requirements of the law.

Front 42

Procedural issues:

Back 42

BOP: All D's are presumed sane; the d must raise the insanity issue. There is a split among the jurisdictions as to whether the defendant raising the issue bears the BOP.
When defense may be raised: Although the insanity defense may be raised at the arraignment when the plea is taken, the defendant need not raise it then. A simple not guilty at that time does not waive right to the defense at a future time.

Pretrial psychiatric exam: If the defendant does not raise the insanity issue, he may refuse a court-ordered psychiatric examination to determine his competency to stand trial. IF the defendant raises the insantity issue, he may not refuse to be examined by a psychiatrist appointed to aid the court in resolution of the insanity plea.

Front 43

What is the rule on post-acquittal commitment to a mental institution?

Back 43

In most jurisdictions, a defendant acquitted by reason of insanity may be committed to a mental institution until cured. Confinement may exceed the maximum period of incarceration for the offense charged.

Front 44

What is the rule on mental condition during criminal proceedings?

Back 44

Under the DPC of the U.S. constitution, a defendant may not be tried, convicted, or sentenced, if as a result of mental disease or defect, he is unable to1. understand the nature of the proceedings against him; or 2. to assist his lawyer in the preparation of his defense. A defendant may not be executed if he is incapable of understanding the nature and purpose of the punishment.

Front 45

What is the rule on diminished capacity?

Back 45

Some states recognize the defense of diminished capacit under which defendant may assert that as a result of a mental defect short of insanity, he did not have the mental state required for the crime charged. Most states allowing the diminished capacity defense limit it to specific intent crimes, but a few states, allow it for general intent crimes as well.

Front 46

What is the rule on intoxication?

Back 46

Intoxication may be caused by any substance. It may be raised whenever intoxication negates one of the elements of a crime. The law usually distinguishes between voluntary and involuntary intoxication.

1. Voluntary intoxication: Intentional taking w/o duress of a substance known to be intoxicating: Defense to specific intent crimes: Evidence of voluntary intoxication may be offered by the defendant only if the crime requires purpose (intent) or knowlege, and the intoxication prevented the defendant from formulating the purpose or obtaining the knowledge. Thus, it is often a good defense to specific intent crimes. The defense is not available if the defendant purposely becomes intoxicated in order to establish the defense.

b. No defense to other crimes: Voluntary intoxication is no defense ot crimes involving malice, recklessness, negligence, or strict liability. For this reason, voluntary intoxication will not reduce second degree murder (requiring criminal recklessness) to manslaughter.

Front 47

What is the rule on involuntary intoxication?

Back 47

Intoxication is involuntary only if it results from the taking of an intoxicating substance without knowledge of its nature, under direct duress imposed by another, or pursuant to medical advice while unaware of the substance's intoxicating effect. Involuntary intoxication may be treated as a mental illness, and the defendant is entitled to acquittal if she meets the jurisdiction's insanity test.

3. Relationship to insanity: Continuous, excessive drinking or drug use may bring on actual insanity and thus a defendant may be able to claim both an intoxication defense and an insanity defense.

Front 48

What is the rule on infancy?

Back 48

At common law, there could be no liabilty for an act committed by a child under age seven. For acts committed by a child between the ages of seven and 14, there was a rebuttable presumption that the child was unable to understand the wrongfulness of his acts. Children age 14 and older were treated as adults. Modern statutes often modify this and provide that no child can be convicted of a crime until a stated age is reached, usually 13 or 14. However, children can be found to be delinquent in special juvenile or family courts.

Front 49

What are the principles of exculpation?

Back 49

The justification defenses arise when society has deemed that although the defendant committed a proscribed act, she should not be punished because the circumstances justify the action.

ET: The right to self-defense or other justification defenses depends on the immediacy of the threat; a threat of future harm is insufficient. Thus, if someone threatens the defendant by saying "tomorrow I'm going to kill you," the defendant is not justified in killing to protect himself.

ET it is crucial to determine the level of force that the defendant used in committing the proscribed act. As a rule of thumb, nondeadly force is justified where it appears necessary to avoid imminent injury or to retain property; deadly force is justified only to prevent death or serious bodily injury.

Front 50

What is the rule on self defense?

Back 50

a. Nondeadly force: a person without fault may use such force as reasonably appears necessary to protect herself from the imminent use of unlawful force upon herself. There is no duty to retreat.

b. Deadly force: A person may use deadly force in self-defense if she is without fault; 2. she is confronted with unlawful force; and 3. she is threatened with imminent death or gbi
1. Retreat generally thre is no duty to retreat before using deadly force. The minority view requires retreat before using deadly force if the victim can safely do so, unless: 1. the attack occurs in the victim's home, 2. the attack occurs when the victim is making a lawful arrest, or 3. the assailant is in the process of robbing the victim.

Right of the aggressor to use self defense: if one is the aggressor in the altercation, she may use force in defense of herself only if 1. she effectively withdraws from the altercation and communicates to the other her desire to do so; 2. or the victim of the initial aggression suddenly escalates the minor fight inot a deadly altercation and the initial aggressor has no chance to withdraw.

Front 51

What is the rule on defense of others?

Back 51

A defendant has the right to defend others if she reasonably believes that the person assisted has the legal right to use force in his own defense. All that is necessary is the reasonable appearance of the right to use force. Generally, there need be no special relationship between the defendant and the person in whose defense she acted.

Front 52

What is the rule on defense of a dwelling?

Back 52

Nondeadly force may be used to prevent or terminate what is reasonably regarded as an unlawful entry into or attack on the defender's dwelling. Deadly force may be used only to prevent a violent entry made with the intent to commit a personal attack on an inhabitant, or to prevent an entry to commit a felony in the dwelling.

ET: As a practical matter, deadly force is justified in repelling a home invader but the basis for the right to use such force is not to protect the dwelling, but to protect the safety fo the inhabitants of the dwelling.

Front 53

What is the rule on defense of other property?

Back 53

Defending possession: Deadly force may never be used in defense of property. Nondeadly force may be used to defend property in one's possession from unlawful interference, but may not be used if a request to desist or refrain from the activity would suffice.

b. Regaining possession: Force cannot be used to regain possession of property wrongfully taken unless the person using force is immediate pursuit of the taker.

Front 54

What is the rule on crime prevention?

Back 54

Nondeadly force may be used to the extent that it reasonably appears necessary to prevent a felony or serious breach of the peace. Deadly force may be used only to terminate or prevent a dangerous felony involving risk to human life.

Front 55

What is the rule on use of force to effectuate arrest?

Back 55

Nondeadly force may be used by police officers if it reasonably appears necessary to effectuate an arrest. Deadly force is reasonable only if it is necessary to prevent a felon's escape and the felon threatens death or serious bodily harm.
a. Private persons: a private person has a privilege to use nondeadly force to make an arrest if a crime was in fact committed and the private person has a reasonable grounds to believe the person arrested has in fact committed the crime. A private person may use deadly force only if the person harmed was actually guilty of the offense for which the arrest was made.

Front 56

What is the rule on resisting arrest?

Back 56

Nondeadly force may be used to resist improper arrest even if a known officer is making the arrest. Deadly force may be used, however, only if the person does not know the person arresting him is a police officer.

Front 57

What is the rule of necessity?

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It is a defense to a crime that the person reasonably believed that commission of the crime was necessary to avoid an imminent and greater injury to society than that involved in the crime. The test is objective; a good faith belief is insufficient.
a. Limitation: Death causing the death of another to protect property is never justified.
b. Limitation- Fault. The defense of necessity is not available if the defendant is at fault in creating the situation requiring that he choose between two evils.
c. Duress Distinguished: Necessity involves pressure from natural or physical forces; duress involves a human threat.

Front 58

Public policy?

Back 58

A police officer is justified in using reasonable force against another, or in taking property, provided the officer acts pursuant to a law, court order, or process requiring or authorizing him to so act.

Front 59

What is the rule on domestic authority?

Back 59

The parents of a minor child, or any person "in loco parentis" with respect to that child, may lawfully use reasonable force upon the child for purposes of promoting the child's welfare.

Front 60

What is the excuse of duress?

Back 60

It is a defense to a crime other than a homicide, that the defendant reasonably believed that another person would imminiently inflict death or great bodily harm upon him or a member of his family if he did not commit the crime.

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What is the defense of mistake or ignorance of fact?

Back 61

Mistake or ignorance of fact is relevant to criminal liability only if it shows that the defendant lacked the state of mind required for the crime; thus, it is irrelevant if the crime imposes "strict" liability.

a. Reasonableness: If mistake is offered to disprove a specific intent, the mistake need not be reasonable; however, if it is offered to disprove any other state of mind, it must have been reasonable mistake or ignorance.

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What is the rule on mistake or ignorance of the law?

Back 62

Generally it is not a defense that the defendant believed that her activity would not be a crime, even if that belief was reasonable based on the advice of an attorney. However, if the reliance on the attorney negates a necessary mental state element, such reliance can demonstrate that the government has not proved its case beyond a reasonable doubt.
a. Exceptions: D has a defense if 1. the statute proscribing her conduct was not published or made reasonably available prior to conduct; 2. there was reasonable reliance on a statute or judicial decision; or 3. in some jurisdictions, there was reasonable reliance on official interpretation or advice.

b. Ignorance of law may negate intent: If the defendant's mistake or ignorance as to a collateral legal matter proves that she lacked the state of mind required for the crime, she is entitled to acquittal. The ignorance or mistake must involve the elements of the crime, not the existence of a statute making the act criminal. For example, a defendant cannot be found guilty of selling a gun to a known felon if she thought that the crime the buyer had been found guilty of was only a misdemeanor.

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What is the rule on consent?

Back 63

Unless the crime requires the lack of consent of the victim (e.g. rape), consent is usually not a defense. Consent is a defense to minor assaults or batteries if there is no danger of serious bodily injury. Whenever consent may be a defense, it must be established that 1. the consent was voluntary and freely given ; 2. the party was legally capable of consenting; and 3. no fraud was involved in obtaining the consent.

Front 64

What is the rule on Condonation or criminality of victim?

Back 64

Forgiveness by the victim is no defense. Likewise, the nearly universal rule is that illegal conduct of the victim of a crime is no defense.

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What is the rule on entrapment?

Back 65

Entrapment exists only if: 1. the criminal design originated with law enforcement officers and 2. the defendant was not predisposed to commit the crime prior to contact by the government. Merely providing the opportunity for a predisposed person to commit a crime is not entrapment.
a. unavailable- If private inducement or if material for crime provided by government agent: a person cannot be entrapped by a private citizen. Under federal law, an entrapment defense cannot be based on the fact that a government agent provided an ingredient for commission of the crime, even if the material provided was contraband.

ET. Entrapment is a difficult defense to establish D is usually predisposed to commit the crime.

Front 66

What is battery?

Back 66

Battery is an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching. Simple battery is a misdemeanor. A battery need not be intentional, and the force need not be applied directly (e.g. causing a dog to attack the victim is a battery). Some jurisdictions recognize consent as a defense to simple battery and/or certain specified batteries.

a. Aggravated battery: Most jurisdictions treat the following as aggravated batteries and punish them as felonies: i. battery with a deadly weapon; 2. battery resulting in serious bodily harm; and 3. battery of a child, woman or police officer.

Front 67

What is assault?

Back 67

Assault is either 1. an attempt to commit a battery or 2. the intentional creation-other than by mere words- of a reasonable apprehension in the mind of the victim of imminent bodily harm. If there has been an actual touching of the victim, the crime can only be battery, not assault.

Aggravated assault: (e.g. with a deadly weapon or with intent to rape or maim) is treated more severely than simple assault.

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What is mayhem?

Back 68

At common law, the felony of mayhem required either dismemberment or disablement of a bodily part. The recent trend is to abolish mayhem as a separate offense and to treat it as a form of aggravated battery instead.

Front 69

What is the common law rule on homicide?

Back 69

At common law homicide is divided into three categories:
1. Murder: Murder is the unlawful killing of a human being with malice aforethought. Malice aforethought exists if there are no facts reducing the killing to voluntary manslaughter or excusing it (i.e. giving rise to a defense) and it was committed with one of the following states of mind: 1. Intent to kill; 2. Intent to inflict GBI; 3. Reckless indifference to an unjustifiably high risk of to human life ("abandoned and malignant heart"); or 4. Intent to commit a felony (felony murder)

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Common law homicide con't: voluntary manslaughter:

Back 70

Voluntary manslaughter is a killing that would be murder but for the existence of adequate provocation. Provocation is adequate only if:
1. It was a provocation that would arouse sudden and intense passion in the mind of an ordinary person, causing him to lose self-control (e.g. exposure to a threat of deadly force or finding your spouse in bed with another are adequate);
2. The defendant was in fact provoked. 3. There was not sufficient time between provocation (or provocations) and killing for passion of a reasonable person to cool; and
4. The defendant in fact did not cool off between the provocation and the killing.

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What is the doctrine of imperfect self-defense?

Back 71

Some states recognize the "imperfect self-defense" doctrine under which murder may be reduced to manslaughter even though 1. defendant was at fault in starting the altercation; or 2. the defendant acted unreasonably but honestly believed in the necessity to respond with deadly force (i.e. the defendant's action do not qualify self-defense).

Front 72

What is CL involuntary manslaughter?

Back 72

A killing is involuntary manslaughter if it was committed with criminal negligence (d was grossly negligent) or during the commission of an unlawful act (misdemeanor or felony not included within felony murder rule).

Front 73

What is the rule on statutory modification of common law classification?

Back 73

In some jurisdictions, murder is divided into degrees by statute. A murder will be second degree murder unless it comes under the following circumstances, which would make it first degree murder.
a. Deliberate and Premeditated: if the defendant made the decision to kill in a cool and dispassionate manner and actually reflected on the idea of killing, even only if for a brief period, it is first degree murder.

b. Felony murder: if a murder is committed during the perpetration of an enumerated felony, it is first degree murder. The felonies commonly listed are arson, robbery, burglary, rape, mayhem, and kidnapping. In these jurisdictions, other felony murders are second degree murder.
Others: some statutes make killings performed in certain ways (i.e. by torture) first degree murder

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What is the rule on Felony murder?

Back 74

Any death caused in commission of, or in an attempt to commit, a felony is murder. Malice is implied from the intent to commit the underlying felony.
a. Felonies included: At common law, there are only a handful of felonies (e.g. burglary, arson, rape, sodomy, etc.). Statutes today have created many more felonies, but the felony murder rule is limited to felonies that are inherently dangerous.

What are the limitations on the FMR?
1. D must be guilty of the underlying felony .
2. The felony must be distinct from the killing itself (e.g., commission of aggravated battery that causes a victim's death does not qualify as an underlying felony for felony murder liability). 3. Death must have been a foreseeable result of the felony ( a minority of courts require only that the felony be malum in se).
4. The death must have been caused before defendant's "immediate flight" from the the felony ended; once the felon has reached a place of "temporary safety," subsequent deaths are not felony murder.
5. In most jurisdictions, the defendant is not liable for felony murder when a co-felon is killed as a result of resistance from the felony victim or police.
6. Under the "agency theory," the defendant is not liable for felony murder when an innocent party is killed unless the death is caused by the defendant or his "agent" (Under the "proximate cause theory," The defendant may be liable when an innocent party is killed by the victim or police).

1. Misdemeanor manslaughter: note that there are similar limitations on misdemeanor manslaughter. Generally, the misdemeanor must be malum in se or if the misdemeanor involved is not malum in se, the death must have been a foreseeable result of the commission of the misdemeanor.

Front 75

What is the rule on Causation?

Back 75

The defendant's conduct must be both the cause-in-fact and the proximate cause of the victim's death.
a. Cause-in-fact: A defendant's conduct is the cause-in-fact of the result if the result would not have occurred "but for" the defendant's conduct.
b. Proximate causation: An defendant's conduct is the proximate cause of the result if the result is a natural and probable consequence of the conduct, even if the defendant did not anticipate the precise manner in which the result occurred. Superseding factors break the chain of proximate causation.
What are the rules of causation? A act that hastens an inevitable result is still the legal cause of that result. Also, simultaneous acts of two or more persons may be independently sufficient causes of a single result. A victim's preexisting weakness or fragility, even if unforeseeable, does not break the chain of causation.

Front 76

What are the limitations on causation?

Back 76

1. year and a day rule: Traditionally, for a defendant to be liable for homicide, the death of the victim must occur within one year and one day from infliction of the injury or wound. Most states that have recently reviewed this rule have abolished it.
2. Intervening acts: Generally, an intervening act shields the defendant from liability if the act is a coincidence or is outside the foreseeable sphere of risk created by the defendant. (N med treatment/Victim refusal of treatment are fox).

Front 77

What is the rule on false imprisonment?

Back 77

False imprisonment consists of the unlawful confinement of a person without his valid consent. MPC requires the confinement must interfere substantially with the victim's liberty. It is not confinement to simply prevent a person from going where she desires to go, as long as alternative routes are available to her. Note also that consent is invalidated by coercion, threats, deception, or incapacity due to mental illness, retardation or youth.

Front 78

What is the rule on kidnapping?

Back 78

Modern statues often define kidnapping as unlawful confinement of a person that involves either 1. some movement of the victim; or 2. concealment of the victim in a secret place.

Aggravated kidnapping: includes kidnapping for ransom, kidnapping for the purpose of committing other crimes, kidnapping for offensive purposes, and child stealing (the consent of a child is not important because children can't give valid consent).

Front 79

What is the rule on rape?

Back 79

Rape is the unlawful carnal knowledge of a woman by a man, not her husband, without her effective consent. The slightest penetration is sufficient.

1. Absence of Marital Relationship: under the traditional rule and MPC a husband cannot rape his wife, but most states today either reject this rule entrirely or reject it where parties are estranged or separated.
2. Lack of effective consent: To be rape, the intercourse must be without effective consent. Lack of effective consent exists where:
1. intercourse is accomplished by actual force; 2. Intercourse is accomplished by threats of great bodily harm; and
3. the victim is incapable of consenting due to unconsciousness, intoxication, or mental condition; or 4. The victim is fraudulently caused to believe that the act is not intercourse.

Front 80

What is the rule on statutory rape?

Back 80

This is carnal knowledge of a female under the age of consent. A showing of reasonable mistake as to age or a showing of voluntary consent is irrelevant since statutory rape is a strict liability crime.

Front 81

What is the rule on adultery and fornication?

Back 81

Adultery is committed by both parties to sexual intercourse if either is validly married to someone else. It is often required that the behavior be open and notorious. Fornication is sexual intercourse or open and notorious cohabitation by unmarried persons.

Front 82

What is incest, seduction and bigamy?

Back 82

1. Incest consists of marriage or a sexual act between closely related persons.
2. Seduction consists of inducing, by promise of marriage, an unmarried woman to engage in intercourse, the MPC does not require chastity or that the female be unmarried.
3. Bigamy is the common law strict liabilty offense of marrying someone while having another spouse.

Front 83

What does larceny consist of?

Back 83

A taking (obtaining control);
And carrying away;
Of tangible personal property (excluding realty services and intangibles, but including written instruments embodying intangible rights such as stock certificates);
Of another with possession;
By trespass (without consent induced by fraud; With the intent to permanently deprice that person of her interest in property.

Front 84

What is the rule on posession?

Back 84

Possession: Property must be taken from the possession of another. If the defendant had possession of the property at the time of the taking, the crime is not larceny, but may be embezzlement.
A. Custody v. Possession: Possession involves a greater scope of authority to deal with the proeprty than does custody. Ordinarily, low level employees have only custody of an employer's property and so are guilty of larceny for taking it. A bailee, on the other hand, has a greater scope of authority over an owner's property and so is not guilty of larceny for taking it, bu tmay be guilty of embezzlement.

Front 85

What is the rule on the requirement of the intent to permanently deprive?

Back 85

Generally, larceny requires that at the time of the taking defendant intended to permanently deprive a person of her property.
a. Sufficient intent: An intent to create a substantial risk of loss, or an intent o sell or pledge the goods to the owner, is sufficient for larceny.
b. Insufficient intent: Where the defendant believes tha tthe property she is taking is hers or where she intends only to borrow the property or keep it as repayment of a debt, there is no larceny.
c. Possiblty sufficient intent. There may be larceny where the defendant intends to pay for teh goods (if the goods were not for sale) or intends to collect a reward from the owner (if there is no intent to return the goods absent a reward) ET: For a larceny question, be sure that the defendant had the intent to permanently deprive when she took the proprerty. If not, there is no larceny (unless it is a continuing trespass situation. Many questions turn on this small point.

Front 86

What is the rule on abandoned, lost or mislaid property?

Back 86

Larceny can be committed with lost or mislaid property or property that has been delivered by mistake, but not with abandoned property.

Front 87

What is the "continuing trespass" situation?

Back 87

If the defendant wrongfully takes property without the intent to permanently deprive (e.g. without permission borrows an umbrella), and later decides to keep the property, she is guilty of larceny when she decides to keep it. However, if the original taking was not wrongful (e.g. she took the umbrella thinking it was hers) and she later decides to keep it, it is not larceny.

Front 88

What is embezzlement?

Back 88

the fraudulent; conversion (i.e. dealing with the property in a manner inconsistent with the arrangement by which defendant has possession); of personal property; of another; by a person in lawful possession of that property;
Distinguish from larceny: Embezzlement differs from larceny because in ebezzlement the defendant misappropriates property while it is in his rightful possession, while in larceny the defendant misappropriates property not in his possession.

Front 89

What is the fraudulent intent requirement?

Back 89

Defendant must intend to defraud.
a. Intent to restore: if the defendant intends to restore the exact property taken, it is not embezzlement. However, if the defendant intends to restore similar or substantially identical property, it is embezzlement, even if it was money that was initially taken and other money-of identical value-that he intended to return.
b. Claim of right: As in larceny, embezzlement is not committed if the conversion is pursuant to a claim of right to the property. Whether defendant took the property openly is an important factor.

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What is the crime of false pretenses?

Back 90

Obtaining title;
To personal property of another; by an intentional false statement of past or existing fact; with intent to defraud the other.;

Larceny by trick distinguished: If the victim is tricked- by a misrepresentation of fact- into giving up mere possession of property, the crime is larceny by trick. If the victim is tricked into giving up title to property the crime is false pretenses.

2. Misrepresentation requirement: The victim must actually be deceived by, or act in reliance on, the misrepresentation, and this msut be a major factor (or the sole cause) of the victim passing title to the defendant. A misrepresentation as to what will occur in the future is not sufficient. A false promise, even if made without the present intent to perform, is also not sufficient.

Front 91

What does robbery consist of>

Back 91

Robbery is:
1. A taking
2. Of personal property of another;p
3. By force or threats of immediate death or physical injury to the victim, a member of his
5. WIth the intent to permanently deprive him of it.
ET: For a defendant to be guilty of robbery, the victim must give up her property because she feels threatened. If she gives up her property for another reason (e.g. feels sorry for the d), the defendant will not be guilty of robbery. HE may however be guilty of attempted robbery.

1. Distinguish larceny: robbery differs from larceny because robbery requires that the defendant use force or threats to obtain or retain the victim's property. Thus, pickpocketing generally would be larceny, but if the victim notices the attempt and resists, the taking would be robbery.

Front 92

What is the rule on Extortion?

Back 92

Common law extortion consists of the corrupt collection of an unlawful feel by an officer under color of office. Under modern statutes extortion (blackmail) often consists of obtaining proeprty by means of threats to do harm or expose information. Under some statues, the crime is complete when threats are made with the intent to obtain property; i.e. the property need not be obtained.
1. Distinguish robbery: Extortion differs from robbery because in extortion the threats may be of a future harm and the taking does not have to be in the presence of the victim.

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What is the rule on receipt of stolen property?

Back 93

1. Receiving possession and control; Of stolen personal property; Known to have been obtained in a manner constituting a criminal offense;
4. By another person.
5. WIth the intent to permanently deprive the owner of his interest in it.

1. Possession: Manual possession is unnecessary. The defendant possesses the property when it is put in a location designated by her or she arranges a sale for the theif to a third person ("fencing").
2. "Stolen" property: The property must be stolen at the time the defendant receives it.

et in analyzing receipt of stolen property questions, carefully check the property's status at the time the d receives it. IF the police have already recovered the property and use it with the owner's permission, it is no longer stolen, and the defendant cannot be convicted of receipt of stolen property. Note, however, that the d can be convicted of attempted receipt of stolen property, if she intended to receive the property believing it to be stolen.

Front 94

What is the rule on theft?

Back 94

Under many modern statutes, and the MPC some or all of the property offenses are combined and defined as the crime of theft.

Front 95

What is the rule on forgery?

Back 95

Forgery consists of making or altering; a wrigint with apparent legal significance; so that it is false, i.e. representing that it is something that it is not, merely containing a misrepresentation (e.g. a fake warehouse receipt, but not an inaccurate real warehouse receipt); 4. With intent to defraud (although no one need actually have been defrauded).
1. Fraudulently obtaining signature of another: If the defendant fraudulently causes a third person to sign a document that the third person does not realize he is signing, forgery has been committed. But if the third person realizes he is signing the document, forgery has not been committed even if the third person was induced by fraud to sign it.
2. Uttering a forged instrument: uttering a forged instrument consists of; offering as genuine ; 2. an instrument that may be the subject of forgery and is false; 3. with the intent do defraud.

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What is the rule on malicious mischief?

Back 96

1. The malicious;
2. Destruction of or damage to;
3. The property of another.

Malice requires no ill will or hatred. It does, however, require taht the damage or destruction have been intended or contemplated by the defendant.

Front 97

What is the rule on burglary?

Back 97

A breaking (creating or enlarging an opening by at least minimal force, fraud, or intimidation; if defendant had the resident's consent to enter, the entry is not a breaking); and entery (placing any portion of the body or any instrument used to commit the crime into the structure; 3. of a dwelling (structure used with regularity for sleeping purposes, even if used for other purposes such as conducting a business);
4. Of another (ownership is irrelevant; occupancy by someone other that defendant is all that is required); 5. At nighttime; 6. With the intent to commit a felony in the structure (felony need not be carried out to constitute a burglary)(. Modern statutes often eliminate many of the "technicalities" of common law burglary, including the requirements of a breaking, that the structure be a dwelling, that the act occur at nighttime, and that the intent be to commit a felony (i.e. intent to commit misdemeanor theft is often enough).

Front 98

ET:

Back 98

Intent to commit the felony must be present at time of entry for burglary later acquired intent is insufficient.

Front 99

What is the rule on arson?

Back 99

Arson at common law consists of: 1. the malicious (i.e. intentional or with reckless disregard of an obvious risk); Burning (requiring some damage to the structure caused by fire); of the dwelling of another.
Like statutory changes for gurglary modern arson statutes including MPC have modified the common law rules, usually to expand potiantial criminal liabilty. Most states have expanded the definition of arson to include damage caused by explosion, and expanded the types of property that may be destroyed to include commercial structures, cars, trains, etc.

ET: Although common law arson requires a burning of a dwelling, MBE questions testing on other arson issues often assume, without specifically stating, that arson extends to structures other than dwellings. Many statutes so provide.
1. Damage required: Destruction of the structure, or even significant damage to it, is not required to complete the crime of arson. Mere blackening by smoke or discoloration scorching is insufficient but charring is sufficient.
2. Related offense: Houseburning: the common law misdemeanor of houseburning consisted of 1. a malicious; 2. burning; 3. of one's own dwelling; 4. if the structure is situated in either a city or a town, or so near to other houses as to create a danger to them.

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What are the offenses involving judicial procedure?

Back 100

1. Perjury: Perjury is the intentional taking of a false oath in regard to a material matter in a judicial proceeding.
B. Subornation of purjury: Procuring or inducing another to commit perjury.
C. Bribery: At cl was the corrupt payment or receipt of anything of value for official action. Under modern statutes, it may be extended to nonpublic officieals and either the offering of a bribe or the taking of a bribe may consistute the crime.

D. Compounding a crime: Compounding consists of agreeing, for valuable consideration, not to prosecute another for a felongy or to conceal the commission of a felongy or the whereabouts of a felon. Under modern statutes, the definitiion refers to any crime.
E. Misprison of a felony: At CL misprison of a felony consisted of the failure to disclose knowledge of the commission of a felony or to prevent the commission of a felony. Under modern statutes, misprision is no longer a crime, or if it remains a crime, it requires some affirmative action in aid of the felon.