OK Bar Criminal Law — Questions and Answers
Question 1: Dan intends to kill Victor. Dan fires a gun at Victor but misses and instead kills Wendy, a bystander. Under the doctrine of transferred intent, Dan is most likely guilty of:
- Attempted murder of Victor only, because he never intended to harm Wendy
- Murder of Wendy, because his intent to kill Victor transfers to Wendy (Correct answer)
- Involuntary manslaughter of Wendy, because her death was accidental
- No crime, because the actual result differed from the intended result
Correct answer: Murder of Wendy, because his intent to kill Victor transfers to Wendy
Under the doctrine of transferred intent, when a defendant intends to commit a crime against one person but accidentally harms another, the intent transfers to the actual victim. Dan's intent to kill Victor transfers to Wendy, making him guilty of her murder. He may also be liable for attempted murder of Victor.
Question 2: Which of the following best describes the mens rea element of 'recklessness' under the Model Penal Code?
- The actor is unaware of a substantial and unjustifiable risk, but a reasonable person would have been aware
- The actor consciously disregards a substantial and unjustifiable risk of which he is aware (Correct answer)
- The actor acts with the conscious purpose of causing a particular result
- The actor is aware that a result is practically certain to follow from his conduct
Correct answer: The actor consciously disregards a substantial and unjustifiable risk of which he is aware
Under MPC § 2.02(2)(c), a person acts recklessly when he consciously disregards a substantial and unjustifiable risk. The subjective awareness of the risk distinguishes recklessness from negligence (where the actor is unaware but should have been). Purpose requires a conscious goal; knowledge requires awareness of practical certainty.
Question 3: Paula breaks into a warehouse at night intending to steal electronics. She is surprised by a security guard and, fearing arrest, strikes him with her fist, breaking his nose. Paula is most likely guilty of:
- Burglary only, because the assault was incidental to the original felony
- Robbery, because she used force against a person in connection with a theft
- Burglary and battery, because these are separate offenses committed at separate times (Correct answer)
- Larceny and assault, because burglary requires entry with intent to commit a misdemeanor
Correct answer: Burglary and battery, because these are separate offenses committed at separate times
Robbery requires force or intimidation used to take property from a person. Here, Paula had already entered and begun a theft (burglary), and the later force was not used to take property from the guard — it was used to escape. Burglary was complete at entry with intent to steal, and the strike on the guard constitutes battery (harmful contact). Robbery does not apply because the force was not used 'in the course of' taking property.
Question 4: Art and Ben agree to rob a bank. Art purchases a getaway car, and Ben scouts the bank's layout. Before any robbery attempt, they are arrested. At common law, which crime have Art and Ben committed?
- No crime, because a crime requires an overt act beyond mere planning
- Conspiracy, because they agreed to commit a crime and at least one took an overt act in furtherance (Correct answer)
- Attempted robbery, because their planning constitutes a 'substantial step'
- Solicitation only, because Ben asked Art to join the plan
Correct answer: Conspiracy, because they agreed to commit a crime and at least one took an overt act in furtherance
Conspiracy at common law requires (1) an agreement between two or more persons (2) to commit an unlawful act. Many jurisdictions also require an overt act in furtherance — purchasing the car and scouting the bank both qualify. Unlike attempt, conspiracy is complete upon the agreement plus overt act, and no nearness to completion of the target crime is required.
Question 5: Donna is charged with first-degree murder. She claims she acted in self-defense. Under the majority rule, which of the following is required for a valid self-defense claim?
- The defendant must have retreated to the wall before using deadly force in all circumstances
- The defendant must have an honest and reasonable belief that deadly force was immediately necessary to prevent death or serious bodily harm, and the threat must not be the defendant's fault (Correct answer)
- The defendant may use any amount of force if she subjectively believed she was in danger, even if a reasonable person would not agree
- Self-defense is unavailable when the charged offense is first-degree murder
Correct answer: The defendant must have an honest and reasonable belief that deadly force was immediately necessary to prevent death or serious bodily harm, and the threat must not be the defendant's fault
Under the majority rule, self-defense requires: (1) an honest and reasonable (objective) belief that (2) deadly force was immediately necessary (3) to prevent imminent death or serious bodily harm, and (4) the defendant was not the initial aggressor. The 'retreat' rule is the minority position; most jurisdictions allow standing one's ground if otherwise entitled to be there.
Question 6: Carl is charged with felony murder. The prosecution alleges that Carl's co-felon, Dan, was shot and killed by the store owner during an armed robbery committed by Carl and Dan. Under the agency theory of felony murder, is Carl liable for Dan's death?
- Yes — Carl is strictly liable for all deaths that occur during the commission of a felony, regardless of who caused them
- No — under the agency theory, felony murder liability extends only to killings committed by the felon or a co-felon acting as the felon's agent, not by a third-party victim or police officer (Correct answer)
- Yes — the store owner's act of self-defense is foreseeable and therefore attributable to Carl under proximate cause
- No — felony murder never applies when the decedent is a co-felon
Correct answer: No — under the agency theory, felony murder liability extends only to killings committed by the felon or a co-felon acting as the felon's agent, not by a third-party victim or police officer
Under the majority agency theory of felony murder, a felon is only responsible for killings done by the felon or a co-felon acting in furtherance of the felony. When a third party (victim, police officer) kills someone — even a co-felon — during the felony, the agency theory denies liability because the third party is not the felon's agent. Some jurisdictions use the proximate cause theory (Answer C) as an alternative, but the agency theory is the majority rule.
OK Bar Criminal Law
Dan intends to kill Victor.
Dan fires a gun at Victor but misses and instead kills Wendy, a bystander.
Under the doctrine of transferred intent, Dan is most likely guilty of: