Criminal Law 11th Edition by Joel Samaha – Test Bank

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Criminal Law 11th Edition by Joel Samaha – Test Bank

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Chapter 2 Test Bank

Constitutional Limits on Criminal Law

 

MULTIPLE CHOICE

 

1. The authors of the U.S. Constitution were suspicious of

a.	the rights of individuals.
b.	the rights of large groups of voters.
c.	the power of influential leaders.
d.	power in the hands of government officials.

 

 

ANS:  D                    REF:   p. 41              OBJ:   1

 

2. What is the standard used by courts of appeal to determine if a sentence is “inside, just outside, or significantly outside the Guidelines range?”

a.	the constitutional standard
b.	the abuse-of-discretion standard
c.	the upward departure standard
d.	the downward departure standard

 

 

ANS:  B                    REF:   p. 88              OBJ:   7

 

3. According to what principle must there be a specific law defining a crime and setting out the punishment before a person can be punished for that crime?

a.	the principle of legality
b.	the principle of comity
c.	the principle of proportionality
d.	the principle of reciprocity

 

 

ANS:  A                    REF:   p. 42              OBJ:   2

 

4. What is the name of a law that criminalizes an act that was innocent when it was committed?

a.	bill of attainder law
b.	forfeiture law
c.	ex post facto law
d.	bill of particulars

 

 

ANS:  C                    REF:   p. 43              OBJ:   3

 

5. What doctrine is concerned with giving individuals fair notice of what is criminal and preventing arbitrary or discriminatory enforcement of laws?

a.	Proportionality
b.	void-for-vagueness
c.	Obscenity
d.	equal protection

 

 

ANS:  B                    REF:   p. 43              OBJ:   4

 

 

6. Which amendments to the Constitution resulted in the void-for-vagueness doctrine?

a.	The Fourth and Fifth Amendments
b.	The Fourth and Fourteenth Amendments
c.	The Fifth and Fourteenth Amendments
d.	The Fifth and Fifteenth Amendments

 

 

ANS:  C                    REF:   p. 43              OBJ:   5

 

7. Which Amendment to the Constitution requires that states provide equal protection of the law?

a.	The Ninth Amendment
b.	The Tenth Amendment
c.	The Thirteenth Amendment
d.	The Fourteenth Amendment

 

 

ANS:  D                    REF:   p. 43              OBJ:   5

 

 

 

8. Because sentencing guidelines are now advisory, appellate review of sentencing decisions is limited to determining whether they are:

a.	Arbitrary
b.	Confused
c.	Reasonable
d.	Collusive

 

 

ANS:  C                    REF:   p. 87              OBJ:   7

 

 

9. Which Amendment to the Constitution contains the Equal Protection clause?

a.	The First Amendment
b.	The Fourth Amendment
c.	The Eighth Amendment
d.	The Fourteenth Amendment

 

 

ANS:  D                    REF:   p. 47              OBJ:   5

 

 

 

10. Equal protection does not require that

a.	racial classifications be subjected to strict scrutiny.
b.	everyone, or even all criminals, be treated exactly alike.
c.	punishments be proportional.
d.	classifications regarding fundamental rights be subject to strict scrutiny.

 

 

ANS:  B                    REF:   p. 47              OBJ:   5

 

 

 

11. What is the level of scrutiny that most government classifications (excluding those involving fundamental rights, race, ethnicity, religion, or gender) are subject to under equal protection?

a.	heightened scrutiny
b.	strict scrutiny
c.	the compelling government interest test
d.	the rational basis test

 

 

ANS:  D                    REF:   p. 47              OBJ:   5

 

 

12. What level of scrutiny are gender classifications subject to under equal protection?

a.	strict
b.	heightened
c.	rational basis
d.	compelling interest

 

 

ANS:  B                    REF:   p. 48              OBJ:   5

 

 

13. Which of the following rights is guaranteed by the Fourth Amendment?

a.	the right to freedom from unreasonable search and seizure
b.	the right to bear arms
c.	the right to freedom from cruel and unusual punishment
d.	the right to free speech

 

 

ANS:  A                    REF:   p. 60              OBJ:   5

 

 

14. The U.S. Supreme Court took a “hands-off” approach to sentencing procedures until what case?

a.	Apprendi v. New Jersey (2000)
b.	Blakely v. Washington (2004)
c.	U.S. v. Booker (2005)
d.	Gall v. U.S. (2007)

 

 

ANS:  A                    REF:   p. 81              OBJ:   7

 

 

15. What name is given to offensive, sexually explicit material that is not protected by the First Amendment?

a.	obscenity
b.	profanity
c.	libel
d.	literature

 

 

ANS:  A                    REF:   p. 48              OBJ:   5

 

16. A trial without a jury is called:

a.	a bench trial
b.	a jury trial
c.	a verdict trial
d.	an unconstitutional trial

 

 

ANS:  A                    REF:   p. 50              OBJ:   7

 

17. The void-for-overbreadth doctrine invalidates laws that have what effect on protected expression?

a.	an unacceptable chilling effect
b.	an unacceptable retracting effect
c.	an unacceptable facilitating effect
d.	an unacceptable excoriating effect

 

 

ANS:  A                    REF:   p. 49              OBJ:   4

 

 

18. In Barnes v. Glen Theatre, Inc., et al. (1991), the Supreme Court ruled that a state law banning totally nude dancing in public was

a.	constitutional because it banned only totally nude dancing.
b.	unconstitutional because nude dancing is expressive conduct.
c.	unconstitutional because it infringes on free speech.
d.	constitutional because it furthers a substantial government interest in protecting order and morality.

 

 

ANS:  D                    REF:   p. 52              OBJ:   4

 

 

19. Which of the following is protected by the First Amendment?

a.	obscenity
b.	flag burning as a political protest
c.	fighting words
d.	expression that creates a clear and present danger to compelling government interests

 

 

ANS:  B                    REF:   p. 53              OBJ:   5

 

 

20. According to Griswold v. Connecticut (1965), which of the following describes the constitutional right to privacy?

a.	a part of the liberty protected by due process
b.	a fundamental right
c.	required by equal protection
d.	protected by the Eight and Fourteenth Amendments

 

 

ANS:  B                    REF:   p. 59              OBJ:   5

 

 

21. In Stanley v. Georgia (1969), the Supreme Court struck down a statute which made it a crime for an adult to possess what in their own home?

a.	marijuana
b.	illegal weapons
c.	obscene materials
d.	drug paraphernalia

 

 

ANS:  C                    REF:   p. 63              OBJ:   5

 

 

22. Until what year did the guidelines and mandatory forms of fixed sentencing create only possible cruel and unusual punishment problems?

a.	1990
b.	1995
c.	2000
d.	2005

 

 

 

ANS:  C                    REF:   p. 81              OBJ:   7

 

 

23. In what case did the Court apply the Apprendi rule to the U.S. Sentencing Guidelines?

a.	Penry v. Lynaugh (1989)
b.	U.S. v. Booker (2005)
c.	Roper v. Simmons (2005)
d.	Atkins v. Virginia (2002)

 

 

ANS:  B                    REF:   p. 84              OBJ:   7

 

 

24. Which of the following kind of punishments are prohibited by the Eighth Amendment?

a.	contumacious
b.	presumptuous
c.	barbaric
d.	sumptuous

 

 

ANS:  C                    REF:   p. 65              OBJ:   6

 

 

25. Which Amendment contains the ban on cruel and unusual punishment?

a.	The Fifth Amendment
b.	The Sixth Amendment
c.	The Eighth Amendment
d.	The Fourteenth Amendment

 

 

ANS:  C                    REF:   p. 65              OBJ:   6

 

26. In what case did the Supreme Court rule that death by electrocution did not violate the cruel and unusual punishment clause?

a.	In re Kemmler (1890)
b.	Chambers v. Florida (1940)
c.	Furman v. Georgia (1972)
d.	Robinson v. California (1961)

 

 

ANS:  A                    REF:   p. 65              OBJ:   5

 

 

27. The idea that the punishment must fit the crime is the Eighth Amendment principle of

a.	aggregation.
b.	proportionality.
c.	equivocality.
d.	equal protection.

 

 

ANS:  B                    REF:   p. 66              OBJ:   6

 

 

28. In Robinson v. California (1962), the Supreme Court ruled that a 90-day sentence for drug addiction was

a.	realistic.
b.	unreasonable.
c.	proportionate.
d.	disproportionate.

 

 

ANS:  D                    REF:   p. 66              OBJ:   6

 

 

29. For what crime did the Supreme Court ban the use of the death penalty in Coker v. Georgia (1977)?

a.	espionage
b.	treason
c.	rape of an adult female
d.	murder

 

 

ANS:  C                    REF:   p. 66              OBJ:   6

 

 

30. After U.S. v. Booker (2005) sentencing guidelines became

a.	advisory.
b.	mandatory.
c.	unconstitutional.
d.	applicable.

 

 

ANS:  A                    REF:   p. 84              OBJ:   7

 

31. In which case did the Supreme Court rule that it violates the Constitution to execute a mentally retarded criminal defendant?

a.	Penry v. Lynaugh. (1989)
b.	Coker v. Georgia. (1977)
c.	Roper v. Simmons. (2005)
d.	Atkins v. Virginia. (2002)

 

 

ANS:  D                    REF:   p. 70              OBJ:   6

 

 

32. When U.S. Courts of Appeal review sentences, they have to consider whether a sentence is “unreasonable” in light of the Guidelines and

a.	the general purposes of sentencing under federal law.
b.	the Eighth Amendment.
c.	the special purposes of sentencing under federal law.
d.	public opinion.

 

 

ANS:  A                    REF:   p. 84              OBJ:   7

 

33. In Roper v. Simmons (2005), the Supreme Court held that the Eighth Amendment forbids the execution of

a.	rapists.
b.	the mentally ill.
c.	offenders who committed their crimes when they were under the age of 18.
d.	drug dealers.

 

 

ANS:  C                    REF:   p. 72              OBJ:   6

 

 

34. What article of the U.S. Constitution bans ex post facto laws?

a.	Article One
b.	Article Two
c.	Article Three
d.	The U.S. Constitution does not ban ex post facto laws

 

 

ANS:  A                    REF:   p. 43              OBJ:   3

 

 

35. According to the U.S. Supreme Court, California’s three-strikes law

a.	does not violate the Eighth Amendment.
b.	violates the Eighth Amendment.
c.	is constitutional only if applied to defendants who commit very serious felonies.
d.	is unconstitutional because it is disproportionate.

 

 

ANS:  A                    REF:   p. 77              OBJ:   6

 

36. An ex post facto law does one of three things. Which of the following is not one of those things?

a.	punish an offender disproportionately after the crime was committed.
b.	criminalize an act that was not a crime when it was committed.
c.	increase the punishment for a crime after the crime was committed.
d.	take away a defense after the crime was committed.

 

 

ANS:  A                    REF:   p. 43              OBJ:   3

 

 

37. A ban on ex post facto laws seeks to accomplish two major purposes. These purposes include which of the following?

a.	protection and prevention
b.	prohibition and promiscuity
c.	proportion and legality
d.	specificity and proportion

 

 

ANS:  A                    REF:   p. 43              OBJ:   3

 

 

38. What two evils does the void-for-vagueness doctrine address?

a.	lack of fair warning and arbitrary and discriminatory law enforcement.
b.	cruel and unusual punishment.
c.	retroactive and arbitrary punishment.
d.	2005

 

 

ANS:  C                    REF:   p. 44              OBJ:   7

 

 

39. There are numerous capital crimes where no one is killed. Which of the following is not one of those crimes?

a.	rape
b.	treason
c.	espionage
d.	kidnapping

 

 

ANS:  A                    REF:   p. 66              OBJ:   6

 

40. The American Association on Mental Retardation includes three elements in its definition of mental retardation. Which one of the following is not one of those elements?

a.	the person has substantial intellectual impairment.
b.	the impairment of the person impacts their everyday life of the mental retarded individual.
c.	retardation is present at birth or during childhood.
d.	the person has an IQ below 80.

 

 

ANS:  D                    REF:   p. 70              OBJ:   6

 

 

41. Laws that require judges to impose a nondiscretionary minimum amount of prison time that all offenders have to serve are called

a.	mandatory minimum sentencing laws
b.	three strikes laws
c.	capital laws
d.	final sentencing laws

 

 

ANS:  A                    REF:   p. 81              OBJ:   6

 

 

42. Most of the debate regarding three-strikes law centers on

a.	deterrence
b.	incapacitation
c.	rehabilitation
d.	none of these answers is correct

 

 

ANS:  A                    REF:   p. 79              OBJ:   6

 

 

43. The Apprendi rule addresses

a.	any fact that increases the penalty for a crime beyond the prescribed statutory maximum.
b.	any fact that decreases the penalty for a crime beyond the prescribed statutory maximum.
c.	any fact that involves the penalty for a crime beyond the prescribed statutory maximum.
d.	any fact that prioritizes the penalty for a crime beyond the prescribed statutory maximum.

 

 

ANS:  A                    REF:   p. 81              OBJ:   7

 

 

44. What is the name of “an appellate court’s standard for reviewing a decision that is asserted to be grossly unsound, unreasonable, illegal, or unsupported by the evidence?”

a.	abuse-of-discretion standard.
b.	clear and present danger standard.
c.	Apprendi standard.
d.	void-for-vagueness standard.

 

 

ANS:  A                    REF:   p. 87              OBJ:   7

 

 

45. What rule ensures criminality is not subject to the passions of rulers, democratic or otherwise?

a.	the rule of law
b.	the rule of comity
c.	the rule of Apprendi
d.	the rule of censure

 

 

ANS:  A                    REF:   p. 90              OBJ:   1

 

Case 2.1

Julie has been drinking at a bar for several hours. As she is driving home she runs off the road and hits a pregnant woman, killing the fetus but not the woman. The homicide law where Julie lives does not include the unborn in its homicide statute.

 

46. Julie is not convicted because to convict her would violate

a.	the principle of legality.
b.	the principle of fairness.
c.	the principle of due process.
d.	the principle of proactive lawmaking.

 

 

ANS:  A                    REF:   p. 42              OBJ:   2

 

47. If Julie was convicted the court would have violated the ban on

a.	ex post facto laws
b.	habeas corpus laws
c.	void-for-vagueness laws
d.	equal protection laws

 

 

ANS:  A                    REF:   p. 44              OBJ:   3

 

Case 2.2

Steve fired a gun into a Mexican family’s home in his neighborhood. Steve was later arrested and admitted to the shooting. Following his conviction, the judge sentenced him to 10 years in prison based on facts not determined to be true beyond a reasonable doubt. The sentence exceeded the statutory maximum by two years.

 

48. The sentence imposed on Steve violates

a.	the Apprendi rule.
b.	the Eighth Amendment.
c.	the Fourth Amendment.
d.	the ban on ex-post facto laws.

 

 

ANS:  A                    REF:   p. 81              OBJ:   7

 

 

49. The increase in sentence by two years based on facts not determined beyond a reasonable doubt violates what Amendment to the Constitution?

a.	the Fourth Amendment.
b.	the Fifth Amendment.
c.	the Sixth Amendment.
d.	the Eighth Amendment.

 

 

ANS:  C                    REF:   p. 81              OBJ:   7

 

 

Case 2.3

Tammy is an unemployed probationer. Her probation officer has noted several times that she has been seen in the company of three girlfriends at a local park. She has a long record of convictions for various misdemeanor and felony crimes. Tammy is sentenced to 3 years in prison based on the following statute: “Any person not engaged in any lawful occupation, known to be a member of any gang consisting of two or more persons, who has been convicted at least three times of being a disorderly person, or who has been convicted of any crime, in this or in any other State, is declared to be a gangster….”

 

50. Tammy’s conviction is overturned based on the

a.	ex-post facto doctrine
b.	void-for-vagueness doctrine
c.	habeas doctrine
d.	felony failure doctrine

 

 

ANS:  B                    REF:   p. 44              OBJ:   4

 

51. One of the issues with Tammy’s conviction involves

a.	fair warning
b.	cruel punishment
c.	unusual punishment
d.	right privacy

 

 

ANS:  A                    REF:   p. 44              OBJ:   4

 

 

 

52. Laws such as the one under which Tammy was sentenced violate what constitutional guarantee?

a.	due process
b.	right to remain silent
c.	freedom from unreasonable search and seizure
d.	right free speech

 

 

ANS:  A                    REF:   p. 44              OBJ:   4

 

 

 

 

 

 

 

 

 

 

 

Case 2.4

Tory was fifteen years old when he intentionally pushed another high school student in front of a car, killing him. Tory stated in court that he wanted to kill someone and picked his victim at random. Tory has an extensive record of antisocial behavior and was sentenced to life-without possibility of parole. Tory appealed the sentence but the appeal was unsuccessful.

 

53. Tory’s appeal would most likely be based on a violation of what constitutional amendment?

a.	the Fourth Amendment.
b.	the Fifth Amendment.
c.	the Seventh Amendment.
d.	the Eighth Amendment.

 

 

ANS:  D                    REF:   p. 64              OBJ:   6

 

 

54. In his appeal, Tory likely argued that his sentence was

a.	retroactive
b.	ex post facto
c.	disproportionate
d.	void-for-vagueness

 

 

ANS:  B                    REF:   p. 44              OBJ:   7

 

 

55. Tory’s failed appeal is most like what U.S. Supreme Court case?

a.	State v. Ninham (2011)
b.	Griswold v. Connecticut (1965)
c.	Apprendi v. New Jersey (2000)
d.	Gall v. U.S. (2007)

 

 

ANS:  A                    REF:   p. 74              OBJ:   6

 

 

 

TRUE/FALSE

 

1. The constitution balances the power of government with the liberty of individuals.

 

ANS:  TRUE             REF:   p. 42              OBJ:   1

 

 

2. Ex post facto laws are forbidden by the Constitution.

 

ANS:  TRUE             REF:   p. 43              OBJ:   3

 

3. Retroactive criminal laws undermine the “central values” of free societies.

 

ANS:  T                    REF:   p. 42              OBJ:   3

 

4. Racial classifications by the government are subjected to the rational basis test under the Equal Protection Clause.

 

ANS:  FALSE           REF:   p. 47              OBJ:   5

 

 

 

5. The First Amendment protects only written or spoken words.

 

ANS:  FALSE           REF:   p.48               OBJ:   1

 

 

 

6. Fighting words are not protected by the First Amendment.

 

ANS:  TRUE             REF:   p. 48              OBJ:   1

 

 

7. Laws that are overly broad in their reach might have a chilling effect on the exercise of freedom of expression.

 

ANS:  TRUE             REF:   p. 50              OBJ:   4

 

8. The right to privacy is specifically mentioned by name in the U.S. Constitution.

 

ANS:  FALSE           REF:   p. 59              OBJ:   5

 

 

9. District of Columbia v. Heller (2008) is the first successful Second Amendment challenge in the Court’s history.

 

ANS:  TRUE             REF:   p. 54              OBJ:   5

 

 

10. Apprendi v. New Jersey (2000) struck down a New Jersey statute authorizing judges to increase a maximum sentence based on facts that the judge found to be true by a preponderance of the evidence, but not proof beyond a reasonable doubt.

 

ANS:  TRUE             REF:   p. 81              OBJ:   7

 

 

11. The ban on retroactive criminal lawmaking prevents officials from punishing conduct they think is wrong but which no existing criminal law prohibits.

 

ANS:  TRUE             REF:   p. 42              OBJ:   2

 

 

12. The Eighth Amendment requires that punishments be proportional to the crime.

 

ANS:  TRUE             REF:   p. 64              OBJ:   6

 

 

13. The death penalty is always a violation of the Eighth Amendment.

 

ANS:  FALSE           REF:   p. 64              OBJ:   5

 

 

14. Most state constitutions include a ban on retroactive statutes.

 

ANS:  TRUE             REF:   p. 43              OBJ:   3

 

 

 

15. In Coker v. Georgia (1977), the Supreme Court allowed the death sentence for the crime of rape of an adult.

 

ANS:  FALSE           REF:   p. 66              OBJ:   6

 

 

16. The Supreme Court has ruled that the death sentence is unconstitutional for the crime of the rape of a child.

 

ANS:  FALSE           REF:   p. 67              OBJ:   6

 

 

17. Thirty-five mentally retarded persons were executed between 1976 when the death penalty was reinstated and 2001.

 

ANS:  TRUE             REF:   p. 68              OBJ:   6

 

 

18. Until 2000, the guidelines and mandatory forms of fixed sentencing created only possible cruel and unusual punishment problems.

 

ANS:  TRUE             REF:   p. 81              OBJ:   7

 

19. Three-strikes laws have been ruled unconstitutional.

 

ANS:  FALSE           REF:   p. 77              OBJ:   6

 

 

20. The U.S. Supreme Court has ruled that vague laws do not violate the guarantees of the U.S. Constitution.

 

ANS:  FALSE           REF:   p. 43              OBJ:   4

 

21. Constitutional democracy is a pure democracy.

 

ANS:  FALSE           REF:   p. 42              OBJ:   1

 

 

22. In a pure democracy, the majority can have whatever it wants.

 

ANS:  TRUE             REF:   p. 42              OBJ:   1

 

 

23. The principle of legality is also called “the first principle of criminal law.”

 

ANS:  TRUE             REF:   p. 42              OBJ:   2

 

 

24. Article III of the U.S. Constitution bans ex post facto laws.

 

ANS:  FALSE           REF:   p. 43              OBJ:   3

 

 

25. Vague laws violate the Fifth and Fourteenth Amendments to the constitution.

 

ANS:  TRUE             REF:   p. 43              OBJ:   4

 

26. Fair notice means that the defendant is aware that there is a law against a particular act.

 

ANS:  FALSE           REF:   p. 44              OBJ:   4

 

 

27. Equal protection of the law requires all people to be treated exactly alike.

 

ANS:  FALSE           REF:   p. 47              OBJ:   5

 

 

28. In addition to speech, the First Amendment also includes expressive conduct.

 

ANS:  TRUE             REF:   p. 48              OBJ:   5

 

 

29. According to the U.S. Supreme Court, there are two kinds of cruel and unusual punishments.

 

ANS:  TRUE             REF:   p. 64              OBJ:   6

 

 

30. Other than the fact of prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.

 

ANS:  TRUE             REF:   p. 81              OBJ:   7

 

 

COMPLETION

 

1. Under the Eighth Amendment, punishments must be _______________ to the offense.

 

ANS:  proportionate

 

REF:   p. 64              OBJ:   6

 

 

2. In a                               democracy, the majority can’t make a crime out of conduct protected by the fundamental rights in the U.S. Constitution.

 

ANS:  constitutional

 

REF:   p. 42              OBJ:   1

 

 

3. Because they are likely to incite violence, _______________ words are not protected by the First Amendment.

 

ANS:  fighting

 

REF:   p. 48              OBJ:   1

 

 

4. Offensive, sexually explicit material not protected by the First Amendment is called ______________.

 

ANS:  obscenity

 

REF:   p. 48              OBJ:   5

 

 

5.                         –                       sentencing laws require judges to impose a nondiscretionary minimum amount of prison time that all offenders have to serve.

 

ANS:  Mandatory minimum

 

REF:   p. 81              OBJ:   7

 

 

6. Government classifications based on race are subject to _______________ scrutiny by the courts.

 

ANS:  strict

 

REF:   p. 47              OBJ:   5

 

 

7. The Fifth Amendment to the U.S. Constitution guarantees that the federal government shall not deny any individual life, liberty, or property without                                 of law.

 

ANS:  due process

 

REF:   p. 47              OBJ:   4, 5

 

 

 

8. Under the Equal Protection Clause, most criminal statutes are subject to only the minimal scrutiny of the _______________ basis test.

 

ANS:  rational

 

REF:   p. 47              OBJ:   5

 

 

9. Cruel and                     punishment is prohibited by the Eighth Amendment.

 

ANS:  unusual

 

REF:   p. 64              OBJ:   5

 

 

10. The principle of legality establishes: “No crime without                    , no punishment without         .”

 

ANS:  law, law

 

REF:   p. 42              OBJ:   2

 

ESSAY

 

1. The U.S. Supreme Court says that all racial classifications are subject to “strict scrutiny.” What does this mean in practice? Why is racial classification held to this high standard?

 

ANS: In practice, strict scrutiny means race-based classifications are never justified. According to the U.S. Supreme Court, any statute that “invidiously classifies similarly situated people on the basis of the immutable characteristics with which they were born … always (emphasis added) violates the Constitution, for the simple reason that, so far as the Constitution is concerned, people of different races are always similarly situated.

 

REF:   p. 47              OBJ:   6

 

2. What two concerns are raised by laws that are vague? Provide an example of each concern. Why is some vagueness inevitable in any law?

 

ANS: The two concerns are fair notice to citizens of what is criminal and the potential for discriminatory or arbitrary enforcement. Human language can never be perfectly clear or cover all possible contingencies.

 

REF:   p. 43              OBJ:   4

 

3. What does it mean that the First Amendment protects expressive speech?  Discuss Supreme Court cases that have dealt with expressive speech and criminal statutes.

 

ANS: The Constitution does not end with the spoken or written word.  It includes expressive conduct that communicates ideas and feelings.  Important Supreme Court cases about expressive speech include R.A.V. v. City of St. Paul (1992), Barnes v. Glen Theatre, Inc. et al. (1991), and Texas v. Johnson (1989).

 

REF:   p. 52              OBJ:   1

 

 

 

4. Explain how the Constitution protects our right to privacy.  Discuss Griswold v. 

Connecticut (1965), Stanley v. Georgia (1969), and Lawrence v. Texas (2003).

 

ANS: The right to privacy cannot be found in specific language in the Constitution.  It is a right that bans governmental invasions into the sanctity of one’s home.  The Supreme Court has ruled that the right to privacy emanates from six constitutional amendments: the First (freedom of religion, speech, and association), the Third (ban on quartering soldiers in private homes), Fourth (protection against unreasonable searches and seizures), the Ninth (the rights enumerated in the Constitution shall not be construed to deny other rights retained by the people), the Fifth and Fourteenth (due process right to liberty).

 

REF:   p. 59; 61; 63;            OBJ:              1, 5

 

 

 

5. Explain the principle of proportionality.  Describe how the principle relates to the death penalty and imprisonment.

 

ANS: The principle of proportionality has an ancient history and states that the punishment should fit the crime. The Supreme Court has applied the principle in several cases involving the death penalty: Coker v. Georgia (1977), Atkins v. Virginia (2002), and Roper v. Simmons (2005).  It has also recently been addressed with regard to imprisonment in Ewing v. California (2003).

 

REF:   p. 66              OBJ:   6

 

6. Explain the principle of legality. Why is it important to criminal law and punishment?

 

ANS: The principle of legality means that no one can be convicted of, or punished for, a crime unless the law defined the crime and prescribed the punishment before the person engaged in the behavior that was defined as a crime. The principle of legality is important to criminal law and punishment because retroactive criminal laws harm values important to a free society. Three important concepts: knowing what the law orders makes it possible for individuals to obey the law and avoid punishment; giving this opportunity to individual encourages human autonomy and dignity; and it maintains the rule of law rather than the rule of officials.

 

REF:   p. 42              OBJ:   2

 

 

7. What does an ex post facto law do? What are the two major purposes of banning ex post facto laws?

 

ANS: An ex post facto law does one of three things: it criminalizes an act that was not a crime when it was committed; increases punishment for a crime after the crime was committed; or (3) takes away a defense that was available to a defendant when the crime was committed. The two major purposes of banning ex post facto laws are: protecting private individuals by ensuring that legislatures give them fair warning about what’s criminal and that they can rely on that requirement and preventing legislators from passing arbitrary and vindictive laws.

 

REF:   p. 43              OBJ:   3

 

 

8. Discuss the importance of the right to a trial by jury as it relates to the process of sentencing convicted offenders. Several recent cases have impacted this right. What are the impacts of: Apprendi v. New Jersey (2000); Blakely v. Washington (2004); and U.S. v. Booker (2005)?

 

ANS: The U.S. Supreme Court has held that an increase in the penalty for a crime beyond the statutory maximum must be based on facts submitted to a jury and proved beyond a reasonable doubt. Apprendi struck down a New Jersey statute authorizing judges to increase maximum sentence based on facts judge found to be true by a preponderance of the evidence, but not proof beyond a reasonable doubt and affirmed judge’s authority to increase maximum based on prior convictions, or crimes defendants confess to, without jury finding. Blakely struck down a Washington state statute that authorized judge to increase the length of prison time beyond the “standard range” in the Washington sentencing guidelines based on facts not proved beyond a reasonable doubt. Booker struck down provisions in the U.S. sentencing guidelines, which allowed judges to increase individual sentences beyond the “standard range” based on facts not proved beyond a reasonable doubt to the jury making the guidelines are advisory only.

 

REF:   p. 81              OBJ:   7

 

 

9. 9. Vague laws violate the due process protections of the Fifth and Fourteen Amendments to the U.S. Constitution. Explain how these laws violate due process protections.

 

ANS: Vague laws violate due process protection in the following ways. The Fifth and Fourteenth Amendments to the U.S. Constitution ban both federal and state governments from taking any person’s “life, liberty, or property without due process of law.” Criminal punishment deprives individuals of life (capital punishment), liberty (imprisonment), or property (fines). Failure to warn private persons of what the law forbids and/or allowing officials the chance to define arbitrarily what the law forbids denies individuals their life, liberty, and/or property without due process of law. Vague laws thus fail to give fair warning and allow arbitrary and discriminatory law enforcement.

 

REF:   p. 43              OBJ:   4

 

 

10. The Eighth Amendment prohibits cruel and unusual punishment. Discuss the opinions in the following cases regarding the courts application of the prohibition against cruel and unusual punishment to the death penalty. Kennedy v. Louisiana (2008), Atkins v. Virginia (2002), Roper v. Simmons (2005).

 

ANS: In Kennedy v. Louisiana (2008) the court held that imposing the death penalty in the case of a child rape where death of the child did not occur and was not intended is a violation of the Eight Amendment because it is disproportionate. The Atkins v. Virginia (2002) case made executing anyone who proved the three elements in the American Association on Mental Retardation definition applied to them violated the ban on cruel and unusual punishment. In Roper v. Simmons (2005) the court held that it is a violation of the Eighth Amendment to execute anyone who was under the age of 18 when they committed their crime.

 

REF:   p. 64              OBJ:   6

 

Chapter 4 Test Bank

The General Principles of Criminal Liability: Mens rea, Concurrence, Causation, Ignorance and Mistake

 

MULTIPLE CHOICE

 

1. Which of the following is not a type of culpability in the Model Penal Code?

a.	purpose
b.	knowledge
c.	negligence
d.	willfulness

 

 

ANS:  D                    REF:   p. 124            OBJ:   4

 

2. The mental element of a crime is called the

a.	mens rea.
b.	harm.
c.	actus reus.
d.	concurrence.

 

 

ANS:  A                    REF:   p. 124            OBJ:   1

 

3. In the absence of a confession, intent must generally be proven by what evidence?

a.	peremptory
b.	exclusive
c.	referential
d.	circumstantial

 

 

ANS:  D                    REF:   p. 127            OBJ:   2

 

 

4. General intent is the intent to

a.	commit a criminal act.
b.	cause harm.
c.	make the act cause the harm.
d.	have the mens rea.

 

 

ANS:  D                    REF:   p. 128            OBJ:   3

 

 

5. Proximate cause is a subjective question of fairness that appeals to the jury’s sense of

a.	justice.
b.	duty.
c.	fairness.
d.	guilt.

 

 

ANS:  A                    REF:   p. 144            OBJ:   7

 

 

 

6. Another term for criminal act is

a.	mens rea.
b.	actus reus.
c.	de novo.
d.	pro bono.

 

 

ANS:  B                    REF:   p. 151            OBJ:   1

 

 

7. In strict liability cases, the prosecution has to prove only that defendants committed a

a.	voluntary act that caused harm.
b.	voluntary civil act that caused harm.
c.	voluntary criminal act that caused harm.
d.	voluntary mistake that caused harm.

 

 

ANS:  C                    REF:   p. 127            OBJ:   5

 

 

8. Mistake is a defense whenever the mistake prevents the formation of any fault-based

a.	prejudice.
b.	hate.
c.	animus.
d.	mens rea.

 

 

ANS:  D                    REF:   p. 148            OBJ:   8

 

9. The objective determination that the defendant’s act triggered a chain of events that ended as the bad result is called the

a.	cause in fact.
b.	negligent cause.
c.	negligent cause.
d.	subsequent cause.

 

 

ANS:  A                    REF:   p. 124            OBJ:   1

 

 

10. Fault that requires a “bad mind” in the actor is called

a.	objective fault.
b.	subjective fault.
c.	no fault.
d.	concurrent fault.

 

 

ANS:  B                    REF:   p. 127            OBJ:   2

 

 

11. The cause that either interrupts a chain of events or substantially contributes to a result is called the

a.	proximate cause.
b.	real cause.
c.	intervening cause.
d.	select cause.

 

 

ANS:  C                    REF:   p. 144            OBJ:   7

 

 

12. What is the only direct evidence of a defendant’s mens rea?

a.	a confession
b.	a motive
c.	a signed statement
d.	a polygraph examination

 

 

ANS:  A                    REF:   p. 127            OBJ:   2

 

 

13. In the Model Penal Code, the most blameworthy state of mind is

a.	recklessly.
b.	purposely.
c.	negligently.
d.	knowingly.

 

 

ANS:  B                    REF:   p. 127            OBJ:   4

 

 

14. What is the default degree of culpability where codes fail to identify a level of culpability?

a.	negligence
b.	recklessness
c.	awareness
d.	complicity

 

 

ANS:  B                    REF:   p. 131            OBJ:   4

 

 

15. Conscious risk creation is called

a.	knowledge.
b.	negligence.
c.	contumacy.
d.	recklessness.

 

 

ANS:  D                    REF:   p. 131            OBJ:   4

 

16. Intent to commit a criminal act as defined in a statute is known as

a.	general intent.
b.	personal intent.
c.	blameless intent.
d.	negligent intent.

 

 

ANS:  A                    REF:   p. 151            OBJ:   3

 

 

17. Liability without fault, or in the absence of mens rea, is called

a.	strict liability.
b.	harm causation.
c.	offending behavior.
d.	wanton liability.

 

 

ANS:  A                    REF:   p. 127            OBJ:   5

 

 

18. Which of the following forms of intent is both objective and subjective?

a.	negligent
b.	reckless
c.	knowing
d.	purpose

 

 

ANS:  B                    REF:   p. 131            OBJ:   4

 

 

19. Factual cause is also known as which of the following?

a.	“but for” cause
b.	legal cause
c.	proximate cause
d.	intervening cause

 

 

ANS:  A                    REF:   p. 143            OBJ:   7

 

 

20. What kind of cause occurs after the defendant’s act and before the harm?

a.	intervening cause
b.	concurrent cause
c.	consecutive cause
d.	contingent cause

 

 

ANS:  A                    REF:   p. 144            OBJ:   7

 

21. What are the names of the two kinds of cause required to prove causation in “bad result” crimes?

a.	factual cause and legal cause
b.	legal cause and proximate cause
c.	factual and “but for” cause
d.	legal cause and negligent cause

 

 

ANS:  A                    REF:   p. 131            OBJ:   7

 

 

22. Failure-of-proof defenses are also known as

a.	mistakes.
b.	liabilities.
c.	legalities.
d.	hate crimes.

 

 

ANS:  A                    REF:   p. 148            OBJ:   8

 

23. Which kind of fault requires no purposeful or conscious bad mind in the actor?

a.	objective fault
b.	subjective fault
c.	no fault
d.	concurrent fault

 

 

ANS:  A                    REF:   p. 127            OBJ:   2

 

 

24. Criminal liability without subjective or objective fault is also called

a.	strict liability.
b.	harm causation.
c.	offending behavior.
d.	wanton liability.

 

 

ANS:  A                    REF:   p. 127            OBJ:   2

 

 

25. Which of the following cases adopted and applied the general intent plus definition?

a.	Harris v. State (1999)
b.	State v. Stark (1992)
c.	Haupt v. U.S. (1947)
d.	State v. Jantzi (1982)

 

 

ANS:  A                    REF:   p. 129            OBJ:   3

 

 

26. Which of the following cases involves the mental state “purposely?”

a.	Harris v. State (1999)
b.	State v. Stark (1992)
c.	Haupt v. U.S. (1947)
d.	State v. Jantzi (1982)

 

 

ANS:  B                    REF:   p. 132            OBJ:   4

 

 

27. Which of the following cases involves the mental state “knowingly?”

a.	Harris v. State (1999)
b.	State v. Stark (1992)
c.	Haupt v. U.S. (1947)
d.	State v. Jantzi (1982)

 

 

ANS:  D                    REF:   p. 135            OBJ:   4

 

 

28. Which of the following statements is true regarding recklessness and negligence?

a.	recklessness is about consciously creating risks; negligence is about unconsciously creating risks
b.	recklessness is about unconsciously creating risks; negligence is about consciously creating risks
c.	recklessness and negligence are both about consciously creating risks
d.	recklessness and negligence are both about unconsciously creating risks

 

 

ANS:  A                    REF:   p. 137            OBJ:   4

 

 

29. The most common definition of specific intent is

a.	general intent plus.
b.	general intent.
c.	subjective intent.
d.	subjective intent plus.

 

 

ANS:  A                    REF:   p. 129            OBJ:   3

 

 

30. According to the Model Penal Code, what is the most blameworthy mental state?

a.	purposely
b.	knowingly
c.	recklessly
d.	negligently

 

 

ANS:  A                    REF:   p. 132            OBJ:   1

 

 

31. What is the only crime defined in the U.S. Constitution?

a.	murder
b.	rape
c.	treason
d.	forgery

 

 

ANS:  C                    REF:   p. 134            OBJ:   4

 

 

32. The conscious creation of substantial and unjustifiable risks is the definition of

a.	liability.
b.	negligence.
c.	recklessness.
d.	reasonableness.

 

 

ANS:  C                    REF:   p. 131            OBJ:   3

 

 

33. The test for negligence is

a.	totally objective.
b.	totally subjective.
c.	totally conscious.
d.	totally negligent.

 

 

ANS:  A                    REF:   p. 137            OBJ:   3

 

34. The penalty for strict liability crimes generally is

a.	very serious, because they are strict crimes.
b.	10-15 years incarceration.
c.	mild, often with fines and no jail or prison time.
d.	equivalent to a first degree felony.

 

 

ANS:  C                    REF:   p. 140            OBJ:   5

 

 

35. Ignorance of facts and law                  create a reasonable doubt that the prosecution has proved the element of criminal intent.

a.	can
b.	cannot
c.	always
d.	never

 

 

ANS:  A                    REF:   p. 151            OBJ:   8

 

 

36. The idea that it’s fair and just to punish only people we can blame is

a.	culpability
b.	specific intent
c.	liability
d.	bad intent

 

 

ANS:  A                    REF:   p. 151            OBJ:   1

 

 

37. The subjective judgment that it’s fair and just to blame the defendant for the bad result is called

a.	cause in fact
b.	but for cause
c.	legal cause
d.	concurrence

 

 

ANS:  C                    REF:   p. 124            OBJ:   1

 

 

38. What term is Latin for guilty mind?

a.	actus reus
b.	mens rea
c.	corpus delicti
d.	actus non facit

 

 

ANS:  B                   REF:   p. 124            OBJ:   1

 

 

39. Fault that requires a bad mind in the actor is

a.	subjective fault
b.	objective fault
c.	voluntary fault
d.	conscious fault

 

 

ANS:  A                    REF:   p. 127            OBJ:   2

 

 

40. Fault that requires no purposeful or conscious bad mind in the actor is

a.	subjective fault
b.	objective fault
c.	voluntary fault
d.	conscious fault

 

 

ANS:  B                    REF:   p. 127            OBJ:   2

 

 

41. How many mental states are there in the Model Penal Code?

a.	three
b.	four
c.	five
d.	Six

 

 

ANS:  B                    REF:   p. 151            OBJ:   4

 

42. In the mental state of “knowing,” the watchword is

a.	awareness
b.	consciousness
c.	knowledge
d.	voluntariness

 

 

ANS:  A                    REF:   p. 134            OBJ:   4

 

 

43. The MPC proposes that fact finders determine recklessness according to what test?

a.	a two-pronged test
b.	a bad result test
c.	a three-pronged test
d.	a reckless knowledge test

 

 

ANS:  A                    REF:   p. 137            OBJ:   4

 

 

44. The element of causation applies only to what kind of crimes?

a.	“bad result” crimes
b.	“bad knowledge” crimes
c.	“reckless” crimes
d.	“negligent” crimes

 

 

ANS:  A                    REF:   p. 151            OBJ:   7

 

 

45. What term is about holding an actor criminally accountable for the results of her conduct?

a.	concurrence
b.	causation
c.	factual causation
d.	practical causation

 

 

ANS:  B                    REF:   p. 151            OBJ:   7

 

 

 

Case 4.1

Joe lives in Washington State. Joe tested positive for HIV. Joe receives counseling regarding HIV infection and the risks regarding the potential for transmitting HIV to sexual partners. Joe has sex with a woman without using condoms.

 

46. What crime is Joe most likely to be charged with?

a.	assault
b.	rape
c.	attempted homicide
d.	attempted assault

 

 

ANS:  A                    REF:   p. 128            OBJ:   3

 

 

47. What is the main issue for the state in Joe’s case?

a.	knowledge
b.	possession
c.	causation
d.	intent

 

 

ANS:  D                    REF:   p. 128            OBJ:   4

 

 

Case 4.2

Stephanie asks her friend Ahmad to accompany her to her ex-boyfriend Tom’s home so that she may gather some of her belongings. Ahmad stays outside while Stephanie goes inside to get her things. Ahmad begins deflating the tires on Tom’s motorcycle which is sitting in the driveway. Tom sees Ahmad through the kitchen window and runs outside to confront him. Ahmad does not see Tom but turns to go back to his car with the knife in his hand. Tom and Ahmad collide and Tom is injured by the knife.

 

48. In this case the court would likely need to determine what?

a.	culpability
b.	cause
c.	legal cause
d.	Intent

 

 

ANS:  A                    REF:   p. 128            OBJ:   4

 

49. Which of the mental states identified in the Model Penal Code best applies to Ahmad?

a.	Purposely
b.	Knowingly
c.	Recklessly
d.	Negligently

 

 

ANS:  C                    REF:   p. 131            OBJ:   4

 

 

Case 4.3

Amelia wishes her sister was dead. If her sister dies, Amelia will receive a great deal of money. As Amelia is driving she sees her sister walking down the street. Amelia makes the decision to run her over with the car. She swerves off the road and runs her sister over and kills her.

 

50. What is Amelia’s motive for the murder of her sister?

a.	money
b.	hatred
c.	her wish to see her dead
d.	she no motive

 

 

ANS:  A                    REF:   p. 133            OBJ:   2

 

 

51. Amelia’s state of mind when she runs over her sister is an example of

a.	mens rea
b.	actus reus
c.	concurrence
d.	legal cause

 

 

ANS:  A                    REF:   p. 140            OBJ:   2

 

 

 

52. What state of mind best describes Amelia during her crime?

a.	purposely
b.	knowingly
c.	recklessly
d.	negligently

 

 

ANS:  A                    REF:   p. 131            OBJ:   4

 

 

Case 4.4

Terrance is showing Manuel his gun collection. Manuel has never before handled a gun. He reluctantly takes a gun from Terrance and asks him if he is sure that the gun is unloaded. Terrance replies that he never puts ammunition in his guns except at the gun range where he goes to practice. Manuel points the gun out the window of the house and pulls the trigger. The gun fires and a women walking by on the sidewalk is shot and killed.

 

53. At his trial, what defense is Manuel likely to use?

a.	failure-of-proof defense
b.	diminished capacity defense
c.	justification defense
d.	attendant circumstances defense

 

 

ANS:  A                    REF:   p. 148            OBJ:   8

 

 

54. Manuel’s defense involves the prosecution’s failure to prove what beyond a reasonable doubt?

a.	actus reus
b.	mens rea
c.	concurrence
d.	attendant circumstances

 

 

ANS:  B                    REF:   p. 124            OBJ:   8

 

 

55. Manuel’s mistake would be a defense only if it

a.	prevents the formation of any fault-based mental attitude
b.	prevents the formation of any concurrence
c.	prevents the formation of any complicity
d.	prevents the formation of any knowledge

 

 

ANS:  A                    REF:   p. 148            OBJ:   8

 

 

 

 

TRUE/FALSE

 

1. In the absence of a confession, mens rea is usually proven by circumstantial evidence.

 

 

ANS:  TRUE             REF:   p. 127            OBJ:   1

 

 

 

2. All courts define general intent as the intent to commit the criminal act.

 

 

ANS:  FALSE           REF:   p. 128            OBJ:   2

 

 

3. The element of causation applies only to “bad result” crimes.

 

 

ANS:  TRUE             REF:   p. 151            OBJ:   7

 

 

4. Mistakes sometimes are called a failure-of-proof defense.

 

ANS:  TRUE             REF:   p. 148            OBJ:   8

 

 

5. Mens rea translated means “evil state of mind.”

 

ANS:  TRUE             REF:   p. 124            OBJ:   1

 

 

6. Different levels of blameworthiness are indicated by different types of intent.

 

 

ANS:  TRUE             REF:   p. 124            OBJ:   4

 

 

7. General intent is used most commonly to mean the intent to commit the criminal act as defined in a statute.

 

ANS:  TRUE             REF:   p. 124            OBJ:   3

 

 

8. The four levels of culpability, or intent, in the Model Penal Code are: purposely; knowingly; recklessly; and negligently.

 

 

ANS:  TRUE             REF:   p. 131            OBJ:   4

 

 

9. Recklessness requires awareness of substantial and unjustifiable risks.

 

ANS:  TRUE             REF:   p. 131            OBJ:   4

 

10. Negligence has both an objective and subjective component.

 

ANS:  FALSE           REF:   p. 131            OBJ:   4

 

 

11. Strict liability crimes have no actus reus element.

 

ANS:  FALSE           REF:   p. 139            OBJ:   5

 

 

 

12. In strict liability crimes, accidental injury can be criminal.

 

ANS:  TRUE             REF:   p. 139            OBJ:   5

 

 

13. Proving criminal causation requires proving both factual and legal cause.

 

ANS:  TRUE             REF:   p. 143            OBJ:   7

 

 

14. Intervening causes can be proximate causes.

 

ANS:  TRUE             REF:   p. 143            OBJ:   7

 

 

15. A criminal act is enough for criminal liability for most serious crimes.

 

 

ANS:  FALSE           REF:   p. 143            OBJ:   7

 

 

16. The most blameworthy state of mind in the Model Penal Code is purpose.

 

ANS:  TRUE             REF:   p. 150            OBJ:   4

 

17. Negligence involves conscious risk creation.

 

ANS:  FALSE           REF:   p. 150            OBJ:   4

 

 

18. Criminal liability is sometimes imposed without fault.

 

ANS:  TRUE             REF:   p. 126            OBJ:   5

 

 

19. Negligence is a totally objective standard.

 

 

ANS:  TRUE             REF:   p. 131            OBJ:   4

 

 

20. Ignorance of facts and law can create a reasonable doubt that the prosecution has proved the element of criminal intent.

 

ANS:  TRUE             REF:   p. 151            OBJ:   8.

 

 

21. A criminal act (actus reus) is not necessary for most serious crimes.

 

ANS:  FALSE           REF:   p. 151            OBJ:   1

 

 

22. Criminal intent is the same thing as motive.

 

ANS:  FALSE           REF:   p. 151            OBJ:   2

 

23. General intent consists of the intent to commit the criminal act.

 

ANS:  TRUE             REF:   p. 151            OBJ:   3

 

24. The Model Penal Code (MPC) breaks down mens rea into four mental states—purpose, knowledge, recklessness, and negligence.

 

ANS:  TRUE             REF:   p. 131            OBJ:   4

 

25. Strict liability exists when there is a crime with subjective fault.

 

ANS:  FALSE           REF:   p. 139            OBJ:   5

 

 

26. Concurrence means that some mental fault has to trigger the criminal act in conduct crimes and the cause in result crimes.

 

ANS:  TRUE             REF:   p. 142            OBJ:   6

 

 

27. Causation applies only to “bad result” crimes.

 

ANS:  TRUE             REF:   p. 143            OBJ:   7

 

 

28. Prosecutors only have to prove causation by a preponderance of the evidence.

 

ANS:  FALSE           REF:   p. 143            OBJ:   7

 

29. Mistake is a defense whenever the mistake prevents the formation of criminal intent.

 

ANS:  TRUE             REF:   p. 148            OBJ:   8

 

30. Ignorance of facts and law can never create a reasonable doubt that the prosecution has proved the element of criminal intent.

 

ANS:  FALSE           REF:   p. 151            OBJ:   8

 

 

COMPLETION

 

1. Concurrence is an element in all                      where the mental attitude is formed with purpose, knowledge, recklessness, or negligence.

 

ANS:  crimes                                                REF:   p. 142            OBJ:   6

 

 

2. Recklessness involves conscious _______________ creation.

 

ANS:  risk                                                                  REF:   p. 131            OBJ:   4

 

 

3. Culpability is also known as                           .

 

ANS: blameworthiness        REF: p. 151   OBJ:   4

 

 

 

4. Ignorance of                 and law can create a reasonable doubt that the prosecution has proved the element of criminal intent.

 

ANS:  facts                                                          REF:   p. 148            OBJ:   8

 

5. Legal cause consists of the                              judgment that it’s fair and just to blame the defendant for the bad result.

 

ANS:  subjective                         REF:   p. 124            OBJ:   1

 

6. A crime without an intent element is called a strict_______________ crime.

 

ANS:  liability                                         REF:   p. 127            OBJ:   5

 

 

7.                         intent is used most commonly in the cases to mean the intent to commit the criminal act as defined in a statute.

 

ANS:  General                                       REF:   p. 128            OBJ:   3

 

8. _______________ evidence proves a fact indirectly or by inference.

 

ANS:  Circumstantial                                      REF: p. 127   OBJ:   2

 

 

9. Most serious crimes require criminal                            and a criminal act.

 

ANS:  intent                                                    REF:   p. 128            OBJ:   1

 

 

 

10. There are differences in culpability among the Model Penal Code’s (MPC) four mental states—purposely,                                    , recklessly, and negligently.

 

ANS:  knowingly                     REF:   p. 131            OBJ:   4

 

ESSAY

 

1. Discuss what is required for mistake to be a defense. How does this relate to the types of culpability in the Model Penal Code? Be sure to discuss the debate over whether to call mistakes a defense.

 

ANS: Mistake is a defense whenever the mistake prevents the formation of any fault-based mental attitude, namely purpose, knowledge, recklessness, or negligence. There’s a debate over whether to call mistakes a defense (General v. State 2002). On one side are those who say what the defendant did was wrong, but her mistake excused her; they call mistake a defense of excuse. The other side says the mistake prevented the formation of a culpable state of mind; they say there’s no crime at all because the mental element is missing. It’s impossible to have a defense to conduct that’s not criminal conduct in the first place. They’re not really defenses, in the sense that they either justify or excuse criminal liability. Instead, mistakes raise a reasonable doubt that the required mental element for criminal conduct is present. Mistakes sometimes are called a failure-of-proof defense because defendants usually present some evidence that the mistake raises a reasonable doubt about the formation of a mental element required for criminal liability.

 

REF:   p. 148            OBJ:   4, 8

 

2. What are the four types of culpability in the Model Penal Code? Be sure to provide examples. What are the levels of culpability of each relative to the other?

 

ANS: Many states follow the Model Penal Code approach of having only four types of culpability or mens rea. The first is purpose. This means it was the actor’s conscious objective.  Knowing means that the actor knew something was likely to happen or occur. Recklessness means that the person was aware of a serious risk but went ahead and took that risk anyway, even though an objectively reasonable person would not have taken that risk. Negligence means the actor did not conform to the external, objective standard of what a reasonable person would have known or done in the same circumstances. Purpose and knowing are subjective mental states. Reckless is both objective and subjective. Negligence is a totally objective standard.

 

REF:   p. 124-135     OBJ:   4

 

 

3. What are strict liability crimes? Provide an example. What are some of the arguments for and against such crimes? Do you think there should or should not be strict liability crimes? Explain your position.

 

ANS: There are a few crimes that do not have a mens rea element. They are called strict liability crimes. These crimes are controversial because they can punish persons who had no mental fault.  A person could be punished for an accident. On the other hand, it is argued that certain types of crimes involve important governmental interests and would be too difficult to enforce if a mens rea element was required. Strict liability crimes are always minor crimes that are rarely, if ever, punished by imprisonment.

 

REF:   p. 127            OBJ:   5

 

 

4. What does the prosecution have to prove with regard to causation to get a conviction? What are intervening causes and how do they affect a defendant’s responsibility? Be sure to provide examples.

 

ANS: If a crime has a harm or result element, the prosecution must prove that the defendant caused the harm beyond a reasonable doubt. The prosecution must prove that the defendant’s acts were both the cause in fact (“but for” cause) and the proximate or legal cause. Cause in fact is an empirical or factual issue. Proximate or legal cause involves the question of whether it is just to make the defendant responsible for a harm that occurred in an unusual fashion. For instance, sometimes a defendant will perform an act and start a chain of events in motion, but some other event will occur after the defendant’s act and contribute to causing the harm. In general, if the intervening cause was normal and foreseeable, the defendant will not be relieved of liability for the harm.

 

REF:   p. 143            OBJ:   7

 

 

5. Compare and contrast general and specific intent. How are general and specific intent similar? How are they different? Be sure to provide examples.

 

Some main points: General intent is used most commonly in the cases to mean the intent to commit the criminal act as defined in a statute. In that sense, general intent is general because it states the minimum requirement of all crimes—namely, that they have to include an intentional/voluntary act, omission, or possession. Some courts limit specific intent to the attitudes represented by subjective fault, where there’s a “bad” mind or will that triggers the act (LaFave 2003b, 1:353–55). It’s captured in these adjectives found in most ordinary dictionaries: deliberate, calculated, conscious, intended, planned, meant, studied, knowing, willful, purposeful, purposive, done on purpose, premeditated, preplanned, preconceived. The most common definition of specific intent is what we’ll call general intent “plus,” where “general intent” refers to the intent to commit the actus reus of the crime, and “plus” refers to some “special mental element” in addition to the intent to commit the criminal act (LaFave 2003b, 1:354). For example, household burglary is a specific intent crime, because in addition to the intent to commit the household burglary actus reus—namely, breaking and entering someone else’s house—there’s the special mental element, the intent to commit a crime once inside the house.

 

REF:   p. 128            OBJ:   3

 

 

6. Most serious crimes require mens rea in in addition to the criminal act. Explain why this is the case and how this relates to culpability. Additionally, mens rea is complex and it is difficult to determine just how much intent is necessary to convict someone of a crime. Describe the reasons why mens rea is so baffling.

 

ANS: Mens rea is required because it is fair and just to punish only people we can blame. First, whatever it means, mens rea is difficult to discover and then prove in court. Second, courts and legislatures have used so many vague and incomplete definitions of the mental element. Third, mens rea consists of several mental attitudes that range across a broad spectrum, stretching all the way from purposely committing a crime you’re totally aware is criminal to merely creating risks of criminal conduct or causing criminal harms—risks you’re not the slightest bit aware you’re creating. Fourth, a different mental attitude might apply to each of the elements of a crime.

 

REF:   p. 124            OBJ:   1

 

 

7. Describe the difference between motive and intent. Provide an example. Describe situations where motive is relevant in criminal cases and where it is not.

 

ANS: Experts disagree over the difference between motive and intent. Probably for this reason, they clarify the difference with an example: if a man murders his wife for her money—his intent was to kill; his motive was to get her money. It’s often said that motive is irrelevant to criminal liability; good motive is no defense to criminal conduct, and a bad motive can’t make legal conduct criminal. Sometimes motive is relevant, and sometimes it’s not. Greed, hate, and jealousy are always relevant to proving the intent to kill. Compassion may well affect discretionary decisions, such as police decisions to arrest, prosecutors to charge, and judges to sentence, say, mercy killers. Motive is also important in some defenses. For example, it’s a defense to the crime of escaping from prison if a prisoner breaks out to save her life from a rapidly spreading fire (the defense of necessity). Finally, motive is sometimes an element of a crime itself. For example, one of the attendant circumstances of burglary accompanying the act of breaking and entering someone else’s property is “the purpose of committing a crime” once inside

 

REF:    p. 128; 151                              OBJ:    2

 

 

8. What is the principle of concurrence? Why is the principle of concurrence important to criminal liability? Provide an example of a criminal situation and how concurrence applies to that situation.

 

ANS: The principle of concurrence means that some mental fault has to trigger the criminal act in conduct crimes and the cause in result crimes. All crimes, except strict liability offenses, are subject to the concurrence requirement. In practice, concurrence is an element in all crimes where the mental attitude was formed with purpose, knowledge, recklessness, or negligence. Shafeah hates her sister Nazirah and plans to kill her by running over her with her Jeep Grand Cherokee. Coincidentally, just as Shafeah is headed toward Nazirah in her Cherokee, a complete stranger in an Audi TT appears out of nowhere and accidentally runs over and kills Nazirah. Shafeah gets out of her Grand Cherokee, runs over to Nazirah’s dead body, and gleefully dances around it. Although definitely a creepy thing to do, Shafeah’s not a murderer because her criminal conduct (driving her Cherokee with the intent to kill Nazirah) didn’t cause Nazirah’s death. Concurrence here means the criminal conduct has to produce the criminal harm; the harm can’t be a coincidence.

 

REF:   p. 142            OBJ:   6

 

 

 

9. 9. What does it mean to say that a mistake can be a defense? Discuss the debate over whether or not mistakes should be called a defense.

 

ANS: Mistake is a defense whenever the mistake prevents the formation of any fault-based mental attitude, namely purpose, knowledge, recklessness, or negligence. On one side are those who say what the defendant did was wrong, but her mistake excused her; they call mistake a defense of excuse. The other side says that the mistake prevented the formation of a culpable state of mind; they say there’s no crime at all because t/he mental element is missing. It’s impossible to have a defense to conduct that’s not criminal conduct in the first place. They’re not really defenses, in the sense that they either justify or excuse criminal liability. Instead, mistakes raise a reasonable doubt that the required mental element for criminal conduct is present. Mistakes in this sense are sometimes called failure-of-proof defense because defendants usually present enough evidence to raise a reasonable doubt that the prosecution has proved that the defendant formed the mens rea required for criminal liability.

 

REF:   p. 148            OBJ:   8

 

 

 

10. What are the four different mental states included in the Model Penal Code? How do they differ regarding culpability? Provide an example of a crime for each of the four different mental states.

 

ANS: From most to least blameworthy, the MPC’s four mental states are: purposely, knowingly, recklessly, and negligently. Purpose is the mental attitude that a person acts purposely with respect to a material element of an offense when, if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result. A person acts knowingly with respect to a material element of an offense when: i. if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and ii. if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result. A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct.

 

REF:   p. 131            OBJ:   4