Bar - Crimes Flashcards
What are the 4 elements of a criminal offense?
(1) Act
(2) Mental state
(3) Causation (in some cases)
(4) Concurrence
What is the act rule?
D must have either performed a voluntary act OR failed to act where a legal duty to act.
When is an act a voluntary act?
- Rule: The criminal act must be physical and voluntary.
- Note: Actions during sleep, hypnosis, unconsciousness, and reflexive are not voluntary.
Failing to fulfill a legal duty to act results in criminal liability in which five instances?
o (1) Special relationship (e.g., parent to child; spouse to spouse)
o (2) Imposed by statute (e.g., obligation to file taxes)
o (3) Contractual (e.g., nurse, lifeguard)
o (4) Voluntary assumption of duty (e.g., begin rescue and leave victim in worse condition)
o (5) Creation of peril (e.g., failing to aid after causing a victim’s peril)
Rule: A mere bystander has no duty to act.
What is the general mens rea rule?
D must have committed the offense with a culpable state of mind or legally proscribed mental state.
o Objective or Subjective Test
Specific Intent: Subjective
General Intent: Subjective
Malice: Subjective
Strict Liability: N/A
What do specific intent crimes require?
Specific intent crimes require that the D possess a subjective desire, specific objective, or knowledge to accomplish a prohibited result.
Purpose:
* Prosecution must prove the specific intent in order to prosecute the D
* Specific intent crimes qualify for additional defenses not available for other types of crimes
What are the specific intent crimes and the mnemonic? Under theft crimes, there are 7
Specific Intent Crimes (FIAT)
* (1) First Degree Murder
* (2) Inchoate Offenses (attempt, solicitation, conspiracy)
* (3) Assault (intent to commit a battery)
* (4) Theft Offenses (larceny, larceny by trick, false pretenses, embezzlement, forgery, burglary, robbery)
* Professor mnemonic: Students can always fake a laugh even for ridiculous bar facts
* Attempt is a specific intent crime even when the underlying crime is not. Common law murder does not require a specific intent to kill, but attempted common law murder does (the intent to kill)
What are the defenses that only apply to specific intent crimes?
unreasonable mistake of fact
voluntary intoxication
o Note: Reasonable mistake, involuntary intoxication, and other defenses still apply.
Exam Tip
* Whenever fact pattern defines crime as requiring “the intent to…,” the crime is a specific intent crime.
Define malice.
- Rule: Malice crimes require a reckless disregard of a high risk of harm.
- Note: Malice does not require that the defendant acted with ill toward the victim.
- Note: Lesser standard of proof required than that of specific intent.
- Note: Defenses to specific intent crimes (e.g., voluntary intoxication) do not apply to malice crimes.
What are the 3 malice crimes?
Common law murder
Arson
Mayhem
What do general intent crimes require?
- General intent crimes require only that the defendant committed a particular act
- Note: Jury may infer the required general intent merely from the doing of the act. Prosecution does not have to put on evidence to show intent.
Under the MPC, which acts are general intent crimes?
all acts done knowingly, recklessly, or negligently are general intent crimes
What is the mnemonic for general intent crimes?
BRF KID (Barf kid with no A)
What are the 6 general intent crimes?
(1) Battery
(2) Rape
(3) False Imprisonment
(4) Kidnapping
(5) Involuntary Manslaughter
(6) Depraved Heart Murder
Note: Catch all category
Define a strict liability crime
Defined: A strict liability crime does not require a mental state. Proof that the defendant committed the act is sufficient.
Defenses that negate state of mind are not available.
Strict Liability Crime Examples
* Selling liquor to minors
* Statutory rape
* Morality crimes such as bigamy and polygamy
* Regulatory offenses for public welfare, regulation of food, drugs, and firearms
Exam Tip: If regulatory or morality question and there is no mention of intent in the question, treat this as strict liability. Consent of victim in strict liability is never the right answer. Mistake of fact (“I didn’t know her age”) is also never the right answer in strict liability. Same applies to any answer choice that talks about negating an intent to commit the crime. Always the wrong answer.
What are the 4 analysis of fault categories in the MPC?
(1) Purposefully
(2) Knowingly
(3) Recklessly
(4) Negligently
The MPC eliminates the common law distinctions between general and specific intent and adopts the following categories of intent.
Of the 4 MPC categories, which are tested objectively versus subjectively?
The first two (purposefully and knowingly) are an objective test
Recklessness is both objective and subjective
Negligence is objective
Define purposefully.
A defendant acts purposefully when he acts with conscious intent to cause the result.
Define knowingly.
A defendant asks knowingly when he has knowledge that his conduct will cause or likely cause the result.
Define recklessly.
A person acts recklessly when they consciously disregard a substantial and unjustifiable risk and this disregard constituted a substantial deviation from the standard of care that a reasonable person would exercise under the circumstances.
Recklessness involves both objective (“unjustifiable risk”) and subjective (“awareness”) elements.
Define negligently.
Defendant failed to be aware of a substantial and unjustifiable risk, and such a failure constituted a substantial deviation from the standard of care that a reasonable person would exercise under the circumstances.
o Note: This is the only modern penal code mental state that is judged objectively. The rest of the mental states are judged mostly subjectively. However, it is not the reasonable person standard used in torts. The defendant must have taken a very unreasonable risk.
EXAM TIP
* MPC mental states above are ordered from highest to lowest. Consequently, if a criminal statute specifies a mental state, proof of a more culpable state of mind satisfies the mens rea requirement. For example, if criminal statute requires act be undertaken knowingly, establishing act committed purposefully satisfies requirement.
* If the criminal statute does NOT specify the requisite mental state, it is established if the D acted at least recklessly.
* If the statute does not specify the requisite mental state for each material element of the crime, the mental state applicable to one material element is applicable to all material elements, unless a contrary purpose plainly appears.
Define vicarious liability.
Vicarious liability imposes criminal liability on one without personal fault for the act of a third party.
What is the common law rule for vicarious liability on corporations?
At common law, a corporation did not have the capacity to commit crimes.
Under the MPC, a corporation may be held criminally liable if what 3 requirements are in place?
(1) Corporation fails to discharge a duty imposed by law;
(2) Board or high ranking agent acting within scope of employment authorizes or recklessly tolerates the offensive act; AND
(3) Legislative purpose of statute aligns to charge.
Notes
* Corporation’s conviction does NOT preclude conviction of the individual
Exam Tip
* May impose due process issues b/c can impose liability w/o a personal act on part of the D
o This will not true if the punishment is merely a fine
What is the rule of transferred intent?
o Rule: Under the doctrine of transferred intent, a defendant can be liable when they intend the harm that is caused, but to a different victim or object.
What are the 3 crimes that transferred intent applies to?
(1) Homicide
(2) Battery
(3) Arson
What is the defendant charged with under transferred intent?
(1) Attempt of first crime
(2) Second crime
- Example: Attempted murder of X and murder of Y.
Define concurrence.
o Rule: Except for strict liability crimes, the defendant must have had the requisite intent at the time they committed the act.
o Note: Does not apply to strict liability crimes.
Define causation and the nuances and give examples of events that break causal chain and what doesn’t break chain
Also define the year and a day rule
Some crimes (e.g., homicide) require result and causation. Thus, when a crime is defined to require a specific result (e.g., death), the defendant’s conduct must be the (1) cause-in-fact, and (2) proximate cause.
- Actual cause = Result would not have occurred “but for” D’s act, or D’s act was a substantial factor
- Proximate cause = Result is a natural and probable consequence of D’s conduct (even if NOT anticipated by D)
o Note: Superseding factors break the chain of proximate causation (bad hospital construction actually kills them)
o Foreseeable risks
Third party’s negligent medical care
Victim’s refusal of medical treatment for religious reasons
Note: Simultaneous acts by multiple persons may be considered independent, sufficient causes of a single result. Thus, multiple persons may be convicted of homicide even though there was only one death.
Note: An act that hastens an inevitable result is still the legal cause of that result.
o Year and A Day Rule
Traditionally, for homicide, death of victim just occur within one year and one day of injury.
Most states have abolished this
What are the 2 elements to an accomplice?
(1) Intends to assist the principal and intends that the principal commit the crime; AND
(2) Aids/encourages the principal before or during the commission of the crime.
What is the common law rule on accomplice liability?
Under the common law, an accomplice is liable for the acts of others so long as they were foreseeable. However, conviction of the principal was required for conviction of an accessory.
Note: Applies to crimes committed initially AND any crimes committed in furtherance so long as crimes foreseeable.
What is the modern law rule on liability as it applies to accomplices?
Under the modern law, an accomplice is liable for the acts of others so long as they were foreseeable.
The principal is one who commits the crime. Who is an accomplice and what is the rule on those with mere knowledge?
Does not commit the actual crime but aids/encourages and is present at the crime
Sub Rule: Mere knowledge (gas station attendant) insufficient to be an accomplice
* Example: Gas station attendant will not be liable for arson for knowingly selling a gallon of gasoline to an arsonist so long as the sale was for legal goods at ordinary prices.
Who is an accessory before the fact?
An accomplice who assisted or encouraged but who was not present.
What are the 3 requirements for an accessory after the fact?
- (1) Felony completed;
- (2) Accessory knew of the completed crime; AND
- (3) Accessory aided principal so as to avoid apprehension or conviction
Charges
* Rule: Punishment for this crime usually bears no relationship to the principal offense.
o Modern rules
Principals, accomplices, and accessories before the fact guilty of crime
Accessory after fact Charged with obstruction of justice
What is the rule about members of protected classes?
o Rule: Members of the class protected by a statute are excluded from accomplice liability (e.g., woman transported across state lines can’t be accomplice in transporting women)
How do you treat a party that is necessary for the crime but not included in the statute?
o Rule: A party that is necessary to the crime but is not provided for in the statute is excluded from accomplice liability (e.g., if statute makes selling drug illegal, the purchaser is not liable for accomplice liability because the statute did not reference the purchaser)
What is rule on withdrawal from accomplice liability? They must withdraw before the crimes becomes what and they must do one of 3 things
MPC Rule: A person who withdraws before the crime becomes unstoppable and must do one of the following:
- (1) Repudiate any encouragement
- (2) Attempt to neutralize the assistance, OR
- (3) Notify the police
Note: A mere withdrawal from involvement without taking any additional action is not sufficient. - EXAM TIP
o Know difference between accomplice liability and conspirator liability
o Often on exams, differing outcomes may result in terms of the D’s liability when analyzing these two issues based on the actions of other accomplices or co-conspirators
Define conspiracy. Define common law and modern law rules. Define intent level.
A conspiracy is an agreement between two or more persons to commit an unlawful act. The parties must intend to enter into the agreement and intend to achieve its objective. At common law, conspiracy occurred the moment the agreement was made. The majority of jurisdictions now require an overt act, which can be as little as mere preparation.
- Notes
o Specific intent crime, because both parties must intend to accomplish an unlawful purpose.
o Conspiracy can be found through express or implied actions
o At common law
Two guilty minds
Husband and wife were not recognized as co-conspirators
No overt act in furtherance needed
o Modern law and Majority Jx
Overt act in furtherance of conspiracy needed (mere preparation is sufficient)
Only one guilty mind
Remember that if they committed the crime, the overt act is already proven
What is the Wharton Doctrine?
o Rule: Under the Wharton Rule, where 2 or more people are necessary for the commission of the crime, there is no crime unless more parties participate.
o Examples: Guilty of dueling, not conspiracy to duel unless 3rd person existed. Adultery crime – need 3 people to participate in conspiracy.
What is the rule on members of a protected class?
o Rule: If members of conspiracy agree to commit crime designed to protect people, persons within that class cannot be guilty of the conspiracy. So if nonprotected person only made the agreement with the protected person, neither is guilty of conspiracy.
What is the rule on withdrawal of a conspiracy?
o Rule: At common law, withdrawal is not a defense to a conspiracy
When does a conspiracy terminate? This is important when assessing acts of others, because defendant liable for those that were done in furtherance of the conspiracy.
A conspiracy terminates upon completion of the wrongful objective. Unless agreed to in advance, acts of concealment are not part of the conspiracy.
What is the relationship between insanity and conspiracy?
If the hitman was insane, the wife cannot be said to have conspired with him to commit the murder.
What is the rule on acquittal of parties in a conspiracy and a remaining defendant?
o Rule: An acquittal of all persons with whom a person is alleged to have conspired precludes conviction of the remaining defendant (but note that if other people commit suicide, last person can still be convicted of conspiracy).
Note: Defendant CAN be convicted if other co-conspirators are never charged/tried/apprehended.
When is a co-conspirator liable for the crimes of their co-conspirators? 2 elements
A co-conspirator can be convicted of a crime committed by another conspirator if the crimes were:
o (1) Foreseeable; AND
o (2) Committed in furtherance of the objectives of the conspiracy.
o Note: Does not matter if they knew of the other crimes that were going to be committed.
What is the common law rule on withdrawing from a conspiracy?
Under the common law, one cannot withdraw from a conspiracy.
However, one can withdraw from liability for future crimes if they give timely notice to all co-conspirators before they have a chance to commit the crime.
What is the MPC rule on withdrawing from a conspiracy? 2 elements
Under the MPC, one can withdraw from the conspiracy if the defendant: (usually for subsequent crimes only)
* (1) Gives timely notice to all co-conspirators; AND
* (2) Affirmatively thwarts the conspiracy (attempt to neutralize the assistance you provided)
o Note: Very hard to prove withdrawal in conspiracy because even mere preparation is enough to satisfy the act requirement. Even if facts show second thoughts, told co-conspirators, hid weapons, warned police, it is too late. This will just decrease their chance of being liable for subsequent crimes committed in furtherance.
What is the rule on merger and conspiracy?
o Rule: Conspiracy and the completed crime are distinct offenses. There is no merger.
What is the rule on protected classes and conspiracies?
o A member of a protected class cannot be a co-conspirator or an accomplice to commit a crime designed to protect that class
o Examples: Statutory rape, ransom to kidnapper, blackmail money to extortionist
Define solicitation. 2 elements.
(1) One requests or encourages another to commit crime; AND
(2) With the intent that the person solicited commit the crime.
Note: Not necessary that the solicited person agree to commit the crime. The crime is completed upon encouragement.
o Defenses
It is not a defense that the person solicited is not convicted, nor that the offense solicited could not in fact have been successful (factual impossibility)
What is the common law/majority view and the minority/MPC rule on withdrawal from solicitation?
Common law and Majority Jx
* No withdrawal allowed. Once you say, “go rob the bank,” you are guilty.
Minority Jx and MPC
* Withdraw allowed if D prevents commission of the crime.
Some notes on solicitation
Both Participants Guilty and Merger
o Rule: If person solicited commits crime, both people can be convicted of the crime.
o Rule: If person commits act sufficient for attempt of the crime, both people can be convicted of attempt.
o Rule: If person solicited agrees to do crime but takes no act sufficient for attempt, both can be liable conspiracy.
o Rule: However, under merger, the solicitor cannot be punished for both the solicitation and these other offenses.
- Exclusions
o A member of a protected class cannot be guilty of solicitation to commit a crime designed to protect that class
Example: Minor female cannot be guilty of solicitation of statutory rape by urging man to have sex with her, because the legislative intent is to exempt them.
Define attempt. 2 requirements.
o (1) An act done with a specific intent to commit the crime (that falls short of completing it); AND
o (2) Substantial step in furtherance of that intent beyond mere preparation.
Note: Substantial step required in attempt overt act; in conspiracy, mere preparation is sufficient.
Traditional rule – an act dangerously close to success
MPC – substantial step test
Some notes on attempted murder.
- Attempted Murder
o If the defendant testifies that he did not intent do kill, because attempt requires the specific intent to commit the crime, he cannot be guilty of murder. This is true even though there are various types of murder, but attempt lines up only to the first category of attempt which is intent to kill. - Not Applicable to Negligence or Recklessness
o Rule: Attempt to commit a crime defined as negligence (e.g., negligent homicide) is impossible because you can’t have specific intent in negligence. The same holds true for crimes that require recklessness, you cannot have the specific intent to be reckless.
What is the common law view on abandonment of attempt?
- Rule: Abandonment is not a defense at common law.
What is the MPC view on abandonment of attempt?
- Rule: Abandonment is a defense of attempt if it is fully voluntary and complete.
o Note: Motivated by a desire to avoid detection is not voluntary
Note: Factual impossibility is not a defense
Notes on prosecution
- Prosecution for Attempt
o Rule: A defendant charged only with a completed crime may be found guilty of the completed crime or an attempt, but a defendant charged only with attempt cannot be convicted of actually completing the crime (there is merger).
What are the rules on merger as they related to inchoate crimes?
o Solicitation and attempt merge into the actual crime, so one cannot be charged in addition to the actual crime
o Conspiracy does not merge into the actual crime and can be charged in addition to the actual crime.
o EXAM TIP – Incomplete Crime Fact Triggers
More than one person in a fact pattern
Hiring another person for any reason
Multiple parties taking part in an activity, even if not all parties are aware of the details
One person helping out another
Note: When the facts raise the issue of conspiracy, always consider accomplice liability as well since they often arise together.
Define homicide.
Homicide is the unlawful taking of the life of another.
What is the essay approach on a murder question? 7 steps
(1) Analyze accomplice liability and inchoate offenses
(2) Define common law murder and the 4 ways to establish malice aforethought
(3) Analyze each of the 4 ways above
(4) Analyze causation
(5) Analyze any mitigating factors
(6)If manslaughter is not implicated, determine if the murder is 1st degree murder (deliberate and premeditated and/or felony murder), or 2nd degree murder (all other murders)
(7) Analyze defenses
What is the general rule on common law murder that contains the 4 categories
- Common law murder is the unlawful killing of another with malice aforethought. Malice aforethought can be satisfied by (1) the intent to kill, (2) the intent to inflict great bodily injury; (3) a reckless indifference to an unjustifiably high risk to human life (“depraved heart murder”); or (4) the intent to commit a felony (felony murder).
o Notes
Intent to kill is considered express malice while the other three, malice is implied.
Intentional use of a deadly weapon authorizes a permissive inference of intent to kill.
Society does not accept compassion as a justification to kill someone, so if defendant kills out of an act of love, don’t mitigate.
What are the 3 requirements to felony murder?
(1) Death caused before defendant’s immediate flight from felony ended;
(2) Felony distinct from killing itself; AND
(3) Death foreseeable.
(1) The death was caused before the defendant’s “immediate flight” from the felony ended;
* Note: When defendant reaches “a place of temporary safety”, the felony is deemed terminated.
(2) The felony is distinct from the killing itself; AND
* Note: Felony of manslaughter cannot be the felony for felony murder. Felony cannot be aggravated battery resulting in death.
(3) The death was a foreseeable result of the felony.
o D’s conduct must also be the cause in fact and the proximate cause of the death.
What are the felonies for felony murder and the nmeunoic?
Inherently dangerous felonies (BARRK)
* Burglary
* Arson
* Rape
* Robbery
* Kidnapping
Felony murder is strict liability (NO mens rea requirement)
Defendant must have committed to attempted to commit underlying felony
