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
If a co-felon is killed by a victim or by the police, what is the rule?
- D not liable for death of co-felon when a non-felon kills the co-felon (e.g., a co-felon is killed by police officer)
If an innocent victim is killed by a non-felon, what are the 2 types of rules?
Proximate Cause
Agency
What is the proximate cause rule?
- Rule: Felons are liable for the deaths of innocent victims caused by someone other than a co-felon.
What is the agency theory rule and the 2 exceptions?
- Rule: Felons are NOT liable for the deaths of innocent victims caused by someone other than a co-felon, unless:
o (1) Felon used victim as a shield, OR
o (2) Felon forced victim to occupy dangerous place
Notes on felony murder and murder
o Valid Defense to Underlying Felony
If you have a defense to an underlying felony, like intoxication during the robbery, this same defense will be used to negate felony murder
Do NOT need to be convicted of underlying felony
If you commit felony, that is not on the above list, it is NOT felony murder
* Conclusion for Felony Murder if Liable: Since both A and B are liable for the underlying felony, they will be liable for the murder as well.
- Bar Tip
o Bar exam does not use the phrase ‘malice aforethought’ in MC questions
o Generally, in homicide, causation is a minor issue that can be addressed in one or two sentences. However, if the D did not do the actual killing, argue both sides of causation. For example, if victim kills herself, a third party kills victim, or killing not contemplated or was far removed from events, causation should be addressed.
What is the nuance on accidental deaths and suicide?
Rule: The felony must be ongoing when the death occurs for the felony murder rule to be applicable
* Example: If two felonies happen like a kidnapping and then a rape—and she then commits suicide, the felony murder is for the kidnapping because that is the crime that was continuing when she died. She lived after the rape, so there is NO felony murder for the rape.
What are the 2 types of voluntary manslaughter?
(1) Heat of passion
(2) Imperfect self defense
What are the 4 requirements for a heat of passion killing?
(1) Heat of passion: Murder can be reduced to voluntary manslaughter if the D killed another in the heat of passion where 4 requirements met:
(a) Reasonable provocation;
o D acted in response to provocation that would cause reasonable person to lose self control; spouse cheating, or being a victim of a serious battery, threat of deadly force
(b) D in fact provoked;
(c) No cooling off time; AND
o Insufficient time for a reasonable person to cool off
(d) D in fact did not cool off.
When can murder be mitigated down to voluntary manslaughter under imperfect self defense? 2 situations
Murder may also be reduced to voluntary manslaughter if:
- (1) D kills under an unreasonable mistake about the need for self-defense; OR
- (2) D was at fault in starting the altercation
When is a killing voluntary manslaughter? 2 situations
A killing is involuntary manslaughter if it was committed:
o (1) With criminal negligence (or recklessness under the MPC); OR
o (2) Foreseeable death caused during a misdemeanor or non-IDF felony.
Note
Exam Tips
* Manslaughter has nothing to do with murder.
* Never talk about intent in any manslaughter question (MBE does not test you on mitigating down from murder to manslaughter like happens in real life)
Define criminal negligence (under the Modern Penal Code)
D failed to know of a substantial and unjustifiable risk that circumstances exist or a result will follow.
Examples
* Texting and driving; drunk driving
* Parent neglects medical or other care of child due to religious reasons – this is negligence because parent would never want kid to die
Define misfeasance.
Misfeasance is an involuntary homicide where one with a legal duty to act may be guilty of murder for failing to act.
What are the 4 situations in which 1st degree murder can arise?
- (1) Deliberate and premeditated murder
o Note: Reflected on the murder even for a second
o Note: Requires specific intent which may be negated by voluntary intoxication. Mitigate down to second degree murder (or common law murder based on recklessness) - (2) Killing during an enumerated felony
o BARKK and other felonies that are inherently dangerous
o Note: A defense to the underlying felony (e.g., defense to burglary) precludes a conviction for felony murder. - (3) Killing of a police officer
o Note: D must know cop if cop, and cop must be acting in line of duty. - (4) Heinous murder (e.g., through poison, torture, mutilation)
Sample Conclusion: Since the kidnapping is an enumerated inherently dangerous felony, A and B could be convicted of first degree murder under the felony murder rule.
Note: For killing of a police officer, defendant must know he’s an officer and the officer must be acting in line of duty (even if off shift).
What is the rule for 2nd degree murder?
If the murder does not rise to the level of first-degree murder and is not reduced to manslaughter, the D will be guilty of second-degree murder.
* Note: This is usually classified as a depraved heart murder.
What are 4 examples of 2nd degree murder?
- (1) Intent to kill (without premeditation)
- (2) Intent to cause serious bodily harm
- (3) Reckless indifference to an unjustifiably high risk to human life (depraved heart, extreme negligence)
- (4) Intent to commit inherently dangerous felony that is NOT BARRK
Some exam tips
Exam Tip
* If D did not actually kill the victim himself, always consider his possible liability for murder as an accomplice, as a co-conspirator, or through application of felony murder rule.
Overall Exam Tips on Homicides
o Involuntary (negligent) manslaughter
Negligence = no people present
Example: drop bowling ball off bridge at 4am to see if it will float
Example: duck hunting in duck season and no one is around, kill kid
Example: shoot gun into empty taped up building and kill homeless man inside
Answer will use phrase ‘negligent manslaughter, because death was foreseeable’
* Common law does not use word ‘degrees’ because degrees are by statute
o 99% of questions will just say ‘murder’ or ‘manslaughter’
What are the 2 kinds of assault?
o (1) An attempt to commit a battery; OR
Note: Attempted murder and this type of assault would merge.
o (2) Intentional creation (beyond mere words) of a reasonable apprehension of imminent bodily harm.
Aggravated Assaults – 3 Ways
(1) Use of deadly weapon
(2) Defendant acts with intent to commit murder, rape, or mayhem
(3) Specially-protected victim (child, woman, or police officer)
o Note: If there has been actual touching of the victim, the crime can only be battery, not assault.
What are the 3 requirements to battery?
o (1) Unlawful application of force (may be indirect like dog);
o (2) To the person of another; AND
o (3) That results in bodily injury OR any offensive touching.
o Notes
Action must be intentional, reckless, or criminally negligent but no intent is needed
Mistake of identity of the victim would never work since only a voluntary act is needed
Aggravated Battery – 3 Ways
- D uses a deadly weapon
- D causes serious bodily injury
- Specially-protected victim (battery of child, woman, or police officer)
Define mayhem.
Defined: Permanent dismemberment or disablement of body
o Modernly treated as aggravated battery
Define kidnapping. 3 elements.
o (1) Unlawful confinement of a person;
Confinement: Compelled to go or remain where doesn’t want to
o (2) Without consent; AND
o (3) Via movement or concealment of a person in a “secret” place.
o Notes
Exam – kidnapping usually will be tested via statute
Children and mentally disabled lack legal capacity to consent, so their consent is irrelevant
False imprisonment becomes kidnapping if victim is moved or concealed
o Aggravated Kidnapping – 4 Ways
- (1) Ransom
- (2) Purpose of committing other crimes
- (3) Offensive purpose
- (4) Child stealing
o Exam Tips
They say Jon put kid in car, they give you kidnapping statute, and then they ask can Jon be liable for attempted kidnapping?
* Now, the question is about the crime of attempt and not kidnapping. Only matters now if you had intent to commit a kidnapping.
* Battery, arson, rape, kidnapping are general intent but if they gave you a statute that says “intent” in it, they have made it a specific intent crime.
* Trick you by giving you the exact right definition but the question asked something different
Define false imprisonment. 3 elements.
o (1) Unlawful confinement of a person;
MPC: Confinement must substantially interfere with victim’s liberty
o (2) Without valid consent; AND
o (3) With no reasonable means of escape.
o NOTE: Consent is invalidated through coercion, threat, deception, or incapacity due to mental illness, substantial cognitive impairment, or youth.
Define modern law rape.
Gender neutral sexual assault of a person under age (of consent).
Notes
* Given through a statute
* Strict liability, which means the defense of reasonable mistake of the girl’s age is not a defense.
* Slightest penetration is sufficient
* Can apply to marriages and both genders
* Consent is not a defense because it is a strict liability crime
* Mistake of age is not a defense
* Under traditional rule and the MPC, a husband cannot rape his wife.
Define common law rape. 3 elements.
(1) Unlawful sexual intercourse;
(2) By a man not her husband; AND
(3) Without effective consent.
* Incapable of giving consent if mental condition, unconscious, intoxicated
* Insufficient if fraudulently believed it is not intercourse
Exam Tip
* If they give you a statute, follow directions in the statute
* Recall – there is no intent here because rape is a general intent crime
Notes on consent and rape
Consent and Rape
Lack of effective consent exists where:
* (1) Intercourse established by force or threats to harm
* (2) Victim unconscious, intoxicated, or mental condition
* (3) Victim fraudulently caused to believe that the act is not intercourse
Note: Consent due to other types of fraud (e.g., perp persuades women that he is her husband or that they will get married) is effective.
Notes on theft crimes
General rules on property crimes
o An honest mistake negates required intent, no matter how unreasonable (though jury is unlikely to believe)
o Possession is physical control and the right to exclude others
o Custody is physical entrustment subordinate to the right of others
Define larceny. 4 elements.
(1) Taking and carrying away;
Note: Slight movement sufficient, you don’t even have to leave store with item
Note: This element is called asportation.
(2) Without consent;
(3) Of the personal property of another; AND
(4) With the intent to permanently deprive at the time of taking.
Note: Even if you return the item later, if you had the intent when you took it, you are guilty of larceny.
o Insufficient Intent for Larceny
Belief property is defendant’s or that he has any right to it
Intent to keep property as repayment of debt
Taking money from someone you believe owes you
Taking abandoned property is not larceny unless in what 2 situations:
(1) Lost property, if finder knows owner and doesn’t return, OR
(2) Misdelivered property, if recipient realizes mistake and steals at time of delivery
What is the Contuining Trespass Rule
- Rule: if a defendant takes property with a wrongful state of mind but without the intent to steal, and later, while still in possession of it, forms the intent to steal it, the trespass involved in the initial wrongful taking is regarded as “continuing” and the defendant is guilty of larceny.
o Example: If she took dress without permission but intending to return it and later changed her mind and decided to keep it forever, she is guilty of larceny.
Additional notes on larceny
o An innocent agent’s act of carrying away is ascribed to the principal
o Taking from a thief is larceny, unless the second thief had superior possessory interest in the property.
o Defenses
Mistake
o If honest mistake, unreasonable or reasonable mistakes OK
Some notes on possession
- Something you have possession over is not larceny (might be embezzlement)
- Possession = discretionary authority over item
o Exam Tip: If statute says “willful possession” then possession is not enough. - Custody = limited authority over the item (lower-level employees)
- Property must be capable of possession. Realty and fixtures (e.g., crops) cannot be the subject of larceny, unless severed (harvested crops). Gas and electricity can be subject of larceny since personal property.
What is the breaking bulk rule?
o Rule: Generally, bailee has possession and thus can be guilty of embezzlement. However, if the bailee opens closed containers in which the property has been placed by the bailor (the employee breaks bulk), the possession is regarded as having returned to the bailor, and thus the employee may be guilty of larceny if they take the property.
Define larceny by trick. 3 elements.
(1) Obtaining possession or custody;
Note: Does not apply to obtaining title
(2) To the personal property of another; AND
(3) By false statements.
Note: Future statement insufficient
o Examples
I lie to you and get your car for one year to use.
You lend me your baseball for a minute but I play ball with it and dog eats it.
I like in a one way transaction – I need money for x but I use it for gambling.
90% of Exam Answers are larceny by trick because all guy gets is possession, not title
Define false pretenses. 4 elements.
(1) Obtaining title;
Possession is insufficient
(2) To the personal property of another;
(3) By an intentional false statement of a past or existing fact; AND
Sub-Rule: Under the MPC and the modern prevailing view, any false statements, including false promise to perform in future
(4) With intent to defraud.
Victim must be deceived or act in reliance on false statement
Test for reliance is subjective
o Notes
The victim must actually be deceived by or act in reliance of the false statement
Larceny by trick: obtain only custody of the property
False pretense examples
* I need car and title to your car to drive to hospital in case cops pull me over.
* I lie to you and you sign deed to home over to me.
* I lie about my net worth and get you to give title to me of something.
* ** I lie in a two way fraudulent sales transaction (money in exchange for fake Rolex or fake baseball card) (innocent person conveys title to their cash to defendant)
o DEFENSES
Intent to restore the exact same property obtained (not an equivalent property)
Claim of right: Belief that collecting debt negates intent
What are the 4 requirements for embezzlement?
o (1) Fraudulent conversion;
Note: This means use of the property in a way that is inconsistent with the terms of the trust.
o (2) Of the personal property of another;
o (3) By a person in lawful possession of the property; AND
o (4) With the intent to defraud.
Note: Custody insufficient
Some notes on embezzlement
o Insufficient for Conviction
Rule: If the defendant intended to restore the exact property taken, it is NOT embezzlement. But if he intended to restore similar or substantially identical property, it is embezzlement, even if it was money that was initially taken and other money-of identical value-that he intended to return.
Embezzlement is not committed if the defendant claims they have a right to the property (whether the defendant took the property openly is an important factor)
o Notes
Difference with larceny is that in larceny, you commit wrongful act and it was not in your initial possession, but embezzlement, you committed wrongful act and it was in your rightful possession
Lower-level employees can generally not be guilty of embezzlement, as such an employee typically has custody, not possession, of the employer’s property.
Serious interference with owner’s rights
A trustee is usually the embezzler
The embezzler does not have to get the benefit
Examples
* You give guy your jewelry to store for 90 days. But he sells the ring without your permission. Embezzlement b/c he had lawful possession of item and converts it to his own. No false statements so no larceny by trick or false pretenses.
* Applies to employees or trustee entrusted with property.
DEFENSES
* Intent to restore the exact same property obtained (not an equivalent property)
* Claim of right: Belief that collecting debt negates intent
Define Robbery. 5 elements.
o (1) A taking;
o (2) Of the personal property of another;
o (3) From the other’s person or presence;
Note: Includes someone being tied up somewhere
Note: If wallet falls on floor because victim slips, it is not taken from the person/presence.
o (4) By force or threats of immediate death or injury; AND
Of victim, family, or someone in victim’s presence
Force may be applied via sedatives
Note: You do NOT need to actually harm victim.
Note: If victim gives up property because they feel bad for D, or they want him to go away, this is insufficient, though the D may be guilty of attempted robbery.
o (5) With intent to permanently deprive.
Some notes on robbery
o Important Note: Larceny merges into robbery, so you cannot be convicted of both (but can be charged for both).
o Notes
Example: If friend uses water gun and you both laugh and you give them $50 when they say give me all your money, no robbery because no force or threat of fear.
Example: If person says give me money right now because across street is sniper that will kill you, and you can’t see the sniper but you’re afraid he is there, and you give the money, this is robbery.
If you commit the robbery, you are not also guilty of larceny; larceny merges into the robbery.
If you only meant to pickpocket, but you slashed bag with knife, and somehow victim reached out and got cut and then dropped purse, now you have used force to gain possession (you do not need to intend to injure the victim)
Aggravated robbery
* Robbery with a deadly weapon (or creation of such belief, e.g., with empty gun)
o If you simulate a weapon, it is sufficient for armed robbery (e.g., hand under shirt)
Define extortion under the common law. 2 requirements.
(1) Corrupt collection of an unlawful fee; AND.
(2) By an officer under color of office.
Define extortion under the modern law. 3 elements.
(1) Obtaining property;
(2) Of another; AND
(3) By threats to do harm or expose information.
o Notes
Also known as blackmail
Difference with robbery: Extortion can include threats of future harm and does not have to be in the presence of the victim
Claim of right is NOT a defense
- THEFT
o Rule: Under many modern statutes and the MPC, some or all of the above property offenses are combined and defined as the crime of theft
Define 5 elements to common law burglary.
(1) Breaking;
* Actual or constructive
o Actual = opening or enlarging because I don’t fit through frame
o Constructive = by force, trick, threat w/gun to open door, fraud of identity, distress
* Breaking into subarea/closet is sufficient
* Walking uninvited into a wide, open door or window or breaking to get out is not a breaking. However, if you enter a wide open door and later inside you open one door, breaking is fulfilled and it can be burglary.
(2) Entering;
* Any portion of body enters dwelling (e.g., leg in window sufficient)
(3) Of the dwelling of another;
* Ownership = irrelevant (can be rented)
* Dwelling = a structure used for sleeping purposes, even if used for other purposes such as conducting a business; cannot be a barn or commercial structure
* CL = breaking into office is not a burglary. If you live on top of office, then dwelling.
* MPC = any building or structure
(4) At nighttime; AND
* MPC = not requirement
(5) With intent to commit a felony there in at the time of entry
* Note: Later-acquired intent insufficient
* Note: Do not have to actually commit the felony, just need intent.
* Example: I know neighbor on vacation, my cable goes out, I break into their home to watch cable. In their home, I steal purse. No burglary since no intent to commit felony at time of entering.
- MPC = includes misdemeanor
Notes on Modern Law
* Expanded burglary to include all structures (including cars)
* Expanded burglary to occur at any time (including daytime)
* Exam question will refer you to a statute; default is common law
Other Notes
* The crime of larceny merges into robbery
Define 4 elements to Receipt of Stolen Property
o (1) Receiving possession and control;
o (2) Of stolen personal property;
Note: At the time the D receives it.
o (3) Knowing or believing it was stolen by another; AND
o (4) With intent to permanently deprive.
o Notes
May infer knowledge or belief from abnormally low price (e.g., ¼ cheaper)
“Sting operations” where police set up D is insufficient b/c property is not stolen
* However, D may be guilty of attempted receipt of stolen property if he intended to receive it, believing it was stolen
Manual possession is not necessary. D can put goods in a location designated for them or arrange sale to a third person
DEFENSES
* Negate belief of source through
o Mistake of fact
o Claim of right
What are the 4 requirements to Forgery?
o (1) Making or altering a writing;
o (2) With apparent legal significance;
E.g., a contract, but not a painting
o (3) So that it is false; AND
Note: Inaccurate is not sufficient.
o (4) With intent to defraud.
o Notes
Do not need to actually defraud anyone. Intent alone is sufficient.
Misrepresentation on genuine document is not forgery
Uttering
* Offering known forgery w/intent to defraud. If successful, D may be liable for false pretenses
o Fraudulently Obtaining Signature of Another
Rule: If the D fraudulently causes a third person to sign a document that the third person does not realize they are signing, forgery has been committed. But if the third person realizes they are signing the document, forgery has not been committed even if the third person was induced by fraud to sign nit.
Define 3 elements to uttering a forged instrument
Rule: Uttering a forged instrument consists of:
* (1) Offering as genuine;
* (2) An instrument that might be forged and is false; AND
* (3) With the intent to defraud.
o Examples
Convincing another to sign a document he does not realize he is signing
Making copies of pictures without permission is not forgery b/c pics have no legal significance.
Define 3 elements to arson
o (1) The malicious;
Intentional or with reckless disregard of an obvious risk
No specific intent required
o (2) Burning; AND
Requires damage
Scorching (blackening by smoke or heat) is insufficient
Charring sufficient
o (3) Of the dwelling of another.
MBE: Any building or structure
o Notes
Malice means reckless knew or should have known
Still general intent
Examples
* Stand in front of house during dry season and flick my cigar butts into grass and house burns; I didn’t intend to burn your house down but it was reckless, I should have known
What are the laws on houseburning?
Common law: House burning was insufficient/crime did not exist.
Common law misdemeanor of house burning
* (1) Malicious;
* (2) Burning;
* (3) Of one’s own dwelling; AND
* (4) If the structure is situated either in a city or a town, near houses so as to create danger to them.
Note on defenses
o Any Specific Intent Crimes
Any type of intoxication
Reasonable AND unreasonable mistake of fact
For proving insanity, what are the standards of proof in majority, MPC and federal court view?
- Majority
o Defendant must prove insanity by a preponderance of the evidence. - MPC
o Prosecution must prove D sane beyond a reasonable doubt. - Federal courts
o Defendant must prove insanity by clear and convincing evidence.
What is the rule on insanity and arraignment?
Insanity may, but does not need to be raised at arraignment, it can be raised at trial, you don’t waive it.
What is the rule on insanity and a pre trial psych exam?
Rule: If D does not raise the insanity issue, he may refuse a court-ordered psych examination to determine their competency to stand trial. If the defendant raises insanity, they cannot refuse the court ordered exam.
What are the 4 insanity tests?
M’Naghten
Irresistible Impulse
Durham
MPC and Modern Trend
Define the 2 elements for M’Naghten
Rule: The defendant is entitled to acquittal if:
* (1) Defendant had a disease of the mind that caused defect in his reason; AND
* (2) Such that defendant did not understand wrongfulness or nature of his actions.
- Note: D must meet this test if arguing delusions, morally thought it was right, or loss of control due to mental illness.
Define the 2 elements for the Irresistible Impulse Test
Rule: The defendant is entitled to acquittal if:
* (1) Suffered from mental illness; AND
* (2) Such that unable to control his actions or conform his conduct to the law.
Define the Durham Test.
Rule: The defendant is entitled to acquittal if the crime was a product of mental illness.
Note: Only applied in New Hampshire. Very broad. Apply but-for.
Model Penal Code and Modern Trend
Rule: The defendant is entitled to acquittal if:
* (1) Defendant had mental disease or defect; AND
* (2) Such that he lacked substantial capacity to either appreciate the wrongfulness of the act or conform conduct to the law.
o EXAM TIP
* Whenever insanity or mental illness at issue, go through ALL 4 types of insanity. Use separate headings.
Define the 2 elements for voluntary intoxication
Rule: Voluntary intoxication is the:
* (1) Intentional taking, without duress; AND
* (2) Of a substance known to be intoxicating.
What type of crimes does voluntary intoxication apply to and not apply to?
Defense to Specific Intent Crimes Only
* The intent must have been formed after intoxication.
* Evidence of voluntary intoxication may be offered by the defendant only if the crime requires intent or knowledge, and the intoxication prevented the D from formulating the purpose or obtaining the knowledge.
* Thus, voluntary intoxication is good defense to specific intent crimes
* Does NOT apply to general intent, malice, or strict liability crimes
Murder - review
o Voluntary intoxication will be a good defense to first degree (premeditated murder), but not second degree murder, because second degree murder includes common law malice murder.
o First degree murder would go down to second degree murder.
For crimes that require recklessness (conscious disregard), a person who would have been aware of the risk had he not been intoxicated acts recklessly with regard to the risk.
Addicts and Alcoholics
* Addicts and alcoholics who are intoxicated when they do a crime is always considered to be voluntarily for purposes of the bar exam.
What are the 2 elements to involuntary intoxication?
Rule: Involuntary intoxication is the:
* (1) Unintentional taking of an intoxicating substance;
* (2) Under duress imposed by another OR pursuant to medical advice while unaware of the substance’s intoxicating effects.
Rule: Involuntary intoxication, just like insanity, is a defense to ALL crimes
Note: Involuntary intoxication may be treated as a mental illness, and the defendant is entitled to acquittal if they meet the jurisdiction’s insanity test. Thus, involuntary intoxication is a defense to all crimes.
Define infancy for acquittal. 3 age groups and rules.
Rule: Under age 7, there is no criminal liability.
Rule: Ages 7-14, there is a rebuttable presumption that the child was unable to understand the wrongfulness of his acts.
Rule: Age 14 and older, the person is treated as an adult.
Define the defense of diminished capacity.
Defined: Mental defect that prevents D from forming required mens rea to commit crime
* Most states with this defense limit it to specific intent crimes
NO capital punishment (cruel and unusual)
* Mental defect at time of punishment – cannot be executed
Some rules of thumb for self defense
Threats of future harm never sufficient
Nondeadly force is justified where necessary to avoid imminent injury or to retain property
Deadly force is justified only to prevent death or serious bodily injury
What is the general rule on non deadly force?
Rule: A person without fault has a right to self-defense against unlawful force but must use reasonable force.
What is the 3 requirement rule to use deadly force?
Rule: A person may use deadly force in self-defense if the person:
(1) Is without fault;
o Note: The defendant cannot be the first aggressor.
(2) Is confronted with unlawful force; AND
(3) Reasonably believes they are threatened with imminent death or serious bodily harm.
Recall: Imperfect Self Defense
* Rule: If D kills in self-defense but does not meet the requirements for use of deadly force, defendant may be guilty of voluntary manslaughter under “imperfect self defense” doctrine
What is the majority view on duty to retreat?
Generally, there is no duty to retreat before using deadly force.
What is the minority view on duty to retreat and its 3 exceptions?
The minority view requires retreat before using deadly force if the victim can do so safely do so, unless:
(1) Attack occurs in victim’s own home
(2) Attack occurs while victim making a lawful arrest, OR
(3) Assailant is in the process of robbing the victim.
What is the general rule on one’s right to defend themselves if they were the aggressor?
Generally, one who is at fault for starting a confrontation has no right to use force in his own defense during the confrontation.
How can an aggressor regain his right to use force in self-defense? 2 ways
(1) They effectively withdraw and communicate their desire to do so, OR
(2) Victim suddenly escalates the minor fight into a deadly altercation and the initial aggressor has no chance to withdraw.
What is the 2 requirement rule to defending others?
(1) Reasonably believes the other person would be justified in using such force; AND
(2) Amount of force is reasonable.
- Note: No special relationship required.
What is the rule on protecting property and using non deadly force?
Rule: A defendant may use nondeadly force in defense of their dwelling or personal property where the defendant has a reasonable belief that the property is in immediate danger or to prevent or terminate an unlawful entry.
Note: Force may not be used if a request to desist or refrain would suffice.
What is the rule on protecting property and using deadly force?
- Rule: Deadly force may be used to prevent a violent entry into a dwelling where the person reasonably believes the use of force is necessary to prevent an attack on themselves or another in the dwelling, or to prevent an entry to commit a felony in the dwelling.
- Rule: Causing the death of another person to protect property is NEVER justified.
o Note: Deadly force OK in hot pursuit by felon hypo
What is the rule on regaining possession of property?
Rule: A person may use force to regain possession of property that they reasonably believe was wrongfully taken only if they are in immediate pursuit of the taker.
To prevent crime, what is the rule on non deadly force?
Nondeadly force may be used to prevent a felony or serious breach of the peace.
To prevent crime, what is the rule on deadly force?
Deadly force may be used only to prevent an inherently dangerous felony (BARRK) involving a risk to human life.
What is the rule on police officers being able to use non deadly force?
Rule: Nondeadly force may be used by police officers if necessary to effectuate an arrest.
What is the rule on police officers being able to use deadly force?
Deadly force is OK only if:
(1) Deadly force necessary to prevent a fleeing felon’s escape; AND
(2) Officer reasonably believes felon threatens death or seriously bodily harm.
What is the rule on police officers asking a bystander for help?
o Rule: Bystander assisting officer has same authority to use force as the officer, and the bystander’s good faith assistance is justified even if it turns out the officer exceeded their authority.
What is the rule on a private person using non deadly force for an arrest?
A private person may use non deadly force if:
o (1) Necessary to effectuate an arrest;
o (2) Crime in fact committed; AND
o (3) Reasonable grounds to believe person did crime.
What is the rule on a private person using deadly force for an arrest?
A private person may use deadly force if:
o (1) Deadly force necessary to prevent a fleeing felon’s escape;
o (2) Private person reasonably believes felon threatens death or seriously bodily harm; AND
o (3) Person harmed was actually guilty of committing offense.
What is the majority and minority rule on resisting an improper arrest with non deadly force?
- Majority rule: Non deadly force may be used to resist an improper arrest even if a known officer is making the arrest.
- Minority and MPC: Resisting arrest is not allowed.
What is the majority and minority rule on resisting an improper arrest with deadly force?
- Rule: Deadly force may be used only if the person does not know the person arresting them is a police officer.
What is the rule on duress? the MPC distinction on what it applies to and where the threats come from?
Rule: The defense of duress is available if the defendant reasonably believed the crime was necessary to avoid imminent threat of death or serious bodily injury to the defendant or his family.
Common Law = must be victim or victim’s family
MPC = can also be to property
While traditionally, threats to property were not sufficient, the MPC allows threats to property to give rise to a defense of duress if the value of the property outweighs the harm done to society by commission of the crime.
Human Threats only
Note: Cannot be used as defense to homicide.
What is the rule on necessity?
Rule: Necessity is a defense where the defendant reasonably believed commission of a crime was necessary to avoid imminent and greater injury to society. The test is objective.
Notes
Good faith belief is insufficient
Never a defense if:
* (1) Homicide
* (2) D created the situation requiring the necessity
Traditional view
* Threat had to come from natural forces
Modern view
* Threat can come anywhere, but usually comes from a non-human threat
Example: Stealing canoe during flood
What is mistake of fact?
Mistake of fact is relevant only of it shows the defendant lacked the state of mind for the crime; thus, it is irrelevant for strict liability crimes.
Some notes on mistake of fact
Summary: For specific intent crimes, any mistake that negates intent. For other crimes, reasonable mistakes only.
Reasonableness
o If mistake is offered to “disprove” a specific intent, the mistake need not be reasonable, so either an unreasonable or reasonable mistake is a defense.
Example: Accidentally take someone else’s laptop. Answer is: Not guilty, regardless of whether her belief was reasonable or unreasonable.
o In malice and general intent crimes, only reasonable mistakes are a defense.
Note
* Under mistake of fact, they never wanted to commit the crime. Unlike factual impossibility, where they always intended to commit the crime.
* Under mistake of fact, the crime is completed. Unlike factual impossibility where they tried to complete it and couldn’t, and this is where they are being charged with attempt, and factual impossibility is not a defense to attempt.
What is the general rule on mistake of law and what are the 4 exceptions?
Rule: Generally, ignorance of the law is not a defense.
4 Exceptions
(1) Mistake of law negates awareness of some aspect of the law related to elements of the crime required
Note: Insufficient to say they are not aware the statute existed
(2) Statute was not published or made reasonably available prior
(3) Reasonable reliance on a statute or judicial interpretation
(4) In some jurisdictions, reasonable reliance on official advice.
Notes on mistake of law
Exam Tip
* If it’s a statute with a small penalty, it is likely strict liability in which case the intent to violate a statute is not relevant.
* Barbri: It is not a defense to a crime that the defendant was unaware that his acts were prohibited by the law or that he mistakenly believed that his acts were not prohibited, even if such ignorance or mistake was reasonable.
Define Entrapment - 2 elements
Entrapment is a defense where:
(1) Criminal design originated with law enforcement; AND
(2) Defendant not predisposed to commit the crime prior to contact with the government.
Some notes on entrapment
Entrapment also applies to undercover officers
Look at the subjective intent of the D.
No entrapment if by private citizen
No entrapment if mere opportunity to commit a crime
Unavailable If Material for Crime Simply Provided by a Government Agent
* Rule: Defense cannot be based solely on fact that a government agent provided an ingredient for the commission of the crime (e.g., ingredients for drug)
Usually incorrect answer on MBE because the person had a predisposition to commit the crime.
Define factual impossibility.
Rule: In factual impossibility, the crime is incapable of completion to some physical or factual condition unknown to the defendant. It is not a defense to any inchoate crimes (e.g., attempt).
Note: They always wanted to commit the crime (whereas in mistake of fact, they never wanted to commit it).
Examples: Got to armored truck but no money inside; got to bank but closed.
Define legal impossibility.
Rule: Legal impossibility occurs when there is no crime on the books to cover the defendant’s behavior or his intended behavior. This is a complete defense.
Define Consent. 3 requirements.
(1) Freely given;
(2) Party is legally capable of consenting; AND
(3) No fraud was used to obtain consent.
o Exam Tip
In a sporting game, although there may be consent to contact, [hockey] players do not consent to the type of action engaged in by the defendant (coming at you at high speed, violently with a hockey stick raised above their head).
Define perjury. 2 elements.
(1) Intentional taking of a false oath (lying);
(2) In regard to a material matter.
* Note: Can impact outcome of proceeding.
Subordination of Perjury
Rule: Subordination of perjury involves procuring or inducing another to commit perjury.
Define bribery in the common or modern law.
Common law
* Corrupt payment or receipt of anything for value in return for official action
Modern law
* Extends to nonofficials, and either the offering or taking constitutes a crime
Define Compounding the crime
Rule: Compounding consists of agreeing, for consideration, not to prosecute another for a felony or to conceal the commission of a felony or the whereabouts of a felon. Under modern statutes, the definition refers to any crime.
Define Misprision of a felony.
Common law
* Rule: Failure to disclose knowledge of a felony or failure to prevent felony
Modern law
* No longer a crime, of it is, requires some affirmative action in aid of the felon.
