C/P Flashcards
Generally, a state has jurisdiction over a crime if:
- Any act constituting an element of the offense was committed in
the state - An act outside the state caused a result in the state
- The crime involved the neglect of a duty imposed by the law of
the state - There was an attempt or conspiracy outside the state plus an act
inside the state, or - There was an attempt or conspiracy inside the state to commit an
offense outside the state
Generally, there is no merger of crimes in American law. However, a
person who solicits another to commit a crime may
not be convicted
of both the solicitation and the completed crime (if the person
solicited does complete it).
Similarly, a person who completes a crime
after attempting it may not be convicted of both the attempt and
the completed crime.
Conspiracy, however, does not merge with the
completed offense (so, for example, a person can be convicted of
both robbery and conspiracy to commit robbery).
A crime almost always requires proof of:
A physical act (actus reus)
A mental state (mens rea), and
A concurrence of the act and mental state
A crime may also require proof of a result and causation (meaning the
act caused the harmful result).
A defendant must have either performed a voluntary physical act or
failed to act under circumstances imposing a legal duty to act. An act
is a bodily movement.
Examples of bodily movements that do not qualify for criminal liability
include:
Conduct that is not the product of the person’s own volition
A reflexive or convulsive act
An act performed while unconscious or asleep
The failure to act gives rise to liability only if:
There is a legal duty to act (see below)
The defendant has knowledge of the facts giving rise to the duty
to act; and
It is reasonably possible to perform the duty
A legal duty to act can arise from one of five circumstances:
(1) By statute (for example, the requirement to file a tax return)
(2) By contract (for example, a lifeguard or nurse has a legal duty to
act)
(3) The relationship between the parties (for example, a parent/
spouse has a duty to protect a child/spouse from harm)
(4) The voluntary assumption of care by the defendant for the victim
(5) The defendant created the peril for the victim
A crime may require not only the doing of an act, but also the doing
of it with a specific intent or objective. The existence of a specific
intent cannot be conclusively imputed from the mere doing of the
act, but the manner in which the crime was committed may provide
circumstantial evidence of intent. The importance of specific intent
crimes is that they will qualify for additional defenses not available for
other types of crimes. The major specific intent crimes and the intents
they require are as follows:
- Solicitation: Intent to have the person solicited commit the crime
- Conspiracy: Intent to have the crime completed
- Attempt: Intent to complete the crime
- First degree premeditated murder: Premeditated intent to kill
- Assault: Intent to commit a battery
- Larceny: Intent to permanently deprive the other of their interest
in the property taken - Embezzlement: Intent to defraud
- False pretenses: Intent to defraud
- Robbery: Intent to permanently deprive the other of their interest
in the property taken - Burglary: Intent to commit a felony in the dwelling
- Forgery: Intent to defraud
Specific intent crimes mnemonic: Students Can Always Fake A
Laugh, Even For Ridiculous Bar Facts.
malice
reckless disregard of obvious or high risk that particular harmful result will occur
murder
arson
General intent is the big catch-all category. All crimes not so far
mentioned are general intent crimes unless they qualify for strict
liability. General intent means
the defendant has an awareness of all
factors constituting the crime; in other words, the defendant must
be aware that they are acting in the proscribed way and that any
required attendant circumstances exist.
strict liability
no mens rea req
d guilty from committing act
(MPC JX)When a statute requires that the defendant act purposely,
knowingly,
or recklessly, a _____standard is used.
subjective
A person acts purposely when their conscious object is to
engage in ___
certain conduct or cause a certain result.
knowingly
aware conduct is of particular nature or certain circumstances exist
recklessly
consciously disregard substantial and unjustifiable risk
negligently
fail to be aware of substantial and unjustifiable risk (objective)
transferred intent
d intended harm to different victim or object
applies to homicide battery and arson
The defendant must have had the intent necessary for the crime at
the time they committed the act constituting the crime, and the intent
must have
prompted the act.
principals in the first degree
persons who engage in act that constitutes the crime
principals in the second degree (accomplice)
persons who aid advise or encourage and are present
accessories before the fact
persons who assisted or encouraged but were not present
accessories after the fact
persons who w knowledge other committed felony assisted them escape arrest or punishment
In order to be convicted of a substantive crime as an accomplice,
the accomplice must have
(1) the intent to assist the principal in the
commission of a crime; and (2) the intent that the principal commit
the substantive offense
When the substantive offense has recklessness or negligence as its mens rea, most jurisdictions would hold that
the intent element is satisfied if the accomplice
(1) intended to facilitate the commission of the crime; and (2) acted with recklessness or
negligence (whichever is required by the particular crime).
In the absence of a statute, most courts would hold that _____ that a crime will result is not enough for accomplice
liability, at least where the aid given is in the form of the sale of
ordinary goods at ordinary prices
mere knowledge
An accomplice is responsible for the crimes they did or counseled
and for any other crimes committed in the course of committing the
crime contemplated to the same extent as the principal, as long as
the other crimes ____
were probable or foreseeable.
A person who effectively withdraws from a crime before it is
committed cannot be held guilty as an accomplice. Withdrawal must
occur before the crime becomes unstoppable.
If the person encouraged the crime, the person must repudiate
the encouragement.
If the person aided by providing assistance to the principal (such
as giving materials), the person must do everything possible to attempt to neutralize the assistance (such as attempting to retrieve
the materials).
Notifying the police or taking other action to prevent the crime is
also sufficient.
elements of conspiracy
(1) an agreement between two or more persons; (2) an
intent to enter into the agreement; and (3) an intent by at least two
persons to achieve the objective of the agreement. The object of
the conspiracy must be criminal or the achievement of the lawful
object by criminal means. Unlike the common law, a majority of states
require an overt act, but an act of mere preparation will suffice.
The parties must agree to accomplish the same objective by mutual
action. However, the agreement need not
be express; it may be
inferred from joint activity.
The modern trend follows the M.P.C.’s “unilateral” approach to
conspiracy, which requires that
only one party have genuine
criminal intent.
At common law, a conspiracy requires at least
two “guilty
minds,” that is, persons who are actually committed to the illicit plan.
Conspiracy is a specific intent crime. Parties must have
(1) the intent
to agree and (2) the intent to achieve the objective of the conspiracy.
overt act for conspiracy; At common law, the conspiracy was complete when
the agreement
with the requisite intent was reached. The majority rule, followed by
most states, is that an act in furtherance of the conspiracy must be
performed
The point at which a conspiracy terminates is important because acts
and statements of co-conspirators are admissible against a conspirator only if they were done or made in furtherance of the conspiracy.
A conspiracy usually terminates
upon completion of the wrongful
objective.
A conspirator may be held liable for crimes committed by other
conspirators if the crimes
(1) were committed in furtherance of the
objectives of the conspiracy and (2) were foreseeable.
(NOT) defenses to conspiracy
1) factual impossibility
2) withdrawal from conspiracy (may be defense to crimes committed in furtherance of conspiracy; conspirator must perform affirmative act that notifies co conspirators of withdrawal in time for them to abandon plans
Conspiracy and the completed crime are distinct offenses; there is no
merger. A defendant may be convicted of and punished for both.
Solicitation consists of
asking, inciting, counseling, advising, urging,
or commanding another to commit a crime, with the intent that
the person solicited commit the crime. It is not necessary that the
person solicited agree to commit the crime
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). In most jurisdictions, it is not a defense that the solicitor renounces or withdraws the solicitation. The M.P.C. recognizes
renunciation as a defense if the defendant prevents the commission of the crime, such as by persuading the person solicited not to commit the crime. However, it is a defense that
the solicitor could
not be found guilty of the completed crime because of a legislative
intent to exempt them (for example, a minor female cannot be guilty
of solicitation of statutory rape by urging an adult male to have intercourse with her, because she could not be guilty of the completed
crime).
If the person solicited commits the crime solicited, both that
person and the solicitor can be held liable for that crime.
If the person
solicited commits acts sufficient to be liable for attempt, both parties
can be liable for attempt.
If the person solicited agrees to commit
the crime, but does not even commit acts sufficient for attempt, both
parties can be held liable for conspiracy.
However, under the doctrine
of merger, the solicitor
cannot be punished for both the solicitation
and these other offenses.
ttempt is an act, done with intent to commit a crime, that falls short
of completing the crime. Attempt requires
(1) specific intent plus (2) an
overt act in furtherance of the crime.
act and obtain a result that, if achieved, would constitute a crime.
Regardless of the intent necessary for the completed offense, an
attempt always requires
a specific intent (that is, the intent to commit
the crime).
overt act for attempt
act beyond mere prep
traditional/proximity test: dangerously close to completion
modern/majority test: substantial step in course of conduct
defenses of attempt
abandonment- not defense at common law; defense under mpc if fully voluntary and complete
legal impossibility- not a crime
factual impossibility-not a defense !
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 may
not be convicted of the completed crime
common law murder
unlawful killing of a human being w malice aforethought
malice aforethought
intent to kill
intent to inflict great bodily injury
reckless indifference to an unjustifiably high risk to human life
intent to commit a felony
A murder will be second degree murder (similar to common law
murder) unless it comes under the following circumstances, which
would make it first degree murder:
a) d made decision to kill in cool and dispassionate manner and actually reflected on idea of killing
b) first degree felony murder
c)killings performed in certain ways (for example,
by torture) or with certain victims first degree murder.
Many states
make the homicide of a police officer first degree murder.
The defendant must know the victim is a law enforcement officer, and the victim
must be acting in the line of duty.
If the jurisdiction divides murder into degrees, second degree murder
is usually classified as
a depraved heart killing (a killing done with a
reckless indifference to an unjustifiably high risk to human life) or any
murder that is not classified as a first degree murder
felony murder rule
any death caused in the commission of or in an attempt to commit a felony is murder
(BARRK)
burglary, arson, rape, robbery kidnapping
limitation on felony murder liability
d must have committed or attempted to commit underlying felony
felony must be distinct from killing itself
death must have been forseeable
death must have been caused before immediate flight from felony ended
proximate cause theory- felon liable for
deaths of innocent victims caused by someone other than co-felon (minority)
agency theory- felon laible only if
killing committed by felon or agent
voluntary manslaughter is a killing that would be murder but for the
existence of adequate provocation. Provocation is adequate only if:
- It was a provocation that would arouse sudden and intense
passion in the mind of an ordinary person, causing them to lose
self-control (for example, exposure to a threat of deadly force,
finding your spouse in bed with another, or being a victim of a
serious battery) - The defendant was in fact provoked
- There was not sufficient time between provocation (or provocations) and the killing for passions of a reasonable person to cool;
and - The defendant in fact did not cool off between the provocation
and the killing
Some states recognize an “imperfect self-defense” doctrine under
which murder may be reduced to manslaughter even though
(1) the
defendant was at fault in starting the altercation; or (2) the defendant
unreasonably but honestly believed in the necessity of responding
with deadly force (meaning the defendant’s actions do not qualify for
self-defense).
A killing is involuntary manslaughter if it was committed:
With criminal negligence (or by “recklessness” under the M.P.C.)
or
In some states, during the commission of an unlawful act (misdemeanor or felony not included within felony murder rule). Foreseeability of death also may be a requirement
high risk of death while involuntary manslaughter based on recklessness requires only
a substantial risk.
causation; The defendant’s conduct must be both the
cause-in-fact and the
proximate cause of the victim’s death.
A defendant’s conduct is the cause-in-fact of the result if
the result
would not have occurred “but for” the defendant’s conduct.
A defendant’s conduct is the proximate cause of the result if the
result is
a natural and probable consequence of the conduct, even
if the defendant did not anticipate the precise manner in which the
result occurred.
Superseding factors break the chain of proximate
causation.
An act that _____ an inevitable result is still the legal cause of
that result.
Also, _____ of two or more persons may be
independently sufficient causes of a single result. A victim’s preexisting weakness or fragility, even if unforeseeable, does not break
the chain of causation.
hastens
simultaneous acts
Generally, an intervening act shields the defendant from liability
if
the act is a coincidence or is outside the foreseeable sphere of
risk created by the defendant.
**Note that a third party’s negligent
medical care and the victim’s refusal of medical treatment for
religious reasons are both foreseeable risks, so the defendant would
be liable
battery
unlawful application of force to the person of another resulting in either bodily injury or an offensive touching
**general intent crime
Most jurisdictions treat the following as aggravated batteries and
punish them as felonies:
(1) battery with a deadly weapon; (2) battery
resulting in serious bodily harm; and (3) battery of a child, woman, or
police officer.
Assault is either:
(1) An attempt to commit a battery or
(2) The intentional creation—other than by mere words—of a reasonable apprehension in the mind of the victim of imminent bodily
harm.
If there has been an actual touching of the victim, the crime can only
be battery, not assault.
Aggravated assault is an assault plus one of the following:
(1) the use
of a deadly or dangerous weapon, or (2) with the intent to rape, maim,
or murder.
False imprisonment consists of the
unlawful confinement of a person
without the person’s valid consent.
The M.P.C. requires that the
confinement must “interfere substantially” with the victim’s liberty. It
is not confinement to simply prevent a person from going where they
desire to go, as long as alternative routes are available to them.
Note
also that consent is invalidated by coercion, threats, deception, or
incapacity due to mental illness, substantial cognitive impairment, or
youth.
Modern statutes often define kidnapping as unlawful confinement of
a person that involves either
(1) some movement of the victim, or (2)
concealment of the victim in a “secret” place.
Aggravated kidnapping includes
kidnapping for ransom, kidnapping
for the purpose of committing other crimes, kidnapping for offensive
purposes, and child stealing (the consent of a child to their detention or
movement is not of importance because a child is incapable of giving
valid consent).
rape
Traditionally, rape was the unlawful carnal knowledge of a woman
by a man, not her husband, without her effective consent. Today,
a number of state statutes have renamed “rape” as gender-neutral
“sexual assault.” The slightest penetration is sufficient.
statutory rape
carnal knowledge of a person under the age of
consent. Statutory rape is a strict liability crime, and, therefore, it is
not necessary to show lack of consent.
larceny
taking and carrying away of tangible personal property of another by trespass w intent to permanently deprive
generally the d has possession if
they were given discretionary authority over the property
d has custody if
they were given only limited authority over the property.
Generally, larceny requires that ______the defendant intended to permanently deprive a person of their property.
at the time of the taking
sufficient intent
An intent to create a substantial risk of loss, or an intent to sell or
pledge the goods to the owner, is sufficient for larceny
insufficient intent
Where the defendant believes that the property they are taking is
theirs or where they intend only to borrow the property or to keep it
as repayment of a debt, there is no larceny.
possibly sufficient intent
There may be larceny where the defendant intends to pay for the
goods (if the goods were not for sale) or intends to collect a reward
from the owner (if there is no intent to return the goods absent a
reward).
Larceny can be committed with lost or mislaid property or property
that has been delivered by mistake, but not with
abandoned property
continuing trespass
d wrongly takes property w/o intent to permanently deprive and later decides to keep it= larceny
embezzlement
fraudulent conversion of personal property of another by person in lawful possession of that property
false pretenses
obtaining title to personal property of another by intentional false statement of past or existing fact with intent to defraud
larceny by trick
victim gives up custody or possession of property
false pretenses
victim gives up title to property
robbery
taking of personal property of another from the others person or presence by force or threats w intent to permanently deprive
Common law extortion consists of the corrupt collection of an
unlawful fee by an officer under color of office. Under modern
statutes, extortion (blackmail) often consists of obtaining property
by
means of threats to do harm or to expose information.
Receipt of stolen property consists of:
- Receiving possession and control
- Of “stolen” personal property
- Known to have been obtained in a manner constituting a criminal
offense - By another person
- With the intent to permanently deprive the owner of their interest
in it
forgery
making or altering a writing w apparent legal significance so that it is false w intent to defraud
Common law burglary consists of
- A breaking (creating or enlarging an opening by at least minimal
force, fraud, or intimidation; if defendant had the resident’s consent to enter, the entry is not a breaking) - And entry (placing any portion of the body or any instrument used
to commit the crime into the structure) - Of a dwelling (a structure used with regularity for sleeping purposes, even if used for other purposes such as conducting a
business) - Of another (ownership is irrelevant; occupancy by someone other
than the defendant is all that is required) - At nighttime
- With the intent to commit a felony in the structure (felony need
not be carried out to constitute burglary)
A constructive breaking is a breaking by
fraud or threat.
arson
malicious burning of dwelling of another
damage req’d for arson
scorching (blackening by smoke or discoloration by heat) is not sufficient
charring is sufficient
M’Naghten Rule
a defendant is entitled to acquittal if: (1) a disease
of the mind; (2) caused a defect of reason; (3) such that the defendant lacked the ability at the time of their actions to either know the wrongfulness of their actions or understand the nature and quality
of their actions.
Delusions, belief that one’s actions are morally right,
or loss of control because of mental illness are not defenses unless this test is met.
irresistible impulse test
d entitled to acquittal if bc of mental illness unable to control actions or conform conduct to the law
Durham (or New Hampshire) Test
d entitled to acquittal if crime was product of mental illness
MPC test
d entitled to acquittal if d had mental disease or defect and as a result lacked substantial capacity to either appreciate criminality of conduct or conform conduct to the law
All defendants are presumed sane; the defendant must raise the
insanity issue. In most states, once the issue is raised, the defendant must prove their insanity, generally by
a preponderance of
the evidence.
Other states (and the M.P.C.) require the prosecution to prove the defendant was sane beyond a reasonable doubt.
Federal courts require the defendant to prove insanity by clear and
convincing evidence.
Although the insanity defense may be raised at the arraignment
when the plea is taken, the defendant need
not raise it then. A simple
“not guilty” at that time does not waive the right to raise the defense
at some future time.
voluntary intoxication
results from intentional taking w/o duress of substance known to be intoxicating
defense to specific intent crimes
Intoxication is involuntary only if it results from the taking of an
intoxicating substance
without knowledge of its nature, under direct
duress imposed by another, or pursuant to medical advice while
unaware of the substance’s intoxicating effect.
Involuntary intoxication may be treated as a mental illness, and the defendant is entitled
to acquittal if they meet the jurisdiction’s insanity test.
Thus, involuntary intoxication can be a defense to all crimes.
infancy common law defense
under age 7= no criminal liability
ages 7-14= rebuttable presumption child unable to understand wrongfulness of acts
age 14+= treated as adult
rule for non deadly force
A person without fault may use such force as the person reasonably
believes is necessary to protect themself from the imminent use of
unlawful force upon themself. There is no duty to retreat.
rule for deadly force
A person may use deadly force in self-defense if the person (1) is
without fault; (2) is confronted with “unlawful force”; and (3) reasonably believes that they are threatened with imminent death or great
bodily harm.
If one is the aggressor in the confrontation, they may use force in
defense of themself only if:
- They effectively withdraw from the confrontation and communicate to the other their desire to do so, or
- The victim of the initial aggression suddenly escalates the minor
fight into a deadly altercation and the initial aggressor has no
chance to withdraw
A defendant has the right to defend others if ______
Generally, there need be no special relationship
between the defendant and the person in whose defense they acted.
they reasonably believe
that the person assisted has the legal right to use force in their own
defense. All that is necessary is the reasonable appearance of the
right to use force.
A person may use nondeadly force in defense of their dwelling
when,
and to the extent that, they reasonably believe that such conduct is
necessary to prevent or terminate another’s unlawful entry into or
attack upon their dwelling.
Deadly force may be used only to
prevent
a violent entry and when the person reasonably believes that the
use of force is necessary to prevent a personal attack on themself or another in the dwelling, or to prevent an entry to commit a felony in
the dwelling.
duress
defense to crime other than intentional homicide that defendant reasonably believed another person would imminently inflict death or great bodily harm if defendant did not commit crime
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.
Traditionally, threats to property were not sufficient; however, a
number of states, consistent with the M.P.C., do allow for threats to
property to give rise to a duress defense, assuming that
the value of
the property outweighs the harm done to society by commission of
the crime
necessity
defense that D reasonably believed commission of crime was necessary to avoid imminent and greater injury to society
The defense of necessity is not available if
the defendant is at fault in
creating the situation requiring that they choose between two evils.
Mistake or ignorance of fact is relevant to criminal liability only if it
shows that the defendant
lacked the state of mind required for the
crime; thus, it is irrelevant if the crime imposes “strict” liability
If mistake is offered to “disprove” a specific intent, the mistake need
not be reasonable; however, if it is offered to disprove any other state
of mind, it
must have been a reasonable mistake or ignorance.
Entrapment occurs if the intent to commit the crime originated not
with the defendant but with law enforcement officers. Entrapment
exists only if:
(1) The criminal design originated with law enforcement officers, and
(2) The defendant was not predisposed to commit the crime prior to
contact by the government.
Merely providing the opportunity for a predisposed person to commit
a crime is not entrapment.
Perjury is
the intentional taking of a false oath (lying) in regard to
a material matter (that is, one that might affect the outcome of the
proceeding) in a judicial proceeding.
