Chapter 7 Flashcards
What is a party?
Those who participate in a crime.
What is an inchoate crime?
A crime that is uncompleted.
In common law, what were the four parties to a crime?
- Principals in the first degree.
- Principals in the second degree.
- Accessories before the fact.
- Accessories after the fact.
What is a principal?
A person directly involved with committing a crime, as opposed to an accessory.
What is a principal in the first degree?
The participant who actually committed the proscribed act.
What is a principal in the 2nd degree?
It is a party that aids , counsels, assists, or encourages the principal in the first degree during commission of the crime.
Must a party be present during a crime in order to be a principal in the 2nd degree? Is constructive presence sufficient?
Yes. Yes.
Are first-degree and second-degree principals punished equally?
Yes.
What is an accomplice?
Principals in the second degree.
Are accessories before the fact principals in the 2nd degree?
Yes.
What is an accessory?
Anyone who aids, counsels, encourages, or assists in the preparation of a crie, but is not physically present during the crime, is an accessory before the fact.
What is the primary distinction between a principal in the 2nd degree and an accessory before the fact is what?
The lack of presence during the crime of an accessory before the fact.
Is it true that statutes commonly group principals in the first and second degree together with accessories before the fact and punish all equally?
Yes.
Do negligent and reckless acts make a person a principal in the 2nd degree or an accessory?
No.
Under the law, are accessories after the fact treated differently?
Yes. They are not punished as severely.
What elements make a person an accessory after the fact?
- Aid, comfort or shelter a criminal.
- With the purpose of assisting the criminal in avoiding arrest or prosecution.
- After the crime is committed.
- and the accessory was not present during commission of the crime.
What is the definition of an accessory?
A person who helps commit a crime without being present. An accessory before the fact is a person who, without being present, encourages, orders or helps another to commit a crime.
An accessory after the fact is a person who finds out that a crime has been committed and helps to conceal the crime or the criminal.
What mental state is required to prove that a person is an accessory after the fact?
- That the defendant was aware of the person’s criminal status (scienter).
- The defendant intended to hinder attempts to arrest or prosecute the criminal.
What is attempt?
An effort to commit a crime that goes beyond preparation and that proceeds far enough to make the person who did it guilty fo an ‘attempted crime.’ For example, if a person fires a shot at another in a failed effort at murder, the person is guilty of attempted murder.
What are the 3 elements of an attempt?
- The defendant must intend to commit a crime. (knowingly or purposefully)
- The defendant must act in furtherance of that intent. (thoughts or mere preparation without anything further does not amount to the crime of the attempt.)
- The crime is not completed.
What are the 4 commonly used tests to determine if an act is close enough to completion to permit an attempt conviction?
- Proximity.
- res ipsa loquitur,
- probable desistance,
- Code’s “Substantial Steps.”
What is the proximity test?
- It examines what acts have been taken and what acts are left to be taken to complete the crime. There must be “a dangerous proximity to success.”
What is the res ipsa loquitur test?
(Also called the unequivocality test) looks at crimes individually and finds an act, a certain point in time, which indicates that the defendant has “no other purpose than the commission of that specific crime.”
For example, most courts have held that once a defendant hires another to commit a crime, attempt has been committed.
What is probable desistance?
It focuses on the likelihood that the defendant would have followed through with the crime had the opportunity existed.
What is the substantial step?
One is guilty of attempt if substantial steps have been taken toward commission of a crime.
The the conduct in question must “strongly corroborate.” the actor’s criminal purpose.
What is the abandonment defense?
If a defendant has a change of heart and does not complete the crime, even after crossing the line, then abandonment my be a valid defense.
Besides abandonment, what are the two other defenses that arise in the context of abandonment?
- Legal Impossibility.
2. Factual Impossibility.
What is legal impossibility?
A person who is unable to commit a crime because of legal impossibility cannot be convicted of a crime he or she intends or attempts. The defendant believes his acts are criminal when they are not.
What is factual impossibility?
Situations when people attempt to commit a crime, but it is impossible to do so.
What is conspiracy?
A crime that may be committed when two or more persons agree to do something unlawful (or to do something lawful by unlawful means.) The agreement can be inferred from the person’s actions.
What are the elements of conspiracy?
- An agreement.
- Between two or more persons.
- to commit an unlawful act or a lawful act in an unlawful manner.
The agreement is the actus reus of the crime.
The intent to commit the unlawful act is the mens rea.
What is the concert of action rule?
The rule that, unless a statute specifies otherwise, it is not a conspiracy for two persons to agree to commit a crime if the definition of the crime itself requires the participation of two or more persons. Also called the Wharton Rule and concerted action rule.
Is the Wharton Rule limited to two people?
Yes.
What are the two aspects of mens rea in regards to conspiracy?
- Conspirators must have an intent to enter into an agreement.
- Conspirators must possess a specific intent to enter into an agreement.
Does the language of conspiracy speak of doing unlawful acts, not necessarily criminal?
Yes. This is important because some acts, when taken by an individual, may lead to civil, but not criminal, liability.
Is the mens rea of conspiracy strict?
Yes.
What are some defenses to conspiracy?
- Mistake of law.
2. Mistake of fact.
What is the mistake of law defense?
It is a defense for a party to have been under the mistaken belief that the group’s actions and objections were legal. Because the parties must have had an evil purpose for their union.
If one party withdraws from the conspiracy, is that a valid defense?
No. The crime was complete when the parties entered into the agreement. However, if the jurisdiction requires an agreement plus an overt act or substantial steps, and the withdrawal is made before the those acts occur, there is no criminal liability on behalf of the withdrawn party.
Also, withdrawal is effective at the time of his or her acts would have conveyed to a reasonable person, standing in a co-conspirator’s shoes, that he or she was abandoning the conspiracy.
A last-second withdrawal, when it is too late to stop the wheels from turning, is not a defense.
Is conspiracy considered a crime, independent of any crime that is the objective of the conspiracy?
Yes. And it is not double jeopardy.
What is the Co-conspirator hearsay rule?
The principal that statements by a member of a proven conspiracy may be used as evidence against any of the members of the conspiracy. The rule is limited to statements made during planning and commission of the conspiracy; statements made after are inadmissible.
What is hearsay?
A statement about what someone else said (or wrote or otherwise communicated). Hearsay evidence is evidence, concerning what someone said outside of a court proceeding, that is offered in the proceeding to prove the truth of what was said. The hearsay rule bars the admission of hearsay as evidence to prove the hearsay’s truth unless allowed by a hearsay exception.
Is it true that if one person charged with conspiracy is acquitted, the other is let go?
Yes. Two people (or more) are required to have a conspiracy, if only two people are charged, and one is acquitted, then the other cannot be punished.
What is solicitation?
Asking for; enticing; strongly requesting. This may be a crime if the thing being urged is a crime.
What are the elements of solicitation?
- encouraging, requesting, or commanding
- of another
- to commit a crime
Is solicitation a specific-intent crime?
Yes. The person must intend to convince another to commit an offense. The actus reus of the crime is the solicitation.
