common law final exam Flashcards
actus reus
voluntary act
what kind of acts are NEVER blameworthy?
involuntary acts
are voluntary acts blameworthy?
no always, it’s necessary but not sufficient for criminal liability
what is the broad conception of mens rea?
if you are malicious you may be liable for an offense
what is the modern conception of mens rea?
limited list of mens rea states, each elements of an offense requires one of the limited list
what are the characteristics of the prevailing approach of malice aforethought? (2)
1) malice = foresight of prohibited consequences (recklessness)
2) D had to be subjectively aware his actions posed a substantial risk of causing the prohibited harm but proceeded anyway
what is the minority view of malice aforethought?
malice = “intentional and willful”
what are types of mens rea?
1) knowledge
2) general intent
3) specific intent
how is knowledge defined?
courts interpret it as sometimes only requiring an awareness of the facts, not necessarily knowledge as to the meaning of the law
how is general intent defined?
generally that the crime is committed with some culpable mental state (MR)
how is specific intent defined?
generally a crime is committed with a specific purpose (of committing a felony) within a statute/law (can also mean knowledge of AC)
what is the majority view of when willful blindness can satisfy knowledge?
if lack of knowledge is solely b/c of a conscious purpose to avoid the truth, this is sufficient for knowledge regardless of probability
what is the minority view of when willful blindness can satisfy knowledge?
actual (subjective belief) is required for knowledge, regardless of probability
what is the default mens rea rule?
recklessness (Cunningham and Faulkner - minimum culpable mental state)
when does a person have a duty to act?
1) statute
2) status (contractual obligation to act/protect)
3 )contract (status relationship - parent/child)
4) voluntary assumption - D controls and secludes victim such that other cannot aid
5) creation of peril (push someone into water that can’t swim)
6) control (business owner)
7) landowner (theater must have adequate emergency exits)
is there misprision of felony for failure to report?
no but the exception allows liability where there is intent to cause death
when is a person punished for mistake of fact?
if it’s an unreasonable mistake
can mistake of fact be a defense?
yes
what doesn’t mistake of fact apply to?
rape (SL) (No mens rea required regarding age)
when is mistake of fact a defense?
if it negates a required mens rea
what are the strict liability requirements?
1) regulatory offenses
2) SI resisted for non-regal. offenses with moral opporbrium
what is the lesser crime argument?
Olsen example - child was 13, lesser crime would be if she were 14-18
even if a D believes they are committing a lesser crime are they still guilty of the greater crime and why?
yes b/c it’s morally wrong
is mistake of law a defense?
no
what are the exception to make mistake of law a defense? (5)
1) reliance on an official statement of law that is later found to be erroneous
2) mistake regarding legal element of the crime that negates MR
3) make a mistake about very law vilated/legal element which negates MR
4) wholly impassive and innocent conduct, lack of intent
5) no knowledge of existing law
when is the defense for MOF or MOL not available?
if the D would be guilty of another offense had there been no MOL
what is the MR for intentional murder?
P/K w/ malice aforethought
what is express malice
deliberate intention
what is implied malice
no considerable provocation
what does 1st degree murder consist of?
willful(purpose), deliberate (careful thought and consideration) and premeditated (had time to think or plan)
does intent alone establish premeditation?
no there must be some time and some evidence that the def considered and weighed his decision to kill
what are some factors when premeditation can be inferred?
1) close relationship b/t D and V gives opportunity and reason to plan - motive
2) “exacting” method of murder suggests planning and intentionally killing according to “preconceived design”
3) D made an attempt to disguise the crime after it was committed (planning activity)
what is second degree murder?
w/ malice aforethought w/o premeditation
what is the MR for manslaughter?
P/K w/ provocation (mitigates murder, negates malice
what are the mitigating factors for manslaughter?
1) adequate provocation
2) inadequate cooling time
what is the modern rule of provocation (Maher)?
if an intentional killing is conducted in a heat of passion, the criminal charge can be mitigated from murder to voluntary manslaughter if the provocation is adequate.
(decided on a case by case basis)
what is the traditional rule of provocation (Girouard)?
focuses on the culpability of the actor. Provocation that would cause an emotion so intense that an ordinary person would simply react w/o reflection.
what are the 2 test for adequate provocation under the traditional rule (Girouard)?
1) limited list of legitimate provocations (relative attacked, false arrest, witness of adultery, extreme assault, mutual combat)
2) objective reasonable person standard
can provocation be used as a partial justification - self defense?
focus on the wrongfulness of the act. punishment of wrongdoer justifiable.
can provocation be a partial excuse?
defendant was in a weak mindspace b/c of abuse
what is the MR of unintentional murder?
w/o malice aforethought
Malignant and depraved heart/Gross R
what is gross recklessness?
awareness of substantial and unjustifiable risk of death/bodily harm
what is involuntary manslaughter?
killing in the commission of an unlawful act not amounting to a felony
what is the MR for involuntary manslaughter?
Gross negligence
what is the MR for felony murder?
implied gross R
what does the act have to be to be felony murder?
1) inherently dangerous to life
2) act of killing done in furtherance of the felony
under felony murder what is the implied malice theory?
intentional act with conscious disregard for life (any killing of a V or police officer commits in response to the felonious act is attributable to the D - guilty of gross R killing)
under felony murder what is the shield exception?
when D uses someone as a shield, they are liable b/c death is foreseeable
what type of crimes would merge with homicide?
inherently dangerous crimes (assault merges, robbery doesn’t)
what are the tests for the merger doctrine? (4)
1) ireland test (included in fact w/in homicide)
2) independent felonious purpose test - felony is dependent of homicide
3) look at legislative intent to see if would elevate all other assaults to murder
4) elements assaultive? assaultive felony w/ threat of immediate violent injury, elements in the abstract (high prob. that death will result)
is medical malpractice reasonably foreseeable?
yes (if V is injured but the doctor is Neg. and the victim dies, the perp. is still blameworthy)
is gross medical negligence foreseeable?
no and the perp. in such a case would be absolved from liability (superseding intervenor)
is the perp. still criminally liable for murder if the V is particularly prone to severe injury due to a physical condition (hemophilia) even if the intention was only assault?
yes they still can be (eggshell like torts)
what are the 3 different approaches to foreseeability?
1) broad foreseeability of general risk
2) made V vulnerable, result foreseeable and related
3) specific foreseeability of exact circumstances
what are subsequent voluntary acts?
sometimes cuts off liability (intentional acts, superseding intervening human will sever liability) reckless acts divided standards (reckless action of another may cut off chain)
what is the mens rea for attempt? (3)
1) last step test
2) dangerous proximity test (physical proximity to the intended victim)
3) res ispa (no other explanation)
what is the actus reus of attempt?
1) last act doctrine (last act before crime) (no longer used)
2) dangerous proximity to success
3) equivocality (whether actions show unequivocal intent, subjective)
is mere preparation enough for attempt?
no
what is locus penitentiae? (attempt)
opportunity to repent/change one’s mind (can’t punish someone for thoughts alone)
what is the AC of attempt?
parity/ambiguous
what is the result for attempt?
parity, purpose that result will occur
what is the defense of attempt?
no abandonment defense
what are the types of impossibilities?
1) factual impossibility
2) legal impossibility (Pure and hybrid)
what is factual impossibility?
D’s intended end constitutes crime, fails to finish b/c of factual circumstances unknown to him or beyond his control
is factual impossibility a defense?
no
what is pure legal impossibility?
criminal law does not prohibit or condemn the D’s conduct
is pure legal impossibility a defense?
yes to an attempt charge
what is hybrid legal impossibility?
D’s goal is illegal, but commission of the offense is impossible, due to a factual mistake; the mistake is a factual mistake (legal status relevant to criminality of the conduct)
is hybrid legal impossibility a defense?
yes
why is the impossibility hybrid?
because both factual and legal aspects (fact with legal significance)
what are the characteristics of solicitation?
1) inciting
2) soliciting another to commit a crime was itself a crime (independent of any other offense that either party might commit)
what are the elements of accomplice liability?
encouraging or aiding another in a crime
what are 2 points to remember about accomplice liability?
1) derivative liability (there must be a guilty principle) (principle must be culpable, doesn’t have to be convictable)
2) accomplice guilty of the crime committed by the principle (not guilty of being an accomplice)
what is the mens rea of an accomplice?
purpose (must intend to assist to actually help principle carry out crime) (aid/encourage).
once you have purpose as an accomplice what else do you have?
foreseeability of harm (liable for all natural and foreseeable crimes that arise. higher standard than conceivable, reasonable foreseeable)
what is the MR of the principle?
specific intent (P)
what is the AC of crime (complicity)
open to courts/ambiguous, sometimes requires MR for appreciation of material element
what is the result of the crime (complicity)?
parity
what is a defense for complicity?
no abandonment defense
what is the innocent agent doctrine?
same as MPC
what can you be charged with if you’re part of a conspiracy?
the crime and conspiracy
what is the MR for conspiracy?
Intent to agree (P) and intent that the crime takes place (P) (or K when the crime is a felony) (Bilateral)
what is the MR for vicarious liability? (conspiracy)
negligence
what is the mens rea for suppliers (conspiracy)?
P or K
what is the AR of a conspiracy?
agreement to act + over act in furtherance of the crime
what is a bilateral conspiracy?
both parties must actually have the intent, otherwise no liability.
what MR is sufficient for bilateral conspiracy?
K
what is the AC of conspiracy?
parity
what is a defense for conspiracy?
withdrawal:
1) make a clear renunciation to rest of conspirators
2) inform the authorities of the conspiracy
what is the Pinkerton standard for conspiracy?
allows acts of co-conspirators to be attributable:
1) act by other co-conspirator must be in furtherance of the crime you all intend to commit
2) the act has to be reasonably foreseeable
3) act must be in the scope of conspiracy
when can you be exculpated? (4)
1) reasonable belief
2) necessary force
3) against imminent unlawful force
4) not excessive
what does an excuse require?
always mental illness, then two alternative tests (cognitive and volitional)
what are the elements for a claim of duress? (6)
1) a well-founded fear, generated by
2) a threat from a human being of
3) an imminent (or immediate)
4) serious bodily harm
5) to himself (or sometimes to a near relative)
6) not of his own doing
