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property midterm > Crim Law > Flashcards

Crim Law Flashcards

1
Q

What are the four goals of criminal sanctions and define them.

A
  1. Deterrence: General (society) and Specific (individual)
  2. Incapacitation: Keep individual in position unable to recommit
  3. Rehabilitation: Improve individual’s behavior
  4. Retribution: Pay society for cost of social harm
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2
Q

Name 2 issues with the system per the Prof.

A
  1. No area of law more politicized than criminal law. Politicians using fear for votes.
  2. One of only countries in world where each place decides own laws. 60 different penal codes. Different values reflected in each
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3
Q

Name 2 stories of hope in the system per the Prof.

A
  1. First time 400 years, Mexico trial system.

2. $150/day/CA wrongful incarceration.

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4
Q

What is the Corpus Delicti rule? How does the law treat confessions and testimonies?

A

A. Prove crime committed before trying to prove guilt. Evidence proven more likely than not / a preponderance of the evidence.
B. Confession of guilt/testimonies are NOT enough to prove a crime occurred but these can be used to convict.
C. Criminal homicide: (1) Person died who was born alive, and (2) occurred by illegal means.
D. Arson: (1) There was a fire, and (2) intentionally started.
E. Rape: (1) There was sex, and (2) nonconsensual.

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5
Q

What is the Born Alive rule?

A

In Common Law, murder can only be applied to someone “born alive.” If you kick the stomach and fetus dies, misdemeanor.
In modern law, unlawful killing of a fetus has been added to the definition of murder (varies by state).

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6
Q

What are the five steps of analysis in Common Law homicide?

A

A. Step One: Was D’s voluntary act or omission the actual and proximate cause of the death?
a. At Common Law, D not liable unless victim dies within one year plus one day
B. Step Two: Did D commit the killing with malice aforethought? If so, D is liable for Common Law Murder absent mitigating facts (see steps 3-5). Malice aforethought one of following mental states:
a. (1) Intent to kill a human being; OR
b. (2) Intent to inflict grievous bodily injury on another; OR
c. (3) Reckless indifference to an unjustifiably high risk to human life (“depraved heart murder); OR
d. (4) Intent to commit a felony (felony murder)
C. Step Three: Did D commit killing in a “sudden heat of passion” as a result of adequate provocation? If so, Voluntary Manslaughter
D. Step Four: Did D commit killing unintentionally with criminal negligence OR during misdemeanor? If so, Involuntary Manslaughter absent a valid defense.
E. Step Five: Possible defenses? E.g., self-defense, can be no crime.

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7
Q

What are the four mental states that apply to murder in the Common Law?

A

(1) Intent to kill a human being; OR
(2) Intent to inflict grievous bodily injury on another; OR
(3) A knowing and intentional creation of an unjustifiable risk to human life (“depraved heart murder); OR
(4) Intent to commit a felony (felony murder)

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8
Q

Unintentional killings can result in which of 2 charges?

A

Murder or involuntary manslaughter

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9
Q

Intentional killings can result in which of 2 charges?

A

Murder or voluntary manslaughter

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10
Q

What are the elements of Involuntary Manslaughter?

A
  1. An unintentional killing;
  2. Of another human being;
  3. Committed:
    a) With Criminal Negligence [can be murder depending on level of criminal negligence]; OR
    a. What is Criminal Negligence: A “gross” deviation from the standard of care that a reasonable person would exercise in the same situation, which puts another person at a significant risk of serious bodily harm or death.
    b) During the commission of an unlawful act under Felony Murder or Misdemeanor Manslaughter
    Always argue that it was foreseeable - this gets you to criminal negligence and an involuntary manslaughter charge.
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11
Q

I’m stealing from a store, security guard chasing me and dies. What’s the charge?

A

Misdemeanor manslaughter

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12
Q

I thought the gun wasn’t loaded. I’ve killed my neighbor (or someone else loaded the gun and I didn’t think it was loaded)

A

Involuntary Manslaughter. Could be murder depending on level of criminal negligence. Argue Foreseeability!

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13
Q

You want your wife to win and shoot a gun at her best competition but accidentally shoot wife in chest and kill her. What is most serious crime he can be convicted of?

A

Murder. This is the transfer victim theory. He caused the death while intending to do great bodily harm to someone else. When intent to harm one person accidentally transfers to second, D still responsible.

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14
Q

Jogger jogs into street on accident. You hit them and kill them.

A

Likely no crime, no murder, worst case is involuntary manslaughter. Argue foreseeability!
Questions to ask: Was driver on phone; have their glasses on; car safe; driver sleepy; weather; witnesses

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15
Q

What crime are the following: Shooting into a crowd; driving down a crowded sidewalk; throwing timber from a roof onto a crowded street; shooting into a train; driving a car at high speeds down the highway; throwing stones from a building onto street below.

A

Depraved Heart Murder [2nd degree in modern law].

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16
Q

Which type of homicide does foreseeability apply to?

A

A reckless state of mind. Depraved Heart Murder.
The more foreseeable the risk, the higher likelihood it will be deemed reckless. If arguing D not guilty of murder, argue not aware of risk. Test for whether it should have been foreseeable is whatever the 12 people in the jury box think.

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17
Q

Does First Degree Murder Exist in the Common Law?

A

No. Only murder, voluntary manslaughter and involuntary manslaughter.

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18
Q

What are the four elements for First Degree Murder?

A
  1. Willful; and
  2. Intent to kill; and
  3. Premeditated to kill (you thought about it); and
  4. Deliberate (you asked should I do it or not).
    WIPD
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19
Q

For months, D knew friend having sex w/wife. He wanted divorce. Knew expensive. Decides to kill both when he finds them having sex. Is it first or second-degree murder in Common Law?

A

Neither. No first or second degree murder in the Common Law.

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20
Q

I shoot an apple to shoot it off your head. That’s my intent. Now on trial for murder for killing the person. What questions would I want to ask?

A
  • Was there a heated argument?
  • Was he under the influence?
  • What level of skill he has on the cross bow? More experience, less risky, death not as foreseeable. If I never miss that lowers the probability of death.
  • Answer: This can’t be first degree murder. But it can be common law murder.
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21
Q

What does sua sponte mean?

A

On the Judge’s own motion

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22
Q

What are the elements for Voluntary Manslaughter in the Common Law?

A

a. Mens Rea: Intent to kill.
b. Actus Reus: : (1) false arrest, (2) aggravated assault, (3) mutual combat (4) serious crime against close relative, or (5) a husband observing wife adultery

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23
Q

What are the elements for a heat of passion killing?

A

Was there actual provocation? Was there reasonable provocation? Was there an actual cooling off? Would a reasonable person have cooled off? This is where time matters. If a year passes, cooling off period has occurred.

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24
Q

Husband finds wife having affair, wants insurance policy. Happy. Kills her. Murder or Manslaughter?

A

Murder. No provocation. No heat of passion. If the facts say the guy isn’t provoked, he is happy, it is NOT heat of passion.

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25
Q

What is the definition of felony murder?

A

Death results from conduct during attempted/actual felony.

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26
Q

What intent is required for felony murder?

A

Intent to commit the felony.

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27
Q

Why do we not care about foreseeability in felony murder?

A

If you committed a felony like rob a bank, then it was always foreseeable that someone could have died

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28
Q

Guy robs a bank, customer has a heart attack and dies. Is the felon the proximate cause of the death? Yes they killed the victim. We have a homicide. What is the crime?

A

Felony murder.

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29
Q

If you are not charged with felony murder, what can you be charged with?

A

Murder - depraved heart murder - acting with a knowing disregard of a grave risk to human life.

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30
Q

What felonies under the Common Law would hold someone for felony murder?

A

All

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31
Q

What felonies under the Modern Law would charge someone with felony murder?

A 
BAARK  
Burger
Arson
Aggravated Assault
Rape
Kidnapping
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32
Q

You steal lifesaving medication from someone and they die. What is the charge?

A

No felony murder. Larceny not considered an inherently dangerous felony.

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33
Q

For felony murder, what does the merger limitation mean?

A

The felony and murder cannot have merged, meaning the felony must be distinct from the murder itself.
For example, guy commits a battery by hitting wife on head. If she dies, this is NOT felony murder because we can’t separate the battery from the killing itself. We say: The battery merges into the killing.

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34
Q

For felony murder, what is the time and distance limitation?

A

The felony murder possibility ends while the felon flees until they reach a place of temporary safety.

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35
Q

What is the logical nexus limitation in felony murder?

A

i. There must be “logical nexus” (i.e., a causal link) between the felony and the homicide. E.g., Felon cautiously driving away from scene; meteorite falls; swerves and kills woman. Not felony murder. Outside logical nexus.
ii. Hypo: charged with felony murder as a chiropractor because he wasn’t licensed, and the patient dies. Court said no not felony murder because the death was so far removed.

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36
Q

Is the felon liable for the killing of someone by a non-felon?

A

No. Under the “agency” approach (majority approach), the felony murder rule does NOT extend to a killing if directly attributable to the act of one other than the defendant or those associated with him in the unlawful enterprise.
2. Under the “proximate cause” approach (minority approach), the felony murder rule extends to a killing if the death is a proximate result (i.e., a foreseeable result) of the felony, even if the person directly responsible for the killing is not associated with the felon.

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37
Q

Sell someone cocaine and they die from the drug. Is it felony murder?

A

No. It wasn’t inherently dangerous. Test – look at it “backward” – could we have foreseen death?
Not BAARK.

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38
Q

Define Common Law Rape and the intent required.

A

GENERAL INTENT
1. Penetration, however slight, by a man of a woman’s genitalia
2. With the force of threat
3. And no consent
4. Note: With someone other than the Defendant’s wife; the woman must have physically resisted; and there must be evidence corroborating the woman’s testimony
Note: Ask would a reasonable person have thought the sex was non-consensual?

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39
Q

Define Statutory Rape.

A
  • Having sexual intercourse with a woman who is under the age of consent.
  • Since person underage, they can’t give consent, so all sex below 18 is stat rape. It is an automatic charge. Even if girl consented, it’s rape.
  • Why is rape not a strict liability crime? Because D needed to intend to have sex and there is no mens rea in strict liability crimes.
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40
Q

If you try to have sex and don’t succeed, and don’t know underage, is it rape?

A

No, because you need to complete the willful act of sex.

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41
Q

What are some of the evolutions in modern law as it pertains to sex crimes?

A

a) Corroboration of the victim’s testimony not required
b) Resistance by the victim not required
c) Evidence of victim’s past sexual experiences limited
d) Gender neutrality of perpetrator and victim
e) Modification or elimination of spousal exemption/marital privilege

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42
Q

What is the Rape Shield Law?

A
  1. Limits ability to introduce evidence;
  2. Limits ability to cross-examine rape complainants about their past sexual behavior;
  3. Prohibits the publication of the identity of an alleged rape victim
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43
Q

Define the elements of battery

A
  1. Unlawful
  2. Application of force
    a. 3rd party force or instrumentality (stick, spit) OK
  3. To the person of another
    a. Hitting an object near, carried by or attached to victim is sufficient (e.g., kicking a cane)
    Note: If the person stays alive, go for battery.
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44
Q

If wife rolls over in sleep and hits you, is it battery?

A

No, she had to intend to move her arm.

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45
Q

Is stalking a crime under the Common Law?

A

No.

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46
Q

How is stalking defined under the Modern Law?

A

Following, harassing, and threatening a person to the point that the person fears for his or her safety.

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47
Q

Is kidnapping a general intent or specific intent crime?

A

General intent

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48
Q

What are the elements of kidnapping?

A
  1. Unlawful confinement of a person that involves either:
    a) Some movement of the victim; OR
    a. In Common Law, movement had to be out of the country
    b) Hiding the victim
    c) Without their consent
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49
Q

What is the charge if you kidnap someone and they die?

A

Felony murder + Kidnapping. BAARK. Burglary Arson Aggravated Assault Rape Kidnapping.

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50
Q

What are the 3 elements of false imprisonment?

A

(1) Unlawfully confining someone;
(2) By threat, force or assertion of authority,
(3) No obvious means of escape

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51
Q

What is mayhem?

A

Injuring or maiming someone to make them less able to fight.

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52
Q

What is dueling?

A

Fighting by agreement. Friend joins you – he is the second in a duel. Bar fight.

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53
Q

What is the common misconception about burglaries?

A

That burglary is a theft crime. It is not. It is about the habitation of a home.

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54
Q

What are the Common Law elements of burglary?

A
  1. A breaking (create or expands opening by at least minimal force, fraud or intimidation)
  2. And entry; (any portion of body, instrument, dog)
  3. Of the dwelling of another (main living activities. This is a crime against habitation law. Must be used for sleeping. If empty house for six months, not a dwelling. Must be occupied.
  4. At nighttime;
  5. With the intent to commit a felony in the structure (at time of entry)
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55
Q

What are some of the modern statutory changes to burglary?

A
  1. Breaking element eliminated
  2. Definition of a dwelling expanded to include most structures
  3. Nighttime element eliminated
  4. Intent element broadened to include the intent to commit a misdemeanor
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56
Q

Go away for weekend. D enters. Burglary?

A

Yes, still considered occupied.

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57
Q

Warehouse breaking. Burglary?

A

Under CL, no, not dwelling.

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58
Q

Garage in CL, breaking. Burglary?

A

Yes, if attached garage. Same w/ barn

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59
Q

Common Law Burglary

A

o First floor window and open – not a breaking
o First floor window and closed – breaking
o Front door open – breaking
o Second floor window and open – breaking

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60
Q

What is the intent required for Arson?

A

Not general nor specific.

MALICE.

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61
Q

What are the elements of Arson?

A
  1. The malicious (Intentional or with reckless disregard of an obvious risk)
  2. Burning; (The fire must cause damage to the structure)
  3. Of the Dwelling of Another (A structure used for sleeping purposes, even if it used for other purposes such as conducting a business)
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62
Q

D. If you light your trees on fire for fun and it sets neighbor’s house on fire – jury can charge you with arson?

A

No clear answer. Look at foreseeability.

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63
Q

Is larceny a specific or general intent crime?

A

Specific. All theft crimes are specific intent crimes.

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64
Q

What are the 5 elements of larceny?

A

a) A taking (obtaining possession);
b) And carrying away; (even with the slightest movement (e.g., inches); Goods must be able to be carried away;
c) Of the personal property (not real property/not farm animals) of another;
d) By trespass (without consent); (Can be through fraud, sometimes referred to as larceny by trick
e) With intent to permanently deprive (i.e., intent to steal).

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65
Q

If you plan to and return the exact good is it larceny?

A

No.

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66
Q

You truly thought it was yours and you take it. Larceny?

A

No.

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67
Q

Knock wallet out of someone’s hands and falls into sewer. Larceny?

A

No, no taking and carrying away.

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68
Q

You take your guitar out of guitar shop without paying. Larceny?

A

Larceny, because you deprived them of funds.

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69
Q

You take your guitar out of guitar shop forgetting to pay and come back later to pay. Larceny?

A

No, because you did not have intent to steal.

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70
Q

Stealing a pawn ticket. Larceny?

A

Yes.

71
Q

Stealing natural gas. Larceny?

A

Yes because it can be taken and carried away.

72
Q

How does the Continuing Trespass Doctrine apply to Larceny?

A

a) This gets us around the concurrence requirement. In Continuing Trespass, act and mental state do NOT have to happen at the same time. You got it mistakenly, you didn’t know you had it, but then you decide to steal. If you start simply with a trespass (to stay warm) and then decide to steal, this newly formed intent to steal will complete the crime. If you mistakenly discover you have the goods of another – you can keep it or give it back. If you give it back no foul. If you keep it, larceny.

73
Q

What is the framework to answer theft questions?

A

Larceny? Then possession or title? Then force?

74
Q

What is the intent required for embezzlement?

A

Specific intent - intent to permanently deprive.

75
Q

What are the four elements of embezzlement?

A

a) The fraudulent conversion for your own use;
b) Of the personal property of another;
c) By a person in lawful possession of that property (custody insufficient - then just larceny);
d) With intent to permanently deprive

76
Q

What is the main difference between larceny and embezzlement?

A

a) In embezzlement, you start with lawful possession = substantial discretion and control over the property, while in larceny you never had lawful possession

77
Q

If you are messenger (you have custody) and you open the bag, what is the charge?

A

Larceny (Breaking of the Bulk Doctrine)

78
Q

What about an Uber driver who eats the food?

A

Larceny (Breaking of the Bulk Doctrine)

79
Q

What about if you are delivering a box, you do not have the keys, you open it and take it.

A

Larceny, you never had possession because you did not have the keys.

80
Q

Delivering box, you have keys, open it and take it.

A

Embezzlement

81
Q

Teller transfers possession to bank, then steals

A

Larceny

82
Q

What are the five elements of False Pretenses?

A

a. Obtaining TITLE; (if you rent, not title)
b. To the personal property of another;
c. By an intentional false representation; (the victim must rely upon it and cause them to pass title); the defendant must either have known the statement to be false or have intended that the victim rely on the false representation
d. Of a material past or present fact (not opinion);
e. With intent to permanently deprive;
Note: the person passing title to you must have intended to pass title and had the authority to do so. For example, if I go to bank and write other person name on account and I get money – the cashier intended to and is empowered to transfer – theft by false pretenses.

83
Q

In larceny by trick, do you obtain possession or title?

A

Possession obtained

84
Q

What is the main difference between false pretenses and title?

A

Larceny by trick the D obtains possession; in false pretenses the D obtains title. Otherwise, they operate in the same manner

85
Q

Write a bad check and get title. Charge?

A

False pretense.

86
Q

I say I will fill up your car with gas and then I steal it. Charge?

A

Larceny by trick.

87
Q

What are the 4 elements of Robbery?

A
  1. The taking of the property of another;
  2. from his or her person or in their presence;
  3. by violence or threat to use immediate force;
  4. with the intent to deprive them of it permanently.
88
Q

Pickpocket and so careful that person never feels it. Is it robbery?

A

No, no violence involved.

89
Q

Hand numb. Guy cuts off pinky when stealing. Robbery?

A

Yes, you don’t need to know it happened.

90
Q

In modern law, how are computer crimes treated?

A

As larceny.

91
Q

What is malicious mischief?

A

Destruction of property

92
Q

If I smash computer out of your hand, and it goes into sewer, crime?

A

Malicious mischief. Not larceny because no taking and carrying away.

93
Q

What are the 4 elements of forgery?

A

Making a false writing
With legal significance.

Uttering is introducing it into commerce. So if you make fake money and then use it. Two crimes.

Forge a check and cash it (latter is the utterance)

ii. The writing must have legal significance.
iii. The writing must be false.
iv. Intent to defraud

94
Q

What is counterfeiting?

A

Unlawful making of money in the similitude of the genuine.

95
Q

What is extortion?

A

Extortion is to threaten prosecution of a crime OR demand money for the corrupt collection of a fee.

When G tells Flat that he will burn the store to the ground if he does not put money in an envelope for him the next day, he is attempting to extort the owner for money. G can be validly convicted of attempted extortion

96
Q

What are the two elements of a drug offense?

A

Possession of drugs AND knowledge you had it.

97
Q

What are the five legal duties where you can be charged with failure to act?

A
  1. Where a statute imposes a duty
  2. By certain relationships – parents to children; spouses to each other
  3. By a contract – doctor/patient
  4. You created a risk to someone
  5. You voluntarily assisted someone and put them in a worse position
  • The way to approach these questions. (1) was there a duty to act (2) list the categories (3) list the pertinent duty – created risk (4) if someone died, do homicide analysis
98
Q

What does inchoate mean?

A

Incomplete.

99
Q

Is attempt a general intent or specific intent crime?

A

Specific.

100
Q

What are the two elements of Attempt?

A

a. The specific intent to perpetrate a crime; AND

b. An overt act / substantial step beyond mere preparation that falls short of completing the crime.

101
Q

What is the main policy reason behind charging people with inchoate / uncomplete offenses?

A

Social harms exist even when crimes incomplete.

102
Q

What are examples of the substantial test in attempt?

A

Lying in wait, recon on location, collecting materials for crime, encouraging victim to go to location.

103
Q

Can you be charged with attempt and the underlying crime?

A

No.

104
Q

Can you be charged with solicitation and the underlying crime?

A

No.

105
Q

Is solicitation general or specific intent?

A

Specific.

106
Q

What is Solicitation?

A

The serious urging or asking of another to commit a criminal act with the intent that the person solicited commit the intended crime.

Note - the other person need not agree.

107
Q

Encourage someone to run away from police who are coming to charge him?

A

Solicitation.

108
Q

Ask someone to steal their own computer. Charge?

A

Nothing. Factually impossible that crime can occur.

109
Q

Is factual impossibility a defense to shooting an empty bed, or the bank being closed?

A

No, no defense, we still need to protect society.

110
Q

You know wallet empty, you ask person to go into it. Solicitation?

A

No, because solicitation requires the intent that the other person commits the crime and here they cannot commit it.

111
Q

You know wallet empty, you ask person to go into it. Person who goes into is charged with what?

A

Attempted larceny.

112
Q

Can you be charged if it’s legally impossible?

A

NO.

113
Q

Can you be charged if it’s factually imposssible?

A

Yes.

114
Q

To be convicted of conspiracy, do you need to complete the crime?

A

No.

115
Q

What crime does Pinkerton Liability relate to? Define it.

A
  1. A Conspirator may be held liable for crimes committed by co-conspirators so long as:
    a) The crimes must have been committed in furtherance of the initial criminal objective; AND
    b) They were within the reasonably foreseeable scope of the criminal plan.
    If you see the word “agreement” bring up conspiracy and Pinkerton Liability. Then, for those not involved in the agreement, raise accomplice liability including accessories. Accomplice does not require agreement, at the moment you can decide to help your friend w/murder.
116
Q

Who are the main actors in Accomplice Liability and what role do they place?

A

Accomplice liability allows the court to find a person criminally liable for acts committed by a different person. If a person aids, assists, or encourages another in the commission of a crime, they are said to be an “accomplice” to the crime.
The person who actually commits the act is called the “principal.” The crime for which an accomplice provides assistance is called the “target crime”.
- Principal in the First Degree - committed the crime; present; pulled trigger for example.
- Principal in the Second Degree - present at the crime, assisted the principal in the first degree in committing the crime, for example, drove get away car, handed the guy the gun (used interchangeable with accomplice)
- Accessory before the fact: Help principal in the first degree before the crime; not present; help procure weapons; help plan getaway route; help lure victim to site
- Accessory after the fact: Helps principal in the first degree after the crime was committed; lies to police about whereabouts, helps bury weapons. Must know a crime was committed. Not charged with accomplice liability; only charged with the crime of accessory after the fact. Note the underlying crime must have been completed for you to be charged with accessory after the fact.
NOTE: Under Common Law, you have to prosecute principal in first degree before accomplice, and accomplice cannot be convicted of a more serious crime than principal.

117
Q

What is the difference between accomplice liability and solicitation?

A

In the latter, you encourage someone to commit a crime. In accomplice liability, that is not an element. In both crimes, specific intent is required.

118
Q

Hypo from movie about a woman raped at a bar.

A
  1. Hypo: Person who rapes woman at bar is principal in first degree. Guy who holds her arms down w knowledge act is occurring, he is a principal in second degree and is also guilty of rape. The guys at bar screaming do it can also be convicted to rape for encouraging/counseling at the scene of crime (is this solicitation). The people at bar didn’t say anything, but admitted they liked what was going on – they can’t be convicted of anything because there is no legal duty to rescue and they did no acts in furtherance of the crime. The bartender state statute requires efforts to control patrons in a bar – can be charged with rape – because he has a legal duty to act and didn’t do anything (non-act). The owner of bar at home is no crime bc he doesn’t have the knowledge of anything. Drunk guy standing outside when police came and said everything is fine in the bar. If he did know what was going on – treated as an accessory by putting the person in an unsafe position. After crime, principal in first degree goes to friend’s house and friend drives him to CA. Friend is charged with accessory after the fact.
119
Q

Is felony murder strict liability?

A

No, there is not intent in strict liability whereas felony murder requires the intent to commit the felony.

120
Q

Why is statutory rape not a strict liability crime?

A

Because there is no intent in strict liability, you are charged even if you didn’t know you were doing it, but in statutory rape, you had to have the general intent to commit the act of sex.

121
Q

Two examples of strict liability crimes

A

Selling Liquor to Minors, speeding

122
Q

What are the policy reasons for strict liability?

A

Efficiency. We can’t have a trial for every speeding ticket. Don’t have the resources.
Very difficult for some crimes to show mens rea. Very fact based. Doesn’t matter what you were thinking. The act speaks for itself.

123
Q

What is transferred intent?

A

A. Transfers the mental state/intent of the Defendant from one victim to another. Includes all specific intent crimes.
B. Example - If a murderer intends to kill John, but accidentally kills George, intent is transferred from John to George, and the killer is held to have had criminal intent

124
Q

What is the concurrence concept?

A

A. The actus and mens rea have to go together at the same time.
Exception - continuing trespass doctrine

125
Q

What are the four tests for insanity and which is the majority rule?

A
  1. The McNaughten Rule. To be deemed legally insane (which is a legal term, not a medical term), you must either have not know what you were doing OR you did not know what you were doing is wrong. So I killed her but didn’t know I was moving my hand with a gun in it OR I killed her on purpose but a voice in my head told me to do it. Insanity is an ABSOLUTE defense.

Note: On mental illness, cover both McNaughten for legally insane defense and the partial defense for mental illness/diminished capacity

Other tests for insanity
The Irresistible Impulse Rule - I could not control my impulses.
Model Penal Code Test - I did not have capacity to a) To appreciate the wrongfulness of the unlawful act; OR
b) To confirm his conduct to the requirements of the law.
Durham Test - a Defendant is entitled to acquittal if the unlawful act would not have been committed BUT FOR the Defendant’s mental illness.

126
Q

Define the defense of infancy.

A
  1. Under 7 years old, no culpability
  2. 7-14 years old, rebuttable presumption of incapacity
  3. Over 14 years old, presumed capable
127
Q

What is the policy rationale for fully acquitting one who is legally insane?

A

Utilitarianism theory – people who are legally insane cannot be deterred so it doesn’t fill the deterrence goals; punishment of an insane person is pointless; incapacitation makes sense because danger to community but should be done through mental health services in the civil law system

128
Q

Can you be found legally insane if you have specific intent? Why?

A

No, because you needed to understand the outcome of the act and if you are insane you did not know what you were doing or you did not know what you were doing was wrong.
Note: If you are trying to lie or you are running from a crime scene, you will not be able to claim insanity.

129
Q

Define the defense of mentally ill.

A

A PARTIAL defense which can downgrade a charge from for example murder to involuntary manslaughter, because the defendant’s mental illness makes it unlikely they can form specific intent to commit a crime. You go to mental hospital until they say you are OK to be released and then you go to prison.

130
Q

Is drunkenness a defense in the Common Law?

A

No.

131
Q

Voluntary intoxication - can it form a defense to general intent crimes? How about a defense to specific intent crimes?

A

Voluntary intoxication is not a defense to a general intent crime, because general intent crimes are based on recklessness, and intoxication is recklessness.
Voluntary intoxication CAN be a defense to a specific intent crime, in that the defendant was so intoxicated he could not have intended the specific outcome. This is a partial defense that will mitigate the crime down from murder to voluntary manslaughter.

132
Q

Can you be fully acquitted if you were involuntarily intoxicated?

A

Yes. Involuntary intoxication is an absolute defense.

133
Q

Define involuntary intoxication.

A

The ingestion of an intoxicating substance under duress or without knowledge of its intoxicating effects.

134
Q

What defenses are available for statutory rape in the common law?

A

None. You are charged.

135
Q

What happens all the time? A defense of mistake of fact? Or mistake of law?

A

Mistake of fact. I thought it was my book.
A. For specific intent crimes, a mistake of fact that negates a necessary intent is a defense if the mistake is unreasonable
B. For general intent/negligence crimes, the mistake must be a reasonable one in order to be a defense.

136
Q

What is the general rule on mistake of law?

A

Ignorance of the law is no excuse.
o Vagueness
o authorized reliance. is a defense. You can only rely on an authorized agency under law that is authorized the interpret the law – government agencies.

137
Q

Define a mistake of fact.

A

Defendant doesn’t have a key fact critical of convicting me of the crime

138
Q

Question – if I am hunting and I shoot a deer not realizing it’s a person, can I get first degree murder?

A

No. You can get involuntary manslaughter. Because first degree murder is a specific intent crime, the mistake of FACT can NEGATE that intent.

139
Q

Is mistake of fact a defense to strict liability crime?

A

No.

140
Q

Remember - insanity is on the test. McNaughten Rule.

A

Remember - insanity is on the test. McNaughten Rule.

141
Q

You need to do a modern law murder analysis.

A

Do a modern law murder analysis.

142
Q

In felony murder, if a third party cop kills an innocent bystander during the commission of a felony murder, is the felon responsible for that murder?

A
  1. Under “agency” approach (majority approach), the felony murder rule does NOT extend to a killing if directly attributable to the act of one other than the defendant or those associated with him in the unlawful enterprise.
  2. Under the “proximate cause” approach (minority approach), the felony murder rule extends to a killing if the death is a proximate result (i.e., a foreseeable result) of the felony, even if the person directly responsible for the killing is not associated with the felon.
143
Q

How is assault defined in the Common Law?

A
  • Placing someone in anticipation of immediate bodily contact.
  • An unsuccessful battery
  • Specific intent to commit a battery
  • Words don’t mean anything, but it could be extortion.
144
Q

How is assault defined in the Modern Law?

A
  • Placing someone in anticipation of immediate bodily contact) OR a frightening assault
  • An unsuccessful battery
  • Specific intent to commit a battery
  • Note I point a gun at you - a frightening assault. I shoot it. Murder.
145
Q

What are some of the modern evolutions to the crime of Burglary?

A
  • The nighttime element has been removed.
  • The dwelling house another is still applicable but burglary can apply to other structures as well
  • The breaking element eliminated
146
Q

What are the 2 elements of a Drug Offense?

A
  • Specific intent
  • Possession of drugs; and
    knowledge you had it.
    Note: Drug crimes did not exist in the common law.
147
Q

What is the Defense of Necessity?

A
  • The choice of two evils
  • I had to commit the crime in order to prevent a bigger crime from occurring
  • The defense of necessity does NOT apply to murder
  • Make economic arguments, utilitarian arguments, whatever you want
148
Q

If there was no merger limitation in felony murder, what crime would be eliminated?

A

manslaughter because every time you commit a manslaughter you commit a felony.
Do NOT use a battery resulting in death as a felony murder. There is a merger limitation. Also the felony must have a proximal nexus to the death. The time limit ends when the felon reaches a temporary place of safety.

149
Q

Are drugs considered an inherently dangerous felony?

A

Yes. People carry guns, it’s competitive. If you are dealing drugs, and in the course of it, someone dies, this is felony murder.

150
Q

What are the 2 elements of conspiracy?

A

Specific intent
- An agreement between two or more people
- To commit a crime
Note - the crime does NOT have to be completed
Note - if one party thinks it’s a joke - it CANNOT be a conspiracy because intent is needed

151
Q

What is the Wharton Rule?

A

There cannot be a conspiracy in a crime if that crime only required two people to do it. Prostitution and dueling - two people required so it’s not a conspiracy. Conspiracy means a GROUP crime; prostitution and dueling are not group crimes.

152
Q

What is a defense to Attempt?

A

Abandonment. if you can prove that you changed not only your mind but also your heart. Police arriving doesn’t matter. You were going to kill girl’s boyfriend you sit in car ready to go then go home – you defend attempted murder by saying you changed your mind and you went home. That’s a valid defense.

153
Q

In conspiracy, if you withdraw, what happens?

A

Once the agreement is made, you will be convicted. However, if you want to get out of furtherance of crimes by co-conspirators - you can abandon - you must inform them of it. You will still be guilty of conspiracy.

154
Q

If you see ‘suddenly a store alarm sounds and the men make a run for it’ - what should you bring up?

A

Abandonment. You would conclude that it is not valid because it would not have been deemed voluntary.

155
Q

What should you think if someone says “if you don’t want me to do X to you, then give me Y”?

A

Extortion.

156
Q

What crime should you think each time someone points a gun at someone? Even if it’s a victim?

A

Potential imputability for MODERN LAW aggravated assault.
Common Law requires an actual effort to make harmful or offensive contact. Only pointing a gun is a frightening assault under modern law.

157
Q

If I mean to shoot someone but I shoot and my bullet hits the other person, what can I still be charged with for the first person?

A

Common Law aggravated assault for firing a gun at them and missing.

158
Q

When you raise self defense, what other defenses can you raise along with it - that naturally flow from it?

A

Defense of others; defense of habitation

Note: Defense of habitation is the Castle Doctrine - an exception to the rule that you have to retreat.

159
Q

Common law burglary - breaking element - what is door is unlocked?

A

Breaking is satisfied by any unauthorized use of force, however slight. Although the back door was unlocked, G and H were unauthorized to enter [and used physical force by activating the latch and opening the door.]

160
Q

What is factual impossibility?

A

When a fact unknown to the defendant prevents him from carrying out his plan or the target objective is impossible by defendant’s means. Factual impossibility is not a defense to attempt crimes.
For example, because there was no money in the cash register, G would not have been able to commit larceny. However, factual impossibility is not a defense to attempt crimes so this would not negate guilt of attempted larceny

161
Q

When is self-defense a good defense?

A

Self-defense occurs when D reasonably believes imminent unlawful of nondeadly force on him, reasonably believes the force is necessary, reasonable degree of force is used and D didn’t provoke attack and wasn’t the initial aggressor.

162
Q

What are the three requirements to self defense?

A

Self-defense is available to a defendant if

(1) the Defendant is not the aggressor; AND
(2) the Defendant is confronted with imminent deadly / non deadly force; AND (3) the Defendant reasonably believes non deadly / deadly force is needed.

NOTE: Deadly force can be used to repel deadly force to LIFE. Even if property involved, if LIFE there, then it is not using deadly force to protect a property, it is to protect a LIFE. If no life involved, no deadly force. You need to prove a reasonable person thought their life was in danger.

Note: For deadly force, unless you are in your own home or you have no opportunity to escape, you have the duty to retreat.

Note: On reasonably believes – go into a detailed, totality of the circumstances exercise

Note: If guns are not allowed in a jurisdiction, there is no defense for self-defense no matter what.

Note: If non-deadly force, you do not have the duty to retreat. Stand your ground rules.
Note: If you were the aggressor, it is an imperfect self defense and can result in voluntary manslaughter.

Note: if deadly force and they did NOT have deadly force – DO have duty to retreat. You have to feel like you’re under the threat of deadly force.

163
Q

What is the defense of others?

A

Defense of others is justified if

(1) the actions were to protect a family member or employee
(2) the protectee had the actual right of defense.

Note: even if you reasonably believe he was acting, if it comes up later that your brother started fight, you are guilty because the protectee never had the right

164
Q

What is the defense of necessity?

A

The defense of necessity is available to a defendant if the defendant commits a criminal act during an emergency situation in order to prevent a greater harm from happening.

  • Choice of two evils, make economic arguments, utilitarian arguments, etc.
  • NOTE: It is NOT a defense to homicide, because you are choosing your life over another life.
165
Q

What is the defense of duress?

A

The defense of duress is available to a defendant if the defendant reasonably believed that another person would imminently inflict death or great bodily harm upon him or a family member if he did not commit the crime.

166
Q

For general intent crimes, what lens should you argue from?

A

The lens of a reasonable person. A reasonable person would have known that throwing a hammer would hurt someone. A reasonable person would know that …

167
Q

What is the general rule for the consent of the victim defense?

A

Other than in sports, it is not a strong defense. For example, if a fellow dueler consents, that is not a defense to dueling. Society has an interest in still limiting the activities.

168
Q

Is condonation of the victim a good defense?

A

No. Excusing the defendant of a crime still results in a crime against humanity.

169
Q

Is contributory negligence a defense?

A

No. Only in tort law.

170
Q

What is entrapment? And what are the objective and subjective ways to prove someone should be charged with entrapment?

A
  • Entrapment is a defense used when someone claims an officer coerced them to do the crime.
  • The subjective test for entrapment (the majority rule) is that the defense works if the defendant was not predisposed to commit the crime. This is shown by a) does he have priors? OR b) did he agree to do the crime right away?
  • The objective test for entrapment (the minority rule and used in CA) is that the defense works if a reasonable person would have committed the crime under the same circumstances.
171
Q

What is double jeopardy?

A

Double jeopardy is a procedural defense that prevents a defendant from being tried twice on the same charges following an acquittal.
In other words, you cannot be convicted of a lesser included offense, because that is like being tried for the same offense. Cannot be convicted of joy riding and grand theft auto because joyriding is a part of grand theft auto. You can’t be convicted of attempted murder and murder, because the former is included in the latter.
On the test, you will see two statutes. Ask yourself: Is this one a lesser included offense of the other one?
 Statute 1: elements A , B, C
 Statute 2: elements A, B
 Here, Statute 2 is a lesser included and is a violation if tried.
 Statute 1: ABCD
 Statute 2: ABCE – this is NOT a lesser included.

172
Q

How do you argue murder versus involuntary manslaughter?

A

For murder, argue it was probable. Depraved heart.

For involuntary, argue it was foreseeable. He should have known. A reasonable person would have known.

173
Q

On an exam, what’s the difference between being asked what crimes can someone be charged with versus what crimes can someone be convicted of?

A
  • If he asks about CHARGE – throw in every possible crime
  • If he asks about CONVICTED - Couldn’t be convicted of solicitation and the target offense – because solicitation merges with the target offense. Also talk about double jeopardy. And the guy can only be convicted of one murder if one person killed.

property midterm (3 decks)

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