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Crim Law Flashcards

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1
Q

State Has Jdx Over Crime If:

A

Act committed in state or,
Result occurred in that state

Can be both states

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2
Q

Merger: Common Law

A

Both felony and misdemeanor can be merged into just the felony

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3
Q

Merger: Modern Law

A

Generally no merger, charge both crimes

Solicitation and attempt merge into the completed crime

Conspiracy does not
Ie both the crime and conspiracy separate

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4
Q

Merger: MPC

A

Inchoate crimes merge if same offense

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5
Q

Felonies and misdemeanors distinguished

A

Felonies are generally punishable by death or imprisonment for more than one year;

Other crimes are misdemeanors.

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6
Q

Elements of a Crime

A

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).

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7
Q

Elements of a Crime: Physical Act

A

Voluntary physical bodily movement
Conduct not of own volition = not a physical act
Omissions can be an act and create criminal liability
—Legal duty to act,
—knowledge of facts giving rise to duty to act, and
—Reasonably possible to perform the duty

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8
Q

Elements of a Crime: Physical Act: Legal Duty to Act Arises

A

By statute
By contract (while on duty of work)
Relationship between parties
Voluntary Assumption of Care**
Defendant created peril**

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9
Q

Specific Intent

A

Some crimes require specific intent or objective

Not imputed by act, but manner provides circumstantial evidence of answer

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10
Q

Specific Intent: Important due to defenses to specific intent crimes only

A

Voluntary intoxication
Unreasonable mistake of fact

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11
Q

Major Specific Intent Crimes

A

Solicitation: Intent to have the person solicited commit the crime
Conspiracy: Intent to have the crime completed
Attempt: Intent to complete the crime (even when crime isn’t SI)
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

(Students can always fake a laugh even for ridiculous bar facts)

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12
Q

Malice Crimes

A

(no SI defenses)

Murder
Arson

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13
Q

General Intent

A

All other crimes are general intent (unless strict liability)
Most modern statutes have done away
Mostly know they don’t get the SI defenses

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14
Q

Strict liability

A

No mens rea required

Defendant guilty from committing act

If the crime is in the administrative, regulatory, or morality area and there are no adverbs in the statute such as “knowingly,” “willfully,” or “intentionally,” then the statute is meant to be a no intent crime of strict liability

Consent is no defense, mistake is no defense

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15
Q

MPC Mental States to be Aware Of

A

MPC Drops Specific/General Intent

Purposefully: conscious object to engage in certain conduct or cause certain result
Knowingly: aware conduct is of particular nature or certain circumstances exist
Recklessly: consciously disregard substantial and unjustifiable risk
Negligently: failure to be aware of substantial and unjustifiable risk

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16
Q

Transferred Intent

A

D intended harm to different victim or object
Applies to homicide, battery, and arson (not attempt)
Remember, in murder you also get attempted murder on missed victim

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17
Q

Elements of a Crime: Concurrence of Mental Intent and Act

A

Need to happen at the time they committed act constituting crime and mindset prompted crime

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18
Q

Elements of a Crime: Cause

A

Usually comes up in homicide
RESULTS and CAUSATION
Not merely conduct but the specified result.
Actual and proximate cause

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19
Q

Accomplice Liability: Common Law

A

Principals in First Degree
—-Person who does the crime

Principals in Second Degree
—-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 with knowledge other committed felony, assisted them to escape arrest or punishment

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20
Q

Accomplice Liability: Modern Statutes

A

All such “parties to the crime” can be found guilty of the principal offense. For convenience, however, think of the one who actually engages in the act (either personally or through an innocent agent) or omission as the principal and the other parties as accomplices

Accomplice is one who aids, advises, or encourages the principal in the commission of the crime charged.

An accessory after the fact (one who assists another knowing that they have committed a felony in order to help them escape) is still treated separately. Punishment for this crime usually bears no relationship to the principal offense.

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21
Q

Accomplices

A

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.

Mere knowledge 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
Overcharging or undercharging could give “stake in the venture”

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.

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22
Q

Accomplice Withdrawal

A

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. A mere withdrawal from involvement without taking any additional action is not sufficient.

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23
Q

Inchoate Offenses: Conspiracy

A

Agreement between 2 or more persons
Intent to enter agreement
Intent to achieve objective
Overt act required by a majority of states, unlike common law
Act of mere preparation will suffice
Remember the objective must be lawful, not unlawful to break into own house for example
Mutual action but agreement can be inferred from activity, no need to be express

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24
Q

Inchoate Offenses: Conspiracy: Requirement of Two or More Parties

A

Modern/Unilateral:
Requires only one party have genuine criminal intent.
Accordingly, under the unilateral approach, a defendant can be convicted of conspiracy if they conspire with one person only and that person is a police officer working undercover

Traditional/Common Law:
At least two parties have the criminal intent

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25
Q

Inchoate Offenses: Conspiracy: Mental State

A

Specific Intent

Parties must have:
(1) the intent to agree and
(2) the intent to achieve the objective of the conspiracy.

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26
Q

Inchoate Offenses: Conspiracy: Overt Act

A

Not required by common law
Required by most states
Can be as little as preparation or showing up

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27
Q

Termination of Conspiracy

A

Point at which it terminates is important

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.
Unless agreed to in advance, acts of concealment are not part of the conspiracy

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28
Q

Liability for Co-Conspirators’ Crimes

A

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.

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29
Q

Defenses to Conspiracy: Factual Impossibility

A

NOT a defense to any inchoate crime

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30
Q

Defenses to Conspiracy: Withdrawal From Conspiracy

A

NOT a defense to conspiracy, as once agreement is made and any little act is done, conspiracy committed

Withdrawal may be a defense to crimes committed in furtherance of the conspiracy
Conspirator must perform an affirmative act that notifies all co-conspirators of withdrawal in time for them to abandon plans and neutralize assistance

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31
Q

Defenses to Conspiracy: Merger

A

NO merger with crime of conspiracy (can commit conspiracy and crime itself)

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32
Q

Inchoate Offenses: Solicitation

A

Asking another person to commit a crime, with the intent that the person commit it
If other person agrees, then it merges into conspiracy

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33
Q

Inchoate Offenses: Attempt

A

An act done with intent to commit a crime that falls short of completing it
Always requires specific intent for the actual crime

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34
Q

Inchoate Offenses: Attempt: Overt Act

A

Act beyond mere preparation

Traditional/Proximity Test: Dangerously close to completion

Modern/Majority Test: Substantial step in course of conduct

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35
Q

Defenses to Attempt: Abandonment of Attempt

A

NOT a defense at common law
DEFENSE under MPC if fully voluntary and complete
Must be full repudiation, no intent to return and do it later

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36
Q

Defenses to Attempt: Legal Impossibility

A

If the defendant, having completed all acts that they had intended, would have committed no crime, they cannot be guilty of an attempt to do the same if they fail to complete all intended acts. Legal impossibility is a defense, albeit rare.

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37
Q

Defenses to Attempt: Factual Impossibility

A

Factual impossibility describes the situation when the substantive crime is incapable of completion due to some physical or factual condition, unknown to the defendant.

Factual impossibility is NOT a defense

Ex. Couldnt complete crime as no money to steal, not defense

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38
Q

Prosecution for Attempt

A

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. Merger.

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39
Q

Common Law Murder

A

Unlawful killing of a human being with malice aforethought

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40
Q

Malice Aforethought

A

Intent to kill
Intent to inflict great bodily injury
Reckless indifference to an unjustifiably high risk to human life
Intent to Commit a Felony

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41
Q

Homicide: Statutory Modifications to Common Law: Deliberate and Premeditated First Degree Murder (1st)

A

Defendant made decision to kill in cool and dispassionate manner and actually reflected on the idea of killing
Intent or knowledge

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42
Q

Homicide: Statutory Modifications to Common Law: Enumerated Felony, Felony Murder (1st)

A

Burglarly, arson, rape, usually in statute
First degree Murder
Some states say the felony must be inherently dangerous
Some states don’t list at all

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43
Q

Homicide: Statutory Modifications to Common Law: Other and Murder of Police (1st)

A

Some statutes make 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:
(i) know the victim is a law enforcement officer, and
(ii) the victim must be acting in the line of duty

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44
Q

Felony Murder

A

Any death caused in the commission of or in an attempt to commit, a felony is murder

Common Law Inherently Dangerous Felonies (BARRK):
Burglary, arson, rape, robbery, kidnap

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45
Q

Limitations on Felony Murder Liability

A

Defendant must have committed or attempted to commit the underlying felony
A defense that negates an element of the underlying offense will be a defense to felony murder

Felony must be distinct from killing itself
Death must have been foreseeable
Death must have been caused before immediate flight from felony ended
Includes running from crime, need place of temporary safety
Not liable for felony murder when co-felon is killed in felony, by victim, or by police

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46
Q

Limitations on Felony Murder Liability: Proximate cause theory

A

Felony liable for deaths of innocent victims caused by someone other than co-felon (Minority view)

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47
Q

Limitations on Felony Murder Liability: Agency Theory

A

Felon liable only if killing committed by felon or agent (Majority view, apply if silent)

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48
Q

Voluntary Manslaughter

A

A killing that would be murder but for the existence of adequate provocation.

Provocation is adequate only if:**
Provocation would arouse sudden and intense passion in the mind of ordinary person
Defendant was in fact provoked (not opportunistic)
Not sufficient time between provocation and killing for passions of reasonable person to cool
D did not cool off

Sudden and intense passion with reasonable loss of control with no time to cool off
Heat of passion not defense but reduces crime to manslaughter

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49
Q

Imperfect Self Defense

A

Some states recognize

Murder may be reduced to manslaughter even if
(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)

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50
Q

Involuntary manslaughter

A

Killing committed with criminal negligence (recklessness under MPC)
Look for driving car unsafely hypos
Killing committed during commission of unlawful act (not enumerated in felony murder)

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51
Q

“Abandoned and Malignant Heart” Murder

A

Abandoned and malignant heart murder at common law involves a high risk of death while involuntary manslaughter based on recklessness requires only a substantial risk.

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52
Q

Homicide: Causation

A

The defendant’s conduct must be both the cause-in-fact and the proximate cause of the victim’s death.

Cause in fact: “but for”
Proximate Cause:
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.

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53
Q

Homicide: Causation: Rules of Causation

A

An act that hastens an inevitable result is still the legal cause of that result.

Simultaneous acts 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.

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54
Q

Homicide: Limitations: Year and a Day Rule

A

Traditionally, for a defendant to be liable for homicide, the death of the victim must occur within one year and one day from infliction of the injury or wound. Most states that have reviewed this rule have abolished it.

55
Q

Homicide: Limitations: Intervening Acts

A

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.

56
Q

Battery

A

Unlawful application of force to the person of another resulting in either bodily injury or an offensive touching. A battery can be, but need not be, intentional, and the force need not be applied directly

General intent crime*

Some jdx recognize consent for simple battery or specified batteries

57
Q

Aggravated batteries

A

(punished as felonies):
Battery with deadly weapon
Battery resulting in serious bodily harm
Battery of a child, woman, or police officer

58
Q

Assault

A

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.

59
Q

Aggravated assault

A

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

60
Q

False Imprisonment

A

Unlawful confinement of a person without valid consent

MPC requires: interfere substantially with victim’s liberty
Not enough to restrict access, must have reasonable alternative route though

61
Q

Kidnapping

A

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.

62
Q

Aggravated Kidnapping

A

ransom,
kidnapping for the purpose of committing other crimes,
kidnapping for offensive purposes, and
child stealing (a child is incapable of giving valid consent)

63
Q

Rape

A

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.

64
Q

Statutory Rape

A

Statutory rape is 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.

Mistake to age doesn’t matter on bar exam

65
Q

Larceny

A

Specific Intent

A taking (obtaining control)
And carrying away (asportation) (slightest movement is enough)
Of tangible personal property (excluding realty, services, and intangibles, but including written instruments embodying intangible rights such as stock certificates)
Of another with possession
By trespass (without consent or by consent induced by fraud)
With intent to permanently deprive that person of their interest in the property

Note: If you believe you have right to possession, then it is not common law larceny

For a larceny question, be sure that the defendant had the intent to permanently deprive when they took the property. If not, there is no larceny (unless it is a continuing trespass situation

66
Q

Larceny: Possession

A

The property must be taken from the custody or possession of another. If the defendant had possession of the property at the time of the taking, the crime is not larceny, but may be embezzlement.

67
Q

Larceny: Custody vs. Possession

A

Possession involves a greater scope of authority to deal with the property than does custody.

Generally, the defendant has possession if they were given discretionary authority over the property and has custody if they were given only limited authority over the property.

Ordinarily, low level employees have only custody of an employer’s property and so are guilty of larceny for taking it.

68
Q

Larceny: Bailee and “Breaking Bulk”

A

Generally, a bailee has possession and thus may be guilty of embezzlement if they take the property. However, if the bailee opens closed containers in which the property has been placed by the bailor (that is, the bailee “breaks bulk”), the possession is regarded, by use of a fiction, as returning to the bailor, and thus the bailee may then be guilty of larceny if they take that property

69
Q

Larceny: Intent to Permanently Deprive

A

Generally, larceny requires that at the time of the taking the defendant intended to permanently deprive a person of their property.

70
Q

Larceny: Sufficient Intent

A

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.

71
Q

Larceny: Insufficient Intent

A

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.

OR that they have some right to it

72
Q

Larceny: Possibly Sufficient Intent

A

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).

73
Q

Larceny: Abandoned, Lost, or Mislaid Property

A

Larceny can be committed with lost or mislaid property or property that has been delivered by mistake, but not with abandoned property.

74
Q

Larceny: “Continuing Trespass” Situation

A

If the defendant wrongfully takes property without the intent to permanently deprive (for example, without permission borrows an umbrella), and later decides to keep the property, the defendant is guilty of larceny when they decide to keep it.

However, if the original taking was not wrongful (for example, the defendant took the umbrella thinking it was theirs) and later decides to keep it, it is not larceny

75
Q

Embezzlement

A

Fraudulent conversion of personal property of another by person in lawful possession of that property.

Different from larceny: misappropriated property in their possession

76
Q

Embezzlement: Fraudulent Intent: Intent to Restore

A

Defendant must intend to defraud.

If the defendant intends to restore the exact property taken, it is not embezzlement. However, if the defendant intends to restore similar or substantially identical property, it is embezzlement, even if it was money that was initially taken and other money—of identical value— that they intended to return.

77
Q

Embezzlement: Fraudulent Intent: Claim of Right

A

As in larceny, embezzlement is not committed if the conversion is pursuant to a claim of right to the property.

Whether defendant took the property openly is an important factor.

78
Q

Embezzlement: Fraudulent Intent: Notes for the Multistate Bar Exam

A

A trustee is often the MBE embezzler.

A person does not have to carry away to be an embezzler—just the possession of the property is required.

The embezzler does not have to get the benefit.

79
Q

False Pretenses

A

The offense of false pretenses is:
Obtaining title
To personal property of another
By an intentional false statement of a past or existing fact
With intent to defraud the other

80
Q

False Pretenses: Misrepresentation Required

A

The victim must actually be deceived by, or act in reliance on, the misrepresentation, and this must be a major factor (or the sole cause) of the victim passing title to the defendant.

Traditionally, the defendant’s misrepresentation must have related to a past or present fact, and false promises to do something in the future, even without the present intent to perform, were not sufficient.

However, under the M.P.C. and the modern prevailing view, any false representation suffices, including a false promise to perform in the future. (Majority)

81
Q

False Pretenses: Intent to Defraud

A

Depending on the statute involved, the defendant must either have known the statement to be false or have intended that the victim rely on the misrepresentation.
Most states will find that the defendant “knew” of the falsity of any statements when, after being put on notice of the high probability of the statement’s falsity, they deliberately avoided learning the truth.

82
Q

False Pretenses: “Larceny by Trick” Distinguished

A

If the victim is tricked—by a misrepresentation of fact—into giving up mere custody or possession of property, the crime is larceny by trick.
If the victim is tricked into giving up title to property, the crime is false pretenses
Possession or title?

83
Q

Robbery

A

Robbery consists of:

  1. A taking
  2. Of personal property of another
  3. From the other’s person or presence (including anywhere in their vicinity)
  4. By force or threats of immediate death or physical injury to the victim, a family member, or some person in the victim’s presence
  5. With the intent to permanently deprive them of it

Ie. pickpocketing is larceny, unless the victim knows they exist and resists

84
Q

Robbery: Notes for the Multistate Bar Exam

A

The presence requirement is very broadly drawn and would even cover a farmer tied up in his barn while the robber took things from his house.

As for taking either by force or threat, actions such as ripping a necklace from a person’s neck is sufficient.

The threat must be a threat of imminent harm.

85
Q

Armed robbery

A

can be a simulated deadly weapon, ie. no real weapon but impression of one

86
Q

Extortion

A

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.

Under some statutes, the crime is complete when threats are made with the intent to obtain property; meaning, the property need not be obtained.

Distinguish from robbery: Future harm, not immediate
87
Q

Receipt of Stolen Property

A

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

Stolen at time defendant receives it
Knowledge important

88
Q

Theft

A

Modern statutes and MPC can combine above crimes as theft:

Larceny
Embezzlement
False Pretenses
Robbery
Extortion
Receipt of Stolen Property

89
Q

Forgery

A

Making or altering a writing with apparent legal significance so that it is false with intent to defraud

If the defendant fraudulently causes a third person to sign a document that the third person does not realize they are signing, forgery has been committed. But if the third person realizes they are signing the document, forgery has not been committed even if the third person was induced by fraud to sign it

Intent

90
Q

Burglary

A

Common law: breaking and entering of dwelling of another at nighttime with intent to commit a felony in the structure (any part of the body enters house; dwelling is place for sleeping purposes)

Modern statutes say can apply to any building, not just a dwelling and eliminated nighttime requirement

91
Q

Burglary: Breaking

A

The breaking can be actual (involving some force, however slight) or constructive.

Actual Breaking:
It is not an actual breaking for a person to come uninvited through a wide open door or window. If it is wide open, there is no breaking.

But if a person pushes open an interior door to another room (for example, the bedroom or living room), then a breaking exists.

Constructive Breaking:
A constructive breaking is a breaking by fraud or threat.

92
Q

Burglary: Entering

A

An entering occurs when any part of the body crosses into the structure.

93
Q

Entering

A

An entering occurs when any part of the body crosses into the structure.

94
Q

Burglary: Dwelling House of Another

A

The dwelling cannot be a barn or a commercial structure

95
Q

Burglary: At Night

A

At common law, the burglary has to be at night.

96
Q

Burglary: Intent to Commit a Felony Therein

A

The intent to commit the felony must exist at the time of the breaking and entering.

97
Q

Arson

A

No SI, malice

Arson at common law consists of:
The malicious (that is, intentional or with reckless disregard of an obvious risk)
Burning (requiring some damage to the structure caused by fire)
Of the dwelling
Of another

Like statutory changes for burglary, modern arson statutes (including the M.P.C.) have modified the common law rules, usually to expand potential criminal liability.

Most states have expanded the definition of arson to include damage caused by explosion, and expanded the types of property that may be destroyed to include commercial structures, cars, trains, etc.

No specific intent required, just recklessness

98
Q

Arson: Damage Required

A

Destruction of the structure, or even significant damage to it, is not required to complete the crime of arson.

Mere blackening by smoke or discoloration by heat (scorching) is not sufficient, but mere charring is sufficient.

99
Q

Arson: Related Offense—Houseburning

A

At common law, the building had to be the house of another; one could not be guilty of arson of one’s own house.

The common law misdemeanor of houseburning consisted of: (1) a malicious; (2) burning; (3) of one’s own dwelling; (4) if the structure is situated either in a city or town, or so near to other houses as to create a danger to them.

100
Q

Defenses: Insanity: M’Naghten Rule (right/wrong test)

A

M’Naghten Rule (right/wrong test)

Under this 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.

101
Q

Defenses: Insanity: Irresistible Impulse Test (self control test)

A

Irresistible Impulse Test (self control test)

Under this test, a defendant is entitled to acquittal only if, because of a mental illness, they were unable to control their actions or conform their conduct to the law.

102
Q

Defenses: Insanity: Durham (or New Hampshire) Test

A

Durham (or New Hampshire) Test

Under this test, a defendant is entitled to acquittal if the crime was the product of their mental illness (that is, the crime would not have been committed but for the disease).

The Durham test is broader than either the M’Naghten test or the irresistible impulse test. It is followed only in New Hampshire.

103
Q

Defenses: Insanity: A.L.I. or Model Penal Code Test

A

Under the M.P.C. test (which represents the “modern trend”), a defendant is entitled to acquittal if they had a mental disease or defect, and, as a result, they lacked the substantial capacity to either:
(1) appreciate the criminality of their conduct; or
(2) conform their conduct to the requirements of law.

104
Q

Defenses: Insanity: Procedural Issues: Burdens of Proof and Persuasion

A

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.

105
Q

Defenses: Insanity: Procedural Issues: When Defense May Be Raised

A

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.

106
Q

Defenses: Insanity: Procedural Issues: Pretrial Psychiatric Examination

A

If the defendant does not raise the insanity issue, they may refuse a court-ordered psychiatric examination to determine their competency to stand trial. If the defendant raises the insanity issue, they may not refuse to be examined by a psychiatrist appointed to aid the court in the resolution of his insanity plea.

107
Q

Defenses: Voluntary intoxication

A

Results from intentional taking, without duress, of substance known to be intoxicating
Defense to specific intent crimes

Reduces crime, ie first degree murder can be second degree

Exam tip: alcoholics and addicts always considered under the law to be voluntary (ie no compulsion argument)

108
Q

Defenses: Involuntary intoxication

A

Intoxication resulting from taking substance without knowledge of its nature, under duress, or pursuant to medical advice while unaware of intoxicating effect

Can be a defense to all crimes

109
Q

Involuntary intoxication:

A

Intoxication resulting from taking substance without knowledge of its nature, under duress, or pursuant to medical advice while unaware of intoxicating effect
Can be a defense to all crimes

110
Q

Defenses: Infancy: At common law

A

Under Age 7 = no criminal liability
Ages 7-14 = rebuttable presumption child unable to understand wrongfulness of acts
Age 14 and older = treated as adult

111
Q

Defenses: Infancy: At common law: Modern statutes

A

Often modify this and provide that no child can be convicted of a crime until a stated age is reached, usually 13 or 14.

However, children can be found to be delinquent in special juvenile or family courts.

112
Q

Self-Defense and Justification Defenses: Nondeadly Force

A

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.

113
Q

Self-Defense and Justification Defenses: Deadly Force

A

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.

114
Q

Self-Defense and Justification Defenses: Deadly Force: Retreat

A

Generally, there is no duty to retreat before using deadly force.

The minority view requires retreat before using deadly force if the victim can safely do so, unless:
The attack occurs in the victim’s own home
The attack occurs while the victim is making a lawful arrest
The assailant is in the process of robbing the victim

115
Q

Self-Defense and Justification Defenses: Right of Aggressor to Use Self-Defense

A

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

116
Q

Self-Defense and Justification Defenses: Defense of Others

A

A defendant has the right to defend others if 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.

Generally, there need be no special relationship between the defendant and the person in whose defense they acted.

Minority view: familial relationship needed

117
Q

Self-Defense and Justification Defenses: Defense of a Dwelling

A

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.

118
Q

Defense of Other Property: Defending Possession

A

Deadly force may never be used in defense of property. Reasonable, nondeadly force may be used to defend property in one’s possession from what they reasonably believe is an imminent, unlawful interference. Force may not be used if a request to desist or refrain from the activity would suffice.

119
Q

Defense of Other Property: Regaining Possession

A

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.

120
Q

Defenses: Duress

A

It is a defense to a crime other than intentional homicide that the defendant reasonably believed that another person would imminently inflict death or great bodily harm upon them or a member of their family if the defendant did not commit the crime.

Threats to harm a third person may also suffice to establish the defense of duress.

121
Q

Defenses: Threats to Property

A

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.

122
Q

Threats to Property

A

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.

123
Q

Defenses: Necessity

A

It is a defense to a crime that the person reasonably believed that commission of the crime was necessary to avoid an imminent and greater injury to society than that involved in the crime. The test is objective; a good faith belief is not sufficient.

Under the traditional common law view, the pressure producing the choice of evils had to come from natural forces;

Modern cases have abandoned this requirement.

124
Q

Defenses: Necessity: Limitations

A

No deadly force to protect property
The defense of necessity is not available if the defendant is at fault in creating the situation requiring that they choose between two evils.

Unlike necessity, duress always involves a threat by a human.

125
Q

Defenses: Mistake or Ignorance of Fact

A

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.

126
Q

Defenses: Mistake or Ignorance of Fact: Reasonableness

A

Specific intent: can be unreasonable

Any other state of mind: must be reasonable

127
Q

Defenses: Mistake of Law

A

Generally, it is not a defense that the defendant believed that their activity would not be a crime, even if that belief was reasonable and based on the advice of an attorney.
However, if the reliance on the attorney negates a necessary mental state element, such reliance can demonstrate that the government has not proved its case beyond a reasonable doubt.

128
Q

Defenses: Entrapment

A

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.

Ex. undercover officers usually provoke entrapment analysis, usually not a valid defense without serious encouragement

129
Q

Judicial Procedure Crimes: Perjury

A

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.

130
Q

Judicial Procedure Crimes: Subornation of Perjury

A

Subornation of perjury consists of procuring or inducing another to commit perjury.

131
Q

Judicial Procedure Crimes: Bribery

A

at common law was the corrupt payment or receipt of anything of value for official action.

Under modern statutes, it may be extended to nonpublic officials, and either the offering of a bribe or the taking of a bribe may constitute the crime.

132
Q

Judicial Procedure Crimes: Compounding a Crime

A

Compounding consists of agreeing, for valuable consideration, not to prosecute another for a felony or to conceal the commission of a felony or the whereabouts of a felon.

Under modern statutes, the definition refers to any crime.

133
Q

Judicial Procedure Crimes: Misprison of a Felony

A

At common law, misprision of a felony consisted of the failure to disclose knowledge of the commission of a felony or to prevent the commission of a felony.

Under modern statutes, misprision is no longer a crime, or if it remains a crime, it requires some affirmative action in aid of the felon.

Bar Prep (18 decks)

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