Crim Law Flashcards
Crim Law
Under modern view, does solicitation merge into completed crime?
Yes, can’t be convicted of both solicitation and completed crime
Crim Law
Under modern view, does attempt merge into completed crime?
Yes, can’t be convicted of both attempt and completed crime
Crim Law
Under modern view, does conspiracy merge into completed crime?
No - you can be convicted of both conspiracy to commit the crime and the crime itself
Crim Law
Under modern view, can you be convicted of multiple inchoate crimes?
No, if your conduct was going to culminate in the same main offense, you can’t be convicted of multiple inchoate offenses; can’t be convicted of conspiracy to commit robbery and attempted robbery
Crim Law
Can corporations be held liable for crimes?
Traditionally, held corporations do not have the capacity to commit crimes
But under modern statutes, corporations may be held liable for an act performed by:
(1) an agent of the corporation acting within the scope of their office or employment, or
(2) a corporate agent high enough in hierarchy to presume their acts reflect corporate policy
Crim Law
With accomplices, who are the parties to a crime?
Traditionally, (4) were possible:
Principals in the first degree: A person who actually engaged in the act or omission that contitutes the offense or who caused an innocent agent to do so
Principals in the second degree: Persons who aided, advised, or encouraged the principal and were present at the crime
Accessories before the fact: Persons who assisted or encouraged but were not present
Accessories after the fact: Person who, with knowledge that the other committed a felony, assisted them to escape arrest or punishment
BUT with modern statutes:
(3) are possible: principal, accomplice, accessory after the fact
Principal: one who, with the requisite mental intent, actually engages in the act or omission that causes the criminal result
Accomplice: one who aids, advises, or encourages the principal in the commission of the crime charged; they are liable for principal crime if accomplice intended to aid or encourage the crime
Accessory after the fact: one who assists another knowing that they have committed a felony in order to help them escape; separate than above; liable for separate, less serious crime of being an accessory after the fact
Crim Law
Who can be found guilty of the principal offense when it comes to accomplice liability?
Modern: The prinicipal and accomplice can be convicted of the principal crime; an accessory after the fact can be found liable for a separate, lesser charge, not the principal crime
Traditionally, it was that conviction of the principal was required for conviction of an accessory (but most jurisdictions have abandoned this requirement)
Crim Law
What are the elements of conspiracy?
A conspiracy requires:
(1) an agreement between two or more persons;
(2) an intent to enter into the agreement; and
(3) the intent by at least two persons to achieve the objective of the agreement (specific intent crime)
A conspiracy is complete when the agreement with the requisite intent was reached; no act needed
Crim Law
What type of act is needed to complete a conspiracy?
Traditionally, no act was needed - the conspiracy was complete when the agreement with the requisite intent was reached
But modern: Yes, an overt act is required but it can be mere preparation
Crim Law
For a conspiracy, does the agreement have to be express?
No, can be inferred; doesn’t need to be an express thing
Crim Law
Under traditional view, for a conspiracy to exist, what must the mindsets be of the parties when agreeing?
Traditionally was bilateral approach: requires two guilty minds; the people have to actually be committed to the illicit plan; the two parties have to have a specific intent to pursue an unlawful objective
But modern statutes it’s unilateral approach: Only one party needs to have a guilty mind for there to be a conspiracy; only one person needs to have the genuine criminal intent; so a defendant can be convicted of conspiracy if they are conspiring with an undercover cop or one person isn’t really planning on doing anything
Crim Law
Under traditional view, what must the mindsets be of the parties agreeing
Crim Law
In a trial for conspiracy, what happens if some/all of the conspiracy members are acquitted?
If there is an acquittal of all persons with whom a defendant is alleged to have conspired with, the remaining defendanat can’t be convicted either
So if defendant is charged and tried, and all the others have been acquitted, the defendant can’t be convicted because then there is no one for him to conspire with
But in some states, if one defendant has already been convicted, but then his co-conspirator is acquitted in another trial, the convicted defendant’s conviction may be allowed to stand - it wouldn’t get reversed then
Crim Law
Can one co-conspirator be held liable for crimes committed by the other co-conspirators?
Yes, if the crimes:
(1) were committed in furtherance of the objectives of the conspiracy; and
(2) were foreseeable
Crim Law
Is factual impossibility a defense to conspiracy?
No, factual impossibility is not a defense to conspiracy - so just because you could not actually commit the crime (you were planning on robbing something that isn’t actually there, for ex), you can still be convicted of the conspiracy
Crim Law
Is withdrawal a defense to conspiracy?
No, not generally - because the conspiracy is completed as soon as the act is made and an act in furtherance is performed
BUT: can be a defense to crimes committed in furtherance of the conspiracy, including the one you’re conspiring to do
So you can be found guilty of conspiracy but not the other crimes if you withdraw
Crim Law
With conspiracy, what would constitute an effective withdrawal from further crimes?
For a withdrawal to be effective:
(1) you must perform an affirmative act that notifies all members of your withdrawal,
(2) notice must be given in time for members to abandon their plans, AND
(3) you must try to neutralize any assistance given
Crim Law,
What constitutes solicitation?
Solicitation consists of asking, inciting, counseling, advising, urging, or commanding another to commit a crime with the intent that the person solicited commit that crime
Crim Law,
What impact does others’ convictions or acquittals have on the solicitation conviction?
It is not a defense - if the person who was solicited is not convicted, you the solicitor can still be convicted; different from conspirators
Crim Law
Is factual impossibility a defense for solicitation?
No, not a defense. Does not matter if the offense solicited could not in fact have been successful.
Crim Law
Is withdrawal/renunciation a defense to solicitation?
Traditionally, no, in most jurisdictions, it is not a defense that the solicitor (the one soliciting) renounces or withdraws from the solicitation; not a defense that they back away from the deal
With modern statutes: still generally no, but the MPC recognizes renunciation as a defense if the defendant prevents the commission of the crime, such as by persuading the person who was solicited not to commit the crime
Crim Law
How does legislative intent come into play with solicitation charges?
It is a defense that the solicitor could not be found guilty of the completed crime because of a legislative intent to exempt them - so if a statute is designed to protect a group, they can’t be found guilty of solicitation for that crime
Ex: minor female can’t be found guilty of solicitation of statutory rape by urging an adult male to ahve sex with her because she could not be found guilty of the ultimate crime, statutory rape
Crim Law
What happens if the person solicited commits the crime solicited?
Both that person who was solicited and the solicitor can be held liable for that crime
Crim Law
What happens if the person solicited commits acts sufficient to be liable for attempt?
Both parties, the solicitor and solicited, can be held liable for attempt (remember solicitation and attempt can’t both be convicted, so it would be one or the other)
Crim Law
What happens if the person solicited agrees to commit the crime, but doesn’t end up commiting acts sufficient for attempt?
Both parties can be held liable for conspiracy
Crim Law
What is an “attempt” and what does it require?
An act, done with intent to commit a crime, that falls short of completing the crime
Requires (1) specific intent plus (2) an overt act in furtherance of the crime
Crim Law
What is intent element in an “attempt”?
Defendant must intend to perform an act and obtain a result that, if acheived, would constitute a crime
Regardless of the intent necessary for the completed offense, an attempt always requires a specific intent (intent to commit the crime)
Crim Law
Under traditional view, what is the overt act needed to constitute an “attempt”?
The defendant must commit an act beyond mere preparation for offense
Traditionally, used the “proximity test” - which requires that the act be “dangerously close” to successful completion of the crime; much more substantial than the overt act needed for conspiracy (which can be very small, like mere preparation)
Today, most courts and MPC use substantial step test - requires that the act or omission constitute a “substantial step in a course of conduct planned to culminate in the commission of the crime” that strongly corroborates the actor’s criminal purpose
Much more substantial than overt act needed for conspiracy
Crim Law
Under traditional view, is abandonment a defense to “attempt”?
Traditionally, no, abandonment is not a defense - if defendant had intent and committed an overt act, the defendant is guilty of attempt even if they changed their mind and abandoned the plan before the intended crime was completed
But modern courts say yes, a defense if the abandonment is fully voluntary and complete
Crim Law
Is legal impossibility a defense to “attempt”?
It is rare, but 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
You can’t be found guilty of attempting a “crime” that isn’t actually a crime
Crim Law
Is factual impossibility a defense to “attempt”?
No, factual impossibility is not a defense
When the substantive crime is incapable of being completed due to some physical or factual condition, that’s not a defense
Crim Law
If someone is charged only with a completed crime, can they be found guilty of the attempted crime?
Even if you are charged with only the completed crime, if the jury doesn’t get there, they can charge you with the attempted crime, even though that wasn’t technically charged. But you can only be found guilty of either the completed crime OR the attempt.
Crim Law
If you are charged only with an attempted crime, can you then be convicted of the full crime?
No, if you’re charged with only attempt, the jury can not convict you of the completed crime. Can’t go more extreme. If you are charged only with attempt, that’s where it stays. Unlike if you’re charged with the full crime, then you can be dropped down and be found guilty of attempt.
Crim Law
What is the general definition of murder?
Murder is the unlawful killing of a human being with malice aforethought
Will default be second degree murder
Malice aforethought exists if there are no facts reducing the killing to voluntary manslaughter or excusing it (defense), and it was committed with one of the following states of mind:
- Intent to kill
- Intent to inflict great bodily injury
- Reckless indifference to an unjustifiably high risk to human life
- Intent to commit a felony (FM)
Intentional use of a deadly weapon authorizes a permissive inference of intent to kill
Crim Law
For murder, when does malice aforethought exist?
Malice aforethought exists if there are no facts reducing the killing to voluntary manslaughter or excusing it (defense), and it was committed with one of the following states of mind:
- Intent to kill
- Intent to inflict great bodily injury
- Reckless indifference to an unjustifiably high risk to human life
- Intent to commit a felony (FM)
Intentional use of a deadly weapon authorizes a permissive inference of intent to kill
Crim Law
What is the default degree for murder?
Second degree - then things can bump it up or down
Crim Law
What is first degree murder?
A murder will be second degree murder unless something pushes it up to first degree
If defendant made decision to kill in a cool and dispassionate manner, and actually reflected on the idea of killing, even if only for a very brief period, it’s first degree murder
Must have acted with intent or knowledge that their conduct would cause death
May be negated by voluntary intoxication defense because of specific intent
Crim Law
For first degree murder, what is the intent element?
Must have had the intent or knowledge that their conduct would cause death
Crim Law
Can first degree murder be negated by voluntary intoxication defense?
Yes, first degree murder can be negated by voluntary intoxication because of specific intent (intent to kill)
Crim Law
What is a general intent crime?
The prosecution need only prove that the defendant intended to do the act in question
Awareness of acting in proscribed manner (as opposed to specific intent crime where there is an intent to engage in proscribed conduct)
Crim Law
What is a specific intent crime?
The prosecution needs to prove that the defendant intends to bring about a specific consequence through his actions or that he perform the action with a wrongful purpose
Common law standard
Intent to engage in the proscribed conduct (vs general intent which is just an awareness of acting in proscribed manner)
Crim Law
What degree does felony murder usually count as?
Felony murder for the BARRK felonies counts as first degree murder
But if it’s another felony, it’s usually second degree; so if statute says “any felony,” it’s second degree
Crim Law
What is felony murder?
Felony murder is a killing committed during the commission of an enumerated felony (BARRK)
Any death caused in the commission of, or in an attempt to commit, a felony is murder
Malice is implied from the intent to commit the underlying felony
BARRK felonies for felony murder at CL:
- Burglary
- Arson
- Rape
- Robbery
- Kidnapping
Death must have been a foreseeable result of the felony
Crim Law
What is second degree murder?
The default for murder. Usually classified as a depraved heart killing. A killing done with a reckless indifference to an unjustifiably high risk to human life. Any murder that isn’t first degree or a lesser degree.
Crim Law
What are the enumerated felonies?
Burglary, arson, rape, robbery, kidnapping
Crim Law
How do defenses to felonies interact with defenses to felony murder?
In general, a defense that negates an element of the underlying offense will also be a defense to felony murder
Crim Law
In felony murder, can the felony be a killing?
No, the felony must be distinct from the killing itself
Usually will be BARRK, but can be other felonies too
Crim Law
Does death need to be foreseeable for felony murder?
Yes, death needs to be a foreseeable result of the felony
Crim Law
In felony murder, what is the liability for deaths of co-felons?
In most jurisdictions, the defendant is not liable for felony murder when a co-felon is killed as a result of resistance from the felony victim or the police
So co-felon death does not equal felony murder
Crim Law
For felony murder, what is the proximate cause theory?
More common theory - felons are liable for the deaths of innocent victims caused by someone other than a co-felon
So if a police officer killed a bystander, the felon would be liable
Crim Law
For felony murder, what are the two main theories?
Proximate cause theory and agency theory
Crim Law
For felony murder, what is the agency theory?
Alternate theory - the killing must be committed by a felon or their “agent” with limited exceptions in other cases where the victim was used as a shield or otherwise forced by the felon to occupy a dangerous place
So if a police officer killed a bystander, the felon would not be liable because it wasn’t an accomplice or himself that killed the bystander
Crim Law
What is voluntary manslaughter?
A killing that would be murder but for the existence of adequate provocation
Provocation is adequate only if:
- It was provocation that would arouse sudden and intense passion in the mind of an ordinary person (ex: exposure to threat of deadly force, finding spouse in bed with another man, being victim of serious battery)
- Defendant was in fact provoked and lost control
- Wasn’t sufficient time between provocation and killing for passions of reasonable person to cool; AND
- Defendant in fact did not cool off between provocation and the killing
Some states recognize “imperfect self-defense” which can drop a murder down to voluntary manslaughter
- Where even though defendant was at fault in starting the altercation, the other person raises it to a level where now the defendant needs to use deadly self-defense to protect themselves
- Or the defendant unreasonably but honestly believed in the necessity of responding with deadly force (so they don’t technically qualify for actual self-defense)
Crim Law
What counts as adequate provocation for voluntary manslaughter?
Would arouse sudden and intense passion in mind of ordinary person; in fact was provoked and lost control; no cooling off time; and defendant in fact did not cool off
Provocation is adequate only if:
- It was provocation that would arouse sudden and intense passion in the mind of an ordinary person (ex: exposure to threat of deadly force, finding spouse in bed with another man, being victim of serious battery)
- Defendant was in fact provoked and lost control
- Wasn’t sufficient time between provocation and killing for passions of reasonable person to cool; AND
- Defendant in fact did not cool off between provocation and the killing
Crim Law
What is imperfect self-defense?
In the states that allow it, when a killing gets dropped down to voluntary manslaughter for doing self-defense in an imperfect way
Could be that defendant started a small fight, victim escalates it to a huge fight, so then defendant needs to respond with self-defense that results in death - not really self-defense because defendant started it, but because the victim elevated it to such a serious place, he does get a little defense by dropping it to VM
Or when the defendant unreasonably but honestly believed in the necessity of responding with deadly force - so again, don’t qualify for actual self-defense because there was actually no need for it, but if the defendant honestly but unreasonably believed it, he gets imperfect self-defense and can get VM
Crim Law
What is involuntary manslaughter?
A killing is involuntary manslaughter if it was committed with criminal negligence, or in some states, a killing during the commission of an unlawful (misdemeanor or felony not included in felony murder rule)
Under MPC, a killing could be involuntary manslaughter if it was committed with criminal recklessness
Abandoned or malignant heart murder at CL involves a high risk of death (second degree murder) while involuntary manslaughter based on recklessness requires only a substantial risk
Crim Law
For murder, what must the causation be?
The defendant must be both the cause in fact and the proximate cause of the victim’s death
Cause in fact: Defendant’s conduct is the cause in fact of the result if the result would not have occurred but for the defendant’s conduct
Proximate cause: 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 cause (a third party’s negligent medical care and the victim’s refusal of medical treatment for religious reason are both foreseeable risks, so the defendant would still be liable)
Crim Law
With murder, what is proximate cause?
Proximate cause: 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 cause (a third party’s negligent medical care and the victim’s refusal of medical treatment for religious reason are both foreseeable risks, so the defendant would still be liable)
Crim Law
Does a third party’s negligent medical care break the chain of causation in murder?
No, even if a doctor is medically negligent in the care of a victim that the defendant hurt, and the victim dies, that’s foreseeable and the defendant’s act is still the proximate cause - doesn’t break chain of causation
Crim Law
Does a victim’s refusal of medical treatment for religious reasons break the chain of causation for murder?
No, it is foreseeable that a victim would refuse medical treatment for religious reasons so defendant is still on the hook
Crim Law
What is a battery?
A battery is an unlawful application of force to another person resulting in either bodily injury or an offensive touching
Can be, but need not be, intentional (unlike torts where it needs to be intentional), and force need not be applied directly (like a dog attack)
This is a general intent crime
Some jurisdictions recognize consent as a defense
Aggravated battery:
(1) battery with a deadly weapon
(2) battery resulting in serious bodily harm
(3) battery of a child, woman, or police officer
Crim Law
Does battery need to be intentional?
No, doesn’t have to be intentional like in torts. Can be an unintentional touching that still results in bodily injury or offensive touching.
Crim Law
Is battery a general intent or specific intent crime?
General intent
Crim Law
Is consent a defense to battery?
In some jurisdictions, yes, consent is a defense to battery
Crim Law
What is aggravated battery?
Aggravated battery:
(1) battery with a deadly weapon;
(2) battery resulting in serious bodily harm; and
(3) battery of a child, woman, or police officer
Crim Law
What is assault?
Assault is either:
(1) an attempt to commit a battery (specific intent crime) OR
(2) the intentional creation - other than by mere words - of a reasonable apprehension of imminent bodily harm in the mind of the victim
If there has been an actual touching, it can only be battery, not assault
Aggravated assault: is an assault plus one of the following: (1) the use of a deadly or dangerous weapon; or (2) with the intent to rape, maim, or murder
Crim Law
What is aggravated assault?
Aggravated assault is an assault plus one of the following:
(1) the use of a deadly or dangerous weapon; OR
(2) with the intent to rape, maim, or murder
Crim Law
What is false imprisonment?
False imprisonment consists of the unlawful confinement of a person without the person’s valid consent; and that confinement must substantially interfere with the person’s liberty
If alternative routes are available to a person, it is not confinement to just prevent a person from going where they want to go
If there is “consent,” it is invalidated by coercion, threats, deception, or incapacity due to mental illness, substantial cognitive impairment, or youth
Crim Law
For false imprisonment, does time of imprisonment matter?
No, could be for just seconds, but if that person is deprived from leaving, there is false imprisonment
Crim Law
For false imprisonment, does it matter if the person knows they are prohibited from leaving or not?
They need to know they are being “imprisoned.” So if they are asleep, someone locks them in a room, they stay asleep or wake up but never try to leave, and then the person unlocks the door - no false imprisonment happened because the person was unaware they were being imprisoned
Crim Law
For false imprisonment, is consent a defense?
Yes, consent is a defense but it can be invalidated by coercion, threats, deception, incapacity due to mental illness, substantial cognitive impairment, or youth
Crim Law
What is kidnapping?
Kidnapping is the unlawful confinement of a person that involves either (1) some movement of the victim, or (2) concealment of the victim in a “secret” place
Aggravated kidnapping includes kidnapping for ransom, for the purpose of committing other crimes, for offensive purposes, and child stealing
Crim Law
What is aggravated kidnapping?
Aggravated kidnapping includes kidnapping for ransom, for the purpose of committing other crimes, for offensive purposes, and child stealing
Crim Law
What is rape?
Unlawful carnal knowledge of a woman by a man, not her husband, without her effective consent
Slightest penetration is sufficient
Under CL and MPC, husband can’t rape his wife, but most states have done away with this
Lack of effective consent exists where:
- Intercourse is accomplished by actual force
- Intercourse is accomplished by threats of great and immediate bodily harm
- The victim is incapable of consenting due to unconsciousness, intoxication, or mental condition; OR
- The victim is fraudulently caused to believe that the act is not intercourse
Note that consent due to other types of fraud (for ex: pretending to be your spouse, or saying you’ll get married) IS effective and fine
Crim Law
For rape, what consitutes lack of effective consent?
Lac of effective consent exists where:
- Intercourse is accomplished by actual force
- Intercourse is accomplished by threats of great and immediate bodily harm
- The victim is incapable of consenting due to unconsciousness, intoxication, or mental condition; OR
- The victim is fraudulently caused to believe that the act is not intercourse
Note that consent due to other types of fraud is effective and fine (can lie and say you’re their spouse, or you’ll get married)
Crim Law
What is statutory rape?
Statutory rape is the carnal knowledge of a person under the age of consent
Strict liability crime - not necessary to show lack of consent
Mistake as to age is generally not a defense and I should say that on exam
But if no alternative answer, a reasonable mistake as to age will prevent conviction if the defendant reasonably belived the victim was old enough to give an effective consent
Crim Law
Do you have to show consent for a conviction for statutory rape?
No, this is a strict liability crime - you do not have to show consent to have a conviction. You just have to show that an older person had sex with a minor. That’s it.
Crim Law
Is mistake as to age a defense for statutory rape?
Generally NO - and should go with that on exam. Generally, it does not matter even if a minor told an adult that she was 20 and the adult fully believed that. Doesn’t matter. He was old, she was young, that’s enough.
But sometimes they don’t give you that as an option so then a reasonable mistake as to age will prevent conviction if the defendant reasonably believed the victim was old enough to give an effective consent
Crim Law
What is larceny?
A taking and carrying away of tangible personal property of another with possession by trespass with intent to permanently deprive that person of their interest in the property
Slightest movement of the property is enough
Low level employees only have custody of an employer’s property and so are guilty of larceny for taking it
Intent to permanently deprive is at the time of the taking
Insufficient intent: where the defendant believes the property is theirs or they intend to only borrow the property, or keep it until repayment of debt
Larceny can be committed with lost or mislaid property that has been delivered by mistake, but not abandoned property
Continuing trespass: if the defendant wrongfully takes property without the intent to permanently deprive but then later decides to keep the property, the defendant is guilty of larceny when they decide to keep it
But if the initial taking was not wrongful and later decides to keep it, it’s not larceny
Crim Law
Can a low level employee be guilty of larceny for taking employer’s property?
Yes, low level employees only have custody of an employer’s property and so are guilty of larceny for taking it
Crim Law
For larceny, what is the intent element?
The intent to permanently deprive is at the time of the taking
If the defendant intends to just borrow the material when they take it, that’s not intent - but can later turn into continuing trespass
And if they are mistaken about ownership of the item, like they think it’s theirs so they take it, that is insufficient intent
Crim Law
What is insufficient intent for larceny?
Where the defendant believes the property is theirs or they intend to only borrow the property, or keep it until repayment of a debt
Crim Law
For larceny, what is continuing trespass?
If the defendant wrongfully takes property without the intent to permanently deprive but then later decides to keep the property, the defendant is guilty of larceny when they decide to keep it
But if the initial taking was not wrongful (for ex, a mistake) and later decides to keep it, it’s not larceny
Crim Law
What is embezzlement?
The fraudulent conversion of personal property of another by a person in lawful possession of that property
Dealing with the property in a manner inconsistent with the arrangement by which defendant has possession
Defendant must intend to defraud; doesn’t have to take away, just the possession of the property is required
If defendant intends to restore the exact property taken, it is not embezzlement
But if you’re restoring it with something substantially similar, it’s embezzlement (taking money and giving back the same amount of money but not the legit money you took, that’s wrongful)
Crim Law
With embezzlement, what if you intend to replace the property?
If you intend to restore the exact property taken, like literally the legit actual property, then that is not embezzlement. But if you intend to restore it with something substantially similar, that is embezzlement.
So if you take $5 out of the cash register to show someone you have the money, but then replace that exact same $5 bill, that’s not embezzelement. But if you take the $5, show it off, and then replace it with another $5, or a mix of bills, that’s only substantially similar and that is embezzlement.
Crim Law
What is false pretenses?
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
Title to property includes money
Victim must actually be deceived by, or act in reliance on, the misrepresentation, and this must be a major factor of the victim passing title to the defendant
At common law, 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
Modern view: any false representation suffices, including a promse to perform in the future
Depending on the statute, defendant must either have known the statement to be false or have intended that hte 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 probabilitiy of the statement’s falsity, they deliverately avoided learning the truth
Crim Law
With false pretenses, what must happen with the victim for there to be a conviction?
The victim must actually be deceived by, or act in reliance on, the misrepresentation, and this must be a major factor of the victim passing title to the defendant
Crim Law
With false pretenses, what kind of misrepresentation must have been made?
Common law: 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
Modern view: any false representation suffices, including a false promise to perform in the future
Crim Law
With false pretenses, does the defendant need to know his statements are false?
Yes, depending on the statute, 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
Crim Law
What is robbery?
A taking of personal property of another from the other person’s person or presence (including anywhere in their vicinity) by force or threats of immediate death or physical injury to the victim, a family member, or some person in the victim’s presence with the intent to permanently deprive them of it
If victim gives up property because they felt sorry for the defendant or wanted him to go away, there is no robbery and only attempted robbery - the victim needs to be threatened
Crim Law
What is extortion?
Traditionally, it was the corrupt collection of an unlawful fee by an officer under color of office.
But modern view is that extortion (blackmail) often consists of obtaining proeprty by means of threats to do harm or to expose information
Under some statutes, crime is complete when threats are made with the intent to obtain property - meaning, the property need not be obtained
Crim Law
What is receipt of stolen property?
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
Crim Law
What are the offenses that are sometimes grouped into the “theft” crimes?
Larceny, embezzlement, false pretenses, robbery, extortion, and receipt of stolen property
Crim Law
What is forgery?
Making or altering a writing with apparent legal significance so that it is false; that is, representing that it is something that it is not, not merely containing a misrepresentation, with intent to defraud
So like a fake receipt, not an inaccurate receipt
If defendant fraudulently causes a third person to sign a document that the third person doesn’t realize they’re signing, forgery has been committed
But if third person realizes they are signing the document, forgery hasn’t been committed even if the third person was induced by fraud to sign it
Uttering a forged instrument consists of: (1) offering as genuine; (2) an instrument that may be the subject of forgery and is false; (3) with intent to defraud
Crim Law
If defendant gets a third party to sign something, can that be forgery?
Yes, if defendant fraudulently causes a third person to sign a document that the third person doesn’t realize they’re signing, forgery has been committed
But if third person realizes they are signing the document, forgery hasn’t been committed even if the third person was induced by fraud to sign it
Crim Law
What does uttering a forged instrument consist of?
Uttering a forged instrument consists of:
(1) offering as genuine;
(2) an instrument that may be the subject of forgery and is false;
(3) with intent to defraud
Crim Law
What is burglary?
A breaking and entry of a dwelling of another at nighttime with the intent to commit a felony therein
Breaking: can be actual or constructive
Actual breaking: involving some force, however slight; a person coming uninvited through a wide open door or window is not an actual breaking; but if they push open an interior door into another room, then there’s a breaking
Constructive breaking: by fraud or threat
Intent to commit the felony must exist at the time of the breaking and entering
Crim Law
What constitutes a breaking for burglary purposes?
Breaking: can be actual or constructive
Actual breaking: involving some force, however slight; a person coming uninvited through a wide open door or window is not an actual breaking; but if they push open an interior door into another room, then there’s a breaking
Constructive breaking: by fraud or threat
Crim Law
What is the intent element of burglary?
Intent to commit a felony therein
Intent to commit the felony must exist at the time of the breaking and entering
Crim Law
What is arson?
Arson is the malicious burning of the dwelling of another
Malicious: intentional or with reckless disregard of an obvious risk
Burning: requiring some damage to the structure caused by fire
Damage: destruction isn’t required; mere blackening by smoke or discoloration by heat is NOT sufficient but mere charring is sufficient
No specific intent required; acting with a reckless disregard of an obvious risk that the structure would burn will suffice
At common law, needs to not be your own house, but modern statutes often allow it to be your house
Crim Law
What is the necessary mindset for arson?
Needs to be malicious - which means intentional or reckless disregard of an obvious risk
No specific intent required
Acting with a reckless disregard of an obvious risk that the structure would burn will suffice
Crim Law
What damage is required for arson?
Destruction isn’t required
Mere blackening by smoke or discoloration by heat is NOT sufficient
But mere charring IS sufficient
Crim Law
What are the specific intent crimes?
Students Can Always Fake A Laugh Even For Ridiculous Bar Facts
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 the completed crime is not, attempt is always a specific intent crime)
First degree premeditated murder: premeditated intent to kill
Assault: intent to commit a battery
Larceny: intent to permanently deprive the other of their interest in the property taken
Embezzlement: intent to defraud
False pretenses: intent to defraud
Robbery: intent to permanently deprive the other of their interest in the property taken
Burglary: intent to commit a felony in the dwelling
Forgery: intent to defraud
For specific intent crimes, defenses like voluntary intoxication and unreasonable mistake of fact are available
Crim Law
What defenses are available for specific intent crimes?
Voluntary intoxication and unreasonable mistake of fact
Crim Law
What are the malice crimes?
Common law murder and arson
Intent: requires a reckless disregard of an obvious or high risk that the particular harmful result will occur
Reckless disregard of a known risk
Crim Law
What are the general intent crimes?
The rest - battery, rape, kidnapping, false imprisonment, etc.
Means defendant has an awareness of all factors constituting the crime
The defendant must be aware that they are acting in the proscribed way and that any required attendant circumstances exist
Doesn’t have to be certain that all the circumstances exist
Sufficient that they are aware of a high likelihood that they will occur
Jury may infer the required general intent merely from doing the act
Crim Law
What does it mean to be a strict liability crime?
Offense that doesn’t require awareness of all the factors constituting the crime
Defendant can be found guilty from the mere fact that they committed the act
Defenses that negate state of mind, like mistake of fact or intoxication, are not available
Ex: Statutory rape, selling liquor to minors, bigamy
Crim Law
Under MPC, what does purposely mean?
Acts purposely when their conscious object is to engage in certain conduct or cause a certain result
Crim Law
Under MPC, what is knowingly?
Acts knowingly with respect to the nature of their conduct when they are aware that their conduct is of a particular nature or that certain circumstances exist
Person is deemed to be aware of these circumstances when they are aware of a high probability that they exist and deliberately avoid learning the truth
Person acts knowingly with respect to the result of their conduct when they know that their conduct will necessarily or very likely cause a particular result
Crim Law
Under MPC, what is recklessly?
Acts recklessly when they consciously disregard a substantial and unjustifiable risk that circumstances exist or a prohibited result will follow
This disregard constitutes a gross deviation from the standard of care that a reasonable person would exercise in that situation
Crim Law
Under MPC, what is negligently?
Acts negligently when they fail to be aware of a substantial and unjustifiable risk where such a failure is a substantial deviation from the standard of care
Objective standard
Must have taken a very unreasonable risk
Crim Law
In order to be convicted of the substantive crime, 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
Crim Law
When mens rea is recklessness or negligence, most jurisdictions hold that the intent element is satisfied if accomplice:
(1) intended to facilitate the commission of the crime; and
(2) acted with recklessness or negligence
Crim Law,
With accomplices, what must a person do to successfully withdraw from the crime and have that as a defense?
- 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 giving assistance, the person must do everything possible to attempt to neutralize the assistance (for ex: by attempting to retrieve the materials provided)
- Notifying the police or taking other action is also sufficient
- Mere withdrawal without taking additional action is insufficient
Crim Law
What are the four insanity tests?
M’Naghten Rule: a defendant is entitled to acquittal if: (1) a disease of the mind (2) caused a defect of reason (3) such that the defendant lacked the ability at the time of their actions to either know the wrongfulness of their actions or understand the nature and quality of their actions
Irresistible impulse 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
Durham (New Hampshire) test: a defendant is entitled to acquittal if the crime was the product of their mental illness (the crime wouldn’t have been committed but for their disease); followed only in NH
ALI or MPC Test: 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
Crim Law
What is the M’Naghten Rule?
A defendant is entitled to acquittal if: (1) a disease of the mind (2) caused a defect of reason (3) such that the defendant lacked the ability at the time of their actions to either know the wrongfulness of their actions or understand the nature and quality of their actions
In short: defendant does not know right from wrong or does not understand his actions
Crim Law
What is the irresistible impulse 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
In short: an impulse that the defendant cannot resist
Crim Law
What is the Durham (New Hampshire) test?
A defendant is entitled to acquittal if the crime was the product of their mental illness (the crime wouldn’t have been committed but for their disease); followed only in NH
In short: but for the mental illness, defendant would not have done the act
Crim Law
What is the ALI or MPC test?
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
In short: combination of M’Naghten and irresistible impulse
Crim Law
What is the procedure for asserting an insanity defense?
Generally, defendant has the burden to prove their insanity by a preponderance of the evidence
Some states and MPC require prosecution to prove the defendant was sane beyond a reasonable doubt
Federal courts require the defendant to prove insanity by clear and convincing evidence
Crim Law
What is the voluntary intoxication defense?
Voluntary intoxication is voluntary if it is the result of the intentional taking without duress of a substance known to be intoxicating
May be offered as defense only if the crime requires purpose (intent) or knowledge, and the intoxication prevented the defendant from formulating the purpose or obtaining the knowledge - specific intent crimes only
For crimes requiring recklessness, a person who would have been aware of the risk had he not been intoxicated acts recklessly with regard to the risk
Defense is not available if defendant purposely becomes intoxicated in order to establish the defense or work up the courage for the act
Crim Law
What is the involuntary intoxication defense?
Involuntary only if it results from the taking of an intoxicating substance without knowledge of its nature, under direct duress imposed by another, or pursuant to medical advice while unaware of the substance’s intoxicating effect
May be treated as a mental illness and the defendant is entitled to acquittal if they meet the juriisdiction’s insanity test
Can be a defense to all crimes, not just specific intent
Treat involuntary intoxication like insanity (use test applicable to jurisdiction)
Crim Law
What is the liability for children and crimes?
At common law:
- No liability for children under age 7
- For children between 7-14, rebuttable presumption that the child was unable to understand the wrongfulness of their acts
- Children 14+ were treated as adults
Modern view:
- Often provide that no child can be convicted of a crime until a stated age is reached, usually 13 or 14
- However, can be found delinquent
Crim Law
Is threat of future harm sufficient for self-defense claim?
No, self-defense depends on the immediacy of the threat and threat of future harm is insufficient
Crim Law
For self-defense, nondeadly force is justified when:
It appears necessary to avoid imminent injury or to retain property
Crim Law
For self-defense, deadly force is justified when:
it is to prevent death or serious bodily injury
Deadly force is permitted when victim is without fault, confronted with unlawful force, and rsbly believes he is threatened with imminent deadly force or great bodily harm
Crim Law
For self-defense, what is the general standard for nondeadly force?
Person without fault may use such force as the person reasonably believes is necessary to protect themselves from the imminent use of unlawful force upon themselves; no duty to retreat
Justified where it appears necessary to avoid imminent injury or to retain property
Crim Law
For self-defense, what is the general standard for deadly force?
May use if the person is: (1) without fault; (2) confronted with “unlawful force”; AND (3) reasonably believes that they are threatened with imminent death or great bodily harm
If defendant kills in self-defense but not all three are met, some states use imperfect self-defense but others use manslaughter
Generally no duty to retreat before using deadly force
Minority view requires retreat before using deadly force if the victim can safely do so, unless:
- attack occurs in victim’s own home
- attack occurs while the victim is making a lawful arrest; OR
- assailant is in the process of robbing the victim
Crim Law
In self-defense, is there a duty to retreat?
Generally no duty to retreat with either nondeadly or deadly force
Minority view requires retreat before using deadly force if the victim can safely do so, unless:
- attack occurs in victim’s own home
- attack occurs while the victim is making a lawful arrest; OR
- assailant is in the process of robbing the victim
Crim Law
What is the minority view for retreating in self-defense?
Minority view requires retreat before using deadly force if the victim can safely do so, unless:
- attack occurs in victim’s own home
- attack occurs while the victim is making a lawful arrest; OR
- assailant is in the process of robbing the victim
No duty to retreat with nondeadly force
Crim Law
Does the aggressor have the right to use self-defense?
If one is the aggressor in the confrontation, they may use force in defense of themselves 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
Crim Law
Does one have the right to use force in the defense of others? (self-defense)
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’s necessary is the reasonable appearance of the right to use force
Crim Law
Does one have the right to use force in the defense of a dwelling? (self-defense)
Person may use nondeadly force in a 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 themselves or another in the dwelling, or to prevent an entry to commit a felony in the dwelling
Crim Law
When can deadly force be used in the defense of a dwelling? (self-defense)
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 themselves or another in the dwelling, or to prevent an entry to commit a felony in the dwelling
Crim Law
What force can be used in defense of property other than your dwelling? (self-defense)
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 intereference
Force may not be used if a request to desist or refrain from the activity would suffice
Crim Law
What force can be used to regain possession (self-defense)?
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
And always nondeadly force because deadly force is never allowed for possessions/property
Crim Law
What force can be used in crime prevention (self-defense)?
Nondeadly force may be used to extent that it reasonably appears necessary to prevent a felony or serious breach of the peace
Deadly force may be used only if it appears reasonably necessary to terminate or prevent a dangerous felony involving risk to human life
Crim Law
What force can be used to effectuate arrests? (self-defense)
Police officers:
- Nondeadly force may be used if reasonably encessary to effectuate an arrest
- Deadly force is reasonable only if it is necessary to prevent a felon’s escape and the officer reasonably believes that the felon threatens death or serious bodily harm
- Bystander summoned by officer to assist them in making an arrest has the same authority to use force as the officer, and the bystander’s good faith assistance is justified even if it turns out that the officer was exceeding their authority
Private Persons:
Has same right to arrest as a police officer with the following exceptions:
- Has privilege to use nondeadly force to make an arrest if a crime was in fact committed and the private person has reasonable grounds to believe the person arrested has in fact committed the crime
- May use deadly force only if the person harmed was actually guilty of the offense for which the arrest was made
What force can police officers use to effectuate arrests? (self-defense)
Nondeadly force may be used if reasonably encessary to effectuate an arrest
Deadly force is reasonable only if it is necessary to prevent a felon’s escape and the officer reasonably believes that the felon threatens death or serious bodily harm
Bystander summoned by officer to assist them in making an arrest has the same authority to use force as the officer, and the bystander’s good faith assistance is justified even if it turns out that the officer was exceeding their authority
Crim Law
What force can be used in resisting arrest (self-defense)?
Majority: nondeadly force may be used to resist an improper arrest even if the defendant knows it’s an officer making the arrest
Minority and MPC: no force allowed in resisting a known police office
Deadly force may be used only if the defendant doesn’t know it’s a police officer arresting them
Crim Law
What is the duress defense?
When the defendant reasonably believed that another person would imminently inflict death or great bodily harm upon them, a member of their family, or a third person if the defendant did not commit the crime
Defense to crimes but not murder
Traditionally, the person threatening to harm someone’s property is insufficient to establish duress defense
However, a number of states and MPC do allow for threats of property to give rise to a duress defense, assuming the value of the property outweighs the harm done to society by commission of the crime
Crim Law
Does duress defense apply to threats to harm property (as opposed to threatening to harm a person)?
Traditionally, person threatening to harm someone’s property is insufficient to establish duress defense
However, a number of states and MPC do allow for threats of property to give rise to a duress defense, assuming the value of the property outweighs the harm done to society by commission of the crime
Crim Law
What is the necessity defense?
Defense to a crime when 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
Test is objective - a good faith belief is not sufficient
Under traditional common law, pressure producing the choice of evils had to come from natural forces
But modern cases have abandoned this requirement
Limitations:
- Causing the death of another person to protect property is never justified
- Not available if the defendant is at fault in creating the situation requiring that they choose between two evils
Crim Law
Is the necessity defense test objective or subjective?
Test is objective - a good faith belief is not sufficient
Crim Law
What are the limitations of the necessity defense?
Limitations:
Causing the death of another person to protect property is never justified
Not available if the defendant is at fault in creating the situation requiring that they choose between two evils
Crim Law
What is the mistake of ignorance of fact (mistake of fact) defense?
This defense is relevant to criminal liability only if it shows that the defendant lacked the state of mind required for the crime
Irrelevant is the crime imposes “strict liability”
If mistake is offered to “disprove” a specific intent, then the mistake need not be reasonable
But if offered to disprove any other state of mind, it must have been a reasonable mistake or ignorance
Crim Law
When does the mistake of fact need to be reasonable to be allowed as a defense?
If mistake is offered to “disprove” a specific intent, then the mistake need not be reasonable
But if offered to disprove any other state of mind, it must have been a reasonable mistake or ignorance
Crim Law
What is the mistake/ignorance of law defense?
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/or 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
Exceptions:
Defendant has a defense if:
(1) the statute proscribing their conduct was not published or made reasonably available prior to the conduct;
(2) there was reasonable reliance on a statute or judicial decision; or
(3) in some jurisdictions, there was a reasonable reliance on official interpretation or advice
If the defendant’s mistake or ignorance as to a collateral legal matter proves that hte defendant lacked the state of mind required for the crime, they are entitled to acquittal
- Ignorance or mistake must involve the elements of the crime, not just the existence of a statute making the act criminal
Crim Law
What are the possible exceptions to mistake of law not being a defense?
If reliance on an attorney negates a necessary mental state element, such reliance can demonstrate that the government has not proved its case beyond a reasonable doubt
General exceptions, where it could be a defense:
Defendant has a defense if:
(1) the statute proscribing their conduct was not published or made reasonably available prior to the conduct;
(2) there was reasonable reliance on a statute or judicial decision; or
(3) in some jurisdictions, there was a reasonable reliance on official interpretation or advice
If the defendant’s mistake or ignorance as to a collateral legal matter proves that hte defendant lacked the state of mind required for the crime, they are entitled to acquittal
- Ignorance or mistake must involve the elements of the crime, not just the existence of a statute making the act criminal
Crim Law
What is the entrapment defense?
Entrapment occurs if the intent to commit the crime originated not with the defendant but with law enforcement officers
Exists only if:
(1) the criminal design originated with law enofrcement 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 peson to commit a crime is not entrapment
Person cannot be entrapped by a private citizen
Under federal law, an entrapment defense cannot be based solely on the fact that a government agent provided an ingredient for commission of hte crime (for ex: ingredient for a drug), even if the material provided was contraband
Crim Law
Can a private person entrap someone?
No, a person can’t be entrapped by a private citizen, only officers
Crim Law
For an entrapment defense, what elements must be met?
Entrapment defense exists only if:
(1) the criminal design originated with law enofrcement officers; AND
(2) the defendant was not predisposed to commit the crime prior to contact by the government
Crim Law
What is crime of perjury?
Perjury is the intentional taking of a false oath in regard to a material matter in a judicial proceeding
Crim Law
What is crime of subornation of perjury?
Subornation of perjury consists of procurin gor inducing another to commit perjury
Crim Law
What is crime of bribery?
At common law, bribery was the corrupt payment or receipt of anything of value for official action
Modern, may be extended to nonpublic officials, and either the offering of a bribe or the taking of a bribe may constitute the crime
Crim Law
What is the crime of compounding a crime?
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
Modern statutes - expands definition to refer to any crime, not just a felony
Crim Law
What is the crime of misprision of a felony?
At common law, misprision of a felony consisted of teh failure to disclose knowledge of the commission of a felony or to prevent the commission of a felony
Modern statutes - misprision is no longer a crime - or if it remains a crime, it requires some affirmative action in aid of the felon
What is larceny by trick?
Larceny where victim intended to give thief mere possession
