Crim. Law Flashcards
Retribution
looking backwards approach: looking back at the harm caused and calibrate the punishment solely based on that (punishment fits the crime)
Utilitarian
looking forward approach: evaluate how the punishment will affect the offender and society (deterrence, rehabilitation, incapacitation, social cohesion)
Detterence
specific: more specific to the offender
general: scared straight approach, directed towards society as a whole
Rehabilitation
punish the offender but try to treat them by sending them to rehab (drug addiction)
Incapacitation
physical restraint of the offender for public safety (prison OR breathalyzer to drive)
Social Cohesion
show society that law makers know action is wrong (shame litterers)
Duress Defense
something done not under your own steam
Actus Reus
an action made to complete a crime (requirements more than just thoughts of committing a crime)
Voluntary Act
(1) literally/physically voluntary (time framing to determine voluntariness)
Broad Time Framing
zoomed out look: ex. def. knew he had hx. of seizures, voluntarily drove anyways
Narrow Time Framing
zoomed in look: ex. def. suddenly stricken by seizure, could not control the car (does not evaluate that he knew he had seizures just looks at last snapshot of act)
Is sleep walking a voluntary act?
Yes. As long as the jury believes you were actually sleep walking
Are habitual acts voluntary?
Yes. “auto pilot” driving home is still voluntary act whether you were oblivious to where you were actually going
Omission + Legal Duty
(1) failure to act upon a legal duty constitutes a voluntary act under criminal law; (2) if you were physically UNABLE to act, not a voluntary act; (3) must cause social harm AND act with proper mens rea; (4) must be aware of the action to give rise to omission (ex. child drowning, mom doesn’t see drowning, no omission + legal duty if unaware)
Types of Legal Duties
(1) special relationship (mother, spouse, child); (2) contractual (entered into agreement, did not fulfill); (3) statutory duty (pay taxes, good samaritan); (4) creation of risk (pushed someone in the water, didn’t help them from drowning); (5) voluntary assumption (volunteer to help someone if they need it, don’t actually help them); (6) control another’s conduct (employer/employee)
Can you punish someone for having specific thoughts or holding a specific status?
NO. requires an overt act (cannot arrest someone for being homeless)
Specific Intent
(1) extra intent; (2) extra motive; (3) awareness of additional circumstances (prove def. knew) (ex. larceny: intent to take something AND intent to deprive the person of that item)
General Intent
no extra intent (ex. battery: intentional application of force to another - no further intent)
Strict Liability
absence of mens rea
Common Law factors: low punishment/low stigma; affect on general public; guilty itself v. morally wrong; public health regulation
NOT in MPC
Common Law Mens Rea
willfully, maliciously, corruptly, intentionally, knowingly, recklessly, negligently
if no mens rea specified and not strict liability, plug in negligence and go up (reckless, knowing, purpose)
MPC Mens Rea
if no mens rea specified, plug in reckless
purposely: conscious objective (want to kill)
knowingly: “practically certain” (blowing someone up, certain collateral damage will occur)
recklessly: awareness of substantial (mag. v. likelihood) and unjustifiable risk which is gross deviation from reasonable conduct
negligently: no awareness, reasonable person would have known, gross deviation from reasonable conduct
If def. acted with higher mens rea than required, are they still guilty? - MPC
Yes.
Mistake of Fact (mens rea)
MUST be honest mistake (1) what is the mistake?; (2) what is the required mens rea?; (3) does the mistake negate the mens rea?
Mistake of Fact - MPC
first 3 general steps - lesser wrong evaluation: did def. believe they were committing a lesser wrong? if so, charge them with lesser crime
Mistake of Fact - Modern Common Law
if strict liability crime: mistake of fact not a defense
first 3 general steps - (4) is the mistake reasonable?
Mistake of Fact - Old Common Law
if strict liability crime: mistake of fact not a defense
General Intent: first 3 general steps: (4) is the mistake reasonable?; (5) is the mistake morally wrong?; (6) does def. think they are commmitting lesser wrong? (if so, charged with higher crime, not lower. OPPOSITE of MPC)
Specific Intent: first 3 general steps: (4) is the mistake reasonable?
Mistake of Law - Common Law & MPC
very rarely used as a defense; generally: ignorance is NOT an excuse (cannot say you didn’t know the law, it is public information)
Mistake of Law Exceptions
official interpretation & reasonable reliance: def. relied on a person in power for the law (must be an interpreter of the law, not just anyone)
if knowledge of crime is an element of the crime
Rape (actus reus)
(1) sexual penetration; (2) gender neutral; (3) force or threat of force (lvl of force varies); (4) resistance (depends on jurisdiction); (5) lack of consent
Lack of Consent
(1) pl. must prove lack of consent through words AND actions
(2) pl. must prove lack of consent through words ONLY
(3) def. must prove there was consent through words AND actions
(4) def. must prove there was consent through words ONLY
Barriers to Consent
mental disability; unconscious; intoxicated and passed out; voluntary intoxication (courts split); involuntary intoxication = rape
Rape (mens rea)
sexual penetration: purpose or knowing
force: purpose or knowing
lack of consent: varies (reckless, negligent (most common), strict liability)
Homicide
actus reus: unlawful killing of a human being by another with malice aforethought
mens rea: helps determine the level of homicide
Intentional Killing - Common Law
purpose or knowing: generally second degree murder
includes intent to cause serious bodily injury
Premeditation and Deliberation
Common Law: elevates to first degree murder
to approaches: (1) no time is too short; (2) Bingham, reflection, more than a moment in time to think about it
MPC: no degree of murder, just taken into account with sentencing
Intentional Killing - MPC
no degrees of murder: purposely, knowingly OR extreme indifference to human life
Voluntary Manslaughter
intentional killing to be mitigated based on defense (provocation: heat of passion)
Heat of Passion - Traditional Common Law (categorical test)
question of law for judge - narrowest: must have been a legally adequate provocation: (1) def. actually provoked; (2) legal lack of cooling off time (judge); (3) def. did not cool off (some jurisdictions have informal words count as provocation; rekindling of provocation)
Legally Adequate Provocation (categorical test)
(1) aggravated assault or battery; (2) observation of serious crime against a close relative; (3) illegal arrest; (4) mutual combat; (5) adultery - specifically man seeing wife cheat (NOT allowed the other way around)
Heat of Passion - Modern Common Law (“reasonable person” test)
question of fact for jury - broader, no legal categories, if judge decides sufficient evidence to go to jury, jury decides: (1) def. actually provoked; (2) reasonable lack of cooling off time (reasonable person would not have cooled); (3) def. did not cool off (some jurisdictions have informal words count as provocation; rekindling of provocation)
Heat of Passion - MPC
(1) extreme mental or emotional disturbance; (2) reasonable explanation or “excuse”; (3) viewpoint of def. (all circumstances); (4) under circumstances as def. believed them to be (SUBJECTIVE); (5) NO specific provocation or lack of cooling time required
Depraved Heart Murder (unintentional)
lower than a knowing mens rea BUT higher than plain reckless; behavior so severe it is equal to second degree murder (1) shooting into crowd/moving vehicle; (2) playing any game that risks death; (3) reckless drunk driving
Depraved Heart - Common law
implied malice: second degree murder with “abandoned or malignant heart”; intent to cause serious bodily injury NOT included
Depraved Heart - MPC
“extreme indifference to value of human life”: intent to cause serious bodily injury that results in death (“OMG” standard - something so bad it makes you say OMG. higher magnitude v. likelihood, more unjustifiable)
Involuntary Manslaughter - Common Law
Reckless in some jurisdictions: MUST prove def. awareness of the risk of conduct
Gross Criminal Negligence - majority standard: reasonable person would be aware of the risk, gross deviation from reasonable conduct by ignoring risk
Civil Negligence in some jurisdictions: failure to do what reasonable person would have done, any conduct with risk of injury
Involuntary Manslaughter - MPC
recklessly or involuntarily
Criminally Negligent Homicide
MPC uses reckless for involuntary manslaughter=lower than involuntary manslaughter charge
Can a felony murder be both intention OR unintentional?
Yes. def. is charged with the felony AND the murder
Felony Murder - MPC
classified as murder; enumerated felonies raise to extreme indifference to value of human life murder (can be rebutted)
Felony Murder - Common Law
basic rule: a person who kills during the commission of a felony or during flight from a felony
limitations (not all used): (1) inherently dangerous; (2) merger doctrine; (3) res gestae (in furtherance of)
Inherently Dangerous - Common Law
in the abstract: ONLY look at felony itself: is there a way to commit the felony that is NOT inherently dangerous? if yes, not felony murder
on the facts of the case: look at the way the felony was committed in the specific case, is it inherently dangerous?
The Merge Doctrine
does the felony have a separate purpose from killing? (if no, the felony merges=NOT felony murder)
Res Gestae “In Furtherance of”
(1) has the felony terminated? - ALL felons must reach a place of temporary safety (break in chain of causation between felony and murder?)
(2) was the killer on a frolic? - an act unconnected to the felony and not in service of it (co-felons not accomplice to it)
(3) who did the killing - agency approach: was it a co-felon who did the killing or police officer; proximate cause approach: foreseeable for person to be killed based on felony
(4) who is killed? - if co-felon died, not felony murder in some jurisdictions
Causation
NEED BOTH - (1) “but for” cause; (2) proximate cause
“But For” Cause
but for the def. conduct, the harm would not have occurred
Proximate Cause Factors
(1) was this foreseeable occurrence; (2) was def. actions a substantial factor in the harm (“sole and exclusive factor”); (3) was def. conduct a “sufficiently direct” cause of the result; (4) was there an intervening act that breaks the chain of causation (dependent/independent)
Medical Malpractice (fatal v. nonfatal wound)
- fatal - Dr. < crim. negligent =def. guilty
- fatal - Dr. > crim. negligent =BOTH guilty
- non-fatal - Dr. < crim. negligent =def. guilty
- non-fatal - Dr. > crim. negligent =ONLY Dr. guilty
Is suicide an independent factor?
Typically yes BUT the more vulnerable the victim is to suicide and the more directive the def. is, the more liable the def. is
Larceny
(1) trespassory (no right to the property) taking and carrying away; (2) personal property of another person; (3) with intent to permanently deprive them of their property
Embezzlement
(1) intentional conversion of property of another by someone who has been entrusted with its possession key: fiduciary relationship that exists between the embezzler and the victim
False Pretenses
(1) false statement of fact (material); (2) that causes the victim to pass title to the def.; (3) def. must know the statement is false; (4) def. intended to defraud the victim
Consolidated Theft Statute
ALL 3 basic theft offenses charged together (makes it easier for prosecution to get charges correct)
Burglary
(1) breaking and entering [a structure]; (2) with intent to commit a felony therein (commission of felony not necessary, just intent to do so)
Robbery
(1) taking something from another person; (2) by using physical force (more than necessary to take property) or putting the other person in reasonable fear of bodily injury (theft+force) - MUST be from victim OR in presence of the victim
Accomplice Liability (actus reus) - Common Law & MPC
aiding or encouraging the principal; does not need to be planned in advance
If a def. attempts to aid the principal and the principal does not use the aid, is the def. an accomplice?
Common Law - NO.
MPC - Yes. culpable mind
Accomplice Liability (mens rea) - Common Law & MPC
NEED BOTH: (1) purpose to aid or encourage; (2) same mens rea as principal as to the result of the crime
Can you be an accomplice to a reckless or negligent crime?
Yes.
Natural and Probable Consequences Doctrine - Common Law
MUST satisfy the actus reus and mens rea first
responsible for other crimes flowing from the original crime ONLY IF reasonably foreseeable (ex. commit felony, escaping, accidentally kill someone)
Criminal Facilitation
used in N.Y. - knowing mens rea to accomplice (lower than required) - ex. mob car washer, crack house cleaning lady
Can def. be an accomplice to an attempted crime?
Common Law - Yes.
MPC - Yes.
Can def. be an accomplice to an attempt in which the principal did not take enough steps to constitute an attempt?
Common Law - NO.
MPC - Yes. culpable mind
If the principal gets an abandonment defense to the attempt does the accomplice def. get the same defense?
NO. strictly personal to the principal
Attempt
attempt to commit a crime is a crime itself; you can only be guilty of attempt to INTENTIONAL crimes
Policy: lower sentence=no harm/no foul; higher sentence=deterrence, more culpability
Attempt (actus reus) - Common Law
Last Act Test: NOT USED, def. had to do the last act possible toward completion of the crime to be guilty of attempt (shoot and miss)
Dangerous Proximity - (1) how close physically; (2) how much is left to be done?
Attempt (actus reus) - MPC
“Substantial Step” test - how much has already been done? (1) lying in wait; (2) enticing or seeking to entice victim; (3) reconnoitering the place of crime; (4) unlawful entry of structure, vehicle, enclosure; (5) possession of specially designed; (6) possession, collection, fabrication of materials near crime location; (7) soliciting an innocent agent to engage in conduct for crime
Attempt (mens rea) - Common Law & MPC
NEED BOTH (1) purpose to do the conduct constituting the attempt; (2) purpose to commit the target crime
Abandonment Defense to Attempt
NEED actus reus & mens rea
Traditional: once committed attempted crime, no cannot abandon and be relieved of liability
Modern (most used): (1) abandon effort to commit crime; (2) complete and voluntary abandonment
Impossibility Defenses to Attempt
- Factual (NOT DEFENSE): if facts were as you believe them to be, would commit crime
- True Legal (IS DEFENSE): think you’re committing a crime but conduct is not illegal
- Hybrid (CL if legal=defense; if fact=NO defense; MPC=NO defense): commission of crime impossible because of some mistake by the actor about legal status of factual circumstance (ex. shooting stuffed deer out of season thinking its real)
- Inherent (IS DEFENSE): completely impossible to effectuate attempt (slingshot @ airplane)
Defenses to Crimes
(1) case in chief defense; (2) affirmative
justification: def. claims he did the right thing under circumstances (self-defense - objective)
excused: def. claims persona situation caused him to act the way he did (insanity - subjective)
Self-Defense
(1) actual belief (subjective); (2) reasonable belief (objective); (3) proportional force to defend; (4) against imminent use of unlawful force; (5) necessity of force
Are physical attributes of all involved and relevant knowledge def. had of the victim included as evidence in the determination of the reasonableness of the belief of threat?
Yes, all jurisdiction include it.
Does the def. belief have to be correct to assert the defense of self-defense?
NO.
Can you use deadly force against non deadly force for self-defense?
NO.
Duty to Retreat
def. must try to retreat if they can do so with complete safety PRIOR to using deadly force
The “Castle” Doctrine
exception to duty to retreat: def. not required to retreat when attacked in their own home
“Stand Your Ground” Laws
expands exception to duty to retreat BEYOND the “castle” to any place where def. has the legal right to be (more than half the states have enacted it)
Can you assert self-defense if you were the initial aggressor?
ONLY IF you have communicated through words or actions your (1) intent to withdraw; and (2) you had a good faith attempt to withdraw
Can you assert self-defense if your initial aggression was nonlethal and the other person responds with excessive/potentially lethal force?
Traditional Common Law: NO - not unless completely withdraw first
MPC - Yes. def. still charged with initial aggression (battery, etc.)
