crim law Flashcards
Dominion and control must exist for a period long enough to
have provided the defendant with an opportunity to cease dominion and control.
Knowingly or intentionally possessing a prohibited object (such as a felon possessing a firearm) is unlawful as long as the defendant exercises
control over the object.
A principal is the person whose acts or omissions are
the actus reus of the crime, or, in other words, the perpetrator of the crime.
An accomplice (i.e., an accessory before the fact or a principal in the second degree) is a person who
with intent that the crime be committed, aids or abets a principal prior to or during the commission of the crime.
The difference between an accessory before the fact and a principal in the second degree is
presence.
An accomplice who is physically or constructively present during the commission of the crime is a
principal in the second degree.
accessory before the fact is an accomplice that
1) is neither physically nor constructively present during the commission of the crime, but who,
2) with the requisite intent to encourage or assist in the commission of the crime,
3) provided verbal encouragement, financial assistance, or physical assistance to the principal
4) prior to the commission of the crime
An accomplice is responsible for the crime to what extent?
the same extent as the principal
If the principal commits crimes other than the crimes for which the accomplice has provided encouragement or assistance, then the accomplice is liable for the other crimes if
the crimes are the natural and probable consequences of the accomplice’s conduct.
An essential element of proof of criminal conduct is
the mens rea, or the criminal intent to commit the criminal act, the actus reus.
A defendant will remain liable for the commission of a criminal act, regardless of
if the intent was to harm an individual but accidentally hurts another.
While specific intent is required for aider and abettor liability for specific intent crimes, there can be still be
aider and abettor liability for a crime which requires neither specific intent nor malice, such as for acts of negligence
aider and abettor liability, for involuntary manslaughter involving negligence where the defendant showed
a common and shared purpose to participate in an act which resulted in death.
Felony murder is
1) murder of the first degree and
2) is defined as a murder committed in the commission or attempted commission of
3) arson, rape, forcible sodomy, inanimate or animate object sexual penetration, robbery, burglary, or abduction (kidnapping) except as otherwise provided in the aggravated murder statute.
Felony murder may be intentional or accidental, as long as
the death results from acts in furtherance of one of the enumerated felonies.
Robbery is a
common-law crime in Virginia.
The elements of robbery as defined at common law are:
(i) the taking,
(ii) with intent to steal,
(iii) of the personal property of another,
(iv) from his person or in his presence,
(v) against his will,
(vi) by violence or intimidation.
Typically, a principal in the first degree is
present at the scene of the crime.
A principal in the second degree is a person who
is present at the commission of the crime and shares the principal in the first degree’s intent that the crime be committed or aids, abets, encourages, assists, or advises a principal in the first degree in the commission of the crime.
In felony cases, every principal in the second degree may be
indicted, tried, convicted, and punished in the same manner as a principal in the first degree.
Even an accidental killing that results from the commission of a robbery can form the basis of
felony murder.
purchase of illegal drugs is not one of the enumerated felonies that serve as a predicate for
felony murder.
A person is guilty of conspiracy if he
confederates or agrees with another to commit a felony.
Virginia does not require an overt act to be performed to
complete a conspiracy; an agreement to commit a felony is sufficient.
a defendant who has been tried and convicted of a substantive offense cannot be tried for
conspiracy to commit that same offense at a later trial
a defendant who has been tried and convicted of an offense he conspired to commit can be convicted of
both the substantive offense and the underlying conspiracy in the same trial.
Every unlawful homicide in Virginia is presumed to be
murder of the second degree.
In order to rise to the level of first-degree or aggravated murder, the Commonwealth must make a prima facie showing that
malice or premeditation exists
if the commonwealth makes a showing of malice or premeditation
the burden of producing mitigating (heat of passion) evidence shifts to the defendant
Once the defendant has shown some evidence of a mitigating factor, the Commonwealth must
prove the absence of such factor beyond a reasonable doubt.
murder of the first degree.
Murder by poison, lying in wait, imprisonment, starving, or any willful, deliberate, and premeditated killing not specified in the aggravated murder statute
Mere presence and subsequent flight are not enough to convict a person as
a principal in the second degree.
An accessory before the fact’s assistance to the principal may be
verbal encouragement, financial assistance, or physical assistance.
accomplices Mere knowledge that a crime will result
is not enough to be accessory before the fact
In felony cases, every accessory before the fact may be indicted, tried, convicted, and punished in the same manner as
a principal in the first degree.
An accessory after the fact is a person who
knows a felony has been committed and thereby aids or assists a principal in the first degree or accessory before the fact avoid or escape prosecution
An accessory after the fact is not subject to punishment for
the crime committed by the principal in the first degree or accessory before the fact.
An accessory after the fact is subject to punishment for
(i) a class 6 felony in the case of a homicide offense punishable as a class 2 felony, or (ii) a class 1 misdemeanor in the case of any other felony, as long as he is not the spouse, parent, grandparent, child, grandchild, sibling, or servant to the principal in the first degree or accessory before the fact.
Two or more offenses may be charged in separate counts of the same indictment or information as long as
the charges are based on the same act, transaction, or on two or more acts or transactions that are connected or parts of a common scheme or plan.
The defendant must be tried for all offenses pending against him as long as
justice does not require separate trials and the offenses may be joined or the parties consent.
Embezzlement is
the fraudulent use, concealment, disposing of, or embezzling of any commercial paper or tangible or intangible property that was:
(i) received for another person or for one’s employer,
(ii) received by virtue of one’s office or employment, or
(iii) entrusted to one by another.
A person is guilty of conspiracy if
he confederates or agrees with another to commit a felony.
Virginia does not require an overt act to be performed to complete a conspiracy; however, such conduct may
support a finding of the existence of a conspiracy.
A possession offense, such as possession of cocaine, does not require proof of actual physical possession of the prohibited object, but may be established by
constructive possession of the object.
Constructive possession may be proved by evidence of
acts, declarations, or conduct of the accused from which a fair inference may be drawn that he knew of the existence of prohibited object at the place where it was found.
For possession charges The defendant is not required to be aware that
possession of the object is illegal.
for a charge of felon in possession of a firearm, address
1) requires proof that defendant had previously been convicted of a felony.
2) Typically, a crime punishable by imprisonment for more than one year constitutes a felony.
conviction of forging a public record, a crime punishable by
a term of imprisonment of at least two years
Entrapment is
1) the conception and planning of an offense by a law enforcement officer, and
2) his procurement of its commission by a defendant who would not have committed that offense except for
3) the trickery, persuasion, or fraud of the officer.
for entrapment the defendant must lack
any pre-disposition to commit the crime.
Entrapment can occur through the use of
an undercover agent
Entrapment will not bar a conviction when
the police merely afford an opportunity for the commission of a crime to a defendant willing to commit it.
Accommodation:
A defendant may establish that:
1) he gave, distributed or possessed a controlled substance only as an accommodation to another individual
2) without an intent to profit thereby from any consideration received or expected
3) nor to induce the recipient or intended recipient of the controlled substance to use or become addicted to or dependent upon such controlled substance.
accommodation wont apply to
an inmate in a community correctional facility, local correctional facility or state correctional facility
This accommodation defense does not
absolve the defendant of the crime but can result in a lesser sentence.
knowing possession:
1) Knowingly or intentionally possessing a prohibited object (e.g., drug paraphernalia, burglar’s tools) or a substance (e.g., illegal narcotics) is unlawful if
2) the defendant exercises control over such object or substance.
A person commits common-law burglary if
he breaks and enters another’s dwelling in the nighttime with the intent to commit a felony or larceny therein.
For common law burglary, there is no need for the defendant to
engage in a destructive act to satisfy the breaking requirement, merely opening an unlocked door, will suffice; so long as (@ night + intent commit felony/larceny)
Upon motion of the Commonwealth, the court may order multiple defendants charged with participating in contemporaneous and related acts or in a series of acts constituting an offense jointly tried unless
a joint trial will prejudice the defendant.
if the commonwealth motions for a joint trial of defendants who participated + contemporaneous/related acts or series of acts, and prejudice is present, the court must
order the prejudiced defendant severed.
severing a joint trial of multiple defendants is proper where
one crime is related/contemporaneous, but one defendant committed another unrelated crime close in proximity which other defendant had no involvement or knowledge of
For the crime of malicious wounding, the intent required as is the case with other malice crimes is
a reckless disregard of an obvious or high risk that the particular harmful result will occur
In Virginia, generally voluntary intoxication is
no defense for a criminal charge, even specific intent crimes.
In order for voluntary intoxication to be a defense, it must produce
a permanent insanity
Jury instructions are properly refused when
they are unsupported by the evidence
In order for a defendant to claim self-defense after using deadly force they must be
without fault
In Virginia, a person is not required to retreat before
using deadly force when they are confronted by an aggressor
when the defendant provoked the violence
he must retreat as far as safely possible before using deadly force
Once the provoking defendant has totally abandoned the original attack, they may
regain the use of force in self-defense
Every unlawful homicide in Virginia is presumed to be
murder of the second degree.
the Commonwealth must make a prima facie showing that malice or premeditation exists to establish
establish a murder with malice.
in order to rise to the level of first-degree or capital murder, the Commonwealth must make a prima facie showing that
malice or premeditation exists.
Virginia has no presumptions regarding
common law murder.
Involuntary intoxication is a defense as long as the intoxication serves to
negate an element of general and specific intent crimes
Voluntary intoxication is not a defense in Virginia unless
a person is so greatly intoxicated that he was incapable of deliberation and premeditation (two essential elements to prove capital or first-degree murder)
A person is guilty of conspiracy if
he confederates or agrees with another to commit a felony.
Virginia does not require an overt act to be performed in order to
complete a conspiracy; agreement to commit a felony is sufficient.
withdrawal cannot be a defense to
conspiracy in Virginia
Because there is no overt act requirement, the conspiracy was complete upon
their agreement to commit the crime.
A criminal attempt requires
a specific intent to commit a criminal act coupled with a direct, but ineffectual act (an overt act) toward the commission of the intended crime.
the overt act required for an attempt must be
1) well calculated to accomplish the result intended and
2) must approach sufficiently close enough to completion to amount to the “commencement of the consummation.”
for an attempt offense, the overt act cant be merely
preparatory
where a defendant abandons a roberry before its completed, but the specific intent and direct overt act toward commission are present, he cant assert abandonment because
the crime of attempted robbery was already complete when the overt acts toward commission of offense were made
A conspirator can be convicted of both the offense of the conspiracy and crimes committed by any other co-conspirator in furtherance of the conspiracy if the crime is
reasonably foreseeable and a natural consequence of the conspiracy.
in Virginia, robbery is
a common law crime
The elements of robbery are:
(i) the taking,
(ii) with intent to steal,
(iii) of the personal property of another,
(iv) from his person or in his presence,
(v) against his will,
(vi) by violence or intimidation.
by taking money, with the intent to steal, from the bank teller, against the teller’s will, by brandishing a gun; D completed the crime of
robbery
a defendant can limit his liability for substantive crimes committed by co-conspirators by
withdrawing from the conspiracy
In order to withdraw, the defendant must
give notice to his co-conspirators
D does not provide effective notice of withdrawal and this defense will not be successful, where
D notifies co-conspirators after substantive crimes have been completed
conspiracy only merges with the completed crime when
the defendant has already been tried and convicted of the substantive offense.
A person commits abduction if he
1) by force, intimidation, or deception and without legal justification,
2) seizes, takes, transports, detains, or secrets another person
3) with the intent to deprive the other person of her personal liberty.
forced the teller to move from behind the counter and lie face down on the floor while threatening her at gunpoint, constitutes
abduction
In Virginia, offenses that are punishable by death or confinement in a state correctional facility are
felonies
A Class 4 felony is punishable by
not less than two years and not more than 10 years imprisonment and a fine of not more than $100,000.
forging a public record, a crime punishable by
a term of imprisonment of at least two years and a possible additional fine not exceeding $100,000.
Possession of a prohibited object is unlawful if
the defendant exercises control over such object or substance; D must knowingly or intentionally possess the prohibited object to be guilty of possession.
If a person “carnally knows” (which includes sexual intercourse) a child 13 years or older but under 15, he is generally guilty of
a Class 4 felony in Virginia
If the child consents to sexual intercourse and the accused is a minor, the crime is reduced to a Class 6 felony if
he consenting child is three or more years the accused’s junior
If the child consents to sexual intercourse and the accused is a minor, the crime is reduced to a Class 4 misdemeanor if
the consenting child is less than three years the accused’s junior.
a minor can still be convicted of felony statutory rape if
the child does not consent or the consenting child is three or more years the accused’s junior
Murder by poison is statutorily defined as
murder of the first degree in Virginia.
Common-law arson is
the malicious burning of the dwelling of another
The crime of arson is a malice crime requiring
a reckless disregard of a high risk of harm
A mistake of fact must be reasonable in order to be a defense to
a general-intent or malice crime
a mistake of fact can be a defense to a malice crime like arson if
the mistake is reasonable
voluntary intoxication is a defense to specific-intent crimes if
the intoxication prevents the formation of the required intent
voluntary intoxication is not a defense to
general intent crimes or crimes involving malice, recklessness, negligence, or for strict-liability crimes
An accessory after the fact is
a person who knows a felony has been committed and thereby aids or assists a principal in the first degree or accessory before the fact avoid or escape prosecution.
a principal in the first degree is
the perpetrator of the actus reus of the crime.
Concealing a felon is insufficient to warrant conviction as
the principal in the first degree with respect to the felony committed by the felon
a principal in the second degree is a person who
is present at the commission of the crime and shares the principal in the first degree’s intent that the crime be committed or aids, abets, encourages, assists, or advises a principal in the first degree in the commission of the crime.
Concealing a felon after the felony’s commission is insufficient to warrant conviction as
a principal in the second degree
an accessory before the fact must
aid, abet, encourage, assist, or advise the principal in the first degree before the commission of a felony.
withdrawal cannot be a defense to
conspiracy in Virginia
Felony homicide is murder of
the second degree in Virginia
Felony homicide is
the killing of another accidentally or contrary to the parties’ intent, while committing a felony not enumerated in the capital murder and murder of the first degree (felony murder) statutes
Virginia no longer recognizes
capital murder
voluntary manslaughter is
an unlawful killing committed without malice, usually occurring in the heat of passion or in sudden mutual combat.
A criminal attempt requires
the specific intent to commit a criminal act coupled with a direct but ineffectual overt act taken toward the commission of the intended crime.
The overt act must be
well calculated to accomplish the result intended and must approach sufficiently close enough to completion to amount to the “commencement of the consummation.”
Merely making arrangements or taking steps necessary for the completion of the crime only qualifies as
“preparation,” and not an overt act
The underlying crime of robbery requires
taking, with intent to steal, the personal property of another, from his person or in his presence, against his will, by violence or intimidation.
If a person uses, attempts to use, or displays a firearm in a threatening manner while committing or attempting to commit robbery, he
commits a separate felony offense.
Because Jay cannot be convicted of attempted robbery, he cannot be convicted of
the attempted use of a firearm while attempting a robbery.
An “Alford” plea is
a plea in which a defendant, without admitting guilt, admits that the Commonwealth has sufficient evidence by which the defendant could be convicted beyond a reasonable doubt.
An accessory before the fact is
a person who encourages or assists another in the commission of a crime, but who is not present during the commission of the crime.
In felony cases, an accessory before the fact may be
indicted, tried, convicted, and punished in the same manner as the person perpetrates the crime (i.e., a principal in the first degree).
An accessory may be convicted whether or not
the principal is convicted, although it must be proven that the principal committed a criminal offense.
Further, under Virginia law, an accessory before the fact will also be criminally liable for
any incidental crimes committed by a principal in the first degree in furtherance of any crimes they contemplated committing together
The jury must decide whether the offense is
the natural and probable result of the intended wrongful act.
Voluntary intoxication is
the intentional taking of a known intoxicating substance
Voluntary intoxication is generally not a defense in Virginia, unless
the person is so greatly intoxicated that he was incapable of deliberation and premeditation in an aggravated or first-degree murder charge.
Self-defense is
an affirmative defense in Virginia that, if established, results in an acquittal.
for self defense, The defendant has the burden of introducing evidence of
justification (if the defendant acted without fault) or excuse (if the defendant was the initial aggressor).
A defendant who is without fault may use self-defense when
he reasonably fears bodily harm by another and exercises reasonable force to repel the assault.
A person may only use deadly force if there are reasonable grounds to believe
he was in imminent danger of great bodily harm or death at the time deadly force was used.
If the defendant was the initial aggressor, he must
also completely abandon the original attack by retreating to the extent he can safely do so and making known his desire for peace by word or act.
Specific intent crimes require that the defendant possess
a subjective desire, specific objective, or knowledge to accomplish a prohibited result
Virginia’s Bad Check Law requires a person to act with
the intent to defraud and is therefore a specific intent crime.
Virginia’s Bad Check Law
the intent to defraud must exist at the time that the check is made, drawn, uttered, or delivered
Virginia’s Bad Check Law
The person must know at the time of such making, drawing, uttering or delivering, that the maker or drawer does not have sufficient funds in, or credit with, the bank.
Virginia’s Bad Check Law also requires that
the check be given as “present consideration for goods or services.”
A mistake of fact is a defense to a
specific-intent crime, even if the mistake is unreasonable.
A defendant may not be placed in criminal jeopardy
twice for the same offense before the same sovereign (state or federal system).
for use of a firearm in commission of felony, although there is no evidence that Defendant actually possessed the firearm
it is not necessary for the victim to actually see the defendant’s firearm in order to be charged, if defendant’s actions were suggestive of him possessing and using a firearm.
Voluntary intoxication is
the intentional taking of a known intoxicating substance.
In Virginia, voluntary intoxication is not a defense unless
a person is so greatly intoxicated that he was incapable of deliberation and premeditation, two essential elements to prove aggravated or first-degree murder.
Voluntary intoxication is not a viable defense to
any other crime in Virginia.
Virginia’s malicious wounding statute provides that a person must have the intent to
maim, disfigure, disable, or kill in order to be found guilty of malicious wounding.
for voluntary intoxication to be a valid defense, there must be elements of deliberation and premeditation, and
the intoxication was so severe that he was unable to form the intent elements of deliberation and premeditation
If a person intends to harm another person but instead harms a third person, the actor’s intent is
transferred to the third person under the doctrine of transferred intent.
when transferred intent applies, it is irrelevant that
the harm to the unintended third person was accidental or unintentional
A person is guilty of conspiracy if
he confederates or agrees with another to commit a felony.
Virginia does not require an overt act to be performed in order to complete a conspiracy; however, such conduct may support a finding of
the existence of a conspiracy
in virginia, for conspiracy, Agreement to
commit a felony is sufficient
in virginia, withdrawal cannot be a defense to
conspiracy
