Crim Law & Procedure Flashcards
Merger
Generally, no merger for crimes in US.
-Conspiracy does not merge into completed crime. (E.g. can get charged w/ both conspiracy to commit murder AND murder.)
-But solicitation and attempt merge into one completed crime.
Inchoate offenses
(1) Solicitation
(2) Attempt
(3) Conspiracy
Can’t be convicted of more than one of these inchoate offenses when the conduct culminates/revolves around the same offense.
Legal duty to act scenarios
-By statute
-By contract (life guard under employment contract)
-Relationship b/w parties
-Voluntary assumption of care (e.g. “I’ll save the man!” and then does not).
-Defendant created peril
Mens rea (common law)
(1) Specific intent: requires doing an act w/ a specific intent or objective; cannot infer from merely doing the act.
-Defenses to specific intent crimes ONLY: voluntary intoxication; unreasonable mistake of fact.
-Specific intent crimes: solicitation; conspiracy; attempt; first-degree premeditated murder; assault; larceny; embezzlement; false pretenses; robbery; burglary; forgery.
(2) Malice: reckless disregard of obvious or high risk that particular harmful result will occur
-Second-degree murder
-Arson
(3) General intent (catch-all category): awareness of factors constituting a crime; can infer from merely doing the act.
-No additional defenses!
(4) Strict liability: Ds can be found guilty from mere fact that they committed the act, i.e. no mens rea requirement.
-Often comes up in administrative, regulatory, or morality area and statute doesn’t have adverbs like “willfully.”
Mens rea/mental states (MPC)
(1) Purposely—conscious object to engage in act or cause a certain result
(2) Knowingly—as to nature of conduct: aware of the nature of conduct or that certain circumstances exist; as to result: knows that conduct will necessarily or very likely cause result
(3) Recklessly—conscious disregard of a substantial and unjustifiable risk that
circumstances exist or a prohibited result will follow, and this disregard is a gross deviation from a “reasonable person” standard of care
(4) Negligently (the only objective standard) —failure to be aware of a substantial and unjustifiable risk that circumstances exist or a prohibited result will follow, and this disregard is a gross deviation from a “reasonable person” standard of care
Transferred intent: D intended harm to different victim or object, but doesn’t mitigate mens rea/crime. Applies to homicide, battery, and arson. But if e.g. homicide, can be charged both with murder (via transferred intent) and attempted murder (of the person you actually meant to kill but didn’t).
Accomplice liability (common law)
Principals in the first degree: persons who engage in act that constitutes the crime.
Principals in the second degree: persons who aid, advise/counsel, or encourage, and are present.
Accessories before the fact: persons who assisted or encouraged but were not present.
Accessories after the fact: persons who, with knowledge that another person committed felony, assisted them after the felony was complete to escape arrest or punishment.
Accomplice liability (modern statutes)
-Most jurisdictions have abolished distinctions b/w principles in the first and second degrees.
In most jurisdictions + under MPC, accomplice liability only imposed if accomplice has dual intent:
-(1) the specific intent to aid or encourage the principal before or during the crime and
-(2) the specific intent that the principal commit the crime (mere knowledge not enough)
-Liability is for the crime itself and all other foreseeable/probable crimes committed during the course of committing the OG crime.
Withdrawal from accomplice liability
-Must repudiate encouragement.
-Must attempt to neutralize any assistance.
-Notifying police or taking other action to prevent crime also sufficient.
-Mere withdrawal w/o taking additional remedial steps is NOT sufficient.
Inchoate offenses (conspiracy)
-Agreement b/w 2 more persons
-Unilateral/modern approach: only 1 party must
have criminal intent, e.g. can be convicted of
conspiracy if “conspiring” w/ undercover police
officer or if one party has a defense
-Traditional/common law bilateral approach: at least
2 parties must have criminal intent).
-Intent to enter into agreement
-Intent to achieve unlawful objective
-Unlike common law, majority of states require overt act (even an act of mere preparation, e.g. buying black ski mask).
Liability: each conspirator is liable for all crimes of other conspirators if foreseeable
AND in furtherance of the conspiracy.
Defenses:
-Withdrawal
-1) General rule—can only withdraw from liability for future crimes; no withdrawal from conspiracy possible because agreement coupled with act completes crime of conspiracy
-2) M.P.C. recognizes voluntary withdrawal as defense if the defendant thwarts conspiracy (e.g., informs police); affirmative act that notifies co-conspirators of withdrawal in time for them to abandon plans.
-Factual impossibility is no defense.
Inchoate offenses (solicitation)
-Asking another person to commit a crime, with intent that the person commit it. (If the other person agrees to commit the act, the solicitation merges into the crime of conspiracy.)
Inchoate offenses (attempt)
Act done with intent to commit a crime that falls short of completing it. Needs to be attached to another crime (i.e. attempted x).
-(1) Specific intent
-(2) Overt act: act BEYOND mere preparation.
-Traditional/proximity test: dangerously close to completion.
-Modern/majority test: substantial step in course of conduct.
-(3) In furtherance of the crime
Defenses:
-Abandonment: not defense at common law; defense under MPC if fully voluntary and complete.
-Factual impossibility: not a defense even if the attempted crime can’t be completed (e.g. no money in the armored car that people attempted to rob).
Common law murder
Unlawful killing of a human being with malice aforethought
Malice aforethought –> specific intent to kill or inflict serious bodily harm:
-Intent to kill (first-degree murder)
-intent to inflict great bodily injury (second-degree murder)
-DHM / Reckless indifference to an unjustifiably high risk to human life (second-degree)
-Intent to commit a felony [burglary, arson, rape, robbery, kidnapping] (first-degree)
First degree murder
-Deliberate and premeditated first degree murder: D made decision to kill in cool and dispassionate manner and actually reflected on idea of killing
-Killing committed during commission of an enumerated felony. At common law: burglary, arson, rape, robbery, kidnapping.
-Murder of a police officer (if acting in line of duty and perp knows the victim is police officer).
Second-degree murder
-Depraved heart murder
Limitation on felony murder liability
-D must have committed or attempted to commit underlying felony. So if you have a defense to the underlying felony, you’re also off the hook for the felony murder.
-Felony must be distinct from killing itself.
-Death must have been foreseeable.
-Death must have been caused before immediate flight from felony ended. If you’ve reached a point of temporary safety and then later you e.g. hit a pedestrian, that’s not felony murder.
-D not guilty of felony murder when a co-felon is killed as a result of resistance from the felony, victim, or the police.
-Proximate cause theory: felon liable for deaths of innocent victims caused by someone other than co-felon (minority view).
-Agency theory: felon liable only if killing committed by felon or agent (majority view).
Voluntary manslaughter
Killing that would be a murder but for the existence of adequate provocation. This provocation is only adequate if:
-Provocation would arouse sudden and intense passion in mind of ordinary person.
-D was in fact provoked.
-Not sufficient time b/w provocation and killing for passions of reasonable person to cool.
-D in fact did not cool off.
Imperfect self-defense: murder reduced to manslaughter even though (1) D was at fault starting the altercation or (2) D unreasonably but honestly believed in the necessity of responding with deadly force.
Involuntary manslaughter
-Killing committed w/ criminal negligence (or recklessness under MPC)
-Criminal negligence: D fails to be aware of substantial and unjustifiable risk; substantial deviation from standard of care of reasonable person.
-Killing committed during commission of unlawful act (unenumerated felony, misdemeanor).
Causation
-Cause in fact: death would not have resulted but for D’s conduct
-Proximate cause: result is a natural and probable consequence of the conduct (even if D did not anticipate the precise manner in which the result occurred).
Limitations on causation
-The year and day rule: traditionally, to be liable for homicide, the death of victim must occur within one year and one day from infliction of the injury or the wound. But abolished by most states!
-Intervening acts: an act shields a D from liability if the act is a coincidence or outside the foreseeable of risk that’s created by the D. Negligent medical care = still on the hook for the crime.
Battery
Unlawful application of force to the person of another resulting either bodily injury or an offensive touching.
-General intent crime (so the two additional defenses are not available).
Assault
-Attempt to commit battery OR
-Intentional creation (other than by mere words) of reasonable apprehension of imminent bodily harm
False imprisonment
Unlawful confinement of a person w/o valid consent
Kidnapping
-The intentional and unlawful confinement of another
-against that person’s will
-coupled with either moving or hiding that person
But for a kidnapping to occur incident to the commission of another offense, the victim must be moved more than is necessary to complete the other offense.
Statutory rape
Strict liability.
Reasonable mistake of fact? Not an applicable defense b/c strict liability crime.
Larceny
Taking and carrying away [asportation] of tangible personal property of another by trespass (w/o consent/intent induced by fraud) with intent to permanently deprive. The intent to permanently deprive must be concurrent with the taking and carrying away.
-Mistake of law is no excuse!
Insufficient intent for larceny:
-Belief that property is D’s
-Intent to borrow property
-Intent to keep property as repayment of debt
-D has some right to it
-Larceny can be committed with lost or mislaid property that has been delivered by mistake, but not with abandoned property.
Continuing trespass: D wrongly takes property w/o intent to permanently deprive and later decides to keep it = larceny.
It is possible to commit larceny of your own property if another person, such as a bailee, has a superior right to possession of the property at that time. E.g. Because the mechanic had a right to possession of the van until he was paid for the repairs, the student committed larceny when he had his friend take the van without the mechanic’s consent.
Contrast with larceny by trick: larceny is taking WITHOUT consent whereas larceny by trick is taking WITH consent.
Embezzlement
Fraudulent conversion of personal property of another by person in lawful possession of that property
-Often a trustee is the embezzler
-Don’t have to carry away or get the benefit to be an embezzler; just possession of the property is required.
If the defendant intended to restore the exact property taken, it is NOT embezzlement. But if he intended to restore similar or substantially identical property, it is embezzlement, even if it was money that was initially taken and other money-of identical value-that he intended to return.
False pretenses
Obtaining TITLE to personal property of another (including money!) by intentional false statement of past or existing fact (under majority view, fraudulent promise to do something in the future also counts) with intent to defraud. Look for misrepresentations.
False pretenses: victim gives up title to property.
Larceny by trick
Victim consents to the D taking POSSESSION of the property, but that consent is induced by misrepresentation or deceit.
Different than larceny because larceny is taking and carrying away without consent.
Robbery
Taking of personal property of another from other’s person or presence by force or threats with intent to permanently deprive.
-A threat to damage or destroy property (other than the victim’s home) is NOT sufficient.
Need imminent harm, i.e. “I’m going to beat you up in a couple of days” is not sufficient.
Extortion
At common law, consists of the corruption or the corrupt collection of an unlawful fee by an officer under color of office.
Under modern statutes, obtaining property by means of threats to do harm or expose information.
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 tending to permanently deprive the owner.
But property is no longer considered stolen once the police recover the property, i.e. locate and exercise control over it.
Theft
Often, all the property crimes are aggregated together under the broad bucket of “theft.”
Forgery
Making or altering a writing (a will, a check) with apparent legal significance so that it is false with intent to defraud.
Burglary
Common law: breaking and entering of dwelling (any part of the body crosses into the house) of another at nighttime with intent to commit a felony in the structure.
-Most modern statutes have eliminated the nighttime requirement and have expanded the dwelling to include all kinds of buildings.
-Breaking: can be actual or constructive. But if a door is wide open and you just walk through and steal stuff and walk out, at common law you’re not on the hook for burglary! But if same scenario, but you also push open some interior doors (e.g. door to the bedroom), then that is “breaking.”
-Constructive breaking: breaking by fraud (e.g. using an entrusted key for a purpose other than the reason you were given the key) or threat.
-Intent to commit a felony: must exist at the time of breaking and entering.
Arson
Common law: malicious burning of dwelling of another.
Modern: not just dwelling; includes explosions, etc.
No specific intent required (b/c it’s a malice crime).
Damage required for arson:
-Scorching (blackening by smoke or discoloration by heat) is not sufficient.
-Charring is sufficient.
Defenses (insanity)
Four tests:
(1) M’Naghten/right-wrong test (most popular): D entitled to acquittal if disease of the mind caused defect of reason such that D lacked ability to know wrongfulness of actions or understand nature and quality of actions.
(2) Irresistible impulse test: D entitled to acquittal if, because of mental illness, unable to control actions or conform conduct to the law.
(3) Durham/products test (only in New Hampshire): D entitled to acquittal if crime was product of mental illness.
(4) MPC test: D entitled to acquittal if D had mental disease or defect and, as a result, lacked substantial capacity to either appreciate criminality of conduct or conform conduct to the law.
Burdens of proof and persuasion:
-All Ds are presumed sane, so D must raise issue and prove their insanity by a preponderance of the evidence.