Crimes against the Person

Question 1

Murder (CL)

What are the 2 elements of AND the req’d mental state for CL murder?

Answer 1

Mental state = “malice aforethought”

murder (CL) =

1) Causing the death;
2) of another person

Question 2

MALICE AFORETHOUGHT

What are the 4 mental states that qualify and what are the 2 special rules for CL “malice aforethought” / “intent to kill” murder?

Answer 2

MALICE AFORETHOUGHT is satisfied when the ∆ has ANY of the following 4 Mental States:

1) the INTENT to KILL;
2) the INTENT to inflict SERIOUS BODILY HARM;
3) EXTREME recklessness (i.e. reckless indifference to human life a/k/a “depraved heart”)
4) COMMISSION of INHERENTLY DANGEROUS Felony

SPECIAL RULES:
1) Deadly weapon rule = the intentional use of a deadly weapon creates an INFERENCE of an INTENT TO KILL
(note a lamp can be a dangerous weapon)

2) Transferred intent = if a ∆ intends to harm one victim, BUT accidentally harms a DIFFERENT victim instead, the ∆’s intent will TRANSFER from the intended victim to the actual victim

→ NOTE: Most often applies to (ALL)homicide, but can also apply to other crimes, such as battery and arson

→ EXCEPTION: transferred intent does NOT APPLY to attempts, only to crimes w/ “completed harms”

**Guaranteed to be on Bar Exam!

Question 3

1st Degree Murder (Statutory Variation)

2nd Degree Murder (Statutory Variation)

What are the 2 elements of AND the req’d mental state for CL 1st and 2d degree murder?

Answer 3

Mental state = “malice aforethought”

• ———— 1st degree murder =
  1) Causing the death;
  2) of another person; with
  3) Premeditation (thought ahead of time) and Deliberation (∆ was calm, cool, and collected)
• ———— 2d degree murder =
  1) Causing the death;
  2) of another person

Question 4

ASSAULT (CL)

What are the 2 versions, the 4 elements (for version 2) AND the req’d mentals state for CL criminal assault?

Answer 4

Mental state = SPECIFIC INTENT

Version 1 = attempted battery (i.e. a swing/miss)

Version 2 = reasonable apprehension, which reqs…

1) The INTENTIONAL creation;
2) Other than by mere words;
3) of a REASONABLE apprehension in the mind of the victim;
4) of IMMINENT bodily harm(i.e. a fake punch)

Question 5

BATTERY (CL)

What are the 3 elements of ANDreq’d mental state for CL criminal battery?

Answer 5

Mental state = GENERAL INTENT

BATTERY (CL) =

1) the unlawful;
2) application of force to another;
3) resulting in EITHER bodily injury OR an offensive touching

Question 6

FALSE IMPRISONMENT (CL)

What are the 3 elements of AND the req’d mental state for CL criminal false imprisonment?

Answer 6

MENTAL STATE = GENERAL INTENT

ELEMENTS OF False imprisonment =

1) the unlawful;
2) confinement of a person;
3) w/out his consent

Question 7

FELONY MURDER (CL)

What is CL felony murder AND what are the 6common LIMITATIONS on Felony Murder (CL limitations)?

Answer 7

Felony murder = ANY killing caused during the commission of OR attempt to commit a felony

6 LIMITATIONS:
1) ∆ must have COMMITTED the underlying felony → ∆ must be GUILTY (factually, not necessarily charged) of the underlying felony
→ Defense to felony = defense to felony murder

2) Felony must be inherently dangerous

3) The merger rule: the felony must be INDEPENDENT of the killing
→ i.e. aggrevated assault or battery CANNOT be the underlying crime for felony murder

4) Killing must take place DURING the felonyOR during the immediate flight from the felony
→ NOTE: Once ∆ reaches place of temporary safety, the felony ends
→ “Res Gestae” Principles

5) Death must be foreseeable
6) Victim who dies must NOT be a co-felon

Question 8

VICARIOUS LIABILITY

What are the 2 vicarious liability theories under CL felony murder?

NOTE: NY Distinction

Answer 8

1) “PROXIMATE CAUSE” VICARIOUS LIABILITY theory (MAJORITY rule) = if one of the co-felons proximately causes the victim’s death, then ALL of the other co-felons will be guilty of felony murder, EVEN IF the actual killing is committed by a 3d party (e.g. a bystander, a police officer, etc)
→ NOTE: NY DISTINCTION: this is the approach followed in NY (BUT NY allows for Non-Slayer Defense)

2) “AGENCY” VICARIOUS LIABILITY theory = felony murder doctrine applies ONLY IF the killing is committed by one of the co-felons

Question 9

FORCIBLE RAPE (CL)

What are the 3 elements of AND the req’d mental state for CL forcible rape?

Answer 9

MENTAL STATE = GENERAL INTENT

ELEMENTS Of Forcible rape =

1) sexual intercourse (ANY type of penetration)
2) w/o the victim’s consent;
3) accomplished by:
(i) force;
(ii) threat of force; OR
(iii) when the victim is unconscious

Question 10

INVOLUNTARY MANSLAUGHTER (CL)

What are 2 types of involuntary manslaughter?

Answer 10

1) TYPE 1:
MENTAL STATE: Reckless
ELEMENTS: A killing committed w/ criminal negligence (i.e. a GROSS deviation from a reasonable std of care)
MENTAL STATE:

2) TYPE 2:
ELEMENTS: A killing committed during the commission of a crime to which the felony murder doctrine DOES NOT apply (i.e. “unlawful act” OR misdemeanor manslaughter)
→ NOTE: Sometimes called “unlawful act manslaughter” or “misdemeanor manslaughter”

Question 11

KIDNAPPING (CL)

What are the 2 elements of AND req’d mental state for CL kidnapping?

Answer 11

Mental State = General Intent

Kidnapping Elements =

1) false imprisonment (i.e. unlawful confinement w/o consent);
2) that involves either moving the victimORconcealing the victim in a secret place

Question 12

STATUTORY RAPE (CL / NY)

What are the 2 elements of AND the req’d mental state for CL statutory rape? NOTE: NY Distinction

Answer 12

MENTAL STATE = NONE RQRD / STRICT LIABILITY
→ NOTE:
Mental state = strict liability w/ no defense (majority rule) Minority rule = a REASONABLE mistake of age is a defense

ELEMENTS of Statutory rape (CL) =

1) sexual intercourse (ANY type of penetration);
2) with someone UNDER the age of consent

NY DISTINCTION: AGE OF CONSENT = 17
(i.e.∆ MUST be at least 21, and the victim 16 or younger)

Question 13

VOLUNTARY MANSLAUGHTER (CL)

What are the 3 elements of CL voluntary manslaughter?

Answer 13

Mental State = Malice Aforethought

Voluntary manslaughter =
1) an intentional killing;
2) committed in the heat of passion;
3) upon adequate provocation
→ NOTE: Adequate Provocation Requires:
(i) ∆ was actually provoked;
(ii) ∆ did not have time to “cool off”;
(iii) ∆ did not ACTUALLY cool off b/t the provocation
and the killing

→ NOTE: Provocation needs to be OBJECTIVELY adequate (e.g. serious assault or battery; presently witnessed adultery; normally NOT words)

→ NOTE: Whether ∆ was actually provoked (a subjective consideration)

Question 14

UNLAWFUL IMPRISONMENT (NY)

In NY, what is 2d degree unlawful imprisonment (as well as 1st degree)?

Answer 14

MENTAL STATE = KNOWINGLY

• ————– 2nd degree unlawful imprisonment =
  1) unlawfully;
  2) restraining someone;
  3) without their consent; AND
  4) with knowledge that the restriction is unlawful
• ————– 1st degree unlawful imprisonment =
  1) 2nd degree unlawful imprisonment; AND
  2) a risk of serious physical injury

Question 15

AGGRAVATED HOMICIDE (NY)

In NY, when is a homicide crime elevated to “aggravated”?

Answer 15

) when the victim of the homicide is a police officer killed in the line of duty, the offense can be…
Aggravated Murder

		Aggravated Man 1

		Aggravated Man 2

		Aggravated Crim. Negl. Homicide

2) when the ∆, over the age of 18, causes the death of a child UNDER the age of 14 in an especially cruel and wonton manner = aggrevated murder
3) When the ∆ commits 1st degree vehicular manslaughter AND engages in Reckless driving

Question 16

ASSAULT (NY)

In NY, what is 2d degree criminal assault (along with 1st and 3d)?

Answer 16

Mental state = INTENTIONALLY

• ———— 2nd degree assault =
  1) intentionally causing;
  2) serious physical injury
• ———— 1st degree assault =
  1) 2d degree assault; AND
  2) a weapon -
• ———- 3d degree assault =
  1) intentionally causing;
  2) non-serious physical injury

———— NOTE:
→ 1) All versions of assault in NY req INJURY (there is no “offensive touching”)

→ 2) Battery is NOT a separate crime in NY!!

→ 3) Menacing: Merely creating a “reasonable apprehension” (w/o intent to actually injury) is NOT assault (this is a separate crime, “menacing”)

→ 4) Attempted assault reqs intent to assault

Question 17

FELONY MURDER (NY)

In NY, what are the ONLY 6 felonies that can give rise to felony murder?

Answer 17

“B-R-A-K-E-S”

1) Burglary
2) Robbery
3) Arson
4) Kidnapping
5) Escape
6) Sexual assault

Question 18

CRIMINALLY NEGLIGENT HOMICIDE (NY)

In NY, what is criminally negl. homicide?

Answer 18

MENTAL STATE: Criminal Negligence

ELEMENTS: The ∆ SHOULD have been aware of a substantial and unjustifiable risk of death

Question 19

NON-SLAYER FELONY MURDER DEFENSE (NY)

In NY, what are the 4 elements for the “non-slayer” defenseto felony murder?

Answer 19

NY provides a ltd affirmative defense to felony murder IF the ∆ can prove all 4 of the following:

1) the ∆ did not kill the victim;
2) the ∆ did not have a deadly weapon;
3) the ∆ had no reason to believe that his co-felons had a deadly weapon; AND
4) the ∆ had no reason to believe that his co-felons intended to do anything that was likely to result in death

Question 20

KIDNAPPING (NY)

In NY, what is 2d degree kidnapping (as well as 1st degree)?

Answer 20

————— 2nd degree kidnapping =
abducting someone

• ————– 1st degree kidnapping=
  1) 2nd degree kidnapping; AND
  2) one of the following:
  (i) ransom rqst;
  (ii) restraint for more than 12 hrs w/intent to rape/injure/rob; OR
  (iii) death of the victim
• ———— NOTE:
  1) if the victim is killed ACCIDENTALLY, it’s 2d degree felony murder

2) if the victim is killed INTENTIONALLY, it’s 1st degree felony murder

Question 21

MANSLAUGHTER (NY)

In NY, what is 1st degree manslaughter (along w/ 2d degree manslaughter)?

Answer 21

————- 1st degree manslaughter =
Mental state = Intentional

1) Extreme Emotional Disturbance (EED) manslaughter:
(EED) manslaughter is an intentional killing committed under the influence of a reasonable and extreme emotional disturbance

→ NOTE: EED manslaughter is an affirmative defense to 2nd degree Murder, which means that ∆ must prove by a preponderance of the evidence

OR

2)An intent to cause serious physical injury

————- 2d degree manslaughter =
Mental state = Recklessness

∆ is AWARE of and CONSCIOUSLY disregards a substantial and unjustifiable risk of death

Question 22

HOMICIDE (NY)

In NY, what are the various types of homicides?

Answer 22

1) 1st Degree Murder (intent to kill + aggravating factor)
2) 2nd Degree Murder (intent to kill)
3) 1st Degree Manslaughter (Intent to kill + EED)OR (intent to cause serious physical injury)
4) 2nd Degree Manslaughter (recklessness)
5) 1st Degree Vehicular Manslaughter (death caused by driving while intoxicated)
6) 2nd Degree Vehicular Manslaughter (death caused by driving while intoxicated + aggravating factor)
7) Criminally Negligent Homicide (criminal negligence)
8) 1st Degree Felony Murder (intentional killing)
9) 2nd Degree Felony Murder (accidental killing)

Question 23

1st DEGREE and 2nd DEGREE MURDER (NY)

In NY, what is 1st degree murder (along with 2d degree murder)?

Answer 23

MENTAL STATE = INTENTIONALLY

————- 1st degree murder =
A ≥ 18 yr old ∆ who…
1) intentionally kills + aggravating factor:
(i) victim is an ON-DUTY Law Enforcement Officer;
(ii) ∆ is murdering for hire;
(iii) killing is for for the purpose of witness intimidation;
(iv) ≥ 1 victim is same criminal trxn;
(v) ∆ commits felony murder where victim was
intentionally killed

***NOTE: premeditation and deliberation are IRRELEVANT in NY

———- 2nd degree murder =
A ∆ of ANY age who…

1) intentionally kills w/o an aggravating factor

OR

2) commits highly-reckless killing demonstrating depraved indifference to human life → typically demonstrated where there is either:
(i) More than one victim; OR
(ii) ONE victim and torture

OR

3) commits felony murder where a non-co-felon victim is unintentionally killed

Question 24

What is the Year-and-a-Day Rule?

NOTE: NY Distinction

Answer 24

The Year-and-a-Day Rule is a MINORITY rule that states that death MUST occur w/in a year + a day OF THE HOMICIDAL ACT

NY DISTINCTION: NY does NOT follow the Yr + a day rule; death may have occur at ANY time

Question 25

VEHICULAR MANSLAUGHTER (NY)

In NY, what is vehicular manslaughter?

Answer 25

2nd Degree Vehicular Manslaughter:
Causing the death of another as the result of driving while intoxicated

1st Degree Vehicular Manslaughter:
2nd Degree Vehicular Manslaughter PLUS AGGRAVATING FACTOR such as:
(i) a blood alcohol level of 0.18 or higher; or
(ii) the death of more than one victim