Criminal Law Flashcards
Merger- common law
If a person engaged in conduct constituting both a felony and a misdemeanor they could be convicted only of the felony, the misdemeanor merged into the felony.
Merger- modern law
Solicitation- cannot be convicted of solicitation and the other crime if the person does complete it. Once someone does agree, solicitation merges with the other crime.
Attempt- cannot be convicted of both the attempt and the completed crime
Conspiracy- does not merge with the completed offense
Under the MPC- you cannot be convicted of more than one inchoate offense (can’t be convicted of conspiracy and attempt)
Felony
generally punishable by death or imprisonment for more than one year. Other crimes are misdemeanors.
Essential elements of a crime
Crime almost always requires proof of
- physical act (actus reus)
- mental state (mens rea)
- concurrence of the act and mental state
A crime may also require proof of a result and causation (the act caused the harmful result)
Physical act (actus reus)
Defendant must have either performed a voluntary physical act or failed to act under circumstances imposing a legal duty to act. An act is a bodily movement.
Conduct that is not the product of one’s own volition, reflexive or convulsive acts, or act performed while unconscious or asleep does not qualify for criminal liability.
Omission as an act
Failure to act gives rise to liability only if:
- There is a legal duty to act
- Defendant has knowledge of the facts giving rise to the duty to act and
- It is reasonably possible to perform the duty
Legal duties can arise from
- statute
- contract
- relationship between the parties
- voluntary assumption of care
- defendant created the peril for the victim
Possession as an act
Criminal statutes that penalize possession of contraband generally require only that the defendant have control of the item for a long enough period to have an opportunity to terminate the possession. Possession does not need to be exclusive to one person and can also constructive (actual physical control does not have to be proved when contraband located in an area within defendant’s dominion and control)
Specific intent crimes
Crime requires doing of it with a specific intent or objective.
Solicitation Conspiracy Attempt First degree premeditated murder Assault Larceny Embezzlement False pretenses Robbery Burglary Forgery
Malice crimes
Common law murder and arson require reckless disregard of an obvious or high risk that the particular harmful result will occur.
Defenses to specific intent crimes do not apply.
General intent
Defendant has an awareness of all factors constituting the crime. Defendant aware they are acting in the proscribed way and that any required attendant circumstances exist. Sufficient to be aware of high likelihood that they will occur.
Jury can infer the require general intent merely fro the doing of the act.
All crimes that are not specific intent or malice crimes are general intent crimes, unless they qualify for strict liability.
Strict liability offenses
Does not require awareness of all of the factors constituting the crime, defendant can be found guilty from the mere fact that they committed the act.
Common examples are selling liquor to minors and statutory rape.
Model Penal Code intent
Purposely- conscious object is to engage in certain conduct or cause a certain result
Knowingly- aware that their conduct is of a particular nature or that certain circumstances exist. Aware of a high probability that these circumstances exist and deliberately avoid learning the truth.
Recklessly- consciously disregard a substantial and unjustifiable risk that circumstances exist or that a prohibited result will follow and this disregard constitutes a gross deviation from the standard of care that a reasonable person ould exercise in that situation.
Negligently- a person acts negligently when they fail to be aware of a substantial and unjustifiable risk, where such failure is a substantial deviation from the standard of care. Objective standard is used.
Vicarious liability
an offense in which a personal without personal fault may nevertheless be held liable for the criminal conduct of another (usually an employee). Trend is to limit this to regulatory crimes and limit punishment to fines.
Enterprise liability
Liability of corporations and associations
Corporation does not have the capacity to commit a crime at common law. Under modern statutes- corporation can be held liable when:
(1) act performed by agent of the corporation acting within the scope of their office or employment or
(2) a corporate agent high enough in the hierarchy to presume their acts reflect corporate policy
Transferred intent
Defendant can be held liable under the doctrine of transferred intent when they intend the harm that is actually caused but to a different victim or object. Defenses and mitigating circumstances may also be transferred. The doctrine applies to homicide, battery, and arson. Does not apply to attempt.
Common law accomplice liability
Principals in first degree- persons who actually engaged in the act or who caused 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- persons who, with knowledge that the other committed a felony, assisted them to escape arrest or punishment
Conviction of the principal was necessary for conviction of an accessory at common law but most jurisdictions have abandoned that
Modern statutes accomplice liability
Most jurisdictions have gotten rid of the principals and accessories distinctions. all parties to the crime can be found guilty of the principal offense.
Accessory after the fact who helps someone escape is still treated separately. Punishment for this crime usually bears no relationship to the principal offense.
Accomplice mental states
In order to be convicted of a substantive crime as an accomplice the accomplice must have
(1) intent to assist principal in commission of the crime
(2) intent that the principal commit the substantive offense.
When substantive offense has recklessness or negligence as its mens rea, most jurisdictions would hold that intent element is satisfied if:
(1) accomplice intended to facilitate the commission of the crime
(2) acted with recklessness or negligence (whichever required in the particular crime)
Accomplice liability- providing material
Most courts would hold that mere knowledge that a crime will result is not enough for accomplice liability, at least where aid given is the form of the sale of ordinary goods at ordinary prices.
Scope of accomplice liability
Accomplice is responsible for the crimes they did or counseled and any other crimes committee din the course of committing the crime contemplated to the same extent as the principal as long as the other crimes were probable or foreseeable.
Accomplice liability- withdrawal
A person who effectively withdraws from a crime before it is committed cannot be held guilty as an accomplice. Withdrawal must occur before the crime becomes unstoppable.
- if person encourages the crime they must repudiate the encouragement
- if aided by providing assistance they must do everything possible to attempt to neutralize the assistance (i.e. attempt to retrieve materials if materials given)
- notifying the police or taking other action to prevent the crime is also sufficient. A mere withdrawal without taking any additional action is not sufficient.
Conspiracy
(1) agreement between two or more persons
(2) intent to enter into the agreement
(3) intent by at least two persons to achieve the objective of the agreement.
The object of the conspiracy must be criminal or the achievement of the lawful object by criminal means. Majority of states require an overt act but mere preparation will suffice. Common law does not require an overt act.
Number of conspirators required
Modern unilateral approach- there can be a conspiracy if only one person has criminal intent
Common law bilateral approach- conspiracy requires at least two guilty minds or persons who are actually committed to the illicit plan.
Acquittal of some conspirators
Traditional view- acquittal of all persons with whom a defendant is alleged to have conspired precludes conviction of the remaining defendant. Acquittals show that there was no one with whom the defendant could have conspired.
In some jurisdictions, a conviction for conspiracy against one defendant is allowed to stand when the alleged co-conspirator is acquitted in a separate trial.
Liability for co-conspirators’ crimes
Acts and statements of co-conspirators are admissible against a conspirator only (1) if they were done or made in furtherance of the conspiracy and (2) the acts were foreseeable.
Defenses to conspiracy
Factual impossibility is not a defense to conspiracy.
Withdrawal from the conspiracy is not a defense to the conspiracy because the conspiracy is complete as soon as the agreement is made and an act in furtherance is performed. Withdrawal may be a defense to crimes committed in furtherance of the conspiracy including the target crime.
To withdraw:
Perform an affirmative act that notifies all members of the conspiracy of their withdrawal. Notice given in time for members to abandon plans. If provided assistance as an accomplice, try to neutralize their assistance.
Solicitation
Asking, inciting, counseling, advising, urging, or commanding another to commit a crime, with the intent that the person solicited commit the crime. Not necessary that the person solicited agree to commit the crime.
Not a defense that the person solicited is not convicted or that the offense solicited could not have been successful because of factual impossibility.
MPC allows renunciation if defendant prevents the commission of the crime by persuading the person solicited not to commit it.
If the person solicited commits the crime solicited, then both that person and the solicitor can be held liable for that crime. If the person solicited commits acts sufficient to be liable for attempt, both parties can be liable for attempt. If the person agrees but does not commit sufficient acts for attempt, both parties can be held liable for conspiracy.
Attempt
An act done with intent to commit a crime, that falls short of completing the crime.
requires (1) specific intent, (2) overt act in furtherance of the crime. The act must be beyond mere preparation for the offense.
Traditionally, most courts followed proximity test which requires that the act be dangerously close to successful completion of the crime. Today, most states and MPC require 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.
