Criminal Law Flashcards
Rule for Merger for Crimes
No Mergers Generally but Solicitation and/or Attempt are exceptions.
Elements of a Crime
- Physical Act (Actus Reus), 2. Mental Act (Mens Rea), 3. Concurrence of Physical and Mental
Define “Physical Act”
A voluntary physical act or failure to act - a bodily movement.
Criminal Liability for Involuntary Actions
No liability for involuntary actions (Acts not of own volition, Reflective or convulsive acts, Asleep or unconscious, Epilepsy, etc.)
BUT… culpability for knowingly having epilepsy and driving killing someone; first voluntary act of driving with knowledge of risk to life and safety.
Rules of Duty to Rescue
No Duty to Rescue but if you start you must finish.
Legal Duty arises from:
- Statute or Contract
- Relationship
- Voluntary assumption or defendant created duty
Omission to Act
Culpability when there is a duty to act.
A legal duty arises when:
- specific duty to act imposed by law
- defendant knows the facts given rise to the duty
- reasonably possible to perform the duty
Mens Rea - Four types (categories)
- Specific Intent
- General Intent
- Malice (reckless disregard of obvious harm)
- Strict Liability (no intent)
Attempted Battery vs. Assault
Attempted Battery is a specific intent crime (all attempt crimes are specific intent) and assault is a general intent crime.
Specific Intent Defenses
All General Defenses plus:
Mistake of Fact
Voluntary Intoxication (diminished capacity)
Specific Intent definition
Objective intent to commit the act.
General Intent
Defendant need only be generally aware of the factors constitute the crimes - not need a specific result.
General Intent Defenses
All General Defenses:
- Involuntary intoxication (voluntary not allowed)
-Mistake of Fact (Mistake of law not allowed)
-Self-Defense
-Insanity
-Entrapment
- Legal impossibility
General Defenses
- Involuntary intoxication (voluntary not allowed)
-Mistake of Fact (Mistake of law not allowed)
-Self-Defense
-Insanity
-Entrapment
Legal impossibility
Necessity
Malice
Requires only the reckless disregard of an obvious risk of harm (murder, arson, etc.)
Malice Defenses
All General Defenses and
- Voluntary intoxication (can show lack of mens rea)
- Reasonable mistake of fact
Strict Liability
A public welfare offense where state of mind is irrelevant.
Strict Liability Defenses
- Involuntary Intoxication
- Insanity
- Infancy
- Duress
Best defenses: Argue law is too vague or requires a mens rea
BUT NOT: Mistake of Fact or Consent (rarely valid)
Transferred intent
For intent crimes (felony murder is an exception)
Intent may be transferred from the intended victim of the crime to the actual victim.
NOTE: Defendant is guilty of two crimes - the completed crime and the intended crime.
The Inchoate Offenses
Solicitation, Attempt, Conspiracy
Solicitation
1) When one requires, commands, encourages or entices another
2) to commit a crime
3) with specific intent that the crime be committed by the solicitee
The solicitation of another to commit a crime with specific intent for the crime. There is no overt act required, so withdrawing is generally not a defense. If the solicited agrees to commit the crime solicitation merges with conspiracy, and no one may be convicted of both.
Solicitation Considerations
No overt act required (thus withdrawal unlikely a defense)
A successful solicitation merges into conspiracy (thus a conspiracy started with solicitation)
No communications received by the solicitee?
Common Law: No crime
Modernly: Crime occurred
“Attempt”
1) Performance of an act, 2) done with intent to commit a crime, and 3) an affirmative act or substantial step (alternate standard) in furtherance of the intent to commit the crime. 4) that is beyond mere preparation
“Attempt” is a specific intent crime ALWAYS. Even when the crime they are trying to commit is a general intent crime
Common Law: An act dangerously close to success
Modern view: Substantial Step and strongly connected to the criminal purpose
Overt Act defined
The act must be dangerously close to success is the common law rule. Mere preparation is not enough. The majority of states and the MPC state that conduct that is a substantial step toward the crime and strongly demonstrate a criminal purpose.
Inchoate Crimes Analysis
Solicitation
Intent (specific)
Withdrawal
Merger
Conspiracy:
Meeting of minds
overt act
withdrawal
merger
Attempt
Intent (specific)
Dangerously close to success
Withdrawal
Merger
*Defenses when/where appropriate
“Attempt” defenses
- Withdrawal (generally not applicable)
-Legal Impossibility
Legal Impossibility Definition
A claim that it is impossible to complete the crime because of some circumstances beyond the defendant’s control.
Compare to Factual impossibility - not a defense
Conspiracy
An agreement between two or more people to commit either an unlawful act or a lawful act by unlawful means.
Majority requires an overt act
Specific intent is required to enter into the requisite agreement and to achieve the unlawful purpose. A conspiracy requires at least two (2) people have the meeting of the minds regarding their specific intent to agree and pursue the objective. States following the Wharton Rule required at least one more person than is necessary for the crime be involved for the conspiracy conviction.
Conspiracy Elements
1) Specific intent to enter an agreement 2) to achieve an unlawful objective.
Modernly: An overt act by any one conspirator.
Common Law: All you need is an agreement.
Must have meeting of the minds - thus no conspiracy for undercover agents at common law.
Merger: Does not merge
Wharton Rule
Where two or more people are necessary for the commission of the substantive offense (e.g. adultery), there is no crime of conspiracy unless more parties participate in the agreement than are necessary for the crime.
Pinkerton Rule
Conspirators are agents of one another.
Unilateral conspiracy
Allowed under Model Penal code, such that a party who agrees to commit the unlawful act can be convicted of conspiracy even if the other party lacks intent or does not agree to the conspiracy.
Overt Act - Conspiracy
Act in furtherance of a conspiracy. MAJORITY: Agreement, plus an overt act. MINORITY: Agreement itself is sufficient for liability (common law)
Independent Conspiracies
Under Chain and Wheel conspiracies any independent conspiracy will not make other parties liable unless they are connected by the same party (pg 53)
Conspiracy Withdrawal
May be a defense But 1) must inform ALL co-conspirators of withdrawal and 2) notice is given when there is time for others to withdrawal.
Will not alleviate liability for foreseeable past crimes to further conspiracy.
Factual Impossibility
The claim that it was impossible to complete the crime because of some circumstances is not a defense to conspiracy or attempt.
Legal impossibility: Its not illegal so there is no crime. This is a defense.
Battery
1) An unlawful application of force 2) to the person of another 3) resulting in either bodily injury or an offensive touching. Need not be intentional or applied directly.
Assault
Two theories:
1) An attempted to commit a battery (specific intent)
2) An intentional creation of reasonable apprehension in victim of an immediate bodily harm (general intent)
Mayhem
Common Law: Dismemberment or disablement of a body part
Modern: Includes permanent disfigurement.
Others: Treated just as an aggravated battery rather than a separate offense.
Rape
Unlawful carnal knowledge of a woman by a man, not her husband, without her effective consent (general intent).
Slightest penetration completes crime of rape.
Statutory Rape
Sex with a minor (strict liability)
Consent or Mistake of Fact (age) - not defenses
False Imprisonment
Unlawful confinement of a person wihtout valid consent.
Model penal code requires confinement that substantially interferes with victims liberty
Kidnapping
Unlawful confinement of a person that involves either:
1) some movement of the victim or
2) concealment of the victim in a secret place
Larceny
Taking and carrying away personal property of another without consent and with intent to deprive permanently at time of taking
- Picking up is enough
- intent to deprive must be at taking
- person taking only gets possession, not title.
- larceny by trick - obtaining possession using false representations
Forgery
Making or altering a writing so that it is false (must have intent to defraud)
Uttering
Offering as genuine a forged instrument with intent to defraud.
Extortion
Blackmail; future use/threat of force
- Do not have to take anything
- threats of future harm count
Receiving stolen property
1) Receiving possession of stolen property 2) with knowledge that it was stolen
NOTE: Knowledge is the mental state for most possession crimes
Malicious Mischief
1) Destroying or Damaging someone else’s property 2) with malice
Embezzlement
Person with lawful possession engages in illegal conversion of personal property of another.
Person taking it only gets possession, not title.
Robbery
Taking and carrying away personal property of another without consent by force or fear.
Person OR presence: Very broad
Fear: Threat of imminent harm, can’t be future harm
False Pretenses
Conveyance of title through means of a false promise.
False promise: Must be present or past, not future promise.
Person taking gets title: Title = transfer property without intent to get it back
Four types of Homicide
First Degree, Second Degree (common law murder), involuntary manslaughter and voluntary manslaughter
All murders are second degree unless the prosecution can prove deliberation and premeditation
First Degree Murder
First Degree murder occurs when the defendant possesses 1) a specific intent to kill that was also 2) premediated and 3) deliberate
Intentional Killing
Predmediation
Deliberation
Defenses
Premeditation
Requires merely a moment’s reflection upon the killing
Deliberation
the comiting of the killing in a cool and dispassionate manner
First-Degree Felony Murder Rule Summary
A person is guilty of first-degree felony murder if she/he kills another person during the commission of an enumerated felony (BARRK)
Burglary, Arson, Rape, Robbery, and Kidnapping. Malice is implied by the defendant’s intent to commit the felony.
Common Law Murder
Second-Degree felony murder; 1) the act of homicide, 2) which is the actual and proximate cause of the victim’s death and 3) malice.
Act
Cause
Malice x 4
Defenses
Types of Malice Murder
Intent to kill, Intent to inflict great bodily injury, reckless indifference to an unjustifiably high risk to human life, felony-murder rule.
Malice is a substitute for Specific intent
Malice Murder Causation
Cause in Fact and Proximate cause
Definition for murder
Murder is the killing of another with malice aforethought.
Felony Murder Rule
Any death caused during the commission of, or in the attempt to commit a felony is murder. Malice is implied by the defendant’s intent to commit a felony.
Reckless Indifference
Malice aforethought is implied if a person’s conduct manifests an extreme indifference to the value of human life.
Also known as an abandoned, malignant, or depraved heart murder.
Felony Murder Essay Headings
- Defendant must be guilty of the underlying felony
- Inherently dangerous felony (BARKK - Burglary, Arson, Robbery, Mayhem Kidnapping) - Distinct from the killing (independent of the felony)
- Foreseeability
-During the Commission of the felony
- Temporal and geographical proximity
Malice is implied by the defendant’s intent to commit a felony.
Felony Murder Rule Limitations
Third-party killings:
- Most jurisdictions; Defendant is not liable for felony murder when a co-felon is killed.
- Killing by a non-felon Agency Theory; the defendant is not liable for the death of a third party or innocent bystander unless the death is caused by the defendant or his or her agent (accomplice).
- Proximate Cause theory; defendant may be liable.
Voluntary Manslaughter
An intentional killing will be reduced to voluntary manslaughter by a provision that arouses a killing in the heat of passion.
1) A provocation that would arouse intense passion in the mind of an ordinary person; 2) the defendant in fact was provoked; 3) no reasonable time for the defendant to cool between the provocation and the killing, and 4) the defendant in fact did not cool.
*** Words alone do not constitute adequate provocation. Insulting words may, however, in some jurisdictions.
Involuntary Manslaughter
A murder will be reduced to involuntary manslaughter if it was 1) committed with criminal negligence (grossly negligent), or 2) during the commission of a misdemeanor.
Criminal Negligence
A person who kills another recklessly is guilty of manslaughter. Criminal negligence involuntary manslaughter occurs when the defendant was aware of the risk of death.
Misdemeanor-Manslaughter Rule
An accidental homicide that occurs during the commission of an unlawful act not amounting to a felony (or, at least, not amounting to a felony that would trigger the felony murder rule) constitutes involuntary manslaughter.
Search of an Item
Under the 4th Amendment which is applicable to the states under the 14th Amendment, there can be no unreasonable search or seizure. In order to bring a suit for a 14th Amendment violation the claimant must be establish 1) government conduct and 2) standing.
Burglary
Breaking and entering of a dwelling house, of another, at night with intent to commit a felony inside
- Breaking (actual or constructive however slight).
- Going through an open door not enough but opening an interior door would work.
- Entering - anytime body crosses at all
- Dwelling house: A place where regularly sleep; not barns etc.
- Night: Only at common law, modern situations eliminate
- Intent to commit felony inside:
* Must exsist at time of breaking and entering