Criminal Law Flashcards
Übersicht
I. General
II. Personal Crimes
III. Property crimes
IV. Inchoate crimes
V. Defenses
I. General
Allgemeines Schema
- mens rea (state of mind)
- actus reus
- concurrence
- causation
- lack of defense
I. General
- mens rea
Can manifest as general intent or specific intent
Dolus Arten:
- - Desire of result regardless of likelihood
- Knowledge that a result is substantially certain regardless of desire to bring it about
- Deliberately ignorant willful blindness
Sonstige:
- Negligence is objective. Recklessness is subjective, requiring awareness of a high degree of risk
- Criminal negligence requires more than tortious negligence unreasonable risk of injury to others
I. General
- actus reus
= The voluntary act oder omission to act where legal duty to
ct exists by, e.g., special relationship, contract, statute, creating the peril, voluntary assumption of duty
I. General
- Concurrence
Concurrence between mental state and act: Intent actuates Δ’s act, not the result
I. General
- Causation
Δ’s conduct must be the actual and proximate cause of the crime
a) Actual cause: Result wouldn’t have occurred “but for” Δ’s act, or Δ’s act was a substantial factor
b) Proximate cause: Result is a natural and probable consequence of the risk created by Δ’s act
P: An intervening act breaks chain of causation if independent of Δ’s act or outside the foreseeable sphere of risk created by Δ
I. General
SonderP: Transferred intent, bei welchen crimes?
Δ intends harm actually caused to a different victim. Intent transferred to new victim
Applies to:
1. homicide
2. battery
3. arson
(but not attempt)
I. General
SonderP: Unterscheidung GI vs. SI
GI: intend to do act, but not necessarily result = wanton or reckless (criminally negligent) misconduct may be sufficient (weil es nur auf die Handlung ankommt)
Bsp. Battery, Rape, Involuntary, manslaughter, Common law murder (without specific intent), Arson, Kidnapping , False imprisonment
Besonderheit defenses: involuntary intoxication, reasonable mistake of fact (in good faith)
SI: intent to accomplish result (act + objective) = wanton/reckless not sufficient
Bsp. Larceny, robbery, Burglary, Forgery, False pretenses, Embezzlement, Assault, 1° premeditated murder, Voluntary manslaughter, Inchoate crimes (solicitation, attempt, conspiracy, accomplice)
Besonderheit defenses: zusätzlich auch voluntary intoxication, zusätzlich auch unreasonable mistake of fact (in good faith)
II. Personal crimes
Übersicht
- Homicide
- Battery
- Assault
- Kidnapping
- False Imprisonment
- Rape
II. Personal crimes
- Homicide: allgemeines und Arten
Allgemein:
- Murder at common law is the unlawful killing (neither justifiable nor excusable) of another human being with malice aforethought. “Malice” may be express or implied, and is determined by intent
- Causation: Δ’s act must be cause in fact (“but for”) and proximate cause of victim’s death
aa) Proximate cause if the result is natural and probable cause of act, even if unanticipated, An act that hastens an inevitable result is still a proximate cause
bb) Simultaneous acts of 2+ people may be independently sufficient causes of a result
cc) Acts of an innocent agent can be attributable to the principal
- One cannot give legally valid consent to death or serious bodily injury
Arten: Statutory modifications of common law:
1. First degree (1°) murder
2. Second degree (2°) (common law) murder
3. Felony murder (FM)
4. Manslaughter (MS)
5. Misfeasance (involuntary homicide)
II. Personal crimes
- Homicide: First degree murder
= Express malice is shown by any length of premeditation and deliberation before the unlawful taking of a human life
- Premeditation: Reflection on intent to kill (“Should I kill this person?”)
- Deliberation: Decision to kill in cool and dispassionate manner (“What about the consequences?”)
- If killing is proximately caused during or attempt of an enumerated or inherently dangerous felony (IDF) (BARRK: burglary, arson, robbery, rape, kidnapping), it is 1° felony murder (see below)
- Includes killing by poison, torture, or lying in wait
- Voluntary intoxication (defense to SI crimes) mitigates murder from 1° to 2°, not to manslaughter
II. Personal crimes
- Homicide: Second degree murder
= Malice is implied where there is intent to kill (without premeditation), intent to cause serious bodily harm, reckless indifference to human life (depraved heart, extreme negligence), OR intent to commit an inherently dangerous felony
- Includes felony murder where the felony is not BARRK
- Use of a deadly weapon allows inference of intent to kill
- Reckless indifference to human life sufficient (no SI). So voluntary intoxication is NOT a defense
II. Personal crimes
- Homicide: Felony murder
= Any death caused in commission or attempted commission (substantial step toward completion) of a felony (such as BARRK) is 1° felony murder. Malice is implied from intent to commit the underlying felony. Resulting death must be a foreseeable result of the felony, but distinct from the felony
- Felony starts when Δ could be convicted of its attempt, ends when Δ reaches “temporary safety”, aber Δ may still be guilty if the act that kills occurs before/during flight from scene and V dies after flight, if there is a close causal relationship between underlying felony and death
- Co-felon liability: When killing occurs during an IDF, one is liable for killing by an accomplice if the criminal acts could foreseeably result in death, and death occurs in furtherance of the felony
a) Proximate cause theory (less lenient): All co-felons are liable for any death (caused by anyone) proximately caused by Δ’s acts in furtherance of the felony
b) Agency theory (more lenient) (default/majority rule): FM only if a killing is done by a co-felon (an agent). EXCEPTION: Victim used as shield or forced into danger → FM
aa) If bystander accidentally killed by PO during shootout, FM under proximate cause theory, likely no FM under agency theory
bb) If a felon intentionally kills a co-felon, not a “foreseeable” result, likely no FM
c) Redline limitation (co-felon death): In most jx, Δ not liable for FM if killing is justifiable or excusable, i.e., if police, victim, or bystander kills a co-felon, or co-felon kills self - A valid defense to the underlying felony negates FM
II. Personal crimes
- Homicide: Manslaughter
= is an unlawful killing without malice (intent may still be there)
a) Voluntary MS: Intentional killing resulting from adequate provocation (uncooled heat of passion)
a) Adequate provocation is objective + subjective: Enough to excite sudden, uncontrollable passion such that a reasonable person would lose self-control (e.g., moment of discovering infidelity, threat of deadly force) + Δ was actually provoked
bb) Cooling off is objective + subjective: Not enough time between Δ’s heat of passion and the killing for a reasonable person provoked in same way to cool off + Δ did not cool off
cc) Murder may be REDUCED to MS via imperfect self-defense: Δ had honest but unreasonable belief that deadly force was necessary (doesn’t qualify as full self-defense), or Δ was at fault in starting fight
b) Involuntary MS: Unintentional killing caused by criminal negligence (recklessness under MPC) or foreseeably caused during a misdemeanor manslaughter (misdemeanor or non-IDF felony)
II. Personal crimes
- Homicide: Misfeasance
= involuntary homicide: One with a legal duty to act may be guilty of murder for failing to act
a) Murder if intent to kill arises from desiring or knowing of a substantial likelihood of death
b) Manslaughter if death is not specifically desired, even if Δ knew or should have known that V might get hurt
II. Personal crimes
- Battery
= the unlawful application of force to the person of another resulting in bodily injury or offensive touching
a) The act must be intentional, reckless, or criminally negligent. Force may be indirect (e.g., siccing a dog)
b) Simple battery may rise to aggravated battery (a felony) where Δ causes serious bodily injury, Δ uses a deadly weapon (used in intended manner), or V is specially protected (e.g., child, woman, police)
c) DEFENSES: valid consent (no coercion or fraud), defense (self/others, proportional force), prevent crime
felony
a serious crime that can be punished by more than one year in prison (= Pendant zum Verbrechen)
II. Personal crimes
- Assault
a) “Attempted battery” assault: Δ intended to commit battery, no need to finish (V need not be aware)
b) “Fear of battery” assault: Δ intentionally put V in reasonable apprehension of imminent bodily harm
c) Simple assault may rise to aggravated assault (a felony) where Δ acts with intent to commit a violent crime (rape or murder), Δ uses a dangerous weapon, or V is specially protected
II. Personal crimes
- Kidnapping
= Unlawful confinement of V w/o consent via movement of V or concealment of V in a “secret” place
a) Confinement: V is compelled to go where he doesn’t wish to go or remain where he doesn’t wish to remain
b) Children and the mentally disabled lack legal capacity to consent, so their consent is irrelevant
II. Personal crimes
- False imprisonment
= Unlawful confinement of a person without consent. Confinement must “interfere substantially” with V’s liberty. Not confinement (or FI) to prevent a person from going somewhere, if alternate route is available
II. Personal crimes
- Rape
mM: At common law, unlawful carnal knowledge (sexual intercourse)( of a woman by a man not her husband without effective consent.
hM: Modernly, there is no marital exception or gender restriction. Slightest penetration is sufficient
a) Lack of effective consent: Intercourse is by force or threat of force, V is incapable of consenting (has mental condition, unconscious, intoxicated), or V is fraudulently caused to believe that it is not intercourse
III. Property crimes
Allgemeines und Übersicht
Allgemeines:
- An honest mistake negates required intent, no matter how unreasonable (though jury is unlikely to believe)
- Possession is physical control and the right to exclude others
- Custody is physical entrustment subordinate to the right of others
Übersicht:
1. Theft
a) Larceny
b) Embezzlement
c) Larceny by trick
d) False pretenses
e) Recipt of stolen property
2. Robbery = larceny +
3. Extortion
4. Forgery
5. Burglary
6. Arson
III. Property crimes
- Theft: a) Larceny
**1. Trespassory (without consent)
2. taking and
3. carrying away of the
4. personal property
5. of another
6. with the intent to permanently (or for an unreasonable length of time) deprive the owner **
**7. DEFENSES **
(1) Intent to return: Δ takes property with intent to return unconditionally w/in reasonable time, UNLESS Δ changes his mind and decides not to return it (“continuing trespass”)
(2) Claim of right: Δ takes property as repayment of debt, done openly with explanation
(3) Mistake: If honest mistake. Such mistake may be unreasonable
- (2) Taking of personal property capable of possession. Realty and fixtures (e.g., crops) cannot be the subject of larceny, unless severed (harvested crops). Gas & electricity considered pers. prop.
- (3) An innocent agent’s act of carrying away is ascribed to the principal
- (4) + (5) Larceny is a crime against possession of property (can steal from a thief), - - Wrongfully obtained services do not give rise to larceny
- Co-owned property (partnership) is not subject to larceny or embezzlement by a co-owner
- (6) Intent to permanently deprive required at the time of taking
- NOT subject to larceny: Abandoned property (because no deprivation of owner), EXCEPT…
a) Lost property, if finder intends to permanently deprive its owner and knows, or has reason to believe he can learn, the owner’s identity at moment of possession
b) Misdelivered property, if recipient realizes mistake and decides to steal at time of delivery
III. Property crimes
- Theft: Embezzlement
1. Intentional fraudulent conversion or misappropriation of another’s personal property by
2. one in lawful possession (e.g., entrusted, having custody)
3. Δ obtains title by conversion, a serious interference with owner’s rights. No movement required
4. DEFENSES
(1) Intent to restore the exact same property obtained (not an equivalent property)
(2) Claim of right: Belief that collecting debt negates intent
III. Property crimes
- Theft: c) Larceny by trick
- Obtaining custody or possession of another’s personal property
- by a fraudulent representation by Δ with intent to defraud the other (e.g., misrepresentation of fact, false promises, deceit)
- Owner is the one to give possession to Δ with consent, rather than Δ physically taking it (quasi wie Abgrenzung Betrug/DIebstahl, larceny Wegnahme, by trick Weggabe)
III. Property crimes
- Theft: d) False pretenses
- Misrepresentation of material past/present fact (not opinions) that prompts V
- to pass title(hier liegt der Untershied zu larceny by trick, wo es um possession geht, hier um title) to his property
- to Δ who knows the misrepresentation is false and intends to defraud
(model penal code: Any false representation is sufficient, including false promise to perform in future) - DEFENSES: intent to restore same property, claim of right (wie bei embezzlement)
III, Property crimes
- Theft: e) Receipt of stolen property
1. Δ receives possession of stolen personal property (Once police intercepts stolen property, it loses its character as stolen property, but Δ may be guilty of attempted receipt of stolen property if he intended to receive it, believing it was stolen)
2. where Δ knew or believed it was stolen by another (May infer knowledge or belief from abnormally low price (e.g., 1/4 cheaper))
3. with the intent to deprive the owner of his interest in the property
4. DEFENSES (negate belief of source): mistake of fact, claim of right
III. Property crimes
- Robbery
- Taking personal property of another from the person or presence of person (area of control or vicinity)
- with intent to permanently deprive by force or threat of immediate physical injury or death
(Force or threat of force (actual fear) can be made to relatives, companions, or homes. Force may be applied via sedatives
Aggravated robbery: Robbery with a deadly weapon (or creation of such belief, e.g., with empty gun)
III. Property crimes
- Extortion
= Obtaining property by threat of harm or exposing information (need not be immediate or in V’s presence)
Also known as blackmail. Claim of right is NOT a defense
III. Property crimes
- Forgery
= Creating or altering a writing with apparent legal significance so that it is false, with intent to defraud
- Examples: convincing another to sign a document he doesn’t realize he’s signing, altering a document
- Not merely containing an inaccuracy or misrepresentation on a document that is itself otherwise genuine
Uttering: Offering a known forgery w/ intent to defraud. If successful, Δ may liable for false pretenses
III. Property crimes
- Burglary
= früher: Breaking and entering of the dwelling house of another at nighttime with intent to commit a felony therein, Modernly: expanded to include all kinds of structures (including cars) at any time (including daytime)
- Even a slight application of force is considered “breaking” (e.g., slightly opening a window)
- Breaking into a subarea (e.g., closet) counts, but breaking to get out is NOT a breaking
- Constructive breaking: Gaining entry by means of a fraud, misrepresentation of identity, or threat
- Placing a body part (or inanimate extension) inside structure to do the felony qualifies as “entering”
- Intent to commit felony must be present at time of entry. Later-acquired intent not sufficient
III. Property crimes
- Arson
= Malicious burning of the dwelling house (modernly, any structure) possessed by another
- Malice = intent to burn the structure or reckless disregard of a high risk that the structure will burn
- “Charring” is required; “blackening” or “scorching” is insufficient
IV. Inchoate crimes
Übersicht
= imperfect, early stage, Under merger doctrine, Δ can be convicted of either an inchoate crime or merged (completed) crime but not both
- Solicitation
- Attempt
- Conspiracy
- Accomplice liability
IV. Inchoate crimes
- Solicitation
= Asking, inducing, urging, or otherwise encouraging another to commit an actual crime (no attempt)
- If solicited person commits sufficient act for attempt, both parties may be liable for attempt
- If solicited person agrees to commit crime, both parties may be liable for conspiracy
DEFENSE: Renunciation (MPC) if Δ prevents commission of crime. Withdrawal usually NOT a defense
IV. Inchoate crimes
- Attempt
- An intent to bring about a criminal outcome
- an act beyond mere preparation in furtherance of that intent (Requires a significant, overt act more than mere preparation (model penal code: “substantial step”)
- DEFENSES
(1) Abandonment – CL: no defense if attempt is complete. MPC: if voluntary, complete abandonment
(2) Legal impossibility: Attempt to do a legal act that was thought to be a crime but is no crime
(3) NOT a defense: Factual impossibility (crime cannot be completed because of physical or factual condition unknown to Δ)
IV. Inchoate crimes
- Conspiracy
- an agreement between 2+ persons to commit a crime
- an intent to enter into such an agreement, and
- an intent to achieve the same objective of the agreement (“meeting of guilty minds”)
- Modernly, an overt act in furtherance of the conspiracy is required. Mere preparation will suffice
- DEFENSE:
(1) Withdrawal
a) CL: May only cut off further liability if withdrawal is timely communicated to co conspirators
b) MPC: Renouncing party must give timely notice to all members + affirmatively thwart conspiracy
(2) NOT a defense: Factual impossibility
- A mere tacit understanding will suffice. No express words or awareness of other conspirators needed
a) At CL (majority), no one-person conspiracies—one could not conspire with one who feigns agreement
b) MPC applies unilateral agreement: Δ can be guilty of conspiracy regardless of another’s intent - No merger: Does not merge with completed crime—Δ may be convicted of both conspiracy and the crime
- Pinkerton doctrine: Each conspirator is liable for the crimes of all other co conspirators where the crimes were a foreseeable outgrowth of the conspiracy + committed in furtherance of the conspiratorial goal
- Wharton rule: Where 2+ people needed to commit offense, no conspiracy unless the agreement involves another not essential to the crime, e.g., guilty of dueling, not conspiracy to duel, unless a 3rd person existed
Achtung: A member of a protected class cannot be a co-conspirator or an accomplice to commit a crime designed to protect
that class (e.g., statutory rape, ransom to kidnapper, blackmail money to extortionist
IV. Inchoate crimes
- Accomplice liability
Δ is liable as an accomplice if
1. he aided or encouraged (or omitted action with duty to act) the principal’s commission of a crime
2. with intent to encourage the principal commit the crime
3. DEFENSE: Withdrawal
a) CL: Withdraw w/ timely notice to principal + nullify prior assistance → can cut off future liability
b) MPC: 1) Render prior assistance ineffective, 2) provide police with timely warning, or 3) make a proper effort to prevent the perpetrator from committing the crime
4. RF: An accomplice is liable to same extent as principal for the crime counseled and for any other crimes by the principal that were probable or foreseeable (objectively natural consequences of the crime assisted)
a) Principal in the 1st degree performs the criminal act or causes an innocent agent to do so
b) Principal in the 2nd degree aids or abets and is present at the commission of criminal act
c) An accessory before the fact aids or abets but is not present at the commission of criminal act
d) Accessory after the fact knows of felony and hinders capture of felon (e.g., harboring, obstructing): Not an “accomplice.” Can also be liable for compounding a crime (hindering capture for payment)
Examples: Selling ordinary goods at higher price for buyer’s criminal purpose may imply intent to aid. Mere presence w/o “aiding and abetting” is insufficient, but saying “kill him” is sufficient encouragement
Achtung: A member of a protected class cannot be a co-conspirator or an accomplice to commit a crime designed to protect
that class (e.g., statutory rape, ransom to kidnapper, blackmail money to extortionist
V. Defenses
Übersicht
Achtung Disclaimer: Affirmative defenses must be shown by preponderance (at least). BUT putting any burden on Δ to disprove an element of an offense is reversible error. When the question is an element of a crime, burden always rests with the state to prove beyond a reasonable doubt that Δ is guilty of each element of crime charged
A. Excuses
1. Mistake of fact
2. Mistake of law
3. Intoxication
4. Insanity
5. Necessity
6. DUress
7. Entrapment
B. Justifications
1. Self-defense
2. Defense of others
3. Defense of property
4. Crime/felony prevention
5. Arrest
V. Defenses
A. 1. Mistake of fact // 2. Mistake of law
1. Mistake of fact: Mistake or ignorance of fact where Δ lacked the state of mind required for the crime
a) SI crimes: any mistake (reasonable/unreasonable)
b) GI crimes: reasonable mistakes only
aber: For strict liability, mistake is not a defense (does not matter if Δ lacked the required state of mind)
2. Mistake of law: Generally, ignorance of law is no defense. May be a defense to crimes requiring knowledge
V. Defensees
A. 3. Intoxication
a) SI crimes: Any intoxication (involuntary/voluntary) before forming the specific intent
b) For GI crimes: Involuntary intoxication only
V. Defenses
A. 4. Insanity
Δ has the burden of raising insanity defense. Generally, must prove by preponderance of evidence
a) M’Naghten rule: Δ entitled to acquittal if a mental disease or defect of reason caused Δ at the time of offense to not know the wrongfulness of or not understand the nature and quality of his actions
b) Irresistible impulse: Δ is not guilty where a mental defect kept him from controlling his conduct
c) MPC test: As a result of mental disease or defect, Δ lacked substantial capacity to appreciate the criminality of the conduct or conform his conduct to requirements of law (mix of above two)
d) Durham test: Unlawful act would not have been committed but for the mental defect or disease
e) Involuntary intoxication may be treated as mental illness; psychopathy & sociopathy are often not
f) Partial defense – diminished capacity: As a result of a mental defect short of insanity, Δ did not have the particular mental state required
V. Defenses
A. 5. Necessity
Δ reasonably believed (objectively—good-faith belief is insufficient) that commission of the crime was necessary to avoid an imminent and greater injury to society than that involved in the crime
Achtung: Not a defense to killing a person or if Δ created the situation requiring the necessity
V. Defenses
A. 6. Duress
Δ reasonably believed that the only way to avoid threat of imminent death or great bodily harm by a human (cf. necessity where threat may be non-human) on him or family member is to commit the crime
Achtung: Not a defense to killing a person
V. Defenses
A. 7. Entrapment
Δ must show that
1. the criminal design originated with law enforcement agents and
2. Δ was not predisposed to commit the criminal act prior to first being approached by agents
3. No entrapment if by private citizen or if mere opportunity or material for crime provided by agent
V. Defenses
B. 1. Self-defense
- If Δ has a reasonable belief
- that he is in imminent danger of unlawful bodily harm
- he may use proportional force (believed to be reasonably necessary) to prevent such harm
- UNLESS he is the initial aggressor
- This is a defense to murder only if threatened with death or great bodily harm
- The aggressor can regain the right of self-defense upon 1) complete withdrawal perceived by the other party or 2) escalation of force by the victim of initial aggression
- Imperfect self-defense: Honest but unreasonable belief that it was necessary to respond with unreasonable (deadly) force, or being the initial aggressor, can allow imperfect claim of self-defense (Could mitigate a murder conviction to manslaughter)
V. Defenses
B. 2. Defense of others
If Δ reasonably believes another person is being unlawfully attacked, Δ is entitled to
defend that person from attack to the same extent that person would be entitled to defend himself
- Deadly force allowed only if threatened with death or great bodily harm
V. Defenses
B. 3. Defense of property
- Reasonable, non-deadly force is justified
- in defending property from theft, destruction, or trespass
- where Δ has a reasonable belief that the property is in immediate danger
- and no greater force is used (deadly force may not be used to merely defend property)
- Felon EXCEPTION: Deadly force may be used when defender reasonably believes an entry will be made or attempted in his dwelling by one intending to commit felony therein
V. Defenses
B. 4. Crime/felony prevention
One is privileged to use reasonable force to prevent a felony, and may use deadly
force to prevent a “dangerous felony” (BARRK) involving risk to human life
V. Defenses
B. 5. Arrest
- Police officers may use reasonable force to make an arrest
- Deadly force is reasonable only to apprehend or prevent the escape of a felon who poses a threat of serious bodily harm to the officer or others
