Criminal Law Flashcards
If examiners do not tell you whether the common law or a statutory version of the crime applies, what does that usually mean?
Specific elements of the crime are not relevant to the question
When does a state have jurisdiciton over a criminal matter?
1) Act constituting an element of the offense was committed in the state; 2) Act outside the state caused a result in the state; 3) The crime involved the neglect of a duty imposed by the law of the state; 4) There was an attempt or conspiract outside the state plus an act inside the state; 5) There was an attempt or comspiracy inside the state to commit an offense outside the state
Elements of a criminal statute
1) Fair warning; 2) No arbitrary and discriminatory enforcement
Fair warning defined
A person of ordinary intelligence must be able to discern what is prohibited
Merger - Common Law
Common Law - Person convicted of a felony and misdemeanor - Misdemeanor merges into Felony
Merger - Modern Law
No longer any merger except the one who solicits another to commit a crime may not be convicted of both the solicitation/attempt and the completed crime. NOT CONSPIRACY - MBE; DOES MERGE - Wisconsin
Elements of a crime
1) Proof of a physical act (actus reus) 2) Mental state (mens rea) 3) Concurrenct of the act and mental state. 4) May require proof of a result and causation
Physical Act - Actus Reus
Voluntary physical act or failure to act. Act is a bodily movement
Ommission as an “Act”
Failure to act gives rise to liability only if: 1) There is a specific duty to act imposed by law; 2) The defendant has knowledge of the facts giving rise to the duty to act; and 3) It is reasonably possible to perform the duty
Possession as an “Act”
Only require that the Defendant have control of the item for a long enough period to have an opportunity to terminate the possession. Possession may be constructive - Actual physical control need not be proved when the contraband is located in an area within the D’s “dominion and control.” D must be aware of his possession, but not the illegality
Mental State - Mens Rea (types of)
1) Specific Intent; 2) Malice - Common Law murder and Arson; 3) General Intent; 4) Strict Liability; 5) Model Penal Code; 6) Vicarious Liability; and 7) Enterprise Liability
Specific Intent
1) Solicitation; 2) Attempt; 3) Conspiracy; 4) First degree premeditated murder; 5) Assault; 6) Larceny and Robbery; 7) Burglary; 8) Forgery; 9) False Pretenses; 10) Embezzlement
Malice
A reckless disregard of an obvious or high risk that the particular result will occur. Defenses to Specific intent do not apply to malice crimes
Motive vs General Intent
Motive - Reason of explanation for the crime; General Intent- Intent to commit the crime
Strict Liability
Does not require awareness of all the factors constituting the crime. (stat rape, selling booze to kids)
Model Penal Code Analysis of Fault
1) Purposely; 2) Knowingly; 3) Recklessly; 4) Negligence
MPC - Purposely
Conscious objective is to engage in certain conduct or cause certain result
MPC - Knowingly
Aware conduct is of a particular nature, or knows that his conduct will necessarily or very likely cause a particular result. (satisfies willful conduct statutes)
MPC - Recklessly
Knows of a substantial and unjustifiable risk and consciously disregards it. Mere realization of risk is not enough. (lowest level of criminal liabiltiy)
MPC - Negligence
Fails to be aware of a substantial and unjustifiable risk, where such failure is a substantil deviation from the standard of care.
Vicarious Liability Crimes - Limitation
Regulatory creims and punishment is limited to fines
Enterprise Liability - Modern Statutes
Corporations may be held liable for an act performed by 1) An agent of the corp acting within the scope of his office or employment; or 2) A corporate agent high enough in hierarchy to presu,e his acts reflect corporate policy
D is driving to V’s house to kill him, accidentally runs V over before reach the house
Mental fault is not concurrent with act. NO MURDER. ALWAYS READ THE QUESTION
Accomplice Liability Classifications - Common Law
1) Principal in the first degree; 2) Principal in the 2nd degree; 3) Accessory before the fact; and 4) Accesory after the fact. At common law, conviction of the 1st degree was a prereq for holding accomplices criminally liable
Accomplice Liability Classifications - Modern Statutes
All parties to the crime can be found guilty of the principal offense. (Note: accessory after the fact still treated separately)
Mental State Intent for Accomplice Liability
Most jurisdicitons - Give Aid, counsel, or encouragement to the principal with the intent to encourage the crime.
Scope of Liability - Accomplices
Responsible for all crimes he did or counseled and for any other crimes committes innt he course of committing the crime contemplated to the same extent as the princicpal as long as the other crimes were probably and foreseeable
Exclusions from Accomplice Liabiltiy
1) Members of the protected class (woman being trafficked over state lines); 2) Necessary Parties not Provided for (Purchase of herion if statute makes Sale of Heoin illegal); 3) Withdrawal
Withdrawal as an accomplice
Must occur before the crimes become unstoppable; 1) Repudiation is sufficient withdrawal for mere encouragement; 2) Attempt to neutralize assistance is required if participation went beyond mere encouragement. Notifying police or taking other action to prevent crime is also sufficient
Inchoate Offenses
Soliciation; Conspiracy; and Attempt
Solicitation - Elements
Inciting, counseling, advising, urging, or commanding another to commit a crime, with the intent that the person solicited commit the crime. Affirmative response from solicited not necessary.
Solicitation - Defenses
Common Law - Members of a protected class (woman over state lines) MPC - Renunciation if the defendant prevents the commission of the crime, such by persuading the person solicited not to commit the crime.
Solicitation - Merger
Solicited commits crime - Both solicited and solicitor liable for crime; Solicited convicted of Attempt - Both liable for attempt; Solicited agrees to commite the crime, but doesn’t commit acts sufficient for attempt - Both parties liable for conspiracy
Soliciation and Conspiracy, Attempt
Never can be convicted of solicitation and either conspiracy or attempt
Conspiracy - Elements
1) An agreement between two or more persons; 2) An intent to enter into the agreement; and 3) An intent by at least two persons to achieve the objective of the agreement. Majority of states now require an overt act, but mere preperation will suffice.
Conspiracy - Agreement Requirement - May agreement be inferred from joint activity?
YES
Conspiracy Two or more parties Requirement - Modern Trend
Unilateral Approach - MPC requires only one party have genuine criminal intent. Opens door to conspiracy with polic officer.
Conspiracy Two or more parties Requirement - Traditional Rule
Common Law - Bilateral Approach - Need at least 2 guilty minds
Conspiracy issues - Traiditoional multiple parties requirement
1) Husband and Wife; 2) Corporation and Agent; 3) Wharton Rule; 4) Agreement with Person in “protected Class”; 5) Effect of Acquittal
Wharton Rule
No crime of conspiracy unless more parties participate in the agreement that are necessary for the crime (adultery, need a 3rd)
Effect of Acquittal of Some Conspirators
Traditional View of multiple parties - Acquittal of al persons with whom a D is alleged to have conspired precludes conviction of the remaining D. ACQUITTAL IS KEY! Not prosecuting does not work
Mental State for Conspiracy
Specific Intent - 1) The intent to agree and 2) The intent to achieve the objective of the conspiracy
Liability for Co-Conspirators’ Crimes
A conspirator may be held liable for crimes committed by other conspirators if the crimes; 1) Were committed in furtherance of the objectives of the conspiracy and 2) Were Foreseeable
When does a conspiracy terminate?
Upon completion of the wrongful objective.
Defenses to Conspiracy
Withdrawal - only for crimes committed in furtherance of the conspiracy, not the conspiracy itself(Note Factual Impossibility is NOT a defense to conspiracy)
Merger - Conspiracy
Completed crime and Conspiracy do not merge
Number of Conspiracies in Multiple Party Situations
Chain Relationship - A single large conspiracy in which all parties to subagreements are interested in the single large scheme. All members are liable for the acts of the others in furtherance of the conspiracy. Hub-and-Spoke Relationship - Number of independent conspiracies are linked by a common member. Common member liable for all conspiracies, but other members of different conspiracies are not liable for the acts fo the other conspiracies
Elements of Attempt
An act, done with intent to commit a crim, that falls short of completing the crime
Mental State - Attempt
Regardless of the intent necessary for the completed offense, an attempt always requires a specific intent.
Overt Act - Attempt
D must commit an act beyond mere preparation for the offense. Traditonal Rule - Proximity Test (act being dangerously close to completion) MPC Rule - Substantial step in a course of conduct planned to culminate in the commission of the crime
Defenses to Attempt
1) Legal Impossibility (if D would have committed no crime) THAT’S IT! No Factual impossibility (abadonment; Traditional Rule - NO; MPC Rule - A fully voluntary and complete abandonment is a defense
Merger for Attempt
Cannot be convicted of both attempt and crime; CAN be CHARGED with both
Insanity Rules
1) M’Naughten Rule; 2) Irresistible Impulse Test; 3) Durham (or New Hampshire) Test; 4) ALI or MPC Test
M’Naughten Rule
D has a mental disease or defect that cause him to either; 1) Not know that his act would be wrong; or 2) Not understand the nature and quality of his actions. Loss of control because of mental illness does NOT qualify
Irresistible Impulse Test
Because of a mental illness, D was unable to control his actions or conform his conduct to the law.
Durham (or New Hampshire) Test
Acquittal if the crime was the product of the D’s mental illness
MLI or MPC Test
If D had a mental disease or defect, and , as a result, he lacked the substantial capacity to either; 1) Appreciate the criminality of his conduct; or 2) Conform his conduct to the requirements of law
Who must raise Insanity issue
Defendant in most states; MPC require prosecution to prove the defendant was sane beyond a reasonable doubt
If the D raises the insanity issue, can he refuse to be examined by a psychiatrist appointed to aid the court?
NO
Intoxication
May be voluntary or involuntary where it negates one of the elements of the crime.
Voluntary Intoxication
Result of the intentional taking without duress of a substance known to be intoxicating. Defense to specific intent crimes
Involuntary Intoxication
Results from the taking of an intoxicating substance without knowledge of its nature, or under duress imposed by another, or pursuant to medical advice while unaware of the substance’s intoxicating effect. Defense to all crimes.
Infancy
Common Law - No Liability for an act committee by a child under the age of seven. 7-14 there was a rebuttable presumption that the child was unable to understand the wrongfulness of his acts. 14 and up treated as adults.
Justification Defenses
When society has deemed that althought the D committed a prohibited act, she should not be punished because the circumstances justify the action.
Types of Justification Defenses
1) Self-Defense; 2) Defense of Others; 3) Defense of a Dwelling; 4) Defense of Other Property; 5) Crime Prevention; 6) Use of Force to Effectuate Arrest; 7) Resisting Arrest; 8) Necessity; 9) Public Policy; 10) Domestic Authority
Self Defense - Non Deadly Force
Person without fault may use such force as reasonably appears necessary to protect herself from the imminent use of unlawful force upon herself - NO DUTY TO RETREAT
Self Defense - Deadly Force
1) If without fault; 2) She is confronted with “unlawful force”; and 3) She is threatened with imminent death or great bodily harm
Duty to Retreat - Deadly Force
Generally no duty to retreat. Minority view requires retrat before deadly force if victim can safely do so, unless: 1) The attack occurs in the victim’s own home; 2) The attack occurs while the victim is making a lawful arrest, or 3) The assailant is int he process of robbing the victim
Right of Aggressor to Use Self Defense
Only if 1) She effectively withdraws from the confrontation and communicates to the other her desire to do so, or 2) The victim of the initial aggression suddenly escalates the minor fight into a deadly altercation and the initial aggressor has no chance to withdraw.
Defense of Others
If she reasonably believes that the person assisted has the legal right to use force in his own defense. Reasonably appearance of the right to use force. Special relationship not needed between the parties
Defense of a Dwelling
Nondeadly force may be used to prevent or terminate what it reaosnably regarded as an unlawful entry into or attacj on the defender’s dwelling. Deadly force may be used only to prevent a violent entry made with the intent to commit a personal attack on an inhabitant or to prevent an entry to commite a felony in the dwelling
Defense of Other Property
Defending Possession - NEVER DEADLY FORCE. Nondeadly force may be used to defend in one’s possession from unlawful interference, but may not be used if a request to desist or refrain from the activity would suffice; Regaining Possession - No force unless in immediate pursuit of the taker
Crime Prevention
Nondeadly Force - Used to the extent that it reasonably appears neceesary to prevent a felony or serious breach of the peace; Deadly Force - used only to terminate or prevent a dangerous felony involving risk to human life
Use of Force to Effectuate arrest
Nondeadly force - reasonably appears necessary to effectuate an arrest ; Deadly Force - reasonable only if it is necessary to prevent felon’s escape and the felon threatens death or serious bodily harm
Use of force to Effectuate arrest - Private Persons
Nondeadly force to make an arrest if a crime was in fact committed and the private person has reasonable grounds to believe the person arrested has in fact committed the crime. Deadly force onlyif person harmed was actually guilty of the offence for whicht he arrest was made
Resisting Arrest
Nondeadly force may be used to resist an improper arrest even if a known officer is making that arrrest. Deadly force only if the person does not know that the person arresiting him is a police officer
Necessity
Person reasonably believed that commission of the crim was necessary to avoid an imminent and greater injury to society than that involved in the crime. Limitation: cant cause death of another. Limitation: If D created the situation requiring that he choose between two evils
Public Policy
Police Officer (or one assisting him) is justified in using reasonable force against another, or in taking property, provided the officer acts pursuant to a law, court order, or process requiring or authorizing him to so act.
Domestic Authority
Parents may lawfully use reasonable force upon the child for the purpose of promting the child’s welfare
Excuse of Duress
Everything other than homicide. D reasonably believed that another person would imminently inflict death or great bodily harm upon him or a members of his family if he did not commit the crime. Traditionally - threats to property do not count. MPC - threats to property may count if the value of the property outweighs the harm done to society by committing the crime.
Necessity vs Duress
Duress ALWAYS involved a threat by a HUMAN
Mistake or Ignorance of Fact
D lacked the state of midn required for the crime.
Mistake or Ignorance of Fact - reasonableness
If offered to disprove specific intent - need not be reasonable. Otherwise it must be reasonable.
Mistake or Ignorance of Law
Generally it is not a defense. Exceptions: 1) Statute proscribing her conduct was not published or made reasonable available prior to the conduct; 2) There was reasonable reliance on a statute or judicial decision; or 3) In some jurisdictions, there was reasonable reliance on official interpretation or advice.
Consent
Usually not a defense. If consent may be a defense; 1) the consent was voluntarily and freely given; 2) The party was legally capable of consenting; and 3) No fraud was inolved in obtaining the consent.
Entrapment
1) The criminal design originated with law enforcement officers and 2) The D was not predisposed to commit the crim prior to contact by the government.
Battery
Unlawful application of force to the person of another resulting in either bodily injury or an offensive touching. Need not be intentional.
Aggravated Battery
Felony 1) Battery with a deadly weapon; 2) Battery resulting in serious bodily harm; 3) Battery of a child, woman, or police office
Assault
1) an attempt to commit a battery or 2) The intentional creation - other than by mere words - of a reasonable apprehension in the mind of the victim of imminent bodily harm. If touching then BATTERY not assault.
Mayhem
Common law - required dismemberment or disablement of a bodily part.
Homicide - Common Law
1) Murder; 2) Vountary Manslaughter; 3) Involuntary Manslaughter
Common Law Murder
Unlawful killing of a human being with malice aforethought.
Malice Aforethought
Exists if not facts reducing the killing to voluntary manslaughter or excusing it and; 1) Intent to kill; 2) Intent to inflict great bodily injury; 3) Reckless indifference to an unjustifiably high risk to human life (abandoned and malignant heart) or 4) Intent to commit a felony
Voluntary Manslaughter
A killing that would be a murder but for the existence of adequate provocation.
Adequate provocation
1) arouse sudden and intense passion in the mind of an ordinary person, causing him to lose self-control; 2) D was in fact provoked; 3) Not sufficient time to cool off between provocation and killing; and 4) D in fact did not cool off between provocation and the killing.
Imperfect self - defense
Murder may be reduced to manslaughter even though 1) The D was at fault in starting the altercation; or 2) The D unreasonably but honestly believed in the necessity of responding with deadly force
Involuntary Manslaughter
Killing committed with criminal negligence (or recklessness under the MPC), or in some states, during the commission of an unlawful act (misdemeanor or felony not included within felony murder rule)
First Degree Murder Classifications
1) Deliberate and Premeditated; 2) First Degree Felony Murder
Deliberate and Premediated First Degree Murder
If D made the decision to kill in a coll and dispassionate manner and actually reflected on the idea of killing, even if only for a very brief period, it is first degree murder. Specific intent so voluntary intoxication may be a defense
First Degree Felony Murder
Killing committed during the commission fo an enumerated felony. Most Common: Burglary, arson, rape, robbery, and kidnapping.
2nd Degree Murder
A murder will be 2nd degree unless it comes under a first degree classification
Felony Murder - NOT 1st Degree Felony Murder
Any death cause in the commission of, or in an attempt to commit, a felony is murder.
Limitations on Felony Murder Liability
1) D must have committed or attempted to commit the underlying felony; a defense negating element of underlying felony will be a defense to felony murder; 2) Felony must be distinct from the killing itself; 3) Death must have been a foreseeable result of the felony; 4) Death must have been caused before the D’s immediate flight from the felony ended; 5) Co-felon is killed as a result of resistance from the felony victim or the police; 6) Proximate Cause Theory - Killing must be committed by felon or his agent
Causation and Homicide
D’s conduct must be both the cause in fact and the proximate cause of the victim’s death
Cause-in-fact
Result would not have occurred BUT FOR the D’s conduct
Proximate Causatrion
Result is a natural and probably consequence of the conduct, even if D did not anticpate the precise manner in which the result occurred. Superseding factors break the chain of proximate causation.
Act hastens an inevitable result - legal cause?
Yes
Victim’s preexisting weakness or fragility, even if unforeseeable, break the chain of causation?
NO
Year and a Day rule - Homicide
Death of victim must occur within 1 year and 1 day from infliction of the injury or wound.
False Imprisonment
Unlawful confinements of person without his valid consent. MPC - confinement must interfere substantially with the victim’s liberty
Kidnapping
Unlawful confinement of a person that involved either; 1) Some movement of the victim, or; 2) Concealment of the victim in a “secret” place.
Aggravated Kidnapping
Ransom, purpose of committing other crimes, kidnapping fro offensive purposes, child stealing.
Rape
Traditionally - Carnal knowledge of woman by a man, not her husband, without her effective consent.
Lack of Consent in rape case occure where;
1) Intercourse by actual force; 2) intercourse by threats of great and immediate bodily harm; 3) Victim is incapable of consenting (unconsciousness, intoxication, mental condition) or; 4) Victim is fraudulently cause to believe the act is not intercourse.
Statutory Rape
Carnal Knowledge of someone under the age of consent. Not necessary to show lack of consent. Strict liability - Mistake as to age is NOT A DEFENSE. If that is not a choice - reasonable msitake as to age will prevent conviction if the D reasonably believed the victim was old enought to give effective consent
Lacrceny
1) Taking 2) And carrying away (asportation) 3) On tangible personal property 4) Of another with possession 5) By trespass 6) With intent to permanently deprive that person of their interest in the property
Larceny exam tip
Make sure D had intent to permanently deprive WHEN SHE TOOK THE PROPERTY
Abandoned, lost, or mislaid property
Larceny can be commiteed with lost or mislaid property or property that has been delivered by mistake, but not with abandoned property.
Continuing Trespass Situation
If D wrongfully takes property without the intent to permanently deprive, and later decided to keep the property, guilty of larceny when she decides to keep it. If the taking it not WRONGFUL, then no larceny.
Embezzlement
1) Fraudulent 2) Conversion 3) Of personal property 4) Of another 5) By a person in lawful possession of that property
Fraudlent Intent
If D intends to restore the EXACT property taken, it is not embezzlment. If D intends to restore similar or substanilly identical property it is embezzlement.
False Pretenses
1) Obtaining title 2) To personal property of another 3) By an intentional false statement of a past or existing fact 4) With intent to defraud the other
Larceny by trick vs False Pretenses
If victim is tricked - by a misrepresentation of fact - into giving up mere custody if property, crime is larceny by trick. If victim is tricked into giving up TITLE to the property, the crime is false pretenses
Robbery
1) Taking 2) Of personal property of another 3) From the other’s person or presence 4) By force or threats of immediate death of physical injury 5) With the intent to permanently deprive him of it
Threats of immediate death or physical injury - Robbery
May be the victim, or the victim’s family, or someone near the victim.
Robbery exam tip
Victim must give up property because she feels threatened. If she gives it up because she feels bad for the D, NOT ROBBERY
Larceny vs Robbery
Robbery is by use of threats (pickpocketing vs mugging)
Extortion - Common Law
Corrupt colelction fo an unlawful fee by an office under color or office.
Receipt of Stolen Property
1) Receiving possession and control (manual possession not required) 2) Of stolen property (at the time the D receives it) 3) Known to have been obtained constituting a criminal offense 4) By another person 5) With intent to permanently deprive owner of his interest in it.
Forgery
1) Making or altering 2) A writing with apparent legal significance 3) So that it is false 4) With intent to defraud (no one need actually have been defrauded)
Uttering a forged instrument
1) Offering as genuine 2) An instrument that may be the subject of forgery and is false 3) with intent to defraud
Malicious Mischief
1) Malicious 2) Destruction of or damage to 3) The property of another
Burglary
1) Breaking (creating or enlarging an opening) 2) and entry 3) Of a dwelling 4) Of another 5) At nighttime 6) With the intent to commit a felony in the structure (at the time of entry).
Arson
1) Malicious 2) Burning 3) Of the dwelling 4) of Another
Arson MBE Tip
Arson extended to other buildings other than dwellings
Perjury
Intentional taking of a false oath in regard to a material matter ina judicial proceeding
Subornation of Perjury
Procuring or inducing another to commite perjury
Bribery
Corrupt payment or receipt of anything of value for official action. Extended to nonpublic officials. Counts as taking or offering the bribe.
Compunding a crime
agreeing, for valuable consideration, not to prosecute another for a felony or to conceal the commission of a feloyn of the whereabouts of a felon
