Criminal Law Flashcards
1
Q
What are the four essential elements of all crimes?
A
- Act
- Mental state
- Causation
- Concurrence
2
Q
D, in California, fills out a false insurance claim and mails it to Connecticut. In which state(s) can D be prosecuted for insurance fraud?
A
R: A crime may be prosecuted in any state where:
- an act that was part of the crime took place; or
- the result took place.
A: In CA, where the act took place and in CT where the result took place.
3
Q
What is the prosecutor’s burden of proof?
A
In a criminal case, the prosecution must prove each element of the crime beyond a reasonable doubt.
4
Q
Distinguish felony and misdemeanor.
A
Felony: A crime that may be punished by death or imprisonment for more than one year
Misdemeanor: A crime punishable by a fine and/or imprisonment for no more than one year
5
Q
Are all bodily movements physical acts that can be the basis for criminal liability?
A
No, they must be voluntary. Involuntary movements that are not considered criminal “acts”:
(1) one that is not the product of the actor’s volition (e.g., being pushed).
(2) sleepwalking or otherwise involuntary (unconscious) conduct.
(3) a reflex or convulsion.
6
Q
When can a failure to act can also be the basis for criminal liability?
A
- legal duty to act
- knowledge of the facts giving rise to the duty
- ability to help
7
Q
For purposes of subjecting a failure to act to criminal liability, what are the 5 situations in which a legal duty to act can arise?
A
- statute (e.g., filing tax returns, professionals reporting child abuse)
- contract (e.g., babysitter, doctor, lifeguard)
- special status of the relationship between the D and the victim (e.g., parent-child, spouse-spouse)
- voluntary assumption of care: D starts rescuing V, D has a duty to follow through; D cannot abandon the effort unreasonably, if the rescue effort was undertaken voluntarily.
- by creating the situation that caused the peril; if D caused the problem initially, D has a duty to help.
8
Q
What are the four common law mental states that P must prove to hold D guilty along with the act, causation, and concurrence; and how are these mental states defined?
A
In order of level of intent, highest to lowest:
- Specific intent: D desires to achieve one of 11 specific criminal results; there’s a specific intent for each of these 11 crimes.
- Malice: D acts with reckless disregard of an obvious or high risk that the particular harmful result will occur.
- General intent: D is generally aware that D is doing the acts that are proscribed; but D needn’t know that such acts constitute a crime (jury can usually infer the general intent simply from the doing of the act).
- Strict liability: D needn’t intend to do any of the physical actions that are proscribed; D merely must perform the proscribed actions.
9
Q
What are the specific intent crimes and what is the specific intent that D must have?
A
MAC BAFFELRS
- Murder (premeditated): premeditated intent to kill
- Attempt and Conspiracy: complete the crime; have crime completed
- Burglary: commit a felony in the dwelling
- Assault: commit a battery
- Forgery, False pretenses, and Embezzlement: defraud
- Larceny and Robbery: permanently deprive the other of his interest in the property taken
- Solicitation: have the person solicited commit the crime
10
Q
What are the two defenses that available only for specific intent crimes?
A
voluntary intoxication
unreasonable mistake of fact
11
Q
What are the two malice crimes?
A
Murder (except 1st degree) and arson
12
Q
What are the 4 general intent crimes?
A
“Kidnapping raped and imprisoned batteries.”
- kidnapping
- battery
- forcible rape
- false imprisonment
13
Q
What are the two types of Strict Liability Crimes?
A
- Regulatory offenses that implicate public health or safety and typically carry small penalties. (e.g., transferring unregistered firearms, selling contaminated food, shipping adulterated drugs in interstate commerce).
- Statutory rape: having sex with someone who is under the age of consent.
14
Q
What are the Model Penal Code’s five mental states?
A
- Purpose: The defendant acts purposely when it is his conscious desire to achieve a particular result.
- Knowledge: The defendant acts knowingly when he is aware of what he is doing. With respect to a result, the defendant acts knowingly when he is aware that it is practically certain that his conduct will cause that result.
- Recklessness: The defendant acts recklessly when he is aware of a substantial and unjustifiable risk, and consciously disregards that risk.
- Negligence: The defendant acts negligently when he should have been aware of a substantial and unjustifiable risk.
- Strict Liability: No mental state required (similar to the common law).
15
Q
What are the 2 types of causation necessary to hold a D criminally responsible for a correlated act committed with the requisite mental state?
A
- Actual Causation: D is an actual cause if the bad result would not have happened but for the defendant’s conduct.
- Proximate (“Legal”) Causation: D is a proximate cause if the bad result is a natural and probable consequence of the D’s conduct.
16
Q
Victor is walking quickly down the street when Dudley steps out of a doorway with a gun and says “Stop right there! This is a stick-up.” Dudley rummages through Victor’s pockets, takes Victor’s wallet, and runs off. Victor is still standing in the same spot moments later when he is struck by lightning and killed. Is Dudley an actual cause of Victor’s death?
A
Yes, but for the stick-up, Victor would not have been standing in the spot where lightning struck.
17
Q
Alex stabs Victor in the abdomen, causing a fatal wound that will kill Victor within five minutes. One minute later, Dudley walks by and shoots Victor in the head, killing him instantly. Is Dudley an actual cause of Victor’s death?
A
Yes, Dudley’s conduct is an accelerating cause of Victor’s death, which qualifies as an actual cause.
18
Q
Victor is walking quickly down the street when Dudley steps out of a doorway with a gun and says “Stop right there! This is a stick-up.” Dudley rummages through Victor’s pockets, takes Victor’s wallet, and runs off. Victor is still standing in the same spot moments later when he is struck by lightning and killed. Is Dudley a proximate cause of Victor’s death?
A
No. D will not be considered a proximate cause if an intervening event causes the bad result. Being struck by lightning is an intervening event. Therefore, Dudley isn’t criminally liable for Victor’s death because criminal liability requires both actual and proximate causation.
19
Q
Dudley shoots Victor, but the wound is not fatal. Victor is taken to the hospital, where a surgeon operates to remove the bullet. As a result of a blood-clotting disorder, Victor dies on the operating table, due to excessive blood loss. Is Dudley a proximate cause of Victor’s death?
A
Yes. D will be considered a proximate cause even if the victim’s pre-existing weakness contributed to the bad result. It doesn’t matter that Victor’s pre-existing weakness contributed to his death.
20
Q
What is the concurrence element of all crimes and in which two crimes does meeting the element often present difficulties?
A
D must have the required mental state at the same time as he engages in the culpable act.
Concurrence issues arise most frequently in larceny and burglary.
21
Q
What are the elements of battery?
A
- Act: Unlawful application of force to another resulting in either (1) bodily harm or (2) an offensive touching.
- Mental state: general intent
- Causation and concurrence.
22
Q
What are the elements of assault?
A
- Acts: either
- intentional creation (by more than mere words) of a reasonable apprehension of an imminent bodily harm or offensive touching or
- an attempted battery (doesn’t matter whether victim was in reasonable apprehension).
- Mental state: specific intent to commit a battery
- Causation and concurrence.
23
Q
What are the elements of murder?
A
Act: causing the death of another
Mental state: malice aforethought shown by:
- intent to kill (D points a gun at V, says: “I want to kill you.” He then shoots and kills V).
- intent to inflict serious bodily harm (D shoots V in the leg, intending only to maim him. Unfortunately, V dies from injuries related to the gunshot wound.)
- extreme recklessness, indifference to human life (D aims his pistol over V’s head and fires, intending to scare V. Bullet hits V’s head, killing him).
- intentional commission of an inherently dangerous felony (“felony murder”) (D robs a bank. He points a gun at the teller. Gun accidentally goes off, killing the teller.)
Causation and concurrence
24
Q
What is the doctrine of transferred intent?
A
D intends to harm V or property, but accidentally harms a different V or property instead. D’s intent will transfer from the intended V to the actual V: guilty of crime committed plus attempt of crime tried to commit.
Rule applies most frequently to murder but can also apply to other crimes, such as battery and arson.
25
Dudley shoots at Alex, intending to kill him. Alex ducks, and Dudley’s bullet instead hits Victor, killing him. What crimes is Dudley guilty of?
Victor’s murder because the intent to kill Alex transfers to V. D is also guilty of attempted murder because D intends to kill Alex (two victims, no merger).
26
What are First and Second Degree Murders?
**First:** intentional killing committed with **premeditation** (D thought about it ahead of time) and deliberation (D was cool, calm, and collected)
**Second:** All other intentional murders (as well as depraved heart murder and, where it still exists as a separate category of homicide, intent-to-do-serious-bodily-harm murder)
27
What is the Definition of Felony Murder and it's six common exceptions?
Any killing caused during the commission of _or attempt_ to commit a felony except:
1. **no underlying felony** (e.g., a defense to the felony)
2. underlying felony **not inherently dangerous** (commonly “enumerate” felonies: burglary, robbery, rape, arson, kidnapping)
3. **Merger:** felony not independent of the killing. e.g., aggravated assault or battery cannot be the underlying crime)
4. death occured **after immediate flight over**; felon(s) reached a place of temporary safety
5. death **not foreseeable**
6. victim is a **co-felon**
28
When is one co-felon guilty of felony murder for the killing by another person under vicarious liability?
**“Proximate Cause” theory (majority rule):** if one of the co-felons proximately causes the victim’s death, all of the other co-felons will be guilty of felony murder, even if the actual killing is committed by a 3rd party (e.g., a bystander, a police officer).
**“Agency” theory (minority)**: only if the killing is committed by one of the co-felons
29
Dumb and Dumber rob a bank. Dumber sits outside in the getaway car, while Dumb goes into the bank, points a gun at the teller, and says: “This is a stick up.” Dumb’s gun goes off accidentally and kills the teller. Who, if anyone, is guilty of felony murder?
Both are liable.
30
Dumb and Dumber rob a bank. Dumber sits outside in the getaway car, while Dumb goes into the bank, points a gun at the teller, and says: “This is a stick up.” A security guard fires his weapon at Dumb, but the bullet strikes and kills the teller instead. Who, if anyone, is guilty of felony murder?
“Proximate cause” theory: both.
“Agency” theory: neither is guilty of felony murder, because the shooter was not a co-felon.
31
Dumb and Dumber rob a bank. Dumber sits outside in the getaway car, while Dumb goes into the bank, points a gun at the teller, and says: “This is a stick up.” The teller gives Dumb a bag of money, and Dumb runs outside and jumps into the getaway car. As Dumber speeds away, the getaway car collides with a police car racing to the scene. Both Dumb and the officer are pronounced dead at the scene from injuries sustained in the accident Who, if anyone, is guilty of felony murder?
With respect to the officer, Dumber is guilty under both theories.
With respect to Dumb, Dumber is not guilty under both theories, because Dumb is a co-felon.
32
Dumb and Dumber rob a bank. Dumber sits outside in the getaway car, while Dumb goes into the bank, points a gun at the teller, and says: “This is a stick up.” One hour after arriving at their secret hideout, Dumb drives to Starbucks for coffee. En route, he runs a red light and kills a pedestrian lawfully crossing the street. Who, if anyone, is guilty of felony murder?
Neither is guilty of felony murder. Once the felons reach a place of safety the felony ends
33
What are the elements of voluntary manslaughter?
1. **Provocation** would arouse a **sudden and intense passion** in the mind of a reasonable person (e.g., serious assault or presently witnessed adultery)
2. D was **actually provoked**.
3. D did not have **time to cool down**.
4. D didn't **actually cool down** between the provocation and the killing.
34
What are the elements of involuntary manslaughter?
Two types:
* killing during **commission of a crime** to which the felony murder doctrine does not apply (“unlawful act” manslaughter)
* **unintentional killing** committed:
* _common law_: with criminal negligence: gross deviation from a reasonable standard of care (not the tort standard)
* _MPC/Modern trend_: recklessly
35
What are the elements of false imprisonment?
Act: The unlawful confinement of a person without consent
Mental state: general intent
Causation and concurrence
36
What are the elements of kidnapping?
Act: False imprisonment elements plus
* **moving** the victim or
* **concealing** the victim in a secret place
Mental state: general intent
Causation and concurrence
37
What are the elements of forcible rape?
Act: Unconsented sexual intercourse accomplished
* by **force**
* by **threat of force**, or
* while the victim is **unconscious**
Mental state: general intent
Causation and concurrence
38
What are the elements of statutory rape?
Act: Sexual intercourse with someone under the age of consent
Mental state:
* strict liability (majority rule)
* reasonable mistake of age is a defense (MPC and minority rule)
Causation and concurrence
39
What are the elements of larceny?
Act:
1. Taking and carrying away (must be moved)
2. Personal property
3. Of another (depends upon lawful custody)
4. With the intent to permanently retaining the property (If D intends to give property back, no larceny)
Mental state: specific intent to permanently deprive the other of his interest in the property taken
Causation and concurrence
Watch for where taking occurs without intent (just to borrow) and then becomes intent to permanently deprive: it's the continous trespass exception to concurrence.
40
Within larceny, what is the erroneous takings rule?
Taking under a claim of right is never larceny, even if D erroneously believes the property is his.
41
Dudley takes Victor’s cell phone from Victor’s bag without Victor’s permission, planning to return the cell phone once he’s finished using it. Is Dudley guilty of larceny?
N, Because Dudley plans to give the phone back, he lacks the intent to steal that is necessary for larceny.
42
Dudley leases his car to Victor for a one-year term. Two months into the one-year lease, Dudley has a change of heart and takes the car back without Victor’s permission, intentionally violating the lease agreement. Is Dudley guilty of larceny?
Yes, even though he is the owner, at the time Dudley took the car, Victor had lawful custody.
43
Dudley takes Victor’s laptop, mistakenly believing that the laptop is his. Is Dudley guilty of larceny?
No, D's claim of right negates his liability even though it is erroneous.
44
Dudley takes Victor’s cell phone from Victor’s bag without Victor’s permission, planning to return the cell phone once he’s finished with it. After using it, however, Dudley decides that Victor’s phone is so nice, he’s going to keep it. Is Dudley guilty of larceny?
Yes, under an exception to the concurrence principle, if when a D wrongfully takes property D doesn't have the intent to steal but later forms the intent to steal, the initial taking is considered to have continued and he will be guilty. Therefore, Dudley's conduct constitutes a continuing trespass.
45
What are the elements of embezzlement?
Act: **Conversion** of the personal property of another by a person **already in lawful possession** of that property, with the **intent** to defraud.
Mental state: specific intent to defraud (but not if D intends to give the exact property back in the exact form).
Causation and concurrence
46
How is embezzlement different than larceny?
Embezzlement: D has lawful possession (authority to exercise some discretion over the property) of the property that he misappropriates.
Larceny: D takes from another's custody (bare possession)
47
A trustee siphons off trust money and donates the money to her favorite charity. Has trustee committed larceny, embezzlement, or neither?
Embezzlement. Beneficiary can be a third party.
48
A bank security guard wrongfully takes $1,000 from the bank’s vault. Has guard committed larceny, embezzlement, or neither?
Larceny because guard lacks the discretionary authority over the money in the vault that is necessary for embezzlement.
49
The curator of an art museum sells a $50,000 painting entrusted to his care without asking the owner’s permission. The curator intends to buy the painting back, after doubling the $50,000 from the sale by playing blackjack in Las Vegas. Unfortunately, he loses all the money. Has curator committed larceny, embezzlement, or neither?
Neither.The curator’s intent to return the painting negates the intent to permanently deprive and defraud.
50
What are the elements of false pretenses?
Act:
1. Obtaining title
2. to the personal property
3. of another
4. by an intentional false statement
Mental state: specific intent to defraud
Causation and concurrence
51
Dudley says to Victor: “If you give me your cell phone, I will write you a $100 check on my new checking account, which has a balance of $1000 today.” Dudley knows that the checking account is empty. Victor agrees to the deal and gives Dudley the cell phone in return for a $100 check. Of what crime, if any, is Dudley guilty?
False pretenses. Dudley made an intentional false statement with the intent to defraud and obtained title to the cell phone.
52
Dudley says to Victor: “If you give me your cell phone, I will give you $100 cash tomorrow.” Dudley has no intention of paying the money. Victor agrees to the deal and gives Dudley the cell phone. Of what crime, if any, is Dudley guilty?
**Under common law**: None. Promises of future conduct are insufficient for false pretenses. And because Dudley got title rather than custody, the crime cannot be larceny by trick.
**Under MPC**: false pretenses. Any false representation suffices, including a false promise to perform.
53
What is the difference between larceny by trick and false pretenses?
If D obtains only custody (not title) as a result of the intentional false statement, the crime is larceny by trick, not false pretenses.
54
Dudley says to Victor: “If you give me unrestricted use of your cell phone, I will write you a $500 check on my new checking account.” Dudley knows that the checking account is empty. Victor agrees to the deal and Dudley writes him a check for $500. Of what crime, if any, is Dudley guilty?
Larceny by trick. With respect to the cell phone, Dudley obtained custody only not title.
55
What are the elements of robbery?
Act:
1. larceny
2. from someone else's person or presence (some location reasonably close to the victim, e.g. rooms in a house other than the room in which the victim is located)
3. by force (but not pickpocketing, which is larceny) or threat of immediate (if threats of future harm, it's extortion) injury
Mental state: specific intent to permanently deprive the other of his interest in the property taken
Causation and concurrence
56
What is the difference between robbery in larceny?
Robbery requires taking by (1) force or threat of immediate injury (2) from victim or victim's vicinity. One and two are not present in larceny.
57
What are the elements of forgery?
Act:
1. making or altering a writing so that
2. it is false
Mental state: specific intent to defraud.
Causation and concurrence
58
Needing $100 fast, Dudley takes Victor’s checkbook, writes out a $100 check to himself, and signs Victor’s name to the check. Of what crime, if any, is Dudley guilty?
Forgery. Dudley made a false writing with the intent to defraud victor.
59
Under what label have the MPC and most states consolidated the common law property crimes of larceny, embezzlement, false pretenses, and larceny by trick? How are the different crimes distinguished, if at all?
Theft. Seriousness of the offense will be determined by the value of the property taken.
60
What are the elements of burglary?
Act:
1. Breaking (includes fraud, threats, or intimidation)
2. and entering (some part of D's body must enter the building)
3. the dwelling (structure where someone regularly sleeps) of another at night
4. with the intent to commit a felony inside
Mental state: specific intent to commit a felony (larceny, rape, robbery, assault, kill) inside.
Causation and concurrence
61
Dudley covets the new flat-screen television purchased by his neighbor, Victor. Knowing Victor is a sound sleeper, Dudley breaks into Victor’s house at midnight to steal the TV. Of what crime, if any, is Dudley guilty?
Burglary. Dudley broke into and entered Victor’s home at night to commit the felony of larceny.
62
Dudley is homeless. One frigid night in January, he breaks into Victor’s home to get warm. As he is leaving 30 minutes later, Dudley sees Victor’s laptop and decides to steal it. He grabs the laptop and hides it inside his jacket as he exits. Of what crime, if any, is Dudley guilty?
Larceny, but not burglary. There is a concurrence problem because Dudley lacked the intent to steal when he entered the residence.
63
What are the elements of arson?
Act:
1. malicious burning (scorching not enough; charring required)
2. of a building (not furniture or fixtures inside).
Mental state: malice
Causation and concurrence
64
What are the elements of statutory possession of contraband?
Act:
1. control of contraband (drugs, stolen property, child pornography)
2. for a period of time long enough to have an opportunity to terminate possession (constructive possession--dominion and control--included)
Mental state: knowledge of the possession and of the character of the item possessed (not a common law crime)
Causation and concurrence
65
What are the elements of statutory receipt of stolen property?
Act: receiving possession and control of stolen personal property
Mental state: knowing that the property has been obtained criminally by another party and intending to permanently deprive the owner of the property interest.
Causation and concurrence
66
What are the elements of accomplice liability?
Act: aiding or encouraging the principal
Mental state: with the intent that the crime be committed
Causation and concurrence
67
For what crimes is the accomplice guilty?
1. All crimes he **aided or encouraged**
2. All **foreseeable crimes** committed along with the aided crime.
68
Will presence at the scene of a crime or knowledge of the crime by themselves subject the person to accomplice liability?
No.
**Mere presence** at the scene of the crime does not make someone an accomplice; he or she must actively aid or encourage the principal.
**Mere knowledge** of the crime does not make someone an accomplice; he must intend to aid or encourage the principal.
69
What must an accomplice in due to withdraw?
Depends upon how he assisted the principal:
1. **Encourager:** an accomplice who only encouraged the principal many withdraw simply by _repudiating the encouragement_ ***before the crime is committed***
2. **Aider:** an accomplice who actually helps the principal must either
* **neutralize the assistance** _or_
* otherwise **prevent the crime** from happening.
70
Penny complains to her friend Dudley that she is short on money. Dudley responds, “I know just the opportunity for you. The drug dealer who used to operate at the corner of Center and Main was arrested yesterday. Why don’t you set up shop there and start selling drugs?” If Penny takes his advice and starts selling drugs, what crime (if any) will Dudley be guilty of?
Unless Dudlely repudiates his encouragement before Penny starts selling, Dudlely will be Penny's accomplice.
71
Penny complains to her friend Dudley that she is short on money. Dudley responds, “I know just the opportunity for you. The drug dealer who used to operate at the corner of Center and Main was arrested yesterday. Why don’t you set up shop there and start selling drugs?” Dudley also gave her a supply of small plastic baggies, a stamp to brand the baggies with a trademark, and an untraceable cell phone. What crime (if any) will Dudley be guilty of?
Unless Dudley neutralizes all three items before Penny starts selling drugs; or prevents Penny from committing the crime, he will be held as an accomplice to Penny's crime.
72
To commit the common law offense of being an “accessory after the fact,” what must the defendant do?
Act: Help a principal who has committed a felony escape arrest or punishment with knowledge that the crime has been committed
Mental state: with the intent to help the principal avoid arrest or conviction.
73
What is enterprise liability?
Holding a corporation liable for the acts of an agent where
1. the agent is acting on behalf of the corporation and within the scope of his or her office
2. a corporate agent high enough in hierarchy to presume his acts reflect corporate policy.
74
What are the elements of the inchoate (incomplete) offense of solicitation?
Act: asking someone to commit a crime with the intent that the crime be committed
Mental state: Intent to have the person solicited commit the crime
75
What are the elements of the inchoate (incomplete) offense of conspiracy?
Act:
1. an **agreement** (needn't be explicit; can be by conduct)
2. between **two or more** people
3. to commit a crime **together**
4. with an **overt act** **in furtherance** of the crime (even if merely preparatory)
Mental state: specific intent to enter into an agreement and accomplish the objects of conspiracy
76
Can You Have a One-Person Conspiracy?
**Common law: **last remaining D cannot be convicted if all other parties to the agreement are acquitted; if other parties aren't apprehended or not prosecuted, the only D can be convicted.
**MPC:** defendant may be guilty of conspiracy even if the other parties are acquitted or were just pretending to agree
77
Dudley and Donnie agree to kill Victor, Dudley’s business partner. Unbeknownst to Dudley, Donnie is actually an undercover police agent. Dudley is arrested while he is preparing to kill Victor. Is Dudley guilty of conspiracy to commit murder?
Under the common law rule, no because Donnie is a police agent, there are not two guilty minds Under MPC, yes.
78
What is the Wharton rule?
When two or more people are necessary for the commission of the substantive offense, there is no conspiracy unless more parties participate in the agreement than are necessary for the crime.
79
What is "Pinkerton" or vicarious liability?
In addition to conspiracy, D will be liable for other crimes committed by his co-conspirators if
1. those crimes were committed **in furtherance of the conspiracy's objective** and
2. were **foreseeable**.
80
Dudley and Alex agree to rob a bank. As they are making their preparations, Alex says “I’ll go steal a gun that we can use when we rob the bank.” That night, Alex breaks into Victor’s house and steals Victor’s gun. Dudley and Alex later use the gun to rob the bank. Of what crimes may Dudley be convicted?
Dudley is directly liable for robbery and conspiracy to rob the bank. In addition, Dudley is vicariously liable under Pinkerton for the burglary of victor's house and larceny for taking the gun.
81
Dudley and Alex agree to kill Victor. When they arrive at Victor’s house, they find that he is already dead. Can Dudley and Alex be convicted of conspiracy to commit murder?
Yes. Impossibility is not a defense to a charge of conspiracy.
82
What must the prosecution prove to hold a defendant liable for attempt?
**Act:** An **overt act** beyond mere preparation.
_Under MPC (majority rule)_: D's conduct is a **substantial step** towards the commission of the crime, provided that conduct strongly corroborates the actor's criminal purpose
_Common law_: D's conduct must be **dangerously close** to commission of a crime.
**Mental state:** Attempt requires the specific intent to commit the underlying crime.
83
Dudley wants to kill Victor. His plan is to shoot Victor as Victor is walking home from work. At what point has Dudley engaged in enough conduct to be guilty of attempted murder? 1) Dudley buys an untraceable gun from an illegal gun dealer 2) Dudley takes the loaded gun and drives along the route that Victor typically uses when he walks home from work, but he can’t find Victor … 3) Two days later, Dudley tries again. This time, he sees Victor walking down the street. As Dudley raises the gun, Officer Alex tackles him, which causes Dudley to lose hold of the gun.
1) CL: No; MPC: Yes 2) CL: No; MPC: Yes 3) CL: Yes; MPC: Yes
84
Wanting to scare Victor, Dudley fires a bullet in his direction, aiming at a trash can six feet away from Victor. A poor shot, Dudley misses the target and the bullet strikes Victor’s shoulder, leaving him permanently disabled. Is Dudley guilty of attempted involuntary manslaughter?
No. Involuntary manslaughter requires either criminal negligence or recklessness. There is no attempt crime for unintentional crimes (recklessness, negligence, and felony murder) because you cannot attempt to do something unintentionally.
85
Can a solicitor, co-conspirator, or attempter withdraw?
Generally no, except where D withdraws from a conspiracy D will not be vicariously liable for crimes committed after he left the conspiracy.
86
Which of the inchoate offenses merge?
Solicitation and attempt
Conspiracy does not merge.
87
D wants to kill V but thinks he needs some help. He decides to recruit a partner in crime. What is D guilty for where: 1) D does nothing but decide to recruit. 2) asks his friend Alex to help him kill V 3) Alex says, “Sure.” D then shows Alex a photo of the gun he wants to use in the killing. Alex takes the photo and agrees to procure the weapon for D. 4) Armed with the gun Alex has given him, D hides in the bushes outside V's house waiting for V to come home from work. V is accompanied by a bodyguard. D decides to wait. 5) D returns the next day and kills V.
1) not guilty of any crime 2) solicitation 3) conspiracy 4) attempt 5) murder (but no longer guilty of solicitation or attempt; but still liable for conspiracy and
88
What must D show to raise the insanity defense successfully?
D must have a mental disease or defect; and
* _Majority test (M'Naghten)_: D either
* didn't know conduct was wrong or
* didn't understand the nature of conduct
* _Minority test (MPC)_: D lacked substantial capacity to either
* appreciate the criminality of misconduct or
* conform his conduct to requirements of law
89
What is the common law true rule of sevens infancy defense?
If, at the time of crime, the D’s age is
1. less than 7, prosecution not allowed
2. less than 14, rebuttable presumption against prosecution
3. 14 or older, prosecution is allowed
90
When his mistake of fact the defense?
**Reasonable mistake of fact**: defense to any crime, except strict liability
**Unreasonable mistake of fact**: defense only to specific intent crimes
91
Is mistake of law ever a defense?
Only where a statute specifically makes knowledge of the law and element of the crime.
92
When will a defendant's use of non deadly force constitute the defense of self-defense?
If doing so is reasonably necessary to protect against an immediate use of unlawful force against himself.
93
When will a defendant's use of deadly force constitute the defense of self-defense?
An individual can use deadly force in self-defense only if he is facing an imminent threat of death or serious bodily harm.
94
Dudley punches Victor in the nose. In response, Victor pulls out a knife and runs at Dudley. Just before Victor is able to stab Dudley, Dudley pulls out a gun and shoots Victor, killing him. Will Dudley be able to plead self-defense under these facts?
R: D may not use deadly force if he is the initial aggressor unless if he withdraws from the fight and communicates that withdrawal to the other person or V suddenly escalates the fight into a deadly one.
Here, although Dudley was the initial aggressor, he was using non deadly force. Victor escalated the fight into a deadly one, allowing Dudley to regain the right to use deadly force in self-defense.
95
Is a defendant is required to retreat before using deadly force in self-defense?
Majority rule: retreat is not required.
Minority rule: retreat is required unless D
* cannot retreat in complete safety
* is in his home
* is making a lawful arrest
* is being robbed
96
If D is mistaken about the need to use force in self-defense, will D still have a defense?
**Reasonable mistake** is complete defense
**Unreasonable mistake**:
* _majority rule_: no defense
* _minority rule (MPC)_: mitigates but will not exonerate
97
Dudley is walking down a dark street, late at night, by himself. Suddenly, Victor appears out of a doorway and walks quickly toward Dudley. Dudley starts to get nervous and asks Victor what he wants. Victor doesn’t respond but, instead, reaches for his waistband. Dudley is afraid that Victor is about to pull out a gun; therefore, Dudley pulls out his own gun and fires, killing Victor. It turns out that Victor was just reaching for his wallet. Is Dudley guilty of a homicide offense?
Depends. If the jury finds that Dudley’s belief in the need to use deadly force was reasonable, he is not guilty of homicide. If the jury finds that Dudley’s belief in the need to use deadly force was unreasonable: 1) under majority rule, will be guilty of murder 2) under minority rule, will be guilty of manslaughter
98
When may force be used to prevent a crime?
Nondeadly force may be used, if reasonably necessary, to prevent any serious breach of the peace. Deadly force may only be used to prevent a felony risking human life.
99
When may an officer use deadly force to effectuate an arrest?
when doing so is
* necessary to prevent a **felon's escape**; _and_
* felon may cause **death or serious bodily harm**.
100
When will a defendant successfully raise the defense of necessity?
Where D reasonably believes that the conduct was necessary to prevent a greater harm, unless D is at fault in creating that situation. D also cannot cause the death of another person to protect property.
101
Dudley creates a firewall to prevent rapidly approaching wildfires from consuming an apartment building that houses physically disabled persons. In so doing, he redirects the fire to an empty warehouse, which burns to the ground. In the case against him, what is Dudley's best defense?
Necessity provides a complete defense to Dudley’s criminal responsibility for the destruction of property that resulted from his actions.
102
Dudley jumps into Alice’s car, points a gun at her head and tells her that he will kill her unless she helps him rob the bank across the street. If Alice helps Dudley rob the bank, what defense should Alice raise in her trial for robbery?
Duress provides a complete defense to any robbery charges filed against her. Duress cannot be a defense to murder.
103
To prevail on the entrapment defense, what must the defendant prove?
The criminal design originated with the gov't and defendant was not predisposed to commit the crime.
