Criminal Law Flashcards
Actus Reus
A voluntary act is required. Bad thoughts or involuntary acts do not prove a crime.
Failure to act gives rise to liability only if:
- There is a legal duty to act
- The defendant has knowledge of the facts giving rise to the duty to act; and
- It is reasonably possible to perform the duty
A legal duty may be imposed by…
Statute, contract, special relationship, creation of the peril, or by voluntary assumption of a duty to act.
Common Law Mens Rea includes:
Specific intent, general intent, and strict liability.
Specific Intent is…
Intent to commit the act and intent to commit the crime.
Subjective Test
The major Specific intent crimes are:
- Solicitation
- Attempt (specific intent crime even if the crime attempted is not)
- Conspiracy
- First Degree Premeditated Murder
- Assault (Attempted Battery)
- Larceny
- Robbery
- Forgery
- False Pretenses
- Embezzlement
Malice is…
intentional or reckless disregard of an obvious or known risk.
Subjective Test
Major Malice Crimes are…
- Common Law Murder
2. Arson
General Intent:
The intent to commit the act but not necessarily the intent to commit any crime.
Subjective Test
Major General Intent Crimes
- Battery
- Rape
- Kidnapping
- False Imprisonment
Strict Liability:
No mens rea required
Major Strict Liability Crimes
- Statutory Rape
- Selling Liquor to Minors
- Bigamy (some jurisdictions)
The MPC eliminates the common law distinctions between general and specific intent and adopts the following categories of intent:
- Purpose
- Knowledge
- Recklessness
- Negligence
- Strict Liability
MPC Purpose meaning:
Actual desire or with intent to engage in certain conduct or cause a certain result.
Subjective Test
MPC Knowledge meaning:
Awareness
Subjective Test
MPC Reckless meaning:
conscious disregard of a substantial and unjustifiable risk; or wantonly.
Involves both objective and subjective elements
MPC Negligence meaning:
Gross Negligence; failure to be aware of a substantial and unjustifiable risk.
Objective test
Transferred intent:
If defendant had the required mens rea as to one victim, this mens rea is proven to any other victim.
Exception to Transferred Intent:
No transferred intent for attempt
MD exception to transferred intent
Concurrent Intent: If Defendant shoots multiple bullets at one victim who defendant intends to kill, defendant may be guilty of attempted murder of another person inside the “kill zone.”
Doctrine of Concurrence:
The mens rea and the actus reus must exist at the same time.
Solicitation elements
Actus Reus: inciting, counseling, advising, urging, or commanding another to commit a crime
Mens Rea: Intent or purpose that the person solicited commit the crime.
Is change of mind/renunciation a defense to solicitation?
Generally it is not; however, the MPC recognizes renunciation as a defense if the defendant prevents the commission of the crime, such as by persuading the person solicited not to commit the crime.
Is impossibility a defense to solicitation?
No, nor is it a defense that the solicitor is not convicted.
Protected Class Exception to solicitation:
An underage girl who urges older male to engage in sexual relations is NOT guilty of solicitation.
Solicitation Merger
If the person commits the crime solicited, both that person and the solicitor can be held for that crime.
Solicitor cannot be punished for both the solicitation and other offenses.
Conspiracy elements:
Actus Reus: an agreement between two or more persons to accomplish a criminal or unlawful purpose, or to accomplish a lawful purpose by unlawful means.
Mens Rea: The purpose of the agreement is to actually achieve the objective of the agreement.
Conspiracy to commit a strict liability crime requires specific intent
For Conspiracy, does the agreement need to be express?
No, if two or more persons jointly commit a crime an agreement may be inferred.
Common Law and Maryland: No overt act is required
Does Conspiracy have a merger element?
No, the defendant may be guilty of both conspiracy and the substantive crime.
Unilateral Approach to Conspiracy
MPC/ Modern Trend: Only one party need to have genuine criminal intent
Bilateral Approach to Conspiracy
Common Law: requires two parties have the genuine criminal intent.
May a conspirator limit his liability for crimes committed by other members of the conspiracy?
Yes, a conspirator may limit or avoid liability for other crimes done in furtherance of the conspiracy if he/she withdraws from the conspiracy. Withdraw requires an affirmative act that notifies all members of the conspiracy in time for them to abandon their plans.
Does the Protected class apply to Conspiracy?
Yes
Wharton Rule:
If the substantive crime requires two persons, there is no conspiracy to commit this crime unless additional persons agree than are necessary for the crime.
Ex: because two people are required to commit adultery, it takes three people to conspire to commit adultery.
Is impossibility a defense to conspiracy?
No, it is not a defense. If two people conspire to kill a person who they do not know is already dead both will be guilty of conspiracy.
Attempt Elements:
Actus Reus: An act beyond mere preparation
Mens Rea: Specific intent to commit a crime
How much beyond mere preparation must one go?
- Common Law: proximity test- whether the D came dangerously close to completing the crime.
- MPC/MD: Substantial step test- whether the defendant made a substantial step to completing the crime.
Is legal Impossibility a defense to attempt?
No, just because the facts make it impossible to commit the completed crime does not mean the defendant is not guilty of the attempted crime.
Is factual impossibility a defense to attempt?
No, if the substantive crime is incapable of completion due to some physical or factual condition, unknown to the defendant…does not matter.
Is abandonment a defense for attempt?
No, once a defendant with the required mens rea has performed the required act beyond preparation, defendant’s abandonment of completing the crime is Not a defense to attempt.
Battery elements:
Actus Reus: Unlawful application of force resulting in bodily injury or offensive touching.
Mens Rea: General intent: must intend the actual touching but no need to prove intent to commit a crime.
Is consent a valid defense to Battery?
Yes…example boxing match
Assault elements:
Actus Reus: either attempted battery or the intentional creation of reasonable apprehension of imminent bodily harm other than by mere words.
Mens Rea: specific intent
Mayhem
Dismemberment or disablement of a body part
Homicide
Acts reus: The killing of a human being
Two types of homicide:
Murder and Manslaughter
Murder:
The unlawful killing of a human being with malice aforethought.
Malice may be proven in murder by…
- Intent to kill
- intent to inflict great bodily harm
- reckless indifference to an unjustifiably high risk to human life (abandoned, malignant, or depraved heart)
- Homicide during commission of a felony
Fetal Homicide
General Rule: Victim must be born alive…If born alive but dies from prenatal injury it is homicide.
MD distinction: It is homicide if Defendant attacks a pregnant woman with intent (purpose) to kill unborn baby if baby is viable at time of attack.
Felony Murder:
A homicide that occurs during commission of certain felonies.
- Escape is part of the felony
- Commission of felony is considered completed if felon reaches a place of safety. (Objective test)
- Not felony murder if felony occurs AFTER the homicide
Felony must be inherently dangerous
Common Law and MD felonies that qualify for felony murder:
Common Law: Mr. & Mrs. Lamb- murder, rape, Manslaughter, robbery, sodomy, Larceny, arson, mayhem, burglary.
MD: Mrs. Baker (Mayhem, Rape, Sodomy, Burglary, Arson, kidnapping, escape, robbery)
Majority view of victim is killed during defendant’s commission of a felon by the police or victim of the felony.
And MD Hostage/ Shield exception:
Majority view: defendant is not guilty of felony murder
MD: If defendant uses a hostage as a shield in furtherance of a felony and the victim is subsequently killed this is considered felony murder.
First Degree Murder
Most statutes: murder by poison, torture, lying in wait, felony-murder, or if murder was premeditated and deliberate.
Premeditation generally means the decision to kill was made in cool and dispassionate manner.
Deliberation requires defendant to reflect on decision to kill “some appreciable period.”
Maryland First Degree Murder
Poison, lying and wait, premeditated and deliberate, and Mrs. Baker felony.
Second degree murder:
any murder that is NOT first degree murder, plus in Maryland felony murder other than Mrs. Baker as long as the felony is “dangerous to human life.”
Manslaughter
Homicide without MALICE
Voluntary Manslaughter
killing with adequate provocation and heat of passion
Involuntary Manslaughter.
Common Law: Homicide by criminal negligence
MPC: crime was committed with recklessness
Provocation is adequate ONLY IF:
- It was provocation that that would arouse sudden and intense passion (reasonable)
- Defendant was in fact was provoked
- There was not sufficient time between provocation and killing (no cooling off period)
- The Defendant in fact did not cool off
MD distinction: discovering spouse having sex with another is not good enough. This is murder.
Imperfect Self-defense:
If defendant kills victim with honest but unreasonable belief that victim was going to kill defendant, defendant guilty of voluntary manslaughter.
Year and a day rule:
Causation not proven if victim does not die within one year and a day.
Maryland distinction: rejects this rule (as do most states)
Rape:
Sexual intercourse by force or threat of force and no consent.
Mens Rea: general intent- D must only have intent to engage in sexual intercourse, but no need to prove intent to commit the crime of rape.
Husband and wife Rape
Common Law/MPC: rape between husband and wife is legally impossible
Maryland: May be rape between separated husband and wife.
Statutory Rape
Sexual intercourse with underage female
Strict liability: Defendant’s reasonable, honest belief that underage person is above the age of consent is NOT a defense in most states INCLUDING MARYLAND!
Consent is not a defense
Bigamy:
Being married to more than one person at the same time
Strict liability: Honest, reasonable belief that first spouse is dead or that divorce was valid is not a defense.
Larceny Elements:
- A Taking
- And carrying away (asportation)
- Of tangible personal property (not services, real property, or intangibles)
- Of another
- By trespass
- With intent to permanently deprive (specific intent)
Possession as it pertains to Larceny :
The property must be taken from the custody of another.
Embezzlement
fraudulent Conversion of another’s personal property by a person in lawful possession of that property.
False pretenses
Obtaining title to another’s property by making a false statement of past or present fact with specific intent to defraud the other person, and reliance by the other person. - specific intent
MD theft statute:
Crime of theft covers larceny, embezzlement, and false pretenses.
Covers services, and improper use of another’s personal property, defined as anything of value.
Covers intent to deprive for any period of time
Robbery
Larceny by force or threat of force
Defendant cannot be guilty of both larceny and robbery.
Extortion
Obtaining property of another by threat of violence or threat of economic harm to victim or another. The threat need not be of immediate harm.
Burglary
A breaking and entry of a dwelling of another at nighttime with the intent to commit a felony therein.
MD Distinctions: anytime during the day…not just at night, do not have to just have the intent to commit a felony…may be any crime, and does not just cover a dwelling, covers schools and public buildings as well.
Arson
Malicious burning of another’s dwelling
Parties to a crime Common Law:
- Principal in the first degree: Person who commits the crime
- Principal in the second degree:person who aids or encourages and is present at the scene
- Accessory before the fact: person who aids or plans the crime but is not present at the scene
- Accessory after the fact: person who helps the felon escape
All are guilty of same crime
Parties to Crime Modern Law:
- Principal: Person who commits the crime
- Accomplice: person who encourages or plans the crime whether at the scene or not.
Accomplice and principal are guilty of same crimes
Persons who help felon escape will be guilty of same crime but also of obstruction of justice or harboring a fugitive.
Parties to Crime MD;
Same as common law except that accessory after the fact is not guilty of the same crime.
Insanity
Defense for ALL crimes, including strict liability crimes
M’Naghten Rule: Defendant not guilty if the defendant has a disease of the mind that caused defendant to lack the ability at the time of crime to know that what he did was wrong or to understand the nature of his act.
Irresistible Impulse Test: Mental illness caused a sudden urge to commit a crime that could not be resisted.
MPC Test: Defendant not guilty if defendant as result of mental disease lacks the substantial capacity to appreciate that what he did was wrong or conform his conduct to requirements of the law.
Durham Test: Defendant not guilty if unlawful act was the product of a mental disease or defect
MD follows MPC test and requires defendant to prove insanity by preponderance of the evidence.
Intoxication
Involuntary Intoxication: D was forced to use an intoxicating substance by duress, or without knowledge of intoxicating influence. Complete defense to any crime if intoxication results in defendant satisfying insanity test.
Voluntary Intoxication: may negate the mens rea of specific intent crimes. Not negate general intent, malice, or strict liability crimes.
Infancy
Common Law: If at the time of the crime the D was under 7= not guilty…between 7 and 14 rebuttable presumption that D was capable of knowing wrongfulness of conduct. Over 14= treated as adult
MD: Over age of 18 treated as adult between 14-18 subject to transfer to juvenile court.
Self Defense and defense of others
Person who is not at fault is entitled to use reasonable force to protect himself or a third person from the imminent use of unlawful force.
Retreat: GR: No duty to retreat even if deadly force
MD: duty to retreat except when in own home
MD distinction: Person may protect a third person if honest and reasonable belief of right of third person to use self defense even if mistaken or wrong.
Defense of property
Non-deadly force may be used to protect dwelling if person reasonably believes such force is necessary to prevent or terminate another’s unlawful entry.
Deadly force may be used to prevent entry into a dwelling if reasonable belief that intruder intends to commit a felony in the dwelling which would result in loss of life or great bodily harm.
Duress
Defendant is not guilty of crime if D committed the crime under duress. Duress requires imminent infliction of death or serious bodily harm to defendant or a third person.
Does not apply to homicide!
MD: duress can mitigate murder to manslaughter
MD: duress is valid defense to felony murder
Necessity
Person reasonably believes that commission of the crime was necessary to avoid an imminent and greater injury to society than that involved in the crime. Objective test
Choice of two evils
Entrapment
Exists only if:
- The criminal design originated with law enforcement officers and
- The defendant was not predisposed to commit the crime prior to contact by the government.
Jurisdiction
For a state to have jurisdiction over a crime the crime must have occurred within the state or the harm to the victim must have been in that state.
Inferring possession of drugs from surrounding factors is known as what?
Constructive possession– If possession is only constructive, consider the following:
- the defendants proximity to the drugs;
- defendants proprietary interest in the place with the drugs are found; and
- whether under the common Enterprise theory, there is mutual use and enjoyment between the defendant and one in possession.
What is the crime of possession of a dangerous weapon? Name the elements
It is the wearing or carrying of a dangerous weapon, either concealed or carried openly with the intent to cause injury.
However, more than temporary possession is required.
False imprisonment – Maryland standard
False imprisonment is punishable as an aggravated assault, it requires the confining or detaining of a victim against the victims will buy assault or deception.
Which mental state applies to attempted murder of a bystander in Maryland and for the prosecution to show that what must they prove?
Concurrent intent – the prosecution must show:
1. That the defendant intentionally created the Killzone in order to kill his intended target, and 2. The bystander was in close proximity to the intended target.
False Imprisonment:
The unlawful confinement of a person without his valid consent.
MPC: requires that the confinement must interfere substantially with the victim’s liberty.
Kidnapping:
The unlawful confinement of a person that involves either 1. Some movement of the victim, or 2. Concealment of the victim in a secret place.
Aggravated Kidnapping:
Involves kidnapping for ransom, kidnapping for the purpose of committing other crimes, kidnapping for offensive purposes, and child stealing.
Lack of consent exists where (rape):
- Intercourse is accomplished by force
- Intercourse is accomplished by threats of great and immediate bodily harm
- The victim is incapable of consenting due to unconsciousness, intoxication, or mental condition, or
- The victim is fraudulently caused to believe that the act is not intercourse.
Larceny by Trick:
Victim is tricked by misrepresentation of fact into giving up mere custody of property, the crime is larceny by trick.
Receipt of stolen property:
- Receiving possession and control
- Of stolen personal property
- Known to have been obtained in a manner constituting a criminal offense;
- By another person;
- With the intent to permanently deprive the owner of his interest in it
Forgery:
- Making or altering
- A writing with apparent legal significance
- So that it is false
- With the intent to defraud
Malicious Mischief:
- The malicious
- Destruction of or damage to
- The property of another
If two persons commit a felony, and one felon kills someone during the commission of the felony, are they guilty of felony murder?
Yes, both are guilty of felony murder.
