Criminal Law Flashcards
Larceny
- Taking (exercise of control)
- Asportation (some movement)
- Corporal personal property of another (not real property)
- From possession of another
- Wrongfully – either without permission or with permission obtained by deception
- With (specific) intent to permanently deprive
Asportation vs. Taking
Asportation: only some movement of the property
Taking: some control adverse to owner
But, to complete the taking for larceny, ∆ need not remove the property from the premises.
Intent to Permanently Deprive
At the time of the taking, the ∆ must have intended to either:
a. permanently keep the property herself; or
b. do something with the property that would create at least a high risk that the owner would never get the property back
NOTE: taking with intent to return cannot be larceny
NOTE: what controls is what ∆ intended to do with the property at the time of the taking, not what actually happened to it
Coincidence Between Act & Intent
General Rule: when a crime requires both a particular act and an intent, ∆ must have the required intent when he does the act constituting the crime
EXCEPTION: continuing trespass rule (forming intent after taking and during possession sufficient only if original taking was wrongful)
Continuing Trespass Rule
Forming the intent after the taking and during the possession is sufficient only if the original taking was wrongful (i.e., without consent or with consent obtained by deception)
Embezzlement
- Possession of property under trust arrangement
- Conversion of that property (use of it contrary to the terms of the trust arrangement)
- With intent to defraud
NOTE: intent to return or replace the converted property does NOT show the lack of intent to defraud required for embezzlement
A person who has “possession” of the property of another can commit ________ but not ________ of that property.
Embezzlement; larceny
A person who has “custody” of the property of another does not have _________ and can commit ________ of that property.
Possession; larceny
NOTE: usually an employee only has custody of employer’s property and thus commits larceny by taking it
Possession (for purposes of embezzlement)
Extensive and discretionary control
False Pretense
- Obtaining title to property from another
- By means of a misrepresentation of: (a) present fact; or (b) past fact
- With intent to defraud
The following are not sufficient misrepresentations to commit false pretense:
- unkept promise
2. misrepresentation of future fact
Is an affirmative misrepresentation required to commit false pretense?
General Rule: usually an affirmative misrepresentation is required.
EXCEPTION: failure to correct a misunderstanding is sufficient if ∆ creates the misunderstanding
Receiving Stolen Property
- Receiving (taking possession)
- Of property acquired by larceny (or some other property crime)
- Knowing that the property is stolen
- With intent to permanently deprive
NOTE: the property must ACTUALLY be stolen when ∆ receives it
Robbery
Larceny in which property is taken either by:
a. force (violence); or
b. threat (intimidation)
Robbery by Force
Force must be used to obtain property or prevent victim from immediately regaining it
NOTE: force must be closely related to the taking of the property
Robbery by Threats
- Threats must be of imminent physical harm
- Victim must be put in fear of harm
- Threat must be such as would cause apprehension of immediate harm in a reasonable person
NOTE: action constitutes a threat only if a reasonable person would be put in fear of immediate harm
Extortion/Blackmail
Obtaining property by means of other threats, such as threats to:
a. Do something other than physical harm (e.g., threat to reveal an embarrassing fact or damage V’s property)
b. Do physical but not imminent harm
Despite ∆’s efforts, no force is involved in a robbery if:
- ∆ lifts the time from V’s pocket; or
2. ∆ slips the item from V’s hand without resistance
Burglary (Common Law)
- Entry
- By breaking (only some force to cause an opening)
- Of the dwelling of someone else
- During the nighttime
- With the intent to commit a felony inside the structure
NOTE: ∆ need not carry out intent to be guilty
NOTE: burglary can be committed by entering a part of a dwelling (going from one room to another), but not by entering a “thing” within the dwelling
Definition: Dwelling
Place actually used as sleeping place
In a burglary, entry can be made by a(n) _______.
Instrument
Modern Burglary Statutes Often…
- Expand places covered
- Eliminate need for breaking
- Eliminate requirement that entry be in the nighttime
- Expand intent
Intent to Commit a Felony
Prosecution must prove:
a. ∆ entered with intent to commit certain acts
b. those acts, if committed by ∆, would be a felony
NOTE: need not prove ∆ knew the law that made these acts a felony
NOTE: mistaken belief that one’s intended conduct would be a felony is not “intent to commit a felony”
Arson
- Malicious
- Burning
- Of another’s dwelling
NOTE: awareness of a high risk is enough to make burning malicious
Definition: Burning
- Some physical damage
- By FIRE (not smoke or heat)
- To a part of the structure itself
Year and One Day Rule
V must die within a year and one day from the infliction of the injury for it to be a murder
Proximate Causation Rule
Proximate causation exists if the victim’s death naturally results from ∆’s actions, even if this occurs in an unexpected manner, unless the events are extremely unusual.
Proximate Causation & Superseding Factor
Proximate causation is lacking if a superseding factor is interjected into the chain of causation. Such a factor must be:
a. independent of ∆’s actions
b. unforeseeable
c. the SOLE immediate cause of V’s death
NOTE: an intervening event cannot break chain of proximate causation if it only becomes a contributing cause of death
Malice Aforethought
- Intent to kill; or
- Intent to cause SBI; or
- Awareness of extremely high risk that death will result (abandoned and malignant hear/depraved mind); or
- Intent to commit a felony
Felony Murder
General Rule: accidental deaths caused during commission of a felony are murder
The death must have been foreseeable OR some courts require felony to have been “dangerous” as committed
NOTE: if ∆ has a defense to the underlying felony, the accidental death cannot be a felony murder
All cofelons are guilty of a felony murder if…
The death was foreseeable to THEM
NOTE: death during a felony may be foreseeable to some of the felons, but not to the others
Merger Rule (Felony Murder)
Felony murder cannot be based on felony assault or battery causing the death of the victim
The Agency Rule (Felony Murder)
Many courts will not apply felony murder if the fatal shot was not fired by one of the felons
Premeditation
Requires some conscious consideration over whether or not to kill
NOTE: a provoking incident, even if not enough to reduce killing to voluntary manslaughter, may show absence of premeditation
Degrees of Murder
First degree: certain felony murders & premeditated killings
Second degree: “malice aforethought” murders
Voluntary Manslaughter
An intentional killing that would otherwise be murder is REDUCED to voluntary manslaughter if 3 things are shown:
- Objectively reasonable provocation
- This actually caused ∆ to kill the victim
- ∆ acted on that before an objectively sufficient cooling period elapsed
NOTE: “mere words” are insufficient as a matter of law (but walking in on your SO cheating on you can be enough)
Involuntary Manslaughter
A killing is voluntary manslaughter if ∆ killed either:
- in the course of committing a misdemeanor; or
- with criminal negligence
Liability for Omissions
Criminal liability can sometimes rest upon a person’s failure to act.
An omission can be sufficient only if
- The ∆ has a legal duty to act (criminal, tort, k, or other law)
- ∆ was aware of the facts giving rise to the duty to act
- performing the duty was possible
NOTE: ∆ must also have necessary INTENT
NOTE: where ∆ has no legal duty to act, criminal liability cannot rest on ∆’s failure to take action
Rape
Sexual intercourse by a male with a woman not his spouse without the woman’s effective consent and by force
Fraud, Consent, and Rape
Fraud will render a woman’s consent ineffective only if the fraud goes to the nature of the act (fraud in the factum rather than fraud in the inducement)
I.e., saying something to get someone to sleep with you is not enough
Kidnapping
- Either (a) confining or restraining a person; or (b) moving a person; and
- without authority of law
NOTE: when the victim of a crime (e.g., robbery or rape) is confined or moved during the crime, many courts hold that kidnapping does not also occur unless the confinement or movement is not merely incidental to the other crime because it:
a. increases the risk to the victim; or
b. makes successful completion of the crime more likely
Constructive Possession
- Ability to exercise actual physical control
- With awareness of that ability
- For a period sufficient to enable the person to terminate the possession
Possession by actual physical control must involve more than _______ control.
Momentary
Parties to a Crime
All persons are guilty of a crime who:
- Commit the act constituting the crime; or
- Participate in it (as aiders and abettors) either before or during its commission; or
- Use an innocent agent to commit it
NOTE: assistance to the primary actor AFTER the crime is complete does not create liability for the crime
NOTE: acquittal of one participant does not affect the liability of others
Aiding and Abetting
Elements:
- Participation in the offense; and
- With the required intent
Participation can be by either:
a. Encouraging; or
b. Assisting the primary actor
To have the required intent:
a. Must know the primary actor is going to commit the offense; and
b. intent to encourage or assist him in doing so
NOTE: mere presence at scene of crime not enough
Exceptions to Liability as Aider and Abettor
A participant in an offense is not guilty of the offense if either:
- The participant is a member of the class of persons protected by the crime (e.g., statutory rape)
- The crime inherently involves several types of participants and only some are made liable (e.g., bribery or selling drugs)
Attempt
It is a crime to attempt to commit an offense.
Elements: to commit a criminal attempt, a person must
- Go far enough (i.e., do something constituting a substantial step toward the commission of the crime)
- With intent to commit the crime
Two-part intent:
a. Intent to complete the conduct constituting the attempted crime; and
b. Any intent necessary for the attempted crime
Possible Defenses to Attempt
Impossibility of success
NOTE: abandonment of attempt is NOT a defense
Impossibility Defense
General Rules:
Legal Impossibility IS a defense
Factual Impossibility is NOT a defense
Impossibility: Mistake About Ones Ability
It will be impossible for ∆ to:
1. Perform the conduct she has set out to perform; or
2. Cause the result she has set out to cause
BUT, ∆ mistakenly believes she will be successful.
This is FACTUAL impossibility and NOT a defense to attempt.
Impossibility: Mistake About Criminal Law
∆’s intended conduct would not constitute a crime if completed, but ∆ thinks it would be a crime because ∆ is mistaken about the criminal law.
This is LEGAL impossibility. ∆ WOULD have a defense against attempt.
Impossibility: Mistake About Circumstances
∆’s intended conduct if completed would not constitute a crime because one of the circumstances is not what is required for the crime. However, ∆ is mistaken about this circumstance.
I.e., if the circumstance was as ∆ believed it to be, her intended conduct would constitute a crime.
Traditional Rule: this is FACTUAL impossibility. ∆ would have no defense to attempt.
Solicitation
- Asking someone to commit an offense
- With intent that the person commit the offense
NOTE: solicitation is a crime even if it is immediately rejected or later abandoned
Conspiracy
- Entering into an agreement to commit a crime
- With the intent that the crime be committed
Modern statutes also often require an overt act in furtherance by one member of that group.
Defenses to Conspiracy
- Withdrawal
- No “meeting of the minds” (i.e., all other co-conspirators were acquitted)
NOTE: impossibility is NOT a defense
Co-conspirator Rule
All members of a criminal conspiracy are guilty of crimes committed by other members of that conspiracy if those crimes are both:
a. committed in furtherance of the scheme; and
b. a foreseeable result of the scheme
Withdrawal Defense to Conspiracy
- Withdrawal is no defense to the crime of conspiracy itself
- An effective withdrawal is a defense to a crime for which ∆ is liable under the co-conspirator rule
- For a withdrawal to be effective, it must be: (a) fully communicated to all other members of the conspiracy (b) before the crime is committed
No Meeting of Minds Defense to Conspiracy
- ∆ charged with conspiracy must be acquitted if ALL other members have been acquitted (or its equivalent)
- Equivalent to acquittal: (a) not guilty –> insanity (b) person did not intend to go through with crime/secret reservations
Ignorance or Mistake of Fact
Ignorance or mistake of fact will affect criminal liability only if:
- it shows ∆ lacked the intent required for the crime and
- the mistake was objectively reasonable
Modern Trend: Mistake of fact requires acquittal whenever it shows the lack of whatever mental state is required for the crime
NOTE: if mistake shoes absence of necessary specific intent, it need not be reasonable
Specific Intent Crimes
- larceny, any other property crimes (intent to permanently deprive or defraud)
- burglary (attempt to commit offense)
- attempt and conspiracy (intent to complete the target offenses)
- any offense defined as doing something “with intent to…”
NOTE: arson, rape, and murder are not specific intent crimes
Strict Liability Crimes
Does not require awareness of all the facts & mistake of fact is not a defense
Examples: statutory rape, bigamy, regulatory crimes (e.g., speeding)
Definition: Purpose
Conscious desire
Definition: Knowledge
Awareness of a practical certainty
Definition: Recklessness
Awareness of a substantial risk
Definition: Negligence
Reasonable person would have been aware of substantial risk
Statutory Construction When No Intent Specified
A modern crime usually requires that ∆ have acted at least recklessly concerning all physical elements of the crime
Transferred Intent
If ∆ intends to injury one person and accidentally inflicts a similar injury on another person, she will be treated as if she intended to injure the persona actually harmed
Ignorance or Mistake of Law
Ignorance that a criminal law makes one’s conduct a crime is not a defense.
HOWEVER, a ∆’s affirmative (but mistaken) belief that the criminal law did not prohibit her conduct is a defense if:
- That belief was objectively reasonable; and
- ∆ relied upon (a) a statute later held invalid; (b) a judicial decision later overruled; or (c) an official interpretation of the law by a public official
NOTE: advice of counsel is not enough
NOTE: occasionally the mens rea of a crime requires knowledge that the law is being violated. If this is the case, then advice of counsel may show the lack of that mens rea.
Crime requiring awareness of the law
If a crime requires awareness of the law, even unreasonable ignorance or mistake that shows lack of awareness will require acquittal
M’Naghten Rule –Insanity
∆ is entitled to acquittal only if facts show that at the time of the crime:
- He had a serious mental disease or defect
- This caused a defect in his reasoning abilities
- As a result, he did not either (a) understand the nature of the act he was doing or (b) understand his act was wrong
NOTE: under this approach, an insanity defense cannot be based upon loss of control
MPC Version of Insanity Defense
A ∆ is not guilty by reason of insanity if, as a result of serious mental disease or defect, he either:
- has lost the substantial capacity to understand his act or its wrongfulness; or
- has lost the substantial capacity to conform his conduct to the law’s requirement
Unconsciousness
Criminal liability must be based upon the “voluntary act” of a ∆.
If ∆ was unconscious, her behavior cannot constitute the necessary voluntary act.
NOTE: impaired consciousness may show absence of voluntary act, but not insanity
Involuntary Intoxication
Intoxication is involuntary if either:
- ∆ did not know the substance was intoxicating; or
- ∆ consumed the substance under duress
Effect: treated as a mental illness and insanity test applies
Voluntary Intoxication
∆ should be acquitted only if the crime requires proof of a specific intent and the intoxication shows he lacked that intent
Can disprove premeditation, but cannot disprove malice aforethought and reduce murder to manslaughter
Modern Statutory Analysis: voluntary intoxication requires acquittal if: (a) crime requires mental state higher than recklessness; (b) intoxication shows lack of this mental state
Minority Approach: voluntary intoxication is completely irrelevant to criminal liability. (Found const’l by SCOTUS)
Entrapment
Majority (Subjective) Rule – entrapment occurs only if:
∆ was not personally predisposed to commit the crimes of the sort charged, and police officers created the intent to commit the offense in her mind
Minority (Objective) Rule – entrapment occurs if police activity would cause a reasonable and unpredisposed person to form the intent to commit the crime
Necessity or Choice of Lesser Evils Defense
Generally, it is a defense that:
- ∆ believed committing the crime would prevent an imminently threatened harm;
- ∆ believed this threatened harm would be greater than the harm that would result from the commission of the crime
- these beliefs were objectively reasonable
Necessity is NOT a defense if either:
- ∆ wrongfully created the situation making the choice necessary
- ∆ killed another to avoid his own death
Duress or Coercion
General Rule: it is a defense that ∆was compelled to commit the crime by a threat that if he did not do so, the threatening person would do:
- Imminent physical harm
- to ∆or a third person
EXCEPTION: duress is not a defense to a crime that consists of an intentional killing
Self Defense
It is a defense that ∆ believed that:
- he was in imminent danger of being illegally physically harmed by another
- the force he used was necessary to prevent the threatened harm
- these beliefs were objectively reasonable
Self Defense + Deadly Force
If a crime involved deadly force, ∆has a defense only if she reasonably believed:
- she was threatened with imminent death or SBI
- deadly force used was necessary to prevent that harm to her
Need to Retreat Rules
Minority Rule: any opportunity to retreat must be taken before using deadly force
- applies only if retreat is possible with complete safety
- no duty to retreat when attacked in one’s own home
General Rule: opportunity to retreat is a factor to consider in determining whether deadly force was reasonable
Aggressor Rules
A person who starts a fight cannot use force in self-defense during the fight.
An aggressor regains the right to use force in self defense during a fight by either:
- withdrawing from the fight; or
- giving notice of desire to do so
Imperfect Defense in Homicide Case
A ∆ charged with murder who actually but UNREASONABLY believed killing was necessary in self-defense:
- not entitled to acquittal; but
- should be convicted of manslaughter rather than murder
Defense of Persons
It is a defense that:
- ∆ believed that another person was threatened with imminent unlawful physical harm by a third person
- ∆ believed that the force she used was necessary to prevent the harm
- Those beliefs were objectively reasonable
NOTE: availability of the defense turns on whether it reasonably appeared to ∆ that the person she aided was in the right
Defense of Property
General Rule: it is a defense that force was used in the reasonable belief that it was necessary to prevent unlawful interference with real or personal property
Limits:
a. only nondeadly force can be used to defend property
b. force can only be used to prevent the interference, and not to regain the property, except in immediate pursuit.
