Criminal Law Flashcards
When will a state have jurisdiction over a crime?
- Element committed in state
- Out-of-state act caused in-state result
- Crime involved neglect of duty imposed by statute within state
- Attempt/conspiracy out of state plus in-state act
- In-state conspiracy to commit out-of-state crime
May a jury be instructed to presume mental state?
No - prosecution carries BOP as to each element, including mental state.
What is prosecution’s burden of proof?
Beyond reasonable doubt
In general, what are hallmarks of crime classified as felony?
Punishable by death or imprisonment for more than one year.
In general, what are hallmarks of crime classified as misdemeanor?
Punishable by fine or imprisonment for a year or less.
What due process requirements apply to statutes?
- Must be fair warning (person of ordinary intelligence must be able to understand prohibited conduct AND
- No arbitrary/discriminatory enforcement.
If two statutes address same subject matter but dictate different conclusions, which statute will be followed?
More specific one.
What was common law merger rule?
If person engaged in conduct hat could constitute both felony and misdemeanor, could only be convicted of felony and the merger fell within.
What is modern law merger rule?
No merger anymore, except that
- solicitation and completed crime merge
- attempt and completed crime merge
Conspiracy does not merge.
MPC treatment of inchoate offenses and merger
Under MPC, D may not be convicted of more than 1 inchoate crime (solicitation, conspiracy, ottempt) when conduct was designed to culminate in the same offense
When does jeopardy attach in jury trial?
When jury is sworn in
When does jeopardy attach in bench trial?
When witness is sworn in
When does jeopardy attach in guilty plea?
When court unconditionally accepts the plea.
Does double jeopardy apply to civil proceedings?
No
When are statutes sufficiently different such that the prosecution for both will not constitute double jeopardy?
When the statutes each contain an element that the other does not, but NOT if only one statute requires an element that the other does not (b/c that would mean that one is a lesser included offense)
What is actus reus?
Bodily act. Must be voluntary.
Examples of non-voluntary acts that will not constitute actus reus:
- Being pushed
- Epilepsy/seizure
- Unconscious (unless knew would become unconscious and commit act)
When can an omission constitute an act, such that it meets actus reus requirement?
- Legal duty
- D has knowledge of facts giving knowledge to legal duty, AND
- Reasonably possible to perform duty.
What creates legal duty for actus reus omission requirement?
- Parent/spouse- special relationship
- Voluntary assumption of care
- Creation of peril for V by D
- By statute
- By contractual duty to render care
When can possession constitute an act (actus reus requirement)?
Generally, only need to show that D had control for item long enough to have opportunity to terminate possession.
- multiple people can concurrently possess
- may be constructive (if located in area within D control/dominion)
- re: state of mind (need not be aware of illegality, unless statute includes mind element (knowingly) - then must know identity/nature, but can’t consciously avoid learning true nature, and knowledge can be inferred from suspicion + indifference)
What are the specific intent crimes? (11) [common law]
Intent to commit the act itself.
Crimes against person
- Assault
- 1st degree premeditated murder
Crimes against property
- Larceny
- Embezzlement
- False pretenses
- Robbery
- Forgery
- Burglary
Inchoate offenses
- Solicitation
- Attempt
- Conspiracy
If defendant makes mistake w/r/t critical fact, it doesn’t matter whether reasonable or unreasonable. He is not guilty.
Voluntary intoxication is a defense, but must have been so drunk he didn’t know what he was doing.
What are general intent crimes? (4) [common law]
Battery, rape, kidnapping, false imprisonment
Awareness of all factors constituting the crime (aware acting, aware that any required attendant circumstances exist)
What are common law mens rea categories?
Specific intent, general intent, malice, strict liability
What is mens rea of malice? TO which crimes does it apply?
Common law murder and arson, OR statutory offense where malice/maliciously appears in definition.
Requires either
(1) intent or
(2) extremely reckless behavior; reckless disregard of obvious or high risk that particular harmful result will occur.
The malice to commit an underlying felony can be evidence of malice for murder if results in death.
Voluntary intoxication or unreasonable mistake of fact defenses DO NOT apply. Reasonable mistake of fact IS a recognized offense.
What are the two defenses that only apply to specific intent crimes?
Voluntary intoxication and unreasonable mistake of fact
Note: voluntary intoxication doesn’t count if you form the requisite intent before getting drunk to work up the courage; can still be charged with attempted murder.
Can general intent be inferred?
Yes, jury may infer merely from doing the act.
What are strict liability offenses under common law and MPC?
Doesn’t require awareness of all factors constituting crimes; act alone is enough.
Ex. selling liquor to minors, statutory rape.
Ex. public welfare offenses (contaminated foods, transferring unregistered firearms, shipping adulterated drugs in commerce)
Defenses that negate state of mind are not available.
What are MPC categorizations of mens rea?
- Purposely
- Knowingly
- Recklessly
- Negligently
What is MPC mens rea - purposely?
When “conscious object” is to engage in certain conduct or cause certain result. This is what D wants to do.
What is MPC mens rea - knowingly?
When D is aware that conduct is of particular nature, or that certain circumstances exist.
Knows, believes, or substantially certain that something will exist.
Knowledge can be inferred when aware of “high probability that circumstances exist and deliberately avoids learning the truth” OR when knows that conduct will “necessarily or very likely” result in result?
[ in short - when it’s practically certain]
What is MPC mens rea - recklessly?
Ex. manslaughter, battery.
Conscious disregard of substantial and unjustifiable risk that circumstances exist or that result will follow, constituting a gross deviation from standard of care that reasonable person would exercise?
Note both subjective (awareness) and objective (unjustifiable risk, gross deviation) elements
Voluntary intoxication is not a recognized defense.
If D made mistake critical to element of a crime, the mistake must be reasonable (didn’t mean to shoot person, meant to shoot deer)
What is MPC mens rea - negligence?
Fails to be aware of substantial and unjustifiable risk, when such failure is substantial deviation from objectively reasonable standard).
What type of causation is needed for criminal liability?
But-for causation and proximate cause
Under but-for causation, accelerated death still constitutes but-for.
Under proximate cause, must be natural and probable consequence
- Eggshell P rule applies
- No unforeseeable intervening event
When may a corporation be held liable for an act of its employee? (Enterprise liability)
When act performed by:
- agent of corporation acting within scope of employment, or
- corporate agent high enough in hierarchy to presume acts reflect corporate policy
In public welfare offenses, corporate leader can be held individually liable for corporate acts when agent stands in “responsible relation” to situation that created public danger
What is doctrine of transferred intent?
Intends harm actually accused, but to different V or object.
Defenses and mitigating circumstances usually can transfer (ex. voluntary manslaughter & adequate provocation)
Applies to homicide, battery, arson.
DOES NOT APPLY to attempt. (Ex. you intend to burn down your house, only reckless re: neighbor’s house, can’t be charged with attempted arson to your neighbor’s house)
Ex. if you intend to cause serious bodily harm to one, and then someone else dies, that’s common law murder.
What is the concurrence principle?
D must have required mental state at the time he does act.
Ex. if driving to V’s house to kill him but accidentally runs him over on the way no necessary concurrence for murder.
Who are the parties to a crime under common law?
Principal in first degree - actually engaged in act/omission that constituted offense, or caused innocent to do so
Principal in second degree - aid/command/encouraged principal and was present
Accessory before fact - assisted/encouraged but not present
Accessory after fact - w/ knowledge that other committed felony, assisted to escape
Needed conviction of the principal to convict accessory.
Who are parties to crime under MPC?
Principal: person who commits illegal act or causes innocent agent to do it. Liable for principal crime.
Accomplice: aids or encourages principal to commit illegal conduct. Liable if
- intended to assist
- intent that principal commit the crime, and
- encouragement
Must meet negligence/reckless standard if the statute requires it (test: intended to facilitate commission, and acted with recklessness/negligence). Scope of liability: crime itself and any foreseeable crimes.
Accessory after the fact: aids another to escape knowing that he committed felony. Liable for separate offense.
How can a person withdraw as accomplice?
Must do so before the crime becomes unstoppable. Must:
- repudiate (sufficient if only encouraged)
- attempt to neutralize (if participation went beyond encouragement)
Examples of neutralize: notifying police or taking other action, try to stop the crime from happening
What are elements of crime of solicitation? (Inchoate offense)
Inciting, counseling, advising, urging, or commanding another to commit a crime, with the intent that the person solicited commit crime.
Mental state: specific intent.
The essence is the asking.
Merger: if solicited person commits crime, that person and solicitor can be held liable for that crime (but it merges). If solicited person attempts or conspiracy, both parties can be held liable (but it merges).
What are defenses to the crime of solicitation?
Solicitor could not be found guilty because of legislative intent to except (i.e. 14 year old cannot solicit statutory rape).
MPC allows renunciation if D prevents crime. Most CL doctrines don’t recognize repudiation.
Not a defense that person solicited not convicted, or that offense wasn’t possible.
What are the elements of the crime of conspiracy?
Agreement
- between 2+ people to commit a crime,
- intent to enter into the agreement,
- intent by at least 2 people to achieve the objective of agreement
- PLUS an overt ACT in furtherance of that crime (majority) – mutual action/joint activity constitutes inferred agreement
Specific intent crime.
Co-conspirators are liable both for conspiracy and for all substantive offenses committed in furtherance of the conspiracy
What is the unilateral approach to conspiracy crime?
This is the modern, MPC approach.
Only one party needs to have genuine criminal intent.
Ex. D and cop conspire. D can be found guilty.
Ex. D may be found guilty if all other co-conspirators found innocent.
Ex. D may be found guilty if all other members were just pretending to agree.
What is bilateral approach to conspiracy crime?
Older, CL approach.
Need at least two parties to have genuine criminal intent.
Husband and wife could not conspire together under CL (though minority rule now). Corporation and agent can’t conspire.
Under Wharton rule, need 3+ people if crime necessitates 2 people.
Ex. D and cop conspire. D can’t be found guilty.
Ex. D can’t be found guilty if ALL co-conspirators found innocent/acquitted (doesn’t count if they just weren’t charged, or if charges were dismissed for some reason - can still be found guilty)
Ex. D cannot be found guilty if other members just pretending to agree, or are members of a protected class.
When does conspiracy terminate?
Upon completion of the wrongful objective. Unless already agreed upon, acts of concealment are not part of agreement.
If government defeats objective, conspiracy isn’t necessarily terminated.
When can D be held liable for co-conspirators’ crimes?
If crime was committed (i) in furtherance of the objectives of conspiracy, and (ii) were foreseeable. This is the Pinkerton Rule.
Pinkerton liability ends only when withdraws from conspiracy, applies prospectively and not retrospectively.
What are defenses to conspiracy?
Factual impossibility is NOT a defense to conspiracy (can conspire to kill a person who is already dead)
Withdrawal is generally not defense to conspiracy, since conspiracy only needs agreement + preparatory act. However, can be a defense to crimes committed in furtherance of conspiracy.
How does merger affect conspiracy prosecution?
It doesn’t - conspiracy and the completed crime are distinct and separate offenses
What is the Wharton Rule?
Where there is a crime that requires 2+ people to commit crime (adultery, dueling, i.e.), no conspiracy unless more parties (3 or more) conspire in the agreement.
Exception: when the statute doesn’t provide for the necessary parties.
When is withdrawal to conspiracy sufficient?
Must perform affirmative act that notifies all members of conspiracy of withdrawal.
- Must voluntarily give up plan, AND
- Communicate to all other participants in time for the other members to change/abandon their plans.
Effect of withdrawal: ends liability for substantive crimes, not for the underlying crime of conspiracy.
If provided assistance as accomplice, must neutralize.
What are elements of the crime of attempt?
An act, done with intent to commit a crime, that falls short of completing the crime.
Specific intent to commit the crime required. Thus, there can be no attempted involuntary homicide (reckless/negligence)
MERGES with other crimes!!
