Criminal Law Flashcards
Sources of Law
Common law
Majority statutory rules
Model Penal Code
Essential Elements of Crimes
(1) Actus reus (Act)
(2) Mens rea (mental state)
(3) Causation
(4) Concurrence Principle
Specific Crimes
(1) Against person
(2) Property crimes
Parties to Crime and Liability for the Conduct of Others
(1) Accomplice liability
(2) Enterprise liability
Inchoate (incomplete) Offenses
(1) Solicitation
(2) Attempt
(3) Conspiracy
Defenses
(1) Insanity
(2) Voluntary intoxication
(3) Infancy
(4) Mistake
(5) Self-defense
(6) Necessity
(7) Duress
(8) Entrapment
Jurisdiction
A crime may be prosecuted in any state where
(a) an act that was part of the crime took place, or
(b) the result took place
Burden of proof
Prosecution must prove every element of the crime beyond a reasonable doubt
Felony
A crime that may be punished by (a) death or (b) imprisonment for more than one year
Misdemeanor
A crime punishable by (a) a fine and/or (b) imprisonment for no more than one year
Actus Reus (act requirement)
(a) Physical acts (“commissions”): voluntary bodily movements
- Does not include involuntary movements (e.g. sleepwalking, reflex, convulsion, act that is not the product of volition)
OR
(b) Omissions: failure to act can be basis if all three satisfied:
(1) Legal duty to act: (i) statute, (ii) contract, status relationship (e.g., parent-child, spouse-spouse), (iii) voluntary assumption of care, (iv) creation of the peril
(2) Knowledge of the facts giving rise to duty
(3) Ability to help
Common Law Mens Rea (mental state)
(1) Specific Intent
(2) Malice
(3) General Intent
(4) Strict Liability
Common Law Mens Rea: Specific Intent
Desire to do the act and achieve a specific result
11 specific intent crimes: (1) assault, (2) first degree murder, (3) larceny, (4) embezzlement, (5) false pretenses, (6) robbery, (7) forgery, (8) burglary, (9) solicitation, (10) conspiracy, (11) attempt
Defenses: (a) voluntary intoxication; (b) mistake of fact
Common Law Mens Rea: Malice
When a defendant acts intentionally or with reckless disregard of an obvious or known risk
Malice crimes:
(1) Murder
(2) Arson
Common Law Mens Rea: General Intent
The defendant need only be generally aware of the factors constituting the crime; he need not intend the specific result
General intent crimes: (1) Battery, (2) Forcible rape; (3) False imprisonment; (4) Kidnapping
Common Law Mens Rea: Strict Liability
When the crime requires simply doing the act, no mental state is required
Types of SL crimes:
(1) Public welfare offenses: regulatory offenses that implicate public health or safety and typically carry small penalties
(2) Statutory rape
Model Penal Code Mens Rea (mental state)
Five mental states:
(1) Purpose
(2) Knowledge
(3) Recklessness
(4) Negligence
(5) Strict Liability
Model Penal Code Mens Rea: Purpose
D acts purposely when it is his conscious desire to achieve a particular result
Model Penal Code Mens Rea: Knowledge
D acts knowingly when he is aware of what he is doing and is aware that the result is practically certain
Model Penal Code Mens Rea: Recklessness
D acts recklessly when he is aware of a substantial and unjustifiable risk, and consciously takes that
Model Penal Code Mens Rea: Negligence
D acts negligently when he should have been aware of a substantial and unjustifiable risk
Model Penal Code Mens Rea: Strict Liability
No mental state required
Causation
Need (1) actual causation and (2) proximate/legal causation
Actual Causation
D is an actual cause if the bad result would not have occurred but for the defendant’s conduct
-Exception: when an accelerating cause is an actual cause
Legal/Proximate Causation
D is a proximate cause if the bad result is a natural and probable consequence of D’s conduct
(a) Intervening causes: D not considered proximate cause if unforeseeable event causes the bad result
(b) Eggshell victims: D will be considered proximate cause even if victim’s preexisting weakness contributed to the bad result
Concurrence Principle
D must have the required mental state at the same time he engages in the culpable act
Most frequently arises in: larceny and burglary
Battery
(1) The unlawful application of (2) force to another (3) resulting in either (a) bodily injury or (b) an offensive touching.
Mental state: general intent
Assault
(1) Attempted battery
OR
(2) Reasonable apprehension: (a) the intentional creation, (b) other than by mere words, (c) of a reasonable apprehension in the mind of the victim (d) of imminent bodily harm (e.g. fake punch)
Mental state: specific intent
Homicide: Year and a Day Rule
Majority rule: death may occur at any time
Common law rule: death must occur within a year and a day of the homicidal act
Murder
(1) The unlawful killing (2) of another person (3) with malice aforethought
Mental state: malice aforethought, satisfied by any of the below:
(a) Intent to kill
(b) Intent to inflict serious bodily harm
(c) Extreme recklessness (reckless indifference to human life)
(d) Intentional commission of an inherently dangerous felony (felony murder)
Deadly Weapon Rule
The intentional use of a deadly weapon creates an inference of an intent to kill
Deadly weapon: any instrument used in a manner likely to produce death or serious bodily injury
Transferred Intent
If a D intends to harm one victim, but accidentally harms a different victim instead, the D’s intent will transfer from the intended victim to the actual victim
Applies most commonly to murder, but can apply to other crimes (e.g. battery and arson)
Exception: Transferred intent does not apply to attempts, only to completed harms
Degrees of Murder
First degree murder: any killing committed with (a) premeditation (forethought) and (b) deliberation (cool, calm, collected)
Second degree murder: all other intentional murders (including depraved heart murder, intent-to-do-serious-bodily-harm murder)
Felony Murder
Any killing caused during the commission of or attempt to commit a felony
Felony Murder: Common Limitations
(1) D must have committed the underlying felony
(2) Felony must be inherently dangerous (e.g. burglary, robbery, rape, arson, kidnapping)
(3) Merger rule: felony must be independent of the killing (e.g. underlying crime cannot be aggravated assault or battery)
(4) Res gestae principles: killing must take place during the felony or during immediate flight from the felony – once felon reaches temporary safety, felony ends
(5) Death must be foreseeable
(6) Victim must not be a co-felon
Felony Murder: Vicarious Liability
Proximate cause theory: In some states, if one co-felon 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 third party
Agency theory: In other sates, felony murder doctrine applies only if the killing is committed by one of the co-felons
Voluntary Manslaughter
(1) A killing that would otherwise be murder (2) committed in the heat of passion (3) upon adequate provocation
Voluntary Manslaughter: Provocation Requirements
To qualify for voluntary manslaughter, provocation must satisfy four requirements:
(1) Provocation must be objectively adequate: would arouse sudden and intense passion in the mind of a reasonable person (e.g., serious assault or battery; witness adultery)
(2) D was actually provoked (subjective)
(3) D did not have time to cool off (objective)
(4) D did not actually cool off (subjective)
Involuntary Manslaughter
Two types:
(1) A killing committed during the commission of a crime to which the felony murder doctrine does not apply (misdemeanor manslaughter or unlawful act manslaughter)
(2) Unintentional killing committed:
(a) Common Law: w/ criminal negligence (gross deviation from reasonable standard of care); or
(b) MPC/Modern Trend: recklessly (awareness and conscious disregard of substantial and unjustifiable risk of death)
False Imprisonment
Required Acts: (1) Unlawful (2) confinement of a person (3) without his or her consent
Mental state: general intent crime
Kidnapping
Required Acts: (1) False imprisonment (2) that involves either moving the victim or concealing the victim in a secret place
Mental state: general intent crime
Forcible Rape
Required acts: (1) Sexual intercourse (2) without the victim’s consent (3) accomplished by force, threat of force, or when the victim is unconscious
Mental state: general intent crime
Statutory Rape
Required acts: (1) Sexual intercourse (2) with someone under the age of consent
Mental state:
(a) Majority rule: strict liability
(b) MPC/Minority rule: a reasonable mistake of age defense
Larceny
Thieves Took Carmen’s Purse and Isaac’s Portfolio
Requirements:
(1) Trespassory: wrongful or unlawful
(2) Taking and Carrying away: property must be moved
(3) Personable property of Another: who had lawful custody/possession at time of taking?
(4) Intent to Permanently Retain the Property: if D intends to give back, lacks necessary intent to steal
Larceny: Erroneous Takings Rule
A taking under a claim of right is never larceny, even if D erroneously believes the property is his
Larceny: Continuous Trespass
If D wrongfully takes property w/o intent to steal, but later forms that intent, the initial trespasspory taking is considered to have “continued” and D will be guilty of larceny
(Exception to concurrence principle)
Embezzlement
Definition: 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
Distinguish from larceny because D has lawful possession
Possession involves more than mere custody – requires authority to exercise some discretion over the property
False Pretenses
Definition: Obtaining title to the personal property of another by a false statement made knowingly with the intent to defraud
Distinguish from larceny: D gets only custody of property; false pretenses, D gets title
Larceny by Trick
If D only obtains custody (not title) as a result of false statement, crime is larceny by trick not false pretenses
Robbery
Elements: (1) A larceny (2) from someone else’s person or presence (3) by force or threat of immediate injury.
Mental state: specific intent to steal
Robbery: force
Any amount of force sufficient to overcome resistance is sufficient
Robbery: threats
Need immediate injury – threat of future harm is not robbery, it’s extortion/blackmail
Forgery
Making or altering a writing so that it is false
Mental state: specific intent to defraud
MPC Theft
MPC and most states have consolidated common law property crimes of larceny, embezzlement, false pretenses, and larceny by trick into a single offense typically known as theft
Under this statutory approach, seriousness of the crime is determined by the value of the property taken
Common Law Burglary
(1) Breaking and (2) entering the (3) dwelling of (4) another (5) at night (6) with the intent to commit a felony inside
(1) Breaking: creating/enlarging an opening by at least minimal force; constructive breaking: entry gained through fraud, threats, or intimidation
(2) Entry: some part of D’s body must enter the building
(3) Dwelling: structure where someone regularly sleeps
(4) Of another: cannot burglarize your own house
(5) At night
(6) Intent to commit: specific intent crime (e.g. rape, rob, kill, assault)
MPC Burglary
Many states have eliminated technical common law requirements: breaking, dwelling, nighttime
Common Law Arson
Malicious burning of the dwelling of another
Mental state: malice
Burning: (1) requires material wasting (e.g. scorching insufficient) and (2) building itself must burn
Moder Statutory Arson
Under MPC and in most states, arson has been extended to include structures other than dwellings and to damage caused by explosion
Possession of Contraband
When a statute criminalizes the possession of contraband, possession means control for a period of time long enough to have an opportunity to terminate possession
-Constructive possession: close enough for D to exercise dominion and control over it
Mental state: knowledge of possession and character of item possessed
Receipt of Stolen Property
(1) Receiving possession and control (2) of stolen personal property
Mental state: (1) Knowledge that the property has been obtained criminally by another party and (2) with the intent to permanently deprive the owner of his interest in the property
Principal
Person who commits the crime
Accomplice
Person who helps:
(1) Acts (aids or encourages the principal)
(2) Mental state: intent to assist the principal and with the intent that the underlying crime be committed
- Recklessness and negligence crimes: If principal’s mental state is R or criminal/gross N, accomplice liable for “intentional conduct that aids the principal and manifests the required recklessness or negligence”
Accomplice Liability
Rule: The accomplice is guilty of (1) all the crimes he aided or encouraged and (2) all other foreseeable crimes committed along with the aided crime
Not an accomplice if (a) mere presence or (b) mere knowledge
Accomplice Liability - Withdrawal
An accomplice can avoid criminal liability by withdrawing before the crime is committed. What he must do to withdraw depends on how he assisted the principal:
Encourager: withdraw by repudiating encouragement before crime committed
Aider: must neutralize assistance or otherwise prevent crime from happening
Accessory After the Fact
Common law: D must (1) help principal who committed a felony (2) with knowledge that the crime has been committed and (3) with intent to help the principal avoid arrest or conviction
Modern: in many jurisdictions, separate statutory crimes for accessories after the fact, e.g. obstruction of justice, harboring a fugitive, hindering prosecution
Enterprise Liability
General rule: when a corporate agent engages in criminal conduct, the corporation and the agent may be held criminally liable, if agent is acting (1) on behalf of corporation and (2) within the scope of his/her office
Public welfare offenses: when corporation commits a regulatory offense involving public health or safety, agents can be held criminally liable if the stand in “responsible relation to the situation” that created the public danger
Inchoate offense: Solicitation
Asking someone to commit a rime with the intent that the crime be committed
Mental state: specific intent
Completion of the crime is unnecessary; whether the other person agrees is irrelevant
Inchoate offense: Conspiracy
An agreement between two or more people to commit a crime plus an overt act in furtherance of the crime
-Agreement: express or proved by conduct (concert of action towards a common goal)
Mental state: specific intent to (1) enter into an agreement and (2) to accomplish the objectives of the conspiracy
Bilateral approach: need at least 2 people; if other parties acquitted, sole remaining D cannot be convicted
MPC approach: one person alone can be convicted of conspiracy even if others were acquitted or just pretending to agree
Impossibility is not a defense
Conspiracy - Wharton Rule
When 2 or more people are necessary for the crime, conspiracy only occurs when more people than necessary to commit the crime are in agreement
Conspiracy - Vicarious/Pinkerton Liability
In addition to conspiracy, D will be liable for crimes committed by co-conspirators as long as: (1) those crimes were committed in furtherance of the conspiracy’s objective and (2) were foreseeable
Inchoate offense: Attempt
Required acts: (1) overt act beyond mere preparation (cf. conspiracy) – (a) Common law: D must engage in conduct dangerously close to commission; (b) MPC/Majority: D must engage in substantial step towards commission that strongly corroborates actor’s criminal purpose
Mental state: specific intent to commit the underlying crime
-So, not attempt for unintentional crimes, i.e. recklessness crimes, negligence crimes, felony murder
Inchoate offenses: Withdrawal / Renunciation / Abandonment
Withdrawal is not a defense
Exception: once D withdraws from conspiracy, he is not longer vicariously liable from co-Ds’ crimes committed after he left BUT still guilty of conspiracy and all foreseeable crimes prior to withdrawal
Inchoate offenses: Merger Rules
(1) Solicitation and attempt merger with the completed crime
(2) Conspiracy does not merger
Defenses: Insanity
D must have a mental disease or defect - at the time of the crime
(1) Majority - M’Naghten Test: D must prove he either (a) did not know his conduct was wrong or (b) did not understand the nature of his conduct
(2) Minority - MPC: D must establish he lacked the substantial capacity to either (a) appreciate the criminality of his conduct or (b) conform his conduct to the requirements of the law
Incompetency
The issue is whether, at the time of trial, the D cannot either: (a) understand the nature of the proceedings against him or (b) assist his lawyer in the preparation of his defense
If (a) or (b) is found, trial is postponed until D regains competency
Defenses: Voluntary Intoxication
Common law approach: can be a defense to specific intent crimes but not to malice, general intent or strict liability crimes
Generally requires such severe “prostration of the faculties” that D cannot form the requisite specific intent
Defenses: Infancy
Common Law (Rule of Sevens):
(a) If at time of crime D is younger than 7, no prosecution allowed
(b) If at time of crime D is younger than 14, rebuttable presumption against prosecution
(c) If at time of crime D is 14 or older, prosecution is allowed
Defenses: Mistake of Fact
Common law: Whether D’s mistake of fact will be a defense depends on mental state for the crime and whether the mistake is reasonable or unreasonable
Specific intent: any mistake of fact (reasonable or unreasonable) will be a defense
Malice or general intent: only a reasonable mistake of fact will be a defense
Strict liability: mistake of fact will never be a defense
IN other words: a reasonable mistake of fact is a defense to all but strict liability; an unreasonable mistake of fact is only a defense to specific intent
Defenses: Mistake of law
Mistake of law is generally not a defense
Exception: if the statute specifically makes knowledge of the law and element of the crime
Defenses: Self-Defense (Justification) - Non-deadly Force
Individual may use non-deadly force in self defense if he is without fault and:
(1) reasonably believes that doing so is necessary (2) to protect himself from the imminent use (3) of unlawful force upon himself
Defenses: Self-Defense (Justification) - Deadly Force
Individual can use deadly force in self-defense only if (1) he is confronted with unlawful force, (2) is without fault, and (3) reasonably believes he is facing an imminent threat of death or serious bodily harm
Deadly force cannot be used to defend property
Defenses: Initial Aggressor Rule
A D may not use force in self-defense if he is the initial aggressor, BUT he can regain the right to use force in self defense if (1) he withdraws from the fight and communicates withdrawal to other person; OR (2) the victim suddenly escalates a nondeadly fight into a deadly one
Defenses: The Retreat Rule
In some states, D is required to retreat before using deadly force in self-defense
(a) Majority rule: retreat is not required
(b) Minority rule: retreat is required, unless (i) D cannot retreat in complete safety or (ii) D is in his home
Defenses: Self-Defense, Reasonableness, and Mistake
If D is mistaken about need to use force:
(1) Reasonable mistake: complete defense
(2) Unreasonable mistake: (a) Majority rule: no defense at all; (b) MPC/Minority rule: mitigates but does not exonerate
Defenses: Use of Force to Prevent a Crime
(1) Non-deadly force may be used, if reasonably necessary, to prevent any serious breach of the peace
(2) Deadly force may only be used to prevent a felony risking human life
Defenses: Defense of Property
Deadly force may not be used to defend property
Defenses: Use of Deadly Force by Law Enforcement
An officer may use deadly force only when doing so is reasonable under the circumstances
Defenses: Necessity (Justification)
Conduct that is otherwise criminal is justifiable if D reasonably believed it was necessary to prevent a greater harm
Defense not available if
(1) D causes the death of another person to protect property
(2) D is at fault in creating the situation that creates the choice of evils
Defenses: Duress
It is a defense to criminal conduct if D was coerced to commit a crime because of (1) a threat (2) from another person (3) of imminent death or serious bodily injury (4) to himself or a close family member
*Cannot be a defense to intentional homicide
Defenses: Entrapment
If D believes the government unfairly tempted him to commit a crime, he may claim entrapment
Majority Test (Subjective): D must prove (1) the criminal design originated with the government and (2) he was not predisposed to commit the crime
Minority Test (Objective): D must prove police activity was reasonably likely to cause an innocent person to commit the crime (D’s predisposition is irrelevant)
Attempted Murder - Mens Rea
In order to be convicted of attempted murder, D must have intent to kill
The following are not sufficient mens rea for attempted murder: malice aforethought, intent to inflict great bodily injury, intent to commit a felony, awareness of an unjustifiably high risk to human life
