Criminal Law Flashcards
What are the tests for insanity?
M’Naghten Rule
Irresistible Impulse Test
Durham (New Hampshire) Test
ALI/Model Penal Code
What is the M’Naghten Rule?
Defendant does not know right from wrong or does not understand his actions
A defendant is entitled to acquittal if (1) a disease of the mind, (2) caused a defect of reason, (3) such that defendant lacked the ability at the time of his actions to either know of the wrongfulness of his actions or understand the nature and quality of his actions
Delusions, belief that one’s actions are morally right, or loss of control due to mental illness are not defenses
What is the Irresistible Impulse Test
An impulse the defendant cannot resist
A defendant is entitled to acquittal only if, because of mental illness, he was unable to control his actions or conform to conduct under the law
What is the Durham (New Hampshire) Rule?
But for the mental illness, defendant would not have done the act
What is the Model Penal Code Rule?
A defendant is entitled to acquittal if he had a mental disease or defect, and, as a result, he lacked the substantial capacity to either: (1) appreciate the criminality of his conduct, or (2) conform his conduct to the requirements of the law
This test is the “modern trend”
What are the general rules for use of nondeadly force and use of deadly force in self-defense?
Nondeadly force - justified when a person reasonably believes force is necessary to avoid imminent injury or to retain property
Deadly force - the person reasonably believes that he is threatened with death or grave bodily harm (generally no duty to retreat, but minority rule requires a duty to retreat)
Same standards apply to defense of others (to protect another person)
When may the aggressor assert self-defense?
She (1) effectively withdraws from the confrontation, (2) communicates to the other her desire to withdraw, or
The victim of the initial aggression suddenly escalates the minor fight into a deadly altercation and the initial aggressor has no chance to withdraw
What are the elements of battery?
(1) Unlawful application of force
(2) To another
(3) Resulting in either bodily injury or an offensive touching
Generally a misdemeanor
What are the elements of aggravated battery?
(1) Battery with a deadly weapon,
(2) Battery resulting in serious bodily harm, or
(3) Battery of a child, woman, or police officer
Generally a felony
What are the elements of assault?
(1) An attempt to commit a battery, or
(2) (a) The intentional creation, other than mere words, (b) of a reasonable apprehension in the mind of the victim of (c) imminent bodily harm
If there has been an actual touching of the victim, then battery and not assault
When does assault become aggravated assault?
Assault committed with a deadly weapon or with intent to rape or maim
What is the difference from attempted battery assault and regular assault?
Attempted battery assault is a specific intent crime to intend but fall short of causing a battery
Regular assault is not a specific intent crime but instead is only a creation of reasonable apprehension of assault
What are the types of homicide?
Murder
Voluntary manslaughter
Involuntary manslaughter
Felony murder
What are the elements of murder?
Definition - the unlawful killing of a human with malice aforethought
Malice aforethought exists if committed with one of the following states of mind:
- Intent to kill
- Intent to inflict great bodily injury
- Reckless indifference to an unjustifiably high risk to human life (“abandoned and malignant heart”), or
- Intent to commit a felony (felony murder)
Intentional use of a deadly weapon gives a permissive inference of intent to kill
When is murder in the first degree?
When defendant made the decision to kill in a cool and dispassionate manner, even if only for a brief period of time
- The decision to kill was deliberate and premeditated
First degree murder based on premeditation requires a specific intent, which may be negated by the defense of voluntary intoxication.
- If the defendant was so intoxicated that he was unable to premeditate, he can only be convicted of second degree or common law murder, which requires only reckless indifference to human life (and for which voluntary intoxication is not a defense)
What is voluntary manslaughter?
A killing that would be murder but for the existence of adequate provocation
Provocation is adequate only if:
- (1) It would arise a sudden and intense passion in the mind of an ordinary person, causing him to lose self-control
- Such as exposure to a threat of deadly force, finding your spouse in bed with another, or being a victim of a serious battery
- (2) The defendant was actually provoked
- (3) There was not sufficient time for the passions of a reasonable person to cool, and
- (4) The defendant did not in fact cool off
What is involuntary manslaughter?
A killing committed with criminal negligence (or recklessness under the MPC)
Some states require the killing occur during the commission of an unlawful act
Foreseeability of death may also be required
What is felony murder?
Any death caused in the commission of, or in an attempt to commit, a felony.
Malice is implied from the intent to commit the underlying felony
Felonies included (BARRK): burglary, arson, rape, robbery, kidnapping
- Some jurisdictions may include more felonies
Death must have been a foreseeable result to the felony
In most jurisdictions, a felon is not liable for the killing of a co-felon as a result of resistance
Under the “proximate cause” theory, felons are liable for the deaths of innocent victims other than a co-felon
Under the “agency” theory, the killing must be committed by a felon or his agent (i.e. an accomplice)
What is false imprisonment?
(1) Unlawful confinement
(2) Of a person
(3) Without the person’s valid consent
The MPC requires confinement “interfere substantially” with the victim’s liberty
What is kidnapping?
Same elements of false imprisonment plus:
Either (A) some movement of the victim, or (B) concealment of the victim in a secret place
Aggravated kidnapping includes kidnapping for ransom, for the purpose of committing other crimes, for offensive purposes, and for child stealing
What is rape?
Intercourse without effective consent
Under the traditional rule and the MPC, a husband cannot rape his wife, but many states have abolished this exception where the parties are estranged or separate
The slightest penetration is enough
Statutory rape occurs when the victim is under the age required for consent
What types of lack of effective consent constitute rape?
Actual force
Threats of great and immediate bodily harm
Victim incapable of consenting
Victim fraudulently caused to believe that the act was not intercourse
What is larceny?
(1) A taking
(2) And carrying away
(3) Of tangible personal property
(4) Of another
(5) By trespass
(6) With intent to permanently deprive
* The intent must exist at the time of the taking
What is the continuing trespass rule of larceny?
If the defendant wrongfully takes property without the intent to permanently deprive, but later decides to wrongfully keep the property, then the defendant is guilty of larceny
What is larceny by trick?
When the victim is tricked by a misrepresentation of fact into giving up custody of the property
- If the victim is tricked into giving up title to the property, then false pretenses
What is embezzlement?
(1) Fraudulent
* Defendant must intend to defraud
(2) Conversion
(3) Of personal property
(4) Of another
(5) By a person in lawful possession of the property
What is the difference from larceny and embezzlement?
In embezzlement, the defendant misappropriates property while it is in his rightful possession
In larceny, the defendant misappropriates property not in his possession
What is false pretenses?
(1) Obtaining title
(2) To personal property of another
(3) By an intentional false statement
(4) With intent to defraud
What is robbery?
The same elements of larceny, plus:
- By force or threats of immediate death or physical injury
What is receipt of stolen property?
(1) Receiving possession and control
(2) Of stolen personal property
(3) Known to have been obtained illegally
(4) By another person
(5) With intent to permanently deprive
What is burglary?
(1) A breaking
(2) And entry
(3) Of a dwelling
(4) Of another
(5) At nighttime
(6) With the intent to commit a felony in the structure
Modern statutes often eliminate the requirements of a breaking, a dwelling, and nighttime
What is arson?
(1) Malicious
* Intentional or reckless disregard of an obvious risk
(2) Burning
(3) Of the dwelling
(4) Of another
Damage is not required, charring is sufficient
Many modern statutes expand dwelling to be commercial structures, cars, etc.
What are the different intents for mental state?
Specific intent - intent to engage in proscribed conduct (subjective test)
- Attempt always must be a specific intent crime (i.e. murder may only require general intent, but attempted murder requires specific intent)
General intent - awareness of acting in proscribed conduct (subjective test)
Malice - Reckless disregard of an obvious or high risk that the particular harmful result will occur (subjective test)
Strict liability offenses - an offense that does not require any awareness of the factors constituting the crime (no subjective/objective test; irrelevant because of strict liability)
- Defendant can be found guilty from the mere fact she committed the act
What are the requisite intents for major offenses?
Specific intent
- Solicitation
- Attempt
- Conspiracy
- First degree premeditated murder
- Assault (attempted battery)
- Larceny, robbery
- Burglary
- Forgery
- False pretenses
- Embezzlement
General intent
- Battery
- Rape
- Kidnapping
- False imprisonment
Malice
- Common law murder
- Arson
Strict liability
- Statutory rape
- Selling liquor to minors
- Bigamy
What are the different intents required for specific intent crimes?
Solicitation - intent to have the person solicited commit the crime
Attempt - intent to complete the crime
Conspiracy - intent to have the crime completed
First degree premeditated murder - premeditated intent to kill
Assault (attempted battery) - intent to commit a battery
Larceny, robbery - intent to permanently deprive the other of his interest in the property taken
Burglary - intent to commit a felony in the dwelling
Forgery - intent to defraud
False pretenses - intent to defraud
Embezzlement - intent to defraud
When does a person act purposefully?
Conscious objective to engage in proscribed conduct (subjective test)
When does a person act knowingly?
Awareness that conduct is of a particular nature or will cause a particular result (subjective test)
When does a person act recklessly?
Consciously disregarding a substantial and unjustifiable risk (subjective and objective test)
When does a person act negligently?
Failure to be aware of a substantial and unjustifiable risk (objective test)
What is transferred intent?
When the defendant intends harm that is actually caused, but the harm is to a different victim or object
A person found guilty of a crime on the basis of transferred intent is usually guilty of two crimes: the completed crime against the actual victim and attempt against the intended victim
What are the modern rules for accomplice liability?
Principal - person who commits the illegal act or who causes an innocent agent to do so
- Liable for the principal crime
Accomplice (includes common law accessory before the fact) - person who aids or encourages principal to commit the illegal conduct
- Liable for principal crime if accomplice intended to aid or encourage crime
Accessory after the fact - person who aids another to escape knowing that he has committed a felony
- Liable for separate, less serious crime of being an accessory after the fact
What is the mental state required to be convicted as an accomplice?
Dual intent: (1) the intent to assist the principal in the commission of the crime, and (2) the intent that the principal commit the offense
What is the scope of liability for an accomplice?
(1) The crime he counseled, and (2) any other crimes committed in the course of committing the crime contemplated, as long as the other crime was probable or foreseeable
What are the requirements to withdraw as an accomplice?
Withdrawal must occur before the crime becomes unstoppable
Repudiation is sufficient withdrawal for mere encouragement
Attempt to neutralize assistance is required if participation went beyond mere encouragement
Notifying the police or taking other action to prevent the crime is also sufficient. A mere withdrawal from involvement without taking any additional action is not sufficient
What is solicitation?
Culpable conduct - solicitation of another to commit a crime
Mental state - specific intent that the person solicited commits the crime
Overt act - no act other than solicitation
Merger into substantive offense? - Yes
Is withdrawal a defense? Generally, No
What is conspiracy?
Culpable conduct - agreement between two or more people to commit a crime
Mental state - specific intent to (a) enter into an agreement, and (b) achieve the objective
Overt act - act in furtherance of the conspiracy (no overt act required under common law)
Merger into substantive offense? No
Withdrawal a defense? No, except for further crimes of co-conspirators
What is attempt?
Culpable conduct - performance of an act that would be a crime if successful
Mental state - specific intent to commit the particular crime attempted
Overt Act
- Model Penal Code - substantial step test
- Traditional rule - act dangerously close to success
Merger into substantive offense? Yes
Withdrawal a defense? Generally, No
What is the general rule for withdrawal/abandonment of inchoate crimes (soliciation, conspiracy, attempt)?
Abandonment is not a defense at common law
If defendant had the intent and committed an overt act, she is guilty of attempt despite the fact that she changed her mind and abandoned the plan before the intended crime was completed
The Model Penal Code provides that a fully voluntary and complete abandonment is a defense
For conspiracy, withdrawal may be a defense to crimes committed in furtherance of the conspiracy, but withdrawal from the actual conspiracy is not a defense
- Because the conspiracy is complete as soon as the agreement is made and an overt act is performed
When does a conspiracy terminate?
Upon completion of the wrongful objective
A conspirator may be held liable for crimes committed by other conspirators if the crimes (1) were committed in furtherance of the objective crime, and (2) were foreseeable
