Criminal Law Flashcards
1
Q
What are the multistate sources of criminal law?
A
- Common law
- Model penal code (MPC)
- Majority statutory rules
2
Q
What are the essential elements of crimes?
A
- Physical act
- Mental state
- Causation
- Concurrence
3
Q
What crimes are sufficiently specific?
A
- Crimes against a person
- Crimes against property
4
Q
What is liability for the conduct of others called?
A
Accomplice liability
5
Q
What are the inchoate offenses?
A
- Solicitation
- Conspiracy
- Attempt
6
Q
What are the criminal defenses?
A
- Insanity
- Intoxication
- Infancy
- Self defense (self, others, property)
- Necessity & duress
- Entrapment
- Mistake of fact or law
7
Q
How does criminal law jurisdiction work in general?
A
Criminal law jurisdiction is territorial
A crime may be prosecuted in any state where either:
- An act that was part of the crime took place
- The result of the crime took place
8
Q
How does criminal law jurisdiction work in Virginia?
A
Virginia state courts can exercise jurisdiction if:
- The offense was committed wholly or partly in the state
- An attempt or conspiracy occurred
- Outside the state, but the necessary act took place in the state
- Inside the state, but the necessary act took place outside the state
9
Q
How does criminal law venue work in Virginia?
A
The trial must take place in the city or county where the crime occurred
The Commonwealth may prove where the crime occurred by circumstantial evidence but must do so by creating a strong presumption
10
Q
What is the burden of proof in a criminal case?
What does that mean regarding elements of the crime?
What does that mean regarding elements of any defense?
A
The prosecution must prove each element of the crime beyond a reasonable doubt
The proseuction must disprove each element of any defense raised beyond a reasonable doubt
11
Q
Are there any exceptions to the burden of proof in a criminal case?
A
In most states, the insanity defense must be proven by the defendant by a preponderance of the evidence
12
Q
What is a felony?
A
Any crime that may be punished by more than 1 year in prison
13
Q
What is a misdemeanor?
A
Any crime for which the maximum punishment may not exceed 1 year in prison
14
Q
What are the different classes of felonies in Virginia?
A
- Class 1
- Death or life in prison
- Class 2
- 20 years to life
- Class 3
- 5-20 years
- Class 4
- 2-10 years
- Class 5
- 1-10 years, or
- Up to 1 year in jail, and/or
- Up to a $2,500 fine
- 1-10 years, or
- Class 6
- 1-5 years, or
- Up to 1 year in jail, and/or
- Up to a $2,500 fine
- 1-5 years, or
15
Q
What are the different classes of misdemeanors in Virginia?
A
- Class 1
- Up to 1 year in jail, and/or
- Up to a $2,500 fine
- Class 2
- Up to 6 months in jail, and/or
- Up to a $1,000 fine
- Class 3
- Up to a $500 fine
- Class 4
- Up to a $250 fine
16
Q
What is the physical act requirement for criminal liability?
What are examples that don’t meet the requirement?
A
An act is a voluntary bodily movement
The following are not physical acts:
- Sleepwalking or other unconscious movements
- Reflex or convulsion
- Blackout on medications once, not an act
- Blackout on medications 2 or three times, you have notice so it is an act
- Someone else moves the defendant
17
Q
When can a failure to act (i.e., an omission) meet the physical act requirement as a the basis for criminal liability?
A
The defendant must have:
- A legal duty to act, based on:
- Statute (e.g., filing tax returns)
- Contract or agreement (e.g., babysitter)
- Status-relationship, but only:
- Parent-child
- Spouse-spouse
- Voluntary assumption of care (e.g., starting to help)
- Creation of a peril (e.g., causing the problem)
- K__nowledge of the facts giving rise to the duty
- The ability to help
18
Q
What are the common law mental states?
A
- Specific intent
- Malice
- General intent
- Strict liability
*
- Strict liability
19
Q
What is specific intent?
What are the specific intent crimes?
A
Specific intent is when the crime requires not just the desire to do the act, but also the desire to achieve a specific result
- Assault
- M1
- Larceny
- Embezzlement
- False pretenses
- Robbery
- Forgery
- Burglary
- Solicitation
- Conspiracy
- Attempt
(“A Man Left Every Fact Reasonably Found By State Covered Already”)
20
Q
What are the specific intent crimes against the person?
A
Assault
M1
21
Q
What are the specific intent crimes against property?
A
Larcey
Embezzlement
Forgery
Robbery
False pretenses
Burglary
22
Q
What are the specific intent inchoate crimes?
A
Solicitation
Conspiracy
Attempt
23
Q
What is malice?
What are the common law malice crimes?
A
When a defendant acts:
- Intentionally, or
- With reckless disregard of an obvious or known risk
- Murder
- Arson
24
Q
What is general intent?
What are examples of general intent crimes?
A
The defendant need only be generally aware of the factors constituting the crime; he need not intend a specific result (i.e., the jury can usually infer general intent simply from the doing of the fact)
- Battery
- False imprisonment
- Kidnapping
- Forcible rape
25
What is strict liability?
What are the strict liability crimes?
Crimes that require simply _doing the act_ - _no mental state needed_
1. Public welfare offenses
* Regulatory or morality offenses that typically carry small penalties (e.g.,selling alcohol to a minor, selling contaminated food)
2. Statutory rape
* Having sex with someone under the age of consent
26
When will _mistake of fact_ be a valid defense?
(State it two ways)
If the crime requires:
* Specific intent
* _Any_ honest mistake of fact (even if unreasonable) is a defense
* E.g., mistaken belief as to ownership is a defense to burglary
* General intent
* _Only a reasonable_ honest mistake of fact is a defense
* E.g., mistaken belief as to consent is a defense to forcible rape
* Strict liability
* _No_ mistake of fact is a defense
* E.g., mistaken belief as to age is not a defense to statutory rape
A _reasonable_ mistake of fact is a defense to any crime unless it is a strict liability crime
An _unreasonable_ mistake of fact is only a defense to a specific intent crime
27
When will _mistake of law_ be a valid defense?
Mistake of law is generally _not_ a valid defense
Exceptions:
1. Statute specifically makes knowledge of the law an _element of the offense_
2. Statute was _not available_
3. Defendant reasonably relied upon a statute or judicial decision that was _overruled_ or _declared unconstitutional_
4. Defendant relied on _official interpretation or advice_ from someone charged with enforcement, administration, or interpretation of the law (but not a private attorney)
28
What are the MPC's mental states (i.e., levels of culpability)?
1. Intentionally (or purposefully)
* Defendant's _conscious object_ is to accomplish a particular result
2. Knowingly (or willfully)
* Defendant is _aware_ of what he is doing
3. Recklessly
* Defendant is _aware_ of a substantial and unjustifiable risk, and _consciously disregards_ that risk
4. Negligently
* Defendant _should have known_ about a substantial and unjustifiable risk
29
What is actual causation?
When the bad result would not have happened _but for_ the defendant's conduct
_Note_: an _accelerating cause_ is an actual cause
* E.g., if a victim will die in five minutes, and someone walks up and shoots him in the head, they are an actual cause of the death
30
What is proximate causation?
When the bad result is a _natural and probable result_ of the defendant's conduct
Key concepts:
* Foreseeability
* Fairness
31
What is the eggshell victim doctrine?
The defendant takes his victim as he finds him
So, the defendant is the _proximate cause_ even if the victim's _preexisting weakness_ contributed to the bad result
E.g., heart attack during robbery
32
What is the intervening causes doctrine?
A defendant is _not the proximate cause_ when an unforeseeable intervening event causes the bad result
33
What are the different types of causation?
Actual causation
Proximate causation
34
What is the concurrence requirement for criminal liability?
When does this issue arise the most?
The defendant must have the _mental state_ at the same time as he engages in the _act_
This arises the most in cases involving:
* Larceny
* Burglary
35
What are the elements of common law _battery_?
What is the requisite mental state?
* The _unlawful_
* Application of _force_ to another
* Resulting in either:
* _Bodily injury_
* _Offensive touching_
Mental state: _general intent_
36
What are the elements of common law _assault_?
What is the requisite mental state?
Version 1 (e.g., swing and a miss):
* Attempted _battery_
Version 2 (e.g., fake punch):
* The _intentional creation_
* Other than by _mere words_
* Of a _reasonable apprehension_ in the mind of the victim
* Of _imminent bodily harm_
Mental state: _specific intent_
37
When might there be _aggravated assault and battery_?
* _Weapon_ is used
* Victim is a child, elderly, handicapped, or otherwise _vulnerable_
* Intent is to commit a _robbery_ or a _rape_
38
What are the Virginia statutory assaults and bodily woundings?
1. Malicious wounding
* Malicious shooting, stabbing, etc.
* With intend to maim, disfigure, or kill
2. Aggravated malicious wounding
* Victim is severely injured and suffers permanent and significant physical impairment
3. Wounding while committing felony
* Offense consists of either:
* Shooting
* Stabbing
* Displaying a firearm
* While committing or attempting to commit a felony
4. Specific assaults/batteries that carry greater penalties
* Assault as a hate crime
* Assault on a:
* Law enforcement officer
* Firefighter
* Certain school employees
5. Injuring certain emergency personnel
* Unlawfully causing bodily injury with intent to maim, disfigure, disable, or kill while knowing it is a:
* Law enforcement officer
* Firefighter
* Emergency medical services worker
6. Assaulting family or household member
7. Stalking
39
For a homicide prosecution, when does the death have to occur under:
* Common law
* Virginia law
Common law
* Death must occur within _a year-and-a-day_ of the homicidal act
Virginia
* Death may occur at _anytime_
40
What are the elements of common law murder?
* Causing _death_
* Of _another person_ (i.e., not a fetus)
* With _malice aforethought_, which includes:
1. Intent to kill
2. Intent to inflict great bodily harm
3. Extreme recklessness (i.e., depraved heart)
4. Felony murder
41
What is the deadly weapon rule?
The intentional use of a deadly weapon creates an inference of the _intent to kill_
42
What is the rule regarding transferred intent?
If a defendant intends to harm one victim, but accidentally harms a different victim instead, the defendant's intent _will transfer_ from the intended victim to the actual victim
Exception:
* Transferred intent does not apply to _attempts_ - i.e., only to crimes with completed harms
43
Under the majority rule, what are the different degrees of murder?
What are their elements?
1. First degree murder (M1)
* Includes either:
* Any killing committed with both:
* Premeditation
* Deliberation
* Felony murder
* A killing committed during a _particular enumerated felony_
2. Second degree murder (M2)
* All other murders
44
What are the elements of common law _voluntary manslaughter_?
* An _intentional killing_
* Committed _in the heat of passion_
* After _adequate provocation_, which requires:
* Provocation that would arouse _a sudden and intense passion_ in the mind of an ordinary person,
* The defendant did not have time to _cool off_
45
What are the different types of common law homicide?
* Murder
* M1
* M2 (including felony murder)
* Voluntary manslaughter
* Involuntary manslaughter (including misdemeanor manslaughter)
46
What are the elements of common law involuntary manslaughter?
* A killing committed either:
* With _criminal negligence_
* _During a crime_ if it is not felony murder (i.e., sometimes called misdemeanor manslaughter)
47
What are the elements of common law felony murder?
* Defendant must be _guilty of the underlying felony_
* The felony must be _inherently dangerous_
* The felony must be _separate from the killing itself_
* The killing must be _during_ the felony or _during immediate flight_ from the felony
* The kiling must _in furtherance_ of the felony
* The death must be _foreseeable_
* The victim must not be a _co-felon_
48
What are the different types of Virginia homicide?
1. Capital murder
2. First degree murder (M1)
* Including felony murder
3. Second degree murder (M2)
4. Voluntary manslaughter
5. Involuntary manslaughter
6. Felony homicide
49
What are the elements of capital murder in Virginia?
_Willful_, _deliberate_, and _premeditated_ murder committed under 14 aggravating circumstances
50
What are the elements of M1 in Virginia?
Murder, other than capital murder, by one of the following:
1. Poison
2. Lying in wait
3. Imprisonment
4. Starvation
5. Any willful, deliberate, and premeditated murder that does not fall within capital murder
51
What are the elements of M2 in Virginia?
All murder is presumed to be M2
The burden is on the prosecution to elevate it to M1 or capital murder
The burden is on the defense to reduce it to manslaughter
52
What are the elements of felony murder in Virginia?
Any murder committed, _whether intentional or accidental_, during the commission of or during an attempt to commit:
1. Arson
2. Rape
3. Forcible sodomy
4. Robbery
5. Burglary
6. Abduction
7. Inanimate object sexual penetration
53
What is the difference between how common law and Virginia treats vicarious liability for homicide?
For vicarious liability to stick, it must be a co-felon that causes the death. Co-felons cannot be vicariously liable for death caused by a third-party
54
What are the elements of felony homicide in Virginia?
The _accidental_ killing, contrary to the intention of the parties, while committing a _non-enumerated felony_
_Note_: there must be some _causal connection_ between the felony and the killing
55
What are the elements of manslaughter in Virginia?
An unlawful killing without malice (e.g., in the heat of passion)
56
What are the elements of involuntary manslaughter in Virginia?
An accidental killing, contrary to the intention of the parties, either:
* During the performance of a _non-felony_
* During the improper performance of a lawful act amounting to _criminal negligence_
57
What are the elements of common law _false imprisonment_?
* The _unlawful_
* _Confinement_ of a person
* Without the person's _consent_
Mental state: _general intent_
58
What are the elements of common law _kidnapping_?
* _False imprisonment_ that involves either:
* _Moving_ the victim
* _Concealing_ the victim in a secret place
Mental state: _general intent_
59
When may kidnapping be deemed aggravated kidnapping?
* The purpose is to collect _ransom_
* The purpose is to commit _robbery_ or _rape_
* The victim is a _child_
60
What are the elements of Virginia kidnapping?
A person is guilty of kidnapping (abduction) if:
* By _force_, _intimidation_, or _deception_
* Without _legal justification or excuse_
* Seizes, physically detains, takes, transports, or secretes,
* Another person
* With _intent_ to either:
* _Deprive_ such person of personal liberty
* _Withold or conceal_ him from another person, authority, or institution lawfully entitled to his charge
61
What are the elements of common law forcible rape?
* _Sex_
* Without the victim's _consent_
* Accomplished either:
* By _force_
* By the _threat of force_
* When the victim is _unconscious_
Mental state: _general intent_
62
What are the elements of common law statutory rape?
* _Sex_
* With someone _under the age of consent_
Mental state:
* Majority: _strict liability_
* Minority (MPC): Reasonable mistake of age is a defense
63
What is the difference between rape under the Common law and in Virginia?
For spouses, it must be proven that either:
* The spouses were living _separate and apart_
* The defendant caused serious physical injury to the victim by _force_ or _violence_
64
What are the distinctions of Virginia statutory rape?
Sex with a child _under the age of 13_
If the child is _betwee the age of 13 and 15_, Class 4 felony (i.e., carnal knowledge)
65
What are the common law theft crimes?
* Larceny
* Embezzlement
* False pretenses
* Larceny by trick
* Robbery
66
What are the elements of common law larceny?
* The _trespassory_ (i.e., wrongful or without permission)
* _Taking and carrying away_ (i.e., moving)
* Of the _personal property_
* Of _another_ (i.e., someone with possession)
* With the _intent to steal_ (i.e., permanently deprive)
Mental state: _specific intent_
67
What is the erroneous takings rule?
A taking under a claim of right is never larceny
68
What is the doctrine of continuing trespass?
If a defendant _wrongfully_ takes property, but without the _intent to steal_, he is not guilty of larceny, unless:
* He _later_ forms the intent to steal
69
What are the elements of common law embezzlement?
* 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_
_Note_: money is not fungible, so if the defendant intends to reimburse the victim with different funds, he will have the intent to defraud
70
What is the key difference between common law larceny and embezzlement?
For embezzlement, the defendant must _already have lawful possession_
71
What is the difference between possession and custody?
Posession is more - it requires the authority to exercise some discretion over the property
So, if a bank teller wrongfully takes money from the cash drawer, that is larceny, not embezzlement, because the teller never had possession. He only had custody.
72
What are the elements of common law false pretenses?
* Obtaining title
* To the personal property of another
* By an intentional false statement
* With the intend to defraud
Mental state: _specific intent_
73
What is the difference between common law larceny and false pretenses?
In larceny, the defendant gets _possession_
In false pretenses, the defendant gets _title_
74
For false pretenses, what are the requirements for a false statement?
Must be of a past, present, or future event
Old view was that it could not be a future promise, but it probably can
75
What is common law larceny by trick?
When the defendant obtains possession (but not title) as a result of an intentional false statement
76
What are the elements of common law robbery?
* A _larceny_
* From another's _person_ or _presence_
* By _force_ or threat of _immediate injury_
Mental state: _specific intent_
77
What does the "from another's person or presence" requirement for common law robbery mean?
E.g., from the victim's vicinity or from the victim's house while he is in it
78
What does the "force" element for common law robbery mean?
Sufficient to overcome resistance (e.g., not picking a pocket)
79
What does the "threat of immediate injury" element of common law robbery mean?
Immediate injury (i.e., robbery)
* "Your money or your life"
Future injury (i.e., extortion, not robbery)
* "Give me your money or I'll break your legs tomorrow"
Embarrassment (i.e., blackmail, not robbery or extortion)
* "Give me your money or I'll post those photos"
80
What is Virginia larceny?
Any crime that would be the following under common law:
* Larceny
* Embezzlement
* False pretenses
81
What are the types of larceny in Virginia?
* Grand larceny
* Includes:
* Larceny from _another_ taking $5 or more
* Larceny _not from another_ taking:
* $200 or more
* A firearm
* Petit larceny
* Lesser amounts
82
What is the presumption of larceny in Virginia?
Someone in the _unexplained_ and _exclusive possession_ of recently stole property may be _presumed_ to be guilty of larceny
83
In Virginia, what is the relationship of larceny to robbery?
Larceny is a lesser-included offense of robbery (i.e., rebuttable presumption)
(This is unique in Virginia)
84
What are the elements of extortion in Virginia?
1. Either:
* _Threatening injury_ to the character, person, or property of another
* _Accusing_ another of any offense
And _thereby extorting_ money, property, pecuniary benefit, or any note, or other evidence of debt, or
2. Sending a note or an electronically transmitted communication threatening to _kill_ or do _great bodily harm_ to the victim or her family
85
What are the elements of foregery in Virginia?
* Making or altering a writing
* So that it is false
* With the intent to defraud
Mental state: _specific intent_
86
What are the elements of uttering in Virginia?
* Offering as genuine
* A forged instrument
* With the intent to defraud
Mental state: _specific intent_
87
What are the elements of malicious mischief in Virginia?
Destroying or damaging someone else's property
88
What are the elements of common law possession?
* _Control_ for a period of time long enough to have
* An _opportunity to terminate_ possession
* Of _contraband_ that is specifically criminalized
89
What is the meaning of "control" for purposes of the common law crime of possession?
Possession can be _constructive_.
The contraband just needs to be close enough for the person to exercise _dominion_ and _control_ over it.
90
What are the elements of common law burglary?
Describe each element in detail
* Breaking
* Creating or enlarging by force
* And entering
* Some part of the defendant's body must enter the building
* The dwelling
* A structure where someone regularly sleeps
* Of another
* Cannot be your own house
* At night
* Cannot be during natural light
* With the intent to commit a felony inside
* Specific intent
91
When is the continuing trespass doctrine applicable, and when is it not?
It is applicable for _larceny_ but not for _burglary_
92
What is different about the crime of burglary in Virginia?
Virginia has eliminated technical requirements, such as _at night_ (but if during the day there must be breaking, not so if at night) and expanded what a dwelling is
93
What are the elements of common law arson?
The _malicious burning_ (i.e., material wasting) of a building
Mental state: _malice_
94
What is different about the Virginia crime of arson?
* Burning
* Expanded to include use of _explosive devices_
* Building
* Expanded to include any building, but not outhouses
95
For purposes of accomplice liability, who is:
* The person who commits the crime
* The person who helps
* Principal
* Accomplice
96
What are the elements of accomplice liability?
* _Aiding_ or _encouraging_ the principal
* With the intent that the crime be committed
97
Under common law, what are the categories of accomplice liability?
1. Principal in the _first degree_ (not a crime)
* Criminal actor (i.e., commits at least one element of the crime)
2. Principal in the _second degree_ (not a crime)
* _Present_ and also either:
* Assisting
* Encouraging
3. Accessory _before the fact_ (not a crime)
* _Not present_ but either
* Assisting
* Encouraging
* _Before_ the crime
4. Accessory _after the fact_ (crime)
* Assisting the principal
* Who already committed a _felony_
* With intent to help him _avoid arrest or conviction_
98
What is an accomplice guilty of?
All crimes that he either:
* _Aided_
* _Encouraged_
* Should have _foreseen_
99
If the principal was not prosecuted or had an individual defense, is the accomplice guilty?
Common law
* No
Modern law
* Yes
100
Who is not an accomplice?
* Mere presence (i.e., must actually help)
* Mere knowledge (i.e., must actually help)
* Victims (i.e., member of a protected class)
101
What happens when an accomplice changes his mind?
It depends on what the accomplice did:
* _Encourager_ withdraws by:
* Discouraging
* _Aider_ withdraws by either:
* Neutralizing the asisstance
* Preventing the crime (e.g., notifying police)
102
What is the rule regarding accomplice liability in Virginia?
The following are treated as principals in _felony cases_:
* Principal in the second degree
* Accessory before the fact
Exception:
* In _murder_ cases, only the actual murderer can get the _death penalty_, unless:
* Murder for hire
* Terrorism
103
In Virginia, can an accessory be convicted if the principal is not?
Yes, so long as:
* It is shown that a crime was committed
104
In Virginia, how does an accessory withdraw?
Withdrawal must be:
* _Before completion_ of the felony
* In _due time_
* Doing _everything possible_ to both:
* _Detach_ from the crime
* _Prevent_ the crime
105
What are the inchoate offenses?
1. Solicitation
2. Conspiracy
3. Attempt
106
What are the elements of solicitation?
* _Asking_ someone to commit a crime
* With the _intent_ that the crime be committed
Mental state: _specific intent_
107
If a crime is never committed, can there be solicitation?
Yes. The crime is the _asking_
108
What are the elements of conspiracy?
* An _agreement_
* Between _two or more_ people
* To commit a _crime_
* Plus an _overt act_ (i.e., any act of preparation)
* In _furtherance_ of the crime
Mental state: _specific intent_
109
If a crime is never committed, can there still be a conspiracy?
Yes. The crime is in the _agreement_ (plus the overt act)
110
Can you have a one person conspiracy?
In other words, what if there is one guilty mind and five undercovers?
* Common law
* No. There must be at least _two guilty minds_
* If all other parties are acqutted, the last cannot be convicted of conspiracy
* MPC
* Yes.
* If all other parties are acquitted, the last can be convicted of conspiracy
111
What is the common law rule regarding the vicarious liability of co-conspirators?
In addition to conspiracy, all co-conspirators are liable for _other crimes_ committed by co-conspirators so long as the crimes were both:
* In _futherance_ of the conspiracy's objective
* _Foreseeable_
112
What are the Virginia distinctions regarding conspiracy?
1. Felony requirement
* Conspiracy must be to committ felony
2. Bilateral approach
* Must have two or more people
3. No overt act
* Agreement must be complete
4. Conviction
* Cannot be convicted of substantive offense and _then_ convicted of conspiracy for it
* Exceptions:
* Separate acts
* If the conspiracy is based on acts separate from the conviction, there may be a separate conviction
* Single trial
* Both convictions may take place in the same trial
5. Acquittal
* If a defendant is acquitted of the underlying felony, he cannot be prosecuted for conspiracy to commit it
113
When might there be cross-over between evidence and criminal law on an exam question about conspiracy?
Hearsay exception - statemens made in furtherance of a conspiracy are admitted against all conspirators
114
For common law attempt, what is the act requirement under:
* MPC/Majority
* Common law
* Virginia
MPC/Majority
* Conduct must be both:
* A _substantial step_ (more than mere preparation) towards the crime
* Strongly _corroborative_ of a criminal purpose
Common law
* Conduct must be:
* _Dangerously close_ to the commission of the crime
Virginia (not really different than MPC)
* Conduct must be:
* A _direct act_
* With the _intent_ to commit the crime
* But _falls short_ of completing the crime
*
115
What type of crimes cannot be attempted?
* Reckless crimes
* Negligent crimes
* Felony murder
116
What if it was impossible to commit a particular crime, can you be prosecuted for attempting?
Factual impossibility
* Yes. Factual impossibility is not a defense to attempt.
* E.g., trying to pickpocket someone with an empty pocket is still attempted larceny
Legal impossibility
* No. Legal impossibility is a defense to attempt.
* E.g., trying to sell baby powder when you think it is an illegal substance is not attempt
117
Can withdrawal be a defense to an inchoate crime?
Common law
* No, but:
* Once D withdraws, he cannot be vicarously liable for crimes committed _after_ withdrawal
MPC
* Only if both:
* D _voluntarily_ and _completely_ renounces the conspiracy, soliciation, or attempt
* Based on a _change of heart_ (i.e., not a fear of being caught)
118
When can a defendant be convicted of multiple crimes for the same conduct?
A lesser included offense is an offense that is necessarily included in the greater offense
Every element of the lesser offense must be included in the greater offense
A lesser-included offense _merges_ with the greater offense
Rules:
* Attempt
* Merges
* Conspiracy
* Does not merge
* Soliciation
* Merges
119
What are the capacity defenses?
* Insanity
* Intoxication
* Infancy
120
How do you prove insanity?
1. Show that defendant has a _mental disease or defect_
2. Apply one of the following tests:
1. M'Naughten
2. Irresistible impulse
3. Product
4. MPC
121
What is the M'Naughten test for insanity?
This is the oldest test. The defenant is insane if he either:
1. Did not _know_ his act was wrong
2. Did not _understand_ the nature of his act
122
What is the irresistible impulse test for insanity?
This is usually added to the M'Naughten test. The defendant is insane if he was either:
1. Unable to _control_ his actions
2. Unable to _conform_ his conduct to the law
123
What is the product test for insanity?
The defendant is insane if the crime was the _product_ of his mental illness
124
What is the MPC test for insanity?
This combines the first two common law tests - i.e., M'Naughten and irresistible impulse
The defendant is insane if he:
* Lacked the _capacity_ to either:
* Appreciate the _criminality_ of his conduct
* _Conform_ his conduct to the law
125
What is the Virginia test for insanity?
The defendant may _choose_ to use one of the following tests:
* M'Naughten
* Irresistible impulse
126
What are the procedural requirements for raising an insanity defense?
* Notice to state
* D must give the Commonwealth's attorney _notice_ of his intent to raise the insanity defense at least _60 days_ prior to trial
* Burden of proof
* D must prove insanity _to the satisfaction of the jury_
127
What is the distinction between the insanity defense and the incompetence defense?
Insanity
* Was D insane at the time of the crime?
* If so, no conviction
Incompetence
* Was D insane at the time of the trial?
* If so, trial adjourned
128
What are the requirements for the defense of intoxication under the common law?
What about in Virginia?
Common law:
* _Involuntary_ intoxication
* Can be a defense to _any crime_
* Apply the _insanity tests_
* _Voluntary_ intoxication
* Can be a defense to _specific intent_ crimes
* Must _prohibit_ defendant from forming specific intent
Virginia:
* _Involuntary_ intoxication
* Same as above
* _Voluntary_ intoxication
* Must have produced _permanent insanity_
* Exceptions:
* Can prevent _premeditation_
129
What are the rules regarding infancy under the common law?
What about in Virginia?
Common law
* Less than 7
* No prosecution
* Between 7 and 14
* Rebuttable presumption against prosecution
* Greater than or equal to 14
* Prosecution allowed
Virginia
* Same as above
* Child may be tried as adult if charged with offense that would be a felony if committed as an adult
130
What are the requirements for self-defense under the common law?
Non-deadly force (e.g., shoves and punches)
* Must be:
* Reasonably _necessary_
* To protect against an _imminent_ use
* Of _unlawful force_ against himself
Deadly force (e.g., guns and knives)
* Must be:
* Response to an _imminent threat_
* Of _death or serious injury_
* Agressor rule
* Self defense is not available when both:
* Defendant was the agressor
* Defendant did not regain right to use it by:
* Withdrawal and communication thereof
* And victim suddenly escalates from non-deadly to deadly afterwards
* Retreat rule
* Majority
* Retreat not required
* Minority
* Retreat required unless:
* D cannot retreat in complete safety
* D is in his home
* D is making a lawful arrest
* D is being robbed
131
What are the requirements for self-defense in Virginia?
Non-deadly force
* Must be:
* In response to a _reasonable appearance_
* That the force is _justified_
* Based on the defendant's _subjective view_
* __Retreat not required
Deadly force
* Must be:
* In response to an _imminent danger_
* Of _death or great bodily injury_
* When defendant is _without fault_
* __Retreat not required unless:
* Defendant is at _fault_
* Defendant did not _totally abandon_ attack
132
What if the defendant is mistaken about the need to use self-defense?
As long as the mistake is _reasonable_, he can still use self-defense
Minority/MPC
* If intentional killing, even _unreasonable_ mistake can support self-defense to reduce murder to voluntary manslaughter (i.e., imperfect self-defense)
133
When can non-deadly force be used to prevent a crime?
What about deadly force?
Nondeadly force - _any_ crime
Deadly force - a _felony_ risking human life
134
What is the common law rule regarding defense of others?
What is the Virginia rule?
Common law
* Look at the defendant
* Defense of others is allowed only if the _defendant_ reasonably believed the victim had a legal right to use self-defense
Virginia
* Look at the victim
* Defense of others is allowed only if the victim had a legal right to use self-defense (i.e., steps in their shoes)
135
When can a person use non-deadly force in defense of a dwelling under common law?
What about deadly force?
What about in Virginia?
Non-deadly force
* When the defendant _reasonably_ _believed_ it was necessary to either:
* Prevent unlawful entry
* Terminate unlawful entry
Deadly force
* When the defendant reasonably believed it was necessary to prevent:
* Personal attack on self or other
* Entry by someone who intends to commit a felony in the dwelling
Virginia:
* Deadly force only allowed when fearing great bodily injury
136
When can a person use non-deadly force in defense of property?
What about deadly force?
Non-deadly force
* Only when both:
* The need is _imminent_
* In _immediate pursuit_ if to regain possession
Deadly force
* Never just to defense property
137
When can a person use force to resist arrest?
Only if the arrest is inmproper, and only if non-deadly force is used
138
What is the necessity defense, and when can it be used?
It is when the crime charged of was caused by the circumstances
It can be used when the defendant reasonably believed the criminal conduct was necessary to _prevent greater harm_, but never for _homicide_
139
What is the duress defense and when can it be used?
It is when the crime charged of was caused by another person
It can be used when the defendant was:
* _Forced_ to commit a crime
* Under the _threat_ of either:
* Death
* Serious physical injury
It can never be used for _homicide_
140
What is entrapment and when can it be used as a defense under the common law?
What about in Virginia?
Very narrow defense when the government unfairly tempted a person to commit a crime
Common law
* Can only be used when:
* The criminal design _originated with the government_
* The defendant was not _predisposed_ to commit the crime
Virginia
* Same, but
* Government can use prior crimes to show predisposition if the prior crime was:
* Close in time
* Similar
* Probative value outweighs prejudice
141
What is perjury and was are its consequences?
Either:
* Willful false swearing regarding a material matter while under oath
* Subsequently giving conflicting testimony under oath to the same matter
Consequences:
* Cannot hold office
* Cannot serve as a juror
142
What is subornation of perjury and what are its consequences?
Inducing another to give false, material testimony
Defendant can be punished as if committed perjury
143
What is bribery?
* Either giving:
* A _corrupt gift_ or _offer thereof_
* To a _public official or candidate_
* With the intent to _influence_ his official acts
* Or accepting:
* A bribe
* If recipient is a:
* Public employee,
* Public official, or
* Candidate for public office
144
What is obstruction of justice?
Either
* Attempt to intimidate:
* Witness
* Officer of the court
* Law enforcement officer
* Willful false statement or representation
* To law enforcement officer
* Who is conducting an investigation
145
What are false reports?
Knowingly giving false reports with intend to mislead police officers as to the commission of a crime
146
What is concealing/compounding offenses?
Either
* Taking money to compound, concel, or not prosecute
* Concealing or destroying evidence with intent to hinder prosecution
147
What is resisting arrest?
When a person prevents a law enforcement officer, with or without a warrant, from lawfully arresting him
