Criminal Law Flashcards
Crime may be prosecuted in any state where
an act that was part of the crime took place, or
the result took place
In crim case, P must prove each element of the crime (standard)
beyond a reasonable doubt
NY: for affirmative defense, D must prove by (standard)
a preponderance of the evidence
Felony def:
A crime that may be punished by death or imprisonment for more than 1 year
Misdemeanor def:
A crime punishable by a fine and/or imprisonment for no more than 1 year
Failure to act can be the basis for crim liability, if three reqs are satisfied:
- Legal duty to act
- Knowledge of the facts giving rise to the duty
- Ability to help
Failure to act for crim liability: there is a legal duty in 5 ways:
- by statute
- by K duty
- by status rel.
- by voluntary assumption of care
- by creation of the peril
Specific intent def:
when the crime requires not just the desire to do the act, but also the desire to achieve a specific result
Malice def:
where D acts intentionally or w/ reckless disregard of an obvious or known risk
General intent def:
D need only be generally aware of the factors constituting the crime; he need not intend a specific result
NY’s 5 mental states:
- Intent/purpose
- Knowledge
- Recklessness
- Negligence
- SL
Actual causation in crim liability: accelerating cause?
Accelerating cause counts as actual cause, even though it’s not literally a “but for” case
Actual causation (criminal) general rule:
D is an actual cause if the bad result would not have happened but for D’s conduct
Proximate causation (criminal) general rule:
D is a prox cause if the bad result is a natural and probable consequence of the D’s conduct
Will D be considered a prox cause if an intervening event causes the bad result?
Not if it was an unforeseeable intervening event
Concurrence principal:
Crim D must have the required mental state at the same time as he engages in the culpable act (usually comes up in larceny and burglary)
CL elements of battery (crim):
Unlawful application of force to another, resulting in either bodily injury or an offensive touching
Mental state: general intent
CL elements of assault (crim):
intentional creation other than by mere words of a reasonable apprehension in the mind of the victim of an immediate bodily harm
Mental state: specific intent
NY elements of assault:
Intentionally causing physical injury to another person
Merely causing a reasonable apprehension is not assault (it’s “menacing”)
Impossible to memorize all degrees of NY crimes. But remember these 3 factors in calculus:
- Weapons (“add a gun, add a degree”)
- Injury - how serious? Physical injury (substantial pain), or serious physical injury (permanent or life threatening?)
- Quantity (of money, drugs, etc.)
Second degree assault (NY)
Intentionally causing SERIOUS physical injury
Elements of battery (NY):
Battery doesn’t exist in NY!
Elements of CL murder:
- Causing the death
- of another person
- w/ malice aforethought
Murder - malice aforethought can be 4 mental states:
- Intent to kill
- Intent to inflit serious bodily harm
- Extreme recklessness (reckless indifference to human life)
- Intentional commission of an inherently dangerous felony (“felony murder”)
The intentional use of a deadly weapon creates inference of:
an intent to kill
Def. transferred intent:
If D intends to harm one victim, but accidentally harms a different victim instead, D’s intent will transfer from intended victim to the actual victim
Does transferred intent apply to attempts?
NO, only to crimes w/ completed harms
Felony murder def:
Any killing caused during the commission of or attempt to commit a felony
NY limits felony murder to certain felonies (“BRAKES”)
Burglary Robbery Arson Kidnapping Escape Sexual assault
Felony murder limitations:
- D must be guilty of the underlying felony
- Felony must be inherently dangerous
- Felony must be independent of the killing
- Killing must take place during the felony or during immediate flight from the felony
- Death must be foreseeable
- Victim must not be a co-felon
Once a felon reaches a place of temporary safety
felony ends. Felony murder no longer rules
Felony murder: vicarious liability and prox cause theory:
if one of the co-felons prox 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 (e.g. bystander, cop)
NY “non-slayer” defense: NY provides a limited affirmative defense to felony murder if D can prove each of the following 4 things:
- D did not kill the victim
- D did not have a deadly weapon
- D had no reason to believe that his co-felons had deadly weapons, and
- D had no reason to believe that his co-felons intended to do anything that was likely to result in death
MBE: 1st degree murder def.
Any killing committed w/
- pre-meditation, and
- deliberation
MBE: 2nd degree murder def.
All other intentional murders, as well as depraved heart murder
NY: 1st degree murder def.
- intent to kill, and
- D is more than 18 years old, and
- at least one aggravating factor (victim is cop in official duties, murder for hire, intentional felony murder, witness intimidation, more than one victim intentionally killed)
NY: 2nd degree murder def.
- intentional killing that doesn’t qualify for 1st degree
- Highly reckless killing demonstrating depraved indifference to human life by engaging in conduct that creates a “grave risk” of death (more than 1 victim), or
- Felony murder, where victim is not a co-felon and is killed unintentionally
MBE: voluntary manslaughter def:
- an intentional killing
- committed in the heat of passion
- upon adequate provocation
4 CL requirements of voluntary manslaughter:
- provocation was objectively adequate (sudden, intense passion)
- D was actually provoked
- D didn’t have time to cool off
- D did not actually cool off b/w provocation and killing
NY: voluntary manslaughter def:
an intentional killing committed under the influence of extreme emotional disturbance
NY defense to murder: EED?
extreme emotional defense can act as an affirmative defense to 2nd degree murder, so D must prove EED by a preponderance of the evidence
MBE: involuntary manslaughter:
Killing committed w/ crim. negligence (gross deviation from standard of care), or
Killing committed during the commission of a crime to which felony murder doctrine does not apply
NY: 1st degree manslaughter
EED manslaughter, or an intent to cause serious physical injury
NY: criminally negligent homicide
D should have known of a substantial and unjustifiable risk of death
NY: aggravated homicide def
When victim of homicide is cop killed in the line of duty
NY: aggravated murder def
when D, over 18, causes the death of a child under 14 in an especially cruel and wanton manner
CL false imprisonment elements:
Unlawful confinement of a person w/o his consent
Mental state: general intent
NY: “unlawful” imprisonment (2nd degree)
- unlawfully
- restraining someone
- w/o their consent, and
- w/ knowledge that the restriction is unlawful
CL kidnapping elements:
False imprisonment that involves either moving the victim or concealing the victim in a secret place
Mental state: general intent
NY: kidnapping (2nd degree)
abducting someone (1st degree w/ ransom, death, etc.)
CL elements of forcible rape:
- sexual intercourse
- w/o victim’s consent
- accomplished by force, threat of force, or when victim is unconscious
Mental state: general intent
Statutory rape elements:
- sexual intercourse
- w/ someone under the age of consent
Mental state: SL!
NY: age of consent is
17
CL def of larceny:
Trespassory taking and carrying away the personal prop of another, w/ intent to permanently retain the prop
Larceny and the erroneous takings rule:
A taking under a claim of right is never larceny, even if D erroneously believes the prop is his
Can a D be guilty of larceny for taking his own property, if someone else had lawful custody of the prop when D took it?
Yes
CL Embezzlement def:
Conversion of the personal property of another by a person already in lawful possession of that property, w/ the intent to defraud
Mental state: specific intent to defraud
CL False pretenses def:
Obtaining title to the personal prop of another by an intentional false statement, w/ the intent to defraud
False statement must be of a present or past event
CL Robbery elements:
- a larceny
- from another’s person or presence
- by force or threat of immediate injury
Mental state: specific intent to steal
CL Forgery elements:
- making or altering a writing
- so that it’s false
Mental state: with the intent to defraud
NY larceny definition:
any crime that would be larceny, embezzlement, false pretenses, or larceny by trick at CL is considered larceny in NY
NY degrees of larceny:
1st degree: more than $1M
3rd degree: more than $3k
NY robbery (2nd degree) definition:
forcible stealing, plus one of the following:
- D is aided by another who i actually present, or
- victim is injured, or
- a car is stolen
CL burglary def:
Breaking and entering the dwelling of another at night w/ the specific intent to commit a felony inside
NY burglary (3rd degree) elements:
- entering or remaining
- in a building
- unlawfully
- w/ the intent to commit any crime inside (not just felony)
CL arson def:
Malicious burning of the dwelling of another (“scorching” not enough)
Mental state: malice (not intent!)
NY arson degrees:
4th: reckless burning
3rd: intentional burning
2nd: D knows or should’ve known that someone was inside
1st: w/ an explosive device
CL possession of contraband. What is “possession?
Control for a period of time long enough to have an opportunity to terminate possession
Mental state: knowledge (of possession and of the item possessed)
Contraband - “constructive possession” def
Contraband need not be in D’s actual possession, so long as it is close enough for him to exercise dominion and control over it
CL receipt of stolen property elements
Receiving possession and control of stolen personal prop.
Mental state: knowledge that prop has been obtained criminally and w/ intent to permanently deprive owner of his interest in the prop
CL accomplice liability def:
accomplice is guilty of all crimes that he aids/encourages the principal, AND all other foreseeable crimes committed along w/ the aided crime
Mental state: w/ the intent that the crime be committed
NY accomplice liability wrinkle:
accomplice need not specifically intend that crime be committed. So in NY, you can be an accomplice to a crime of negligence or recklessness
CL accomplice liability: withdrawal rule
An accomplice can avoid crim liability by withdrawing before the crime is committed. What he must do to withdraw depends on how he assisted the principal
Encouragement: must repudiate the encouragement
Aid: must neutralize assistance or otherwise prevent crime
Withdrawal rule in NY:
Renunciation… Accomplice must make a substantial effort to prevent the commission of the crime
CL accessory after the fact: elements
- D must help a principal who has committed a felony
- w/ knowledge that crime has been committed
- w/ intent to help principal avoid arrest or conviction
CL solicitation def:
asking someone to commit a crime, w/ the intent that the crime be committed
Mental state: specific intent
CL conspiracy def:
an agreement b/w 2 or more ppl to commit a crime, plus an overt act in furtherance of the crime
Mental state: specific intent to enter into an agreement and to accomplish the objectives of the conspiracy
Can you have one-person conspiracy? (CL, NY)
CL: no
NY: yes, D may be guilty of conspiracy even if other parties are acquitted or were just pretending to agree
Conspiracy: Wharton rule def:
when 2 or more ppl are necessary for the commission of the substantive offense, there’s no conspiracy unless more parties participate in the agreement than are necessary
CL: vicarious Pinkerton liability:
In addition to conspiracy, D will be liable for other crimes committed by his co-conspirators, so long as those crimes:
were committed in furtherance of the conspiracy’s objectives and were foreseeable
Impossibility: defense to conspiracy
Never! Can still be convicted of conspiracy
Attempt: NY (strict) and MPC (generous) rules
NY: CL “proximity” test: conduct that gets dangerously close to commission of crime
MPC: conduct that constitutes a substantial step towards the commission of the crime, provided that conduct strongly corroborates the actor’s crim purpose
Mental state for attempt?
Attempt requires specific intent
So no attempt versions of recklessness, negligence, or felony murder
Impossibility - defense to attempt?
Factual impossibility is not a defense
Legal impossibility is a defense to attempt (not in NY)
Does conspiracy merge w/ the completed crime?
Never!
Do solicitation or attempt merge w/ the completed crime?
Attempt always merges.
MBE: Solicitation merges
NY: solicitation doesn’t merge
What is the threshold req for insanity defense?
A mental disease or defect
The M’Naghten majority test for D’s legal insanity:
D must prove he either:
- didn’t know his conduct was wrong, or
- didn’t understand the nature of his conduct
The MPC test for D’s legal insanity:
D lacked the substantial capacity to either:
- appreciate the criminality of his conduct, or
- conform his conduct to the reqs of law
MBE: Voluntary intoxication is a defense to what kinds of crimes?
Specific intent ONLY
NY: voluntary intoxication can be a defense to what crimes?
Intent and knowledge crimes, if intoxication prevents D from forming the required state of mind
CL infancy defense: rule of sevens
If D’s age at time of crime is less than 7, prosecution not allowed
D’s age less than 14, rebuttable presumption against prosecution
D 14 or older, P is allowed
NY infancy defense:
D under 13: crim prosecution as adult not allowed
D 16 or older: crim prosecution allowed for any crime
When is mistake of fact a defense under CL?
For specific intent crimes (ANY mistake), or for malice/general intent crimes (ONLY if mistake was reasonable)
When is mistake of fact a defense in NY?
For crimes of intent, knowledge, or recklessness, any mistake is defense.
Crimes of negligence: mistake must be reasonable
Rule for use of nondeadly force in self-defense
D may use nondeadly force if it’s:
- reasonably necessary
- to protect against an immediate use
- of unlawful force against himself
Rule for use of deadly force in self-defense
D may use deadly force if he is facing an imminent threat of death or serious bodily injury
“Initial aggressor” exception to D’s ability to use deadly force in self-defense
D’s can’t use deadly force if he is the INITIAL AGGRESSOR, unless
- D withdraws from the fight and communicates his withdrawal to victim, or
- victim suddenly escalates a non-deadly fight into a deadly one
Does D have a duty to retreat before using deadly force?
Usually no, but yes in NY (unless he can’t do so in safety or he’s in his home)
What if D makes a mistake re whether use of force is necessary?
If mistake is reasonable: complete defense
If mistake is unreasonable: no defense at all (majority/NY rule)
Can D use non-deadly force to prevent the commission of a crime?
Yes, as long as reasonably necessary to prevent any serious breach of the peace
Can D use deadly force to defend property?
NO, unless D is inside her dwelling and
- an intruder has gained entry in a tumultuous manner, and
- D reasonably believes the use of deadly force is necessary to prevent a personal attack on herself or someone else in the dwelling
Can D use force when resisting arrest?
If arrest is unlawful, D can use non-deadly force
***But in NY, force cannot be used unless arresting officer used excessive force
When is necessity a defense to crim liability?
When D reasonably believes that the conduct was necessary to prevent a greater harm
Duress defense def:
D was coerced to commit a crime b/c of threat from another person, of imminent death or serious bodily injury to himself or a close family member
When is duress not a defense?
When crime is homicide
***NY: duress is a defense for homicide
Entrapment defense elements:
- Crim design originated w/ the gov, and
2. D was not predisposed to commit the crime
Withdrawal from conspiracy means:
D is not liable for the subsequent crime. It does not provide a defense to the crime of conspiracy
