Criminal Law all except fundamentals Flashcards
1
Q
What are the required elements to prove a crime?
A
we analyze the components of each crime:
* Act (actus reus)
* State of mind (mens rea)
* Causation
2
Q
ACT (actus reus) is
A
1) A voluntary, conscious act that causes an unlawful result; (Reflections/ sleepwalking lack volition so not legal acts)
2) Omission when D has the duty and ability to act
3
Q
A duty to act is created by:
A
a) Statutory duties (law enforcement)
b) Legal duty by K (life guard/nursing home)
c) Status (Husband/wife, parent/child)
d) Voluntary undertaking to rescue that is abandoned
e) Failing to help after creating risk (hit/run)
4
Q
MENS REA under common law:
A
1) general intent
2) specific intent
3) malice
4) strict liability
5
Q
General vs specific intent
A
Specific intent – Requires proof D intended to create specifically prohibited harm, including purpose or knowledge (“with intent to”). specific intent is nullified by honest but unreasonable mistake of fact and voluntary intoxication.
b) General intent – Only requires a desire to do the proscribed act; includes reckless and negligent states of mind. The general intent is nullified by honest and reasonable mistake of fact
6
Q
Malice is required for common law murder, how is it proven:
A
a) Express Malice: D intended to kill another human being.
To prove intent to kill, D acted with:
i) Purpose to kill;
ii) Knowledge that her conduct would kill; or
iii) Intent to inflict grievous bodily harm although no intent to kill
b) Implied malice: D caused death as a result of extremely reckless or criminally negligent conduct that manifested a wanton disregard for human life.
Wanton is: Wanton: Must be a very high probability of death or serious bodily harm. With
only a small risk, the state of mind is negligence
7
Q
Strict liability
A
SL crimes require no men s rea element only and Act that caused the about Result
8
Q
Transferred intent
A
intent transfers when D intends to produce a criminal result against one V but harms another
9
Q
Concurrence –
A
The mental state must (set in motion) conduct that produces a criminal result
10
Q
CAUSATION –
A
D was the Actual Cause + Proximate Cause of the crime
11
Q
Actual Cause is the
A
Cause in fact and there are 3 tests to satisfy
a) “But for” – Result would not have occurred but for D’s conduct
b) Substantial factor – multiple causes/parties responsible but D’s act was a substantial factor in causing criminal result
c) Acceleration – D’s conduct speeds up inevitable death, even if brief
12
Q
Proximate Cause is
A
Required only when an intervening event occurs between D’s actual cause and criminal
result.
The question becomes whether the intervening event supersedes D’s responsibility
a) If the intervening event is foreseeable, it will not supersede D still liable.
i) Foreseeable = negligence (take V as you find him, eggshell skull rule), was it Dependent or responsive to D’s initial cause
b) If it is unforeseeable normally will supersede and relieve D of liability and break the casual connection to criminal result
i) Unforeseeable = grossly negligent or reckless conduct that accelerates a death set in motion by D
(1) Independent intervening cause or a mere coincidence
13
Q
Types of Crimes:
A
felonies, misdemeanors, and violations (infractions)
14
Q
A felony is a crime..
A
punishable by death or imprisonment for more than one year
15
Q
a a misdemeanor
A
is a crime punishable by imprisonment for one year or less or by a fine
16
Q
At common law, Homicide is
A
the killing of a living human being by another, and includes the offenses of murder and manslaughter
17
Q
At common law, homicide was
divided into three categories:
A
(i) homicide justified by law,
(ii) criminal homicide, and
(iii) excusable homicide
18
Q
Criminal Homicide
A
is the unlawful killing of a human being by another
19
Q
Murder is
A
the Unlawful killing of a human being with malice aforethought
Homicide + malice
20
Q
Unlawful killing (actus reus)
A
Without legal justification or excuse (no defense), or Committed as a result of a criminal state of mind (criminal mens rea)
21
Q
Malice (mens rea)
A
It is the intent.
1) expressed malice (Express if expected to cause death
2) implied malice (Implied if created extreme risk)
3) intentional or unintentional
22
Q
Malice is established by: (four ways)
A
1) Intent to kill: D acts with the purpose to kill another or with the knowledge (substantial certainty) that his conduct will kill another.
2) Intent to inflict serious bodily harm: It is the conscious desire or substantial certainty that D’s actions will result in V’s injury.
3) Depraved Heart Murder (or unintended kill resulting from extreme risk creation that manifests a wanton disregard for human life)
4) Intent to commit a felony (felony murder rule).
23
Q
What is the Deadly weapons doctrine?
A
It is used when establishing expressed malice (intent to kill), and it states that Intent to kill is inferred from D’s use of an instrument designed to kill
or used in a manner likely to kill or inflict grievous bodily harm. (i.g. swinging bat at V’s head)
24
Q
What is considered Serious grievous bodily harm
A
significant but not fatal injury
25
Unintentional killing that establishes malice?
When there is 1) reckless or grossly negligent conduct 2) that creates an extreme risk to others 3) and demonstrates wanton indifference to human life or a conscious disregard of
unreasonable risk of death or serious bodily injury
(i.e. deprived heart murder)
26
Elements of depraved heart murder:
1) Reckless or grossly negligent conduct;
2) That creates an extreme risk to others; and
3) Demonstrates a wanton indifference to human life
Analysis:
There is a split among jurisdictions as to whether the requisite depravity exists
when a defendant is actually unaware of the risk involved in the conduct,
but the majority of states and the MPC impose liability only when the defendant actually realizes the danger.
(The minority objective standard imposes guilt if a reasonable person would have recognized the danger.)
Note that even those states that ordinarily follow a subjective standard allow a conviction if the reason the defendant failed to appreciate the risk was due to
voluntary intoxication.
27
Examples of a depraved heart murder:
Reckless Driving Resulting in Death: If a person engages in extremely reckless driving behavior, such as speeding excessively, running red lights, and weaving in and out of traffic, and as a result, causes a fatal car accident, they may be charged with depraved heart murder if their actions exhibited a callous disregard for the safety of others. Generally. HOWEVER, reckless driving alone will not lead to a charge of depraved-heart murder. Such a charge would be appropriate only if reckless driving was extreme, such as if it were combined with intoxication or other aggravating factors.
Firing a Weapon into a Crowd: Suppose an individual fires a gun indiscriminately into a crowded area without a specific target, demonstrating an extreme disregard for human life. If someone is killed as a result of this reckless act, the person who fired the weapon could potentially be charged with depraved heart murder.
Child Endangerment: In cases involving child abuse or neglect, if a caregiver's actions show an extreme indifference to the child's safety and well-being, resulting in the child's death, it may be considered depraved heart murder. For example, if a caregiver consistently withholds necessary medical treatment for a child's serious illness or injury, leading to the child's death, they may be charged with this offense.
Setting a Fire in an Inhabited Building: If an individual recklessly sets fire to an inhabited building, knowing that there are people inside, and someone dies as a result, they may be charged with depraved heart murder. The act of intentionally setting fire in a way that endangers human life exhibits a disregard for the potential consequences.
28
When is malice aforethought is imputed to D?
if a death results from the commission of a particular felony
29
Felony murder is:
(1) the Unintentional and foreseeable killing + (2) that was Proximately caused +
(3) During commission or attempted commission or flight +
(4) from a serious or inherently dangerous felony (BARRK) Also, felonious escape (MPC only)
If these requirements are met then malice is automatically inferred
BARRK:
burglary, arson, robbery, rape, kidnapping
30
T or F: Inherently dangerous felonies can be identified by statute and/or through case law
Yes.
31
T or F: For a homicide to occur, a living human being must die.
Yes
32
T or F: A body need not be found; death can be established by circumstantial evidence.
Yes.
33
Is shooting a corpse a homicide?
For a homicide to occur, a living human being must die. Furthermore, a person cannot be killed twice. Shooting a corpse is not homicide, but it can be a crime (e.g., abuse of a corpse).
34
At common law, a fetus is
not a living person.
35
Causation that needs to be proven for homicides:
To prove a homicide, the prosecution must show that the defendant caused the victim’s death.
The prosecution must prove both actual and proximate
causation.
36
Actual cause for homicide can be proven by:
a. Actual cause
If the victim would not have died but for the defendant’s act, then the defendant’s act is the actual cause (i.e., cause-in-fact) of the death.
- Example: A mechanical device set up by the defendant kills an individual. The defendant is considered to have caused that individual’s death
-
b. Substantial factor
Actual causation can be found when there are multiple causes, (i.e., other persons are also responsible for the victim’s death) and the defendant’s act
was a substantial factor in causing the death.
Simultaneous acts by different individuals who are acting independently may each be considered the actual cause of a victim’s death, even though the
victim would have died in the absence of one of the acts.
- Example: Two individuals simultaneously shoot a third individual. Either of the shots would have killed the victim. Each shot is considered the actual
cause of the victim’s death
37
Would a defendant’s act be deemed the cause of death when a victim is killed by an independent cause before the defendant’s act can kill the victim.
No. For example, A plans to kill B by stabbing him. An approaches B, finding him lying on the bed in a nonresponsive state. A assumes that B is asleep and stabs him multiple times. In reality, however, B had died one hour previously due to a massive heart attack. A’s actions did not cause B’s death; therefore,
there is no homicide (A may be guilty of attempted murder).
38
Is a victim’s preexisting condition that contributes to the victim’s death absolve D's of full responsibility?
No. It does not supplant the defendant’s conduct as an actual cause of the victim’s death.
E.g. A victim has heart condition. The defendant hits the victim with a club intending to kill the victim, but the blow would not have killed the victim if the victim had not had the heart condition. The defendant’s actions are nevertheless the actual cause of the victim’s death.
39
What is Mercy killing, and is it legal?
It is when a person is going to die, but D kills them before their natural death. “mercy killing” (i.e., euthanasia) can be a criminal homicide even if the person was willing to die because of a painful terminal illness. Consent is not a defense.
40
Is providing a person with the means by which that person can commit suicide make the provider guilty of murder as an accomplice?
Providing a person with the means by which that person can commit suicide generally does not make the provider guilty of murder as an accomplice
(because suicide is not homicide) but instead guilty of a lesser crime, such as assisting a suicide
41
For the defendant to be legally
responsible (proximate cause) for a homicide, the death must be
It must be foreseeable.
A death caused by the defendant’s conduct is deemed foreseeable if death is the natural
and probable result of the conduct.
Even if there is some intervening act, the defendant will still be held responsible unless the intervening act was so
out-of-the-ordinary that it would be unjust to hold the defendant criminally responsible for the outcome (superseding).
42
Actions by a third party (e.g., negligence by the doctor
treating the victim) is it foreseeable event?
Yes.
43
Actions by the victim (e.g., suicide to escape the pain that resulted from the injuries inflicted by the defendant), are
They foreseeable?
Yes.
44
Actions by third parties will relieve the defendant of liability if:
if they are independent of the defendant’s conduct and
unforeseeable, or dependent on the defendant’s conduct and “abnormal” (i.e., not just unforeseeable, but unusual or extraordinary in hindsight).
45
Actions by a force of nature that are not within the defendant’s control are generally
not foreseeable (e.g., a lightning strike that kills a victim the defendant tied to a tree)
46
An act that accelerates death
is a legal cause of that death.
47
Proximate cause is commonly tested in the context of
the felony-murder rule
48
A frequently applied standard for proximate cause during felony-murder is:
is that the homicide must
be a natural and probable consequence of the defendant’s actions.
49
Can murder or manslaughter can be the basis for a felony-murder charge?
No. Only BAARK.
50
To convict a defendant of felony murder, the prosecution must
1) establish the underlying felony and 2) that the defendant committed that felony
51
Obstacles for prosecution for felony murder:
1) establishing the “Right type of felony” –
(1) Listed in statute or (2) be independent of killing and inherently dangerous felony (BAARK)
2) “Right connection to felony”
(a) Death must be foreseeable outgrowth of a felony. This is liberally applied – only coincidences are ruled out.
3) “Right time” –
death must be result of injuries inflicted during the commission, attempt, or immediate flight from felony
52
Felony starts when D could
be convicted of an attempt
53
Felony terminates when D
reaches temporary safety
Escape is part of the felony, but once a place of temporary safety is reached, further deaths are not felony murder.
54
Can a D be liable for felony murder if the underlying felony is not inherently dangerous, but it was committed in an inherently dangerous manner?
Yes.
55
How does the merger doctrine apply to felony murder?
The felony murder rule cannot apply unless the underlying elements of the felony are distinct from the murder.
if D is involved in a battery in which the victim is killed, D cannot be charged with felony murder because the elements of battery are incorporated (i.e. merged) into the elements of murder. Generally, this doctrine arises when the underlying felony is one that causes injury.
56
What is the time period in which D may be liable for felony murder?
During:
1) Attempt of the felony;
2) Commission of the felony; and
3) After the commission of the felony
57
For the purposes of felony murder, when does the felony end?
Only when the felon has reached a temporary place of safety
58
If V dies after the commission of a felony, can D still be liable for felony murder?
Yes, as long as D has not yet reached a place of safety. This scenario typically arises during escape
59
What is the majority rule on felony murder co-felon liability?
Agency/”in furtherance of” approach: A co-conspirator is liable for all killings by co-felons.
60
What about the deaths of innocent bystanders, even if killed by cops?
If they are killed at the hands of other co-felons. then yes they are considered felony murder.
However,
if they were killed by third parties or police, it depends on the jrx.
In a majority jrx, only deaths that were caused by any of the co-felons, in a minority yes, liability extends for deaths caused by police officers, bystanders, or others.
61
if one co-felon shoots and kills a bank patron during the commission of a robbery, are all co-felons are liable?
Yes, a defendant and co-felon may be both convicted of felony murder, even if one of them actually committed the killing unbeknownst to the other.
62
What is the minority position on felony murder co-felon liability?
Proximate cause approach: Co-felons are liable for deaths during the felony as long as the death was reasonably foreseeable. This includes liability for deaths caused by police officers, bystanders, or others.
63
Police enter a bank during a bank robbery being committed by A, B, and C. A grabs a bank teller, using him as a human shield. In the chaos, a police officer shoots and kills the bank teller instead of A.
Who, if anyone, is liable for felony murder?
In a majority jurisdiction, no one is liable for felony murder because the killing was not committed by any of the co-felons but by the police.
In a minority jurisdicition, A, B, & C would be liable for felony murder because the killing was a reasonably foreseeable consequence of a robbery.
64
Does the MPC include felony murder?
No, but the MPC considers the commission of a felony to presume an intent of reckless disregard for human life.
65
Does common law or MPC recognize degrees of murder?
No, degrees are only recognized in statutes.
Reminder: If you see degrees on an MBE question, look for an appropriate statute in the question.
66
Many states distinguish between First-Degree Murder and Second-Degree murder, what is the difference?
1) First-degree murder: Killing that is premeditated and deliberate, or committed by (enumerated means such as torture, chemical weapons, or bombing, and in some states during felony murders.
2) second-degree murder: Killing with malice but without premeditation and deliberation
(mimics definition of common law murder)
67
What type of evidence can prove premeditation?
1) Activities planning the murder (ex. googling methods of killing)
2) Evidence showing motive
3) Killing in a manner that shows D must have pre-planned the method
68
True or False: Premediation requires a long period of thinking and planning beforehand
False, many courts would consider a minimal amount of time or brief consideration is to be sufficient if pre-planning can be proved.
Even if only a few seconds elapsed from the formation of intent and the fatal act.
69
What are types of second-degree murders?
1) Murders without premeditation
2) Murder resulting from intent to cause serious bodily harm
3) Murders committed with reckless indifference to human life
4) Some felony murders not otherwise classified as first degree
70
Russian roulette killing is an example of what degree murder?
second-degree murder.
Because D acted in a reckless disregard of the potentially fatal consequences of his act, which established malice aforethought.
71
A natural doctor, convinced parents with kid who has cancer to forgo chemo treatment, and do alternative treatment that turned out to be useless and the child died. D was charged with grand theft for peddling the useeless treatments and also felony murder. Is that valid for felony murder?
No. Grand theft is not an inherently dangerous felony, it could not support felony-murder conviction.
72
A death of a Co-felon by another Co-felon? how is that treated?
in majority jrx, D is not liable for felony murder. if a co-felon is killed by someone who is not a co-felon
i.e. if co-felon killed by a victim, bystander, or a police officer
73
What if a third party, causes death to bystanders or someone else due to the felony happening? how is that treated?
If a death results from an act of someone other than the D, or a co-felon, the courts:
1) in a majority jrx will apply the theory of Agency: a felon is liable only for deaths caused by him, or someone acting as the felon's agent (AKA accomplice), this D not liable for deaths caused by third parties in the course of a felony/
2) in a minority jrx, the court will apply the proximate-cause theory, which is a felon is liable for any death, regardless of who caused it, if the death was a reasonably foreseeable result of the felony. Thus, a felon is liable for deaths caused by third parties.
74
Merger doctrine explained:
The underlying felony must be distinct from the killing itself or D cannot be liable for felony murder.
If a felony has elements of bodily harm or imminent threat of bodily harm to another person, it cannot support the felony-murder liability.
75
What is commont law manslaughter?
Classified into:
1) Voluntary manslaughter (intent to kill); and
2) Involuntary manslaughter (no intent to kill)
76
Voluntary manslaughter is:
1) Intentional killing of a human being, 2) in the heat of a sudden intense emotional state 3) by an adequate provocation, and 4) the killing occurs before a reasonable cooling-off period has elapsed.
(heat of passion crimes)
77
Elements needed to prove “heat of passion” manslaughter:
1) D acted in response to provocation that would have lead an ordinary, reasonable-person to lose self control;
2) There was insufficient time to cool off (subjective standard); and
3) D had not cooled off and was “in the heat of passion” at the time of the killing
78
Adequate provocation (objective) is
a provocation that would lead a reasonable person to lose self-control and fly into a sudden homicidal rage
i) Mere words are not enough (generally)
ii) Rage must be hot – time to cool off can’t be too long
If D is merely unusually sensitive, it does not apply (subjective standard).
79
What are certain provocations that have been repeatedly been held adequate for voluntary manslaughter?
1) severe battery,
2) mutual combat (fisticuffs)
3) discovering a spouse is committing adultery
4) D observes the serious physical injury of a close family member
80
Is “heat of passion” a defense?
No, “heat of passion” only downgrades murder into manslaughter
81
True or False: To be adequate, provocation needs to be more than what would make a reasonable person lose their temper
False: it only needs to be such that a reasonable person would lose their temper
82
Do courts take D’s particular emotional tendencies (tendency to lose temper, etc) when determining how a reasonable person would act?
No. Objective standard is applied
83
Are mere words enough for adequate provocation?
Typically no. But if the words contain information that would cause a reasonable person to lose control, they may suffice for adequate provocation (ex. Max tells Ian, “I forgot to tell you, I’m the one who murdered your mother last week”
84
Is D still eligible for manslaughter if D was reasonably provoked by information that later proved to be false?
Yes, as long as the facts, if they had been true, would have caused a reasonable person to lose control
85
If a reasonable person in D's shoes would have cooled off, or actually D had time to cool of, does that make the intense passion element subside?
Yes.
86
When do courts apply voluntary manslaughter as an alternative to murder convictions in situations other than heat-of-passion?
During imperfect self-defense.
D kills another in the honest but mistaken belief that the use of deadly force is justified.
Some jrx. during Duress.
87
In what scenarios does imperfect self-defense exist?
1) D was unreasonably mistaken about the danger;
2) D was unreasonably mistaken about the need for deadly force; or
3) D was the initial aggressor
88
Involuntary manslaughter is:
1) Killing committed with reckless or gross negligence (criminal); or
2) Killing during the commission of a misdemeanor or other unlawful act
the killing is not sufficiently extreme to rise to the level of implied malice.
89
Defenses to felony murder
i) A valid defense to the underlying felony;
ii) The felony was not distinct from or independent of the killing itself (e.g., aggravated battery);
iii) Death was not a foreseeable result or a natural and probable consequence of the felony (i.e., there was no proximate causation); or
iv) Death occurred after the commission of the felony and the ensuing flight from the scene of the crime.
90
What about a Second provocation after D has cooled off?
Even when the defendant has “cooled off,” a second encounter with the victim may give rise to another situation in which the
defendant acts in the “heat of passion.”
91
Transferred provocation, because of a reasonable mistake of fact, the defendant is in error in identifying her provoker or accidentally kills the wrong person, will they be liable for murder?
she will be guilty of voluntary manslaughter if that would have been her crime had she killed the provoker. If, however, the defendant, in her passion, intentionally
kills another person known to her to be an innocent bystander, then there will be no mitigation, and murder, rather than voluntary manslaughter, will
apply.
92
is simply hearing
about a spouse’s affair is sufficient provocation?
No.
93
Gross (criminal) negligence for the purposes of involuntary manslaughter
Lack of care that shows willful (conscious), wanton, and reckless disregard for the safety or lives of others; substantially deviates from the standard of care (much more than ordinary negligence)
For example, the
failure of a parent, under a duty of care, to provide medical care to a sick minor child constitutes criminal negligence.
94
Under the Model Penal Code rule, the defendant must have acted recklessly, which is
a “gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.”
The defendant must have been actually aware of the risk his conduct posed
95
Examples of when involuntary manslai=ughter occurs:
Mishandling loaded weapons,
driving dangerously like DUI, shaking baby so hard it causes death
96
whats a misdemeanor-manslaughter
An unintentional killing that occurs during the commission or attempted commission of a misdemeanor that is either:
Malum in se (evil in and of itself)
Malum prohibitum (death is a natural and foreseeable consequence of the act)
97
involuntary manslaughter vs. negligent homicide?
negligent homicide occurs if D is unaware of an unreasonable risk of death or injury but in the exercise of reasonable care should be aware of it, and because D failed to exercise the reasonable care, caused V's death
involuntary manslaughter occurs if D knows of an unreasonable and high risk of death and consciously disregards it, and causes V's death.
98
Unlawful act manslaughet, explained?
It is when death occurs as a result of D's committing an unlawful act that is not necessarily inherently dangerous or a felony (that is not BAARK) or a civil wrong (tort or violation of an ordinance)
e.g. certain types of thefts.
99
misdemeanor is
Crime punishable by fines, imprisonment for one year or less, or both
100
Does the MPC have a misdemeanor manslaughter rule?
No
101
When can an individual use non-deadly force to resist a police officer?
When the police officer is attempting an arrest and the individual does not know it is a police officer
102
Crimes against people includes:
1- Criminal battery
2- Assault
3- common law mayhem
4- false imprisonment
5- kidnapping
6- common law rape
7- statutory rape
103
Crimes against property, which includes:
1- Larceny
2- Robbery
3- extortion
4- embezzlement
5- False pretenses
6- Forgery
7- Burglary
8- Arson
9- possession crimes
104
What are inchoate crimes?
“Incomplete” crimes:
Attempt
Conspiracy
Solicitation
105
Elements of criminal battery
Battery is the:
i) Unlawful;
ii) Application of force;
iii) To another person;
iv) That causes bodily harm to that person or constitutes an offensive touching.
106
Mens rea for battery
Battery is a general intent crime. Intent to cause harm not required: it is sufficient that the defendant intended to cause the application of force with criminal negligence.
Indirect application of force is also sufficient
In most states and under the MPC, the mens rea can be satisfied if D acted recklessly or in a grossly negligent manner
107
Unlawful in battery means:
“Unlawful” means that the force is applied without legal excuse.
e.g. Excessive use of force by a police officer during an arrest is unlawful
108
physical contact in battery:
1) Direct contact with the victim's body, as well as,
2) if D causes some object to instrumentality to contact V's body. (e.g. throwing a rock at D)
3) if D contacted something intimately connected to the victim's body, such as an object they are holding
- A battery occurs if a defendant kicks a cane used by a victim for support, causing the victim to fall and injure herself.
109
Harmful contact in battery
the touching must result in pain or injury to some part of the victim's body (i.e. bruising or injury)
- does not need to be visible.
110
offensive contact in battery
any contact that would affront a reasonable person's dignity (unwanted kiss or unwanted sexual advances)
111
Can the physical force for battery be satsifed if the force applied by a third party acting under the defendant’s direction or by an object controlled by the defendant (e.g., a brick thrown by the defendant).
Yes.
e.g. causing a dog to attack the victim, or threatening the victim at gunpoint.
112
What are the degrees of battery
1) ordinary or simple battery (a misdemeanor)
2) an aggravated battery (a felony battery, or aggravated assault)
113
What circumstances elevate a misdemeanor battery to an aggravated battery?
If D:
1) Causes serious bodily injury;
2) Uses a deadly weapon; or
3) accompanied by a harmful intent to kill or intent, maim, or to rape
114
What is a deadly weapon for aggravated battery purposes?
a deadly weapon is
1) an object or device that is designed to cause physical injury (such as a knife or a gun)
2) any object that is used in manner that can cause death or serious bodily harm
115
What are the common defenses to battery?
1- Valid consent;
2- Self-defense or defense of others; or
3- Necessity (battery was necessary to prevent a crime)
116
When consent is valid for battery purposes?
1) in situations where it is non-injurious or slightly physical contact (such as a kiss or handshake)
2) consent to medical treatment
3) voluntary participation in sports (e.g. football or hockey) where physical contact is normal and expected part of the game
- exception: if the act exceeds what is reasonable in the context of the sport
117
What are the elements of assault?
i) An attempt to commit a battery; or
ii) Intentionally placing another in the apprehension of imminent bodily harm.
118
Assault Mens rea
specific intent to cause the victim to apprehend an imminent battery.
intent need not required an intent to carry out the battery, but to disrupt V's sense of security and well-being
119
Battery Distinguished from assault:
In a battery, the defendant must cause bodily injury or actually touch the victim (or something attached to his person) for a battery to occur.
An assault can occur if the defendant does not touch the victim
120
Attempted battery is:
The defendant must take a substantial step toward the commission of a battery.
Like all attempt crimes, the defendant must have the specific intent to commit a battery
121
When does V have reasonable apprehension of imminent harm?
When V reasonably anticipates that D’s act(s) will result in immediate bodily harm or offensive contact (subjective standard)
122
Distinguishing apprehension from fear?
Apprehension is the awareness or expectation that something will occur.
D can commit can an assault without V being afraid (i.e. laughing at someone trying to take a swing at you), V only needs to expect to be injured or offensively touched.
123
What if a person has unreasonable or idiosyncratic fears? does it mean the apprehension element?
No. it is the reasonable standard.
124
Does it matter if D does not look like they actually have the ability to carry out a battery?
No. it does not, it is enough that D has the apparent ability to do so.
i.e.
D was threatening V with an unloaded gun, despite that the gun cannot actually do any harm, V had no way of knowing, and any reasonable person would think that D had the apparent authority to carry out the act.
125
Do verbal threats alone constitute assault?
No. Words must be in conjunction with an overt threatening act or gesture to constitute assault
126
What circumstances elevate assault to aggravated felony assault?
If the assault is committed with:
1) A dangerous weapon;
2) Intent to rape or kill; or
3) V is specially protected by statute
127
What is conditional assault?
When D threatens to batter a victim if they do not do something that V is not legally required to do. D will still be liable for assault.
128
common law mayhem
A crime that disfigures or permanently disables V.
Equivalent to modern aggravated battery
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Elements of kidnapping:
Kidnapping is the:
i) Unlawful taking or;
ii) Confinement of a person;
iii) Against that person’s will;
iv) Coupled with either:
a) The movement; or
b) The hiding of that person.
130
Is there a requirement for a ransom demand in order to establish kidnapping?
No.
131
Unlawful taking in kidnapping occurs when:
D restrains or seizes the V by some means.
It is unlawful when taking is accomplished by force, the threat of force, deception, or other means against a person's will and without an overriding legal privilege such as legal arrest,
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Confinement for kidnapping purposes is?
Confinement of the victim’s freedom of movement must be significantly restricted (in all directions).
It is not enough that the victim is prevented from taking a path or entering an area;
the victim must be prevented from leaving an area or compelled to go to a place the victim does not want to go
133
How far does D need to move V to satisfy the movement element (asportation) of kidnapping?
Very little. In some states, even moving V a few feet qualifies as transportation.
The victim need only be moved a short distance (e.g., forced from the driver’s seat into the trunk of a car).
Note: If the kidnapping occurs incident to another
crime (e.g., robbery), then the movement must be more than is necessary for the commission of that crime in order for a defendant to be liable for
both kidnapping and the separate offense. (i.e. forcing the cashier to the back to open a safe is not kidnapping.
134
Is kidnapping a general intent crime or specific intent crime
General intent crime → only need the intent to commit the act
135
Against the victim’s will element is satisfed when?
The confinement must be accomplished by force, threats, or fraud.
136
Is consent a defense to kidnapping?
Consent of the victim to the confinement is a defense if given by a person with the capacity to consent.
A child cannot consent to being taken out of the control of a parent or guardian.
137
What about if a child consents to taking?
A child cannot consent to be taken out of the control of a parent or guardian.
138
Hidden location, what does it mean in the context of kidnapping?
Instead of movement, the victim may be concealed for a substantial period of time at a hidden location (can only interact with D)
139
How can Kidnapping recieve an enhanced punishment?
by statute.
A kidnapping that results in bodily injury, interferes with a governmental function, or is done for the purpose of collecting a ransom may be subject to enhanced punishment, by statute.
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False Imprisonment elements:
i) Unlawful;
ii) Confinement of a person;
iii) Without consent.
141
Unlawful for false imprisonment happens when?
The confinement is unlawful unless it is consented to or specifically authorized by law.
142
Confinement is unlawful for false imprisonment unless
specifically authorized by law or consented to by the person.
143
Consent for kidnapping or false imprisonment must be
freely given by one with the capacity to give consent.
Thus, consent is invalidated by coercion, threats, deception, or incapacity due to mental
illness or youth.
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Confinement of a person in the context of false imprisonment means:
Confinement may be affected by forcing a person to go where he does not want to or by preventing him from going where he does want if no
reasonable alternative routes are available to him of which he is aware.
This may be done by actual force, threat of force, or a show of force.
145
Common law Rape is:
i) Unlawful;
ii) Sexual intercourse (requires penetration, however minimal);
iii) With a female;
iv) Against her will by force or threat of immediate force
Note:
Most modern statutes are gender-neutral and have replaced the force requirement with lack of consent
146
Is Ejaculation necessary or sufficient for rape?
No, penteration suffice
147
What is the mens rea of rape
rape is a general intent crime, D must have intended to engage in an act of sexual intercourse with the victim, and not that D intended for the intercourse to be noncensensual.
148
If D makes a reasonable and honest mistake as to whether V consented, does D have the mens rea for rape?
No, the requisite men's rea is negated, unless D was negligent or reckless in receiving consent
149
T or F: At common law, a husband could not rape his wife.
True.
Note: Most states have either abolished this restriction or removed the immunity if the husband and wife have separated or filed for divorce.
150
T o F Sexual intercourse for rape?
Yes. Only actual penetration, however slight, is required; emission is not.
151
Consent for rape may be ineffective in what situations:?
1. Intercourse accomplished by force (means no consent)
2. By threats: any consent obtained by threats is ineffective.
3. Women unable to consent: due to unconsciousness, sleeping, intoxication, or mental condition, or age.
4. Consent obtained by fraud
152
What if V Failed to
resist to the rape, does that prevent the intercourse from being rape.
No. if it was by force.
153
What if V Failed to
resist to the rape, does that prevent the intercourse from being rape.
No. if it was by force.
154
Does The threat to turn a prostitute into the police counts as force?
No it does not count.
155
How is consent obtained by fraud happens?
Consent obtained by fraud regarding the nature of the act itself—fraud in factum (e.g., the defendant convinces the
victim that the act is not intercourse but part of a medical exam)—is not a valid consent.
Consent obtained by fraud in the inducement (e.g., a promise
of marriage in exchange for sex) is a valid consent.
156
is physical resistance by V required for it to be considered rape?
Not anymore.
157
Can V express nonconsent without verbally saying no?
Yes. Nonconsent can manifest by:
1) physical resistance
2) any other conduct
158
Is a person's silence or passivity means consent?
not necesseraly.
159
T or F: Intent is negated if a defendant reasonably believes that the victim’s lack of resistance indicates consent.
Yes.
160
Statutory rape is..
Statutory rape is sexual intercourse with a person under the age of consent.
It is a strict-liability crime with respect to the age of the victim.
161
IS consent valid defense for statutory rape?
Consent by the underage victim is not a defense.
162
IS consent valid defense for statutory rape?
A defendant’s reasonable mistake of fact concerning the victim’s age is not a defense.
163
Adultery and Fornication are:
Adultery and fornication are considered misdemeanor offenses in some states.
Adultery involves sexual intercourse or cohabitation with a person who is not a spouse.
Fornication is open and notorious cohabitation or sexual intercourse between unmarried persons.
164
Is statutory rape a general intent, specific intent, or strict liability crime?
Strict liability crime. Even if D reasonably believed V was of age, or V lied about their age, D is still liable.
The prosecution only needs to prove D intended to do the act itself.
165
can D still be charged with attempt for statutory rape.
Yes.
166
What is Dram Shop Rule?
If a business sells alcoholic beverages to an obviously drunk person, they will be strictly liable for anyone injured by the drunken patron
167
What are Crimes Against Nature?
There are two crimes under this category: sodomy and bestiality. Both are considered common-law felonies.
Only Bestiality (sexual intercourse with an animal by a human) continues to survive.
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What is Incest
In most jurisdictions, incest is marriage or sexual acts between persons that are too closely related.
However, there is no uniformity in classifying the
degree of relationship. While some states restrict incest to blood relatives, many other states extend the felony to non-blood relatives as well.
169
Bigamy is
A strict-liability offense (with respect to marital status), bigamy is the act of marrying someone while still legally married to someone else.
Common law
considered a defendant guilty even when the defendant incorrectly believed that an alleged divorce was valid or that his spouse was dead.
170
Seduction is
Seduction occurs when a man induces a woman to have sexual intercourse with him on the false promise of marriage. Subsequent marriage may be a defense in some jurisdictions.
171
Perjury is
Perjury involves the willful act of falsely promising to tell the truth, either verbally or in writing, about material matters that affect the outcome of a
case.
172
Can a A witness be prosecuted for making two contradictory statements if they are made during the same proceeding and the witness admits, prior to the end of the proceeding, that one of the statements is false.
No. they will not be prosecuted. if it happened in the same proceeding, and before the end of the proceeding they admitted it was a false statement.
173
Can a A witness be prosecuted for making two contradictory statements if they are made during the same proceeding and the witness admits, prior to the end of the proceeding, that one of the statements is false.
No. they will not be prosecuted. if it happened in the same proceeding, and before the end of the proceeding they admitted it was a false statement.
174
Can a A witness be prosecuted for making two contradictory statements if they are made during the same proceeding and the witness admits, prior to the end of the proceeding, that one of the statements is false.
No. they will not be prosecuted. if it happened in the same proceeding, and before the end of the proceeding they admitted it was a false statement.
175
T or F: All witnesses are absolutely immune from civil liability based on their alleged perjured testimony in litigation brought under the Civil Rights Act, 42 U.S.C. § 198
True.
176
Bribery is
Under common law, bribery was a misdemeanor involving the corrupt payment of something of value for the purpose of influencing the action of an
official in the discharge of his public or legal duties.
Under modern law, bribery can be a felony and may extend to persons who are not public officials.
Mutuality is not required. Further, the offering or taking of a bribe may constitute a felony as well.
In some jurisdictions, failure to report a bribe onstitutes a misdemeanor.
177
What are theft offenses?
1) Petty Theft: The theft of low-value property or goods.
2) Grand Theft: The theft of high-value property or goods.
3) Shoplifting: The act of stealing merchandise from a retail establishment.
4) Auto Theft: The unlawful taking of someone else's vehicle.
5) Burglary: Unlawfully entering a building with the intent to commit a crime.
5) Robbery: The use of force or threat to steal property directly from a person.
6) Larceny: Unlawfully taking and removing someone else's property with the intent to keep it permanently.
7) Embezzlement: Misappropriating entrusted funds or property.
8) Identity Theft: Fraudulently using someone's personal information for unlawful purposes.
9) Fraud: Deception or misrepresentation to obtain property, money, or services dishonestly.
10) Extortion: Obtaining property or services through coercion or threats.
11) Receiving Stolen Property: Acquiring or possessing known stolen property.
12) Forgery: Falsely making, altering, or using a document with the intent to deceive or defraud others.
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What intent is required for theft offenses?
Intent to permanently deprive
179
What constitutes an intent to permanently deprive
Intent to:
Keep the property;
Abandon the property;
Destroy the property; or
Hold the property for ransom
180
What is the doctrine of continuing trespass?
If D takes property without the intent to permanently deprive and then later decides to keep the property, D will be considered to have the latter intent at the time of taking (i.e. D will be guilty of larceny)
181
What will negate the intent to steal?
1) An honest belief of claim of right "thinking it was theirs) (no matter how unreasonable); or
2) The intent to restore the exact property
182
Larceny applies only to:
personal property, not realty and fixtures, not services, and
not intangibles.
183
Mens rea of larceny?
intent to permanently deprive or steal (specific intent)
184
If D originally intended to permanently deprive, but then later decided to return or abandon the object, what is D’s criminal liability?
Even though D changed their mind, D will be guilty of larceny due to their original intent.
185
Can you be guilty of larceny if you are in lawful possession of the object at the time of taking?
No, it must be an unlawful taking to constitute larceny
186
Under common law, is D guilty of larceny for failing to return or report lost or mislaid property?
Yes, if, at the time of finding D:
1) Intends to keep property that;
2) He either knows or has reason to know has a rightful owner
187
How does the MPC treat lost and mislaid property?
Under MPC D is liable if “with purpose to deprive the owner thereof, he fails to take reasonable measures to restore the property to a person entitled to have it.”
The key difference between the MPC and common law is that under the MPC, the finder’s intent at the time of finding is irrelevant.
188
If defendant took money that was owed her, or fungible goods of equal or lesser value than the amount owed her, then is this larceny?
then they have not
taken the property of another, and are not liable for larceny. However, if they take
non-fungible goods, they are liable for larceny.
189
What is the taking in larceny entails?
The taking (also known as “caption”) requirement is satisfied by any trespassory removal of the property from the owner’s possession into another’s
control.
190
What about Destruction of property in the owner’s possession?
The destruction of property while it is in the owner’s possession (e.g., breaking an object held by the owner) is not a taking.
191
What about the use of an agent in larceny?
Use of an agent
A taking occurs if the defendant uses an agent, even one who is unaware of the defendant’s criminal intent, to remove the property from the owner’s
possession.
192
How is the Carrying away (asportation) satisfed?
The carrying away requirement (also known as “asportation”) is satisfied by even a slight movement of the property (e.g., inches).
Most courts will
impute another person’s asportation to the defendant if the person acted at the defendant’s direction.
i.g. The defendant purported to sell a vehicle that he did not own to an innocent buyer. After the purchase, the buyer drove the vehicle away. The buyer’s asportation of the vehicle is imputed to the defendant in most jurisdictions.
193
T or F: Electricity or gas supplied by a utility constitutes personal property.
True
194
Is there a larceny for Intangible property?
Intangible property will not suffice; however, documents that represent the rights to intangible property (e.g., stocks, bonds) are treated as personal
property
195
is there larceny to Services?
Modern theft statutes usually criminalize obtaining services without paying for them (i.e., the theft of services)
Services taken without paying for the services (e.g., a massage) do not constitute personal property for the purposes of the MBE
196
is there larceny to Services?
Modern theft statutes usually criminalize obtaining services without paying for them (i.e., the theft of services)
Services taken without paying for the services (e.g., a massage) do not constitute personal property for the purposes of the MBE
197
taking Real-property items is it larecny?
The taking of fixtures (i.e., items affixed to real property) or real-property items (e.g., trees, unharvested crops) is not larceny when the defendant’s act
of severance occurs immediately before the carrying away of the fixture or other real-property items.
However, when the real-property items have
previously been severed from the land by the owner, they become personal property (e.g., picked apples), and the carrying away of such items can be
larceny.
198
Elements of larceny by trick:
1) Fraudulently obtaining possession of property owned by someone else;
2) With intent to permanently deprive
199
Taking Another’s property entails:
The property must be in the possession of someone other than the defendant.
Contrast with embezzlement:
For embezzlement, the defendant is legally entrusted with the property by the owner, and then the defendant later
fraudulently converts the property to his own use.
With larceny, the initial taking must be trespassory; there cannot be lawful entrustment by the owner. This is the main difference between the two crimes
200
Who is the Owner of property in context of larcenty?
The owner of the property (i.e., a person who has title to it) can commit larceny when someone other than the owner (e.g., a lessee) is entitled to current
possession of the property
201
Can Larceny be committed against a thief?
The taking of stolen property from a thief can constitute larceny unless the taker has a superior possessory interest in the property (e.g., an owner or a lessee of the property).
202
A joint owner of property who takes possession of the property from a co-owner is guilty of larecny?
is not guilty of larceny because the taker has an equal right to possess the property.
203
Who is a baile?
Generally, a bailee has possession of the property. If they misappropriate the property, they commit embezzlement.
If, however, they break bulk by opening the packages before
they misappropriate the property, then possession returns to the bailor, and the crime is larceny.
204
What about Lost or mislaid property?
Lost or mislaid property is regarded as constructively in the possession of the
owner, and thus if it is found and taken, it is taken from their possession and larceny
might be committed.
The requirements are that the defendant knew or had reason to
believe they could find out the identity of the owner of the property, and the intent to
commit larceny existed when they took possession of the property. If they took the
property intending to find the rightful owner, but later decided to keep it, there is no
larceny.
205
What about Misdelivered property?
Misdelivered property may be the subject of larceny if the person receiving it, at the
time of the misdelivery, realizes the mistake and has the intent to commit larceny
206
What about Abandoned property?
Abandoned property has no owner and no larceny can be committed by taking it.
207
Accomplice liability
Under the modern view of
accomplice liability, the fact that the principal has not yet been convicted of the substantive crime does not bar
Does not bar trial and conviction of the accomplices.
