Criminal Law and Procedure Flashcards
Standards - Probable Cause
Trustworthy facts or knowledge for a reasonable person to believe that the suspect has committed or is committing a crime where arrest is authorized
Standards - Reasonable Suspicion
More than vague suspicion, less than probable cause
If informants tip – Requires sufficient indicia of reliability
Constitutional Limitations - Fourth Amendment
Unreasonable searches and seizures, exclusionary rule
Constitutional Limitations - Fifth Amendment
Compulsory self-incrimination, double jeopardy
Constitutional Limitations - Sixth Amendment
Speedy & public trial, trial by jury, confront witnesses, compulsory process for obtaining witnesses, and assistance of counsel
Constitutional Limitations - Eighth Amendment
Cruel and unusual punishment, excessive fines
Constitutional Limitations - Fourteenth Amendment
Applies most rights to the states via Due Process Clause
Exceptions: grand jury, excessive bail
4th - Seizure - Defined
Exercise of control by a government agent over person or thing
4th - Seizure - Unreasonable Search & Seizure Requirements
(1) gov conduct, (2) reasonable expectation of privacy, (3) probable cause and particularity for a warrant
4th - Seizure - Arrest
Police take person into custody against will for crime
Requires probable cause
Warrant required for nonemergency in home
4th - Seizure - Arrest - Effect of Arrest on Prosecution
Unlawful arrest alone has no impact on subsequent prosecution
4th - Seizure - Terry Stop - Requirements
Brief detention for investigative purposes
Requires reasonable suspicion of criminal activity/involvement supported by articulable facts (may frisk if RS detainee is armed and dangerous)
4th - Seizure - Automobile Stops
Car may be stopped if police have reasonable suspicion a law was violated
Constitutes a seizure of driver and passengers (passengers have standing)4th - Seizure - Automobile Stops
4th - Seizure - Automobile Stops - Police Dogs
Dog sniff is not a search in routine traffic stops if it doesn’t extend stop time
A dog alert can form basis of probable cause
4th - Seizure - Automobile Stops - Officer’s Mistake of Law Effect on Prosecution
Officer’s mistake of law does not invalidate seizure if mistake was reasonable
4th - Seizure - Automobile Stops - Roadblocks
Allowed if for purposes other than seeking incriminating info
Special law enforcement needs –allowed if cars are stopped on neutral, articulable standard and stop is to serve purpose related to car problems
4th - Seizure - Detain for Drugs in Home
PC of drugs in home > police can detain from going in while waiting for warrant
4th - Seizure - Detain During Warrant Search
Warrant to search for contraband > allows police to detain occupants during
4th - Evidentiary Search and Seizure
Gov conduct + D must have standing
To be valid, must be reasonable (often with warrant)
4th - Evidentiary Search and Seizure - Standing
D has standing if they had reasonable expectation of privacy in place/items
Automatic if: person owned/right to possess place, person’s home, or person overnight guest; sometimes if person owned property
GPS on car > search; sense-enhancing tech > search
Warrant Requirements - Evidentiary Search
Neutral/detached magistrate, probable cause, reasonably precise as to place of search and items to seize
Warrant Requirements - Proper Execution
Executed by police without unreasonable delay
Knock, announce purpose, wait for admit unless RS of danger/destruction
Violation of knock and announce will not result in suppression
Scope of search limited to that to discover items described in warrant
Police may seize contraband/fruits/instrumentalities they discover
Warrant Requirements - Evidentiary Search - Probable Cause
PC to believe seizeable evidence will be found on person/place
If informant > Totality of circumstances; reliability/basis
If affidavit > invalid if all three: false statement included by officer, officer did so intentionally/recklessly, and statement was material to finding of PC
4th - Evidentiary Search and Seizure - Search of Person
Police may detain occupants of premises during search, but cannot search persons on premises (or who recently left) who were not named in warrant
4th - Evidentiary Search and Seizure - Wiretapping
If it violates a reasonable expectation of privacy, it is a search
Warrant authorizing a wiretap allowed if probable cause, persons are named, conversations are described with particularity, wiretap is limited to a short time, terminated once info is obtained, and return is made to court.
Evidence obtained in a manner that shocks the conscience is inadmissible (DPC)
4th - Exceptions to Warrant Requirement - List
Search Incident to Arrest
Automobile Exception
Plain View
Consent
Stop & Frisk
Evanescent Evidence
Hot Pursuit
Emergency Aid/Community Caretaker
Administrative Inspections/Searches
4th - Exceptions to Warrant Requirement - Search Incident to Constitutional Arrest
Police may search person & areas they can reach + protective sweep of area
Must be: contemporaneous in time and place to arrest
Specific situations:
* DUI arrest > breath test allowed without warrant (blood req warrant)
* Physical phone attributes > allowed w/o warrant
* Incident to incarceration/impoundment > search at station or impound lot
4th - Exceptions to Warrant Requirement - Search Incident to Constitutional Arrest - Passenger Compartment of Car
Police can search passenger compartment of car incident to arrest if arrestee is unsecured and can gain access to vehicle OR police reasonably belief evidence of offense of arrest may be found
4th - Exceptions to Warrant Requirement - Automobile Exception
Police must have PC (before anything is searched) to believe vehicle contains fruits, instrumentalities, or evidence of crime > can search whole vehicle + containers that can hold
Police allowed to tow vehicle to station to search later
Police may not search vehicle parked in curtilage w/o warrant
4th - Exceptions to Warrant Requirement - Plain View
Police can make seizure w/o warrant if they are legitimately on premises, discover evidence/fruit/instrumentalities/contraband, see it in plain view, and have PC to believe item is evidence/fruit/instrumentalities/contraband
Requires it be immediately apparent
4th - Exceptions to Warrant Requirement - Consent
Warrantless search valid if police have voluntary consent (scope limited to consent; lying about warrant negates consent)
Authority to consent: anyone w/ apparent equal right to use/occupy
4th - Exceptions to Warrant Requirement - Stop & Frisk
Brief stop and pat down of outer clothing and body to check for weapons
Officer may stop person if articulable and RS of criminal activity
Scope is limited to outer clothing, officer may seize items that officer believes based on “plain feel” is weapon or contraband (no manipulation)
4th - Exceptions to Warrant Requirement - Evanescent Evidence
Evidence that might disappear quickly if the police took the time to get a warrant.
4th - Exceptions to Warrant Requirement - Hot Pursuit
Police in hot pursuit of fleeing felon can make search and seizure
Can pursue into a private dwelling (misdemeanor requires law emergency)
Generally 15 minutes between felon and police
4th - Exceptions to Warrant Requirement - Emergency Aid/Community Caretaker
If officer faces emergency that threatens health/safety of individual or public
4th - Exceptions to Warrant Requirement - Administrative Inspections and Searches
Inspectors require warrant, standard is general/neutral enforcement plan
Warrantless searches for things like contaminated food, regulated industries, prisoner searches, airline passengers, gov employees, etc.
4th - Exceptions to Warrant Requirement - Administrative Inspections and Searches - Schools
Requires reasonable grounds for search
Will be reasonable if it offers a moderate chance of finding evidence of wrongdoing, measures are reasonably related to objectives, and search is not excessively intrusive in light of age/sex of student
Confessions - Voluntariness
14th Amendment
To be admissible, they must be voluntary (w/o official compulsion)
If involuntary > harmless error test for overturning conviction
Confessions - Right to Counsel
Right to counsel in criminal proceedings once judicial proceedings start
The right is offense-specific; can be questioned re unrelated offenses
Waiver must be knowing and voluntary
Right to atty at post-charge lineup to attack ID
Confessions - Right to Counsel - Effect of Violation on Prosecution
Statement obtained in violation may be used to impeach D’s testimony
Remedy: Nontrial > harmless error rule; trial > automatic reversal
5th - Privilege Against Self-Incrimination - Miranda Warnings
When required: Detainee knows they are being interrogated by a gov agent + custody (reasonable person feels free to terminate/leave + environment presents coercive pressures as station house questioning)
Does not apply to grand jury
Interrogation: words/conduct that may elicit an incriminating response
Statements required: remain silent, anything they say can be used against them, right to atty, atty may be appointed.
5th - Privilege Against Self-Incrimination - Miranda Warnings - Waiver/Assertion of Rights
Does nothing: will not presume waiver/assertion of right; continue questioning
Waives rights knowingly and voluntarily: all potential subjects of interrogation
Invokes right to remain silent – explicit, unambiguous, and unequivocal
Police must honor request by not badgering
Police may question re a different crime later w/ new Miranda
Invokes right to counsel – unambiguously
All questioning ceases until counsel UNLESS detainee then waives or is released and questioned 14 days later
5th - Privilege Against Self-Incrimination - Miranda Warnings - Effect of Violation
Inadmissible under exclusionary rule
Statements may be used to impeach D’s trial testimony
If police get confession > Miranda > confession, inadmissible if intentional
Fruits of unwarned confession will be inadmissible if failure was purposeful
Exclusionary Rule - Generally
Prohibits introduction of evidence obtained in violation of 4th, 5th, or 6th amendment
If a warrant was invalid, any evidence obtained thereunder will be excluded
Prohibits fruit of the poisonous tree unless costs outweigh deterrent effect
Exclusionary Rule - Fruits of Poisonous Tree - Exceptions
Fruits derived from statements in violation of Miranda (not purposeful)
Evidence obtained from a source independent of the original illegality
When connection between police conduct and evidence is remote
Causal link is broken (independent source, act of free will)
Inevitable discovery (police would have discovered it anyway)
Violations of the knock and announce rule
Exclusionary Rule - Fruits of Poisonous Tree - Limited Applicability
Not applicable to grant jury, civil proceedings, state law violations, internal agency rules, and parole revocation
Doesn’t apply if police acting in good-faith pursuant to valid warrant or law
Evidence from illegal search can be used to impeach D’s statements
Exclusionary Rule - Harmless Error
Conviction upheld if would have resulted w/o improper evidence
Resulting conviction will not be overturned (beyond a reasonable doubt)
Never applies to the denial of the right to counsel at trial
Pretrial Procedures - Grand Jury Indictments
D has no right to notice/presence, counsel, exclusion of evidence, challenging subpoena
Can only be quashed if issued by group that excluded minority group
Pretrial Procedures - Speedy Trial
6th Amendment
Attaches once D has been arrested or charged
Considers: length of delay, reason, whether D asserted, prejudice to D
Remedy: dismissal with prejudice
Pretrial Procedures - Duty to Disclose
Gov must disclose material, exculpatory evidence to the D
Failure to do so violates DP & grounds for reversal of conviction if: D proves evidence is favorable to D (impeaches or exculpatory) and prejudice resulted (reasonable probability result would be different)
Pretrial Procedures - Competency to Stand Trial - Insanity Defense
Must notify prosecution before use
Defense to criminal charge bc mental condition at time of crime
Pretrial Procedures - Competency to Stand Trial - Incompetency Defense
Not a defense, but a bar to trial
Based on D’s mental condition at time of trial; can be tried and convicted if they regain competency
Pretrial Procedures - Competency to Stand Trial - Due Process
D cannot stand trial if they lack a rational/factual understanding of charges and proceedings OR lack ability to conduct with their lawyers with a reasonable degree of understanding
Trial - Public Trial
Preliminary probable cause hearings – presumptively open to public
Trial - Due Process Violations
Violated if judge has actual malice or financial interest in result
Judge must be law trained if it is a serious crime
Trial must be conducted so jury can give evidence reasonable consideration
State may not compel D to stand trial in prison clothing or visibly shackled
Jury may not be exposed to influence favorable to prosecution
Trial - Right to Counsel - 5th
Right before charges have been filed
Trial - Right to Counsel - 6th
Offense specific; after formal charges (atty for each offense)
Applies in misdemeanor cases only if imprisonment imposed
Ineffective if result-changing deficient performance by counsel. D must point out specifics (cannot be inexperience, time, gravity of charges, complexity, or witness accessibility)
For pleas > D must show plea process would be different
Violation requires reversal
Trial - Right to Trial by Jury
Right only attaches for serious offenses (imprisonment for 6+ mo allowed)
6+ jurors, unanimous result
Trial - Right to Trial by Jury - Sentence Enhancements
Sentence enhancements allowed if proof of facts are submitted to jury
Judge decides consecutive or concurrent sentences
Trial - Right to Trial by Jury - D Failure to Testify
P MAY NOT comment on D’s failure to testify unless D claims they couldn’t speak
Trial - Right to Confront Witnesses
P MAY NOT comment on D’s failure to testify unless D claims they couldn’t speak
Trial - Right to Confront Witnesses - Co-D Confession
If tried together and one gives confession implicating other, right of confrontation prohibits use of statement
Allowed if portions referring to other D can be eliminated, confessing D takes stand and gets cross-examined re statement, or confession is being used to rebut D’s claim that confession was coerced
Pleas - Judicial Requirements from Judge
Judge must find plea is voluntary & intelligent by asking D in open court on record
D must understand nature of charge, elements of crime, maximum penalty and mandatory minimum, right to not plead guilty, and waiver of trial
A guilty plea can be set aside for involuntariness, lack of jurisdiction, ineffective assistance of counsel, or failure to keep the plea bargain
Pleas - Enforced Against
Prosecutor and defendant (not judge)
May be used as a conviction in other proceedings
Sentencing and Punishment - Right to Counsel
Defendant has a right to counsel; can consider hearsay/uncross-examined reports
D in death penalty case given more opportunity for confrontation
Sentencing and Punishment - Death Penalty
Murder – Imposed under statutory scheme giving jury discretion, full info concerning Ds, and guidance in making decision
Rape – Prohibited if was not intended to result or did not result in death
Sanity – Cannot execute prisoner who is insane at time of execution
Intellectual disability – Cruel & unusual to impose on person
Minors – Under 18 yrs old at time of offense violates 8th amendment
Appeal - As of Right
There is no federal right to appeal
Prisoner’s Rights
Right to Counsel at parole and probation revocation (if involves new sentence)
Prison regulations violate due process if impose atypical and significant hardships
No reasonable expectation of privacy in cells (so no 4th amendment right)
Must have reasonable access to courts & adequate medical care
1st amendment may be burdened by regs reasonably related to penological interests
Double Jeopardy - Generally
Person may not be retried for same offense once jeopardy attaches (5th amendment)
Double Jeopardy - When it Attaches
In a jury trial > Empaneling and swearing of jury
In bench trial > When first witness is sworn
Commencement of a juvenile proceeding (but not other civil proceedings)
Double Jeopardy - “Same Offense”
Two crimes are the same unless each requires proof of an additional element that the other does not require
Attachment for greater offense bars retrial for lesser offenses (& vice-versa) (exception for new evidence)
Double Jeopardy - Exceptions
Hung jury, necessity to abort trial, termination on behalf of D, D appealed conviction (unless insufficient evidence), breach of plea, D elects separate trials
Privilege Against Self-Incrimination - Assertion
The privilege against self-incrimination may be asserted by any natural person if the answer to the question may tend to incriminate them
Privilege Against Self-Incrimination - At Trial
Criminal D has right not to take witness stand & not be asked to do so
Violation occurs when a person’s statements used against them in criminal case
Prosecutor may not comment on D’s silence after arrest or at trial (unless D claims they were silenced)
Privilege Against Self-Incrimination - What this Protects
Protects only testimonial or communicative evidence (not real or physical)
To qualify, must relate to factual assertion or disclose information
Producing incriminating documents does not qualify for protection
Privilege Against Self-Incrimination - Elimination of Privilege - Grant of Immunity
Use and derivative use immunity – Testimony and evidence located through testimony not used against witness
Can be prosecuted if evidence from independent source
Immunized testimony involuntary – coerced and involuntary
May not be sued to impeach D’s testimony
Can be used in trial for perjury
Privilege Against Self-Incrimination - Elimination of Privilege - No Possibility of Incrimination
No possibility of incrimination (like statute of limitations has run)
Privilege Against Self-Incrimination - Waiver
D waives by taking witness stand (if they disclose incriminating info)
Juvenile Court - Rights of Child
Rights must be given to child during trial of delinquency proceeding:
(1) written notice of charges,
(2) assistance of counsel,
(3) opportunity to confront and cross-examine witnesses,
(4) the right not to testify, and
(5) the right to have “guilt” established by proof beyond reasonable doubt.
No right to trial by jury; pretrial detention allowed if juvenile “serious risk” to society
Forfeiture Actions
Actions brought directly against property and are quasi-criminal
Criminal Law - Jurisdiction
If an element of the offense was committed in the state, act caused a result in the state, crime involved neglect of a duty imposed by law of the state, there was an attempt or conspiracy outside plus an act inside the state, or there was an attempt or conspiracy inside the state to commit act outside.
Merger of Crimes
Fully overlapping elements > merge; if element not included > doesn’t merge
Common law: If conduct is both felony and misdemeanor, convicted of only felony and misdemeanor is merged
MPC: No merger other than solicitation + crime or attempt + crime (D cant be convicted of 1+ inchoate crimes)
Definition of Felony
Punishable by death or imprisonment of 1+ year, others > misdemeanors
Elements of all crimes
Physical act (actus reus) + mental state (mens rea)
Elements of all crimes - Physical
Voluntary physical bodily movement or failure to act w/ legal duty
Mental State - Specific Intent
Specific intent cannot be imputed from doing the act, but the manner may give circumstantial evidence of intent
Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts
Mental State - Specific Intent - Crimes Applicable To
Solicitation – Intent to have person commit crime
Conspiracy – Intent to have crime completed
Attempt – Intent to complete crime
First degree premediated murder – Intent to kill
Assault – Intent to commit a battery
Larceny – To permanently deprive other of property
Embezzlement & False pretenses – Intent to defraud
Robbery – To permanently deprive other of property
Burglary – Intent to commit felony in dwelling
Forgery – Intent to defraud
Mental State - Malice
Defined: Reckless disregard of obvious/high risk harmful result will occur
Malice crimes are common law murder and arson
Mental State - Strict Liability
D can be found guilty from mere fact that they committed act
Includes statutory rape & selling liquor to minors
Defenses negating state of mind are not available
Mental State - General Intent
D has awareness of all factors constituting the crime
All crimes not mentioned are general intent
Jury may infer the required general intent from doing the act
Mental State - Purposely (MPC)
Conscious object is to engage in conduct or cause result
Mental State - Knowingly (MPC)
Person is aware that their conduct is of a nature or certain circumstances exist
Deemed to be aware of circumstances if aware of a high probability they exist and avoid learning truth
Mental State - Recklessly (MPC)
Consciously disregard a substantial and unjustifiable risk that circumstances exist or result will follow (+ disregard is gross deviation from standard of care of reasonable person)
Requires objective (unjustifiable risk) + subjective (awareness)
Mental State - Negligence (MPC)
Fail to be aware of a substantial and unjustifiable risk
Objective standard
Vicarious Liability
Person may be held liable for criminal conduct of another
Corporations may be held liable under MPC for acts performed by agent acting within scope of employment or corporate agent reflecting corporate policy
Mental State - Transferred Intent
D can be liable when they intend the harm, but to a different victim
Applies to homicide, battery, and arson. NOT attempt.
Causation - Cause-in-Fact
Result would not have occurred but for D’s conduct
D responsible for events that occur as a natural/probable consequence of conduct, even if D did not anticipate the manner they would occur.
Causation - Proximate Cause
Result is natural/probable consequence of conduct
Superseding factors break this chain, not foreseeable intervening acts
Victim’s preexisting weakness does not break chain
Act that hastens inevitable result is still legal cause
Accomplice Liability - Common Law - Principals
Principals in the first degree: Person who engages in act
Principals in the second degree: Aid, advise, or encourage AND are present
Accomplice Liability - Common Law - Accessories
Accessories before: Assisted or encouraged BUT NOT present
Accessories after: Knowledge of felony, assisted escape arrest/punishment
Accomplice Liability - MPC - Parties
All parties to a crime can be found guilty of principal offense
Principal – With the mental estate, engages in act or omission
Accomplice – Aids, advises, or encourages principal
Accomplice Liability - Common Law - Accessories
Accessory after the fact – Treated separately under separate law
Accomplice Liability - Required Mental State
Must have intent to assist principal + intent that principal commit offense
Accomplice Liability - Scope of Liability
Mere knowledge that a crime will result is not enough for accomplice liability
Accomplice responsible for crimes they did/counseled AND any committed in course of crime contemplated as long as others were probable or foreseeable
Accomplice Liability - Scope of Liability - Withdraw
Person withdraws before crime is unstoppable and committed
An action is required to not be liable
If person encouraged – Must repudiate encouragement
If person gave assistance – Must attempt to neutralize assistance
Notifying police or other action to prevent crime is sufficient
Inchoate Offenses - Conspiracy - Elements
Requires agreement between two+ persons, intent to enter into agreement intent to achieve an unlawful objective
Inchoate Offenses - Conspiracy - Merger
Doesn’t merge with other crimes
Inchoate Offenses - Conspiracy - # of Guilty Minds
Common law requires at least two guilty minds
MPC requires only 1 party within criminal intent
If 2+ people are required for the offense, conspiracy requires 3+
Inchoate Offenses - Conspiracy - Intent Required
Intent to agree + intent to achieve objective of conspiracy
Inchoate Offenses - Conspiracy - Liability for Crimes
Conspirator liable for crimes of other conspirators if in furtherance of objectives of conspiracy and were foreseeable
Inchoate Offenses - Conspiracy - Defenses
Factual impossibility is not a defense
Withdrawal not a defense, as conspiracy complete when agreement + act
Inchoate Offenses - Solicitation - Elements
Consists of asking, inciting, counseling, urging, etc. another to commit a crime with intent that the person commit the crime (they do not have to agree)
Inchoate Offenses - Solicitation - Merger
Solicitor cannot be punished with solicitation + other crime
Inchoate Offenses - Solicitation - Defenses
Not a defense that solicited individual not convicted
Factual impossibility is not a defense
Withdraw/renunciation is not a defense
Inchoate Offenses - Attempt - Elements
Attempt is act, done with intent to commit crime, that falls short of completion
Common law proximity test: Act is close to crime completion
MPC: Act must be substantial step in course of conduct for crime
Inchoate Offenses - Attempt - Intent
Specific intent + overt act in furtherance of crime (beyond mere prep)
Inchoate Offenses - Attempt - Defenses
Abandonment defense under MPC if fully voluntary and complete
Legal impossibility – If all intended acts would not be a crime
Homicide - Common Law - Murder
Unlawful killing with malice aforethought (no defenses and intent)
Intent could be: to kill, inflict great bodily injury, commit felony, or reckless indifference to unjustifiably high risk to human life.
Homicide - Statute - First Degree
Deliberate and premeditated: D made decision to kill in cool & dispassionate manner; reflected on idea of killing
Requires intent/knowledge conduct > death
Homicide - Statute - Second Degree
Depraved heart killing (reckless indifference to unjustifiable high life risk)
Any murder which does not fit into the first-degree category
Homicide - Felony Murder
Any death caused in commission of attempt to commit a felony is murder
Malice is implied from intent to commit felony
Homicide - Felony Murder - Co-Conspirators
Agency theory: Killing must be committed by felon or agent/accomplice
Proximate cause theory: Felons liable for deaths of victims caused by someone other than co-felon (minority of states)
Homicide - Felony Murder - Limitations on Liability
D must have committed/attempt to commit felony
Felony must be distinct from killing itself
Death must be foreseeable result of the felony
Death must have been caused before D’s immediate flight from the felony
D is not liable for felony murder when co-felon killed
Homicide - Voluntary Manslaughter
Defined as a killing that would be murder but for adequate provocation
Homicide - Voluntary Manslaughter - Adequate Provocation
Adequate provocation elements: (1) provocation that would arouse sudden/intense passion in mind of ordinary person, causing them to lose control, (2) D was provoked, (3) there was not sufficient time to cool off; and (4) D did not cool off between provocation and killing
Homicide - Voluntary Manslaughter - Imperfect Self-Defense
Sometimes will lower murder to manslaughter if D doesn’t qualify for self-defense (D started it or unreasonably & honestly used deadly force)
Homicide - Involuntary Manslaughter -
Killing with criminal negligence (MPC: recklessness) OR during commission of unlawful act (misdemeanor or felony not within felony murder rule)
Substantial risk or foreseeability of death may be required
Offenses Against the Person - Battery
Unlawful force to another person resulting in injury or offensive touching
Offenses Against the Person - Battery - Intent
Can be, but need not be, intentional + force need not be applied directly
Offenses Against the Person - Battery - Aggravated Battery Treated as Felony
W/ deadly weapon, resulting in serious bodily harm, and of a child, woman, or police officer.
Offenses Against the Person - Assault
Attempt to commit battery (specific intent)
Offenses Against the Person - Assault - Intent
Intentional creation of reasonable apprehension in victim of imminent bodily harm
Requires something other than just words; if touching > battery
Offenses Against the Person - Assault - Aggrivated
Assault + use of deadly weapon OR intent to rape /maim/murder
Offenses Against the Person - False Imprisonment
Unlawful confinement of a person without valid consent
MPC: Requires confinement interfere substantially with victim’s liberty
Offenses Against the Person - False Imprisonment - Consent Invalid If
Consent invalidated by coercion, threats, deception, youth, incapacity
Offenses Against the Person - Kidnapping
Unlawful confinement of a person involving movement or concealment of victim
Offenses Against the Person - Kidnapping - Aggravated
Ransom, for other crimes, for offensive purposes, and child stealing
Offenses Against the Person - Rape/Sexual Assault
Unlawful carnal knowledge without consent (slight penetration suf)
Offenses Against the Person - Rape/Sexual Assault - Effect of Consent
Without effective consent – actual force, threat, incapable, etc.
Belief the person is a different person still constitutes effective consent
Offenses Against the Person - Statutory Rape
Carnal knowledge of person under age of consent
Strict liability crime, not necessary to show lack of consent
Mistakes as to age do not matter, as it is strict liability
Property Offenses - Larceny
A taking and carrying away of personal property of another with possession without consent with intent to permanently deprive that person of their interest
Permanent deprivation required, borrowing or having some right to it > not larceny
If take without intent to perm. deprive but develops intent > now larceny
If taking was not wrongful + develop intent to keep > continuing trespass
Property Offenses - Embezzlement
Fraudulent conversion of personal property of another by a person in lawful possession of that property
Must intend to defraud; intent to restore same property doesn’t count
Conversion means to deal with property in manner inconsistent with arrangement
Claim of right – not embezzlement; whether D took it openly is important factor
Property Offenses - False Pretenses
Obtaining title to the personal property of another by an intentional false statement with intent to defraud the other
The victim must actually be deceived by (or rely on) the misrepresentation
D must have either known statement to be false or that victim rely on misrep
Property Offenses - Larceny by Trick
Victim is tricked by misrepresentation of fact into giving up custody or possession
Property Offenses - Robbery
A taking of personal property of another from the other’s person or presence by force or threats of death/injury to victim/family/person with intent to permanently deprive them of it
Property Offenses - Extortion
Common law: corrupt collection of unlawful fee by officer under color of office
MPC: Obtaining property by means of threats to do harm or expose info
Property Offenses - Receipt of Stolen Property
Receiving possession and control of stolen personal property known to have been obtained in a manner constituting a criminal offense by another person with the intent to permanently deprive owner of interest in it
Property Offenses - Theft
MPC: Some or all of other property offenses are combined and called “theft”
Property Offenses - Forgery
Making or altering a writing with apparent legal significance so that it is false with intent to defraud
Must represent it is something it is not (not just have a misrepresentation)
No one actually need to have been defrauded
Property Offenses - Burglary
Common law: a breaking and entry of a dwelling of another at nighttime with intent to commit a felony inside
(dwelling is used for sleeping purposes, cannot be barn/commercial)
MPC: Essentially eliminates the technicalities (like breaking, dwelling, nighttime)
Property Offenses - Arson
Common law: Malicious burning of the dwelling of another (intentional or reckless disregard)
Blackening by smoke/discoloration is not burning, but charring is
MPC: Expanded to include damage by explosion and property cars, etc.
Defenses - List
Insanity
Intoxication
Infancy
Self-Defense
Duress
Necessity
Mistake/Ignorance of Fact
Entrapment
Defenses - Insanity - M’Naghten
Disease of mind caused defect of reason so that D lacked ability to know wrongfulness or understand nature/quality of actions
Defenses - Insanity - Irresistible Impulse
D unable to control actions or conform conduct to law
Defenses - Insanity - Durham Test
Crime was product of mental disease or defect
Defenses - Insanity - MPC
D had mental disease/defect and so lacked capacity to appreciate criminality of conduct or conform conduct to requirements of law.
Defenses - Insanity - Process for Invoking Defense
All Ds are presumed sane, so D must raise it & prove preponderance of evidence
Some states & MPC require P prove D was sane beyond reasonable doubt
Federal courts require D prove by clear and convincing evidence
D may raise at arraignment, but need not do so and does not waive it
Defenses - Intoxication
Voluntary intoxication (knowing & w/o duress) is a defense to specific intent crimes
Recklessness crimes – person who would have been aware but for intoxication acts recklessly
Involuntary intoxication is treated as mental illness (entitled if meet insanity test)
Defenses - Infancy
Common law: No liability under 7, rebuttable presumption unable to understand 7-14, over 14 treated as adults
MPC: Cannot be convicted until a stated age (typically 13-14), but juvenile court ok
Defenses - Self-Defense - Nondeadly Force
Person without fault when reasonably beliefs it is necessary to avoid imminent injury or retain property
No duty to retreat
Defenses - Self-Defense - Deadly Force
Deadly force – Person without fault is confronted with unlawful force and reasonably believes they are threatened with death or serious bodily injury
Most states have no duty to retreat; minority requires if victim can do so safely unless in own home, during lawful arrest, or during robbery
Defenses - Self-Defense - Aggressor’s Claim
Aggressor may use force if they effectively withdraw and communicate to the other their desire to do so or victim of initial aggression escalates minor fight into deadly altercation and aggressor has no chance to withdraw
Defenses - Self-Defense - Defense of Others
Allowed if D reasonably believe that the person assisted has legal right to use force in their own defense
Defenses - Self-Defense - Defense of a Dwelling
Non-deadly allowed to extent reasonably believe necessary to prevent/terminate another’s unlawful entry into or attack upon dwelling
Deadly allowed only to prevent violent entry and when reasonably believe necessary to prevent personal attack on someone in dwelling or prevent entry to commit felony in dwelling
Defenses - Self-Defense - Defense of Other Property
Deadly force is NEVER allowed; non-deadly force allowed to defend from an imminent, unlawful interference (unless an ask would suffice)
May use force only in immediate pursuit of taker
Defenses - Self-Defense - Crime Prevention
Nondeadly allowed extent necessary to prevent felony/breach of peace
Deadly allowed only if necessary to terminate/prevent felony risking life
Defenses - Self-Defense - Police Use
Nondeadly allowed if reasonably necessary to effectuate arrest
Deadly allowed if reasonable to prevent felon’s escape and police reasonably believe felon threatens death or serious bodily harm
Defenses - Self-Defense - Resisting Improper Arrest
Nondeadly – May be used even if against known police officer
Deadly – May be used if person does not know arresting is police officer
Defenses - Duress
D reasonably believed another person would inflict death/harm upon them/family/third-person if D did not commit crime
Not a defense to intentional homicide
Threats to property insufficient under common law; MPC allows if value of property outweighs harm done to society through commission of crime
Defenses - Necessity
Person reasonably believed commission of crime was necessary to avoid imminent and greater injury to society than that involved in crime
Test is objective, good faith belief is insufficient
Cannot claim if D created situation and death is never justified
Defenses - Mistake or Ignorance of Fact
Relevant only if it shows D lacked state of mind required for crime
Specific intent – mistake can be unreasonable
Other intent – mistake must be reasonable
Mistake is defense to committed crime; impossibility is defense to incomplete
Defenses - Entrapment
Only if intent to commit crime was not with D, but with law enforcement
Providing opportunity for predisposed person to commit crime is not entrapment
D is usually predisposed to commit crime and entrapment usually wrong choice
Offenses Involving Judicial Procedure - Perjury
Intentional taking of a false oath (lying) about a material matter (one that may affect the outcome) in a judicial proceeding
Subordination of perjury – procuring or inducing another to commit perjury
Offenses Involving Judicial Procedure - Compounding a Crime
Common law: agreeing, for consideration, not to prosecute or conceal commission of felony or whereabouts of a felon
MPC: Any crime, not just felons
Offenses Involving Judicial Procedure - Bribery
Common law: Corrupt payment/receipt of thing of value for official action
MPC: Offering or taking of a bribe, extends to non-public officials
