Criminal Law/Procedure Flashcards
When does a state typically have jurisdiction over a crime?
- An act constituting an element of the offense was committed inside the state
- An act outside the state caused a result in the state
- Crime involved neglect of duty under state law
- Attempt or conspiracy outside the state plus act inside the state (or vice versa)
What is the traditional and modern approach to merger?
-Common law: if a person engaged in conduct constituting both a felony and a misdemeanor, the misdemeanor merged into the felony and they could only be convicted of a felony.
-Modern approach: there is no merger, except for the fact that a person can’t be convicted of solicitation/attempt and the completed crime. You can be convicted for both conspiracy and the completed crime.
-MPC: a defendant may not be convicted of more than one inchoate crime when their conduct was designed to culminate in the commission of the same offense.
What is the difference between the two classes of crimes?
Felonies are punishable by death or imprisonment for more than one year; other crimes are misdemeanors.
What are the essential elements of a crime?
-Physical act (actus reus)
-Mental state (mens rea)
-Concurrence of act and mental state
What is the physical act (actus reus) of a crime?
A voluntary physical act or a failure to act under circumstances imposing a legal duty to act. An act is bodily movement.
When does an omission (failure to act) give rise to liability?
- There is a legal duty to act
- Defendant has knowledge of facts giving rise to duty AND
3.. It is reasonably possible to perform the duty
From what circumstances can a legal duty to act arise?
-Statute
-Contract
-Relationship between parties (parent/child)
-Voluntary assumption of care by defendant for the victim
-Defendant created peril for the victim
What are the specific intent crimes?
Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts
- Solicitation: intent to have the person solicited commit the crime
- Conspiracy: intent to have the crime completed
- Attempt: intent to complete the crime
- First degree premeditated murder: premeditated intent to kill
- Assault: intent to commit a battery
- Larceny: intent to permanently deprive the other of their interest in the property taken
- Embezzlement: intent to defraud
- False pretenses: intent to defraud
- Robbery: intent to permanently deprive the other of their interest in the property taken
- Burglary: intent to commit a felony in the dwelling
- Forgery: intent to defraud
What is the importance of specific intent crimes?
They qualify for additional defenses not available for other types of crimes: voluntary intoxication and unreasonable mistake of fact
What are the malice crimes, and what is the intent required for them?
Malice crimes are common law murder and arson.
Require a reckless disregard of an obvious or high risk that the particular harmful result will occur.
What is general intent?
The catch-all category for crimes that do not require specific intent or malice. The defendant has an awareness of all factors constituting the crime. This can be inferred from merely the doing of the act.
What is strict liability, and what are the common strict liability offenses?
A crime that does not require awareness of all factors constituting the crime–defendant can be found guilty from the fact that they committed the act.
Examples: selling liquor to minors, statutory rape - typically crimes in the administrative, regulatory, or morality area
Defenses that negate state of mind are not available
What are the MPC categories of intent, and how are they evaluated?
Subjective standard:
1. Purposely - conscious object is to engage in proscribed conduct
2. Knowingly - aware that their conduct is of a particular nature or will cause a particular result
3. Recklessly - consciously disregarding a substantial and unjustifiable risk; gross deviation from standard of care of reasonable person
Objective standard:
4. Negligently - failure to be aware of a substantial and unjustifiable risk
When can a defendant be liable under transferred intent?
When they intend the harm that is actually caused, but to a different victim or object. Applies to homicide, battery, and arson (usually guilty of two crimes: completed crime against actual victim and attempt against intended victim)
When must the defendant have intent?
At the time they commit the act, and the intent must have prompted the act.
At common law, who are the parties to a crime?
-Principals in the first degree: persons who actually engaged in the act or omission or who caused an innocent agent to do so
-Principals in the second degree: persons who aided, advised, or encouraged AND were present at the crime
-Accessories before the fact: persons who assisted or encouraged BUT were not present
-Accessories after the fact: persons who, with knowledge that the other committed a felony, assisted them to escape arrest or punishment
Conviction of the principal was required for conviction of an accessory (a largely abandoned requirement)
What is the modern law approach to parties to a crime?
-Principal: the one who, with requisite mental state, actually engages in the act that causes the criminal result
-Accomplice: one who aids, advises, or encourages the principal in the commission of the crime charged
-Accessory after the fact: one who assists another to escape knowing they committed a felony (can be liable for a separate, less serious crime)
When can the accomplice be convicted of a substantive crime?
When the accomplice has intent to assist the principal in commission of a crime and the intent that the principal commit the substantive offense.
They are responsible for the crimes they did or counseled and any other crimes committed in the course of the contemplated crime, so long as they were probable or foreseeable.
When is withdrawal sufficient to prevent someone from being held guilty as an accomplice?
It must occur before the crime becomes unstoppable by repudiating encouragement, doing everything possible to attempt to neutralize the assistance, or notifying the police/taking action to prevent the crime
What are the inchoate offenses?
Inchoate = incomplete. The inchoate offenses are conspiracy, solicitation, and attempt
What are the elements of conspiracy?
- Agreement between two or more persons
- Intent to enter into agreement
- Intent by at least two persons to achieve the objective of the agreement.
Additionally, the objective must be criminal.
What are the two approaches to the agreement requirement for conspiracy?
-Modern (MPC’s unilateral approach): only one party must have genuine criminal intent
-Traditional (common law bilateral): required at least two guilty minds
What is the Wharton Rule?
Where two or more people are necessary for the commission of the substantive offense, there is no crime of conspiracy unless more parties participate in the agreement than are necessary for the crime (i.e. it takes three people to conspire to commit adultery because it takes two people to commit adultery)
When is the conspiracy complete?
Common law: when the agreement with the requisite intent was reached
Majority rule: act in furtherance of conspiracy must be performed (can be mere preparation)
When does the conspiracy terminate, and what is the importance of this point in time?
Acts and statements of co-conspirators are only admissible if they were done in furtherance of the conspiracy. The conspiracy terminates upon completion of the wrongful objective.
What are NOT defenses to conspiracy?
-Factual impossibility
-Withdrawal (can withdraw from liability for other conspirators’ subsequent crimes, but not from the conspiracy itself).
When is withdrawal from a conspiracy effective?
The conspirator must perform an affirmative act that notifies all members of the conspiracy of their withdrawal.
What is solicitation?
Asking, inciting, counseling, advising, urging, or commanding another to commit a crime with the intent that the person solicited commit the crime. Not required for the person to agree to commit the crime.
What are [not] potential defenses to solicitation?
Defenses: solicitor could not be found guilty of completed crime because of legislative intent to exempt them, renunciation if defendant prevents commission of crime
NOT defenses: person solicited is not convicted, factual impossibility
What are the elements of attempt?
An act, done with intent to commit a crime, that falls short of completing the crime. Requires specific intent and an overt act in furtherance of the crime.
What are the overt act requirements for attempt?
Common law proximity test: act must be dangerously close to successful completion of the crime
MPC, majority substantial step approach: act must be a substantial step in a course of conduct planned to culminate in commission of crime.
Is abandonment a defense to attempt?
Common law: NO
MPC: fully voluntary and complete abandonment is a defense
Is legal or factual impossibility a defense to attempt?
Legal impossibility (where completion of all intended acts would not result in a crime) is a defense; factual impossibility is not.
What are the elements of common law murder?
Murder is the unlawful killing of a human being with malice aforethought.
Malice aforethought exists if there are no facts reducing killing to voluntary manslaughter and there is one of the following states of mind: intent to kill, intent to inflict great bodily injury, reckless indifference to an unjustifiably high risk to human life, intent to commit a felony.
How do some jurisdictions divide murder into degrees by statute?
- First degree: deliberate and premeditated murder, killing committed during commission of an enumerated or inherently dangerous felony, killing by certain ways (i.e. torture)
- Second degree: depraved heart killing
What is felony murder?
Any death (even accidental) caused in the commission of, or in attempt to commit, a felony.
Limitations:
-defenses that negate element of underlying offense is defense to felony murder
-felony must be distinct from killing itself
-death must be foreseeable result of felony
-death must be caused before defendant’s immediate flight from felony ended
-typically, defendant is not liable when co-felon is killed from resistance by felony victim or police
What are the two approaches to felony murder?
Proximate cause (minority): felons liable for deaths of innocent victims caused by someone other than co-felon
Agency theory (majority view): killing must be committed by felon or their agent/accomplice.
What is voluntary manslaughter?
Killing that would be murder BUT FOR the existence of adequate provocation. This is not a defense, but rather a means of reducing the killing from murder to manslaughter.
Adequate provocation exists when:
-Provocation would arise sudden and intense passion in the mind of an ordinary person
-Defendant was in fact provoked
-There was not sufficient time for a reasonable person to cool down
-Defendant did not in fact cool off between provocation and killing
What is the imperfect self-defense doctrine?
Recognized by some states to reduce murder to manslaughter even though the defendant was at fault in starting the altercation or the defendant unreasonably but honestly believed in the necessity of responding with deadly force.
What is involuntary manslaughter?
A killing committed with
1. Criminal negligence (or recklessness under the MPC); OR
2. In some states, during commission of unlawful act.
What is the causation required for homicide?
Both cause-in-fact (but for) and proximate cause (natural and probable consequence of conduct) of victim’s death
-Hastening an inevitable result is still legal cause
-Simultaneous acts of two or more people can be independently sufficient
-Victim’s preexisting weakness or fragility does not break chain of causation
What are the limitations to causation for homicide?
-Traditional year and a day rule (abolished by many states)
-Intervening act shields D from liability if act is coincidence or outside foreseeable sphere of risk
What is battery?
An unlawful application of force to the person of another resulting either in bodily injury or offensive touching.
May be treated as aggravated battery if it involves a deadly weapon, results in serious bodily harm, or the victim is a woman, child, or police officer.
What is assault?
Either:
1. An attempt to commit a battery (a specific intent crime) OR
2. Intentional creation of a reasonable apprehension in the mind of the victim of imminent bodily harm (other than by words)
May be aggravated if it involves use of deadly or dangerous weapon or intent to rape, maim, or murder.
What is false imprisonment?
Unlawful confinement of a person without the person’s valid consent. MPC requires that confinement must interfere substantially with victim’s liberty.
What is kidnapping?
Unlawful confinement of a person that involves either (1) some movement of the victim OR (2) concealment of the victim in a secret place.
What is rape?
Traditional: unlawful carnal knowledge of a woman by a man, not her husband, without her effective consent.
Modern approach: gender neutral, marital rape is punishable.
*Statutory rape is carnal knowledge of a person under the age of consent; strict liability crime.
What is larceny?
-A taking
-And carrying away
-Of tangible personal property
-Of another with possession
-By trespass
-With intent to permanently deprive that person of their interest in the property.
The slightest movement of property is sufficient (asportation). If they believed the property is theirs or only intended to borrow, it is not sufficient intent. Intent can arise after the fact, but the person is only guilty of larceny at the moment intent arises.
What is embezzlement?
-The fraudulent
-Conversion
-Of personal property
-Of another
-By a person in lawful possession of that property.
Different from larceny because in embezzlement the defendant has property in their rightful possession when they misappropriate, while the property must be in possession of another person for larceny. If defendant intends to restore exact property, it is not embezzlement. Embezzler must not be beneficiary of misappropriation.
What is false pretenses?
-Obtaining title
-To personal property of another
-By an intentional false statement of a past or existing fact
-With intent to defraud the other
Common law: misrepresentation must have related to a past or present fact
Modern approach: any false representation suffices, including false promise to perform in the future
What is the difference between larceny by trick and false pretenses?
What the victim intended to convey to the defendant. If it is ownership (title), the crime is false pretenses. If it is merely possession or custody, it is larceny by trick.
What is robbery?
-A taking
-of personal property of another
-from the other’s person or presence
-by force or threats of immediate death or physical injury
-with the intent to permanently deprive them of it
Distinguished from larceny because robbery requires force or threats to obtain/retain property.
What is extortion?
Common law: corrupt collection of an unlawful fee by an officer under color of office
Modern: obtaining property by means of threats to do harm or to expose information (blackmail). May involve future threats of harm, which distinguishes it from robbery
What is 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 intent to permanently deprive the owner of their interest in it
What is forgery?
-making or altering
-a writing with apparent legal significance
-so that it is false (representing something that it is not, not merely a misrepresentation)
-with intent to defraud
What is burglary?
-a breaking (not just a wide open window/door; includes constructive breaking through fraud/threat)
-and entry
-of a dwelling
-of another
-at nighttime
-with the intent to commit a felony in the structure (at the time of the breaking and entering)
Modern statutes typically eliminate the technicalities and intent to commit theft is often enough.
What is arson?
-the malicious
-burning
-of the dwelling
-of another
Under the MPC and modern statutes, the definition includes damage by explosion and the types of property have been expanded.
Damage: Blackening is not sufficient, but charring is sufficient.
What are the different conceptions of the insanity defense?
-M’Naghten Rule: D does not know right from wrong or does not understand his actions
-Irresistible Impulse Test: impulse that defendant cannot resist
-Durham Test (NH only): but for mental illness, the defendant would not have done the act
-MPC (modern trend): entitled to acquittal if they had serious mental disease or defect and therefore lacked substantial capacity to either (1) appreciate criminality of conduct or (2) conform conduct to requirements of law (combination of M’Naghten and irresistible impulse)
What is the burden of proof for the insanity defense?
Defendants are presumed sane and must raise the insanity issue. Most states require defendant to prove insanity by preponderance of evidence; MPC and others require prosecution to prove D was sane beyond a reasonable doubt.
Federal courts: D must prove insanity by clear and convincing evidence.
What is the intoxication defense?
-Voluntary intoxication is the result of the intentional taking without duress of a substance known to be intoxicating. It may be offered only if the crime requires purpose/intent or knowledge (specific intent crime defense)
-Involuntary intoxication is the taking of an intoxicating substance without knowledge of its nature, under direct duress, or pursuant to medical advice. Entitled to acquittal if the D meets the insanity standard, so can be a defense to all crimes.
