Criminal Law & Procedure Flashcards
Basic Requirements for Criminal Conviction:
1) Commits the physical act that has been made illegal; with
2) The accompanying state of mind required; and
3) A concurrence of the physical act and the mental state.
Inchoate Offenses
Preparatory Crimes
You cannot be convicted of more than one inchoate crime in relation to one offense.
E.g., you can’t be convicted of “conspiracy to commit burglary” AND “attempt to commit burglary.”
Merger?
Generally no merger of crimes. If you commit two crimes, you can be convicted of both.
BUT these two sets can’t be merged:
Solicitation + The Crime; Attempt + The Crime
Failure to Act leads to Liability only where there is a…
1) There is a LEGAL DUTY TO ACT
a) Statute (req to file a tax return)
b) Contract (a lifeguard has a legal duty to act)
c) A Specific Relationship (parent has a duty to protect child)
d) Voluntary Assumption of Care (Dwayne Johnson says, “I’ll save him!” Then ‘him’ turns out to be Vin Diesel, so Dwayne bails)
e) Created the Peril: the defendant created the peril for the victim (Dr. Evil flashes a laser pointer in Austin’s eyes, Austin falls into the pool, Dr. Evil doesn’t stop him drowning)
2) Defendant has KNOWLEDGE of the facts giving rise to the duty to act; and
3) It is REASONABLY POSSIBLE to perform the duty
Defenses for Specific Intent Crimes?
1) Voluntary Intoxication
2) Unreasonable Mistake of Fact
The Specific Intent Crimes and Their Intents:
Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts
Solicitation (have the person solicited commit the crime)
Conspiracy (have the crime completed)
Attempt (complete the crime)
First Degree Premeditated Murder (premeditated intent to kill)
Assault (commit a battery)
Larceny (permanently deprive other person of interest in the property taken)
Embezzlement (defraud)
False Pretenses (defraud)
Robbery (permanently deprive other person of interest in the property taken)
Burglary (commit a felony in the dwelling)
Forgery (defraud)
Malice Intent requires …
a RECKLESS DISREGARD of an OBVIOUS or HIGH RISK that particular harmful result will occur
Malice Intent Crimes
Common Law Murder
Arson
General Intent
Catch-all category; every other crime.
Memorize Specific Intent and Malice crimes, and if it’s not one of those, it’s general intent
They do not get those additional defenses
Strict Liability
No mens rea requirement
Is it a Strict Liability Crime?
1) Step One: Check if it’s in the administrative, regulatory, or morality areas.
2) Check for adverbs in the statute such as ‘knowingly,’ ‘willingly,’ or ‘intentionally.’
3) No Such Adverbs? —> Strict Liability.
Some Such Adverb? —> Not Strict Liability
Model Penal Code Analysis of Fault
An alternative means of determining intent
Abandons general v. specific intent
Knowingly
Aware that their conduct is of a particular nature or that certain circumstances exist such that a particular result will necessarily or very likely occur
Recklessly
Consciously disregard a substantial and unjustifiable risk that circumstances exist
OR
that a prohibited result will follow;
AND
this disregard is a gross deviation from a reasonable person’s standard of care
Negligently
Fail to be aware of substantial and unjustifiable risk
Transferred Intent
Defendant intended harm to different victim or object
Mostly applicable in First Degree Prem. Murder - aimed for one person, hit another
THERE ARE ALWAYS TWO VICTIMS in Transerred Intent cases.
Accomplice Liability - Common Law
Principals in the First Degree: Person who does the crime
Principals in the Second Degree: Person who aids, advises, or encourages and are PRESENT
Accessories Before the Fact: Person 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.
Accomplice Liability - Modern Statutes
Principal: Person who does the thing
Accomplice: One who aids, advises, or encourages the principal in the commission of the crime
Accessory After the Fact: Assists another knowing that they have committed a felony in order to help them escape
Accomplices must have…
1) In the absence of a statute, more than mere knowledge;
2) Intent to ASSIST the principal; and
3) Intent that the principal COMMIT the offense
4) Provision of Material = Sufficient
Accomplices’ Scope of Liability
An accomplice is responsible for crimes they did or counseled…
…AND for any other crimes committed in teh course of committing the contemplated crime TO THE SAME EXTENT AS THE PRINCIPAL if those other crimes were PROBABLE or FORESEEABLE
Accomplice Withdrawal
To withdraw, accomplice must:
- Repudiate encourageemnt
- Attempt to neutralize their assistance
- Notify police or take other action to prevent crime
…then will not be liable.
The Elements of Conspiracy
AIIO: Also Interested Imaginary Otters
1) Agreement between 2+ persons
- (Modern Approach): Only 1 “guilty mind” required
- (Common Law): 2 “guilty minds” required
2) Intent to Enter Agreement
3) Intent to Achieve Objective
4) Overt Act (?)
- (Modern Approach): Most states require an overt act. Mere preparation/agreement suffices. (can be anything: buy ski masks)
- (Common Law): No Overt Act needed
Termination of Conspiracy
Usually terminates upon completion of the wrongful objective
Acts of concealment are generally NOT part of the conspiracy, unless agreed to in advance
Conspiracy Responsibility
SHARED RESPONSIBILITY. Each member of a conspiracy is liable for the crimes of all other conspirators IF those crimes were:
a) Committed in furtherance of hte objectives of the conspiracy; and
b) A natural and probable consequence of the conspiracy
Defenses to Conspiracy
Not A Defense:
1) Factual Impossibility of actually doing the crime
2) Withdrawal, because conspiracy is complete as soon as the agreement is made. May be a defense to crimes committed in furtherance of the conspiracy.
Defense
3) Withdrawal: Conspirator must perform an affirmative act that notifies all members of their withdrawal.
Solicitation
Elements:
1) Asking someone to commit a crime, with
2) The intent that the person commit it.
Merger: If the person agrees to the crime, then solicitation disappears and it becomes a conspiracy
Attempt
An act done with the intent to commit a crime that falls short.
The Elements of Attempt
1) Specific Intent to Commit That Crime
2) Overt Act in Furtherance of the Crime. Must be beyond mere preparation. How can you tell?
- Common Law: The Proximity Test, which requires the act be “dangerously close” to successful completion
- Most States/MPC: Act constitutes a substantial step in a course of conduct planned to culminate in the crime.
Defenses to Attempt
1) Abandonment of Attempt
- Common Law: not a defense
- MPC: IS a defense if fully voluntary and complete. IOW, if you just were like, “Eh, I feel sick,” that’s not an actual defense.
2) Legal Impossibility
- Defendant thought it was a crime, but it wasn’t.
- Rare
NOT A DEFENSE: Factual Impossibility
Common Law Murder
Unlawful killing of a human being with malice aforethought
Malice Aforethought
- Intent to Kill
- Intent to Inflict Great Bodily Injury
- Reckless Indifference to an Unjustifiably High Risk to Human Life; OR
- Intent to Commit a Felony (felony murder)
First Degree Murder
…requires one of the following circumstances:
- Deliberate and Premeditated: Defendant made decision to kill in cool and dispassionate manner and actually reflected on the idea of killing. Must have intent or knowledge their conduct would cause death.
- First Degree Felony Murder: Murder occurs during a felony (burglary, arson, rape, etc.)
- Others: Some statutes make killings performed in certain ways first degree. E.g. torture or with certain victions (police officers)
Homicide of a Police Officer
…is a first degree murder where:
- Defendant knew they were a police officer; and
- Victim was acting in the line of duty (can be off duty too, e.g. comes across robbery in plain clothes)
Second Degree Murder
A depraved heart killing: reckless indifference to an unjustifiably high risk to human life.
Basically, anything that’s not first degree murder.
ASSUME the murder is SECOND degree unless any of the first degree circumstances apply.
Felony Murder
Any death, even accidental, caused in the commission of or in an attempt to commit a felony, is murder.
Malice is implied from the intent to commit the underlying felony.
Most often robbery on the bar.
Limitations on Liability for Felony Murder
1) Defendant must have committed or attempted to commit the underlying felony.
- a defense against the underlying offense is also a defense against felony murder.
2) The felony must be distinct from the killing itself.
- e.g. aggravated battery that causes death is not an underlying felony for felony murder liability
3) Death must have been a foreseeable result of the felony
4) Death must be caused before the defendant’s “immediate flight”
…also, defendants are not liable for felony murder when a co-felon is killed, in most jurisdictions.
Felony Murder Theories
Agency Theory (Majority): Felons only liable for deaths caused by a felon or an agent.
Proximate Cause (Minority): Felons liable for the death of innocent victims caused by someone other than a co-felon.
Voluntary Manslaughter
A killing that would be murder but for the existence of adequate provocation.
Adequate Provocation
- Provocation would arouse sudden and intense passion in the mind of an ordinary person (finding spouse in bed)
- Defendant was in fact provoked
- Insufficient time to cool down; and
- The defendant *in fact did not cool off
Involuntary Manslaughter
Definition: A killing committed with criminal negligence (or recklessness under the MPC)
Causation: Both FACTUAL and PROXIMATE are needed.
(an act that hastens the inevitable result is still the legal cause of the result. e.g. weak/fragile preexisting conditions doesn’t break the legal chain of causation.)
Limitations on Involuntary Manslaughter Liability
- Year and a Day. Liability depends on the death occurring within one year and one day of the infliction of injury. But most states have abolished this.
-
Intervening Acts. Shields from liability if the act is a coincidence or is outside the foreseeable sphere of risk created by the defendant.
- Negligent Medical Care = you’re still liable
Battery
Unlawful application of force to another resulting in either bodily injury OR an offensive touching
- need not be intentional
- force need not be applied directly (making a dog attack)
- Not a Specific Intent Crime so no voluntary intoxication/unreasonable mistake of fact defense
Aggravated Battery
Includes:
- Battery with a deadly weapon
- Battery resulting in serious bodily harm
- Battery of a child, woman, or police officer
Assault
is either:
- An attempt to commit a battery; OR
- Intentional creation (other than by words) of a reasonable apprehension in the victim’s mind of imminent bodily harm
Aggravated Assault
Assault plus one of the following:
- Use of a deadly or dangerous weapon; or
- With the intent to rape, maim, or murder
False Imprisonment
The unlawful confinement of a person without their valid consent
MPC requires the confinement must substantially interfere with the victim’s liberty. Therefore, an alternative route being reasonably available means it was not false imprisonment.
Consent is invalidated by threats, coercion, incapacity, etc.
Kidnapping
The unlawful confinement of a person that involves either
- Movement of the victim; or
- Concealment of the victim in a secret place
Aggravated Kidnapping
Kidnapping for ransom, to commit other crimes, offensive purposes, or child stealing
Rape
Gender-neutral sexual assault; the slightest penetration is sufficient.
The only thing they really test on the bar is the “slightest penetration” thing.
Statutory Rape
Carnal knowledge of a person under the age of consent.
Strict Liability: it is not necessary to show lack of consent.
Reasonable Mistake as to Age is NOT a defense.
Larceny
The taking and carrying away of tangible personal property of another by trespass with intent to permanently deprive at the time of the taking
(You can commit larceny of your own property too, if another person, e.g. a bailee, has a superior right to possession at the time. Mechanic example.)
(Lots of questions on intent at the time of the taking)
Insufficient Intent for Larceny
- Believe the property is the defendant’s.
- If the question says, “In the belief that,” be skeptical it’s really larceny.
- Intent only to Borrow
- Intent to Keep Property as a Repayment of Debt
- Some right to it
Possibly Sufficient Intent for Larceny
May be larceny where the defendant intends to:
- Pay for the goods (if the goods weren’t for sale) or
- Collect a Reward from the Owner (if there is no intent to return the goods absent a reward)
The Continuing Trespass Theory
Where the defendant wrongfully takes the property without intent to permanently deprive, and later decides to keep it, it may be larceny under the continuing trespass theory.
Embezzlement
Fraudulent conversion of personal property of another by a person in lawful possession of that property
Distinguished from larceny because it’s the misappropriation of property while it is in one’s rightful possession
Embezzlement - Fraudulent Intent Requirement
Defendant must intend to defraud
Embezzler doesn’t have to get the benefit.
On the Bar, when you see Trustee —> Embezzlement!
Intent to Restore
If the defendant intends to restore the exact property taken, it is not embezzlement.
But, if the defendant intends to restore similar or substantiall identical property, it is embezzlement
Embezzlement - Claim of Right
Not embezzlement if the conversion is pursuant to a claim of right
Whether the Defendant took the property openly is an important factor
False Pretenses
Obtaining title to personal property of another by intentional false statement of past or existing fact with intent to defraud
Misrepresentation in False Pretenses
Misrepresentation must be a major factor in FP crime. Any false representation suffices, including a false promise to perform in the future.
False Pretenses v. Larceny By Trick
In Larceny by Trick, the victim gives up custody or possession of the property.
In False Pretenses, the victim is tricked into giving up the title to the property.
Robbery
Taking of personal property of another from the other’s person or presence by force or imminent threats, with intent to permanently deprive
differs from larceny because of the force requirement
Imminent Harm
Immediate. If it’s a threat like, “I’ll beat you up on Monday,” that’s not robbery.
Armed Robbery
Robbery with a deadly weapon.
…even if they didn’t actually have a deadly weapon, but only simulated it.
Extortion
Blackmail; obtaining property by means of threats to do harm or expose information
Extortion v. Robbery
Extortion can include threats of future harm, unlike robbery.
Extortion does not have to be in the presence of the victim.
Extortion Statutes
Under some statutes, the crime is complete when the threats are made with intent to obtain the property. In other words, the property need not have been obtained.
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
Theft
Many modern statutes and the MPC combine some/all of the theft-related offenses (larceny, larceny by trick, extortion, etc.) into the crime of “theft.”
Forgery
Making or altering a writing with apparent legal significance so that it is false, with intent to defraud
- apparent legal significance: a contract, a check…not a painting
- intent needed; no one need actually have been defrauded
Burglary
A breaking and entering of a [dwelling] of another [at nighttime] with intent to commit a felony in the structure
More on the Elements of Burglary
Entry: Any part of the body enters the place
Intent to Commit a Felony…
- must exist *at the time of the breaking and entering.
- Don’t actually have to commit the felony
Breaking:
- Actual Breaking: Not an actual breaking to come uninvited through a wide open door or window.
- But if you TOUCH ANY ENTRANCE at all, even push it open slightly, that’s enough for an actual breaking
- If you use a key for something other than the purpose for which you were given it, that’s a breaking
Constructive Breaking: Breaking by fraud or threat
Arson
Malicious (intentional or reckless disregard of an obvious risk to human life) burning of the [dwelling] of another
Malicious Intent Crime: Acting with a reckless disregard of an obvious risk is enough.
Damage Required: Scorching/blackening is not sufficient. Must be charring. (no one knows)
Defenses
- Insanity
- Intoxication
- Infancy
- Self-Defense
Insanity
Four Tests:
- The M’Naghten Rule: D lacked ability to know the wrongfulness of their actions or understand their nature/quality. (Most Popular one!)
- Irresistible Impulse: Unable to control their actions or conform their conduct to the law.
- Durham Test: Crime was the product of their mental illness; would not have been committed but for the disease. (Broader test. Only NH.)
- MPC/Modern Trend Test: Lacked substantial capacity to either appreciate the criminality of their conduct or conform their conduct to the law as a result of mental disease/defect.
Burden of Proof for The Insanity Defense
Most States —> Preponderance of the Evidence
Some States/MPC —> Beyond a Reasonable Doubt
Timing: Can be raised at any time.
