Emmanuel Criminal law Flashcards
In general what are the elements of a crime?
- Act (Actus Reus)- can be omission where there’s a duty to act
- Mental State (Mens Rea)-varies from crime to crime (strict liability a crime not requiring Mens Rea)
- Concurrence between act and required mental state
- Causation-actual and proximate cause of result
what’s the difference between a crime and a tort?
Tort is a civil wrong committed against an individual; a crime is a public wrong committed against the state.(violating statutes)
What theories of punishment might the criminal law be seen to serve?
Retribution
Rehabilitation
Incapacitation
Deterrence
In the classification scheme used by most states today, what is the distinction between felonies and misdemeanors?
Felony = Crime punishable by either imprisonment exceeding one year in prison or jail or by death
Misdemeanor = crime punishable by a fine or imprisonment not exceeding one year
battery and assault generally are misdemeanors but aggravated assaults and batteries are felonies
What are the common law felonies?
(Today there are no common law felonies almost all are statutory)
Murder, Manslaughter, Mayhem, Rape, Robbery, Sodomy, Larceny, Arson and Burglary.
Which provision of the Bill of Rights provide the primary constitutional limitations on criminal punishment?
First Amendment
Fourth Amendment
Fifth Amendment
Eighth Amendment
If the states have primary responsibility for enforcing criminal laws and given that provisions of the Bill of Rights apply only to the federal government are states free from all federal constitutional regulation?
No, even though the Bill of Rights explicitly applies only to the federal government, the majority of its provisions (including those relevant to criminal law) are considered to be “incorporated” into the Fourteenth Amendment’s due process clause and therefore applicable to the state
What is the legality principle?
It is the proposition, derived from the Constitution that no person may be punished unless that person’s conduct was criminalized before the act occurred.
What is a “principal in the first degree”
It is the person who causes a criminal result through actual engagement in an act or omission or causes an innocent or incapable agent to so act.
What is “principle in the second degree”?
a person who is present at the time of the crime and aids, and counsels, directs, or encourages (aiding and abetting) the principal in the first degree in committing the crime. Principles in the second degree as well as accessories before the fact are generally called accomplices.
Distinguish between an “accessory before the fact” and a “principal in the second degree”
one who procures, counsels or commands the commission of a felony but who unlike a principal in the second degree is not present actually or constructively at the commission of the criminal act.
an accessory can be found guilty even if the principal has not been apprehended yet.
accessory after the fact is retained as a separate crime “harboring a fugitive/felon” or “obstructing justice”
In the criminal prosecution and conviction of a principal in the first degree and a principal in the second degree, what will be the difference in punishment?
None; they will receive the same punishment. There can be a guilty principal in the second degree without a guilty principal in the first degree.
Principals in the second degree as well as accessories before the fact are commonly called “accomplices”
What is the essential Actus Reus that is at the heart of accomplice liability?
Accomplice liability developed to criminalize the behavior of one who “aids, abets, encourages or assists another”in the commission of a crime. Culpability for the accomplice who aids or abets another in the commission of a crime requires more than “mere presence” or a failure to intervene to present the crime from occurring but will exist where such conduct is done with the purpose and has the effect of assisting or encouraging completion of the crime.
What does it mean to say that a statute is “void for vagueness”?
A statute will be unconstitutionally vague and therefore unenforceable if it does not indicate to a person of ordinary intelligence what conduct is prohibited
Why are unreasonably vague statutes unconstitutional
- the related legality principle presumes that people will have reasonable notice and fair warning with respect to the actions criminalized by the statute
- unreasonably vague statutes may vest government officials with excessive discretion in deciding which people or what conduct should be be punished
Describe the proportionality principle
The proportionality principle refers to general proposition that punishment for criminal conduct should be roughly proportionate to its seriousness. Although proportionality is largely a policy consideration for legislatures rather than a rule of decision for courts it does have important consequences in the area of capital punishment
What is the rule of lenity?
Rule of lenity is the generally accepted notion that ambiguities in a criminal statutes should be construed against the government and in favor of the defendant. Although the rule itself is applied in only the most exceptional cases, it does represent a rule of statutory constructions to which courts will occasionally resort.
What is a “bill of attainder”?
It is a statute that mandates punishment or denies a privilege without a judicial trial.
Bills of attainder are prohibited by the constitution
What is an “ex post facto law”?
Make an act criminal that was not criminal when it took place or “aggravate” a crime or make its punishment more severe or change the rules of evidence against criminal defendants as a class or change criminal procedure to deprive criminal defendants of any substantive right
Ex post facto laws are prohibited by the constitution.
What is a “lesser included offense”?
It is one that requires only proof of some but not all of the elements of another offense and no other elements.
Significance: One cannot be convicted of both a lesser-included offense and the greater offense neither can an accused be tried for one and later for the other as this would constitute double jeopardy.
What’s the difference between a crime that is “malum in se and one that is “malum prohibitum?”
A crime that is malum in se it one that is inherently evil (murder, battery, robbery)
A crime that is malum prohibitum is one that is wrong only because the law prohibits it (speeding, taxes)
What connection if any exists between the criminal law and public morality?
Criminal law represents a moral judgement by a community and even though concepts of morality played an important role in development of theories of punishment, the direct link between criminal law and morality is diminishing.
There exists a large number of public welfare or regulatory offenses that do not bear moral implications and a large body of morally questionable behaviors that are not made unlawful
What is the standard of proof necessary to secure a criminal conviction?
Government must prove each element of the charged crime beyond a reasonable doubt (there must be an abiding conviction, to a moral certainty of the truth of the charge)
Government may benefit from certain presumptions regarding the existence of those elements but Due Process requires that nay such presumptions be rebuttable by the defendant and that they not have the effect of shifting the burden to the defendant to disprove one or more element s defining the crime
Four categories of parties to a felony at common law
- Principals in the first degree
- Princpals in the second degree
- Accessories before the fact
- Accessories after the fact
Must an individual’s assistance be necessary to commission of the crime for that person to be charged as an accomplice
No. The weight of authority suggests that a purposeful effort to aid, abet, encourage or assist is sufficient, even if the crime most likely would have been completed anyway. However accomplice liability will not attache where the intended aid or assistance had no effect on the principle criminal actor or where principal ultimately did not commit or attempt to commit a crime.
Beyond the criminal activity intentionally aided or encouraged by an alleged accomplice for what”other” crimes committed by the principal will the accomplice normally be responsible?
Majority rule provides that where the principal commits a crimes other than that intentionally facilitated by the accomplice the accomplice will additionally be criminally responsible for those results that are the “natural and probable” consequences of the conduct that the defendant intended to aid or encourage.
MPC: takes opposite view rejects liability for other crimes committed by principal unless specifically intend by the accomplice
At what point can an accessory before the fact withdraw from criminal activity and avoid criminal liability for the completed crime?
Where an accessory has only counseled commanded or encouraged the crime he may withdraw by communicating his changed intention to the other parties. If he has already given tangible aid, he must withdraw the aid or try to prevent its use.
What does “compounding a crime” consist of ?
To compound a crime one must:
1. Expressly agree not to prosecute give evidence on or report a felony (few states also include misdemeanors)
2. That one knows has been committed
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Beyond the criminal activity intentionally aided or encouraged by alleged accomplice, for what “other” crimes committed by the principal will the accomplice normally be responsible?
Majority rule provides that where the principal commits a crime other than the intentionally facilitated by the accomplice, the accomplice will additionally be criminally responsible for for those results that are the “natural and probable” consequences of the conduct that the defendant intended to aid or encourage.
Must a person be convicted as a principal in the commission of a crime to permit the conviction of an accomplice?
No. Accomplice liability represents an instance in which the accomplice becomes liable for the crimes of the principal, and the principal therefore must be guilty in fact (crime occurred)
however there may be occasions in which principal may avoid conviction for a crime that in fact happened such as where principal has a complete defense (insanity) that is personal to that individuals. In theses circumstances , the failure to convict the principal os no obstacle to charging the alleged accomplice
To be found insane under the M’Naghten rule, must a criminal defendant fulfill both halves of the test i.e the “nature and quality” and “right and wrong” tests?
No. Fulfilling the conditions of either half of the M’Naghten rule suffices for criminal insanity. An instruction that required both constitutes reversible error.
Under the common law, at what age is a child conclusively presumed to lack the legal capacity to commit a crime?
7 and under.
Modern Rule: apply variety of standard- children under certain age cannot be convicted
What is the automatism defense?
Premised on the requirement that a defendant commit a voluntary act to be subject to criminal conviction.
Certain cases, the defendant may have been affected by a physical or mental condition that makes it difficult or impossible to construe that defendant’s conduct as truly voluntary
Where defendant can satisfy the fact-finder as to the existence of a physical condition or mental condition that renders the charged conduct involuntary may defeat conviction
What 3 offenses are considered “inchoate” offense
Attempt, Conspiracy and Solicitation.
Inchoate offense is committed in anticipation of and preparation for, another offense and inchoate offense is considered “complete” in and of itself.
What is the common law crime of “solicitation”?
Solicitation requires:
1. enticing, advising, encouraging or ordering another to commit a
2. felony or misdemeanor against the public welfare
3. with specific intent that the one solicited commit the crime
conviction of solicitation does not require that the one solicited actually commit the crimes
What mental state must be shown to convict a defendant of solicitation?
like accomplice liability, the defendant must have intended to induce the person solicited to commit the crime.
Additionally a defendant charged with solicitation must also possess that level of culpability used to define the underlying crime.
What result in circumstances in which a potential defendant’s request (i.e solicitation) is never communicated to the would-be recipient?
When the defendant fails to communicate his criminal request results vary from jurisdiction. Majority permits conviction of the lesser offense of attempted solicitation.
The Model Penal Code charge on solicitation
Permit conviction for the completed crime of solicitation, even where communication is never received (1) the defendant possessed the required mental state and (2) his conduct was designed to communicate a criminal proposal.
What are the elements of conspiracy?
An act in furtherance of the conspiracy, by any conspirator is required in addition to these elements must be unlawful: (1) an agreement between at least two people (2) intent to enter into such and agreement (3) intent to achieve agreements objective
What Mens Rea is required for conspiracy
Conspiracy is a “specific intent” crime there must be:
1. intent to enter into the agreement to combine
2. intent to commit a specific unlawful act through the combination
In conspiracy, must the agreement to conspire be “express”?
No. It can be inferred from the circumstances of the case and the conduct of the alleged conspirators
Distinguish between an “accomplice” (such as an accessory before the fact or a principal in the second degree) and a “conspirator”
A conspirator has agreed with others as to the commission of a crime
A accomplice need not have agreed or conspired to commit a crime, but may have aided the commission without agreement.
Accomplice liability requires a completed crime, a conspiracy will arise where a crime is contemplated but not completed. In most cases however an accomplice will also be a conspirator
Why is conspiracy regarded as a particularly dangerous crime?
When a person has the pressure and support of other to commit a crime, the odds that he’ll follow through are must greater than if her were acting alone.
He’ll be must less likely to abandon his criminal place if others are involved
With the division of labor involved in a conspiracy its much more likely that the conspiracy will achieve its criminal objective than if an individual were acting alone
There are two different ways in which large conspiracies are considered to be organized. What are they?
- Chain relationship- one overall conspiracy. each conspirator has an interest in the entire scheme
- Hub and Spoke (aka Wheel) relationship- many small conspiracies with one central figure. All agreement in the group have one common member, but each agreement is reasonably independent of the others, such that each has no particular interest in whether the others succeed.
Chain v. Hubb and Spoke relationships
A chain relationship is more likely to result in every member being considered every other member’s co-conspirator because there is interdependence.
In a Hub and Spoke situation, no such interdependence, exists, and so those who do not deal directly with each other are less likely to to be considered co-conspirators.
However if the operation requires many participants (like large gambling operation) a hub and spoke organization can be considered one large conspiracy.
Under what circumstances will a conspirator be liable for the acts of a fellow conspirator?
When:
1. the crimes are committed in furtherance of the conspiracy’s objectives
2. The crimes were foreseeable
Conspirator can avoid liability by effectively withdrawing before the crimes take place.
The conspiracy must obviously be prove first
To be found guilty of conspiracy, must one of the conspirators commit an “over act” in furtherance of the conspiracy?
Traditionally no- the agreement to conspire constituted the Actus Reus. Today some states stick to this and require mere agreement to be guilty of conspiracy but most states either by case or statute require an “overt act” by one of the conspirators.
In jurisdictions that require an “overt act” in furtherance of a conspiracy before liability will attach, must the “overt act” be criminal?
No. The purpose of the “overt act” is only to prove the existence of the conspiracy so it need to not be illegal itself. It need only be a step toward executing the conspiracy or to effect the objection of the conspiracy or an act of preparation to effect the conspiracy’s aim.
An “overt act” need only be undertaken by one member of the conspiracy not all of them.
In the context of conspiracy, which is the more stringent or demanding standard: an overt act in furtherance of a conspiracy or an attempt at a crime.
Providing an attempt is more stringent standard. An act taken in furtherance of a conspiracy is sufficient overt if it goes beyond the “agreement” stage. Preparations that does not suffice for attempt is sufficient for “overt act”
Is legal impossibility a defense to a conspiracy charge?
No-neither is factually impossibility.
Compare: Attempts where legal impossibility is a valid defense
Does “overt act” mean the same thing in attempts as it does in conspiracies?
No. in attempts, a sufficient act is an act beyond mere preparation that subjects the actor to liability. The standard for such an act varies, but it must at least a “substantial step” toward committing the crime
In conspiracies over act refers to any act by any conspirator in furtherance of the conspiracy, It need not be substantial- it can be a call as long as its made to her effect the conspiracy’s aim
Define “legal Impossibility”
Legal impossibility arises when what the defendant intends to do is not criminal. It is a valid defense to an attempt charge.
Define “Factual Impossibly”
not a defense to attempt only arises when completion of the crime is impossible due to physical facts not know to the defendant
Does the Model Penal Code recognize “impossibly” as a defense to attempt?
No. it rejects the defense whether the impossibility is “legal” or “factual “ as does the modern trend: where the actual intent is to perform an act of effect a result proscribed by law, impossibility is no defense
Is “insanity “ a psychiatric term?
No. it is a legal conclusion that a defendant is not criminally responsible for his acts, due to a mental abnormality, which makes it inappropriate to imprison him.
most popular test is M’Nagten Rule (knowledge test), MPC test (alternative knowledge or control)
What is the principal behind the insanity defense?
The primary justification for the insanity defense is that a defendant who, by reasons of mental disease or defect is unable to distinguish right from wrong or unable to control his conduct does not present a legitimate case for criminal punishment. Neither of the broad penological purposes of punishment, deterrence or retribution, is served by conviction a person who can establish insanity (as defined in the jurisdiction) at the of the crime
Is the insanity defense constitutionally required?
Although virtually every state recognizes the insanity defense in some form it foes not appear to be required by the federal constitution under certain circumstances such as with respect to the application of the death penalty
There are 4 principal tests for insanity what are they?
- M’Naghten Rule
- Irresistible Impulse Test
3.Durham Rule - ALI/Model Penal Code “Substantial Capacity” Test
How does the Model Penal Code define “criminal insanity”?
whether the defendant lacked substantial capacity as a result of a mental disease or defect either by:
1. to appreciate the criminality (or wrongfulness) of his conduct or
2. To conform his conduct to the requirements of the law.
(Combines the M’Nagten and the Irresistible Impulse test)
What is meant by the phrase “unable to comprehend the nature and quality of his acts” referring to the definition of insanity under M’Nagten Rule?
The defendant is not able to understand the physical consequences of his act, e.g a man hits his wife in the head with a bat believing her head is a baseball. obviously such people are rare and cases under M’Nagten Rule most frequently deal with defendants ability or lack thereof to diminish right from wrong.
What is the Durham rule?
A small minority of jurisdictions accept the Durham Rule rather than the M’Nagten Rule is defining criminal insanity. It hold that a person is legally insane if his act was the product of a mental disease or defect. The Durham Rule is criticized as being too vague, too subject to the influence of experts and too favorable to defendants.
Is a criminal defendant discharged and released from custody upon a verdict of not guilty by reason of insanity?
No. the law of every jurisdiction operate such that a defendant who successfully invoke the insanity defense will most likely be confined to a mental health institution until he is either “cured” or no longer poses a danger to the community
What is the “diminished responsibility” defense?
Recognized in a minority of states, the “diminished responsibility” defenses exonerated defendants who are not “insane”, but nonetheless lack the mental capacity to be held liable for their actions due to their inability to form the required Mens Rea (remediation in first degree murder, specific intent in larceny).
Note: one of “diminished capacity” can still be liable for crimes that require a lesser Mens Rea like negligence
under what circumstances will a defendant be found incompetent to stand trial
When he:
1. cannot understand the nature of the proceeding brought against him
2. He cannot assist his lawyer in preparing a defense
If defendant satisfies either of these, it will be a due process violation for him to stand trial or be convicted or sentences. Instead the trial must be postponed until the defendant regains his competency
Insantity v. Incompetency
Insanity addresses the defendant’s ability due to his mental state when the act was committed
incompetency addresses the defendant’s mental state at the time of trial and does not involve the defendant’s criminal liability
