Essay Skeletons Flashcards
Express Malice Murder
Definition: an unlawful killing where the actor desired the death of the victim
Step 1: Actus Reus = unlawful killing
- Check statutes for degrees
Step 2: Mens Rea = Malice aforethought, “Willful, deliberate, and premeditated”/
- MPC: purposely or knowingly
Step 3: Causation
- But-For Cause
- Proximate Cause
- Concurrence
Step 4: Look for transferred intent
Step 5: Defenses
- Insanity - M’Naghten, Irresistible Impulse, Durham, Substantial Capacity
- Voluntary Intoxication
- Involuntary Intoxication
- Unforeseeable intervening agent
- MPC allows necessity and duress defenses, CL does not
- Self Defense (Castle Doctrine/SYG)
Step 6: Cases = Taylor (hit and run, legal papers), Guthrie (towel whip nose guy = stabbing), Carroll (argument = hubby shoots in head), State (steakhouse stabbing)
Implied Malice Murder
Definition: reckless killings that demonstrated a depraved indifference to human life
Step 1: Actus Reus = extremely reckless behavior leads to death
Step 2: Mens Rea = Severe depravity or evidence of an “abandoned and malignant heart.”
- MPC - “extreme indifference to the value of human life”
Step 3: Causation
- But-For Cause
- Proximate Cause
- Concurrence
Step 4: Defenses
- Insanity - M’Naghten, Irresistible impulse, Durham, Substantial capacity
- Did not intent to inflict great bodily injury (punch vs. stab)
- Involuntary intoxication
- Regular recklessness (ratchet down to involuntary manslaughter)
- Unforeseen intervening agent
Step 5: Cases = Knoller (deadly dogs), Snyder (suffocating babies)
Felony Murder
Definition: D commits an underlying felony that results in death
Required Elements
- Independent felony or merger limitation
- Inherently dangerous felony limitation
- “In furtherance of the felony” limitation
- Agency Approach
Step 1: Actus Reus = felony action that leads to death
Step 2: Mens Rea = mens rea of the felony
Step 3: Causation
- But-For Cause
- Proximate Cause
- Concurrence
Step 4: Check for required elements
Step 5: Defenses
- Defenses to felony
- Necessity to felony
- Duress to felony
Step 6: Cases = Sarun Chun (stoplight driveby), Howard (police chase car collision), Stewart (drug binge starved baby), Hernandez (undercover cop friendly fire), 5 teen burglary, Sophophone (burglary, cop kills co-felon)
Voluntary Manslaughter
Definition: killing performed with provocation or sudden “heat of passion”
Required Elements
- Adequate provocation
- Killing in the heat of passion
1. Extreme assault on the defendant
2. Mutual combat
3. Illegal arrest of the defendant
4. Injury or serious abuse of close relative (or friend)
5. Sudden discovery of spousal adultery
- Performed suddenly before reasonable opportunity to cool off
- Causation between provocation, passion, and killing
Step 1: Actus Reus = unlawful killing
Step 2: Mens Rea = provocation or sudden “heat of passion” /
- MPC: Extreme Emotional Disturbance - “under the influence of mental or emotional disturbance for which there is reasonable explanation or excuse.”
Step 3: Causation
- But-For Cause
- Proximate Cause
- Concurrence
Step 4: Check for required elements and if “heat of passion” is found
Step 5: Defenses
- Adequate provocation
- EED
- Self-defense
- Imperfect self-defense = a killing with a sincere but unreasonable belief in imminent harm
- Involuntary intoxication
- Diminished mental capacity
Step 6: Cases = Castagna (mob v. black guy), Girouard (small wife attacks), White (run ex-hubby over), Ellie Nesler (kills molester in trial)
Involuntary Manslaughter
Definition: Conduct that constitutes a substantial and unjustified risk that results in death
Step 1: Actus Reus = action that leads to death
Step 2: Mens Rea = Disregarded substantial and unjustifiable risk
Step 3: Causation
- But-For Cause
- Proximate Cause
- Concurrence
Step 4: Defenses
- Insanity - M’Naghten, Irresistible impulse, Durham, Lacks substantial capacity
- Killing was unintentional
- Involuntary intoxication
- Honest mistake vs. recklessness
Step 5: Cases = Kolzow (baby in car)
Misdemeanor Manslaughter
Definition: D commits an underlying misdemeanor that results in death
Step 1: Actus Reus = misdemeanor action that leads to death
Step 2: Mens Rea = mens rea of the misdemeanor
Step 3: Causation
- But-For Cause
- Proximate Cause
- Concurrence
Step 4: Defenses
- Insanity - M’Naghten, Irresistible impulse, Durham, Lacks substantial capacity
- Involuntary intoxication
Step 5: Cases = Biechele (indoor pyrotechnics)
Negligent Homicide
Definition: D’s negligent acts caused death
- MPC = does tailor certain characteristics to the RP (blindness)
Step 1: Actus Reus = negligent action that leads to death
Step 2: Mens Rea = negligence, RP would have been aware
Step 3: Causation
- But-For Cause
- Proximate Cause
- Concurrence
Step 4: Defenses
- Insanity - M’Naghten, Irresistible impulse, Durham, Lacks substantial capacity
- Involuntary intoxication
Step 5: Cases = Traughber (truck driver swerves), Small (kids, fire, apartment), Negligent Skier
Physical Battery
Definition: unlawful application of physical force
Required elements
- Must engage in an unlawful application of physical force
- Must result in either a physical (bodily) injury or an offensive touching
- Acting with purpose, knowledge, or recklessness (or sometimes negligence)
Step 1: Actus Reus = unlawful application of physical force that results in bodily injury or offensive touching
Step 2: Mens Rea = purpose, knowledge, or recklessness (or sometimes negligence) Step 3: Causation - But-For Cause - Proximate Cause - Concurrence
Step 4: Check required elements
Step 5: Defenses
- Self-defense
- Insanity - M’Naghten, Irresistible impulse, Durham, Substantial Capacity
- Involuntary intoxication
- Necessity
- Duress
Step 6: Cases = Peck (spit in cop’s face = bad day), doctor amputates arm not leg
Assault
Definition: attempted battery or placing victim in reasonable apprehension of bodily harm
Step 1: Actus Reus =
a) attempt to do an unlawful application of physical force that results in bodily injury or offensive touching, but does not need result
b) Action that places somebody in reasonable apprehension of bodily harm
Step 2: Mens Rea =
a) Attempted battery route = purpose, knowledge, recklessness, or sometimes negligence
b) Reasonable apprehension route = intent to cause the required apprehension
- D must be genuinely aware that behavior is threatening
- Must be reasonable apprehension (overly sensitive people don’t count)
Step 3: Causation
- But-For Cause
- Proximate Cause
- Concurrence
Step 4: Check which avenue: attempted battery OR reasonable apprehension
Step 5: Defenses
- Self-defense
- Insanity - M’Naghten, Irresistible impulse, Durham, Substantial Capacity
- Involuntary intoxication
- Necessity
- Duress
Step 6: Cases = Commonwealth v. Boodoosingh (charge w/ bat), Border Agent an the brick, Birthmark (mom and brother scared, flee house)
Kidnapping
Definition: Unlawful confinement of the victim or the restriction of the victim’s movement
Required elements
- Confining or carrying away the victim (most controversial element)
- Forcibly or by threat or fear of deception
- For a nefarious purpose
Georgia Asportation Test
- whether movement is in the nature of the evil that kidnapping statute protects against duration of movement
- movement during separate offense
- movement inherent part of that separate offense
- movement presents a significant danger independent of separate offense.
Step 1: Actus Reus = Unlawful confine or restriction of movement
Step 2: Mens Rea = usually requires intent or purpose
- MPC lists following purposes: to hold for ransom or reward, or as a shield or hostage, or to facilitate commission of any felony or flight thereafter, or to inflict bodily injury or to terrorize the victim of another
Step 3: Causation
- But-For Cause
- Proximate Cause
- Concurrence
Step 4: Check required elements
Step 5: Check Asportation requirements
Step 6: Defenses
- Insanity - M’Naghten, Irresistible impulse, Durham, Lacks substantial capacity
- Involuntary intoxication
- Necessity
- Duress
Step 7: Cases = Goolsby (double home invasion and rape)
Stalking
Definition: Extension of the crime of assault, stalking can be far in the future, mental/emotional - instead of physical
Step 1: Actus Reus = Actions that place someone in a physical/mental/emotional state of reasonable apprehension of bodily injury
Step 2: Mens Rea = intent to cause the required apprehension
Step 3: Causation
- But-For Cause
- Proximate Cause
- Concurrence
Step 4: Defenses
- Insanity - M’Naghten, Irresistible impulse, Durham, Lacks substantial capacity
- Involuntary intoxication
- Necessity
- Duress
Step 5: Cases = Rebecca Schaeffer (actress killed by fan), Florida Villages (name calling in pool guy), Mitch McConnell (online and phone threats)
Rape
Definition: Non-consensual sexual intercourse completed by force or threat of force
Required elements*
- Some jx. require physical resistance or verbal resistance
- Force or threat of force
- Lack of consent
Step 1: Actus Reus = sex by force or threat
Step 2: Mens Rea = purpose or knowledge
Step 3: Causation
- But-For Cause
- Proximate Cause
- Concurrence
Step 4: Determine if resistance is necessary, and if met
Step 5: Determine if by force or threat of force
- Force - physical force that sometimes overcomes resistance
- Threat of force - threat prevents the victim from resisting due to a reasonable fear or apprehension re the victim’s safety
- Intrinsic vs. Extrinsic
- MPC = limited crime of rape to threats of “imminent death, serious bodily injury, extreme pain or kidnapping.” (has lesser crime of “gross sexual imposition”
Step 6: Determine if lack of consent
- Was there communication or just a state of mind?
Step 7: Was there Rape by Fraud?
- Fraud in the factum - lie about the nature of the act itself
- Fraud in the inducement - D lies about something to convince to have sex
Step 8: was there statutory rape?
Step 9: Defenses
- If state of mind -> mistake of fact (thought had consent)
- Insanity - M’Naghten, Irresistible impulse, Durham, Lacks substantial capacity
- Involuntary intoxication
- Duress
- Necessity
Step 10: Cases = Jones (ended affair, but rape), Rusk (light choking), Lopez (forest rape), Newton (teacher drinking sodomy), Boro (deadly disease doctor), Sabbar Kashur (israel)
Self-Defense
Definition: Non-deadly force is permitted in response to a non-deadly threat
Required elements:
Reasonable belief of an imminent threat of death or serious bodily injury
Must be necessary and that his response was proportionate
Can use to defend others
MPC - reject imminence and requires that defensive force be an “immediately necessary” at the time of its deployment”
Step 1: Actus Reus = Non-deadly force
Step 2: Mens Rea = Reasonable belief of an imminent threat of death or serious bodily injury
Step 3: Causation
- But-For Cause
- Proximate Cause
- Concurrence
Step 4: Was the threat imminent? (cannot be too early or too late)
Step 5: Was D the aggressor?
Step 6: Was there a duty to retreat?
Step 7: Does the Castle Doctrine apply?
Step 8: Does Stand Your Ground apply?
Step 9: Cases = Norman (abused, prostituted, waits and kills), Peterson (Stealing windshields, warns then shoots), Riddle (insult wife, gets rifle and shoots friend), George Zimmerman, Goetz (subway dude), Oscar Pisorius (South Africa Olympian)
Defensive Force by Police Officers
Definition: Police can use self-defense to justify unlawful killing
Cases = Eric Garner, Graham v. Connor (reasonable officer), Richard Matt (fled to Canada), Michael Brown, Michael Brelo (137 shots at victims car), Breonna Taylor
Necessity
Definition: committing the crime was “necessary”
Required elements:
- Violation of the law produces a lesser evil than had the defendant complied with the law.
- The danger must represent a present, imminent, or immediate threat
- The defendant cannot be responsible for creating the very situation that produced the state of necessity
- The defendant must have no alternative but to violate the law
- There must be a causal relationship between the criminal act and the harm to be avoided
- The defendant must not have continued the illegal conduct after the harm was averted
- Most jurisdictions disallowed the defense if the crime in question represents a legislative choice to disallow a claim of necessity
- MPC = “choice of evils” defense and requires that “the harm, or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged…”
Applications
- CL, not available for murder, but MPC allows
- Can be used for felony murder, use necessity for underlying felony
- Direct civil disobedience (not indirect)
Cases = Ridner (3 shotgun shells in pocket), Dudley (Shipwreck Cannibalism), guy kills abortion doctor
Duress
Definition: the person who issues the threat is trying to coerce an otherwise innocent individual into committing a crime at his behest
Required elements:
- They or a third party faced an imminent threat from another individual with no opportunity for reasonable escape
- The threat was sufficiently severe in nature
- The crime committed was not murder
- The defendant was not reckless or otherwise culpable in creating the circumstance that produces the duress
MPC and reasonable firmness test
- Reasonable firmness test - a court must first ask whether a person in the defendant’s situation would have succumbed to the threat, which requires analyzing the threat from the subjective vantage point of the defendant
- Court must then ask whether a person of reasonable firmness would have been unable to resist - a question of reasonableness that adds a clearly objective component to the analysis
- This test is an objective-subjective hybrid because it asks was it objectively reasonable for a person in similar circumstances as the defendant to succumb to the threat?
Applications
- CL, not available for murder
- Can be used for felony murder, use duress for underlying felony
- Does not apply to recklessness
- MPC - defense not available if D put himself in position to be under duress
Cases = Demarco (low IQ cover up), Contento-Pachon (Colombian taxi smuggler)
Insanity
Definition: Insanity
Tests:
- M’Naghten Test
1. Concentrates on the impairment of a defendant’s cognitive capacity
2. Either Defendant believes she is committing one action but is actually committing another; or
4. The defendant correctly perceives the action but is unaware that it is wrongful - The Irresistible Impulse or Volition Test
1. Adds “actor unable to control his behavior and comply with the law” to M’Naghten - Durham Test
1. defendant can’t be convicted of a crime if the act was the result of a mental disease or defect the defendant had at the time of the incident - MPC’s “substantial capacity” test
1. At the time lacks the substantial capacity either to appreciate the criminality of his conduct or to conform his conduct the requirements of the law
Wrongfulness
- Legal wrong - criminality, somewhere there is a statute that says this is illegal
- Moral wrong - did the defendant know that this is a morally wrong thing to do
- MPC can choose either
Diminished Capacity
- The diminished capacity doctrine allows a D who does not plead insanity to still introduce evidence of mental illness to negate the mens rea (Arizona)
Deific Decree - told be god
Cases = Sanders (kills grandparents then runs), Pollard (depressed po po), Freeman (druggy boxer), Crenshaw (muscovite), Clark (alien delusion), Incels
Intoxication
Definition: Crime under an intoxicating substance
Voluntary intoxication involves a defendant who willingly imbibes an intoxicating substance such as liquor or drugs, whether illegal or prescription
Involuntary intoxication involves a defendant who is drugged without her knowledge
Defendant can assert voluntary intoxication for specific intent crimes, but not general intent
MPC - provides that intoxication is not a defense unless it “negatives an element of the offense.”
- An actor is excused if he “lacks substantial capacity either to appreciate its criminality [wrongfulness] or to conform his conduct to the requirements of law”
Cases = Brown (beer binge shotgun ex), Repeated DUI sidewalk bandit, Egelhoff (mushroom picker car accident), Garcia (insulin guy), Carlsbad Hiker
Attempt
Complete attempt - If a criminal takes the last step he believes necessary to commit a crime but still fails in his effort, the law calls this a “complete attempt” - punishable
Incomplete attempt - If he starts the crime but is caught by police - punishable
Requirements for a punishable attempt
- The D has the specific intent or purpose to bring about the crime and that
- He takes sufficient steps towards committing the crime
MPC requires that the defendant “purposely engages in conduct that would constitute the crime” and when causing a result is an element of the crime, also acts with the purpose to bring about the result. However, the MPC purpose requirement only applies to the conduct
Six Tests:
- The slight-act test
- The physical proximity test
- The dangerous proximity test
- The unequivocality test
- The probable desistance test
- The MPC substantial step test
Defenses
- If the crime is impossible to complete
- The defendant abandoned the effort (voluntarily and completely)
- MPC - NOT complete or voluntary if
1. Motivated by unanticipated difficulties or resistance, or
2. Circumstances that increase the probability of detection or apprehension, or
3. If the defendant has decided to postpone for a later time of a different victim - Voluntary Intoxication
- Involuntary Intoxication if causal
Impossibility (factual vs. legal)
Cases = Gentry (spilled gas on GF), Rizzo (payroll man), Reeves (poison the teach), Storage Unit Bombmaker, Duglash (who shot the body?), Smith (HIV biter), Voodoo, Ross (rape stopped by words)
Inchoate Conspiracy
Conspiracy is an agreement between two or more individuals to commit an unlawful act
Crime need not be performed
Requirements
- Agreement to commit an unlawful act (not need be explicit)
- Bilateral v. unilateral (MPC is unilateral) - Specific intent or purpose to achieve the goal or object of the conspiracy
- MPC mens rea for conspiracy is “the purpose of promoting or facilitating its commission” - Overt act in furtherance of the conspiracy
- MPC - no overt act requirement for conspiracy to commit first-degree and second-degree felonies, but it requires an overt act for conspiracy to commit all other crimes
Renunciation
- MPC - The defendant must fully renounce the conspiracy by thwarting the conspiracy “under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”
Merger - conspiracy does not merger
Defenses
- Entrapment
- Voluntary Intoxication
- Involuntary Intoxication if causal
Cases: Pacheco (Undercover, claims no bilateral), Valle (chatroom fetish), Shabani (Alaskan drug scheme, Abu Ghayth (Taliban spokesman), South Pasadena HS Skype, Nee (Columbine wannabee)
Solicitation
Solicits another individual to commit a crime is guilty of the inchoate crime of solicitation
- If solicitor carries out crime, then solicitor is guilty of crime as well
Required elements
- Specific intent or purpose
- To solicit (hire, command, request, encourage, or invite)
- NOT half hearted suggestions, jokes, or insincere requests are not sufficient
- Must be sent
- Courts are split on whether communication must be received
a. MPC - Explicitly permits solicitation convictions in cases of failed communication - A third party to perform a crime
Cases = Prisoner blank note re stepdaughter, Kathy Rowe ads for rape, Breton (undercover cop solicitation), Decker (Hires and provides lots of info)
Merger and Renunciation
- Merger - mergers into completed offense (like attempt)
- Renunciation - must be complete and voluntary
- MPC - allows the defense if the D persuades or prevents the solicitee from carrying out the crime
- Some jurisdictions refuse to recognize the defense on the grounds that the solicitation is complete - and cannot be undone - once the request is made
Defenses
- Entrapment
- Get solicitee to stop crime (MPC defense)
- Argue that the conversation was ambiguous
- Argue that the defendant did not actually mean it, and therefore mens rea of specific intent and purpose was not met
- Argue that they were entrapped by the unilateral approach, and the crime wouldn’t have been committed if the officer hadn’t voluntarily served as the “hit man” (not a good argument)
- Duress, Necessity, and Insanity
Voluntary Intoxication
Accomplice Liability
When an accomplice assists in the commission of an offense, the accomplice becomes derivatively responsible for that crime, even though someone else committed it
- Accomplice liability is a mode of liability, not an inchoate offense
Elements required:
- Assistance or support to the principal perpetrator
a. Act requirement for accomplice liability is very broad: it includes: aiding and abetting, support such as counseling, encouraging, advising, commanding, ordering, inducing or soliciting
b. Usually must be an affirmative act. Bystander is not enough.
i. Sometimes silence can be an omission if you have duty to act
ii. Presence is culpable if at scene, but decided not needed
c. Assistance requirement does not necessarily require a strong causal connection between the assistance and the crime committed
i. MPC - “A person is an accomplice of another person in the commission of an offense if … aids or agrees or attempts to aid such other person in planning or committing [the crime] - Performed with the purpose or knowledge (depending on jx.) to facilitate crime.
a. An accomplice must intend to aid or assist the principal’s perpetration of the crime.
b. MPC - “A person is an accomplice of another person in the commission of an offense if (a) with the purpose of promoting or facilitating the commission of the offense…”
Natural and Probable Consequences Doctrine
- Jurisdictions split on whether accomplices are liable if they assist, but principal does another crime. RP standard.
- Some Jxs. say yes if the wrestling crime was a “natural and probable consequence” of the target offense that the accomplice was assisting
- MPC - rejects this doctrine as overly expansive form of guilty by association
Innocent instrumentality Rule
- If principal and accomplice use an “innocent instrument” like a child or insane individual to carry out crime, then accomplice can be a principal perpetrator
Community of Purpose Requirement
- Jurisdictions with a purpose or intent requirement for complicity sometimes have a “community of purpose” between accomplices and principals
Withdrawal
- Since complicity is based on his assistance, many follow the MPC and require
a. Unwind his participation by “depriving” his assistance of its effectiveness
b. Give timely warning to the police
c. Make proper efforts to prevent the commission of the crime
Defenses
- There is no requirement that separate jury verdicts in separate trials must be consistent. So an accomplice can be guilty even if a principal is not.
- Withdrawal or renunciation of the crime.
- MPC - Typically, the accomplice must either deprive his complicity of its effectiveness, contact the police, or prevent the crime
- Main person acquitted - sometimes a defense, but usually not
- Silence/mere presence not enough
- Duress, Necessity, and Insanity
Cases = Judge Tally, V.T. (3 boys and a camcorder), Rosemond (weed car punch gun), Waddington v. Sarausad (school drive by), Riley (bonfire shooting), HS cheating exam
Conspiracy Liability
For liability, conspiracy is used as a link to make the defendant responsible for the crimes committed by her co-conspirators
Mens Rea - Defendant must specifically intend for the group to commit the target offense
Pinkerton Liability
- Reasonable foreseeability has become the standard for Pinkerton liability
- Conspirators are liable for crimes committed by co-conspirators that either
a. Form part of the conspiratorial agreement, or
b. Stray beyond the conspiratorial agreement but were nonetheless a reasonably foreseeable consequence of that agreement - Narrow - fall within the scope of the prior agreement
- Broader - also responsible for crimes outside the scope of the agreement as long as they are reasonably foreseeable consequences of the conspiracy
MPC rejects Pinkerton - too expansive
Scope of the Conspiracy
- The wider the conspiracy, the greater the liability that the defendant will face.
- Courts are generally willing to aggregate overlapping conspiracies to a single overarching conspiracy when the D must have been aware that the endeavor involved other persons and transactions who are part of the agreement, even if they never corresponded or met others.
- Temporal Scope
a. Longer it lasts, the longer the defendant is on the hook for the acts of the co-conspirators
b. Conspiracy expires when the conspiratorial objective is achieved
c. Conspiracy is not defeated just because government intervenes
Retroactive liability
a. Joining a conspiracy does not make you guilty of past crimes of conspiracy
Withdrawing from a Conspiracy
- Acts already performed by co-conspirators cannot be disowned, but the link to the future acts could be severed if the D successfully withdraws
- Standard for withdrawal differs from from jurisdiction, but most require that the defendant perform an affirmative act to disavow or defeat the conspiracy
a. Informing the authorities of the criminal endeavor
b. Communicating withdrawal to the co-conspirators; or
c. Dissolving the underlying agreement that forms the basis of the conspiracy
Cases = Pinkerton (bootlegging), Alvarez (cocaine shootout), driver for armed robbery, Bruno (Texas, NY drug conspiracy), Kotteakos (one guy 18 conspiracies), Schweihs (mafia scheme), Silk Road
Defenses
Duress: someone made them do it
Necessity: they had to do it
Self Defense: the crime was committed while defending themselves
Mistake of Fact/Law:
- Mistakes of Fact: usually used to negate mens rea for specific intent crimes
- Mistake of Law: usually does not work
Defendant was not proximate cause of the crime
Voluntary intoxication can sometimes be used to negate the mens rea for specific intent crimes, but not general intent crimes
Entrapment for inchoate crimes
Insanity - M’Naghten, Irresistable Impulse, Durham, Substantial Capacity
