Module 4 & 5 Flashcards
0
Q
What is strict liability?
A
When there is no mental state required.
1
Q
What are the two basic sets of requirements for most crimes?
A
Mental state and the act. Actus reus and mens rea
2
Q
What is gross negligence?
A
More than simple negligence but less than recklessness. A reasonable person in the defendant’s position would be aware of the high-risk of harm. Objective standard
3
Q
What is recklessness?
A
Requires proof of the defendant’s subjective awareness of a conscious disregard for a high risk of harm
4
Q
How do you prove subjective knowledge?
A
By an enormous amount of objective evidence
5
Q
Hornbook definition of strict liability
A
Crime without a fault requirement
- usually carries like penalty
- created to help the prosecutor
6
Q
What if the statutes doesn’t say anything about fault?
A
A) strict liability
B) Will read fault into the statute
7
Q
What are the factors to consider when deciding if a statute is strict liability or not?
A
- legislative history
- similar statutes
- how severe the punishment is
- defendant’s opportunity to figure out the true facts
- difficulty for prosecution of proving a mental state
- The number of prosecutions to be expected
8
Q
What is the strict liability rule for severity of punishment?
A
The greater the punishment the greater the chance that fault is required
The later the punishment the greater the chance of strict liability
9
Q
What is the strict liability rule for seriousness of harm to the public?
A
The more serious the harm the greater the chance of strict liability
10
Q
What is the strict liability rule for defendant’s opportunity to figure out the true facts?
A
The harder it is to find out the truth the greater the chance that fault is required
The easier it is to find out the truth the higher the chance of strict liability
11
Q
What is a strict liability rule for proving a mental state?
A
The greater the difficulty the higher the chance of strict liability
12
Q
What is the strict liability rule for number of prosecutions expected?
A
The fewer that are expected the higher the chance of a fault requirement
The higher that are expected the higher a chance of strict liability
13
Q
What are the pros of strict liability?
A
1) It is difficult to get a conviction if the prosecution has to prove fault
2) it maximizes compliance with the law
3) it is good for deterring people because they will be very careful
14
Q
What are the cons of strict liability?
A
1) it is not effective because it doesn’t comport with punishment theories
2) it is unjust because it places criminal stigma on people that are not blameworthy
3) it shouldn’t be based on convenience for the prosecution
15
Q
What is ignorance or mistake as a matter of fact or law?
A
It is a defense if it negatives a mental state required to establish a material element of the crime
16
Q
Is ignorance of the law an excuse?
A
No (most of the time).
17
Q
What is ignorance of the law?
A
A) When a defendant is unaware of the existence of a statute proscribing his conduct
B) when the defendant has a mistaken impression about the legal effect of his conduct
18
Q
When is ignorance of the law a defense?
A
When the person doesn’t have the required mental state to commit the crime ie) if you accidentally take someone else’s umbrella you don’t have the required mental state for larceny
19
Q
Is mistake of the law an excuse?
A
No (most of the time)
20
Q
What is mistake of the law?
A
Defendant has mistakenly concluded that the relevant statute doesn’t reach his contact
21
Q
Is mistake of the law a defense?
A
It is a defense when it negates a required mental element of the crime ie) if the defendant is charged with receiving stolen property but he didn’t know it was stolen he doesn’t have the required mental state
22
Q
If the statute doesn’t include wording about mental state does that mean it is a strict liability statute?
A
No. It should be presumed that the legislature intended to follow the usual mens rea requirement unless excluded expressly or by necessary implication
23
Q
What is the lesser legal wrong/moral wrong theory?
A
Sometimes a defendant is unaware of the magnitude of the wrong he is committing. If the circumstances where as the defendant believes them to be, he would be guilty of some lesser crime or a noncriminal but in immoral act
24
Is a reasonable mistake of age defense to statutory rape?
No because this is a strict liability crime
25
Does the MPC abide by the lesser legal wrong and moral wrong theories?
No, judgments should be made as matters of policy on offense by offense basis
26
What are the two different situations for ignorance or mistake?
A) defendant lacks the mental state required for the commission of the crime and thus has a valid defense
B) defendant still had the mental state required but claims that he was unaware that his conduct was proscribed by law, and thus has no defense
27
What is the principle of legality?
Rules of law express objective meanings that are declared by competent officials and are then binding
28
What is the rule for enactments being made reasonably available?
If the conduct occurred very soon after the statute was enacted and before it was generally available or before the usual formalities of official publication have been complied with, then it can be a defense
29
What are the rules of reliance?
- If the defendant relied on a statute and it was later declared invalid the defendant is not liable
- it is not a defense if the defendant thought the statue he broke was unconstitutional
- if the defendant relies on an erroneous official statement of law it is a defense
- if you reasonably rely on the lower court decision it is a defense... But not if you know it is on appeal
30
What is the MPC's stance on reliance?
The reliance can be reasonable if the interpretation is provided by someone that has responsibility for that particular administration of the law
31
What is the rule about private counsel reliance?
No defense is available just for listening to your lawyer's advice because it risks collusion and circumvention of the law when you shop around for bad advice
32
What is Malum in se?
Wrong or evil in itself
33
What is malum prohibitum?
Wrong because it is prohibited
34
List of most strict liability crimes:
Illegal liquor sales, sale of impure or adulterated food or drugs, Sale of misbranded items, violations of antinarcotics act, criminal nuisance, traffic violations, motor vehicle violations, general public violations, sex crimes (adultery, bigamy, statutory rape)
35
What is the objective negligence standard?
Defendant must act as carefully as he can
36
What is the hard-line strict liability stance?
He who shall do them shall do them at his peril and will not be heard to plead in defense good faith or ignorance
37
What are predicate acts?
Acts which lead to the specifically prohibited acts
38
What does recklessly mean?
- when the actor consciously disregards a substantial and unjustifiable risk that the material element exists or will result from the actor's conduct
- The risk must be of such a nature and degree that considering the nature and purpose of the actors conduct and the circumstances known to the actor it's disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation
39
According to the MPC, when can ignorance or mistake of law be a defense?
A) when it negatives the purpose, knowledge, belief, recklessness or negligence required to establish an element of the offense
B) when the law provides that the state of mind established by such ignorance or mistake constitutes a defense
40
Guzman's definition of strict liability
Crimes that prohibit engaging in behavior or causing a result and defendant is guilty if he engages in the prohibited behavior without regard to his state of mind
- it doesn't matter how he acted or how mentally innocent he is - he is guilty
- no mental state is required for any of the elements
41
Why do we have strict liability crimes?
1) it is very hard to prove some mental states
2) The law wants to make everyone super careful
3) if the behavior would cause damage to a lot of people the idea is to make people more careful
42
Traditional approach to tell if it is a strict liability crime:
- if the criminal statute specifically said that a mental state wasn't required.... Then it is SL
- if the statute is silent about the mental state the courts have to figure out whether it is strict liability or whether they should read a mental state into the statute
43
What factors do the courts consider under the traditional approach to determine if the statute is strict liability?
- words of the statute
- Dictionary definitions
- other statutes
- range of punishment
- legislative purpose
* * length of penalty
* * how a new the statute is. If it is old you should read a mental state into it, if it is new is probably strict liability
* * The difficulty for the prosecutor to establish a mental state: if it is very difficult it is probably strict liability
* * society's desire and need to make people engaging in that type of behavior extremely careful
44
What is the MPC approach to determining strict liability?
- if the statute says SL then it is SL
- if the statute is silent on the mental state then we read in a mental state of recklessness or negligence unless it is otherwise clear that the statute was meant to SL
[There are very few SL offenses under the MPC]
45
Does strict liability create any constitutional problems?
Not usually, but the US Supreme Court has implied that a new statute carrying a major penalty would probably violate due process
46
What is a mistake of fact?
D's claim of a lack of mental state based on the idea that he made a mistake with respect to a fact found in the basic definition of the crime/element ie) he thought the girl was 25 instead of 16
47
In a perfect legal system what is the other way to discuss a mistake of fact defense?
Really saying the defendant didn't have the mental state for the crime.
48
What is the traditional approach to mistake of fact defense for a specific intent crime?
~ If the defendant made a mistake
~ and because of it he didn't have the intent
-------------
Then he is not guilty
It doesn't make any difference if the mistake was reasonable or unreasonable
49
What is a specific intent crime?
A crime requiring an actual intent or special state of mind
50
What is the traditional approach to mistake of fact defense if it was of reckless or malice crime?
~ if the defendant made a mistake it had to be a reasonable mistake
~ an unreasonable mistake would not be a defense
~ judge would decide the mental state necessary for the crime charged
~ jury instruction would be that if they found defendant made the mistake and it was reasonable ==> not guilty
~ but if it was an unreasonable mistake ==> guilty
51
What is the traditional approach's mistake of fact defense for an SL crime?
~ if defendant was charged with an SL crime mistake of fact was not a defense
52
What is mistake of fact defense under the traditional approach for a knowing crime?
~ split in the courts whether it could be reasonable or unreasonable
~ sometimes it could be reasonable/unreasonable and sometimes it had to be reasonable
53
How does the MPC treat mistake of fact?
~ The jury decides if the defendant really made the mistake
~ if so did the defendant have the mental state necessary for the crime?
Ie) defendant mistakenly dumped poison into a river, if jury decides it was a mistake he must be not guilty because the intent element was not met
54
Hypo: defendant had sex with a woman thinking she had consented but she actually hadn't. Guilty or not according to traditional approach?
A) traditional approach:
1) decide if it was a specific intent crime, some other mental state crime, or an SL crime (most courts would apply for recklessness to the statute)
2) jury must decide if the defendant actually made a mistake
3) if so, was it a reasonable mistake?
4) no mistake = guilty, mistake but unreasonable = guilty, mistake and reasonable = not guilty
55
Hypo: defendant had sex with a woman thinking she had consented but she actually hadn't. Guilty or not according to MPC approach?
1) read in recklessness as a mental state
2) jury will decide if the defendant was reckless in believing the woman consent
3) State must prove recklessness beyond a reasonable doubt
56
Sexton case: is mistake of fact the defense to a charge of reckless manslaughter? Traditional approach versus MPC
1) additional approach = yes if it is a reasonable mistake
| 2) MPC = yes if it knocks out the mental state of recklessness
57
Hypo: Zeke makes gin in his bathtub and gets charged. he said he intended to do it but didn't know it was against the law.... What happens?
- ignorance of the law is no excuse
- Zeke will be found guilty
- because it doesn't knock out the mens rea requirement for that crime. He intentionally made gin and that is enough
58
What are the three exceptions to the "ignorance of the law is no excuse" rule?
A) if the statute requires by its language knowledge of the law. Ie) if the statute says anyone who spits on the sidewalk with knowledge of this law is guilty of a crime, and defendant knowingly spit but didn't know about the law ==> not guilty because he didn't have the mental state
2) if defendant makes a mistake of law that causes him to make a critical mistake about the definition of the crime, and that mistake of fact is a defense to the charge ==> not guilty
Ie) D sells his house to X but thinks the chandelier is his so he takes it. Actually the chandelier is X's ==> not guilty because his mistake about a critical fact negates intent
----------MPC and traditional approach
3) if a person relies on an official interpretation of the law ie) justice of the peace that asked the local prosecuting attorney if he could do something, and got bad advice ==> not guilty if you were reasonable in your reliance on the advice (which the jury will decide)
59
What does it mean to act knowingly under the MPC?
To act knowingly is to do something while aware of certain facts that are unplanned. It is merely to do something consciously
A) conduct/attendant circumstances: he is aware of his contact or that such circumstances exist
B) result of conduct: he is aware that it is practically certain his conduct will cause that result
60
What does it mean to act purposely under the MPC?
To do something that requires planning. To do something by choice
A) conduct/result: it is his conscious object to engage in conduct of that nature/cause that result
B) attendant circumstances: he is aware of the existence of the circumstances/believes/hopes they exist
61
Under the MPC what are the minimum requirements of culpability?
A person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negatively with respect to each material element of the offense
62
What is recklessly under the MPC?
Consciously disregarding a substantial and unjustifiable risk of a nature and degree that considering the actors purpose/conduct/circumstances known to him, it's disregard involves a gross deviation from the standard of conduct that a law abiding citizen would observe in that person's situation
63
How does the MPC define negligently?
When the person should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. It must be of a nature and degree that the actors failure to perceive it, considering his purpose/conduct/circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in his situation
64
Under the MPC, what happens when the culpability for material element is not prescribed?
It is established if a person acts purposely, knowingly, recklessly
65
What happens under the MPC when a culpability requirement doesn't distinguish among the material elements?
The provision is assumed to apply to all the elements
66
When negligence suffices to establish an element, that element is also established if the person acts....
Purposely, knowingly, recklessly
67
When is recklessness suffices to establish an element, that element is also established if a person acts.....
Purposely or knowingly
68
When acting knowingly suffices to establish an element, that element is also established if a person acts....
Purposely
69
If purposely suffices to establish an element, can any other mental state suffice?
No
70
How do you establish knowledge under the MPC?
If a person is aware of a high probability of something's existence, unless he actually believes it doesn't exist, then knowledge of that fact is established
71
What is another ways to satisfy the requirement under the MPC of a person acting willfully?
If the person acts knowingly with respect to the material elements
72
Under the MPC, when it is an issue of the degree of the offense, how is that determined?
Always use the lowest culpability
73
Can bad thoughts alone make a crime?
No, so long as they produce no action to bring about the wished for results
74
Define crime
And act/omission where there is a legal duty, and the mens rea
75
How does the MPC define act?
Bodily movements, either an act or an omission to act contrary to a legal duty
76
What is the statutory crimes' stance on act?
Bodily movement, to qualify as an act, must be voluntary
77
What is the difference between a positive act and a negative act?
Negative act leaves something undone that ought to be done
78
What is the difference between an internal act and an external act?
Internal acts are acts of the mind that do not necessarily realize themselves in acts of the body
79
What are the three parts of an act?
A) origin (like bodily activity)
B) surrounding circumstances
C) consequences
80
In this hypothetical what are the three parts of an act?
| A shoots and kills B
Act: muscular contraction that pulled the trigger = origin
Weapon was loaded and B was in the line of fire = circumstances
B's death = consequence
81
When can speech be criminal?
Perjury, false pretenses, conspiracy, solicitation
82
What is attempt?
Some activity beyond the mere entertainment of a bad thought
83
Why is an act an essential element of a crime?
- A person's thoughts are hard to prove unless they specifically explain them
- it is hard to distinguish between intent/daydream/fantasy
- The law shouldn't be punishing people who think something but never act on it
84
What is the common-law definition for voluntary act?
External manifestation of the will. Behavior that would have been otherwise if the individual had willed or chosen it to be otherwise
85
Is the MPC definition for a voluntary act?p
This is defined in what is not a voluntary act:
A) reflex/convulsion
B) unconsciousness/sleep
C) hypnosis/hypnotic suggestion
D) anything that is not a product of the effort/determination of the actor (someone forces your body into movement)
86
What is a reflex under the MPC?
A muscular contraction that the mind has no share in. Ie) knee-jerk, blinking of eyelids
*** when someone is falling and reaches out to stop their fall, their mind has grasped the situation and dictated some action = not a reflex
87
Brainwashing/drug/alcohol/insanity/irresistible impulse ... Voluntary or involuntary acts?
Voluntary, no excuse
88
How can you be liable for acts that are not necessarily voluntary?
If you are prone to fainting spells, and you have one while you're driving, and kill someone. The voluntary act was driving the car, and the mental state was recklessness because you knew you might faint. GUILTY
89
What is a crime of condition?
This punishes status. It is about BEING rather than an act/commission ie) being a vagrant
90
What does possession mean?
Any exercise of dominion and control of the property in question
91
What is the law of finders?
One may possess something without knowing of its existence
92
Does law of finders apply to the criminal law?
Usually no because the criminal law defines possession to mean conscious possession
93
What is vicarious liability?
You're not criminally liable for how someone else acts, unless you direct or encourage or aid that person to act that way
94
What is an omission to act?
Failure to act under circumstances that give rise to legal duty to act
95
Does a person have a legal duty to aid someone in peril?
Not unless there's a special relationship that requires it, even when 80 can be rendered without danger or inconvenience
96
What are the eight different ways a duty can be based on?
1. relationship
2. statute
3. Contract
4. Voluntary Assumption of care
5. Creation of peril
6. Control conduct of others
7. Landowner
8. Unaware of the facts or scope
97
What is a duty based on the relationship?
- parents must aid small children
- husbands and wives
- ship captains and crews
- Masters and servants
- two mountain climbers
- people that live together but are not related
- caregivers and children
98
What is a duty based on statute?
Sometimes a statute imposes a duty to act/help another in distress
Ie) Driver in an accident must stop and help if someone is injured, if they don't, it is homicide
99
What is a duty based on contract?
Ie) lifeguard on duty must help someone that is drowning
100
What is a duty based on voluntary assumption of care?
Once you start to help someone, you have a duty to finish
Ie) if you start to swim out to someone that is drowning, but turn around because it is someone you don't like, you are liable if your conduct induced other perspective rescuers not to help
101
What is a duty based on creation of peril?
If you put another person in danger (intentionally, negligently, or without fault) you have a duty to safeguard the other or to rescue
Ie) if you accidentally start a fire, you must rescue someone trapped in the building
102
What is duty to control conduct of others?
Some people have specific relationship that imposed a duty to control the other person's conduct in the interest of public safety
Ie). Parent has duty to protect third parties from child
Ie) car owner has duty to protect people from his speeding chauffeur
103
What is the duty of land owner?
Landowner may have a duty to provide for the safety of people he invites onto his land
Ie) nightclub owner was criminally liable because people died in a fire when they weren't proper fire escapes
104
What is the duty when you're unaware of facts or scope?
- if defendant doesn't know the facts indicating a duty to act, then he isn't liable
- you can't be convicted of a hit and run if you don't know there was an accident
- parents must rescue a child from drowning, but if they don't know the child is in the water, they are not liable
- however if you are aware of the facts but not the existence/scope of your duty... You are liable because ignorance of the law is no excuse
105
How does duty relate to impossibility of performance?
You cannot be held liable for failing to do an act that you physically are in capable of performing
Ie) if you cannot swim you do not have to dive into Deepwater to rescue your child
106
What are the three elements that homicide crimes require?
Actus reus, mens rea, and result of conduct (death)
107
What is legal/proximate cause?
Requires a showing of "but for" causation. But for the omission, the victim would not have died
108
If you are a parent and your child is sick and you don't call a doctor and your child dies what is your responsibility?
The parent is liable only if the doctor could have saved the child, not if the child would have died regardless
109
What are the two ways a battery can be committed?
Omission to act (if there was a duty) and an affirmative act
Ie) if parent knows that an injury is substantially certain to occur unless he asked to prevent it, and he doesn't act, and the child is injured = guilty of battery
110
How many of the courts follow the traditional approach?
One third of the courts today and the federal system follow traditional approach
111
what is the traditional approach's view on mental state?
The definition of the crime will usually contain the mental state requirement
- if the word intent is in the definition the court will conclude it is a specific intent crime
- if any other mental state appears in the definition, that is mental state ie) wantonly
- if there is no mental state, the court will determine what the legislature wanted
- if it is unclear what the mental state modifies, the court will attempt to determine what the legislature wanted it to modify
112
What is a specific intent crime?
Actual intent to commit a felony inside must be established in that case
113
What is the MPC approach to mental state?
The definition of the crime will contain the mental state (purposeful, knowing, reckless, negligent)
- each term has a specific definition so there is zero confusion
- if it is unclear what elements the mental state modifies, then it modifies all
- if there is no mental state, one is required, and can be established through purposeful, knowing, or reckless
114
Which approach is faster when it comes to mental state... Traditional or MPC?
MPC because the mental state can be determined quickly since there is no search for what the legislature intended... You just have to follow the rules
115
What is the traditional approach to mistake of fact?
- Specific intent: can be reasonable or unreasonable
- malice/recklessness: must be reasonable
- strict liability: no defense for mistake of fact
- knowing mental state: courts are split, some say reasonable/unreasonable, others say reasonable
116
What is the rule for mistake of law?
95% of the time ignorance of the law is no excuse
117
What are the exceptions to mistake of law?
- if the statute requires knowledge of the law before the defendant be convicted
- The mistake of law causes defendant to make a critical mistake about the facts... This changes it to mistake of fact and defendant is not guilty
- MPC: if defendant reasonably relies on an incorrect interpretation of the law from the government
118
What is the rule for a crime that prohibits bringing about a certain results, but doesn't say how?
The law doesn't care how you bring about the results, if you cause that result you are guilty
** The unlawful act is any act that causes that result
119
How does it work for crimes that require a behavior and a result?
Ie) spitting on the sidewalk and causing alarm to others
- The unlawful act is the behavior set out in the statute. If the defendant causes the prohibited results but hasn't also engaged in the behavior --> not guilty
120
What must the state prove in a criminal case?
That defendant engaged in the behavior or caused the harm prohibited for each element of the crime beyond a reasonable doubt
121
What must you have in order to prove a voluntary act?
There must be some willed bodily movement from the defendant
122
What is a non-volitional behavior under the traditional approach?
1. Acts that happened during an epileptic seizure
2. An actor being physically forced into a behavior by another person
3. Actor was unconscious and had no control over his behavior
123
What is the difference between unconsciousness and amnesia?
Just because you don't remember an event afterward doesn't mean you weren't conscious at the time
124
How can a defendant establish that he was unconscious at the time he committed a crime?
Expert testimony, but juries are very skeptical about unconsciousness claims
125
Who has the burden of proof in a criminal case with respect to defenses?
The state can either require the defendant to prove it by a preponderance of the evidence, or can require the defendant to raise a reasonable doubt on that particular issue
126
What is it really happening when a defendant is claiming no voluntary act... Defense or missing element?
Technically an element of the crime is missing, which is the state's job to prove... So in these cases a defendant only has to raise a reasonable doubt
127
What are the two arguments a defendant can always make?
A) didn't have the mental state = defense
| B) didn't have the required act = so a crucial element is not met... Not guilty
128
What is an omission?
When you're punished for doing nothing when you had a duty to act
129
Why is there no affirmative duty to help someone in distress or prevent harm?
Because there hasn't been an act
130
If you're not the parent is it possible to have a duty to help a child?
Yes adoptive parents, adults that are family-like, or anyone in loco parentis
131
What is the duty you have if you hit someone with your car?
Must stop the car, identify yourself, and give aid
132
What is the act requirement for murder?
Homicide
