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Criminal FYLSE > Page 42 > Flashcards

Page 42 Flashcards

0
Q

What are the two types of fraud that can lead to consent issues?

A
  • fraud in the factum

- fraud in the inducement

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1
Q

Can fraud in the factum ever lead to consent?

A

No

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2
Q

What is an example of fraud in the factum?

A

The doctor having sex with the patient and telling her it’s an operation

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3
Q

If you have sex with someone by pretending to be their husband, what does that do?

A

Makes the consent invalid, and you have committed rape

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4
Q

What is fraud in the inducement?

A

Misrepresentation about the benefits to be expected from a proposed act

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5
Q

Can fraud in the inducement ever create consent?

A

Yes

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6
Q

What is an example of fraud in the inducement?

A

Falsely promising to marry someone so they will have sex with you

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7
Q

What is entrapment?

A

Defense that the criminal act was the product of police action and not the intended result of the defendant

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8
Q

What are different ways that police can unfairly induce a defendant to commit a crime, and thus entrapment occurs?

A
  • multiple requests
  • forcing a personal relationship
  • appealing to personal considerations
  • representing benefits
  • assisting in procuring contraband or planning details
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9
Q

Is the defense of entrapment available if the defendant is charged with a heinous or revolting crime?

A

Maybe not

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10
Q

What are the elements of entrapment?

A
  • inducement by government official or informant
  • defendant was not predisposed to commit a crime, or
  • Government conduct would’ve induced a law abiding person to commit a crime
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11
Q

Entrapment must be committed by whom?

A

An officer/agent or someone knowingly acting on an officer’s behalf

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12
Q

According to the MPC, when is entrapment not available?

A
  • when causing bodily injury is an element of the offense charged
  • the prosecution is based on conduct causing/threatening such injury to a person other than the person perpetrating the entrapment
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13
Q

What are three types of entrapment?

A
  • private entrapment
  • vicarious entrapment
  • derivative entrapment
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14
Q

What is private entrapment?

A

When a private person, on his own will, induces another to commit a crime

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15
Q

Is private entrapment considered criminal?

A

No, because it was induced from a private person, not a government official

16
Q

What is an example of private entrapment?

A

If a PI ensnares a lot of people, that is just criminal solicitation, not entrapment

17
Q

What is vicarious entrapment?

A

A private individual is induced by an undercover cop to get someone else to join in a scheme

18
Q

What is the important caveat for vicarious entrapment?

A

The middle man must pass on the inducement in its unaltered form

19
Q

What is derivative entrapment?

A

An undercover officer uses an unsuspecting middle man to pass on an inducement to a distant target

20
Q

Who can use the entrapment defense in a derivative entrapment situation?

A

The distant target

21
Q

If the middle man in a derivative entrapment situation didn’t know what was happening, does that stop the entrapment?

A

No

22
Q

What is the caveat for derivative entrapment?

A

The inducement must be the same one, and directed at the same target that the government intended

23
Q

What are the two approaches to entrapment?

A
  • predisposition

- Government inducement

24
Q

What is the majority approach to entrapment?

A

Pre-Disposition

25
Q

If you are predisposed to commit a crime, and cops offer you an opportunity to commit it, has entrapment been committed?

A

No, police must have instigated the crime by originating the criminal plan and you must not have been likely to have done it otherwise

26
Q

What is the two-step test for predisposition for entrapment?

A
  1. Was the offense induced by a government agent?

2. Was D predisposed to commit the crime?

27
Q

What does it mean to be predisposed to commit a crime?

A

Ready and willing to commit the crime when the opportunity presents itself

28
Q

If the defendant was predisposed to commit the type of offense, can entrapment be a defense?

A

No

29
Q

If the government constructs a crime in the beginning to the end and would’ve induced a law abiding person to commit the crime, has there been entrapment?

A

Yes

30
Q

What are the factors to consider when deciding if predisposition was present for entrapment?

A
  • character/reputation of D
  • prior criminal behavior
  • statements about D’s attitude toward the offense
  • D’s motive
  • if crime was suggested by government
  • D engaged in activity for profit
  • D’s reluctance was overcome by persuasion
  • nature of the inducement by government
31
Q

The government inducement approach to entrapment is what kind of view?

A

Minority and MPC

32
Q

What is the government inducement approach to entrapment?

A

Entrapment happens when the offense is induced by persuasion that creates a substantial risk the offense will be committed by people that were not predisposed

33
Q

Is the government inducement approach a valid defense even if the defendant was predisposed to commit the crime?

A

Yes, if the police conduct was so outrageous it can’t be condoned by the court

34
Q

What is an example of the government inducement approach to entrapment?

A

If an officer repeatedly offers to sell D drugs when he knows he’s a recovering addict, and D eventually succumbs

35
Q

Why do defense lawyers prefer the government inducement test for entrapment?

A

Because the focus is on the government’s misconduct so evidence of defendant’s prior criminal conduct cannot be introduced

36
Q

What is the rationale for the government inducement approach to entrapment?

A

The courts have a duty to control police excesses and intrusions into the lives of citizens

Criminal FYLSE (52 decks)

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