1L: Crim Law

Front 1

What is the primary source of criminal law?

Back 1

State statutes: many states have adopted or are in the process of adopting criminal codes.

Front 2

What is the Model Penal Code?

Back 2

- It is not a source of law.
- A compilation of scholarly views on criminal law.
- Is the single most important source of general criminal law.

Front 3

What are the 6 Theories that have been advanced to justify criminal punishment?

Back 3

1. Incapacitation (Restraint); 2. Special Deterrence; 3. General Deterrence; 4. Retribution; 5. Rehabilitation; 6. Education

Front 4

Explain the theory of Incapacitation?

Back 4

While imprisoned, a criminal has fewer opportunities to commit acts causing harm to society.

Front 5

Explain the theory of Special Deterrence.

Back 5

Punishment may deter the CRIMINAL from committing future crimes.

Front 6

Explain the theory of general deterrence.

Back 6

Punishment may deter the PERSONS OTHER THAN THE CRIMINAL from committing future crimes.

Front 7

Explain the theory of Retribution.

Back 7

Punishement is imposed to vent society'e sense of outrage and need for revenge.

Front 8

Explain the theory of Rehabilitation.

Back 8

Imprisonment provides the opportunity to mold or reform the criminal into a person who, upon return to society, will conform to social norms.

Front 9

Explain the theory of Education.

Back 9

The publicity of the trial, conviction, & punishment of some criminals serve to educate the public about bad conduct & have respect for the law.

Front 10

What are felonies?

Back 10

- All serious crimes punishable by death or imprisonment EXCEEDING ONE YEAR. A serious felony is one with the potential to cause serious harm (i.e rape, arson, kidnapping, or robbery).

Front 11

What are misdemeanors?

Back 11

- Lesser crimes punishable by imprisonment for LESS THAN 1YR or by a FINE only (no prison time).

Front 12

At common law, what are the only felonies? (9)
[Keep in mind that now, state statutes define felonies.]

Back 12

1. murder; 2. manslaughter; 3. rape; 4. sodomy; 5. mayhem; 6. robbery; 7. larceny; 8. arson; and 9. burglary.
- All other crimes were considered misdemeanors.

Front 13

How do courts interpret statutes? (4)

Back 13

1. They look at the plain meaning of it. 2. Ambiguous terms are stictly construed in favor of the defendant. 3. The expression of one thing implies the intention to exclude the other. (Expressio Unis, Exclusio Alterius), 4. If 2 statutes conflict, the more specific statute applies.

Front 14

What is a 'Lesser' offense? and Can it be merged into a greater offense?

Back 14

A lessor offense is one that consists entirely of some , but not all, elememts of the greater crime.

Front 15

What are the 4 elements of a crime?

Back 15

1. Actus Reus; 2. Mens Rea; 3. Concurrence; 4. Harmful result and Causation

Front 16

What is Actus Reus?

Back 16

=> the guilty act. A physical act, or unlawful omission, by the defendant

Front 17

What is Mens Rea?

Back 17

=> the guilty mind. The state of mind or intent of the defendant at the time of his act

Front 18

What is Concurrence?

Back 18

The physical act and the mental state existed at the same time.

Front 19

What is Harmful Result and Causation?

Back 19

A harmful result caused
(both factually and proximately) by the defendant's act.

Front 20

What do virtually all crimes require?

Back 20

A physical Act and Some sort of intent. Many crimes also require "attendant circumstances" => circumstances w/o which the same act and intent would not be criminal. [i.e: homicide requires that the victim die & the D's act be the cause.]

Front 21

For there to be criminal liability, what is required of the D physically?

Back 21

(Actus Reus) - The D must have performed a VOLUNTARY physical act or failed to act under circumstances imposing a legal duty to act.

Front 22

What is an "act" defined as?

Back 22

A bodily movement. A THOUGHT IS NOT AN ACT. Bad thoughts alone cannot constitute a crime. (Note: Speech = an act (i.e. perjury, solicitation.)

Front 23

What is meant by "The D's act must be voluntary.?"

Back 23

It must be a concious exercise of the will. Non-voluntary acts cannot be the basis for criminal liability.

Front 24

What 3 acts are not considered voluntary?

Back 24

1. Conduct that is not the product of the actor's determination. (If A pushes B into C & C falls to his death, Bis not liable.); 2. Reflexive or Convulsive acts; 3. Acts performed while the D is unconcious or asleep, unless the D knew she might fall asleep during the dangerous behavior

Front 25

What 3 requirements must be fulfilled for a D's failure to act (omission) to result in criminal liability? (3)

Back 25

1. There must be a Legal Duty to Act; 2. Knowledge of the facts must give rise to the duty; and 3. It must be reasonably possible for the defendant to perfom the duty.

Front 26

What are the 5 ways that a Legal Duty to Act may arise?

Back 26

Via 1. a statute; 2. a contract; 3. the relationship (parent/child & spouses); 4. voluntary assumption of care. (Note: Once aid is rendered, a Gd Samartn may be held criminally liable for not satisfying a reasonable std of care.); 5. Creation of Peril: (A pushes B in water thinking he can swim. When he becomes aware B can't, A makes no effort to help. The failure to attemptan act of rescue = liability.

Front 27

What is meant by "knowledge of the Facts give rise to duty?"

Back 27

As a general rule, the duty to act arises when the defendant is aware of the facts creating the duty to act (a parent must know the child is drowning). In some situations, the ct will impose a duty to learn the facts (sleeping lifeguard still has a duty to a drowing swimmer.)

Front 28

What is meant by "reasonably possible?"

Back 28

It must be reasonably possible for the defendant to perform the duty or to obtain the help of others in performing it. (i.e: if parent can't swim, no duty to save child.

Front 29

Is "possession" an act?

Back 29

Yes, some criminal statutes penalize the possession of contraband and require only that the D have "dominion and control" long enough to have an opportunity to terminate the possession. --> A D must be aware of posession of contraband, but need not be aware of it's illegality.

Front 30

What is the purpose of the Mens Rea requiremnt?

Back 30

Mens Rea is required to distinguish between inadverant or accidental AND acts performed by one w/a "guilty mind." [The latter type is more balemworthy, and can be deterred, however, in some cases, (strict liability crimes) mens rea IS NOT required.

Front 31

What is a "specific intent" crime?

Back 31

If the definition of the crime requires not only doing an act, but also doing it w/a specific intent or objective, then the crime is a "specific intent" crime.

Front 32

What is the difference between a crime and a tort?

Back 32

A crime is against society, while a tort is against an individual.

Front 33

What are the 3 general types of crimes?

Back 33

1. Violent ( manslaughter, murder, robbery, aggravated assault); 2. Property ( burglary, larceny, vehile theft, arson); 3. Drugs

Front 34

What is burglary?

Back 34

=> Entering a building, dwelling place or other w/the intent to commit a felony

Front 35

What is robbery?

Back 35

Robbery => if you encounter a person and take something or attempt to take something from them.

Front 36

What is larceny?

Back 36

Thefts of all kinds

Front 37

What is property theft?

Back 37

The taking of money or property W/O force or threat of force on the victim.

Front 38

What are hate crimes?

Back 38

Crimes done w/a special bias (sexual, race, diability)

Front 39

Is intimidation a crime?

Back 39

Yes. (words, postings, statemts etc.)

Front 40

Which crimes are considered "white collar"?

Back 40

downloading songs, money laundering, creit card, health care stuff

Front 41

Is negligent behavior criminalized?

Back 41

Generally speaking, we don't criminalize negligent behavior unless it is grossly negligent.

Front 42

Name some Malum In Se crimes. (6)

Back 42

Malum in Se crimes are crimes that are bad in and of themselves: fraud, rape, murder, arson, battery, drunk driving... etc.

Front 43

Describe a Malum Prohibitum crime.

Back 43

Is a crime that is wrong only bc it is prohibited. (i.e. hunting w/o a license.) --> usually found in statutes.

Front 44

Why is it necessary to identify specific intent? (2)

Back 44

1. Proof: the prosecution must produce evidence that the act was intentional & 2. Applicability of certain defenses (some defenses, such as voluntary intoxication, apply only to specific intent crimes).

Front 45

What re the 10 major Specific Intent crimes (w/ their intentions)?

Back 45

1. Solicitation (intent 2 have the person solicited commit the crime); 2. Attempt
(intent to complete the crime); 3. Conspiracy (intent to have the crime completed); 4. 1st degr. premedt. murder (the premeditated intent to kill); 5. Assault (Intent to commit a battery); 6. Larceny & Robbery (Intent to permanently deprive another of his property); 7. Burglary (intent, at the time of entry, to commit a felony in the dwelling); 8. Forgery (Intent to defraud); 9. False Pretenses (Intent to defraud); 10. Embezzlement (intent to defraud)

Front 46

* What is needed to establish malice in in Murder and Arson cases?

Back 46

The prosecution need only show that the defendant recklessly disregarded an OBVIOUS OR HIGH RISK that the particular harmful result would occur.

Front 47

What is "general intent"? Is it required in all crimes?

Back 47

General Intent = an awareness of all factors constituting the crime.
(i.e: the D must be aware that she is acting in a prescribed way and that any attendant circumstances required by the crime are present.
--> yes

Front 48

Can intent be inferred from an act?

Back 48

Yes, a jury can infer the required general intent from the D merely doing the act.

Front 49

Can intent be transferred?

Back 49

Yes, if a person intended a harmful result to a particular person/object, and in trying to carry out that intent, caused a similar harmful result to another person, her intent will be transferred from the intended person to the one actually harmed.

Front 50

What is a motive and how is it viewed by the law?

Back 50

=> the reason or explaination underlying an offense.
- Generally, motives are immaterial to the substantive law.
- A good motive will not excuse a criminal act, however, a lawful act done w/a bad motive will not be punished.

Front 51

Does a strict liability offense require state of mind?

Back 51

Only w/regard to some element of the offense. The major significane is that certain defenses, such as MISTAKE OF FACT, are not available.

Front 52

Ex: Federal legislation prohibits the transfer of firearms not registered under federal law. Is it defense that the defendant was ignorant of the fact that the gun was not registered?

Back 52

Held: No, bc this is a srtict liability offense. Awareness of the lack of registration is not necessary, it is only necessary that the D be aware that she possessed a firearm.

Front 53

What are the 4 mental components of criminal offenses enumerated in the Model Penale code (MPC)?

Back 53

1. Purposely, 2. Knowingly, 3. Recklessly, 4. Negligently

Front 54

What standard is used in assessing a D's mental status? (knowingly, purposefully, recklessly)

Back 54

A subjective standard is used: (i.e: what was actually going on in the D's mind).

Front 55

When does a person act purposefully?

Back 55

A person acts purposefully with respect to his conduct when it is his conscious object to engage in certain conduct or cause a certain result (i.e: burglary)

Front 56

When does a person act knowingly?

Back 56

A person acts knowingly w/respect to the nature of his conduct when he aware that his conduct will necessarily or very likely cause a result. Willful conduct.

Front 57

When does a person act recklessly?

Back 57

A person acts recklessly when he CONCSIOUSLY DISREGARDS A SUBSTANTIAL OR UNJUSTIFIABLE RISK that a prohibited result will follow, and this disregard constitutes a GROSS DEVIATION FROM THE STANDARD OF CARE that a reasonable person would excercise in the situation.
--> reckless behavior is also wanton
--> Reckless req's that D take an unjustifiable risk and that he know of, and CONSCIOUSLY DISREGARD, the risk.
--> He has to just have a general knowledge that his actions may result in harm/death to another (specific not req'd)

Front 58

Is the mere realization of a risk enough to be found reckless?

Back 58

No, a D must KNOW that injury MIGHT RESULT. --> if he knows that it is certain to result, he acts knowingly.

Front 59

Does recklessness req objective or subjective elements?

Back 59

Both: objective (unjustifiable risk) and subjective (awareness).

Front 60

When does a person act negligently?

Back 60

A person acts negligently when he FAILS TO BE AWARE OF A SUBSTANTIAL AND UNJUSTIFIABLE RISK that a certain result will follow and the failure constitutes a deviation from that of a reasonable person.

Front 61

Which standard is used to determine whether a person acted reasonably?

Back 61

An objective std is used. However, the std is: the D must have taken a VERY UNREASONABLE RISK in light of the his conduct, his knowledge of the facts, and the nature & extent of the harm.

Front 62

Ex: A man claims himself a homeopathic Dr & his trxmt kills a woman. Is he guilty of manslaughter?

Back 62

Yes: his good intentions are irrelevant. By objective stds, he took an unjustifiable risk.

Front 63

Can the violation of a state statue or ordinance be used as evidence of negligence?

Back 63

Yes. Ex: someone drives over speed limit and kills someone. The speeding violationmay be admissible as evidence of his negligence in prosecution for manslaughter.

Front 64

If a state of mind is not indicated in a statute, what state of mind is assumed?

Back 64

Recklessness is the std assumed when recklessness is not specified

Front 65

What is a Vicarious Liability offense?

Back 65

This is when a person w/o personal fault may nevertheless be held vicariously liable for the criminal conduct of another (i.e: for an employee).

Front 66

How is strict liability different from vicarious liability?

Back 66

Unlike strict liability, which dispenses w/the mens rea reqmt but retains the reqmnt that the D have engaged in the acts, vicarious liability dispenses w/the actus reus reqmnt but retains the need for mental fault on the part of the D.

Front 67

What type of liability do corporations and associations have under most state statutes?

Back 67

Most corporations and unincorporated institutions (partnerships) are vicariously liable under most state statutes.

Front 68

What two things must be met for a corporation to be criminally liable?

Back 68

(1) The conduct giving rise to the corporate liability must be performed by an agent of the corp acting ON BEHALF of the corp & W?IN THE SCOPE OF HIS office or employment. (2) In some jusrisdiction, the conduct must be performed or participated in by agents sufficiently high in the corp hierarcy to presume that their acts reflect corporate policy.

Front 69

Under the MPC, a corporation may be guilty of a criminal offense if what 3 things are true of the offense?

Back 69

If the offense: (1) consists of the failure to discharge a specific duty imposed by law on the corporation; (2) is defined by a statute in which a legislative purpose to impose liability on corporations plainly appears; and (3) was "authorized, requested, commanded, performed, or recklessly tolerated by the BOARD OF DIRECTORS or by a HIGH MANAGERIAL AGENT acting on behalf of the corp w/in the scope of his office/emplymnt.

Front 70

Does the fact that a corporation is liable prevent the conviction of the individual who committed the offense?

Back 70

No, the person who, in the name of the corp, performs the conduct that is the element of the offense, he/she is legally accountable and subject to punishment to the same extent as if the conduct were performed in his name & on his behalf.

Front 71

When must a D have had the intent necessary for the crime?

Back 71

The D must have had the intent necessary for the crime at the time he committed the act constituting the crime. --> In addition, THE INTENT MUST HAVE PROMPTED the act.

Front 72

What is a Principal?

Back 72

A principal is one who,w/the requisite mental state, ACTUALLY ENGAGES in the act or omissionthat cuases the criminal result

Front 73

Ex: A gives a poisonous drink to B to give to C, who drinks it & dies. who is the principal?

Back 73

If B did not know the drink was poisoned or was mentally ill or under duress, then A is the principal.

Front 74

What is an accomplice?

Back 74

An accomplice is one who, w/the intent that the crime be committed, aids, counsels, or encourages the pricipal before or during the commission of the crime.

Front 75

What is an Accessory After the Fact?

Back 75

An Accessory After the Fact is one who receives, relieves, comforts, or assists another knowing that he has committed a felony, in order to help the felon escape arrest, trial, or conviction. (The crime committed by the principal must be a (1) felony & (2) completed at the time the aid is rendered.

Front 76

What is the usual penalty for accessory after the fact?

Back 76

Five yrs = most common sentence

Front 77

Is mere knowledge that a crime would result from aid enough to charge accomplice liability?

Back 77

No, a person must have given aid w/ THE INTENT to aid or encourage the principal. (ex: If A tells B he is going 2 burn down a house & B sells him the gas, B is not liable bc he just has knowledge, but not the intent to burn down the house himself.

Front 78

* What is the scope of liability for accomplices?

Back 78

An accomplice is responsible for (1) the crimes he aided /counseled for AND (2) ANY OTHER CRIMES COMMITED in the course of committing the crime AS LONG AS THE OTHER CRIMES were PROBABLE & FORSEEABLE.

Front 79

How can an accomplice withdraw from a crime and avoid liability?

Back 79

He must repudiate his encouragement, neutralize his assistance (take back materials provided) or notify authorities b4 the crime becomes unstoppable.

Front 80

What does solicitation consists of?

Back 80

Solicitation consists of inciting, counseling, advising, inducing, urging or commanding another to commit a felony w/the specific intent that the person solicited commit the crime. General approval or agreement is insufficient.

Front 81

What (2) things don't count as defenses for solicitation? What is (1) possible defense?

Back 81

1. It is not a defense that the soliciation could not have been successful (i.e: an undr cvr police would never have sold d drugs). (2) Withdrawal/change of mind = not a defense if the crime is not prevented. A possible defense is if the solicitor is legislatively exempt. (i.e: a minor F solicits an older M to have intercourse.

Front 82

Test:
(a) If he asks, “What can you be charged with”…
(b) If its “What can you be convicted of?”…

Back 82

(a) discuss all the possibilities.
(b) discuss which is the most likely for the jury to select, and why.

Front 83

HOMICIDE
What are the 4 types of homicide that we covered in class?

Back 83

(1) Intentional Homicide
(2) Unintentional Homicide
(3) Felony murder
(4) Death penalty

Front 84

What are the Common Law elements of homicide?

Back 84

1. Unlawful killing
2. Malice Aforethought

Front 85

What is common law definition of murder? (2)

Back 85

Murder is the UNLAWFUL killing of another human being with MALICE AFORETHOUGHT.

It is the intentional participation in an act that entails a significant likelyhood of causing death AND death results.

Front 86

What is common law definition of manslaughter?

Back 86

Manslaughter = the UNLAWFUL killing of another human being withOUT:
(1) MALICE AFORETHOUGHT and
(2) without justification or excuse

Front 87

At common law, what (2) things must be absent in order for Malice Aforethought to exisit?

Back 87

(1) Facts excusing the homicide or (2) reducing it to voluntary manslaughter.

Front 88

Under the MPC, when is a D guilty of criminal homicide? (2)

Back 88

When he:
1. unjustifiably and inexcusably took the life of another human being
2. purposely, knowingly, recklessly, or negligently

Front 89

Under the MPC, what are the 3 forms of criminal homicide?

Back 89

1. murder
2. manslaughter
3. negligent homicide

Front 90

What is the MPC definition of murder?

Back 90

MPC murder = Intentionally taking a life (without defense) or act with extreme recklessness

Front 91

Under the MPC, when is a D guilty of murder? (3pt)

Back 91

Under the MPC, a D is guilty of murder when he:
(1) unjustifiably, inexcusably, and in the absence of mitigating circumstances kills another:
2) purposely, knowingly, or recklessly, and
3) under circumstances manifesting extreme indifference to the value of human life

Front 92

What is the MPC definition of manslaughter?

Back 92

Under the MPC, Manslaughter is recklessly kill another.

Front 93

Under the MPC, murder mitgated by an extreme mental or emotional distress is?

Back 93

Manslaughter

Front 94

What's a synonym for negligent homicide?

Back 94

Involuntary manslaughter

Front 95

Intentional Homicide:
What does an Intentional homicide require? (2)

Back 95

1) a killing
2) Malice aforethought

Front 96

Under the MPC, what is malice aforethought? (3pts)

Back 96

1. an intent to kill or inflict great bodily injury with:
a. extreme recklessness
b. knowledge that the act could kill or inflict great bodily injury

Front 97

What are the 4 ways you can have “malice”?

Back 97

i. Intention to kill a person
ii. Intention to inflict grievous bodily harm on another
iii. extremely reckless disregard for the value of human life
--> "depraved heart"
iv. Intention to commit a felony, and a death results during the felony

Front 98

What does each of the 4 ways you can have “malice" show?

Back 98

Each shows an absence of justification, excuse or mitigating cricumstances

Front 99

With malice, what can you infer from conduct?

Back 99

You infer intent from conduct… don’t assume, but infer

Front 100

What does intent mean?

Back 100

intent means premeditation

Front 101

What are the 4 things to watch for w/ premeditation?

Back 101

With premeditation,
1. there must be some period between the formulation of an intent to kill and the actual killing
2. the law looks for prior calculation and design
3. You kill after contemplating to kill
4. this should be an intent that was deliberately executed

Front 102

What can the element of provocation do to murder?

Back 102

It can make it manslaughter.

Front 103

What is voluntary manslaughter?

Back 103

An intentional killing distinguishable from murder by the existence of adequate provocation (i.e: killing in the heat of passion)

Front 104

What was the main question in Girouard v. state?

Back 104

Should all homicides without malice be manslaughter?

Front 105

According to Girouard v. state, can a person be provoked to the point that the kill in “red-blooded passion”?

Back 105

No. Social necessity prevents a domestic dispute that ends with the death of a spouse
--> Making it manslaughter imputes responsibility to victim

Front 106

According to the MPC, when allowing an extreme mental or emotional distress (EMED) to mitigate murder to manslaughter, what must you consider? (2)

Back 106

You must consider:
(1) the totality of the circumstances.. Could the fact-finder believe that the Δ’s free will was overcome?
(2) Reasobleness - Could the loss of control be understood in terms that arise sympathy out of the ordinary citizen?

Front 107

What are the principal components to EMED defense?

Back 107

EMED defense = :
a. Δ acted under EMED
b. There was a reasonable explanation or excuse for such distress relative to the information available to the Δ

Front 108

Under the MPC, is premeditation a concern?

Back 108

premeditation is not a concern
1. may reflect uncertainty rather than cold-bloodedness (mercy killings)

Front 109

Under the MPC, what is the provocation rule?

Back 109

The Rule of Provocation "punishes as manslaughter 'homicide which would otherwise be murder [if it] is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse."

Front 110

Under Common Law, What is the 4 prong test for an intentional homicide to be manslaughter?

Back 110

The 4 prongs test for an intentional homicide to be manslaughter is:
a. heat of passion
b. adequate provocation
c. lack of cooling time
d. Causal link between provocation, passion, and homicide

Front 111

What are the 5 tests that can be used to find provocation for manslaughter?

Back 111

(1) Look to the 5 common law circumstances that are adequate provocation
(2) The strictly objective test
(3) The strictly subjective test
(4) Look to the MPC
(5) The Particularized objectivity test

Front 112

What are the 5 common law circumstances that are adequate provocation?

Back 112

The 5 common law circumstances that meet adequate provocation are:
a. Extreme assault upon Δ
b. Mutual combat
c. Δ’s illegal arrest
d. abuse of a close friend or relative of Δ’s
e. sudden discovery of adultery

Front 113

What is the strictly objective test?

Back 113

The strictly objective test is the reasonable man test.

Front 114

What is the strictly subjective test?

Back 114

With the strictly subjective test, you:
a. consider EVERYTHING
b. what was the Δ thinking

Front 115

* When does the MPC allow provocation?

Back 115

When there's a killing with Extreme Metal or Emotional Distress (EMED) w/ a reasonable excuse as determined from the Δ’s point of view

Front 116

Which is broader: the MPC EMED defense or the common law provocation defense? What must you prove?

Back 116

EMED is must broader than common law provocation defense. You must prove:
1. that the homicide occurred as the result of an EMED.
2. there is a reasonable explanation for the EMED

Front 117

Under the MPC, to find provocation for manslaughter, what must you take into account?
a) what kind of test is used?
b) who has the burden of evidence?

Back 117

You must take everything into account but the idiosyncrasies of the Δ
a) subjective test – “from the viewpoint of a person in the Δ’s situation under the circumstances as he believes them to be
b) Burden on Δ to produce evidence of EMED, prosecution must then refute beyond a reasonable doubt

Front 118

What is the particularized objectivity test?

Back 118

The particularized objectivity test puts a reasonable man in the Δ’s position

Front 119

- Unintentional Homicide
What are the two comonents of unintentional homicides?

Back 119

recklessness OR gross negligence

Front 120

What is recklessness?

Back 120

recklessness = being aware of the risks and disregard them
--> It is the intentional conduct, by commission or omission, where there is a duty to act, and involves a high degree that substantial harm will result to another

Front 121

What is gross negligence?

Back 121

gross negligence = willful and wanton conduct

Front 122

What is willful and wanton?

Back 122

a. willful = the conduct is intended (NOT the harm)
b. wanton = deliberate indifference

Front 123

What are the two ways of acheiving recklessness?

Back 123

2 methods:
a. Knowledge of a risk & conscious decision to disregard
b. If a reasonable man would have realized the danger, Δ can still be reckless in the eye’s of the law, even if he thought he was being careful

Front 124

What kind of recklessness is manslaughter?

Back 124

a manslaughter is simple reckless homicide

Front 125

In order for something to be grossly negligent, what must be imputed?

Back 125

imputing malice bumps it up to gross recklessness

Front 126

What is gross negligence?

Back 126

Gross Negligence
= conduct so far beyond reasonable as to show a callous indifference to human life or the consequences of one’s actions
a. contributory negligence is NOT a defense (but it can raise a question about proximate cause)
b. higher level of negligence than civil liability

Front 127

How is gross negligence assessed?

Back 127

Both an objective and subjective standard
a. consider Δ’s actions from the view of a reasonable person
b. take into account Δ’s individual situation

Front 128

When does Recklessness becomes Extreme Recklessness?

Back 128

Recklessness becomes Extreme Recklessness when the risk was extremely likely. There was a high probability of harm that was disregarded

We consider:
a. consider magnitude and probability
b. Conduct demonstrating a depraved heart

Front 129

What is Extreme recklessness?

Back 129

Wanton and reckless disregard of the consequences

Front 130

How is Extreme recklessness is dealt with?

Back 130

Extreme recklessness is dealt with as 2nd degree murder

Front 131

How to courts deal w/ the lack of "malice" in extreme recklessness cases?

Back 131

Although murder req. ‘malice aforethought’ and malice doesn’t require ill will, or proof of intent to kill:
a. extremely reckless conduct can permit a jury to infer that Δ was aware the extreme risks
--> i.e: did Δ intend to drive 100MPH in a 45 w/ a .315 BAC?
b. Courts will find actual awareness of great risks to fatal harm (esp. in DUI cases)
--> It can be implied if a jury could say that Δ ‘as good as’ killed the victim.

Front 132

How do courts deal w/ extremely dumb behavior?

Back 132

--> Incredibly dumb behavior… Russian roulette = abandoned and malignant heart; depraved heart/mind
--> We imply malice when: the deliberate perpetration of a knowingly dangerous act with unconcern and indifference as to whether anyone is harmed

Front 133

Under the MPC, what is reckless homicide?

Back 133

reckless homicide is manslaughter

Front 134

Under the MPC, does negligent homicide get lumped in w/murder?

Back 134

negligent homicide is a separate crime

Front 135

Under the MPC, when does extreme recklessness become murder?

Back 135

Extreme recklessness never becomes murder under the MPC; no matter how unjustified
--> Insists that serious felonies are closely linked with Δ’s culpability

Front 136

- Felony murder
What is the 3 different approachs to Felony-Murder?

Back 136

(1) MPC
(2) Facts of the Case
(3) Charging Instrument Appoach

Front 137

What is the 'Facts of the Case' approach to Felony-Murder?

Back 137

The Facts of the Case Approach
=> IL & some others – all forcible felonies can become felony murder

Front 138

What is the MPC approach to Felony-Murder?

Back 138

MPC – enumerates 12 felonies within the murder rule
--> really recommends eliminating felony murder, and just allowing those kind of cases to fall under the extreme recklessness

Front 139

What's the Charging Instrument Appoach
approach to Felony-Murder?

Back 139

a. In most states, it lists specific felonies that can become felony murder
b. If the crime you intended to commit was enumerated, then it was a felony-murder

Front 140

What are the 2 ways that we deal w/ppl who didn’t want to kill, but were just commiting another felony?

Back 140

(1) Proximate Cause Approach– Δ is liable for a death that is the proximate result of the felony
(2) Agency ApproachFelony-murder does not apply if an adversary to the crime, rather the felon, commits the homicidal act

Front 141

What is the Proximate Cause Approach on dealing w/non-felons?

Back 141

- Δ is liable for a death that is the proximate result of the felony
a. doesn’t matter if the shooter is a felon or 3rd party.
b. Limited version: court considers who was killed, victim, 3rd party, or felon
--> death of a bystander accidentally shot by a non-felon is excusable, other killings are not

Front 142

What is the Agency Approach on dealing w/non-felons?

Back 142

-- Felony-murder does not apply if an adversary to the crime, rather the felon, commits the homicidal act
a. Policy: people are liable for their own acts, not the acts of others.
b. Exception: If the shooter acts as Δ’s agent, then Δ is liable. So if several Δ’s kill while committing a felony, then all are guilty (like accomplice law)

Front 143

In Taylor v. Superior Court – Δ didn’t fire fatal shot (while robbing a liquor store, that was a self-defending owner), so how can he be a murderer?

Back 143

a. Since Δ provoked a gun battle (he threatened shooter and wife at gunpoint), this was the malice aforethought
b. Δ was the proximate cause of the murder

Front 144

With felony-murder, what is meant by "intent"?

Back 144

Intent refers to the intent to commit the felony; without intent to commit the predicate felony, there cannot be intent for a felony-murder

Front 145

With felony-murder, what is meant by "Foreseeability"?

Back 145

Foreseeability => Was the harm naturally and foreseeably a result of the felony?
--> ex: w/Regina v. Serne – If a man embarks on a path with intent to stop before it becomes murder, but fails and causes death, then this is murder

Front 146

With felony-murder, what two things are required w/ causation?

Back 146

Causation requires "but for" and "proximate cause"

Front 147

Explain the difference btwn independant and dependent intervening circumstances?

Back 147

a. If the interveneing circumstances are dependant, there is causation
b. If the intervening circumstances are independent, the causation chain is broken
--> This is an important distinction to look for. If there was an independent intervening cause, then the felon was not the cause of the murder, and cannot be liable for it

Front 148

- Death Penalty
What are the 2 important Historical cases to know for Death Pentaly?

Back 148

(1) Furman v. Georgia
(2) Gregg v. Georgia

Front 149

What did Furman v. Georgia do?

Back 149

- halted death penalty b/c arbitrarily and capriciously imposed.
a. state laws too broad and unspecific
b. so 35 states established guidelines for death penalty and

Front 150

What did Gregg v. Georgia do?

Back 150

1. reinstated death penalty
2. Created two reqs on capital sentences:
a. that the method cannot be unduly painful
b. that no death for crimes that don’t demand death
3. court won’t impose specific procedures, but it wants some solid due process before a death sentence
4. The general policy question, do we need retributive justice and is the death penalty a deterrent, should be left to the leg

Front 151

True/False: Mandatory death sentences are not permitted

Back 151

True.
a. 8th amendment req. dignity… no dignity in a mandatory sentence
b. we allow juries a role in death sentences so that they can give a voice to the people.
--> an additional safeguard. permits the jury to consider all of Δ’s situation (that they won’t consider in the crime conviction)

Front 152

What did the McCleskey v. Kemp case highlight re: death penalty?

Back 152

In McCleskey v. Kemp, a black Δ killed a white cop while robbing a store. On appeal, he offered the Baldus study to claim racial discrimination in capital sentencing
a. the case highlights discrimination in Sentencing
b. however, ct found that Δ must show Purposeful Discrimination = a discrimination towards himself (in particular), not a generalized discrimination

Front 153

What does “Purposeful Discrimination” require?

Back 153

“Purposeful Discrimination”
=> reqs exceptionally clear proof of discrimination towards the individual Δ
Reasoning: otherwise, everything would get really unworkable. There is a lot of discretion in the criminal system, and without an overwhelminingly clear racial bias, the general bias shown by the study isn’t enough

Front 154

- Complicity
What are the 5 areas of complicity that we discussed in class?

Back 154

(1) Accountability
(2) Coporations
(3) Conspiracy
(4) RICO

Front 155

(Conspiracy)
At Common law, what is a conspiracy?

Back 155

CL Conspiracy = an agreement between two or more persons to commit a criminal act or series of criminal acts, or to accomplish a legal act by unlawful means

Front 156

What are the two elements required, at Common law, for a conspiracy?

Back 156

1. Two or more persons intend to agree AND
2. intend that the object is to be achieved

Front 157

What is the MPC definition of Conspiracy?(2pt)

Back 157

According to the MPC, a conspiracy exists when Δ agrees with others to commit a crime by:
1. agreeing that they will engage in conduct to constitutes such a crime
-->the object must be a crime
2. agreeing that they will aid in planning the crime

Front 158

What are the 4 types of agreements under MPC’s conspiracy definition?

Back 158

4 types of agreements under MPC’s conspiracy definition
a. Agree to commit an offense
b. Attempt an offense
c. solicit another to commit the offense
d. aid another in planning or committing an offense

Front 159

Explain the Football Analogy to Conspiracies.

Back 159

1. agreement in the huddle: WR to run a route (the act) in hopes of scoring (the conspired crime)
2. WR goes to the line and runs the play (the overt act)
3. LG walks to the line and blocks (minor role)

Front 160

When is a conspiracy is complete?

Back 160

As soon as there is an overt act made with the goal of committing the conspired crime, then the conspiracy is complete.

Front 161

Are major players more liable than minor players in conspiracies?

Back 161

a. No. Even though a person is a minor player, he’s just as liable of conspiracy as the rest
b. all co-conspirators are equally guilty of conspiracy

Front 162

How is agreement is inferred in conspiracies?

Back 162

agreement is inferred from conduct

Front 163

True/False: Conspiracy is a substantive crime

Back 163

No. Conspiracy is a separate offense, but:
a. its sometimes under the MPC, merged with substantive crime.
b. its usually, its charged at one level below the substantive crime

Front 164

What is the Purpose of conspiracy law?

Back 164

Purpose of conspiracy law:
a. capture “inchoate” crimes in an attempt to reach prepatory conduct
b. attack the special dangers of group crime

Front 165

What are the two Traditional offenses to conspiracy?

Back 165

(1) Substantive crimes: prove Δ did it OR that Δ was an accomplice
(2) Conspiracy conviction: prove that Δ intended to commit the crime
-->common law allows for conviction on both the substantive charges and the conspiracy

Front 166

True/False: MPC allows either a substantive charge OR a conspiracy conviction

Back 166

True. The MPC allows either a substantive charge OR a conspiracy conviction

Front 167

Does the MPC treat major and minor conspiracies alike?

Back 167

No. Differ in terms of the Overt act reqmnt:
a. major crimes have no overt act req.-the agreement is enough.
b. minor acts req. an overt act in furtherance of the conspiracy

Front 168

What two things did Pinkerton
stress there should be conspiracy convictions for?

Back 168

Conspiracy conviction for
a. anything flowing naturally from the conspiracy AND
b. the substantive crimes that flow naturally and probably from the conspiracy
-->this means that a Δ can be held liable for another conspirators crimes solely by membership in the conspiracy

Front 169

True/False: the Pinkerton view is used mostly in states

Back 169

False: Pinkerton (federal view of conspiracy, not used by most states)

Front 170

Under Bridges, must the Crimes of a co-conspirator must be within Δ’s contemplation when he enters into the agreement?

Back 170

Yes, under Bridges, must the Crimes of a co-conspirator must be within Δ’s contemplation when he enters into the agreement.

Front 171

Under Bridges are Minor players liable for unintended conspiracys?

Back 171

Minor players are not liable for unintended conspiracy

Front 172

Under Bridges are Major players are liable for unintended consequences of a conspiracy?

Back 172

Major players are liable for unintended consequences of a conspiracy, but they probably still need to be reasonably foreseeable

Front 173

What proof is req'd for a conspiacry to be inferred?

Back 173

1. Conspiracy can be inferred from conduct. There doesn’t need to be hard proof of the agreement, conduct inferring an agreement is sufficient
--> no need for an actual affirmative agreement! The agreement comes from conduct.
--> Unlawful conspiracies can be formed without simultaneous action or agreement from the co-conspirators

Front 174

How involved must a co-conspirator be?

Back 174

As long as Δ knows the essential elements of the conspiracy, he is a co-conspirator

Front 175

What do some state’s req. before one can be charged w/ conspiracy?

Back 175

Some state’s req. an overt act before charges may be brought, but not all

Front 176

Is hearsay normally permitted in conspiracies?

Back 176

normally, hearsay isn’t permitted.

Front 177

When can you use a hearsay statement against a co-conspirator?

Back 177

You can use a hearsay statement against a co-conspirator if:
a. the statement is made in furtherance of the conspiracy AND
b. made during the conspiracy

Front 178

What's the only defense in conspiracy?

Back 178

Renunciation

Front 179

Under MPC, when is renunciation a defense?

Back 179

Under MPC, only a defense if:
a. Δ completely renounced the criminal intent AND
b. successfully prevents the criminal objectives

Front 180

Do conspiracies end when the act complete?

Back 180

Conspiracies do not end when the act completes, and then enter a phase where the objective is to cover up the misdeed

Front 181

For the purpose of statute of limitations when do conspiracys end?

Back 181

2. for purpose of statute of limitations: conspiracy ends when the purpose of the conspiracy ends

Front 182

According to Common law, even if the Δ withdraws from the conspiracy: what two things are still true

Back 182

Common law - If Δ withdraws from the conspiracy:
a. Δ is still liable for the conspiracy.
b. Δ must prove abandonment. Usually, Δ can communicate withdrawl to co-conspirators (some courts req. active working against the conspiracy)

Front 183

When is a Δ is not liable for subsequent crimes committed in furtherance of the conspiracy

Back 183

Although, abandonment is not a defense the Δ is not liable for subsequent crimes committed in furtherance of the conspiracy
-->Statute of limitations begins to run on Δ’s participation in the conspiracy

Front 184

According to the MPC, when is Abandonment a defense?

Back 184

According to the MPC, Abandonment is a defense if:
(1) Δ renounces the criminal purpose
(2) Δ helps thwart the conspiracy in a manner that demonstrates voluntary and complete withdrawl

Front 185

What is the purpose of the criminal justice system?

Back 185

1. Remove dangerous people from the community
2. Deter others from criminal behavior
3. Rehabilitation

Front 186

What are the 3 Parts of the Criminal Justice system?

Back 186

1. Police
2. Courts
3. Corrections

Front 187

What is the purpose of the police and what do they do?

Back 187

Immediate enforcement. Lots of discretion, arbitrates social values

Front 188

What are the steps in criminal prosecution?

Back 188

1. Investigation
2. Pretrial Release/Bail
3. prelim. hearing
4. Trial
5. Sentencing

Front 189

What are the steps in an investigation?

Back 189

Investigation
1. Police have LOTS of discretion.
2. Grand Jury has a closed proceeding between the prosecutor, grand jury, and witnesses
c. Arrest is made

Front 190

What happens during the Pretrial Release/Bail?

Back 190

Pretrial Release/Bail:
a. mostly bail bonds. 10% fee for the total bond
b. Δ gets a copy of complaint
c. counsel/public defender is assigned if Δ show’s indigency

Front 191

What happens during the preliminary hearing?

Back 191

Prelim. hearing
a. look for probable cause
b. none if a grand jury made the indictment
c. usually when guilty pleas happen
d. discovery opportunity for defense
e. Arraignment: formal plea and assignment to trial judge

Front 192

Who does the sentencing?

Back 192

--> The judge sentences. The jury is only involved if it's a death penalty case

Front 193

What are the theories of Punishment and what are their purposes?

Back 193

4 main Theories of Punishment:
1. Retribution = Payback, satisfy our need for justices
2. Deterrence = the threat of punishment will keep criminals from committing criminal acts
3. Incapacitation
4. Rehabilitation

Front 194

What are the two types of crime?

Back 194

1. Malum Prohibidum Crimes
2. Malum in se Crimes

Front 195

What are Malum Prohibidum crimes?

Back 195

Malum Prohibidum – certain acts that the legislature lists as crimes. Acts that are not “naturally known to be a crime”

Front 196

What are Malum in se crimes?

Back 196

Malum in se – common law crimes that everyone knows is a crime

Front 197

What types of Burdens of proof are put on the prosecution?

Back 197

The prosecution has the burden of
(1) Production and (2) Persuasion

Front 198

What are the two steps in Due Process in re: to the furnishing of Proof?

Back 198

i. The statute defines the elements of the crime. Which the prosecution must then prove beyond a reasonable doubt

ii. As long as the state has met its burden, then a burden of proof may be placed on the Δ to prove his affirmative defense.

Front 199

What must the prosecution do if the Δ makes a defense?

Back 199

If Δ makes a defense, that also is an element the prosecution must prove beyond a reasonable doubt

Front 200

When may a state assure itself of a reasonable certainty?

Back 200

The state may assure itself of a reasonable certainty before mitigating a lawful and constitutional conviction.

Front 201

Punishment is delegated based on what three things?

Back 201

i. Culpability
ii. Proportionality
iii. Legality

Front 202

Explain the concept of "Culpability?"

Back 202

Culpability = Safeguard faultless conduct from criminality

Front 203

Explain the concept of "Proportionality?"

Back 203

Proportionality = Differentiate between major and minor offenses

Front 204

Explain the concept of "legality?"

Back 204

Legality = Gives fair warning that the conduct is criminal

Front 205

What is actus reus?

Back 205

A 1) voluntary act that 2) causes a 3) social harm.

Front 206

Who must prove the actus reus?

Back 206

Prosecution must prove the actus reus; it is an additional offensive element

Front 207

Where do courts look for Blameworthiness?

Back 207

In the law: the Courts look at legislative history, precedent, and other jurisdictions to help define the law so it conforms to our theories of criminal law

Front 208

In which case did the court read the words “voluntary” into the statute.

Back 208

Martin v. State

Front 209

What are the 4 types of Involuntary Acts?

Back 209

Involuntary acts:
a. reflex
b. movement during sleep/unconsciousness
c. conduct during hypnosis
d. bodily movement that is not a product of effort or determination by the actor

Front 210

If the charge is voluntary manslaughter, then what must the jury be instructed to do?

Back 210

(People v. Newton) – If the charge is voluntary manslaughter, then the jury must be instructed that involuntary acts are not voluntary

Front 211

Insanity usually must be proved by whom?

Back 211

Insanity usually must be proved by Δ

Front 212

What are the Two types of Mistakes?

Back 212

Two types of Mistakes:
a. Accidents, mistakes, actions under duress
b. Siezures, reflexes

Front 213

Under the MPC, in order to be convicted, what kind of act must a person have taken?

Back 213

To be convicted, Δ must have committed (1) a voluntary act or (2) an omission to form an act

Front 214

Under the MPC, when is one 2. Guilty due to an Omission?

Back 214

Guilt from Omissions in two circumstances:
a. Statutory obligations
b. other legal duties (contractual, tortuous, etc.)

Front 215

Do moral obligations/omissions carry legal repercussions?

Back 215

No, Moral obligations to act do not necessarily carry legal obligations

Front 216

What is needed in order to be culpable for an omission / failure to act?

Back 216

There must be a legal duty to hold a Δ culpable for failure to act

Front 217

If a Δ, who takes in a family, watches a mother beat her child to death. Does Δ have a duty to protect?

Back 217

(Pope v. State) -

1. Statute examined, there was only a duty to protect the child if Δ was ‘supervising’
2. Previous Good Samaritan acts – taking in the family and feeding them – did not create a second affirmative duty

Front 218

Name 4 situations where there is a duty to provide help?

Back 218

4 situations where there is a duty to provide help
i. When there is a statutory duty to care
ii. In special relationships – common law requirements
iii. In contractual relationships
iv. When one has begun to help, and in doing so isolates other’s from helping/ where one has created a risk

Front 219

What do American Good Samaritan Statues say?

Back 219

Good Samaritan Statues
a. not in this country. we prefer to protect autonomy
b. The line between tortuous omissions and permitted non-criminal omissions is a blurry one

Front 220

What is Mens Rea?

Back 220

It means "Intent."
1. Literally: guilty mind
2. Comes from “actus non facit reum nisi mens sit rea” – an act does not make [a person] guilty unless the mind be guilty
3. There must be an evil intent
4. The common law assumes a mens rea req.

Front 221

What does the Supreme Court say about Mens Rea?

Back 221

Supreme Court:
--> Criminal Liability requires proof of an evil meaning mind [mens rea] with an evil doing hand [actus rea]

Front 222

At common law, when did sufficient mens rea exist?

Back 222

At common law sufficient mens rea existed if:
1. Δ desired to cause the social harm OR
2. Δ acted with knowledge that the social harm is virtually certain to occur as a result of the conduct

Front 223

Explain the Doctrine of Transferred Intent?

Back 223

Transferred Intent – If you shoot at x, accidentally kill y, there is still sufficient mens rea b/c you meant to kill x and the intent is transferred to your killing of y

Front 224

With transferred intent, according to Dressler, what must you look for?

Back 224

Dressler says to just look for:
--> if the Δ intended to commit the social harm, not to mess around with all this transferring to a specific victim stuff

Front 225

What is the Mens Rea Culpability std under the Model Penal Code?

Back 225

1. Purpose
2. Knowledge
3. Recklessness
4. Negligence

Front 226

Explain " purpose" under Mens Rea?

Back 226

To Intend the result/desire the result

Front 227

Explain "knowledge" under Mens Rea?

Back 227

knowledge of the consequences (w/out intent)

Front 228

Explain "recklessness" under Mens Rea?

Back 228

Awareness of risk; Consccious risk creation and subsequent disregard

Front 229

Explain "negligence" under Mens Rea?

Back 229

Is not a tortuous deviation from ordinary care, but a gross deviation from a reasonable man standard -Using the Hand formula, PL would far outweigh B
b. Often described as gross negligence, cupable negligence
i. reckless, but not criminal recklessness

Front 230

Is civil negligence criminal?

Back 230

Negligence – must be criminal negligence; more than civil negligence

Front 231

What is the common law of definition of murder?

Back 231

An unlawful killing with malice aforethought

Front 232

A mens rea is required when reading into what aspect of the murder definition?

Back 232

malice

Front 233

What are the two requirements for malice?

Back 233

Malice reqs:
1. Actual intention OR
2. Recklessness about preventing the harm

Front 234

Give an example of a malicious act.

Back 234

Malicious act would be deliberately exposed victim to gas.
--> “Any evil act” isn’t malicious enough.

Front 235

What is required in all our criminal statutes?

Back 235

There needs to be some sort of intention:
This could be:
a. Purpose
b. Knowledge
c. Recklessness
d. Negligence

Front 236

What does Criminal negligence require?

Back 236

Criminal negligence requires reckless conduct… more than civil cases and beyond a reasonable doubt.

Front 237

What's the difference btwn Criminal Neg vs. Civil Neg?

Back 237

1. Gross Negligence and Wanton & Willful Conduct are Criminal
2. Ordinary Negligence is civil

Front 238

What's the difference between iii. Recklessness vs. Gross negligence?

Back 238

1. Gross Negligences means your really should have known about the possible harm
2. The reckless simply ignore the risks

Front 239

Give an example of an Actus Reus?

Back 239

Actus Reus – Maliciously Exposed Gas

Front 240

Give an example of an Mens Rea?

Back 240

Mens Rea – Tried to Commit Larceny

Front 241

Give an example of a Social Harm?

Back 241

Social Harm – Exposing the Gas

Front 242

When do we infer a mens rea (I.e: assume an intent (5)?

Back 242

1. We assume intent and malice for evil acts
a. prosecutor can give evidence that Δ shot victim. Prosecution must still prove Δ’s intent to kill beyond a reasonable doubt, but the jury may chose to treat the proof that Δ fired the gun at V as sufficient evidences to meet the burden
2. sometimes we have to infer this req. into a statute
3. “Reasonable knowledge” is an OBJECTIVE standard for inferring mens rea
4. Motive does not equal intent
5. Without Duty to act there is no requirement to make any act

Front 243

Does the law care about a person's motive?
Any exceptions?

Back 243

We don’t care about motive. We only care about if Δ meant to do what he did
b. except hate crime legislation

Front 244

When is there a Duty to act even if there is no requirement to take any action? (6)

Back 244

Without Duty to act there is no requirement to make any act EXCEPT:
a. Statutory Duty to act (report possible child abuse)
b. In certain relationships (Parent-Child)
c. When there is a contractual relationship (Doctor-Patient)
d. After beginning to voluntarily help (People v. Oliver pg 195)
e. IF Δ creates the risk, has a legal duty to try and help/prevent harm
f. Police only have duty to act if they have control of a scene

Front 245

What is specific intent?

--> Name one of it's elements

Back 245

Specific Intent => an offense that requires proof of a particular mental state.

--> the mens rea is an element of the specific crime

Front 246

What was found in Holloway v. United States?

Back 246

Holloway v. United States – A specific intent crime
carjackings with intent to cause death… will apply to all carjackings done with a deliberate threat of violence

Front 247

What is General intent?

Back 247

General Intent => any offense for which the only mens rea required was a blameworthy state of mind.

Front 248

In terms of General intent, what is mens rea?

Back 248

mens rea is only a generally culpable intent

Front 249

What is active knowledge comparable to?

Back 249

Active Ignorance is comparable to positive knowledge.
i. If you know that investigation will lead to knowledge you don’t want, then you’re considered to have that knowledge.
ii. Deliberate Ignorance imputes knowledge to the Δ.

Front 250

How can a jury impute knowledge to the Δ?

Back 250

Jury can do this by looking at the totality of the circumstances

Front 251

Under general intent, what are you accountable for?

Back 251

You are accountable for all events that happen in a crime

Front 252

What does the MPC say about intent?

Back 252

a. Δ must have acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense

Front 253

When does the MPC find that you acted purposefully?

Back 253

MPC Purposely = You act purposely if your conscious object is to engage in a certain conduct of to cause a certain result

Front 254

When does the MPC find that you acted knowingly?

Back 254

MPC Knowingly =
i. a result is achieved knowingly if Δ is practically certain that his conduct will cause such a result
ii. Δ acts knowingly if he knows that necessary attendant circumstances exist.

Front 255

According to the MPC, what is recklessness?

Back 255

i. reckless – consciously disregard a substantial and unjustified risk that the material element exists or will result from Δ’s conduct

Front 256

Under the MPC def. of recklessness, what does "substantial and unjustified" mean?

Back 256

substantial and unjustified – conduct involves a gross deivation from the standard of conduct that a law abiding person would observe in the actor’s situation

Front 257

Under the MPC, what is negligently?

Back 257

negligently – Same EXCEPT: Δ’s substantial and unjustified conduct is held against a reasonable person standard, not a law abiding person

Front 258

What can mistakes do?

Back 258

Mistakes have evidentiary value. They can negate the required culpability or help establish defenses.

Front 259

Generally, when a statute makes an act illegal as part of a greater social harm, what kind of rules apply?
--> give an example
--> what are some problems w/this policy?

Back 259

Generally, when a statute makes an act illegal as part of a greater social harm, strict liability rules will apply. – White v. state
a. Man abandons his wife. This is an immoral act. It is illegal if the wife is pregnant. Sine the act is generally evil, strict liability, and no req. of actual knowledge of her pregnancy.
b. Public policy concerns will promote strict liability rules.
c. Problems: This can allow juries to, in effect, create new laws. They can find most any behavior illegal.

Front 260

Which mistake do most jurisdictions not allow as a defense?

Back 260

Most jurisdictions do not allow mistake of age defenses. (statutory rape) This means you violate the law at your peril. Strict liability can be found explicitly in the statute or implicitly from interpretation/legislative history/etc.
a. The law’s demarcations and legislative history are carefully examined to determine legislature’s will. Esp. when there is no explicit mens rea.

Front 261

According to the MPC, when can a mistake be a defense

Back 261

MPC: If mistake’s effect negates the mens rea, then it is a defense
a. Ignorance can downgrade a sentence
b. MPC does not like strict liability crimes. there must be some culpability in each offense

Front 262

With mistake problems, what's a good word to look out for?

Back 262

Look for “Knowingly”

Front 263

What happened in Morrissette v. US and what was the outcome?

Back 263

– Δ knew his was taking USAF shells, but he thought the shells were abandoned. Gov wanted this to be a strict liability intent; even though Δ thought the shells were abandoned… too bad.
a. SCOTUS said no, and that jury should have been given instructions about intent.
b. Adopting strict liability would expand the scope of congressional intention

Front 264

What is Rape? (the 4 acteus reas)

Back 264

Rape Actus Reus

Sexual intercourse is rape if it is committed:
1. forcibly
2. by means of certain forms of deception
3. when the victim is asleep or unconscious
4. upon an incompetent
a. drugged, mentally disabled, too young to give consent

Front 265

What is the Mens Rea in rape?

Back 265

Rape Mens Rea = differs from some jurisdictions.

-->Trend in American courts is towards a strict liability defense (reasonable belief of consent is no defense).

Front 266

What do Rape shield laws do?

Back 266

– exclude prior encounters between victim and Δ

Front 267

What did the Violence against women act allow?

Back 267

– prior conduct of Δ can be admitted

Front 268

What have recent reforms in rape legsl. aimed at removing?

Back 268

Recent reforms have aimed at removing the victim’s/gov’s burden of proving no consent
a. this does NOT remove a consent req.

Front 269

What are 3 defenses used in rape?

Back 269

Rape Defenses
1. Mistake of Identification
a. No contest about the rape, just that Δ isn’t the rapist
2. Consent
a. the contact was consensual
b. Jury decides if there was consent
3. Sometimes, not all jurisdictions: Mistake of fact

Front 270

Where do most cts look to see if there was consent?

Back 270

To Find consent for rape, cts look:
a. if its in the statute, prosecution has burden to prove
b. if not, then Δ has the burden to prove the defense
c. Most jurisdictions allow a ‘reasonable belief of consent’ defense

Front 271

What (3) things are considered "lack of consent" in rape?

Back 271

Lack of consent
a. Proof of resistance
b. Victim failed to resist because of fear
c. Mistake of fact is typically not a defense, even a good-faith mistake

Front 272

When is fear submittable as a defense for rape?

Back 272

Victim failed to resist because of fear
i. fear of death or harm (gun pointed at head… etc)
ii. fear to the point that she cannot resist
iii. Fear should be reasonably grounded to obviate the need for proof of actual force or physical restraint
c.

Front 273

Why is any actions beyond an initial ‘no’ considered to be done without consent?

Back 273

bc Δ has knowledge of victim’s feelings

Front 274

What are the 3 different Models of Consent for Rape?

Back 274

Models of consent
a. Yes Model
b. No Model
c. Victim’s belief

Front 275

Explain the "Yes Model"?

Back 275

1. Consent is required. Must be voluntary consent
2. unless the female wants the intercourse, it would be rape
3. How would force be determined?
--> coercion, physical force, etc.
--> non-physical force? rarely applied.

Front 276

Explain the "No Model"?

Back 276

Consent is assume until an affirmative “No”

Front 277

Explain the "Victim’s belief"?

Back 277

i. Did the victim believe she was the subject of force? AND
ii. Was that belief reasonable?

Front 278

How does the MPC define rape? (4)

Back 278

MPC =
Intercourse in the following circumstances is rape:
1. victim under the age of 10
2. V is unconscious
3. V is compelled to submit by force of threat of death, bodily harm, pain, or kidnapping
4. Δ administers drugs so that he can control her conduct

Front 279

Does the MPC allow for any exceptions in rape?

Back 279

Yes, Code recognizes a marital exception (I’m not sure how much)

Front 280

Who can commit rape under the MPC?

Back 280

Only males can commit the offense under the code!

Front 281

Who's point of view is rape defined by under the MPC?

Back 281

Rape is defined by the male’s conduct, not the female’s consent

Front 282

Under the MPC, are mistake of age and consent defenses?

Back 282

Mistake of age is a defense, but consent isn’t (b/c consent isn’t part of the crime)

Front 283

How must permission for intercourse be given under the MPC?

Back 283

Sex act without freely given permission is sexual assault

Front 284

What do trickery and fraud do to consent under the MPC?

Back 284

(1) trickery does not violate consent; she consented to intercourse, that it was with someone different than she thought it would be is immaterial OR
(2) fraud turns the intercourse into unknown and unwanted adultery, so it is rape

Front 285

What's the 3 step test for proving Causation?

Back 285

Causation 3 step test
1. Is there “But-for causation”?
2. Is there legal causation?
3. Are there any intervening causes?

Front 286

What is But-for causation?

Back 286

= cause in fact

Front 287

What is legal causation?

Back 287

1. proximate cause
2. foreseeability

Front 288

What are the 2 types of intervening causes?

Back 288

1. Dependant – causes that can be traced back to Δ
--> doesn’t break the chain of causation
2. Independent – causes that are not traceable back to Δ
--> breaks the chain of causation
--> Ask: Was another act the superseding cause of harm?

Front 289

What are the 4 pillars of causation according to the MPC?

Back 289

i. But-For Causation
ii. Proximate Cause
iii. Purposeful causation t
iv. the result is part of the legal causation

Front 290

What is "But-For Causation" according to the MPC?

Back 290

the exclusive meaning of causation

Front 291

What is "Proximate Cause" according to the MPC?

Back 291

1. refers to the actor’s culpability
2. Did the actor cause the harm with the necessary level of culpability
a. Did Δ have the nessecary purpose, knowledge, or reckless and negligence?
b. this is a mens rea definition.

Front 292

What does Purposeful causation req. under the MPC?

Back 292

Purposeful causation requires knowing the result

Front 293

When is the result is part of the legal causation?

Back 293

the result is part of the legal causation if: actual result is a probable consequence of the conduct

Front 294

Under the MPC, how is legal cause found?

Back 294

To find legal cause, ask was the harm foreseeable?

Front 295

What two things are assessed to determine if the harm was foreseeable?

--> What questions do you ask?

Back 295

1. Social Harm
--> Was the general sort of harm foreseeable from the Δ’s actions?
--> Was Δ the direct cause of the social harm?

2. Mechanism
--> Was the mechanism of the harm foreseeable?
(This is the lesser used approach to finding causation.)

Front 296

In People v. Acosta – two helicopter chasing Δ (who had stolen a car and lead a chase) crashed, killing two. Was this felony-murder? (do Assessment)

Back 296

1. yes, but-for causation
2. legal cause?
a. Jury uses common sense to determine, could a reasonable jury find legal causation?
b. Δ could have foreseen that someone chasing him might negligently harm himself or others, so sure. Not an extraordinary result, really.

Front 297

In People vs. Acosta, did the ct find any intervening causes vaild?

Back 297

3. Intervening causes?
a. Was the helicopter pilot’s negligence a dependent or independent intervening cause?
i. depends on how generally were going to look at the question. negligence of a pursuer, or negligence of a helicopter pilot?
ii. GENERALLY we’ll prefer a social harm analysis
iii. Find the mens rea by finding intent to commit the initial felony.

Front 298

In People v. Arzon – Δ set a fire on 5th floor, there was another fire on 3nd floor he was NOT linked to. A firefighter died b/c the combination of the smoke was too much. Is this a felony murder? (do the assessment)

Back 298

1. but for?
a. Concurrent but for causation. We don’t know if one fire would have killed victim or not.
b. passes but for. Δ doesn’t need to be the sole and exclusive cause, as long as there is a causal chain
2. legal causation?
a. foreseeable? yes. sufficiently direct? yes.
b. it is not necessary that the ultimate harm was not intended
3. Arson is enumerated in NY, so 2nd degree murder.

Front 299

What are the two types of Intervening causes?

Back 299

1. Dependent causes
2. Independent causes

Front 300

Is medical negligence an intervening cause?

Back 300

Mere negligence (typically medical) does not break the chain of causation
a. If Δ shoots me, and I only die because the Dr. was negligent, it was still a felony murder
b. med negligence is always foreseeable

Front 301

What may factor in as an independent cause & break the line of causation?

Back 301

Gross negligence may break the line of causation. Esp when it is the sole cause of death

Front 302

Was there an intervening cause in People v. Campbell, the case where the Woman shoots herself after a rape?
-Do the analysis.

Back 302

a. But for? yes
b. Proximate? yes, it was foreseeable
c. Intervening?
i. There was an independent intervening cause
ii. victim’s decision to shoot himself was an independent intervention. It was a outside act of free will. Δ’s encouragement (and providing the gun) was not enough.

Front 303

Was Kevorkian an intervening cause that was punishable?

Back 303

People v. Kevorkian – Δ’s suicide machine allowed a patient to inject himself with a lethal dose of drugs
a. but for? yes
b. proximate? yes, it was foreseeable
c. any intervening causes?
i. the victim provided the independent act of free will by the deceased. this breaks the causal chain
ii. assisting/urging suicide is not murder, as long as victim was mentally responsible and could make the necessary free will act to kill himself

Front 304

Was there an intervening cause in Stephenson v. state – where the Δ rapes and harmed victim, she killed herself?

Back 304

Δ was guilty and the suicide was not an independent intervening cause because victim was essentially in the control of Δ.

Front 305

Define Accomplice (common law)?

Back 305

Anyone who aids in the commission of a crime is an accomplice, and is just as guilty of the crime as the principle actor

Front 306

Can accomplice liability be divided?

Back 306

Accomplice liability is only divided when there is a specific statutory obligation to do so.

Front 307

Does the size of an accomplices role have an effect on conviction?

Back 307

size of an accomplices role has no effect on conviction (may have a role in sentencing)

Front 308

EX: 3 Δ’s rob a 7-11. One pulls a gun, one drives the car, one acts as a lookout. Who get prosecuted principally?

Back 308

They’re all prosecuted as principals

Front 309

What does liability extends to?

Back 309

Liability extends to everything that was natural and foreseeable

Front 310

Is accomplice liability conditioned on a proper conviction of the principal?

Back 310

accomplice liability is not conditioned on a proper conviction of the principal

Front 311

What is an accomplice after the fact?

Back 311

a. One who aids, abets, encourages a principal to get away with a crime AND
b. has knowledge that a crime was committed

Front 312

What are the three questions asked for the Accountability Test?

Back 312

Accountability Test
1. Did Δ aid or abet?
2. Did Δ intend to aid, abet, assist, encourage? OR
3. Was the crime a natural and foreseeable result of Δ’s conduct?

Front 313

How does the MPC treat crimes that are a natural and foreseeable result of Δ’s conduct?

Back 313

MPC does not care, and only wants intended crimes

Front 314

What are the conflicting policies of Accountability?

Back 314

We’ve got conflicting policies
i. we don’t want to hold people liable for that which they don’t intend to do BUT
ii. If you put criminal conduct into motion, you can be responsible for the natural and probably results of the crime
iii. must draw a line between these two policies

Front 315

What are the (3) things needed to meet the Mens Rea as an accomplice?

Back 315

Accomplice Mens rea
1. You must INTEND to aid and abet. Mere presence is not aiding and abetting
2. IL focuses solely on intent. If Δ intended to help the principal, then he’s guilty (Cavise prefers this one: You must want to act and intend to aid/abet)
3. Dressler thinks that you can get lucky, if you intend to aid and abet, but fail to do so, then you’re not an accomplice

Front 316

What two things must cross for an accomplice to be liable? (2 of them)

Back 316

(1) Δ must associate himself with a venture such that he seeks to bring the act about.
(2) there needs to be a nexus between actions and intent. The Mens rea must line up with the act.

Front 317

According to the old definition, what is required to be the principle criminal (the Principle)?

Back 317

a. Principal
For murder in the:
i. 1st degree – you must be the actor
ii. 2nd degree – you must be present at the crime; or aiding and abetting

Front 318

According to the old definition, what is required to be the aid to the crime (the Accessory)?

Back 318

Accessory – you don't have to be present, but you must be connected
i. before the fact OR
ii. after the fact

Front 319

In order to be the Accessory BEFORE the fact, what must you do?

Back 319

procure, counsel, command the act

Front 320

In order to be the Accessory AFTER the fact, what must you do?

Back 320

assists, relieves, receives, or comforts the felon

Front 321

How does the MPC view accomplices?

Back 321

MPC = accomplices are as accountable as the principle

Front 322

What constitutes an accomplice according to the MPC?

Back 322

Accomplices
i. solicits the crime
ii. helps plan or commit

Front 323

According to the MPC, what is the Mens Rea for accomplices? (2)

Back 323

Accomplices must:
i. solicits the crime
ii. helps plan or commit

Front 324

According to the MPC, Causation for accomplices requires what?

Back 324

i. Intent is key.
--> No liability for crimes not within the “conscious objective” of the Δ (It's NOT a reasonable objective)

Front 325

Can Corporations be liable for acts of their underlings?

Back 325

Yes, Corporations can be liable for acts of their underlings

Front 326

What type of mens rea is used to find corporations responsible?

Back 326

We use a group mens rea to find corporations responsible

Front 327

Can all crimes be committed by a corporation?

Back 327

Only some crimes can be committed by a corporation. After all, a corp. isn’t a real person.

Front 328

What are Corporations are responsible for?

Back 328

Corporations are responsible for their agents and employees actions when they are done within the scope of employment

Front 329

What is meant by "the scope of employment"? (2)

Back 329

1. If the corporation benefits from the act, then its usually liable
2. Corporate liability can be express or implied. Only prosecuting the employees doesn’t properly deter the corporation from encouraging such illicit behavior.

Front 330

A single agent commits a crime. Who can be found guilty?

Back 330

1. The corporation
2. High Corporate Officials
3. The actual perpetrator

Front 331

When can the corporation be found guilty? (3)

Back 331

If:
a. Agent had authority
b. the crime benefited the corporation
c. it was part of the agent’s job

Front 332

When can the high corporate officials be found guilty? (2)

Back 332

1. If they have the required mens rea
=> authorized/tolerated OR reckless inaction

2. acts reflect corporate policy
=> The crime violated a strict liability public policy law

Front 333

What is the Commonwealth v. beneficial finance Test for corporate liability? (3)

Back 333

1. The actor was placed in a position with enough power/duty/responsibility to commit the particular criminal act on behalf of the corporation
2. Actor had the power to decide what he would do to act on behalf of the corp.
3. Actor acted on behalf of the corp when he committed a criminal act
i. I suspect we find this constructively. If the corp benefited, then he acted for them.

Front 334

What is the Model Penal Code Test for corporate liability?

Back 334

Criminal liability for the acts of an employee only if the act was
1. Authorized or tolerated by someone sufficiently high in the corporation OR reckless inaction
2. this authorizing individual should be high enough that their acts reflect corporate policy.
--> (A title is not conclusive. Low-level employees can still have sufficient responsibility)

Front 335

What are the two corporate crime defenses?

Back 335

Corp Crime Defenses
1. corporation specifically forbid the acts that the employee committed

2. MPC has a “due diligence” defense

Front 336

How do courts treat corporate defenses that state that the corporation specifically forbade the acts that the employee committed?

Back 336

=> It says "Too bad!" Modern Sarbanes-Oxley establishes specific procedures corporations must establish.
i. General policies against the criminal act are not enough
ii. There must be vigilance in corporate policy. If the policy is negligent, then it allowed a crime to occur.

Front 337

Explain the MPC has a “due diligence” defense?

Back 337

a. If the high managing agent supervising the evil-doing employee exercised due diligence in trying to prevent the act
b. due diligence is found by the jury

Front 338

What is the knowledge of one partner is assumed to be?

Back 338

The knowledge of one partner is assumed to be the knowledge of all.

Front 339

In order to find one partner guilty of the crime of another, what must we must find?

Back 339

Normally, criminal guilt is personal to the accuse, there must be a guilty mind. So in order to find one partner guilty of the crime of another, we must find:
a. there was a duty imposed by the law to keep records and be aware of the company’s acts. (creating a vicarious responsibility)
b. the willful intent requirement is relaxed by a public welfare regulation

Front 340

When can a high official be held liable?

Back 340

The Δ could have a heightened responsibility if the corporation is providing a public service. This might allow for CEO to be guilty (US v. Park)

Front 341

What does the "Responsible Corporate Officer Doctrine" say?

Back 341

A Δ Corporate Officer is guilty if he had authority to:
i. prevent OR
ii. promptly correct

Front 342

What are some defense to the "Responsible Corporate Officer Doctrine"?

Back 342

Defenses:
i. powerless to correct or prevent
ii. perhaps Δ could say that correction was objectively impossible
1. this defense only offered to individuals, not corps.

Front 343

What are the (3) elements of a RICO?

Back 343

1. An enterprise
2. At least two predicate acts committed by each Δ
3. An Intent to continue

Front 344

What are the (3) things that the the Enterprise/Infrastructure must have?

Back 344

The Enterprise/Infrastructure must have:

1. Must Affect Interstate Commerce
2. Must have a common purpose
3. With some Continuity of structure and persons.

Front 345

What affects interstate commerce?

Back 345

These days, everything affects interstate commerce

Front 346

What kind of purpose must the RICO affect?

Back 346

The Purpose does not need to be illegal, just that the acts used to achieve the purpose are illegal

Ex: We want to build a road – legal
we’re gonna siphon funds off the K – RICO
b. The purpose can be to violate RICO!
-->be in an organization to commit criminal acts.
c. Knowledge of the organization is probative of a central purpose.

Front 347

Explain 'Continuity of structure and persons' in RICO?

Back 347

Continuity of structure and persons =>
a. Elliot – tie many smaller conspiracies into larger conspiracies
b. A Pattern of conspiracies can be joined into a single conspiracy when:
i. Δ’s agree to commit a RICO
ii. Δ’s agreement is established when they know that others were committing crimes.
1. you only need CIRCUMSTANTIAL evidence to establish the agreement

Front 348

What are the (3) components of a RICO?

Back 348

1. An Enterprise/Infrastructure
2. Two Predicate Acts committed by EACH Δ
3. The Intent to Continue

Front 349

What (3) things are necessary in order for the Two Predicate Acts committed by each Δ to count as a RICO?

Back 349

1. Δ’s involvement must reach a certain level.
2. Predicate Acts are enumerated in the statute
3. The acts must be related. There must be a thread of continuity

Front 350

What are the (2) levels that the Δ’s involvement must reach?

Back 350

Either: they are in
(1) a managerial role. OR
(2) Direct Participants in the crime

Front 351

What happens to all other participants who do not meet the RICO guidelines?

Back 351

All other participants get prosecuted for their individual crimes/conspiracies

Front 352

What are two things to remember re: Predicate Acts that are enumerated in the statute?

Back 352

They:
1. Include commission by accountability as well
–-> an organized shakedown vs. shaking someone down
b. The motive does NOT need to be economic. Political etc works

Front 353

How long does the 'Intent to Continue' need to be for a RICO?

Back 353

Not forever, just beyond the currently prosecuted acts.

Front 354

What are some Forfeiture provisions of a RICO?

Back 354

Forfeiture provisions => pre-indictment seizures, no adversary hearing… Massive

Front 355

What is the Burden of Proof for Self-defense?

Back 355

1. Self-defense is an affirmative defense
2. Δ must raise the defense with some quantum of proof. (amount varies)

Front 356

What is the Burden of Persuasion for Self-defense?

Back 356

Burden of Persuasion
1. The state must prove beyond a reasonable doubt that there was no defense.
2. Δ may rebut state’s proof
3. Insanity is different-usually proved by Δ

Front 357

What are the (3) elements of self-defense?

Back 357

1. Threat to the Δ
2. imminent
3. response is necessary and proportional

Front 358

When is deadly force permitted in self defense?

Back 358

Deadly Force is permitted when Δ believes there is an imminent and unlawful use of deadly force by the aggressor.

Front 359

At common law , what does imminent mean?

Back 359

At common law imminent means immediately

Front 360

What does the Battered Woman Syndrome Theory purport?

Back 360

After at least two violence cycles, a battered woman takes on a state of learned helplessness and is not likely to leave the relationship.

Front 361

What must the defense do when trying to utilize the Battered Woman Syndrome?

Back 361

The Defense must introduce evidence to explain when Δ’s subjectively believed man was about to kill her, and how this belief was objectively reasonable to a person suffering from Battered Woman’s Syndrome

Front 362

How does one know if the self defense was reasonable?

Back 362

Yes, the test for the reasonableness of the belief of threat must be both subjective and objective

Front 363

What are the subjective and objective tests for reasonableness in self defense?

Back 363

The
a. Jury must find that the Δ had an honest belief that he needed to use deadly force against an imminent unlawful attack AND
b. that the Δ’s belief was one that a reasonable person in the same situation would have possessed.

Front 364

If the Δ’s beliefs are found to be unreasonable, what happens then?

Back 364

If the Δ’s beliefs are found to be unreasonable, then this is murder.
-->However, there may be an imperfect self-defense to mitigate

Front 365

Under common law, what is "Imperfect Self-defense"? (2)

Back 365

1. If Δ killed because of an unreasonable belief that the circumstances justified killing, is guilty of manslaughter (not murder) OR
2. Δ unreasonably uses deadly force when non-deadly force would have sufficed

Front 366

Under the MPC, what is "Imperfect Self-defense"?

Back 366

MPC: If the Δ negligently or recklessly believes that deadly force is necessary, then he’s committed a reckless or negligent homicide

Front 367

Self-defense is measured against necessity, what do most jurisdictions have?

Back 367

a retreat requirement.

Front 368

Where are you never req. to retreat from?

Back 368

your home

Front 369

When is retreat required?

Back 369

Retreat is always required.

Front 370

When is retreat not required?

Back 370

It is only not required when the self-defender is going to respond with deadly force. Further, there is no need to retreat unless retreat could be done completely safe.

Front 371

In which situations is there a duty to retreat? (3)

Back 371

a. when there is no risk of injury by retreating
b. when the Δ can still repel the attack with non-deadly force
c. when the Δ is subjectively aware of its existence (if doesn't know he can retreat, no duty)
--> A blanket expectation of retreat is unrealistic. People don’t always see retreat as a viable option

Front 372

Explain the MPC's stance on retreat: 2pts.

Back 372

MPC retreat
a. subjective – did the Δ know of a retreat option
b. objective – was the Δ’s belief reasonable

Front 373

According to the MPC, when is a Δ is justified in using force?

Back 373

MPC Rule
Δ is justified in using force when he believes that such force is immediately necessary on the present occasion to protect self against the exercise of unlawful force

Front 374

How is the MPC different from common law?

Back 374

Differences from common law:
1. Based on Δ’s subjective belief in the need for force
2. Force is permitted as soon as Δ needs to use it NOT (as in the common law) when the threat is imminent
--> this is because its entirely subjective

Front 375

According the the MPC, when is Deadly Force is permissible? (4)

Back 375

Deadly Force is permissible only when Δ believe there is a threat of
a. death
b. serious bodily injury
c. forcible rape (MPC is the only one that allows this)
d. kidnapping

Front 376

According the the MPC, when is retreat required?

Back 376

Retreat is required if it Δ believes it can be done completely and safely
a. EXCEPT no need to retreat from your own home

Front 377

According the the MPC, what is an imperfect defense?

Back 377

MPC Imperfect self-defense:
a. Δ’s subjective belief in the need for self-defense will not remove guilt if the belief was held negligently or recklessly. If Δ’s recklessness or negligence establishes culpability for a killing, self-defense will not be a defense

Front 378

Give an example of an Imperfect self-defense based on the MPC?

Back 378

Example: If Δ kills V because Δ unreasonably (b/c of is own negligence) believed that V was about to kill him, then this is negligent homicide

Front 379

What is the M’Naghten Rule on insanity? (common law)

Back 379

M’Naghten Rule => a person can't be held liable:
1. By reason of mental disease or defect
2. When the Δ does not know or appreciate the criminality of their conduct

Front 380

What is the MPC Insanity Test?

Back 380

=> a person can't be held liable:
1. By reason of mental disease or defect
2. When Δ does not know or appreciate the criminality of their conduct OR
3. when Δ lacks the capacity to conform his conduct to the law

Front 381

What are the (4) rules that may be used to excuse actions by reason of insanity?

Back 381

1. M’Naghten Rule
2. MPC Insanity Test
3. Irresistible Impulse Test
4. Durham Rule

Front 382

What is the Irresistible Impulse Test on insanity?

Back 382

1. Δ is insane if he acted on an irresistible and uncontrollable impulse; Δ lost the power to choose between right and wrong

Front 383

What is the Durham Rule for insanity?

Back 383

A Δ’s conduct is excused if mental illness or defect was the “but-for” cause

Front 384

What does the Δ bears the burden of?

Back 384

Δ bears the burden of proceeding and persuasion

Front 385

Explain the procedure of an Insanity defense.

Back 385

Procedure for Insanity defense:
1. Δ raises the defense
2. Δ must convince the jury with a preponderance of the evidence
3. Prosecution can rebut

Front 386

What is Solicitation?

Back 386

Soliciation is the intentional attempt to get another to engage in criminal conduct.

Front 387

What is Felony Murder?

Back 387

Felony Murder is when a FORSEEABLE death results during the commission of a serious underlying felony.

Front 388

What is Voluntary Manslaughter?

Back 388

Voluntary Manslaughter is the killing or attempted killing of a person undertaken in response to extreme emotional distress.

Front 389

What is temporary Insanity?

Back 389

Temporary Insanity is a defense by the accussed that she was breifly insane at the time the crime was committed and therefore incapable of knowing the nature of her alleged criminal act.

Front 390

What is the difficulty w/claiming temporary Insanity?

Back 390

The difficulty w/claiming temporary Insanity as a defense is the problem of proof, since evidence by psychologists tends to be dubious due to fluctating beliefs in the medical field & a sceptical jury. So the only evidence is the conduct of the accussed immediately before or after the crime.

Front 391

What is a conspiracy? (2pts)

Back 391

(1) an agreement btwn 2 or more ppl to engage in criminal conduct followed by
(2) an overt act in furtherance of the conspiracy

Front 392

What is a conspirator responsible for?

Back 392

A conspirator is responsible for ALL acts committed in furtherance of the conspiracy, EVEN IF he did not actively participate in all conduct leading up to and including the criminal act

Front 393

What is attempted murder?

Back 393

Attempted murder is when one has a SPECIFIC INTENT to kill AND TAKES ACTION that fails to cause the intended death.

Front 394

What is a conspiracy? (2pts)

Back 394

(1) an agreement btwn 2 or more ppl to engage in criminal conduct followed by
(2) an overt act in furtherance of the conspiracy

Front 395

What is a conspirator responsible for?

Back 395

A conspirator is responsible for ALL acts committed in furtherance of the conspiracy, EVEN IF he did not actively participate in all conduct leading up to and including the criminal act

Front 396

What is attempted murder?

Back 396

Attempted murder is when one has a SPECIFIC INTENT to kill AND TAKES ACTION that fails to cause the intended death.

Front 397

What is the Merger Doctrine?

Back 397

The Merger Doctrine holds that a lessor but RELATED charge merges with a more serious RELATED charge and ONE MAY NOT BE CONVICTED OF BOTH a serious and lessor charge with respect to the same event. The lesser charge merges with and into the serious charge.

Front 398

What is involuntary manslaughter?

Back 398

Involuntary manslaughter is the act of unlawfully killing another human being UNINTENTIONALLY.

Front 399

What is key for a finding of involuntary manslaughter?

Back 399

The absence of the element of INTENT is the key to distinguishing btwn voluntary and involuntary manslaughter.

Front 400

In most states, how does involuntary manslaughter result?

Back 400

In most states, involuntary manslaughter result from an improper use of reasonable care or skill while performing a LEGAL act, or while committing an act that is UNLAWFUL, BUT NOT FELONIOUS.

Front 401

Explain how different states deal with involuntary manslaughter result from?

Back 401

--> Most states define the amount of negligence req'd to constitute manslaughter, such as "criminal negligence," "gross negligence," and "culpable negligence." The only certainty that can be attached to these terms is that they require MORE THAN THE ORDINARY NEGLIGENCE in a civil case. With this approach, the state does not have to prove that the defendant was aware of the risk.

-->Other jurisdictions apply more subjective tests, such as "reckless" or "wanton," to describe the amount of negligence needed to constitute involuntary manslaughter. In this approach, the defendant must have personally appreciated a risk and then chosen to take it anyway.

Front 402

What is Statutory rape?

Back 402

Statutory rape is the crime of carnal knowledge of a female under the age of consent (usually 16 - 18 yrs). Even if the female is a willing participant, the offense is committed bc consent is irrelevant.

Front 403

What is rape?

Back 403

Rape is a felony and is the carnal knowledge of a woman by a man who is not her husband, w/o her effective consent.

Front 404

What is sufficient for a rape?

Back 404

It requires only the penetration of a woman. Emission is not necessary to complete the crime.

Front 405

How does common law and the MPC treat marital sexual assaults?

Back 405

Under both, the woman must not have been married to the guy who committed the act (not recognized as rape). Modern;y, tho, most states have dropped the requirement if the parties are estranged, or seperated, or have dropped it completely.

Front 406

What are the (3) types of lack of consent for rape?

Back 406

1. Intercourse by force
2. Intercourse by threat = placing the victim in fear of great and immediate bodily harm. Consents obtained by threat are ineffective.
--> Failure of the victim to resist does not prevent the intercourse from being a rape if resistance is prevented by threats.
3. Inability to consent: unconscious, drugs or intoxicating substances, or mental conditions (retarded).

Front 407

When does a fraud amount to a rape?

Back 407

When the victim is caused to believe that the act is not sexual intercourse
--> (mistaken identity or promises of marriage do not constitute fraud.)

Front 408

When a crime is defined to require not merely conduct (a harmful act) but also a specified result of that conduct (death), what must the D's particular conduct be in terms of the specified result? (2)

Back 408

When a crime is defined to require not merely conduct (a harmful act) but also a specified result of that conduct (death), the D's conduct must be both the (1) cause-in-fact and (2) the proximate cause of the specified result?

Front 409

What is a "cause-in-fact"?

Back 409

The D's conduct must be the cause-in-fact of the result (i.e. the result would not have occurred "but for" the D's conduct)

Front 410

What's the common law rule for "cause in fact?"

Back 410

--> Year & Day rule = the death of the victim must occur w/in one year and a day from the infliction of the injury or wound, or no homicide.
--> most states have abolished this rule

Front 411

What is "proximate" causation?

Back 411

When the victim's death occurs bc of the D's acts, but not in a manner intended or anticipated by the D. In such cases, we look to is something breaks the chain of 'proximate cause" causation.

Front 412

What is the general rule as to whether the chain of causation is broken w/ proximate" cause?

Back 412

General rule => the D is responsible for all results that occur as a "NATURAL AND PROBABLE" consequence of D's conduct, even if he did not anticipate the precise manner in which they would occur.
--> All such results are "proximately caused" by the D's acts.
--> The chain of causation is only broken by the intervention of a superseding factor.

Front 413

How are simultaneous acts viewed?

Back 413

Simultaneous acts are considered indepdntly sufficient causes of a single result.

Front 414

How are pre-existng conditions viewed?

Back 414

They don't break the chain of causation: you take your victim as you find him

Front 415

A is driving negligently. To avoid A's swerving car, B takes an unaccoustomed route home. B's car is struck by lightneg and B dies. Can A be charged w/ manslaughter?

Back 415

No. The fact that lightening struck B was a mere coincidnce.
--> Mere coincidences, acts of nature, and things that are not foreseeable will sheild a D from liability.

Front 416

A, intending to kill B, merely wounds him. B recieves negligent medical trxmt at a hospital and dies. Can A be held liable for B's death?

Back 416

Yes. Negligence in medical care is considered a forseeable risk.

* A CONTRARY result would follow if B died due to GROSS negligence or INTENTIONAL mistreatment. = Intervening act.

Front 417

A, intending to kill B, merely wounds him. B refuses medical trxmt for religious reasons and dies. If the hospital could have saved B, can A be held liable for B's death?

Back 417

- Most jurisdictions have held yes, bc A's act directly created the risk of death and B's refusal of medical trxmnt could be foreseeable (take ur victim as u find him).
--> This rule may apply even if the victim acts affirmatively to harm himself. (ex: Suppose B is in unbearable pain & commits suicide. The suicide may be a forseeable consequence of A's actions, so he'd be liable for B's death).

Front 418

What are the two types of manslaughter?

Back 418

(1) criminal negligence
(2) 'Unlawful Act' Manslaughter

Front 419

What is 'Unlawful Act' Manslaughter?

Back 419

It's a killing caused by an unlawful act (i.e: speeding)

Front 420

What are the (2) types of 'Unlawful Act' Manslaughter?

Back 420

(1) Misdemeanor Manslaughter => a killing in the course of a misdemeanor (throwing rocks onto a highway from overpass)
(2) Felonies not included in Felony Murder => if the act doesn't fall into the Felony Murder case req'mnts, then the killing will be an involuntary manslaughter

Front 421

When are the only times that IGNORANCE or MISTAKE will be allowed to affect a finding of criminal guilt?

Back 421

IGNORANCE or MISTAKE will be allowed to affect a finding of criminal guilt ONLY if it shows that the defendant DID NOT HAVE the state of mind required for the crime.

Front 422

When can an AGGRESSOR use force as a self defense?

Back 422

Generally, one who begins a fight has no right to use force in his defense during the fight, however"
(1) If the agressor , in good faith, withdraws from the fight & communicates this to the other party, then he regains the right to use self-defense.
(2) Sudden Escalation => if the victim suddenly escalates a minor fight into one involving deadly force, & does so w/o giving the aggressor a chance to withdraw, the aggressor may use force in his self-defense.