2008 Mbe Criminal Law

Front 1

The "situs" of the crime is defined by

Back 1

1. where the proscribed act (or omission) takes place
OR
2. the place of harmful result

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Federal criminal law is governed entirely by

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statute (i.e. there is no federal common law)

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Article I of the Constitution places these two substantive limitations on both federal and state legislatures

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1. No Ex Post Facto Laws
AND
2. No Bills of Attainder

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Ex Post Facto Laws opertate to retroactively

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1. Make criminal an act that when done was not criminal
2. Aggravate a crime or increase punishment thereafter
3. Change the rules of evidence to the detriment of criminal defendants as a class
OR
4. Alter the law of criminal procedure to deprive substantive rights

Front 5

A Bill of Attainder is a legislative act that

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Inflicts punishment or denies a privilege without a judicial trial

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Plain meaning rule

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when stautory language is plain and the meaning is clear, the court must give effect to it

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Ambigous statements are construed how?

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In favor of defendant

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Generally there is NO MERGER EXCEPT for

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1. Solicitation or Attempt
AND
2. Lesser included offenses merge into greater offenses

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Not a violation of Double Jeopardy where statute provides

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Multiple, separate punishments for single act

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Elements of a crime

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1. Act
2. Intent
3. Concurrence
4. Harmful result/causation

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As a physical act must be voluntary these acts are NOT considered "voluntary"

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1. Conduct not the product of the actor's determination (shoved into something)
2. Reflexive or convulsive act (epileptic seizure)
OR
3. Acts performed while unconsious or asleep (unless D knew likely to happen)

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Failure to act will result in criminal liability provided three requirements are satisifed

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1. Legal duty to act
2. Knowledge of facts giving rise to duty (law may impose duty to learn - i.e. lifeguard)
AND
3. Reasonably possible to perform

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Legal duty to act can arise from the following sources

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1. Statute (file taxes)
2. Contract obligation (lifeguard)
3. Certain relationships(parent-child/spouse)

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Voluntary assumption of care

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once aid is rendered may be liable for not satisfying a reasonable standard of care

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Enumerated specific intent crimes (10 of them)

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1. Solicitation
2. Attempt
3. Conspiracy
4. First degree premeditated murder
5. Assault
6. Larceny and Robbery
7. Burglary
8. Forgery
9. False Pretenses
10. Embezzlement

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Two malice crimes

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1. Common law murder
2. Arson

Front 17

Standard of proof for prosecuting malice crimes

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D recklessly disregarded an obvious or high risk that the particular harmful result would occur (note: these crimes are not open to the specific intent defenses)

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Doctrine of transferred intent is most commonly applied to (3 crimes) and does not apply to (1 crime)

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Applies to: homicide, battery, and arson
DOES NOT Apply to: attempt

if a person intends to harm another person but instead harms a 3rd person, the actor's intent is transferred to the 3rd person.

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Formula for identifying strict liability crimes

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The crime concerns administrative, regulatory, or morality issues and no adverb in the statute

Front 20

Under enterprise liability, corporations may be held liable under the following conditions

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1. Acts within scope of office (look for agent acting on behalf of corp.)
OR
2. Superior Agent rule (agents sufficiently high to presume acts reflect corp. policy)

Front 21

Scope of Accomplice Liability

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1. The crime itself
2. All other foreseeable crimes

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Define Accomplice

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One who, WITH THE INTENT THE CRIME BE COMMITTED, aids, counsels, or encourages the principal before or during the commissions of the crime (KNOWLEDGE INSUFFICIENT)

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Define Accesory After the Fact

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Need a FELONY and a COMPLETED crime (usually a five yr. max sentence)

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Exclusions from liability

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1. Members of the protected class
2. Withdrawal (before crime is actually committed)

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Methods of withdrawal
- encouraged:
- provided materials to assist:

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- encouraged: repudiate
- provided materials: neutralize the assistance
OR
- notify authorities; take some action to prevent

Front 26

List the inchoate offenses (3)

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1. Solicitation
2. Attempt
3. Conspiracy

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Define Solicitation

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Asking someone to commit a felony with the intent that the person solicited do the crime

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At what point is the crime of solicitation complete

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At the time the solicitation is made

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- Non-defenses to soliciation
- Potential defense

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- Impossibility and withdrawal
- Exemption from intended crime (minor female not guilty of soliciting statutory rape)

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Successful conspirators can be convicted of

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1. The criminal conspiracy
AND
2. The completed crime

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Liability of one conspirator fOR crimes committed by other conspirators - two requirements

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1. Crimes were committed in furtherance of the conspiracy AND
2. They were foreseeable

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Elements of Conspiracy

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1. An agreement between two or more persons (need not be express, court will infer)
2. An intent to enter into an agreement
AND
3. An intent to acheive the objective ("meeting of guilty minds")
(4). An overt act (mere preparation will suffice)

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Split in jurisdication regarding overt act to a conspiracry

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Majority: agreement and overt act
Minority/Common law: agreement is enough

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Withdrawal as a defense to conspiracy

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Not a Defense: the crime is complete as soon as the agreement is made and the overt act taken

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May limit liability for subsequent acts of other members of the conspiracy if

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1. Perform an affirmative act notifying ALL members
AND
2. Must be done in time for them to abandon their plans

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Define Attempt

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The specific intent AND a substantial step beyond mere preparation

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Defenses to liability for attempt

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Legal impossibility

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Can D argue abandonment to attempt

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General rule: it is never a defense
MPC: withdrawal will be a defense if 1.)fully voluntary and 2.) complete abandonment

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Formulations of Insanity Defenses

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1. M'Naghten rule
2. Irresistible Impluse Test
3. Durham Test
4. ALI/MPC Test

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Under the M'Naghten Rule a D is entitled to an acquittal if

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Lacked the ability at the time to know the wrongfulness and understand the nature and quality of his actions

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Irresistible Impulse test

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D unable to control his actions or conform conduct to the law (no self control and no free choice)

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Durham Test

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crime was a product of mental diseas or defect (but for the disease)

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ALI/MPC approach to insanity

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suffered from a mental disease and as a result lacked capacity to appreciate the criminality of his conduct OR conform his conduct (combination of M'Naghten and irresistible impulse tests)

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Burden of proof on insanity

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Presumed sane; D must present some evidence

Front 45

A good defense to specific intent crimes

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Voluntary intoxication

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Voluntary intoxication is no defense to

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Crimes requiring malice, recklessness or negligence, or to strict liability crimes

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Establish involuntary intoxication

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1. Under duress
2. Without knowledge
OR
3. Pursuant to medical advice

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Infacny is determined by

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Physical age at the time of the crime

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No criminal liability based on infancy under age

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Seven

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Rebuttable presumption of no criminal liability on infancy under age

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Fourteen

Front 51

May use deadly force if (3 things)

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1. Without fault
2. Confronted with unlawful force
AND
3. Threatened with imminent death or great bodily harm

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The threat of imminent death or great bodily harm (2 requirements)

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1. D must reasonably believe the threat exists
AND
2. Threat must be a present one

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Retreat from deadly force

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Majority: no duty
Minority: only if could do so safely and never from home or while being robbed

Front 54

Right of the agressor to use self-defense (2 requirements)

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1. Must remove from fight
AND
2. Must communicate such
OR
Upon sudden escalation from a minor fight to one of deadly force without a chance to withdraw

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For defense of property

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Deadly force may NEVER be used

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Duress is a defense to

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All crimes except homicide

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Mistake of Fact as a defense to a specific intent crime

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Any mistake will serve as a defense

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Mistake of Facts as a defense to malice or a general intent crime

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Reasonable mistake only

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Mistake of Facts as a defense to strict liability

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NEVER a defense

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Consent as a defense

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NEVER indulge consent of the victime as a defense

Front 61

Two elements to Entrapment

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1. Criminal design originated with alw enforcement
AND
2. Defendant must NOT have been PREDISPOSED to commit the crime
(vary narrowly interpreted)

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Offenses against Person include

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- Assault and Battery
- Homicide
- Voluntary Manslaughter
- Involuntary Manslaughter
- Statutory Rape

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Define Battery

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A completed assault; force to another resulting in either bodily injury or and offensive touching

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State of mind for battery

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Intent not required; criminal negligence sufficient

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Aggravated Battery

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- Deadly weapon
- Serious bodily injury
- Victim is a child, woman, or police officer

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Define Assault (2 possibilities)

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1. An attempt to commit a battery (specific intent)
OR
2. Intentional creation of a reasonable apprehension (more than just words)

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Common law criminal homicide subdivided into three different offenses

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1. Murder
2. Voluntary Manlaughter
3. Involuntary Manslaughter

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Define Murder

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Unlawful killing of a human with malice

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Define Malice

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1. Intent to kill
2. Intent to inflict great bodily injury
3. Reckless disregard to an unjustifiably high risk to human life
OR
4. Intent to commit a felony

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Define Voluntary Manslaughter

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Intentional killing by provocation (i.e. passion)

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Elements of adequate provocation

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1. Sudden and intense passion as an ordinary person
2. D was in fact provoked
3. Not time to cool down
4. D did not in fact cool down

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Involuntary Manslaughter - two forms

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1. Criminal Negligence
2. "Unlawful Act"/"Misdemeanor Manslaughter"

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Involuntary Manslaughter - Criminal Negligence

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Death caused by criminal negligence (some states require subjective awarenss of risk)

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Involuntary Manslaughter -"Unlawful Act"/"Misdemeanor Manslaughter"

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Killing caused by an unlawful act; in the commission of a misdemeanor (inherently wrong act or foreseeable)

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Define Felony Murder

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A killing committed during the course of a felony (malice is implied from the intent to commit the underlying felony)

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Defenses to Felony Murder

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- a defense to the felony is a defense to felony murder
- felony must be independant of the killing
- death must have been forseeable (broadly interpreted)
- death must have been "caused during" the commission of the felony (includes fleeing)
- death of co-felon caused by resistance from victim or police pursuit

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Applicability of the year and a day rule

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Outdated; mostly abolished

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Hastening an inevitbale result

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Is a legal cause of that result

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List Property Offenses

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- Larceny
- Embezzlement
- False Pretenses
- Robbery

Front 80

List Offenses against Habitation

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- Burglary
- Arson

Front 81

Elements of Larceny (possession not title)

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1. a taking (D takes control)
2. and carrying away
3. of tangible personal property
4. of another (someone with a superior possessory interest)
5. by trespass
6. with intent to permanently deprive

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Larency among joint owners or against abandoned property

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Cannot be committed

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Larceny of lost or mislaid property

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Considered constructively in the owner's possession

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Embezzlement generally requires

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1. The fraudulent
2. Conversion (manner inconsistent with trust arrangment; need not benefit D)
3. Of Property (real property and services not included)
4. Of Another
5. By a person is lawful possession

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False Pretenses general consists of

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1. Obtaining title
2. To the property of another
3. By an intentional (or knowing) false statement of past or existing fact
4. With intent to defraud

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Robbery (larceny + assualt) consists of

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1. A taking
2. Of personal property of another
3. From the other's person or presence (broadly construed)
4. By force or intimidation (threat of imminent harm)
5. With the intent to permanently deprive

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Aggravated Robbery

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Robbery with a deadly weapon

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Extortion disinguished from Robbery

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- future rather than imminent harm
- don't have to take anything from the person or his presence

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Elements of Burglary (common law)

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1. A Breaking
2. And Entry
3. Of the Dwelling
4. Of Another
5. At Night
6. With the Intent to commit a felony therein

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Breaking requirement for burglary

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- minimal force sufficent; can be constructive (i.e. fraud, threat); must be a trespass; must be to gain entry

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Elements of Arson

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1. Malicious
2. Burning
3. Of the Dwelling
4. Of Another