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37 Cards in this Set
- Front
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TPC 15.01
Criminal Attempt |
a) 1) with specific intent to commit an offense,
2) does an act amounting to more than mere preparation 3) that if continued would complete the crime b) 1) if actor attempts aggravated offense 2) his conduct is an attempt to commit the aggravated offense, if 3) an element that aggravates the offense accompanies the attempt *NO defense to attempt that the attempt was actually committed *This offense is 1 category lower than the offense attempted. |
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MPC 5.01
Criminal Attempt (1 of 2) pg. 639 |
Acting with the culpability required for the commission of the crime,
--> For complete but imperfect crimes: 1) purposefully 2) engages in conduct which would be the crime if the A/C were as he believes them to be, OR 3) for result crimes, does/omits anything with the purpose of causing the result --> For incomplete crimes: 1) purposefully 2) does or omits anything that will constitute a substantial step in a course of conduct planned to culminate in commission of crime *Attempt is an offense of SAME degree as most serious offense that is attempted *Conduct is not a substantial step unless it is strongly corroborative of actor's criminal purpose * Abandonment defense is an affirmative defense, that he abandoned effort, or prevented commission, must be a "complete and voluntary renunciation". ---This defense does NOT affect liability of an accomplice who didn't abandon/prevent the crime. - "complete and voluntary renunciation" must not be bc of increase of probability of detection, or bc want to postpone crime until a more advantageous time |
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MPC 5.01
Criminal Attempt (2 of 2) What is automatically a substantial step? pg. 639 |
Conduct is automatically a substantial step if:
- lying in wait - enticing/seeking to entice victim to go to scene of crime, or surveillance of scene of crime - unlawful entry of structure, vehicle, or enclosure of planned scene of crime - possession of materials to be employed for the commission of crime which are specially designed for unlawful use or which can serve no lawful purpose under the circumstances - possession, collection, or fabrication of materials that are to be employed in the commission of the crime where those materials serve no lawful purpose under the circumstances - soliciting an innocent agent to engage in conduct constituting an element of the crime |
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Common Law
Attempt |
No generalized doctrine that attempts were criminal, in themselves. (top of pg. 615)
- only in extreme, particularly heinous situations were attempts criminal |
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TPC 15.02
Conspiracy |
1) with intent that a felony be committed,
2) he agrees (bilateral) (agreement can be inferred from acts) with 1 or more persons that at least one of them engage in conduct that would constitute the offense, AND 3) at least one of them performs an overt act in pursuance of the agreement. ^1 deg. lower than the most serious felony that is the object of the conspiracy -along with the defendant, at least 1 other person has to be part of the conspiracy and NOT be acquitted NO defense that: - one or more coconspirators is not criminally responsible for the offense, - one or more of the conspirators has not been prosecuted, convicted, convicted of another offense, or is immune - the actor belongs to a class of persons that's legally incapable of committing the object offense - the offense was actually committed |
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MPC 5.03
Conspiracy pg. 685 |
1) with intent that a crime be committed/facilitated:
2) agrees (unilateral jurisdiction) that 1 or more persons 3) engage in conduct that is an offense/attempt/ solicitation, OR agrees to aid in planning/ commission 4) an overt act must be committed by a conspirator, unless a 1st or 2nd deg crime ^^conspiracy is same degree as most serious offense that's an object of the conspiracy (mitigate 1 degree less, if conduct inherently unlikely to culminate in crime) *A def. who knows that a co-conspirator is conspiring with others to commit the same crime is guilty of conspiring with the others even if def. doesn't know their identity *1 conspiracy for 1 objective/agreement, even if they involve committing multiple crimes * immaterial that A/C not as he believes (bribes a juror, but dude isn't a juror) A defense that, if the crime were to be committed, the actor would not be guilty of the crime or guilty as an accomplice |
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MPC 5.03
Renunciation for Conspiracy, Duration of Conspiracy pg. 686 |
Affirmative defense, if:
1) actor thwarted the crime under circumstances manifesting a complete and voluntary renunciation Duration: -conspiracy is a continuing course of conduct which ends with object is completed or agreement is abandoned AND - abandonment is presumed if no overt act done by any conspirators for 5 years, AND - individual can only abandon once it's effectively communicated to coconspirators, or if individual tells police |
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Common Law
Conspiracy pg. 645 |
A common law misdemeanor, included conspiracy to commit felonies, misdemeanors, any unlawful acts by unlawful means even if they weren't criminal.
*bilateral jurisdiction |
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TPC 15.03
Solicitation |
1) with intent that a capital felony or 1st deg felony be committed:
2) requests, commands, tries to induce (letter has to be received) 3) another to engage in specific conduct that would be that offense/make the other a party to its commission - def. cannot be convicted under only the uncorroborated testimony of the solicitant ^^either 1st deg or 2nd deg felony (1 lower than original offense) NO defense that: - impossible to commit offense (Prof. Klein, from slides) - solicitant is not criminally responsible -solicitant has not been prosecuted/convicted/ is immune from prosecution - actor is in legally incapable class and cannot commit that offense by himself - the felony solicited was never committed |
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MPC 5.02
Solicitation pg. 642 |
1) with purpose of promoting or facilitating crime
2) commands, encourages, or requests another to engage in specific conduct that would be crime/ attempt of crime/ establish complicity (letter doesn't have to reach solicitant) *impossibility not a defense in MPC (Prof Klein, from slides) Affirmative defense: -actor persuaded solicit ant NOT to commit crime or otherwise thwarted commission of crime under a 'complete and voluntary renunciation' |
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Common Law
Solicitation |
misdemeanor
1)intend to commit the act and intend that solicit ant commit the object offense 2) ask/induce/hire/encourage another to commit object offense |
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TPC 15.04
Renunciation Defenses for Attempt, Conspiracy, and Solicitation |
Affirmative defense, if:
actor stopped commission of the offense (either he can do it or take affirmative action to prevent its commission by others). Must be 'complete and voluntary' renunciation. Renunciation NOT voluntary if: - any circumstances exist that increase the actor's probability of detection, or -by a decision to postpone the conduct until a more advantageous time or victim **if made 'substantial effort' to renunciate but couldn't head off the commission of the offense completely, can be a mitigator at sentencing phase of trial (1 grade lower) |
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Common Law
Renunciation Defense for Conspiracy, and Solicitation |
No renunciation for Conspiracy/Solicitation????????????????
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TPC 15.05
No Offense (Double Preparatory offenses) |
No 2 preparatory offenses.
No: attempt to conspire, attempt to solicit, soliciting to form a conspiracy...blah blah blah |
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MPC
Double Preparatory Offenses |
Can absolutely have double incohoate offenses
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Common Law
Double Preparatory Offenses |
???????????????????????????????????
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TPC 19.01
Types of Criminal Homicide and the formula Also, differences between TPC and MPC homicide |
1) I/K/R/N
2) causes the death 3) of an individual (not a fetus if actor is dr/mother) Homicide is murder, capital murder, manslaughter, or criminally negligent homicide Differences between TPC and MPC: TPC has no depraved heart murder explicitly (but this is read in through case law), can murder a fetus and be held liable if not mom/Dr., TPC enumerates capital murder categories, mitigates for “HOP with adequate cause” but not EED –also, MPC judges EED by subj standard, and TX judges HOP’s adequate cause from reasonable person’s standard |
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MPC
Types of Criminal Homicide and formula pg. 444 Also, differences between TPC and MPC homicide |
1) P/K/R/N
2) causes the death 3) of a human being (not a fetus) Criminal homicide is murder, manslaughter, or negligent homicide Differences between TPC and MPC: MPC you can’t murder a fetus, MPC lists specific felonies that count for felony murder and TPC it’s just any felony that’s not MS, Also MPC has mitigation in EED and just have to bring it up by ‘some ev’ |
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Common Law
Rules of Criminal Homicide and formula |
1) V must be born alive
2) either brain dead or heart dead is sufficient to say victim = dead 3) traditionally, the ‘1 year and 1 day’ after the last blow was the Statute of Limitations for homicide charges, but that rule is now outdated - in most jurisdiction now, no SoL for homicide charges, burden just on prosecution to prove last blow → death Common Law traditionally separated murder (with M/A) from Manslaughter (no M/A) - Malice Quartet (1) intent to kill, 2)intent to cause SBI, 3) depraved heart, 4) felony murder) -Manslaughter: 1) voluntary (in heat of passion) or 2)involuntary (R/N) |
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TPC 19.02
Murder |
b1) I/K cause death of individual
b2) intends to cause SBI and commits an act clearly dangerous to human life that causes the death of an individual, or b3) commits or attempts to commit a felony, other than MS, and in the course of + in furtherance of the commission/attempt/escape, he commits an act clearly dangerous to human life that causes the death (^felony murder--TX is probably a proximate cause jurisdiction and language could allow it to go either way) ^1st ° felony d) at punishment phase of trial, Def can raise issue of defense of HOP derived from adequate cause – Def must prove this by POE. → 2nd ° felony “adequate cause” = cause that would produce anger/terror/rage in person of ordinary temper with no cooling off period (obj – like CL) |
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MPC 210.2
Murder pg. 444 |
a) it is committed P or K, or
b) it is committed R under circumstances manifesting extreme indifference to the value of human life. (^depraved heart murder.) *R is presumed if actor is in process of /accomplice in dangerous felony (robbery, rape, arson, burglary, kidnapping, or felonious escape) (^felony murder - MPC is an AGENCY jurisdiction, guilt is personal) ^this is 1st ° felony |
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Common Law
Murder (Malice Quartet) |
1) intent to kill - if in absence of HOP and premeditation, then 1st deg. murder (potentially capital murder)
2)intent to cause SBI - if in absence of HOP and plus premeditation, then 1st deg murder, otherwise 2nd deg. 3) depraved heart - gross recklessness, 2nd deg murder 4) felony murder - (some CL and American cases state this must be an inherently dangerous underlying felony), can imply malice in this case, in some states 2nd deg murder and in some 1st deg. (See other flashcard for specific felony murder) How to show Malice Aforethought?: - intent to kill - intent to inflict SBI - where act involves a ‘wanton and willful disregard of unreasonable human risk which implies malice’ - in process of committing another violent felony |
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Common Law
Felony Murder (Agency/Proximate Cause Rule/Felon as Victim Rule) |
Majority & CL Rule:
Agency Rule - Defendant guilty of F/M ONLY for killings directly caused by him and co-felons and ONLy where the victim is NOT a co-felon (only the malice of a co-felon can be imputed to a felon) Minority Positions: Proximate Cause Rule - Defendant guilty of F/M regardless of whether a co-felon or a 3rd party is the victim (all co-felons are the proximate cause of any death, killing of a felon is not justified but is excusable) Felon-as-victim Rule - defendant guilty of F/M regardless of whether he, a cofelon, or a 3rd party is the direct cause of death but ONLY where the victim is NOT the co-felon. (all co-felons are the proximate cause of any death, killing of a co-felon is justified) |
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TPC 19.03
Capital Murder |
murder + an aggravator:
kills police officer/fireman, I murder in course of enumerated felony, murder for hire, escape/attempt, or murders while in prison, murders multiple people, murders child under 10 yrs old, or murders in retaliation for being a judge Capital Murder in Texas: ➢ After a guilty verdict/plea to TPC 19.03, jury asked 3 questions: 1) Is defendant dangerous? (really they mean continually dangerous) 2) if Defendant didn’t cause the death in F/M situation, did the defendant anticipate the death? 3) Do mitigating circumstances warrant life imprisonment • ^this is where Def could talk about his sad, neglected childhood ➢ If answers to ^ are ‘no’, then defendant gets life without parole |
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MPC
Capital Murder pg. 444 |
There is no capital murder in MPC
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Common Law
Capital Murder |
Traditionally, all murders in malice quartet warranted death.
BY GUILLOTINE. ; ) |
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TPC 19.04
Manslaughter |
1) R
2) causes the death 3) of an individual ^2nd ° felony (conscious risk creation) |
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MPC 210.3
Manslaughter |
a) it is committed R, or
b) the murder is mitigated bc the actor was under EED, for which there is a reasonable excuse. *Reasonableness = “circumstances as D believes” standard, judged in view of Def’s position ~but this standard is fuzzy/no bright lines here ^2nd ° felony |
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Common Law
Manslaughter |
-Voluntary Manslaughter - intent to kill or do serious bodily injuries but in the heat of passion with adequate provocation
-Involuntary - R/N killing, possibly a misdemeanor manslaughter Adequate provocation: 1) adequate provocation in reaction to HOP in a reasonable man 2) D acts as a result of HOP 3) no cooling off period (1-2hrs, no longer?) 4) provocation must come from victim and cause the killing (ex’s of adequate provocation: mutual combat, observe wife’s infidelity, violent crime against relative) Inadequate provocation: 1) words alone 2) civil trespass 3) intoxication (this hurt a def. at CL) 4) Mental disease |
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TPC 19.05
Criminally Negligent Homicide |
1) N
2) causes the death 3) of an individual ^ State jail felony (inattentive risk creation) |
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MPC 210.4
Criminally Negligent Homicide |
a) it is committed N
^3rd ° felony |
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TPC 19.06
Homicide liability when there's a death of an unborn child (and see for CL and MPC on this card also) |
TPC: No homicide liability, if:
1) conduct committed by mother 2) lawful abortion CL: unborn baby ain't a person MPC: unborn baby ain't a person |
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TPC 20.01 Definitions of Kidnapping/Unlawful Restraint/Smuggling people
(No MPC/CL) |
1) Restrain - restrict a person's movement without consent so as to interfere substantially with their liberty through movement/confining.
--> No consent if: force, intimidation, deception, victim is child (see specifics for under 14, or between 14 and 17) 2) Abduct - to restrain a person with intent to prevent liberation by: a) secreting/holding him in way unlikely to be found, or b) using/threatening to use deadly force 3) Relative - a parent/stepparent/ancestor/ sibling/aunt/uncle/ adoptive relative of same degree 4) Person - person....or corporation or association...weird. |
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TPC 21.02
Continuous Sexual Abuse of Children (No MPC/CL) |
1) for a period of 30+ days, commits 2+ acts of sexual abuse not necessarily on same victim, AND
2) at the time of commission, actor >17 and victim <14 ^^1 deg. felony, no less than 25 years Sexual abuse means: - agg. kidnapping +intent to violate V sexually, - indecency with a child + more than touching breast - sexual assault as in 22.011 or agg sexual assault 22.021 - burglary of a habitation + intent to commit a felony therein - sexual performance of child under 43.25, -trafficking of persons under 20A.02 or prostitution under 43.05(a)2 Other procedural restrictions: cannot charge Def with ^^acts of same victim unless occurred outside the period, also some other long ones (see e-f) Affirmative defense if actor: not more than 5 years older than victim, did not use duress/force/threat, or was not a previous offender |
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TPC 21.06
Homosexual Conduct (No MPC/CL) |
actor commits offense if engages in deviate sexual intercourse with another of same sex.
^Class C Mis. **declared unconstitutional by Lawrence v. Texas |
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TPC 21.11
Indecency with a Child (No MPC/CL) |
Child >17 +
1) sexual contact (any touching) (felony of 2nd deg), or 2) with intent to arouse exposes self or child (felony of 3rd deg) Affirmative defense that actor: - not more than 3 years older than victim AND of opposite sex (seriously TX?) - did not use force/threat/duress, AND was not previous offender - was spouse of child |
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TPC 21.12
Improper Relationship between Student and Educator (No MPC/CL) |
when actor is employee of public/private primary or secondary school:
1) any sexual contact/intercourse with student at the actor's school, or 2) holds education license + engages in sexual contact/intercourse with a person the employee knows is a student within same district, or student younger than 17, or online solicitation of minor (33.021) ^^2nd deg felony Affirmative defense, if: -actor is spouse of student -actor not more than 3 years older than student and relationship started before employee became an employee |
