Bar Prep - Criminal Law

Front 1

Essential Elements of a Crime

Back 1

1. Actus Reus

2. Mens Rea

3. Causation

4. Concurrence

Front 2

Jurisdiction

Back 2

A crime may be prosecuted in any state where (1) an act that was part of the crime took place or (2) the result took place.

Front 3

Burden of Proof*

Back 3

The prosecution must prove each element of the crime beyond a reasonable doubt. *N.Y. DISTINCTION: The prosecution must disprove defenses beyond a reasonable doubt; defendant must prove affirmative defenses by a preponderance of the evidence.

Front 4

Felony

Back 4

A crime that is punishable by death or imprisonment for more than one year.

Front 5

Misdemeanor

Back 5

A crime punishable by a fine and/or imprisonment for no more than one year.

Front 6

Commissions

Back 6

All bodily movements are physical acts that can be the basis for criminal liability, provided they are voluntary. Involuntary movements that are not considered criminal acts include (1) those that are not the product of the actor's volition, (2) sleepwalking or otherwise unconscious conduct, and (3) reflexes or convulsions.

Front 7

Omissions

Back 7

A failure to act can be the basis for criminal liability, provided there is (1) a legal duty to act (which may be created by statute, contract, status relationship, voluntary assumption of care, or creation of peril), (2) knowledge of the facts giving rise to the duty, and (3) the ability to help.

Front 8

Common Law Mental States

Back 8

Specific Intent: when the crime requires the desire to do the act and to achieve a specific result.

Malice: when a defendant acts intentionally or with reckless disregard of an obvious or known risk.

General Intent: when a defendant is generally aware of the factors constituting the crime; he need not intend a specific result.

Strict Liability: when the crime requires simply doing the act; no mental state required.

Front 9

New York/MPC Mental States

Back 9

Intent (MPC - Purpose): when it is defendant's conscious desire to achieve a particular result.

Knowledge: when defendant is aware of what he is doing and is practically certain his conduct will cause a particular result.

Recklessness: when defendant is aware of a substantial and unjustifiable risk and consciously disregards that risk.

Negligence: when defendant should have been aware of a substantial and unjustifiable risk.

Strict Liability: no mental state required.

Front 10

Actual ("But For") Causation

Back 10

A defendant is an actual cause if the bad result would not have happened but for defendant's conduct. An accelerating cause is an actual cause.

Front 11

Proximate Causation

Back 11

A defendant is a proximate cause if the bad result is a natural and probable consequence of defendant's conduct. (One takes one's victim as one finds him.) A defendant will not be considered a proximate cause if an unforeseeable intervening event causes the bad result.

Front 12

Concurrence

Back 12

Defendant must have the required mental state at the same time that he engages in the culpable act.

Front 13

Common Law Battery

Back 13

The unlawful application of force to another, resulting in either bodily injury or an offensive touching. Mental state is general intent.

Front 14

Common Law Assault

Back 14

Attempted battery or the intentional creation, other than by mere words, of a reasonable apprehension in the mind of the victim of imminent bodily harm. Mental state is specific intent.

Front 15

Assault in New York

Back 15

First Degree Assault: second degree assault plus a weapon.

Second Degree Assault: intentionally causing physical injury to another.

Third Degree Assault: intentionally causing non serious physical injury to another.

Front 16

Menacing in New York

Back 16

Creating a reasonable apprehension in the mind of the victim of imminent bodily harm without an intent to injure.

Front 17

Year-and-a-Day Rule*

Back 17

At common law, death must occur within one year and one day of a homicidal act. *N.Y. DISTINCTION: Death may occur at any time.

Front 18

Common Law Murder

Back 18

Causing the death of another person with malice aforethought, which may be satisfied by the intent to kill, the intent to inflict serious bodily harm, extreme recklessness (reckless indifference to human life), or the intentional commission of an inherently dangerous felony (felony murder).

Front 19

Deadly Weapon Rule

Back 19

The intentional use of a deadly weapon (any instrument used in a manner likely to produce death or serious bodily injury) creates an inference of an intent to kill.

Front 20

Transferred Intent

Back 20

If a defendant intends to harm one victim, but accidentally harms a different victim, defendant's intent will transfer from the intended victim to the actual victim. (Transferred intent most frequently applies to murder but also applies to other crimes.) Transferred intent does not apply to attempts.

Front 21

Common Law Felony Murder*

Back 21

Any killing caused during the independent commission of or attempt to commit an inherently dangerous felony. The death must be foreseeable. The victim cannot be a co-felon. *N.Y. DISTINCTION: Felony murder is limited to burglary, robbery, arson, kidnapping, escape, and sexual assault.

Front 22

Res Gestae Principles

Back 22

For felony murder, the kidding must take place during the felony or during immediate flight from the felony. Once the felon reaches a place of temporary safety, the felony ends.

Front 23

Vicarious Liability for Felony Murder

Back 23

Proximate Cause Theory: in New York, if one of the co-felons proximately causes the victim's death, all of the other co-felons are guilty of felony murder, even if the actual killing is committed by a third party.

Agency Theory: the felony murder doctrine applies only if the killing is committed by one of the co-felons.

Front 24

New York Non-Slayer Defense

Back 24

A limited affirmative defense to felony murder if the defendant can prove (1) he did not kill the victim, (2) he did not have a deadly weapon, (3) he had no reason to believe that his co-felons had deadly weapons, and (4) he had no reason to believe that his co-felons intended to do anything that was likely to result in death.

Front 25

Majority Approach to First Degree Murder

Back 25

Any intentional killing committed with premeditation and deliberation.

Front 26

Majority Approach to Second Degree Murder

Back 26

All other intentional murders, as well as depraved heart murder and, where it still exists as a separate category of homicide, intent-to-inflict-serious-bodily-harm murder.

Front 27

First Degree Murder in New York

Back 27

Where a defendant, 18 or older, has the intent to kill and at least one of the following aggravating factors is present: (1) the victim is a law enforcement officer engaged in official duties at the time of the killing, (2) defendant committed a murder for hire, (3) felony murder where the victim was intentionally killed, (4) killing for the purpose of witness intimidation, or (5) there was more than one victim killed in the same criminal transaction.

Front 28

Second Degree Murder in New York

Back 28

1. An intentional killing that does not qualify for first degree.

2. Highly reckless killing demonstrating depraved indifference to human life by engaging in conduct that creates a grave risk of death, generally to more than one victim.

3. Felony murder where the victim is not a co-felon and is killed unintentionally.

Front 29

Common Law Voluntary Manslaughter

Back 29

A killing committed intentionally in the heat of passion upon adequate provocation. The provocation must be objectively adequate (arouses a sudden and intense passion in the mind of a reasonable person). Defendant must be actually provoked, must not have time to cool off, and must not have actually cooled off between the provocation and the killing.

Front 30

Extreme Emotional Disturbance Manslaughter in New York

Back 30

An intentional killing committed under the influence of a reasonable and extreme emotional disturbance. Extreme emotional disturbance is an affirmative defense to second degree murder, which requires defendant to prove it by a preponderance of the evidence.

Front 31

Common Law Involuntary Manslaughter

Back 31

1. A killing committed during the commission of a crime to which the felony murder doctrine does not apply.

2. An intentional killing committed with criminal negligence at common law or with recklessness under the MPC.

Front 32

First Degree Manslaughter in New York

Back 32

1. Extreme emotional disturbance manslaughter.

2. An intent to cause serious physical injury.

Front 33

Second Degree Manslaughter in New York

Back 33

Defendant is aware of and consciously disregards a substantial and unjustifiable risk of death. Mental state is recklessness.

Front 34

First Degree Vehicular Manslaughter in New York

Back 34

Second degree vehicular manslaughter plus an additional aggravating factor, such as a blood-alcohol level of 0.18 or higher or the death of more than one victim.

Front 35

Second Degree Manslaughter in New York

Back 35

Causing the death of another person as a result of driving while intoxicated.

Front 36

Criminally Negligent Homicide in New York

Back 36

Defendant should have been aware of a substantial and unjustifiable risk of death. Mental state is criminal negligence.

Front 37

Aggravated Homicide in New York

Back 37

When the victim of the homicide is a police officer killed in the line of duty.

Front 38

Aggravated Murder in New York

Back 38

When defendant, over the age of 18, causes the death of a child under 14 in an especially cruel and wanton manner.

Front 39

Common Law Aggravated Vehicular Homicide

Back 39

When defendant commits first degree vehicular manslaughter and engages in reckless driving.

Front 40

Common Law False Imprisonment

Back 40

The unlawful confinement of a person without his or her consent. Mental state is general intent.

Front 41

First Degree Unlawful Imprisonment in New York

Back 41

Second degree unlawful imprisonment plus a risk of serious physical injury.

Front 42

Second Degree Unlawful Imprisonment

Back 42

Unlawfully restraining someone without their consent and with knowledge that the restriction is unlawful.

Front 43

Common Law Kidnapping

Back 43

False imprisonment that involves either moving the victim or concealing the victim in a secret place.

Front 44

First Degree Kidnapping in New York

Back 44

Second degree kidnapping plus one of the following factors: (1) ransom, (2) restraint of the victim for more than 12 hours with intent to rape, injure, or rob the victim, or (3) death of the victim.

Front 45

Second Degree Kidnapping in New York

Back 45

Abducting someone.

Front 46

Common Law Forcible Rape

Back 46

Sexual intercourse without the victim's consent accomplished (1) by force, (2) by threat of force, or (3) when the victim is unconscious. Mental state is general intent.

Front 47

Common Law Statutory Rape*

Back 47

Sexual intercourse with someone under the age of consent. Mental state is strict liability. (Under the MPC/minority rule, a reasonable mistake of age is a defense.) *N.Y. DISTINCTION: The age of consent is 17; defendant must be at least 21 and the victim 16 or under.

Front 48

Common Law Larceny

Back 48

The trespassory taking and carrying away (asportation) of personal property of another (with legal custody) with the intent to permanently retain the property.

Front 49

Erroneous Takings Rule

Back 49

A taking under a claim of right is never larceny, even if defendant erroneously believes the property is his.

Front 50

"Continuing" Trespass

Back 50

If a defendant wrongfully takes property, but without the intent to steal, he will not be guilty of larceny. But, if a defendant wrongfully takes property without the intent to steal and later forms that intent, the initial wrongful taking is considered to have "continued" and he will be guilty of larceny. Exception to the concurrence principle!

Front 51

Common Law Embezzlement

Back 51

Conversion of the personal property of another by a person already in lawful possession of that property with the intent to defraud.

Front 52

Common Law False Pretenses

Back 52

Obtaining title to the personal property of another by an intentional false statement with the intent to defraud.

Front 53

Common Law Larceny by Trick

Back 53

If defendant obtains only custody (not title) as a result of an intentional false statement, the crime is larceny by trick, not false pretenses.

Front 54

Common Law Robbery

Back 54

A larceny from someone else's person or presence by force (sufficient to overcome resistance) or threat of immediate injury with the intent to steal.

Front 55

Common Law Forgery

Back 55

Making or altering a writing so that it is false with the intent to defraud.

Front 56

Larceny in New York

Back 56

Any crime that would be larceny, embezzlement, false pretenses, or larceny by trick at common law.

First Degree: more than $1,000,000.

Second Degree: more than $50,000.

Third Degree: more than $3,000.

Fourth Degree: more than $1,000.

Petit Larceny: $1,000 or less.

Front 57

First Degree Robbery in New York

Back 57

Forcible stealing plus one of the following factors: (1) the victim is seriously injured or (2) defendant uses or displays what is, or appears to be, a firearm. If defendant can prove that the gun was unloaded, there lies an affirmative defense and the crime is reduced to second degree robbery.

Front 58

Second Degree Robbery in New York

Back 58

Forcible stealing plus one of the following factors: (1) defendant is aided by another who is actually present, (2) defendant or his accomplice injured the victim, or (3) a car is stolen.

Front 59

Third Degree Robbery in New York

Back 59

Forcible stealing. Force may be established by the threatened use of immediate physical force upon another.

Front 60

Common Law Burglary

Back 60

Breaking and entering the dwelling of another at night with the intent to commit a felony therein.

Front 61

First Degree Burglary in New York

Back 61

Defendant knows that he is burglarizing a dwelling plus one of the following factors: (1) a non-participant is injured or (2) defendant carries a weapon.

Front 62

Second Degree Burglary in New York

Back 62

Third degree burglary plus one of the following factors: (1) the building is a dwelling, (2) a non-participant is injured, or (3) defendant carries a weapon.

Front 63

Third Degree Burglary in New York

Back 63

Entering or remaining in a building unlawfully with the intent to commit any crime therein.

Front 64

Common Law Arson

Back 64

The malicious burning (requires material wasting) of a building. Mental state is malice.

Front 65

Arson in New York

Back 65

First Degree: second degree arson plus an explosive or incendiary device.

Second Degree: third degree arson when defendant knows or should have known that someone was inside the building.

Third Degree: intentional burning of a building.

Fourth Degree: reckless burning of a building.

Front 66

Common Law Possession of Contraband

Back 66

When a statute criminalizes the possession of contraband, "possession" refers to control for a period of time long enough to have an opportunity to terminate possession. A defendant may have constructive possession if the contraband is close enough for him to exercise dominion and control over it. Mental state is knowledge (of possession and of the item possessed).

Front 67

Criminal Possession of a Firearm in New York

Back 67

Knowingly possessing any firearm.

Front 68

Criminal Possession of a Weapon in New York

Back 68

Knowingly possessing a loaded firearm either (1) outside one's home or place of business or (2) with the intent to use it unlawfully against another.

Front 69

Common Law Receipt of Stolen Property

Back 69

Receiving possession and control of stolen personal property. Mental state is knowing that the property has been obtained criminally by another party and the intent to permanently deprive the owner of his interest in the property.

Front 70

Criminal Possession of Stolen Property in New York

Back 70

The property must really be stolen at the time defendant receives it. Property recovered by police and being used in an undercover operation is not considered "stolen."

Front 71

Principal

Back 71

A person who commits a crime.

Front 72

Accomplice

Back 72

A person who helps (by aiding or encouraging) a principal commit a crime with the intent that the crime be committed. If the principal's crime requires a mental state of recklessness or criminal negligence, an accomplice is liable for intentional conduct that aids the principal and manifests the required recklessness or negligence.

Front 73

Accomplice Liability*

Back 73

An accomplice is liable for all crimes that he aids or encourages and all other foreseeable crimes committed along with the aided crime. Mere presence at the scene of the crime or mere knowledge of the crime does not make someone an accomplice. *N.Y. DISTINCTION: Mere knowledge can make someone guilty of the lesser crime of criminal facilitation.

Front 74

Withdrawal*

Back 74

An accomplice can avoid criminal liability by withdrawing before the crime is committed. An accomplice who encouraged the principal may withdraw by repudiating the encouragement before the crime is committed. An accomplice who aided the principal must either neutralize the assistance or otherwise prevent the crime from happening. *N.Y. DISTINCTION: The accomplice must make a substantial effort to prevent the commission of the crime. Renunciation is an affirmative defense.

Front 75

Accessory After the Fact*

Back 75

A defendant must help a principal who has committed a felony with knowledge that the crime has been committed and with the intent to help the principal avoid arrest or conviction. *N.Y. DISTINCTION: An accessory after the fact commits the statutory crime of "hindering prosecution."

Front 76

Enterprise Liability

Back 76

When a corporate agent engages in criminal conduct, both the corporation and the agent may be held criminally liable, provided the agent is acting on behalf of the corporation and within the scope of his office. When a corporation commits a regulatory offense involving public health or safety, its agents can also be held criminally liable, provided the agents stand in "responsible relation to the situation" that created a public danger.

Front 77

Common Law Solicitation

Back 77

Asking someone to commit a crime with the intent that the crime be committed. Completion of the crime is unnecessary.

Front 78

Common Law Conspiracy

Back 78

An agreement (or "concert of action") between 2 or more people to commit a crime plus an overt step in furtherance of the crime. Completion of the crime is unnecessary. Mental state requires intent to enter into an agreement and to accomplish the objectives of the conspiracy. Impossibility is not a defense to conspiracy.

Front 79

One-Person Conspiracy*

Back 79

Under the bilateral approach, there must be at least 2 guilty minds. It follows that if all other parties to the agreement are acquitted, the last remaining defendant cannot be convicted. *N.Y. DISTINCTION: Under the unilateral approach, a defendant may be guilty of conspiracy even if the other parties are acquitted or were just pretending to agree.

Front 80

Wharton Rule for Conspiracies

Back 80

Followed in New York, it provides that when 2 or more people are necessary for the commission of the substantive offense, there is no conspiracy unless more parties participate in the agreement than are necessary for the crime.

Front 81

Vicarious ("Pinkerton") Liability for Conspiracies*

Back 81

In addition to conspiracy, a defendant will be liable for other crimes committed by his co-conspirators, provided those crimes were committed in furtherance of the conspiracy's objective and were foreseeable. *N.Y. DISTINCTION: No vicarious liability for one who merely conspires and does not participate in a crime committed by a co-conspirator.

Front 82

Attempt*

Back 82

Requires an overt act beyond mere preparation. Under the majority/MPC approach, defendant must engage in conduct that constitutes a substantial step towards the commission of the crime, provided that conduct strongly corroborates the actor's criminal purpose. Mental state is the specific intent to commit the underlying crime. (There can be no attempt for unintentional crimes.) *N.Y. DISTINCTION: Defendant must engage in conduct that gets dangerously close to the commission of the crime.

Front 83

Withdrawal, Abandonment, and Renunciation for Inchoate Offenses*

Back 83

Withdrawal is not a defense for solicitors, co-conspirators, or attempters but once a defendant withdraws from a conspiracy, he will no longer be vicariously liable for crimes committed by his co-conspirators after he left the conspiracy. *N.Y. DISTINCTION: Withdrawal is an affirmative defense to solicitation and conspiracy if (1) defendant completely and voluntarily renounces and (2) prevents the commission of the underlying crime. Abandonment is an affirmative defense to attempt if defendant (1) completely and voluntarily renounces and (2) does not commit the underlying crime.

Front 84

Merger Rules for Inchoate Offenses*

Back 84

Solicitation and attempt merge with the completed crime. Conspiracy does not merge with the completed crime. *N.Y. DISTINCTION: Solicitation does not merge with the completed crime.

Front 85

M'Naghten Test for Insanity Defense

Back 85

Defendant must prove that he either did not know that his conduct was wrong or that he did not understand the nature of his conduct.

Front 86

MPC Test for Insanity Defense

Back 86

Defendant must establish that he lacked the substantial capacity to either appreciate the criminality of his conduct or conform his conduct to the requirements of the law.

Front 87

Insanity Defense in New York

Back 87

Defendant must prove that he lacked substantial capacity to know or appreciate either the nature and consequences of his conduct or that his conduct was wrong. Defendant must notify the prosecutor of his intention to raise the insanity defense within 30 days of entering a "not guilty" plea.

Front 88

Incompetency

Back 88

The issue of whether, at the time of trial, defendant can understand the nature of the proceedings against him or assist his lawyer in the preparation of his defense. If either of the preceding is established, the trial is postponed until defendant regains competency.

Front 89

Common Law Voluntary Intoxication Defense

Back 89

Can be a defense to specific intent crimes only. In general, requires such severe "prostration of the faculties" that defendant cannot form the requisite specific intent.

Front 90

Voluntary Intoxication Defense in New York

Back 90

Can be a defense to intent and knowledge crimes, if the intoxication prevents defendant from forming the required state of mind. Cannot be a defense to crimes of recklessness, negligence, or strict liability.

Front 91

Common Law Infancy Defense

Back 91

If, at the time of the crime, defendant is less than 7, prosecution is not allowed. If, at the time of crime, defendant is less than 14, there is a rebuttable presumption against prosecution. If, at the time of crime, defendant is 14 or older, prosecution is allowed.

Front 92

Infancy Defense in New York

Back 92

If defendant is under 13, prosecution as an adult is not allowed; juvenile delinquency proceedings in family court. If defendant is 13, prosecution as an adult is allowed for second degree murder. If defendant is 14 or 15, prosecution as an adult is allowed for serious crimes against persons or property. If defendant is 16 or older, prosecution as an adult is allowed for any crime.

Front 93

Mistake of Fact

Back 93

Whether a mistake of fact will be a defense depends on the mental state for the crime and whether the mistake is reasonable. If the mental state is specific intent, any mistake is a defense. If the mental state is malice or general intent, a reasonable mistake is a defense. If the mental state is strict liability, mistake is not a defense.

Front 94

Mistake of Fact in New York

Back 94

Mistake of fact is a defense if the mistake negates the required mental state. (For crimes of intent, knowledge, or recklessness, any mistake is a defense. For crimes of negligence, a reasonable mistake is a defense. For strict liability crimes, mistake of fact is never a defense.)

Front 95

Mistake of Law

Back 95

In general, mistake of law is not a defense, unless the statute makes knowledge of the law an element of the crime.

Front 96

Self-Defense

Back 96

A defendant may use non-deadly force in self-defense if he reasonably believes such force is necessary to protect against an immediate use of unlawful force against him. A defendant may use deadly force in self-defense if he reasonably believes he is facing an imminent threat of death or serious bodily harm.

Front 97

Initial Aggressor Rule*

Back 97

A defendant may not use deadly force if he is the initial aggressor. An initial aggressor can regain his right to use deadly force in self-defense if (1) he withdraws from the fight and communicates that withdrawal to the other person or (2) the victim suddenly escalates a non-deadly fight into a deadly one. *N.Y. DISTINCTION: The initial aggressor must withdraw before using deadly force, even if the other party suddenly escalates a non-deadly fight into a deadly one.

Front 98

Retreat Rule*

Back 98

Requires a defendant to retreat before using deadly force in self-defense. The majority rule does not require retreat. *N.Y. DISTINCTION: Retreat is required unless (1) defendant cannot retreat in complete safety or (2) defendant is in his home.

Front 99

Self-Defense and Mistake

Back 99

A reasonable mistake about the need to use unlawful force in self-defense is a complete defense. An unreasonable mistake is no defense. (Accordingly to the minority/MPC rule, an unreasonable mistake mitigates but does not exonerate.)

Front 100

Use of Force to Prevent a Crime

Back 100

Non-deadly force may be used, if reasonably necessary, to prevent any serious breach of the peace. Deadly force may only be used to prevent a felony risking human life.

Front 101

Defense of Others

Back 101

A defendant may use force, even deadly force, to protect others just the same as he could use it to defend himself.

Front 102

Defense of Property

Back 102

In general, deadly force may not be sued to defend property. An occupant may use deadly force inside her home when (1) an intruder has gained entry in a violent manner and (2) the occupant reasonably believes that the use of deadly force is necessary to prevent a personal attack on herself or someone else in the home.

Front 103

Resisting Arrest*

Back 103

If defendant knows or reasonably should know that the person performing the arrest is a police officer, defendant may use non-deadly force to resist if the arrest is unlawful. *N.Y. DISTINCTION: Force may not be used to resist an arrest, even if unlawful, unless the arresting officer uses excessive force.

Front 104

Use of Deadly Force by Law Enforcement

Back 104

An officer may use deadly force when doing so is reasonably under the circumstances.

Front 105

Necessity/Choice of Evils (N.Y. - Justification)

Back 105

Conduct that is otherwise criminal is justifiable if defendant reasonably believes that the conduct was necessary to prevent a greater harm. The defense is unavailable if (1) defendant causes the death of another person to protect property or (2) defendant is at fault in creating a situation that creates a choice of evils.

Front 106

Duress*

Back 106

If defendant was coerced to commit a crime because of a threat, from another person, of imminent death or serious bodily injury to himself or a close family member, his conduct is excused. Duress cannot be a defense to homicide. (*N.Y. DISTINCTION: Duress is an affirmative defense to all crimes, including homicide.)

Front 107

Entrapment*

Back 107

If defendant believes that the government unfairly tempted him to commit a crime, he may claim entrapment. To prevail, defendant must prove that (1) the criminal design originated with the government and (2) defendant was not predisposed to commit the crime. *N.Y. DISTINCTION: Entrapment is an affirmative defense and the prosecution may introduce evidence of defendant's past criminal acts in its direct case, if defendant pleads entrapment.