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104 Cards in this Set
- Front
- Back
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A crime involves:
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1- A voluntary physical act (actus reus) prohibited by the penal law
• Not sleep walking, a seizure, or reflex action AND 2- A guilty mind (mens rea) |
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When multiple crimes arise out of the same conduct, then in order to determine whether concurrent or consecutive jail sentences can be imposed for each crime, the court looks at
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Whether the actus reus elements of each crime are the same or a material element of the other crime.
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ON a check made payable to the city collector, D altered the check to read Intercity Contractor’s Inc. D then endorsed the check to his own company (crime of forgery) and when he attempted to cash the check at the bank, he was caught and D was convicted of forgery and attempted grand larceny. Can the judge impose consecutive sentences?
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Yes
The test is not whether the criminal intent is one in the same that inspired the entire criminal transaction, but instead, the test is whether separate criminal acts had been committed with the required mens rea. These two crimes were successive criminal acts requiring separate actus reus and upon D’s conviction, the court could impose consecutive sentences. |
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Four exceptions to the no-duty rule:
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1-Where a statute imposes a duty to act.
E.g. failure to obtain a license, to file a tax return, or refusing to testify under a grant of immunity. 2-Where the D’s wrongful or innocent conduct caused the danger. 3-Where a special dependent relationship exists. • For example, a parent has a legal duty to aid, feed, protect, and give medical attention to a child. • A spouse owes a similar legal duty to the other spouse. • A mother who lives her boyfriend alone with children knowing he sexually abuses them is herself criminally liable. 4-Where a duty arises from a contract. A lifeguard. A doctor. A babysitter. A guide on an expedition. Such a K impliedly creates a duty to protect those for whom the duty has been undertaken. |
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- A person is subjected to criminal culpability as an accomplice where
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She owed a legal duty to act to oppose, to prevent, or lessen the harm caused by the conduct of another criminal and her inactivity was coupled with a CRIM K culpable state of mind (recklessly, negligently, or intentionally).
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What is criminal reckless conduct?
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D perceives a substantial and unjustifiable risk, but consciously disregards the risk and D’s conduct amounts to a gross deviation from the behavior expected from a reasonable person.
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What is Intentionally?
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This exists when the D desires to bring about a result or D is aware that his conduct is substantially certain to bring it about.
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What is general/specific intent?
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General intent crimes do not require the people to prove any further specific intent by the D but only to prove a desire by the D to commit the prohibited act.
Specific intent crimes require both a prohibited act plus proof of an intent to cause some additional specified results or further consequences. MPC has abolished the distinction between specific and general intent but they test on it in this area |
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Defense of mistake for a general intent crime:
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The defense of mistake of fact for a general intent crime must be an objective reasonable mistake (RPP would’ve made the same mistake) but with a specific intent crime, D’s mistake can be objectively unreasonable provided the jury believes the D’s subjective, honest, belief of the mistaken facts
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What is Maliciousness?
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Exists when the D acts intentionally or recklessly but it does not refer to negligent conduct.
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What is Willful conduct?
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D knew she was breaking the law when she acted. General knowledge that D’s conduct was illegal is all that is required.
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Four categories of criminal actors:
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1-Principal of 1st degree
• The perpetrator who actually commits the crime. 2- Aidor or Abettor aka Principal in the 2nd degree • The acting in concert theory • An aidor or abettor is as guilty as the Principal in 1st degree. 3. Accessory before the fact Not present when the crime takes place but who intentionally assisted in or otherwise aided and abetted another to engage in the crime. But the accessory must have the same CRIM K mens rea that the crime come about. 4. Accessory after the fact |
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How can an accomplice be convicted?
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Under FRE, an accomplice can be convicted solely on the uncorroborated testimony of the other accomplice.
In NY, accomplice testimony is viewed with suspicion, especially where the circumstances suggest that the accomplice’s testimony was motivated to gain favor with the prosecutor in order to receive more lenient treatment. A NY D cannot be convicted solely on accomplice testimony that is unsupported by other corroborative evidence tending to connect the D with the crime. |
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What is required to be convicted as an accessory after the fact?
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Knows or believes that another has committed or is being sought for a crime and that accessory intentionally assists that person to avoid detention, detection, or capture.
The CRIM K for this accessory crime is that the D must have acted with a specific intent to prevent, impede, or delay discovery of evidence or the apprehension of the criminal. This conduct is referred to as the statutory crime of hindering prosecution (NY) or obstructing justice (a federal crime). In NY, the underlying crime committed by the person being assisted must be a felony. |
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A person is guilty of criminal solicitation when
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with a specific intent that another commit a crime, he solicits, encourages, incites, requests, commands or otherwise attempts to cause another person to engage in criminal conduct.
Criminal solicitation is the offer to enter an illegal contract. If the offer is accepted then the crime of conspiracy arises. In NY, a D can be found guilty of both solicitation and conspiracy because solicitation occurs as soon as the solicitor utters the words with the specific intent that the crime be committed. |
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How many degrees of solicitation in NY?
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In NY, there are 5 degrees of solicitation, where the 5th degree where the crime solicited is a misdemeanor and the age of the person solicited is under 16
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When does criminal facilitation arise?
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This crime arises when a D knowingly renders aid (some conduct) that provided the means or an opportunity for another person to commit a felony, but the facilitator does not
1- Have the CRIM K mens rea to commit that crime (which is required to convict an accomplice. 2- Participate in the crime or share in its profits. The crime of facilitation only arises for felonies and only if the felony is committed |
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What is compounding of a crime?
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- This crime is committed in MBE, only by the person accepting the compensation (V).
- In NY, it also includes the person paying the compensation ( C). |
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What is conspiracy?
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Conspiracy is an agreement (the actus reus) on the essential objectives of a crime, which a specific intent that the unlawful objective be achieved.
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What is required to prove conspiracy?
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At common law, no additional “overt act” was required, however today most states statutes (NY) and most criminal statutes (except federal drug conspiracies) require some overt act in furtherance of the crime. That is, at least one of the co-conspirators take some step to accomplish the illegal goal.
If the particular statute does not expressly require an overt act, then the Supreme Court has held none is required. |
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What is a co-conspirator liable for?
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An MBE co-conspirator is liable for all the reasonably forseeable crimes committed by other co-conspirators in furtherance of the conspiracy.
However, in NY, a conspirator is not liable for the substantive crimes unless that co-conspirator actively participated in that crime so as to be an accomplice of that crime. That is, either as an accessory before the fact or an aidor or abettor. |
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Is providing goods enough for conspiracy?
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Providing goods or services knowing they will be used for illegal purposes does not give rise to conspiracy unless the provider did so with the intent that the crime come about.
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Unilateral conspiracy doctrine:
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By statute a majority of states including NY and the MPC have adopted the unilateral conspiracy doctrine permitting a D of being convicted of conspiracy which is defined as an agreement of the D (but not an agreement with two or more people).
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Wharton rule:
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Where a crime requires 2 people to cooperate for its commission then there cannot be a conspiracy unless an additional person is involved who is not essential to the commission of that crime. If 3 or more people agree to commit such a crime, they will all be charged with conspiracy.
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When is a NY D guilty of attempt?
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A NY D is not guilty of the crime of attempt until she is “dangerously near” or “on the verge” of accomplishing the intended crime. Thus mere discussion, preparation, or even an overt act which would be sufficient for conspiracy is not sufficient for the crime of attempt.
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When is MBE D guilty of attempt?
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Federal law, MPC, and a majority of states broadly define the crime of attempt in terms of the D taking a “substantial step” toward the commission of the crime which strongly corroborates the D’s criminal purpose. This standard shifts the emphasis from what little remains to be done (the NY approach) to what steps the D has already taken.
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When is a person guilty of endangering the welfare of a child?
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Where a D (not necessarily a parent) knowingly acts in a manner that was likely to injure the physical, mental, or moral welfare of a minor (in NY a child under age 17).
For this crime, there is no requirement that the D direct his conduct at the child. There is no requirement that a child suffer actual harm. |
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Affirmative defense to child endangerment:
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In NY, it is an affirmative defense to this crime, when a parent fails or refuses to obtain medical care for the child, if she belongs to an organized religion, in which a tenet of that religion is to treat illness with prayer and the parent caused the child to be treated with prayer.
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When is infancy a complete defense?
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In NY, and at common law, infancy is a complete defense for an infant who has not reached his 8th birthday.
The Jd is entitled to the right to counsel, the right to confrontation, and fourth amendment search and seizure protection. A Jd is not constitutionally entitled to a jury trial in the family court. |
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What is required to prove an arson?
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- Total destruction of the dwelling by fire is not required but it must involve more damage than simply blackening by smoke. Charring or burning is required.
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NY degrees of arson:
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The NY degrees of arson are based on the possibility of the presence of people in the structure at the time of the arson.
Arson 1st, 2nd, and 3rd degree in NY in intentionally setting a fire with an intent to damage a structure. Arson 5th degree is to intentionally damage personal property of another by intentionally starting a fire or causing an explosion. This crime used to be called criminal mischief and this crime is only a misdemeanor thus there can be no felony murder. Arson 4th degree is to intentionally start a fire or explosion that recklessly damages a building or a motor vehicle by fire or an explosion. Arson 3rd degree is intentionally starting a fire with a specific intent to damage a structure. Arson 2nd degree contains the element of Arson 3rd and limited to the use of fire (not explosives) plus someone who is not a participant is present in the structure or the automobile and D knew or should’ve known that fact (no one is injured). Arson 1st incorporates the elements of arson 2nd degree and : Someone is seriously injured, or There was a pecuniary motive for setting the fire, or An explosive or incendiary device was used (Molotov cocktail). |
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What is homicide?
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Homicide is unlawfully causing the death of another living human being.
In NY, it is also causing the death of the unborn child where the mother has been pregnant for more than 20 weeks. In NY death is determined when the person’s heartbeat and breathing irreversibly ceases to function. The state must prove that D’s conduct was an actual contributing cause of death but it does not have to be the sole cause. |
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What must the gross recklessness murder indicate?
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That the D had a depraved indifference to the value of human life. This is referred to as depraved mind murder, depraved heart murder, but NY calls it DIM (Depraved Indifference Murder).
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MBE murder vs NY Manslaughter
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In MBE, the D’s intent to cause serious bodily harm (creating a substantial risk of death) resulting in death is an MBE murder but in NY is treated as a voluntary manslaughter (manslaughter 1st degree).
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MBE 1st degree murder:
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Felony murder
Intentional murder |
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MBE 2nd degree murder:
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Gross negligence murder
Serious bodily harm that results in a death |
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NY intentional murder is based on:
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1- The type of murder, or
• An intentional killing during the felony • Torture murder • A contract murder • A terrorism murder • Multiple murders at the same time as part of the same transaction 2- The type of victim that the D knew or should’ve known • The victim was killed because she was a judge • An on duty peace officer (parole, corrections, court officer, police officer) • A witness to a crime or a family member who is killed to prevent or punish trial testimony 3- The type of D who is an adult who: • Escaped while serving a sentence of 15 years or more. • Previously was convicted of murder. • Was convicted of a serial killing (two or more murders in a similar fashion within a 2 year period). If the D is convicted of murder 1st degree in NY, then he can be sentenced by a unanimous jury for life in prison without parole |
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What is felony murder?
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A murder committed during:
B – Burglary R – Robbery A – Arson K – Kidnapping E – Escape from police custody after arrest R – Rape S – Sodomy or aggravated sexual abuse in the 1st degree But not: L – Larceny A – Assault B – Battery |
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Who must commit the murder in a felony murder?
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NY - felony murder occurs eventhough one of the felons did not commit the act that caused the unintended death
MBE - under the “agency doctrine,” one of the felons must have caused the accidental killing. |
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D and X enter Y’s store to retrieved what D believed was his $200 deposit that Y was wrongfully withholding (D had no intent to commit a felony). As D was taking the money from Y’s cash drawer, D’s friend X who had come along in case there was trouble, unexpectedly pulled out a gun and killed Y when Y started to resist D’s actions. D would not be guilty of FM for 2 reasons
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1) D was a CUB and 2) D’s good faith claim of right aka claim of title negated the element of intent for any possible underlying felony.
But in NY this defense is only available for the crime of larceny (TIP) or embezzlement where no force or threat of force is used. In NY, this defense is not available for the crime of robbery or larceny by extortion. |
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What is not a predicate felony?
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o Larceny
o Assault o Battery |
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In many jurisdictions, NY, it is an affirmative defense to felony murder, if the felon had established he was:
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C- He did not COMMIT, COMMAND, or REQUEST the homicide.
U- He was UNARMED. B- D had no reason to BELIEVE another co-conspirator was armed or intended to engage in conduct likely to result in death. Imposing the death penalty on a CUB defendant is cruel and inhuman punishment in violation of the 8th amend. |
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When dealing with sentences what must the jury determine beyond a reasonable doubt?
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Any fact besides a prior conviction that may increase the punishment beyond the maximum that is prescribed beyond the statute for that offense or whether current or consecutive sentences
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What is required for intentional murder?
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MBE: It involves a pre-meditated pre-conceived intent to kill.
NY does not require premeditation and deliberation and it simply defines as an intentional killing of another. |
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D shot at X intending to Kill X but missed and killed Y. What is d guilty of?
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D is guilty of Y’s murder under the doctrine of transferred intent. Here D intended to kill a human being and he did (Y). The mens rea and actus reus are present for intentional murder. D is no less criminally culpable than a murderer whose aim is good thus D should be punished to the same extent. D’s intent follows the bullet. D would also be guilty of the attempted murder of X but the court would have to impose concurrent sentences on D.
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D threw a beer bottle intending to break X’s store window (criminal mischief) but the bottle missed the window and hit Y. What is D guilty of?
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Here, the transferred intent doctrine cannot be used because D’s intent to commit one type of crime cannot be transferred to a different type of crime (criminal battery).
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Depraved Indifferent Murder:
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D’s conduct creates such a GRAVE risk of death as to render it almost a certainty and D was aware and was fully conscious of that grave risk but consciously disregarded that risk and in doing so evidenced an utter disregard for the value of human life.
NY Court of Appeals has held that DIM are rare. For example, where a D seriously injures his victim but does not intend to kill her but he abandons the helpless victim under circumstances where death is highly likely. |
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In NY if the victim does not die from D’s DIM conduct but only suffers from serious physical injury:
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Then D is guilty in NY of a criminal assault (battery) in the 1st degree.
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Serious Bodily Injury:
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At common law it was also murder if the D intended to cause serious bodily injury but ended up killing the victim.
In NY, this is called voluntary manslaughter. |
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Voluntary Manslaughter:
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NY calls 1st degree manslaughter, occurs when D intended to commit murder but D’s intent arose under circumstances of extreme emotional disturbance or in the heat of passion (anger, jealousy, or grief).
Manslaughter 1st degree in NY is also an intent to commit serious bodily injury resulting in death. |
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Involuntary Manslaughter:
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(NY Manslaughter 2nd Degree)
Where D was aware of a condition that presented a substantial risk of death (not the “grave” risk of death required for DIM. But despite this knowledge, D proceeded to act in a reckless manner causing another’s death. |
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Criminally Negligent Homicide:
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D fails to perceive a substantial risk of death amounting to a gross deviation from the conduct expected from an RPP.
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When a homicide occurs, look to see if D intended his killing. If it was an intentional killing it is murder unless
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HIS:
H-It was committed in the HEAT OF PASSION (HOP) or under EXTREME EMOTIONAL DISTURBANCE (EED) I-INSANITY or INFANCY of the killer (under the age of 8 or in NY under the age of 13). S-SELF-DEFENSE or defense of others which if established is a complete defense. If excessive justifiable force was used in the HOP then it would be manslaughter. |
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Robbery:
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Robbery is larceny by force or intimidation posing a danger to the victim.
It requires a criminal assault or a criminal battery plus a simultaneous larceny from the victim’s person or in his presence. Must also intend to permanently deprive victim of the property. |
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NY 3 degree of robbery:
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Robbery 3rd degree is larceny coupled with a threatened use of immediate physical force on a person. If it was not immediate and it was future threatened force, then it would be larceny by extortion.
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NY 2nd degree of robbery:
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Robbery 2nd degree is robbery 3rd degree plus
• The property taken was a motor vehicle, or • The D was aided by an accomplice who was present (an aidor and abettor, or • The D displayed what appeared to be a firearm by sight, touch, or sound |
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NY 1st degree of robbery:
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Robbery 1st degree involves the predicate of forceable stealing from the person of another with DAMS aggravated circumstances during the course of or in immediate flight of the robbery.
D- DISPLAYED to the victim what appeared to be a firearm with the intent of forcibly taking the property A- D was ARMED with a dangerous weapon capable of causing death or serious injury AND he displayed it. A deadly weapon is a knife, but not a BB gun M- The D MENACED the victim by using, not just displaying, or threatening to immediately use the displayed dangerous instrument readily capable of causing serious physical injury or death. S-Where the D or an accomplice causes SERIOUS PHYSICAL INJURY to a non-participant during the robbery or in the immediate flight from the crime scene. |
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NY 2 degrees of kidnapping:
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2nd degree kidnapping is when the D abducts another
1st degree is where: • The restraint exceeds 12 hours, or • The victim dies unintentionally during the abduction or before he returns to safety, or • The intent of the kidnapping was to force a 3rd party to pay money or to force a 3rd party to act or to refrain from acting. Criminal false imprisonment is a lesser included offense of kidnapping. |
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Criminal assault:
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Which NY calls menacing, is similar to the tort of assault.
- It arises when the D has a present immediate ability to do so and: - Attempts a battery, or - Intends to cause apprehension of immediate injury or death. - It requires: - A specific intent to scare the victim, and - Resulting fear or apprehension of a battery, and - An overt act by displaying a weapon to arouse reasonable apprehension of immediate bodily harm. - It could also include shaking a fist in the victim’s face or swinging a bat close to the victim’s body. |
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NY calls a battery a criminal assault and requires proof of:
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o An impairment of the victim’s physical condition, or
o Substantial pain which has to be more than slight or trivial pain, but does not have to be severe or intense pain. o Here, the jury should consider: • The type of injury, and • The victim’s description of the pain, and • The D’s motive for inflicting the pain. |
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A person is guilty of receiving stolen property (the flammable liquid stolen from the farmer) because the D:
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Knew it was stolen when he received it, and
Intended to permanently deprive that property from the owner, and The property was in fact stolen. |
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Larceny:
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Larceny is wrongfully taking another’s personal property with a specific intent to:
1- Permanently deprive its owner of that property, or. 2- Deny the owner possession for an unreasonable length of time, or 3- Use it in a manner depriving the owner of its value. |
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What does CL Larceny require:
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T- Wrongful TAKING of the property which requires an asportation (movement), but the slightest movement of that property is sufficient.
• It’s where the property is not delivered to the D by the owner. I- Specific INTENT to deprive the owner of that property. P- PERSONAL PROPERTY of another. |
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Larceny by False Pretenses (NY calls it Larceny by False Promises):
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Is where both possession and title are willingly transferred by the owner to the D, induced by the D’s deceitful statement and there must be reliance on the false statement, by the victim.
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- In MBE and NY, to successfully assert larceny by false promises based on a breached promise (in a K) in which the D obtained money in exchange for D’s promise to perform future services, deliver goods, or to repay the money loaned, the DA must:
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Prove to a “moral certainty” that the D who breached that K never had the present intent to deliver, perform, or repay under the K terms.
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Larceny by Embezzlement:
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Arises if the property was lawfully delivered to the D or the D rightfully took possession of the property (no fraudulent inducement) but thereafter the D fraudulently converted that property.
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Larceny by Extortion:
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(Blackmail) arises when a D obtains money or property from the victim, delivered with the V’s consent, but where the consent was induced by instilling fear in the victim that unless the delivery occurred, the D would:
o Cause personal injury in the future. o Cause immediate property damage. o Cause a labor strike. o Wrongfully accuse the victim of a crime. o Corruptly use D’s position as a public official. o Threaten to expose a secret whether true or false that would subject the victim into contempt, hatred, or ridicule. |
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NY 5 degrees of larceny:
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o 5th Degree Petty larceny-$1000 or less and no proof of value is required.
o 4th Degree Grand Larceny-Where the value exceeds $1000. o 3rd Degree Grand Larceny-value exceeds $3000. o 2nd Grand Larceny-value exceeds $50,000. o 1st Degree Grand Larceny-value exceeds $1,000,000. |
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Where replacement value or market value is not sufficiently established by the DA, then:
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Only a petty larceny conviction can be imposed by the court.
In NY, a series of petty larcenies can become grand larceny if the D’s intent involved an on-going scheme to defraud 10 or more people (e.g. a consumer fraud) or bilking numerous investors through a fraudulent tax shelter and money was collected from at least 1 victim, is grand larceny. |
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In NY, regardless of value, stolen property is automatically 4th degree Grand Larceny if the property is:
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o Credit Cards
o An Access Device (ATM card) o Public Documents o Firearms o Motor vehicles o Religious Scrolls or objects o Any property stolen from the person of another o Any property obtained by extortion |
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CL Burglary:
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Requires an unauthorized (un-consented) breaking and entering at night into another’s dwelling with a specific intent to commit a felony therein.
“Breaking” (which NY does not require) involves exerting some force to remove a barrier in order to enter the dwelling |
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One night, D went to C’s house to collect money C owed to D. D opened C’s unlocked front door (a breaking) and D entered. When D did not find C at home, D became angry and took C’s valuable painting on the front lawn and set it on fire. Is D guilty of: Burglary? Arson? Larceny?
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o Burglary?
• No. Eventhough D broke and entered C’s dwelling at night time, he had no specific intent to commit a crime therein. o Arson? • No. Because in MBE, the burning of chattel is not arson but it is 5th degree arson in NY. o Larceny? • Yes. Because D’s intent was to permanently deprive C of the chattel and there was a wrongful TIP taking. |
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NY 3 degrees of Burglary:
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3rd Degree Burglary-unlawfully entering or remaining in a building with the intent to commit any crime therein.
2nd Degree Burglary-a dwelling with no aggravating circumstances or the structure entered into is a building with DAMP aggravated circumstances (see robbery 1st and 2nd degree in NY). 1st Degree Burglary-unlawful entering or remaining with an intent to commit any crime theirein and DA. • D-the structure is a dwelling used for overnight lodging (it is burglary 2nd degree(if there are no aggravating circumstances) AND • There exists DAMP AGGRAVATING CIRCUMSTANCES. IN NY, if the D can affirmatively establish by a preponderance of the evidence, that the gun she displayed in the dwelling was unloaded or inoperable, then it will only be burglary in the 2nd degree and not 1st degree. |
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Rape:
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Rape is non-consensual sexual penetration based on the D’s force of threats of force (coercion).
The rape of a male by another male is called sodomy but in NY is called a “criminal sexual act.” |
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When is a rape victim's prior consistent statement allowed?
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This PCS is allowed for purposes of corroborating that a rape occurred and to dispel the jury’s misconception of the victim’s rape claim when she did not promptly go to the police.
The prompt outcry but not the details (who did it) is admissible provided: 1-The victim will take the stand and testify and be subject to cross-examination, and 2-The outcry was made at the first suitable opportunity. • For example, the infant’s report to her mother the next morning was admissible but not if it was made week’s later. If this outcry was made while the victim was still under the influence of the horrible humiliating event, then the entire statement is admissible including the identify of the rapist and regardless of whether the victim will testify because it would fall under the hearsay exception of excited utterance. |
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Criminal Law Defenses:
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E – Entrapment
V – Vague criminal statute A – Bill of Attainder D – Duress E – Ex post facto criminal law S – Statute of limitations N – Necessity I – Inoperable or unloaded gun (in NY, for burglary and robbery) C – Claim of title or claim of right E – Excessively broad penal statute W –Withdrawal from the crime (a.k.a renunciation) A – Alibi S – Self-defense/justification (ordinary defense in NY, affirmative defense in MBE) P – Heat of Passion M – Legal or factual Mistake I – Insanity, infancy or intoxication C – CUB status as a defense to felony murder E – Extreme emotional disturbance |
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5 types of Larceny:
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F – False pretenses
L – Common law Larceny (TIP) E – Embezzlement E – Extortion T – Larceny by Trick |
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Burglary in the 1st degree:
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D – The structure is a Dwelling used for overnight lodging
A - There exist Aggravated circumstances (DAMS) |
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Ordinary NY defenses:
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J – Justification
A – Alibi R – Claim of Right |
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2 elements of Entrapment:
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1-The government’s conduct in inducing and encouraging the D to act criminally.
• This is an objective standard involving substantial persistent persuasion by the government. 2-The D was not predisposed to commit that crime when first contacted by the government. |
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A D forced to commit a crime out of fear must show:
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1- He did not intentionally or recklessly place himself in a position in which it was probable that he would be forced to choose criminal conduct, AND
• For example, a co-conspirator who gets cold feet and wants to back out of the crime but is then forced to participate. 2- He had no reasonable alternative but to break the law. |
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When can duress not be used?
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Duress is an available defense to all crimes except in MBE it cannot be raised for criminal murder or its intent but duress is a defense to other FIGSMAN homicides.
In NY, it can be raised as an affirmative defense even to an intentional murder. |
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Retroactive criminal laws are prohibited by a:
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P – The law made Past conduct a crime, which, at the time it occurred, was not a crime
I – The law Increased the punishment for a past crime E – The law altered the rules of Evidence after the crime was committed by requiring less evidence for a conviction D – The law eliminated Defenses that were available on the date the crime was committed. |
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Mistake of fact:
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A mistake of fact is a criminal defense if that mistake negates the CRIM K mens rea required to commit the crime.
If however, the D would be guilty of another crime based on D’s mistake of fact, then D can be convicted of that crime. Mistaken identity is no defense to an intentional murder. Mistake of fact is not a defense when D mistakenly thought he was committing a less serious type of crime. Mistake of fact is a defense to attempt to commit a strict liability crime if the mistake negates the element of intent necessary for the crime attempted. In NY, where the D is charged with statutory rape of a mentally defective or physically helpless person, it is a defense that the D was not aware of the victim’s incapacity. |
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Bad legal advice:
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Bad legal advice given by a lawyer does not constitute a defense unless that advice negated D’s mental state required by the law to commit that crime.
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The fact that D was not aware of the penal statute or that D was ignorant that his conduct was prohibited by the penal law, and he mistakenly believed his conduct was lawful is not a defense except:
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1- D relied on a judicial opinion of the law which was later overruled.
2-D relied on an erroneous opinion given by an agency responsible for interpreting that law. 3-When the law is so vague (unclear) that it caused the D to make a good faith mistake in its interpretation. 4-Where the D thought her activity was illegal but her conduct did not violate any provision of the penal law. This “legal impossibility” defense arises under circumstances where if the D did anything he intended to do (he successfully carried out his evil intent but he did not violate any provision in the penal law) if the D, what he set out to do was not illegal, then the D’s evil intent cannot make it a crime or attempted crime. |
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Insanity defense:
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The insanity defense is a defense to specific intent, general intent, and even strict liability crimes.
D waives the doctor-patient privilege and the 5th amendment right against self-incrimination and he must answer the questions posed by the people’s psychiatrist but these answers cannot be used against D on the issue of D’s guilt. |
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What's required to establish an insanity defense?
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Both NY and Fed: D must prove that the D was laboring under such a defect of reasoning (a disease of the mind), that D lacked the total capacity (a total impairment) or in NY (lacked the substantial capacity) to know and to appreciate:
1- The nature and quality of what he was doing, or 2- That his acts were morally wrong. |
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At a criminal trial, D can use evidence of his mental disease for two reasons:
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1- To negate the mens rea of the crime charged or
2- To establish the D of insanity. |
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EED and HOP defenses can be raised:
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Only for intentional murder.
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For HOP the D's conduct must be:
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NY IS NOT A HOP jurisdiction.
An immediate response to some extreme provocation that prevented the D from reflecting on his conduct and that under similar circumstances, a reasonable person also would’ve suffered an irresistible urge to kill. |
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EED requires proof of:
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1- D’s violent loss of self-control (a subjective test)
2- An objective reasonable excuse (the provocation) for losing self-control. • That is, it would’ve caused a reasonable person to lose self-control under the circumstances as the D thought them to be. |
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When is EED available?
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In NY, EED is available only to a charge of intentional murder or attempted murder but not to DIM or any other crime.
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Intoxication defenses:
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Intoxication can be a defense to felony murder provided the D’s intoxication negated the intent of the underlying felon.
In most jurisdictions, voluntary intoxications for a homicide will not reduce murder to manslaughter, but it may convert an intentional murder into a DIM murder |
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What is withdrawal?
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Withdrawal is an affirmative defense that the D involuntarily abandoned the crime prior to its commission.
D’s withdrawal must reflect a complete change of heart by the D. NY also requires that a withdrawing co-D make a substantial effort to prevent the crime to be committed by the other accomplices e.g. notify the police or the intended victim |
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Withdrawal from anticipatory crimes:
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In MBE, the defense of renunciation is not available for the anticipatory crimes of conspiracy (once an overt act has occurred), attempt (once a substantial step has been taken), solicitation, or facilitation. But renunciation is an effective defense to any subsequent crimes committed by the other accomplices after the D’s withdrawal.
NY allows renunciation from anticipatory crimes. To effectively renounce the crime of solicitation, attempt, or conspiracy (SAC), D must actually “thwart” the crime from being committed by his accomplices. |
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Alibi defense:
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An ordinary JAR defense which must be disproved by the people beyond a reasonable doubt.
The people must prove beyond a reasonable doubt both that D committed the crime at the crime scene (mens rea and actus rea) and that D was not somewhere else when the crime occurred. Most states including NY mandate that D provide timely notice of the alibi or else D waives the right to call alibi witnesses. But it doesn't prevent D from giving alibi testimony himself. |
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Justification defense:
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The justification defense which is an ordinary defense in NY, but an affirmative defense in MBE, is properly raised where D is unlawfully attacked and then herself charged with a crime of violence.
D’s conduct will be measured by whether a reasonable person would have used a similar amount of force under similar circumstances, and the harm the D intended to prevent. |
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Deadly force is justified:
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1- If D’s MBE home is threatened or has been unlawfully invaded eventhough his physical well-being is not in jeopardy. The defense of habitation is broader than the right to kill in self-defense than out on the sidewalk. NY limits this right to where the victim was using or was about to use deadly force.
2- To prevent the commission of a serious felony even one that is not life threatening. 3- To prevent the imminent unlawful use of deadly force upon D or a 3rd person. |
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There is no duty to retreat before using deadly force if:
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1- D was inside his dwelling (but not on the lawn or in the doorway or in an apartment stairwell or lobby) and D was not the initial aggressor, or
2- Where D was a police officer, or 3- D reasonably believed, even incorrectly, that deadly force was necessary to prevent or terminate a murder or BRAKERS crime. 4-The D is threatened with a firearm since a safe escape is not an alternative when faced with a gun. |
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A criminal D asserting self-defense may introduce the victim’s prior:
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RAT (violent REPUTATION, violent ACTS, or THREATS of violence) against D provided that D was AWARE of the RAT.
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For justification purposes, it is relevant and admissible in MBE and NY to show the D’s
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1- Fear of harm that motivated his violent defensive conduct.
2- Reasonable belief that the victim was going to do something violent. 3- The use of force was reasonable under the circumstances. |
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When the criminal D opens the door with evidence of the victim’s RAT, then the prosecutor can respond with evidence of:
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1- The victim’s reputation in the community for peacefulness and non-violence, AND
2- The same RAT character traits of the criminal D. |
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An initial aggressor may assert the defense of justification when:
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1- A non-deadly aggressor was met with deadly force and was unable to retreat.
2- He withdrew expressly or impliedly indicating that the assault and battery was over and the other party continued thus becoming the aggressor. |
