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200 Cards in this Set
- Front
- Back
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What is Murder?
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The causal unlawful killing of another i.e. human being with malice aforethought
specific intent felony |
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First degree murder
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1. An intent to kill with malice homicide PLUS
2. Deliberation: A cool mind that is capable of relfection AND 3. Premeditation: The cool mind did in fact reflect, at least for a short period of time before his act of killing. allows the use of the death penalty or life in prison without the possibility of parole. |
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Degree distinction for murder is....
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important only for death penalty purposes.
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Proof of second degree murder requires:
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An intent to kill with malice homicide and without deliberation and premeditation
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What is voluntary manslaughter?
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The causeal unlawful killing of a human being under a criminal state of mind not amounting to malice, such as heat of passion/extreme emotional disturbance or inadequate provocation.
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The sole distinction between murder and voluntary manslaughter is...
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the absence of malice -- the means rea of murder.
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What is involuntary manslaughter?
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The causal killing of a human being contrary to the intention of the parties during the execution of an unlawful act OR during the reckless or criminally negligent performance of a lawful act.
general intent crime |
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What is mayhem?
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A violently inflicted injury rendering the victim less able to fight or annoy his enemy. Essentially a battery aggravated by the intent to do grievous bodily harm.
general intent misdemeanor |
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What is battery?
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An unlawful application of force to the person of another; an offensive touching of one's body.
general intent crime |
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Elements of battery
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1. A force or touching
2. caused by 3. an intentional or knowing act |
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Aggravated Batteries
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Batteries committed against certain kinds of victims.
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What are the two different forms of assault recognized at common law?
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Form #1 and Form #2
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What are the Form #1 Assault elements?
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1. Threatening conduct
2. with intent to injure or frighten the victim 3. and creates a reasonable apprehension of immediate physical harm. |
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Form #1 Assault
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Reasonable apprehension makes the lack of intent or ability to do a battery unimportant. Focuses on the effect on the victims state of mind.
threatening someone with an unloaded gun still assault because they are frightened. |
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What are the Form #2 Assault elements?
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1. Threatening conduct
2. with intent to injure or frighten victim |
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Form #2 Assault
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Requires "present ability" since ability bears on the intent of the assaulter. Sees the offense as an attempted battery. Minority rule.
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What was a common law rape?
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A forcible intercourse by a man with a female not his wife without her consent.
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Common law anatomy of rape
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1. Actus reus: sexual intercourse with a non-consenting woman.
2. Mens rea: knowledge that the woman was not consenting Mens rea is implied by the mistake of fact defense. |
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Attendant Circumstances of Rape
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1. Marital Status
2. Committed by men against women 3. Coitus i.e. defined in terms of penetration 4. Act between strangers |
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Forcible Sodomy elements =
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Anal intercourse between men.
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What are the common law elements of kidnapping?
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1. forcible asportation
2. carrying away 3. of another 4. to another country |
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What are the modern law elements of rape?
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1. The intentional
2. movement of any sort OR 3. mere detention if done with requisite intent. 4. Movement or detention for the purpose of infliction of bodily harm, obtaining money or property, or the commission of any sexual offense. quasi-specific intent |
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What is false imprisonment?
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The unlawful restraint of liberty
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What are the common law elements of larceny?
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1. The taking: exercise of control either directly or indirectly by using a third party
2. by trespass and: (without consent) 3. carrying away (asportation): some movement however slight 4. of the tangible, personal property 5. of another (the actus reus) 6. with intent to steal |
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Larceny by false pretenses
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Obtaining tangible personal property of another through the owner's willing transfer of the property on the basis of the actor's false statements
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What are the elements of larceny by false pretenses?
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1. A false representation of a material present or past fact
2. which causes the victim 3. to pass title to 4. property to the wrongdoer 5. who: (a) knows the representation to be false and (b) intends thereby to defraud the victim |
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What are the elements of embezzlement?
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1. The fraudulent
2. conversion of (act on property in a manner seriously inconsistent with trust relationship underlying the owner's willing transfer of possession) 3. the tangible personal property of another 4. by one who is already in lawful possession of it 5. By virtue of a trust relationship. |
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What are the elements of forgery?
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1. Actus reus: Material false making or alteration of a writing or document of some legal significance
2. Mens rea: with intent to defraud |
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What are the elements of malicious mischief?
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1. Malicious destruction of the property
2. of another |
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What are the elements of robbery?
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1. All six elements of Larceny, plus
2. that the taking of the property is from the person OR 3. in the presence of the other AND that the taking be accomplished by means of force or the threatened imminent use of force. |
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What is extortion?
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Collection by an official of a fee under color of office without authority
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What are the modern statutory elements of exortion?
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1. Larceny
2. Taking where intimidation is a threat of future harm to the possessor or someone in her company |
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What are the common law elements of burglary?
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The breaking and entering of the dwelling of another (the actus reus), at night with the intent to commit a felony within.
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What is arson at common law?
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The malicious burning/destruction of the dwelling/building/vehicle of another.
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What were attempts at common law?
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Misdemeanors, regardless of the nature of the seriousness of the offense that the person sought to commit.
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law of attempts punish
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It punishes those who manifest a criminal mind by taking a substantial step toward completion.
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What are the generic elements of attempts?
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1.Mens Rea: All are specific intent crimes even when the attempted offense is a general intent crime,
2. two intents: a. the person must intentionally commit and act; AND b. The person must commit the act with the further intention to commit the target offense. 3. Actus Reus: An act beyond mere preparation. |
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What is solicitation?
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Common law: when a person intentionally invites, requests, commands, or encourages another to engage in conduct constituting any felony or serious misdemeanor relating to obstruction of justice or a breach of the peace. Essentially an attempted conspiracy; the moment the person agrees to commit an offense, this act merges into a conspiracy.
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What is the gravamen of solicitation?
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Regardless of whether the inducements prove successful, there is a concern to protect citizens from being exposed to inducements to commit or join in the commission of the crimes specified. Concern based on a recognition of human frailty.
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What is conspiracy at common law?
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A combination by two or more persons to accomplish a criminal or unlawful act, or to do a lawful act by criminal or unlawful means.
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What are the common law elements of conspiracy?
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a. Actus Reus: an agreement between 2 or more persons to act in concert
b. Mens rea: an agreement to do an unlawful act, or to do a lawful act by unlawful means |
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What is the gravamen of conspiracy?
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Protection of society from the dangers of concerted activity, efficiency, planning, and encouragement.
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What does aiding and abetting require?
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It requires that D "in some way associate him or her self with the venture; that he or she participate in it as in something that he wishes to bring about, that he or she seek by his or her action to make it succeed.
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What are the generic elements of common law aiding and abetting?
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a. Actus Reus: an act on the part of D which contributes to the execution of a crime and,
b. Mens rea: the intent to aid in its commission. |
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What are the elements of co-conspirator liability?
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a. Actus Reus: So long as the partnership in crime continues, the partners act for each other in carrying it forward
b. Mens rea: The criminal intent to do the act is established by the formation of the conspiracy |
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What is the Pinkerton Rule?
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Once a party has joined a conspiracy, liability attaches for reasonably forseeable subsequent acts of any partner done in furtherance of the conspiracy
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What is the traditional basis for corporate liability for the acts of another?
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Respondeat superior
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What is respondent superior?
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Common law test that states: A corporation may be held criminally liable for the acts of any of its agents [who] (1) commit a crime (2) within the scope of employment (3) with the intent to benefit the corporation.
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MPC 2.07(1)(c)
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A corporation is criminally liable if the criminal conduct was "authorized , requested, commanded, performed or recklessly tolerated by the board of directors or by a high managerial agent acting in behalf of the corporation within the scope of his office or employment.
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What does strict liability do?
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It dispenses with the requirement of actus reus and imputes the criminal act of one person to another.
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Vicarious Liability
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This imputes the criminal act of one person to another based on the first actor's intentional or negligent involvement with the original actor.
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Accessorial liability
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requires proof of an act signifying an intent to join with the original actor as well as co-conspirator liability, which requires proof of an underlying agreement.
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What are the elements of accessory after the fact?
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a. Actus Reus: some act which aids the commission of the original offense
b. Mens Rea: actual knowledge of a completed crime coupled with knowledge of the commission of felony to bring the crime to the attention of the proper authorities. |
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What are the elements of misprision of a felony?
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a. Actus reus: Omission
b. Mens rea: Misprision of a felony at common law was the bare failure of a person with knowledge of the commission of a felony to bring the crime to the attention of the proper authorities. |
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What is the gravamen of misprision of a felony?
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To aid an alien interfered with a dictorial sovereign.
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Actus reus
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a willed movement i.e. an intentional act. an act of commission.
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What is an act of omission?
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Failure to act
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Actus reus assumption
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an act expresses the evil intent which the actor comes by on his or her own free will.
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Actus reus
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- serves the purpose of defensible line drawing
- the first predicate for assigning criminal liability. - demonstrates criminal intent |
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What is the mens rea?
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- the component of brain activity which involves cognition.
- refers to moral or analytical thought patterns which forms the basis for judgment. |
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Actus reus is..
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- the component of brain activity which involves volition.
- refers to conscious thought which wills a muscle to accomplish an intended end. |
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An unconscious act is..
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an unknowing act, not a willed muscular movement.
- unconsciousness not due to a defect or diseased mind is generally converted to an affirmative defense. |
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Blackout defense
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refers to both unconsciousness and an inability to remember acts performed while conscious and functioning. Under OH law, where this is used to refer to unconsciousness, it negates the voluntariness of an act.
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Lack of volition..
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constitutes a negative defense or non-showing of an element of the offense.
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Automatism
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a defense to a charge of criminal action because the action involved while conscious and purposive, is not voluntary i.e. convulsions and seizures.
- a complete defense. |
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Reflexes
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non-acts because they occur in the absence of cognitive thought and hence are not willed movements.
may serve as an actus reus candidate |
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Convulsions
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non-acts because they occur in the absence of cognitive thought followed by voluntary action and hence are not willed movements.
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Status
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alone does not constitute an actus reus.
BUT an act rendering the offensive status harmful or potentially harmful may constitute an actus reus. i.e. an alcoholic's drunkenness. |
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Act of omission
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- no liability
- strict liability on victims to bear the consequences of their own misfortune. |
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Traditional exception to general rule of non-liability of omissions
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limited situations where due to an existing special relationship, it is appropriate to relieve the victim from the burden of self care.
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What is a voluntary assumption of duty?
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It creates a detrimental reliance on the part of the victim
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Exceptions at law which permit acts of omission to serve as a basis for imposing criminal liability
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occur where the appropriate legal authority in society makes a deliberate and considered public policy judgment to transfer the burden of self-care to another as a form of heightened protection for special interests.
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OH dram act
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provides that a person has a cause of action against a liquor permit holder or his employee for the negligent actions of an intoxicated person result in personal injury, death, or property damages.
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Blackout defense
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proven by a preponderance of the evidence
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Packers Five Variable Model Elements
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Actus Reus, Mens Rea, Causation, Harm, Attendant Circumstances
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Actus Reus
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may be either an act of commission i.e. willed movement, or an act of omission i.e. failure to act when able and required to do so.
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Actus Reus Theoretical Purpose
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serves as a clear line dividing criminal conduct form innocent conduct. expresses evil conduct the criminal law seeks to address.
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Actus Reus Evidentiary Purpose
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provides a way to "look into the mind" and provides concrete physical evidence of a mens rea.
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Acts of Commission
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must be an intentional act
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Unconscious Act
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act which cannot serve as an actus reus for establishing criminal liability.
works as a negative defense, which the prosecution must always overcome to prove the elements of the crime |
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Unconscious Acts
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generally converted to an affirmative defense for situations not inolving mental illness/defect and may require evidence beyond the defendants own testimony
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Felony
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a serious crime punishable by at least one year in a state prison
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Misdemeanor
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lesser crime for which the mazimum penalty is either: (a) incarceration for less than one year, typically in a city or county jail rather than in a state prison; or (b) a fine, or (c) both.
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General Intent Crime
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crime for which it must merely be shown that D desired to commit the act which served as the actus reus.
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Specific Intent Crime
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crime for which D, in addition to desiring to bring about the actus reus, must have desired to do something further.
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Possession
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may constitute a crime when D knows that an item is nearby and may exert control over it.
narcotics would make this a crime |
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Act of Omission counting as an Actus Reus
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Two elements must be present:
1) Actor must have been in an affirmative duty to act AND 2) They must not have been prevented from acting in any way |
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Special situations when duty to act arises
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1) Special Relationship i.e. Parent and Child
2) Voluntary assumption of duty 3) Statutory obligations: duty to act can be imposed by state i.e. dram acts requiring bartenders to stop serving alcohol |
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MPC definition of voluntary acts
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Acts not the result of:
1) A reflex or convulsion 2) An act during unconsciousness or sleep 3) The result of hypnosis or hypnotic suggestion 4) a bodily movement that otherwise is not a product of effort or determination of the actor |
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MPC Act of Omission
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requires a duty imposed by law (not custom)
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Multiplicity
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Multiplicity arises when a single act constitutes several offenses -- or several acts might constitute several offenses.
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Blockburger v. U.S. on offenses
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offenses are separate so long as each contains an element not of the other
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Ultimate Offense
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allows a court to strike prepatory offenses that inticipate the ultimate offense.
i.e. if a briefcase is stolen to get at the contents, only the theft of the contents would be subject to conviction. |
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Multiplicity of Sentencing
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If two statutes proscribe the same offense, the legislature is not thought to intent that the defendant be punished twice.
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Distinction between Criminal Law and Torts
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criminal law is concerned with the subjective mental state of the actor -- the criminal mind, or mens rea.
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Specific Intent Crimes
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subject to harsher punishment.
actor must specifically intend that the particular harm occur to the particular victim in the particular way the harm occured. |
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General Intent Crimes
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warrant criminal penalty but the actor need not actually intend the particular consequences of his act.
mens rea is satisfied by falling below a certain societal minimum, whether of intelligence, competence, or basic/moral societal values. |
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Doctrine of Transferred Intent
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addresses situations under which a defendant intended a particular harm but actually achieves another.
i.e. D intends to kill V1 but he shoots and misses, hitting V2 instead. |
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Majority view regarding transferred intent
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a specific intent can be joined with a general intent act to create a general intent crime.
i.e. if D intents to kill V1 but hits V2 instead, he is liable for the attempted murder of V1 but only battery of V2. |
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Minority View regarding transferred intent
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allows a general intent to "marry above its station" to create a specific intent crime.
i.e. if D only intended mayhem, and V2 died, he would be liable for murder. |
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Intoxication
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specific example of the doctrine of transferred intent.
the law marries the general intent of the negligence/recklessness of the actor in voluntarily lowering their inhibitions, then going into the world, with any acts committed. create a general intent crime. |
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Intoxication defense
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partial defense; it is a defense to a specific intent crime, but not its general intent analogue
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Intoxication under MPC
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not a defense unless it negatives an element of the offense
involuntary or pathological intoxication is a defense if it deprives the actor of his ability to appreciate the criminality (wrongness) of his conduct, or to conform to the requirements of law. |
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Pathological Intoxication
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intoxication grossly excessive in degree, given the amount of the intoxicant, which the actor is not aware that he is susceptible to.
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Mistakes
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one of fact is a defense, one of law is not.
must be honest to constitute a defense to a sepcific intent crime, but it must be both honest and reasonable to defend against a general intent crime. |
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Evaluating mistakes of fact
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First, determine what the level of intent required by the crime is, then consider the circumstances appropriately
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Honest Mistakes
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evaluated by considering the specific and peculiar circumstances of the act and actor, to see if they support his claim of an honest mistake.
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Reasonable Mistakes
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evaluated under a reasonable man standard.
Identify the mistake, compare costs of avoiding the mistake to the costs of the harm discounted by the probability of its occurrence. If the harm costs less than avoiding it, then the mistake is reasonable. |
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Moral Wrong Doctrine
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D may be criminally responsible for harm that he intentionally causes as the result of a reaosnable mistake of fact if his conduct is immoral based on the facts as he knows them. Limited mostly to sex cries and crimes against family interest.
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Rationale for non-liability for omissions
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1) deters would-be victims from taking risks whihc would otherwise jeopardize their own safety
2) in a heterogenous society achieving uniformity as to which moral obligations to enforce by the criminal sanction is unlikely 3) requirements to intervene at the risk of criminal sanction is a derogation of liberty |
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Pleadings regarding Multiplicity
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Prosecutor files a charge sheet describing the offense in as many ways as the legislature has authorized, subject only to the limits of the potential evidence.
If the criminal misconduct is still proscribed by multip;e statutes, the court must ascertain legislative intent to convict for multiple offenses. |
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Legal Wrong Doctrine
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defendant is generally held responsible if he still would have been guilty of a crime under the facts as he believed them.
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Public Welfare Offenses
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represent an exception to the general requirement of a mens rea to constitute a crime
interpreted not to impose strict liability |
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Public Welfare Offenses
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court avoided strict liability by defining the mental state involved in these crimes as requiring the D to know that he is dealing with a dangerous device or substance.
puts D on notice that he may be subject to regulation, and ascertaining such regulations in his responsibility |
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Causation
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serves to link the criminal act(actus) with the harm(reus) the results from it
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"But for" Causation
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looks to those actors "but for" their actions, there would have been no crime. provides a pool of agents to whom we may assign criminal liability
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Rules for "But for" Causation
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Remoteness and accident
Sequential causes Concurrent causes |
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Remoteness and Accident
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If the chain of causation become too extended, a lack of either forseeability or culpability may sever but-for cause.
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Sequential Causes
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Ignore the first act entirely, focus on the second. If there is sufficient 'nexus" between the action and the harm, then the second actor may be considered a but-for causer. (then repeat vice versa)
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Concurrent Causes
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Falling body that is shot. Both are but-for causers; proximate cause analysis will have to sort out assignability
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Proximate/Legal Cause
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a) It is assigned not discovered
b) limits legal liability to situations where the actor had a real hand in the result. c) eye toward deterring the single worst bad actor amount the pool of but-for causers |
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Dependent Intervening Causes
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cause that does not sever criminal liability
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Independent Intervening Causes
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supreseding causes sever liability for the first actor.
must be the result of human actors and must reflect an independent mens rea, usually greater than that of the original actor. |
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Presumption of innocence
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defendants are presumed innocent until proven guilty
serves to minimize the likelihood of convicting innocent persons, by requiring that the prosecution prove all elements of the offense beyond a reasonable doubt. |
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Burdens of Production - Government
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a) gov't must produce evidence to support each element of the crime charged i.e. it must make out a prima facie case
b) requires proof by a preponderance of the evidence, such that conclusion follows more likely than not from the evidence. c) if the gov't does not fulfill its requirement, a directed verdict of dismissal should follow. |
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Burdens of Production - Defendant
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D need only response once the gov't has met its production burden
b) bears the burden of production for any affirmative defenses whihc it cares to raise at trial. c) quantam of evidence required to merit a jury instruction varies from a scintilla to as high as a preponderance |
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Negative Defenses
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rely upon the facts charged and argue from them that an element of the crime is negated
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Affirmative Defenses
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admit the elements but put forward a theory that somehow exculpates the behaviour
once one is raised, the gov't ust rebut it beyond a reasonable doubt |
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Burdens of Persuasion
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normally not born by the defense,
gov't proof beyond a reasonable doubt for all elements of the crime plus "disproof beyond a reasonable doubt: for all affirmative defenses successful |
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Permissive Inferences
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leave the fact finder to decide for himself whether or not to credit the inference.
require a "rational connection" between the presumed and inferred fact; the inferred fact must be more likely than not to flow from the proved fact. |
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Mandatory rebuttable presumptions
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acceptable under the same rational connection rule so long as they onyl transfer a burden of production onto the defendant.
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Four Circumstances of Malice Aforethought
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1. Intent to kill
2. Intent cause serious bodily harm 3. An extremely reckless disregard for human life 4. An intent to commit another felony (felony-murder rule) |
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Felony-Murder Rule
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application of the doctrine of transferred intent which allows the intent to commit another felony to be married to the causal killing to create murder by composite.
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Deliberation Requirement for First Degree Murder
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implies a need for a passage of time between the formation of the intent and the commission of the crime.
must be longer than mere seconds |
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Second Degree Murder
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still an intent-to-kill murder but the mind does not reflect before carrying out. time requirement is paramount.
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Voluntary Manslaughter
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essentially murder but-for some circumstance that acts to remove the element of the malice.
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Sudden Heat of Passion
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4 elements:
- must have been reasonable provocation - D must have been in fact provoked - reasonable man in that situation would not have cooled off in the period btw provocation and the act. - D must not have actually cooled off in that time |
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Inadequate Provocation
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provocation not sufficient to justify a killin g but serious enough to have a bearing on the offense.
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Self Defense
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1) require that there exist an imminent threat of deadly force, homicide, rape, forcible sodomy, arson, kidnapping, or robbery.
2) perception must be reasonable 3) no avenue of retreat available 4) person can't be the original aggressor |
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Defense of Others
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one could defend a close relative and one could act to defend any other from a dangerous forcible felony
2) act at your own peril 3) will be liable for acting against the wrong person |
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Defense of Habitation
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privileged to use deadly force against an intruder if it reasonable to believe that they will commit a felony or inflict bodily harm.
non deadly force used against trespassors |
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Defense of Property
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1) deadly force is never justified
2) non-deadly force may be used if the inference is presently occurring and in the presence of the property owner |
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Law Enforcement
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deadly force may only be used to arrest or prevent escape if:
1) the escaper iss a violent felon 2) appears the felon will escape 3) felon presents a threat of death or serious bodily harm to others. |
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Insanity Defense
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If D can show he was insane at the time he committed the criminal act, he may be entitled to a verdict of guilty by reason of insanity
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Insanity Defense punishment
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Involuntary commitment to mental institution
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M' Naghten Rule
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D must show that:
1) he suffered from a mental disease causing a defect in his reasoning powers; AND 2) as a result either: a. he did not understand the "nature and quality" of his act; OR b. he did not know that his act was wrong. |
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Irresistible impulse test
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D is unable to control his conduct
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Insanity Defense
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An affirmative defense
D is required to come forward with evidence showing that he is insane - only then does D's sanity enter the case. |
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Insanity Burden of Persuasion
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After D bears his burden of production by showing some evidence of insanity,
Prosecution bears proof beyond a reasonable doubt that D is not insane. D must prove his insanity by a preponderance of the evidence. |
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Diminished Responsibility
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Non-insane D argues that he is unable to formulate the requisite intent required for criminal acts.
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Justification/Excuses
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Duress, Necessity, Self Defense, Defense of Others, Defense of Property, Law enforcement, Consent, and Entrapment.
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Modern view of Mistake
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so long as D genuinely believe that the facts are such that the defense is merited, the efense will stand.
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Duress Defense
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threat of or use of force by a third person sufficiently strong that D's will was overborne. Term applies to D's mind, not his body.
accepted as a defense to a charge of felony-murder |
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Elements for Duress
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1. threat: by a third person
2. fear: reasonable fear in D 3. imminent Danger: will suffer immediate or imminent 4. bodily harm: death or serious bodily injury |
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Necessity Defense
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may be raised when D has been compelled to commit a criminal act, choosing the lesser of two evils.
i.e. D need to get ill wife to hospital, speeds |
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Necessity Defense Requirements
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1. greater harm: Harm sought to be avoided is greater than the harm committed.
2. no alternative that would avoid harm and be a less criminal or legal 3. the harm must be imminent, not future 4. situation was not brought by D's careless or reckless behavior. |
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Withdrawal by aggressor
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if the agressor withdraws from the conflict, the victim loses his right to use force, at least where the withdrawal should indicate danger is over.
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Battered woman
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where a woman kills her spouse to prevent ongoing battering from him.
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Imperfect Self defense
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where d kills his attacker in self defense
sufficient to reduce D's crime from murder to voluntary manslaughter |
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Involuntary manslaughter
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1) causal killing of another
2) contrary to the intention of the parties either 3a) during the execution of an unlawful act (misdemeanor-manslaughter rule OR 3b) during reckless or criminally negligent execution of a lawful act. |
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Negligence
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not merely a failure to to exercise reasonable care but rather a gross deviation from the standard of ordinary care.
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Mayhem
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general intent misdemeanor
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Mistake of fact
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constitute partial defenses which may allow instruction on lesser included offenses.
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Force
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not an element per se of rape but serves an evidentiary function providing evidence of lack of consent.
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Marital Rape
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proved when parties are separated or their is actual physical violence.
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Larceny Issue outline #1
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What is the governing law?
- identify whether we are working under the statutory law, and if under the statutory law, determine how varied it is from the common law. |
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Larceny Issue outline #2a
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What was taken?
- Tangible personal property? the res of larceny - Real property? -- cannot be the subject of common law larceny. |
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Larceny Issue outline #2b
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What was taken?
- Intangible personal property? -- If the property is not diminished in value it is only used, not taken. - Intangible rights? usually not larceny. |
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Larceny Issue outline #3a
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How was it taken?
a. by force, limited to the force needed to take the property: may be common law larceny, wrongful appropriation, or malicious mischief. b. by force against the person: Robbery, extortion, and black mail. |
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Larceny Issue outline #3b - How was it taken?
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c. by deception: false pretenses, trick, or false promise
d. unlawful retention: embezzlement or breaking bale. e. Substitutes for money: forgery or larceny by deceit. |
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Breaking Bail
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taking property temporarily entrusted to you.
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Larceny Issue outline #4a
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What is the evidence of intent?
If the intent is simultaneous with the taking, it may be larceny. If the intent to keep is formed after the taking, it is conversion. If the intent to take is only temporary, the crime is wrongful appropriation. |
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Larceny Issue outline #4b - Successor possession
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If the defendant cannot be shown to be the initial taker, the crime must be receipt of stolen goods.
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Larceny Issue outline #4c - Deprivation without acquisition
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gives rise to malicious mischief
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Larceny Issue outline #5 - When was the intent formed?
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If clear proof cannot be offered of an intent to steal at the time of the taking, then prosecution must proceed on a conversion theory.
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Larceny Issue outline #5 - When was the intent formed?
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If the defendant knows of the transferors mistake and takes the goods with the intention of keeping them, then the crime is larceny. If he only learns of the mistake later and then keeps the goods, it is conversion.
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Larceny Issue outline #5 - When was the intent formed ?
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Mutual mistake only occurs if neither party knows of the exchange. Apply lost and found rule. Intent formed upon realizing the mistake may constitute larceny.
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Lost and Found Rule
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if the finder has some reasonable basis of knowledge of the item's true ownership, and decides to keep it, he is guilty of larceny.
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Larceny Issue outline #6 - From whom was the property taken?
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At common law, must be "of another
No larceny from spouses, partners in partnerships, within an organization - accessories in those situations can be charged |
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Larceny Issue outline #7 - What property was moved
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Common law larceny requires asportation. Looking for something sufficient to show an action inconsistent with the property rights of the true owner.
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Larceny Issue outline #8 - What was the value of the property taken?
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Line here determines felony and misdemeanor larceny
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Robbery
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dual gravamen offense directed against both persons and property.
there must be some force beyond merely that required to take the item. if not, it is only larceny from the person. |
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Burglary
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it is essentially an attempted felony. if the felony is completed, then there is no need to prosecute separately for burglary, and if the felony is not completed, then it may be prosecuted under the law of attempts.
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Entering
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may be merely partial or by an instrument and still constitute an enter. There must be a causal relationship between the breaking and entering
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Dwelling of Another
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so relaxed as to now include cars
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Intent to Commit a Felony
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must be formed prior to or simultaneously with the breaking
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Attempt
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requires specific intent to commit a criminal act, and some overt act in furtherance of that intent that goes beyond mere preparation.
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Trouble with Attempts
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deciding where to draw the line. in looking for the actus reus of the attempt, there are two views, subjective and objective
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Subjective
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view of attempt that focuses on the mens rea, and looks for some act that displays that intent. criticism is that many innocent acts may be seems as evidence of mens rea.
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Objective
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focuses on the potential danger, and the liberty interest. this view suggests waiting until there is some apprehension of harm.
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Attempts
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guard against conviction of persons whose mens rea cannot be proven beyond a reasonable doubt.
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Last Proximate Act
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attempt occurs when the actor has done all the is necessary to complete the offense
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Physical Proximity
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attempt occurs when the actor with mens rea has the ability to complete the crime immediately.
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Dangerous Proximity
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Look to see whether the actor is within the dangerous proximity of completing the act.
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Indispensable Element
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actor must have control over all of the elements necessary for his crime
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Probable Resistance
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Draws the line at the point of no return.
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Res Ipsa Loquitor Test
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finds an attempt when the actions unequivocally demonstrate criminality.
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Prosecution Algorithm
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Identify a target offense suggested by the Actor or the circumstances under which he acts.
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Defense Algorithm
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can there be a positive spin put on the actors lack of success? renunciation
discuss whether this represents a dissipation or thwarting of mens rea. |
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Defenses - Renunciation
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Requires a complete and voluntary renouncing of criminal purpose - not sufficient for the actor to leave it with intent to come back later.
does not help accomplices |
