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99 Cards in this Set
- Front
- Back
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Retributive
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Criminals deserve punishment; focus on consequences
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Utilitarian
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Punishment serves a useful purpose; focus on prevention
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Mixed/limiting retribution
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Criminals deserve punishment, utilitarianism should decide type and amount
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Goals of Punishment (Du)
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1. Protect society
2. Punish D 3. Encourage D to lead a law abiding life 4. Deter others 5. Isolate D so no more crimes 6. Secure restitution for V 7. Seek uniformity in sentencing |
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Humiliating Punishments
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A punishment can cause humiliation, but humiliation cannot be the purpose of the punishment (Gementera)
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The Legality Principle
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A person can only be convicted & punished for conduct that is criminal, and there must be notice. (Keeler)
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Notice in statutes
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Statutes cannot be vague or overly broad (Banks, Morales)
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Rule of Lenity
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If there is a grievous ambiguity, default to D.
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Statutory Interpretation Tools
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1. Purpose of statute
2. Other statutes with similar words 3. Definitions 4. Word use in lit, press, bible 5. Previous/historical word use 6. Legislative history 7. Common sense reading |
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Belgian Tripel
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SRM: 4.5-7
IBU: 20-40 ABV:7.5-9.5 |
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Involuntariness due to alcohol/drugs
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Acts done under the influence are not involuntary if the decision to drink/do drugs was voluntary (Utter)
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Legal duty to act when:
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1. Statute imposes duty
2. Status relationship 3. Contractual duty 4. Voluntarily assumes care and secludes helpless person 5. Creates risk of harm (act followed by omission) |
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Moral duty
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Not sufficient, must be legal duty (Beardsley)
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Duty to act and omission
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If no duty to act, omission can't be criminalized (Barber); Courts are hesitant to impose omission liability (Wong)
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Mens Rea (MPC)
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1. Purpose
2. Knowledge 3. Recklessness 4. Negligence All above stated one suffice. |
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Willful blindness
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High probability of criminal conduct + deliberately avoids confirming suspicions (Heredia)
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Willful blindness mens rea
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Covered under knowledge (MPC & Heredia) or recklessness (Nations)
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Statutory construction and mens rea
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Mens rea applies to all elements that come after the stated mens rea (Flores-Figueroa)
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Strict Liability
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No mens rea required
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Strict Liability MPC
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No strict liability unless its called a violation, not a crime; no state has adopted this
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Theory of "Constitutional Innocence"
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If you take away the "strict" element, the remaining part is still illegal (i.e. Quarrel and Staples); doesn't always work (i.e. Garnett)
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General Intent Statute
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Requires intent to do the act, but not necessarily intent for the result
MENTAL STATE RE: ACT |
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Specific Intent Statute
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Requires intent for the act and the result
MENTAL STATE RE: ACT & RESULT |
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Perkins Rule
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Mistake is only a defense if it is reasonable
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Specific Intent and Mistake
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Mistake is a defense if it is honest and negates a required mental element of the crime
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Entrapment by estoppel
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Official interpretation that then gets changed; mistake defense allowed
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But for cause
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But for D's conduct, V's result wouldn't have occurred when it did
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Apparent-Safety Doctrine
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If after D's actions, V gets to safety, but then leaves safety and is harmed, D was not a proximate cause of harm
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Informed Independent Will Doctrine
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V makes independent decision to do the act that leads to the harm
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Responsive Intervening Cause
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Occurs in clear, direct response to D's actions; D is responsible unless occurrence was unnatural and unforeseeable
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Coincidental Intervening Cause
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D's conduct puts V in wrong place at wrong time; D is not responsible unless it is foreseeable
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Medical Intervening Causes
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Doctor's negligence is not an intervening cause unless gross negligence
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1st degree Murder
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Willful, premeditated, deliberate
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2nd degree Murder
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Purposeful (can be manslaughter)
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Depraved Indifference Murder
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D acts with a conscious disregard for the danger to human life; disregard for risk of serious bodily injury is not sufficient
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Depraved Indifference Mens Rea
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D must consciously disregard risk, failure to think of risk is not enough
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Heat of Passion
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1. Must be adequate provocation (objective)
2. Killing must occur during passion 3. Must be sudden HOP with no chance to cool down 4. Must be causal connection between provocation, passion, and fatal act |
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Extreme Emotional Disturbance
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1. Extreme Emotional Disturbance exists (subjective)
2. There is a reasonable explanation for EED (objective) |
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Reckless Endangerment
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Depraved indifference, but V lives
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Manslaughter
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Requires mens rea of recklessness; also murder with excuse (HOP, EED)
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Negligent Homicide
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Negligent mens rea
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Felony-Murder MPC
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Rebuttable presumption of recklessness for certain felonies
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F-M Inherently Dangerous Limitation
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F-M only applies to inherently dangerous felonies; dangerousness is determined by looking at felony in the abstract
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F-M Merger Limitation
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Assault merges; F-M doesn't apply
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F-M Mens Rea
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Mens Rea for predicate felony transfers to murder
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F-M: Killer is not a felon
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Agency Approach: F-M doesn't apply
Proximate Causation Approach: F-M applies if felon set in motion that acts that lead to the death |
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Negligent Homicide
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Negligent mens rea
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Felony-Murder MPC
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Rebuttable presumption of recklessness for certain felonies
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F-M Inherently Dangerous Limitation
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F-M only applies to inherently dangerous felonies; dangerousness is determined by looking at felony in the abstract
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F-M Merger Limitation
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Assault merges; F-M doesn't apply
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F-M Mens Rea
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Mens Rea for predicate felony transfers to murder
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F-M: Killer is not a felon
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Agency Approach: F-M doesn't apply
Proximate Causation Approach: F-M applies if felon set in motion that acts that lead to the death |
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Resistance requirement in rape
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Historically:
(1) if prior consensual relationship, V must explicitly express lack of consent (Alston) (2) Verbal resistance is resistance (Rusk) Resistance requirement has mostly been eliminated/weakened |
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Force in rape
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Force inherent in completing the act is not sufficient (Berkowitz)
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Force in sexual assault
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Force not required, lack of consent is sufficient (M.T.S.)
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Mistake defense in rape
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Honest and reasonable, but mistaken, belief of consent can be a defense (Williams)
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Attempt: Mens Rea (Common Law)
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Double intent:
(1) Ments rea for completing the act (P or K) (2) Mens rea for result (completed crime) |
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Attempt: Mens Rea (MPC)
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(1) Intent for the act
(2) Whatever the underlying crime requires regarding attendant circumstances |
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Attempt: Act (Common Law)
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Proximity test, Dangerous proximity, Probable desistance
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Attempt: Act (MPC)
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Substantial step beyond preparation
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MPC Attempt: Conduct crimes
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Purposely engaging in conduct that would be a crime if the attendant circumstances were as D believed them to be
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MPC Attempt: Result crimes
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Doing, or omitting to do, anything with the purpose to cause the result without D needing to do anything else
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Physical Proximity Doctrine
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D was as close to the end of the act as possible (all but the last step completed)
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Dangerous Proximity Doctrine
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Focuses on gravity and probability of offense, plus proximity to the crime
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Indispensable Element Test
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Has D required everything necessary to commit the crime?
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Probable Desistance Test
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Has D reached the point of no return?
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Unequivocality Test
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Focuses on what is in D's head; the act is only used to prove the thoughts
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Substantial step
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D:
(1) Possesses materials to be used in crime (2) At or near the scene of the crime (3) No lawful purpose for those materials under the circumstances |
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Attempt: MPC Impossibility
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No impossibility
Doing, or omitting to do, anything which, under the circumstances D believes to exist, is a substantial step towards a planned crime (Focus on "as D believes them to be" language) |
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Pure Legal Impossibility
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D wants to do something D thinks is illegal, but it is not actually illegal
Ex. D thinks it is illegal to drink coke while driving, and does so, but it is not actually illegal |
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Factual Impossibility
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D wants to do something that is illegal, but the facts are not as D thinks they are, so the act isn't illegal
ex. D wants to drive while drinking rum and coke, and thinks he is doing so, but there isn't actually rum in his coke |
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Hybrid Legal Impossibility
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Mistake as to status/attendant circumstances
Ex. D wants to kill a police officer and tries to kill someone dressed as a cop for a costume party |
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Inherent Impossibility
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Conduct is so inherently unlikely to result in a crime or harm
Ex. Voodoo, wishing someone dead |
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Impossibility and Attempt
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Impossibility is not a defense for an attempt even when it would be for the completed crime
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Attempt: Renunciation (Common Law)
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Moment of attempt is set late (overt act)
Can renounce at any point before overt act |
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Attempt: Renunciation (MPC)
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If D COMPLETELY and VOLUNTARILY abandons the attempt before a crime is committed, he is not liable
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Attempt: Renunciation (Federal Law)
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No renunciation for attempts
Substantial step test makes it very easy to be convicted for attempt |
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Solicitation
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Asking, enticing, inducing, encouraging, or counseling of another to commit a crime
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Bilateral Solicitation
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Someone must be on the receiving line of the solicitation (common law)
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Unilateral Solicitation
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Attempt to solicit is enough; no requirement that someone receive the solicitation (MPC)
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Does solicitation merge?
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Yes - merges with actual crime if completed
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Inherent Impossibility
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Conduct is so inherently unlikely to result in a crime or harm
Ex. Voodoo, wishing someone dead |
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Impossibility and Attempt
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Impossibility is not a defense for an attempt even when it would be for the completed crime
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Attempt: Renunciation (Common Law)
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Moment of attempt is set late (overt act)
Can renounce at any point before overt act |
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Attempt: Renunciation (MPC)
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If D COMPLETELY and VOLUNTARILY abandons the attempt before a crime is committed, he is not liable
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Attempt: Renunciation (Federal Law)
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No renunciation for attempts
Substantial step test makes it very easy to be convicted for attempt |
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Solicitation
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Asking, enticing, inducing, encouraging, or counseling of another to commit a crime
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Bilateral Solicitation
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Someone must be on the receiving line of the solicitation (common law)
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Unilateral Solicitation
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Attempt to solicit is enough; no requirement that someone receive the solicitation (MPC)
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Does solicitation merge?
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Yes - merges with actual crime if completed
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Inherent Impossibility
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Conduct is so inherently unlikely to result in a crime or harm
Ex. Voodoo, wishing someone dead |
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Impossibility and Attempt
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Impossibility is not a defense for an attempt even when it would be for the completed crime
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Attempt: Renunciation (Common Law)
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Moment of attempt is set late (overt act)
Can renounce at any point before overt act |
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Attempt: Renunciation (MPC)
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If D COMPLETELY and VOLUNTARILY abandons the attempt before a crime is committed, he is not liable
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Attempt: Renunciation (Federal Law)
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No renunciation for attempts
Substantial step test makes it very easy to be convicted for attempt |
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Solicitation
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Asking, enticing, inducing, encouraging, or counseling of another to commit a crime
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Bilateral Solicitation
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Someone must be on the receiving line of the solicitation (common law)
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Unilateral Solicitation
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Attempt to solicit is enough; no requirement that someone receive the solicitation (MPC)
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Does solicitation merge?
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Yes - merges with actual crime if completed
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