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132 Cards in this Set

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ELEMENTS OF A CRIME
The prosecution is generally required to prove the following elements of a criminal offense:

1) ACTUS REUS (guilty act): A physical act (or unlawful omission) by the D;

2) MENS REA (guilty mind): the state of mind or intent of the D at the time of his act;

3) CONCURRENCE: The physical act and the mental state existed at the same time; and

4) HARMFUL RESULT/CAUSATION: A harmful result caused (both factually and proximately) by the D's act.
Felonies & Misdemeanors
Most states classify as FELONIES all crimes punishable by death or imprisonment exceeding one year. MISDEMEANORS are crimes punishable by imprisonment for less than one year or by a fine.

At CL, the only felonies were murder, manslaughter, rape, sodomy, mayhem, robbery, larceny, arson, and burglary; all other crimes were considered misdemeanors.
Malum In Se and Malum Prohibitum
A crime MALUM IN SE (wrong in itself) is one that is inherently evil, either because criminal intent is an element of the offense, or because the crime involves "moral turpitude."

By contrast, a crime MALUM PROHIBITUM is one that is wrong only because it is prohibited by legislation (i.e., drunk driving).
MERGER: CL
At CL, if a person engaged in conduct constituting both a felony and a misdemeanor, she could only be convicted of the felony. The misdemeanor is regarded as merged into the felony.

If the same act or series of acts that were part of the same transaction constituted several felonies (or several misdemeanors), there was no merger of any of the offenses into any of the others.
MERGER: Modern Law
MODERNLY, there is no merger, with EXCEPTIONS:

1) Merger of solicitation or attempt into completed crime (cannot be convicted of both solicitation/attempt and the completed crime).

2) Merger of lesser included offenses into greater offenses (i.e., possession of narcotics and possession of narcotics for sale --> cannot be convicted of simple possession).

3) Some jxns are developing prohibitions against convicting a D for more than one offense where the multiple offenses were all a part of the same "criminal transaction." Mostly prohibited by statute; others adopt this premise through a rule of merger or double jeopardy to prohibit it.
PHYSICAL ACT
For there to be criminal liability, the D must have either performed a voluntary criminal act or failed to act under circumstances imposing a legal duty to act; for this purpose, ACT is defined as BODILY MOVEMENT. Thoughts do not equal an act.

Act must be VOLUNTARY. The following are NOT considered voluntary:

--conduct that is not the product of the actor's determination

--reflexive or convulsive acts

--acts performed while the D was either unconscious or asleep UNLESS the D knew that she might fall asleep or become unconscious and engaged in dangerous behavior.
PHYSICAL ACT: Omission as an "Act"
A D's failure to act will result in criminal liability provided 3 requirements are met:

1) D had a LEGAL DUTY to act under the circumstances;

2) KNOWLEDGE of facts giving rise to duty;

3) must be REASONABLY POSSIBLE TO PERFORM.
PHYSICAL ACT: Legal Duty to Act
A legal duty can arise by:

a) statute;

b) contract;

c) relationship between the D and the V;

d) the voluntary assumption of care by the D of the V; or

e) the creation of peril by the D
PHYSICAL ACT: Possession
Criminal statutes that penalize the possession of contraband generally require only that the D have control of the item for a long enough period to have an opportunity to terminate the possession.

Possession need not be exclusive to one person, and possession may also be "constructive" (actual physical control need not be proved when the contraband is located in an area within the D's "dominion and control")
SPECIFIC INTENT
If the crime requires not only the doing of the act, but also the doing of it with specific intent or objective, the crime is a "specific intent" crime.

Prosecution must produce evidence to prove the existence of specific intent; the MANNER in which an act was done may provide circumstantial evidence of intent.

Some defenses (like voluntary intoxication and unreasonable mistake of fact) apply only to SI crimes.
Specific Intent Crimes
SOLICITATION: intent to have the person solicited commit the crime.

ATTEMPT: Intent to complete the crime.

CONSPIRACY: Intent to have the crime completed.

1ST DEGREE MURDER: premeditated intent to kill (defined by statute).

ASSAULT: Intent to commit a battery.

LARCENY/ROBBERY: Intent to permanently deprive another of his interest in the property taken.

BURGLARY: Intent at the time of entry to commit a felony therein.

FORGERY: Intent to defraud.

FALSE PRETENSES: Intent to defraud.

EMBEZZLEMENT: Intent to defraud.
Specific Intent: Malice
Although the intents required for the "malice" crimes (CL Murder and Arson) are similar to specific intent, these crimes are NOT open to the specific intent defenses. Mental state was specifically created to deny to murder and arson the specific intent defenses.
General Intent
All crimes require "general intent"--an awareness of all factors constituting the crime; D must be aware that he is acting int he proscribed way and that any attendant circumstances required by the crime are present.

Intent can be inferred.

Also transferred intent.
Transferred Intent
If a D intended a harmful result to a particular person or object and, in trying to carry out that intent, caused a similar harmful result to another person or object, her intent will be transferred from the intended person or object to the one actually harmed.
Strict Liability Offenses
SL offenses do not require awareness of all of the factors constituting the crime. Major significance is that certain defenses, such as mistake of fact, are not available.
"Purposefully"
A person acts purposefully when it is his conscious object to engage in certain conduct or cause a certain result.
"Knowingly"
A person acts knowingly when he is aware that his conduct is of that nature or that certain circumstances exist.
"Recklessly"
A person acts recklessly wen he consciously disregards a substantial or unjustifiable risk that circumstances exist or that a prohibited result will follow, and this disregard constitutes a gross deviation from the standard of care that a reasonable person would exercise in the situation.
Negligence
A person acts negligently when he fails to be aware of a substantial and unjustifiable risk that circumstances exist or a result will follow, and such failure constitutes a substantial deviation from the standard of care that a reasonable person would exercise under the circumstances.

This is measured by an OBJECTIVE standard of care.
Vicarious Liability
Where a person without personal fault may nevertheless be held vicariously liable for the criminal conduct of another (usually an employee).

ALL felons are liable for death caused by a co-felon (FMR).
Liability of Corporations and Associations
At CL, no liability because a corporation was unable to form the necessary criminal intent.

Modernly, statutes exist to provide for the liability of corporations and sometimes unincorporated associations.

MPC -- Corp. guilty of a criminal offense provided the offense:

1) consists of the FAILURE TO DISCHARGE A SPECIFIC DUTY imposed by law on the corp.;

2) is defined by a statute in which a LEGISLATIVE PURPOSE TO IMPOSE LIABILITY on corps plainly appears; or

3) was "authorized, requested, commanded, performed, or recklessly tolerated BY THE BOARD OF DIRECTORS OR BY A HIGH MANAGERIAL AGENT acting on behalf of the corporation within the scope of his office or employment."
ACCOMPLICE LIABILITY: Parties
Most jxns have abolished party distinctions (i.e., principal in the 1st degree, accessory after the fact). Modernly, all "parties to the crime" can be found guilty of the criminal offense.

--Principal
--Accomplice
--Accessory after the fact
ACCOMPLICE LIABILITY: Parties -- Principal
A principal is one who, with the requisite mental state, ACTUALLY ENGAGES IN THE ACT OR OMISSION that causes the criminal result.
ACCOMPLICE LIABILITY: Parties -- Accomplice
An accomplice is one who, with the intent that the crime be committed, aids, counsels, or encourages the principal before or during the commission of the crime.
ACCOMPLICE LIABILITY: Parties -- Accessory After the Fact
An accessory after the fact is one who receives, relieves, comforts, or assists another, knowing that he has committed a felony, in order to HELP THE FELON ESCAPE ARREST, TRIAL, OR CONVICTION.
ACCOMPLICE LIABILITY: Mental State
to be convicted as an accomplice, a person must have given aid, counsel, or encouragement with the INTENT to aid or encourage the principal in the commission of the crime charged.

In the absence of a statute, mere knowledge that a crime would result is insufficient.
ACCOMPLICE LIABILITY: Scope of Liability
An accomplice is responsible for he crimes he did or counseled AND for any other crimes committed in the course of committing the crime contemplated, as long as the other crimes were PROBABLE OR FORESEEABLE.
ACCOMPLICE LIABILITY: Scope of Liability -- Withdrawal
What is necessary for an effective withdrawal DEPENDS UPON WHAT THE PERSON ACTUALLY DID.

(i) If the person merely ENCOURAGED --> withdrawal requires that he REPUDIATE this encouragement.

(ii) If the person assisted by PROVIDING SOME MATERIAL to the principal, withdrawal requires that the person attempt to NEUTRALIZE THIS ASSISTANCE (like getting back the material provided).

You may also be able to withdraw by NOTIFYING AUTHORITIES.

In any case, the withdrawal must occur BEFORE the chain of events leading to the commission of the crime becomes unstoppable.
INCHOATE OFFENSES
--Solicitation

--Attempt

--Conspiracy

An inchoate offense is committed prior to and in preparation for what may be a more serious offense. It is a complete offense in itself, even though the act to be done may not have been completed.

The doctrine of merger allows for the conviction of both the conspiracy and the principal offense, though one cannot be convicted of either attempt or solicitation and the principal offense.
SOLICITATION
Solicitation consists of inciting, counseling, advising, inducing, urging, or commanding another to commit a felony with the specific INTENT THAT THE PERSON SOLICITED COMMIT THE CRIME.
Solicitation: DEFENSES
(i) Factual impossibility not a defense

(ii) Withdrawal or renunciation is not a defense

(iii) Exemption from intended crime is a defense (i.e., though legislative intent to exempt her, like in the case of statutory rape).
CONSPIRACY
1) An AGREEMENT BETWEEN 2 OR MORE persons;

2) An INTENT TO ENTER INTO AN AGREEMENT; and

3) An INTENT TO ACHIEVE THE OBJECTIVE of the agreement.

Today, a MAJ of the states require an OVERT ACT in furtherance of the conspiracy, but mere preparation will usually suffice.
Conspiracy: "Aiding and Abetting"
Each conspirator may be liable for the crimes of all other conspirators if TWO REQUIREMENTS are met:

1) the CRIMES WERE COMMITTED IN FURTHERANCE of the objectives of the conspiracy; and

2) the crimes were a "natural and probable consequence" of the conspiracy; i.e., FORESEEABLE.
Conspiracy: Attempt distinguished
In attempt cases, there must be a SUBSTANTIAL STEP toward the commission of the crime.

In conspiracy cases (at CL), the agreement itself is normally sufficient to constitute the crime.
Conspiracy: Agreement Required
The parties must agree to accomplish the same objective by mutual action.

Modern trend is to limit criminal conspiracies to agreements to COMMIT CRIMES.

If there is an initial agreement among the parties to engage in a COURSE OF CRIMINAL CONDUCT constituting all the crimes, then there is only ONE CONSPIRACY.

"Chain" Relationship -- Series of agreements with sub-agreements.

"Hub and Spoke" Relationship -- series of sub-agreements, each involving different persons, but with one common member.
Conspiracy: 2 parties required
A conspiracy must involve a "meeting of the minds: between at least two independent persons.
Conspiracy: Wharton Rule
Where 2 or more people are necessary for the commission of the substantive offense, the "Wharton Rule" states that there is NO CRIME OF CONSPIRACY UNLESS MORE PARTIES PARTICIPATE IN THE AGREEMENT THAN ARE NECESSARY FOR THE CRIME.

Ex: a duel.

Also, if an agreement is made with a person of a protected class, the person within that class cannot be guilty of the crime itself, or the conspiracy.
Conspiracy: Mental State
Conspiracy is a SPECIFIC INTENT crime. There are 2 different interests that are necessary: intent to agree and intent to achieve the objective of the conspiracy.

Intent to agree can be INFERRED from conduct.

The D must intend to achieve the objective of the conspiracy; this intent must be established as to EACH individual D. Must be a "meeting of guilty minds."

Intent cannot be inferred from mere knowledge

No "corrupt motive" required.
Conspiracy: DEFENSES
(i) Factual Impossibility is not a defense.

(ii) Withdrawal from a conspiracy is NOT A DEFENSE to a charge of conspiracy, because the conspiracy is complete as soon as the agreement is made and an overt act is committed. The MPC recognizes voluntary withdrawal as a defense if the D thwarts the success of the conspiracy.

(iii) A co-conspirator may limit liability for subsequent acts of other members of the conspiracy if they NOTIFY ALL MEMBERS of the conspiracy, and such notice must be given in time for them to abandon their plans.
ATTEMPT
A criminal attempt is an act that, although done with the intention of committing a crime, falls short of completing the crime. Attempt requires:

(1) A specific intent to commit the crime; and

(2) An overt act in furtherance of that intent.
Attempt: Intent
The D must have the intent to perform an act and obtain a result that, if achieved, would constitute a crime.

Always requires a SPECIFIC INTENT.
Attempt: Overt Act
The D must have committed an act BEYOND MERE PREPARATION for the offense.

MAJ Rule: MPC Test -- requires that the act or omission constitute a "substantial step in a course of conduct planned to culminate in the commission of the crime."

Traditional Rule: Proximity Test -- evaluate the act based on how close the D came to completing the offense.
Attempt: DEFENSES
(i) Legal impossibility is always a defense.

(ii) Factual impossibility is not a defense.

(iii) Abandonment: The general rule is that abandonment is NEVER A DEFENSE. The MPC approach is that WITHDRAWAL WILL BE A DEFENSE, but only if:

1) it is FULLY VOLUNTARY; and
2) it is a COMPLETE ABANDONMENT
JUSTIFICATION
Under certain circumstances, the commission of a proscribed act is viewed by society as justified and hence not appropriate for criminal punishment. D must raise the issue by introducing SOME evidence ("more than a scintilla") tending to show justification as an affirmative defense. Once this is done, the state may require the prosecution to prove that the use of force was NOT justified, or it may impose on the D the burden of proving this affirmative defense by a PREPONDERANCE of the evidence.
SELF-DEFENSE: Non-deadly Force
An individual who is without fault may use SUCH FORCE AS REASONABLY APPEARS NECESSARY to protect herself from the imminent use of unlawful force upon herself. There is NO DUTY TO RETREAT before using non-deadly force, even if retreat would result in no further harm to either party.
SELF-DEFENSE: Deadly Force
A person may use deadly force in self defense if:

a) she is without fault;

b) she is confronted with unlawful force; and

c) she is threatened with imminent death or GBI.
SELF-DEFENSE: Deadly Force -- Threat of Imminent Death or GBI
The D must REASONABLY believe that she is faced with imminent death or great bodily harm if she does not respond with deadly force.

The danger of harm must be a PRESENT one.

There is no right to use deadly force if harm is merely threatened at a future time or the "attacker" has no present ability to carry out the threat.
SELF-DEFENSE: Deadly Force -- Retreat
The MAJ rule is that there is NO DUTY TO RETREAT.

Even in a minority jxn, retreat is only necessary:
(i) unless it can be made in complete safety, or
(ii) in special situations, like where the attack occurs in V's home, where the attack occurs while V is making a lawful arrest, and where the assailant is in the process of robbing the V.
Self-Defense: Can aggressor use self-defense?
Aggressor has no right to use force in self-defense, but can regain right by:

(a) withdrawal: effectively removing oneself from fight & communicating desire to withdraw to other person, or

(b) if V of initial aggression escalates fight into one involving deadly force w/o giving aggressor chance to w/draw.
Defense of Others: Special Relationship?
Majority rule: no.
Minority: yes, must be family member or employer or servant.
Defense of Others: Status of person aided
D may only act in defense of others if reasonably believes person assisted had right to self-defense.

If turns out didn’t? Modern majority rule: still o.k. if reasonably appears necessary to use force.

(May use no more force to protect another than that person would have been entitled to use in self-defense, based on circumstances as D believed them to be & D believes intervention necessary for other party’s protection) Minority view: D steps into shoes of person s/he defends & no defense if that person had no legal right to defend (“alter ego rule”).
Crime Prevention: Non-deadly force
can use to extent reasonably appears necessary to prevent felony, riot, serious breach of peace (CA: any crime).
Crime Prevention: Deadly Force
Traditional rule: to prevent commission of any felony.

Modern rule: for “dangerous felonies” (involving risk to human life, i.e., robbery, arson, residential burglary, etc.).
Crime Prevention: Arrest by Police Officer
Use of deadly force reasonable only if felon threatens death or SBH & deadly force necessary to prevent escape (can’t use to catch unarmed, non-dangerous felon).
Crime Prevention: Arrest by Private Person
deadly force only if S was actually guilty of offense for which arrest made. Non-deadly force: OK if crime in fact committed & private person has reasonable grounds to believe S in fact committed crime.
MISTAKE OF FACT
Must negate state of mind: defense only if show D did not have state of mind required for crime.

Example: D takes stack of metal rods from under freeway overpass, believing them to be abandoned scrap metal. In fact, public works placed them there to use on road repair. D n.g. of theft, as lacks specific intent to permanently deprive owner of property.
MISTAKE OF FACT: for Malice & Gen Intent Crimes
For malice & general intent crimes, to negate must be a reasonable mistake: one that a reasonable person would make under the circumstances.

Example: D reasonably & good faith believes that V consents to sexual intercourse. This is defense to rape.
MISTAKE OF FACT: Is reasonableness required?
Reasonableness is NOT required for specific intent crimes.

Example: D picks up piece of luggage from luggage carousel at airport, believing it to be hers; in fact it belongs to V. Whether belief is reasonable or not, negates specific intent required for theft (to permanently deprive owner of property) and is defense to theft.
MISTAKE OF FACT: Strict Liability Crimes
Strict liability crimes: mistake of fact no defense.
MISTAKE OF LAW
General rule: no defense. Whether D's belief that conduct legal is reasonable or not, generally no defense.

Mistake or ignorance of law may negate intent required.

Example: D charged with violating statute prohibiting selling gun to a person seller knows is convicted felon. D unaware of statute, but knows buyer was previously convicted of a crime. D believes that crime was a misdemeanor, not a felony. While ignorance of statute no defense, mistaken belief that buyer was convicted of a crime which was a misdemeanor may be defense, as statute required seller to be aware that buyer convicted of felony.
WITHDRAWAL
Usually comes up in context of conspiracies or accomplice liability. Some jurisdictions: also available for attempt, if voluntary, complete and motivated by genuine change of heart.
WITHDRAWAL: Conspiracy
Complete either when conspiracy formed, or in some jurisdictions when overt act in furtherance committed. Must w/draw before complete to avoid liability for conspiracy.

But, Person who withdraws and communicates withdrawal to each co- conspirator, will avoid liability for subsequent crimes committed in furtherance of conspiracy by former co- conspirators.

MPC: defense if C renounces criminal purpose and thwarts success of conspiracy under circumstances showing complete/voluntary renunciation of criminal intent.
WITHDRAWAL: Accomplice Liability
defense if accomplice communicates withdrawal to principal and makes bona fide effort to neutralize effect of previous assistance.
IMPOSSIBILITY
Frequently arises in attempts.

Common law: Legal impossibility a defense; factual impossibility not. Issue: was intended conduct, in fact, criminal.
FACTUAL IMPOSSIBILITY
Factual impossibility: when D's intended end would be a crime, but factually impossible to reach.

Example: Robber reaches into V's pants pocket for wallet, but pocket empty. Factual impossibility no defense to attempted robbery.
LEGAL IMPOSSIBILITY
Legal impossibility: when not illegal to commit act that D seeks to achieve.

Example: If Dr. performs abortion, believing it to be a crime, but it has in fact been legalized. Dr. not guilty of abortion or attempt.
Defenses: INSANITY
this defense exempts certain Ds b/c of the existence of an abnormal mental condition at the time of the crime. Insanity is a legal term covering many possible mental abnormalities. TESTS:

M'Naughten Rule

Irresistiible Impulse Test

Durham (or NH) Test

ALI or MPC Test
INSANITY: M'Naughten
D is entitled to an acquittal if the proof establishes that:

a) a DISEASE of the mind

b) CAUSED A DEFECT of reason

c) such that the defendant LACKED THE ABILITY AT THE TIME of his actions to either:

(1) know the WRONGFULNESS of his actions; or

(2) understand the NATURE AND QUALITY of his actions.
INSANITY: M'Naughten -- Application
If the D suffered from delusions (false beliefs), it is necessary to determine whether his actions would have been criminal if the facts had been as he believed them to be.

A D is not entitled to acquittal if he merely believes his actions were morally right.

Loss of control of mental illness is NOT A DEFENSE.

M'Naughten does not act to unduly restrict evidence heard by juries. Most jxns admit any evidence that reasonably leads to show the mental condition of the D at the time of the crime.
INSANITY: Irresistible Impulse Test
A D is entitled to an acquittal if the proof establishes that because of mental illness he was UNABLE TO CONTROL HIS ACTIONS OR TO CONFORM HIS CONDUCT TO THE LAW.

Some jxns apply both M'Naughten and the irresistible impulse test, so a person is entitled to an acquittal if he meets either test.
INSANITY: Durham (or New Hampshire) Test
A D is entitled to an acquittal if the proof establishes that his crime was "the product of mental disease or defect."

A crime is a product of the disease if it would not have been committed BUT FOR the disease.

Broader than M'Naughten or Irresistible Impulse test; created to give psychiatrists greater liberty to testify concerning the D's mental condition.

Was replaced by the ALI test, but still remains in a few jxns (or NONE?).
INSANITY: American Law Institute (ALI) or MPC Test
a D is entitled to an acquittal if the proof shows that he suffered from a MENTAL DISEASE or defect and as a result LACKED SUBSTANTIAL CAPACITY to either:

(i) APPRECIATE THE CRIMINALITY (wrongfulness) of his conduct; or

(ii) CONFORM HIS CONDUCT to the requirements of the law.

This test combines the M'Naughten and Irresistible Impulse tests by allowing for the impairment of both cognitive and volitional capacity.
INSANITY: Burden of Proof
All Ds are presumed sane. The insanity issue is not raised until the D comes forward w/ evidence showing that he was insane under the applicable test.

Depending on the jxn, the burden is carried either by a mere shred (or scintilla) of evidence, or by evidence sufficient to raise a reasonable doubt.

In some jxns and under the MPC, once the issue has been raised, the prosecution must prove the D was sane BEYOND A REASONABLE DOUBT. In others, the burden is on the D to prove his insanity, generally by a preponderance of the evidence.
INSANITY: Incompetency to stand trial
a D may not be tried, convicted, or sentenced if, as a result of a mental disease or defect, he is unable:

(i) TO UNDERSTAND THE NATURE OF THE PROCEEDINGS being brought against him; or

(ii) TO ASSIST HIS LAWYER in the preparation of his defense.
Defenses: INTOXICATION
Intoxication may be caused by ANY SUBSTANCE. Evidence of intoxication may be raised whenever the intoxication negates the existence of an element of a crime.

The law distinguishes between voluntary and involuntary intoxication.
VOLUNTARY INTOXICATION
Intoxication is voluntary (self-induced) if it is the result of the intentional taking without duress of a substance known to be intoxicating.

Voluntary intoxication evidence may be offered when the D is charged with a crime that requires PURPOSE (INTENT) OR KNOWLEDGE to establish that the intoxication prevented the D from formulating the requisite intent.

Good defense to specific intent, but not general intent, crimes.

However, it is NOT a defense to crimes requiring MALICE, RECKLESSNESS, NEGLIGENCE, or crimes of STRICT LIABILITY.
EX: not a defense to CL Murder.
INVOLUNTARY INTOXIFICATION
Intoxication is involuntary only if it results from the taking of an intoxicating substance

(i) WITHOUT KNOWLEDGE of its nature,

(ii) UNDER DIRECT DURESS imposed by another, or

(iii) PURSUANT TO MEDICAL ADVICE while unaware of the substance's intoxicating effect.

Involuntary intoxication may be treated as a mental illness, in which case D may be entitled to acquittal based on the jxns test for insanity.
Defenses: INFANCY (CL)
At CL:

Under 7--No criminal liability

Under 14--rebuttable presumption of no criminal liability

Over 14--adult.
Defenses: INFANCY (Modern)
A number of modern states have abolished the presumptions of the CL and have provided that no child can be convicted of a crime until a stated age is reached, usually 13 or 14. Other states, however, retain the CL presumptions.

Most states have juvenile delinquency laws.
Defenses: DURESS

aka Compulsion or Coercion
A person is not guilty of an offense, OTHER THAN HOMICIDE, if he performs an otherwise criminal act under the threat of imminent infliction of death or GBH, provided that he reasonably believes death or GBH will be inflicted on himself or on a member of his immediate family if he does not perform such conduct.
Defenses: CONSENT
Consent of the victim is generally no defense. However, if it negates an element of the offense, consent is a complete defense. (Ex: showing V consented to intercourse is a defense to a charge of forcible rape.)

Requirements:

1) the consent was voluntarily and FREELY GIVEN (without compulsion or duress);

2) the party was LEGALLY CAPABLE of consenting; and

3) NO FRAUD was involved in obtaining the consent.
ENTRAPMENT
Entrapment occurs if the intent to commit the crime originated not with the D, but rather with the creative activities of law enforcement officers. The defense of entrapment consists of 2 elements:

1) the CRIMINAL DESIGN must have ORIGINATED WITH LAW ENFORCEMENT officers; and

2) the D must NOT have been PREDISPOSED to commit the crime prior to the initial contact by the government.

If D offers evidence to show these two elements, then the gov't must show predisposition beyond a reasonable doubt.
BATTERY
Battery is an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching.

Need not be intentional; force need not be applied directly. Consent is a defense only to simple battery (e.g., medical operation).
AGGRAVATED BATTERY
Defined by statute; most common are batteries in which:

1) a DEADLY WEAPON is used;

2) SERIOUS BODILY INJURY is caused; or

3) the VICTIM IS A CHILD, WOMAN, OR POLICE OFFICER.
ASSAULT
An assault is either:

(i) an ATTEMPT TO COMMIT A BATTERY; or

(ii) the INTENTIONAL CREATION--other than by mere words--of a REASONABLE APPREHENSION in the mind of the victim of imminent bodily harm.
Statutory AGGRAVATED ASSAULT
All jxns treat certain aggravated assaults more severely than simple assaults; these include assaults:

1) with a DANGEROUS (OR DEADLY) WEAPON;

2) with INTENT TO RAPE, MAIM, OR MURDER.
MAYHEM
CL mayhem required either dismemberment or disablement of a bodily part.

Modernly, most states have retained the crime of mayhem in some form, although the recent trend is to abolish mayhem as a separate offense and to treat it instead as aggravated battery.
Classifications of HOMICIDES
At CL, homicides were divided into 3 classifications:

1) JUSTIFIABLE homicides (those commanded or authorized by law);

2) EXCUSABLE homicides (those for which there was a defense to criminal liability); and

3) CRIMINAL homicides.

CL Criminal Homicides are divided into 3 types:

1) Murder
2) Voluntary Manslaughter (VM)
3) Involuntary Manslaughter (IVM)
MURDER
Murder is the unlawful killing of another human being with malice aforethought. Malice aforethought may be express or implied.
MURDER: Malice Aforethought
In the absence of facts excusing the homicide or reducing it to VM, malice aforethought exists if the D has any of the following states of mind:

(i) Intent to kill (express malice);

(ii) Intent to inflict GBI;

(iii) Reckless indifference to an unjustifiably high risk to human life ("abandoned and malignant heart"); or

(iv) Intent to commit a felony (FMR)

In the case of (i), (iii), or (iv), the malice is IMPLIED.
MURDER: Deadly Weapon Rule
Intentional use of a deadly weapon authorizes a permissive inference of intent to kill. A deadly weapon is any instrument--or ins some limited circumstances, any part of the body--used in a manner calculated or likely to produce death or serious bodily injury.
VOLUNTARY MANSLAUGHTER (VM)
VM is an intentional killing distinguishable from murder by the existence of adequate provocation, i.e., a killing in the heat of passion.

ELEMENTS:

a) the provocation must have been one that would arouse SUDDEN AND INTENSE PASSION in the mind of an ORDINARY PERSON such as to cause him to lose his self-control;

b) the D must have IN FACT BEEN PROVOKED;

c) there MUST NOT HAVE BEEN A SUFFICIENT TIME to cool; and

d) the defendant IN FACT did not cool off between the provocation and the killing.
VM: When provocation is adequate
Adequate provocation is most frequently recognized in cases of:

a) being subjected to a SERIOUS BATTERY or a threat of DEADLY FORCE; and

b) discovering one's SPOUSE IN BED WITH ANOTHER PERSON.

Mere words are inadequate as a matter of law.
VM: Imperfect self defense
Some states recognize an "imperfect self defense" doctrine under which a murder may be reduced to manslaughter even though:

a) the DEFENDANT WAS AT FAULT in starting the altercation; or

b) the defendant UNREASONABLY BUT HONESTLY BELIEVED in the necessity of responding with deadly force.
INVOLUNTARY MANSLAUGHTER (IVM)
There are two types of IVM:

1) Criminal Negligence

2) "Unlawful Act" Manslaughter
IVM: "Unlawful Act" Manslaughter
Two subcategories of unlawful acts which result in IVM:

a) "Misdemeanor-Manslaughter" Rule

b) Felonies not included in FMR
IVM: "Misdemeanor-Manslaughter" Rule
A killing in the course of the commission of a misdemeanor is manslaughter, although most courts would require either that the misdemeanor be malum in se (i.e., an inherently wrongful act), or if malum prohibitum, that the death be the foreseeable or natural consequence of the unlawful conduct.
Modern Degrees of Murder
All murders are SECOND DEGREE murders unless the prosecution proves any of the following, which would make the murder FIRST DEGREE murder:

a) deliberate and premeditated killing

b) first degree felony murder

c) some states make killing in certain ways 1st degree murder (i.e., killing by lying in wait, poison, or torture may be 1st degree murder).
Intervening Acts
As a general rule, an intervening act will shield the D from liability if the act is a mere coincidence or is outside the foreseeable sphere of risk created by the D's act.

1) Act of Nature.

2) Act by 3rd Party (still liable if negligent care remains a foreseeable risk)

3) Acts by the Victim
HOMICIDE: Questions to ask
1) Did the D have any of the STATES OF MIND sufficient to constitute malice aforethought?

2) If answer to (1) is yes, is there proof of anything that will, under any applicable statute, raise the homicide to FIRST DEGREE MURDER?

3) if the answer to (1) is yes, is there evidence to reduce the killing to VOLUNTARY MANSLAUGHTER, i.e., criminal negligence or misdemeanor manslaughter?

4) If the answer to (1) is no, is there sufficient basis for holding the crime to be INVOLUNTARY MANSLAUGHTER, i.e., criminal negligence or misdemeanor manslaughter?

5) Is there ADEQUATE CAUSATION between the D's acts and the victim's death? Did the V die within a year and one day? Was the D's act the FACTUAL CAUSE of death? Is there anything to break the chain of PROXIMATE CAUSATION between the D's act and the V's death?
FALSE IMPRISONMENT (FI)
The CL misdemeanor of FI consisted of:

(i) unlawful

(ii) confinement of a person

(iii) without his valid consent.
KIDNAPPING
At CL, the misdemeanor of kidnapping was the forcible abduction or stealing away of a person from his own country and sending him to another. Modern statutes and the MPC extends far beyond this definition.

Kidnapping is defined as confinement of a person that involved either:

(a) some movement (i.e., asportation) of the victim; or

(b) concealment of the victim in a "secret" place.
AGGRAVATED KIDNAPPING
(a) kidnapping for ransom

(b) kidnapping for purpose of commission of other crimes

(c) Kidnapping for offensive purpose (i.e., w/ intent of harming the person or committing some sexual crime with them)

(d) child stealing.

Only some movement is required modernly. Secrecy is not necessary either.
RAPE
Rape is the unlawful carnal knowledge of a woman by a man, not her husband, without her effective consent.

Requires only penetration of the female sex organ by the male sex organ.

Today, most states have abolished the marriage exception.

Must be without the victim's effective consent.
STATUTORY RAPE
Statutory rape is the crime of carnal knowledge of a female under the age of consent. Even if the female willingly participated, the offense is nevertheless committed because consent is irrelevant. Age of consent varies from state to state, generally from 16 to 18 (CA is 18).

BUT will a D's reasonable mistake as to the victim's age prevent liability for statutory rape? The best answer is NO, since statutory rape is a SL crime. Reasonable mistake may prevent conviction if the D reasonably believed the V was old enough to give effective consent.
ADULTERY
Under modern statutes, any person who cohabits or has sexual intercourse with another not his spouse commits the misdemeanor offense of adultery if:

(a) the behavior is OPEN AND NOTORIOUS; and

(b) the person is MARRIED and the other person involved in such intercourse is not his spouse; or

(c) the person is not married and knows the OTHER PERSON in such intercourse IS MARRIED.
INCEST
Incest is a statutory offense, usually a felony, that consists of either marriage or a sexual act (intercourse or deviate sexual conduct) between persons who are too closely related.

Degree of relationship: No uniformity exists among the states. A MAJ restricts the crime to blood relations, although a significant number of states include some nonblood relatives.

Degree of responsibility: Some states make a distinction in penalties depending on the parties involved.
BIGAMY
Bigamy is a traditional SL offense that consists of marrying someone while having another living spouse. At CL, a D is guilty of bigamy even if she reasonably believes that a purported divorce is valid or that her spouse is dead.
SEDUCTION OR CARNAL KNOWLEDGE
A statutory felony in many states, the crime of seduction is committed when a male induces an unmarried female of previously chaste character to engage in an act of intercourse on the promise of marriage. The MPC includes a section on seduction; it requires only that there be a false promise of marriage and does not require chastity or that the female be unmarried.

In many states, subsequent marriage of the parties is a defense.
LARCENY
(Basic CL property offense) Larceny consists of:

(i) A taking (caption);

(ii) and carrying away (asportation);

(iii) of tangible personal property;

(iv) of another

(v) by trespass;

(vi) with intent to permanently (or for a reasonable time) deprive the person of his interest in the property. (e.g., intent to borrow not larceny).
LARCENY: What kind of property?
Larceny can be committed only by the acquisition of PERSONAL PROPERTY capable of being possessed and of some value.

Realty and its fixtures are NOT subjects of larceny.

Obtaining services wrongfully cannot give rise to larceny.

Intangibles cannot give rise to larceny.

At CL, documents and instruments cannot give rise to larceny unless they have some monetary value in themselves. Modernly, larceny CAN include written instruments with intangible rights.
LARCENY: Abandoned or Lost Property
Property abandoned by its owner cannot be the subject of larceny. One who finds property that has merely been lost by its owner can commit larceny if 2 requirements are met:

(1) The finder must have reason to believe she CAN FIND out the IDENTITY OF THE OWNER; and

(2) The finder must, at the moment she takes possession of the lost property, have the INTENT necessary for larceny.
LARCENY: Misdelivered Property
One to whom property is delivered by mistake, may, by accepting the property, commit larceny of it if two requirements are met:

(1) The recipient must, at the time of the misdelivery, REALIZE THE MISTAKE that is being made and

(2) The recipient must, at the time she accepts the delivery, have the INTENT required for larceny.
EMBEZZLEMENT
Embezzlement, variously defined in different jxns, generally requires:

(i) the fraudulent;

(ii) conversion;

(iii) of property;

(iv) of another;

(v) by a person in lawful possession of that property.

Embezzlement did not exist at CL; Modern statutes distinguish between grand embezzlement (a felony) and petit embezzlement (a misdemeanor).
FALSE PRETENSES
False pretenses generally consists of:

(i) obtaining title;

(ii) to the property of another;

(iii) by an intentional (or knowing) false statement of past or existing fact;

(iv) with the intent to defraud the other.

False pretenses did not exist at CL; Modern statutes distinguish between grand false pretenses (a felony) and petit false pretenses (a misdemeanor).

Distinguishable from "Larceny by Trick" by WHAT is obtained.
If only possession --> larceny by trick.
If title is obtained --> false pretenses.
ROBBERY
Robbery is a felony in all jxns and consists of:

(i) a taking;

(ii) of personal property of another;

(iii) from the other's person or presence;

(iv) by force or intimidation;

(v) with the intent to permanently deprive him of it.
EXTORTION (Modern Definition)
In modern statutes, extortion (or blackmail) is defined as obtaining property from another by means of certain oral or written threats. The prohibited threats often include threats to do physical harm to the victim or others, or threats to do damage to the victim's property.

Under some statutes, the crime is completed when threats are made with the intent to obtain money or something of value. Under other statues, the money or property must actually be obtained my means of threats.
EXTORTION (CL Definition)
The CL misdemeanor of extortion consisted of the corrupt collection of an unlawful fee by an officer under color of his office.
RECEIPT OF STOLEN PROPERTY
CL misdemeanor of receipt of stolen property (almost identical to modern offense) includes:

(i) Receiving possession and control (manual possession not necessary);

(ii) of "stolen" personal property ("stolen" property defined broadly);

(iii) known to have been obtained in a manner constituting a criminal offense;

(iv) by another person;

(v) with the intent to permanently deprive the owner of his interest in the property.
FORGERY
Forgery consists of the following:

(i) making or altering;

(ii) of a false writing;

(iii) with the intent to defraud.
UTTERING A FORGED INSTRUMENT
Uttering consists of:

(i) offering as genuine;

(ii) an instrument that may be the subject of forgery and is false;

(iii) with the intent to defraud.
MALICIOUS MISCHIEF (MM)
The CL misdemeanor of malicious mischief (MM) consists of:

(i) Malicious;

(ii) destruction of, or damage to;

(iii) property of another.

Malice is required; no ill will or hatred required, just intention of damage or destruction.
BURGLARY (CL)
CL burglary is:

(i) a breaking;

(ii) and entering;

(iii) of the dwelling;

(iv) of another;

(v) at nighttime;

(vi) with the intent of committing a felony therein.
BURGLARY (Modern)
Modern statues have made the following changes:

1) abandonment of requirement of BREAKING;

2) it is still a burglary if the offender remains concealed in a structure with the intent to commit an offense;

3) structures that can be burglarized has been expanded (beyond DWELLING);

4) elimination of NIGHTTIME requirement;

5) Intent necessary is often expanded to make it sufficient that the D intended to commit any theft.
ARSON
At CL, arson consists of:

(i) the malicious;

(ii) burning;

(iii) of the dwelling;

(iv) of another.

Burning = blackening or charring of structure; mere blackening by smoke or discoloration by heat is not sufficient. Modernly, expanded to include things like exposions.

Malice required.
Houseburning (not arson)
The CL misdemeanor of houseburning consists of:

(i) malicious (as defined in arson);

(ii) burning;

(iii) of ONE'S OWN dwelling;

(iv) if the structure is situated either:

(a) in a city or town; or

(b) so near to other houses as to create a danger to them.

Modern statutes (contrary to CL) make it an offense to burn one's own dwelling for the purposes of collecting insurance on it (arson with intent to defraud an insurer).
PERJURY
Perjruy (a misdemeanor at CL), consisted of the willful and corrupt taking of a false oath in regard to a material matter in a judicial proceeding.

When a witness makes two contradictory statements, however, and admits to the false statement, NO PERJURY (to encourage witnesses to correct any false statements).
Subornation of PERJURY
Some states recognize separately the common law offense of subornation of perjury, which consists of procuring or inducing another to commit perjury.
BRIBERY
The CL misdemeanor of bribery consisted of the corrupt payment or receipt of anything of value in return for official action.

Modernly, it can be a felony, and it may be extended to classes of persons who are not public officials (e.g., athletes). Either the offering of a bribe or the taking of a bribe may constitute the crime.
COMPOUNDING A CRIME
At CL, the misdemeanor of compounding a crime consisted of entering into an agreement for valuable consideration to not prosecute another for a felony or to conceal the commission of a felony or whereabouts of a felon.
Misprision of a Felony
At CL, the misdemeanor of misprision of a felony consisted of the failure (by someone other than a principal or accessory before the fact) to disclose or report knowledge of the commission of a felony.

Modernly, most jxns do not recognize the crime of misprision as a felony. In these jxns, a person is under NO OBLIGATION TO REPORT A CRIME.
FELONY MURDER RULE (FMR)
A killing during the course of a felony--even an accidental one--is murder. Malice is implied from the intent to commit the underlying felony.

Under the CL, the felonies included are BARRK

To convict a D of FM, the prosecution must prove that he committed the underlying felony. So, if he has a substantive defense to the underlying felony, he has a defense to FM.

CAUSATION required. D's conduct must he the cause-in-fact of the result; i.e., the result would not have occurred BUT FOR the D's conduct.

Year and a day rule (CL)

Remember, Intervening acts break the chain of causation.