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41 Cards in this Set
- Front
- Back
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CL Murder
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Unlawful killing of another being with malice aforethought. Intent to kill, intent to cause GBI, Depraved Heart, Felony Murder.
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Intent to Kill
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Intent by words/conduct or deadly weapon.
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Depraved Heart
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A D can be convicted of CL murder if he acted with reckless indifference for an unjustifiably high risk of human life.
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Felony Murder
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A D can be convicted of CL murder pursaunt to the FMR if the killing occurred during the commission of an inherently dangerous felony. Usually, BARRK crimes but can be more, enumerated in statute.
1. During the perpetration: From attempt until felon reaches a place of temporary safety. 2. Inherently dangerous felonies: Burglary, Arson, Rape, Robbery and Kidnapping (BARRK) i. Minority Rule: Some states also include non-dangerous felonies committed in a dangerous manner. EXAMPLE - Swindler induces terminal cancer patient to pay for worthless herbal cure Swindler misrepresents as a miracle cure. Patient foregoes proper medical treat in reliance. Patient dies. Swindler’s crime (False Pretense) is not “inherently dangerous” but was committed in a dangerous manner sufficient under the minority rule to uphold a fel conviction. 3. Felony must be independent from the act that caused death: i. No Assault OR Battery 4. A defense to the felony is a defense to a felony murder charge. |
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HOMICIDE:
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Killing of another human caused by the defendant
1. “Caused by the defendant” a. Defendant acted alone to cause death b. Defendant’s omission cause death and defendant by statute, contract, relationship or voluntary undertaking had a duty to act. - lifeguard c. Act of a 3rd Party contributed to death. i Vicarious liability: A defendant may be liable for the crime of another if the defendant (1) solicits the crime; or (2) a conspirator with the one who commits the crime; (3) is an accomplice to the one who commits the crime; or (4) under the Felony Murder Rule. ii. Was the third party act foreseeable? |
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Vicarious Liability
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EXCEPTIONS:
i. No felony murder under majority rule if a non-felon (police officer, store owners, etc) kills a felon. ii. Some states will excuse felons from fel murder liability if a non-felon kills another non-fel while resisting felony. |
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1st Degree Murder
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1st Degree Murder is codified/statutory murder committed with premeditation and deliberation. This requires a specific intent to kill. Additionally, 1st deg murder statutes include the FMR.
i. Premeditated: The intent to kill is premeditated if the D had time to think about the killing the vic before doing so. ii. Deliberate: The intent to kill is deliberate if the D acted in a calm and cool frame of mind (“cold-blooded”). |
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2nd Degree Murder
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2nd degree murder is codified/statutory murder that is committed without premeditation and deliberation. It typically includes those killings that occur when the intent is not to kill but to commit GBI and depraved heart murders.
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Voluntary Manslaughter
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Vol MS is a killing that would be murder but for the existence of adequate provocation.
1) Provocation: An intentional killing will be mitigated to Voluntary MS if the D experiences adequate provocation. (a) It’s provocation that would arouse sudden and intense passion in the mind of ordinary person, causing him to lose self-control (b) D was in fact provoked (c) There was not sufficient time – between provocation(s) and killing – for the passions of a reasonable person to cool (d) D in fact did not cool off between provocation and killing 2) Good Faith Mistake: A D who intentionally kills victim under good faith, but unreasonably mistaken belief as to self-defense (so called “imperfect self-defense”), defense of others or crime prevention can successfully argue their homicide crime should be mitigated to voluntary MS. |
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Involuntary Manslaughter
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Involuntary manslaughter exists if the killing was committed with criminal negligence OR during the commission of an unlawful act
1) Intent to inflict slight bodily injury -- D kills vic with no intent to kill or inflict GBI, but did have intent to inflict slight BI. This is typically a non-aggravated (no weapon) battery or assault that causes death of victim. 2) Criminal Negligence -- D kills vic while acting in a more than ordinary negligent manner but the D’s conduct does not present a high enough risk of death for depraved heart recklessness. D’s conduct is a “gross deviation” from the standard of care that a RP would observe. 3) “Misdo – M/S” Rule -- D kills while committing a non-inherently dangerous felony or a malum in se (inherently wrongful) as opposed to malum prohibitum crime. |
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Self-defense
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Use of Deadly Force:
- Majority Rule: OK if victim is (i) without fault; (ii) confronted with an “unlawful force”; and (iii) threatened with imminent death/great bodily harm - - Allows victim to use deadly force ANYTIME reasonably believe deadly force is about to be used on them - Minority/Common Law Rule: -- Requires a victim to retreat if it is safe to do so BEFORE using deadly force in self defense UNLESS one of the following apply: (a) You are in your home when attacked (b) You are the victim of a rape or robbery (c) Police don’t have a duty to retreat in making an arrest |
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Defense of Others
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D can use deadly force if reasonable/necessary to defend another.
a) Victim not entitled to self-defense: Can a D use deadly force to protect a criminal or initial aggressor who had no right to use self-defense against their “attacker”? i. Majority Rule: D may claim this defense if the victim reasonable appears to have the right to use deadly force, even if the “other” does not actually have that right. ii. Minority Rule, a D can use no more force than the person they are defending (“ steps into shoes of person defended”) |
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Justification
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If a homicide (or other crime) is justified, the D is not criminally liable for the crime.
(1) Self-defense (2) Defense of Others: (3) Crime Prevention: A police officer or private person may use deadly force if reasonably necessary to prevent commission of a dangerous felony. (4) Apprehension/Arrest of Cirminal: A police officer or private person may use deadly force if reasonable necessary to prevent apprehend/arrest a dangerous felon. (5) Reasonable Mistake: A D may use deadly force based on reasonable mistake as to self-defense, defense of others (majority only) and crime prevention. Only a police officer can use deadly force to apprehend or arrest based on a reasonable mistake. (6) Defense of Habitation/Property: As a general rule, a D cannot use deadly force to protect home or other property. - Exception: Deadly force can be used to protect occupants of home from violent intruder or if intruder intends to commit a felony inside. |
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EXCUSE
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If a homicide (or any other crime) is excused, the D is not criminally liable for the crime.
1) Youth/Infancy: Common law rules apply. a. Under age of 7: No criminal liability. b. Between 7 and 14: Rebuttable presumption of criminal liability. c. Over 14: Treated as an adult. |
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Insanity
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1) M’Naghten or Right/Wrong Test:
i. Defendant , as a result of a mental defect, did not know the wrongfulness of his act OR could not understand the nature and quality of his acts. 2) Irresistible Impulse Test: i. Defendant, as a result of mental defect, was unable to control his conduct or conform his conduct to the law. 3) ALI/Model Penal Code Test i. Defendant lacked the substantial capacity either to appreciate the wrongfulness of his conduct or to conform to the requirements of the law. 4) Durham Test: i. Defendant is not guilty if his crime was the product of a mental disease or defect. |
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Voluntary Intoxication
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Exists when the defendant voluntarily and knowingly consumes an intoxicating substance.
- NO defense to crimes requiring no intent (SL), general criminal intent or malice. - CAN negate specific intent but only if the D is so intoxicated he cannot form the specific intent required for the crime. - It can also preclude a finding of deliberation if the Defendant is charged with first degree murder. |
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Involuntary Intoxication
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Exists when the defendant involuntarily (forced to consume) or unknowingly (voluntarily consume without knowledge substance consumed was an intoxicant).
- Involuntary intoxication is a defense to all crimes if the intoxication renders the defendant “insane” under the applicable test. |
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ASSAULT
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1) Attempted Battery: D attempts (but is unsuccessful) to cause imminent harmful contact with victim.
NOTE: The “attempted battery” assault is a specific intent crime. 2) Intentional creation of a reasonable apprehension of contact: D attempts to cause victim to reasonably apprehend imminent harmful contact. |
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BATTERY
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The unlawful application of force to another person causing bodily injury or offensive contact.
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KIDNAPPING
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The confinement of another person involving either movement or concealment of the victim.
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LARCENY
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The trespassory taking and carrying away of personal property of another with the intent to permanently deprive.
1) Trespassory: D must take possession of victim’s property without the consent of the victim. For consent to exist, the victim must consent before the taking. 2) Taking and Carrying Away: Defendant must move the property as part of attempt to take possession. Slight movement is enough! 3) Personal Property of Another: Larceny is a crime against possession, not ownership. An owner can commit larceny over property he owns if the owner gives possession of it to the victim. 4) With Intent to Permanently Deprive: Defendant must have the specific intent to keep the property (no intent to return) and the intent must exist at the time of the taking. i. Continuing Trespass Doctrine: If taking wrongful, and then you later decide to steal, trespass continues…still larceny. |
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LARCENY BY TRICK
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Same definition as larceny, but the taking occurs with the victim’s apparent consent. But the consent is negated b/c acquired by the D’s misrepresentation (“trick”).
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EMBEZZLEMENT
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The fraudulent conversion of the property of another by one in rightful possession.
1) Fraudulent conversion: The D must deal with victim’s property in some manner inconsistent with vic’s grand of possession of the property to the D. 2) By one in rightful possession: |
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FALSE PRETENSES
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The acquisition of title to defendant’s property by a false representation with the intent to defraud.
1) Acquisition of Title: The vic must intend to pass title (ownership) not just possession. This is usually when the victim intends to sell the property to the defendant. 2) False Representation: Like larceny by trick, the vic is falsely induced into the transaction. But this transaction is for the passing of title, just not possession. |
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ROBBERY
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A larceny committed from the vic’s person or present by force or threat of force of immediate bodily harm.
1) From victim’s person or present. The D must take the property from the victim’s person or from the victim’s immediate vicinity (property in same room or house is sufficient). 2) By force or threat of force of immediate bodily harm: The D must use force or threaten immediately bodily harm to accomplish the taking (or immediately reacquire it if victim momentarily resists and retakes possession briefly). a) Immediate Bodily Harm: Threats of future bodily harm, or immediate or later non bodily harm are not sufficient for robbery (but would be sufficient for extortion). |
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ARSON
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The burning of a protected structure of another with malice.
1. Burning: There must be some charring of some part of the structure (wall, ceiling beams, etc) caused by fire. A charring of non-fixtures (furniture, paintings) is not sufficient. 2. Protected Structure: At CL, the structure had to be the dwelling house of another. Today, most states protect all structures (residential, industrial, commercial, etc.) 3. Of Another: The protected structure must be in the rightful possession of another when burned. Thus, a landlord who burns a house rented to a tenant can commit arson. 4. Malice: A D is guilty of arson if committed with (1) the intent to burn the structure or (2) with knowledge of the extremely high risk of the structure burning. |
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BURGLARY
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The trespassory breaking and entering of the protected structure of another at nighttime with the intent to commit a felony therein (specific intent crime).
1) Trespassory: D’s entry into the structure must be without the consent of the rightful possessor. 2) Breaking: D’s entry into the structure must involve some physical movement of a door or window or by majority rule today some use of fraud. 3) Entering: Some portion of D’s body (or some object defendant uses to commit the felony inside – a hook to steal a purse) must enter the structure. 4) Protected Structure: At CL, it had to be a dwelling of another. Today, like for arson, most states extend burglary to include ANY structure (residential, commercial, industrial). 5) Of Another: Like arson, burglary is a crime against possession so the structure must be in the rightful possession of another. Again, a landlord can burglarize his own unit if the unit is rented to a tenant. 6) At Night: At CL, the entry had to occur at night. Today, most states have eliminated the nighttime requirement. 7) With Intent to Commit a Felony Therein:The intent to commit a felony must exist at the time the entry occurs. A later formed intent to steal (after entry) does not qualify. |
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ATTEMPT
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ATTEMPT: D is guilty of attempt if D commits an act of perpetration with the intent to commit the intended (target) crime.
1) An Act of Perpetration: D must do more than merely prepare to commit the crime; D must take a substantial step towards its commission or come dangerously close to completing the intended crime. 2) With the Intent to Commit the Crime: D must have the specific intent to commit the target crime. 3) DEFENSES: Merger and Impossibility |
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Merger
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Attempt merges into the target crime so D who actually commits the intended crime cannot be convicted and punished for both attempt and the intended crime.
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Impossibility
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Legal impossibility is a good defense; factual impossible is not.
1) Legal Impossibility: Exists when the acts D intends to commit are not a crime in the jurisdiction. 2) Factual Impossibility: Exists when the acts D intended to commit would be a crime, if the facts were as D believed them to be. |
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SOLICITATION
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Defendant is guilty of solicitation if D asks or requests another to commit a crime.
- Vicarious Liability: if the party solicited actually commits the requested crime, the solicitor will also be liable for the crime. |
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CONSPIRACY
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D is guilty of conspiracy if D enters into an agreement with another party for an unlawful objective and some overt act is performed in furtherance of the unlawful objective.
1) Agreement: An agreement can exist by express words (written or oral) or it can be implied by conduct. Co-conspirators need not meet or even know each other exist. 2) With another party: Need ALL conspirators to actually agree to commit the unlawful objective. An agreement with an undercover police officer who only feigns agreement is not a conspiracy. *Minority Rule (MPC) follows the unilateral conspiracy rule and provides that “one guilty mind” is enough for conspiracy if the guilty mind believed the other party was actually agreeing to commit the unlawful purpose. *Wharton’s Rule: If the target crime requires two parties, then there is no conspiracy to duel unless there are three or more parties. 3) For an unlawful objective 4) Overt Act: Today, most states also require that one of the conspirators perform an “overt act” in furtherance of the unlawful purpose. Just about anything will qualify as an overt act so not really testable on exam. 5) Vicarious Liability: All conspirators are liable for any crime committed by any other conspirator so long as that crime was (1) reasonable foreseeable and (2) in reasonable furtherance of the conspiracy. |
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Defense of Conspiracy
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1) Withdrawal: D must timely communicate to withdraw before the target crime occurs.
i. Effect: Liable for conspiracy, not for target crime. ii. Withdrawal that thwarts crime: Under the minority rule (MPC), if the withdrawing conspirator goes to the police in time to permit the police to stop the target crime, the conspirator will not be liable for conspiracy or the target crime. 2) Impossibility: Same as attempt |
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Accomplice Liability
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More than one party may participate in a crime, NEED INTENT.
1) Parties to a Crime: Under the majority rule today, a party to a crime may be a principal, accomplice or an accessory after the fact. 2) Principal: one who, with the intent to commit the crime, causes the crime to occur. 3) Accomplice: One who, with the intent the crime be committed, aids, counsels or encourages the principal. NOTE: Silent approval is not sufficient. |
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Accessory after the Fact
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One who, with the intent to help a felon escape or avoid arrest or trial, receives, relieves or assists a known felon after the felony has been completed.
Under the MAJORITY RULE, an accessory after the fact is not liable for the crimes committed by the principal, but instead for a separate crime of “obstructing justice’ which usually carries a lesser punishment (up to a five year sentence). |
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Duress
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A D’s criminal liability (except an intentional homicide) is excused if the crime is committed under the threat of imminent death or great bodily harm.
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Entrapment
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A D will have no liability for a crime if committed because defendant was entrapped by government officials.
1) Not pre-disposed to commit crime: To succeed on an entrapment defense (an affirmative defense so D has the burden of proof) the D must show the criminal plan originated with the government and D was not pre-disposed to commit the crime prior to the contact with the government. |
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Reasonable Mistake of Fact
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If the D makes a reasonable mistake of fact or is ignorant of a fact that negates the required mental state for the crime, D is not guilty of that crime.
EX: Homeowner hears what he thinks is burglar breaking into window at night, and mistakenly shoots his soon who is sneaking home holding his cell phone. H is not liable for murder or any lesser offense b/c his mistake was reasonable. |
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Unreasonable Mistake of Fact
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If the D is mistaken or ignorant of a fact, but the mistake is unreasonable under the circumstances, then the mistake is a defense only if the crime is a specific intent crime.
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Mistake of Law
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A mistake or ignorance of the law is no defense if charged with violation of that law.
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Self Defense - Initial Agressor
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D is the initial aggressor: D cannot assert self-defense as justification unless;
i. The D initial aggressor withdraws, OR ii. The D initially used non-deadly force and is now faced with attacked suddenly using deadly force. iii. If safe retreat is available, the initial aggressor must retreat before using deadly force. |
