Criminal Law

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Federal Criminal Jurisdiction

Back 1

The power of the federal government to create crime falls into the following broad categories:
a. Power over federally owned or controlled territory. The federal government has extensive power to enact general criminal codes governing conduct in the District of Columbia, the territories, and federal enclaves (naval yards, federal courthouses, national parks, etc.)
b. Power over conduct occurring within a state. Federal power to criminalize conduct within a state is limited by the requirement that each statute be founded upon an express or implied constitutional grant of authority.
c. Power over United States Nationals abroad. Federal criminal statutes may, by express provision, reach conduct by citizens while on foreign soil.
Power over conduct on ships or airplanes. Federal maritime jurisdiction extends to conduct by all persons aboard American ships or aircraft when on or over the high seas or even in foreign waters or ports.

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State Criminal Jurisdiction

Back 2

Common Law: only the state in which the situs of the crime is located has jurisdiction. Situs is defined as the place where the proscribed act or omission takes place, if the crime is defined in these terms; or the place of the harmful result, if the crime includes a result as a material element.
Modern: A person is subject to prosecution in a state for an offense that he commits within or outside the state, by his own conduct or that of another for which he is legally accountable, under the following conditions:
1) When the offense is committed wholly or partly within the state. Partly within the state includes occurrences within the state of either (i) conduct that is an element of the offense, or (ii) a result constituting such an element.
2) When there is conduct outside the state that constitutes an attempt or conspiracy to commit an offense within the state plus an act inside the state; or
3) When there is conduct within the state constituting an attempt, solicitation, or conspiracy to commit, in another jurisdiction, an offense under the laws of both the state and such other jurisdiction; or
When an offense based on the omission of performance of a duty imposed by the law of a state is committed within that state, regardless of the location of the offender at the time of the omission.

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Constitutional Crimes

Back 3

The Constitution defines treason as levying war against the United States, adhering to enemies of the United States, or giving them aid and comfort. No person can be convicted of treason unless two witnesses testify to the same overt act, or unless the defendant confesses.

Front 4

Specific Intent Crimes

Back 4

Purpose
• first-degree murder
• assault
• inchoate offenses (solicitation, attempt, conspiracy)
• property-related offenses (larceny, embezzlement, false pretenses, robbery, burglary, forgery, etc.)

Kansas distinctions: 2nd degree murder is specific intent if done intentionally. Robbery and assault are general intent crimes.

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Malice Crimes

Back 5

Greater than or equal to recklessness

Murder
Arson

Front 6

General Intent Crimes

Back 6

Greater than or equal to criminal negligence

Rape, battery, kidnapping

Front 7

Strict Liability

Back 7

No mens rea

Statutory Rape
Public health and safety regulations

Front 8

Model Penal Code Mens Rea-Purposely

Back 8

A person acts purposely with respect to his conduct when it is his conscious object to engage in certain conduct or cause a certain result.

Front 9

Model Penal Code mens rea-Knowingly

Back 9

A person acts knowingly with respect to the nature of his conduct when he is aware that his conduct is of that nature or that certain circumstances exist. He acts knowingly with respect to the result of his conduct when he knows that his conduct will necessarily or very likely cause such a result. Conduct performed knowingly also satisfies the mental state of a statute that requires willful conduct.

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Model Penal Code mens rea-Recklessly

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A person acts recklessly when 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. An act performed recklessly is also performed wantonly. Recklessness requires that the actor take an unjustifiable risk and that he know of and consciously disregard the risk.

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Model Penal Code mens rea-Negligence

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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. Objective standard. Violation of a state statute, municipal ordinance, or administrative regulation may be evidence of liability.

Front 12

Kansas mens rea

Back 12

Tracks MPC but uses intentionally instead of purposely. In KS, if it says intentionally it is a specific intent crime and all others are general intent (except strict liability)

Front 13

Transferred Intent

Back 13

Intent to harm a particular individual or object transfers if instead the defendant causes similar harm to another person or object.

Front 14

Concurrence Rule

Back 14

Mens rea for offense must exist simultaneously with commission of the offense.

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Accomplice Liability

Back 15

One is liable for a crime someone else commits if he (1) assisted (aided, encouraged, advised) and intended to assist in the commission of the crime.

Front 16

Principal in the first degree

Back 16

Present at the scene and commits at least one element of the crime.

Front 17

Principal in the second degree

Back 17

Present at the scene and assists but does not commit any element of the crime. (Driver or lookout).

Front 18

Accessory before the fact

Back 18

Not at the scene but provided assistance beforehand.

Front 19

Accessory after the fact

Back 19

Not at the scene but provided assistance after the crime was over. (Hideout provider).

Not liable for the crime committed but is liable for a separate crime of being accessory after the fact.

Front 20

Principles and accessory before the fact

Back 20

Liable for the crime committed and foreseeable crimes.

Note: even if they agree that no one will bring a gun to the robbery is still foreseeable if one does bring a gun and uses it.

Front 21

Withdrawal

Back 21

Encourager must discourage.

Aider must neutralize assistance given, prevent crime, or notify authorities.

Front 22

Solicitation

Back 22

Asking or encouraging someone to commit a crime with intent that they commit the crime.

Complete once words spoken.

Merges into completed target offense (but in KS can withdraw through prevention and renunciation).

Impossibility is no defense.

Front 23

Conspiracy

Back 23

Agreement to commit unlawful acts with intent to achieve the object of the agreement.

In Kansas and the majority but NOT common law, must also have an overt act, however minor, in furtherance of the conspiracy.

Unilateral (minority/UPC): only one party must have intent to achieve target objective (other is undercover cop).

Bilateral (majority, KS, common law): both parties to agreement must have intent to achieve target objective (both are criminals).

May be liable for: conspiracy itself, completed target crime (no merger), and foreseeable crimes by co-conspirators in furtherance of the conspiracy.

Impossibility is no defense.

Hint 23

Withdrawal:

Common Law: voluntarily withdrawing plus notifying co-conspirators in tie for them to abandon plans:

(1) is not a defense against the conspiracy itself.
(2) is not a defense against already completed crimes of co-conspirators.
(3) is a defense against further crimes of co-conspirators.

MPC: voluntarily withdrawing plus thwarting success of the conspiracy is a defense against the conspiracy itself.

Kansas: Defense to conspiracy by withdrawing and communicating if done before the first overt act.

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Attempt

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Common Law: dangerous proximity toward completion of crime.

MPC: substantial step, beyond mere preparation, toward completion of the crime.

KS: overt act beyond mere preparation.

and (all) intent to commit a crime.

Merges into completed target offense.

Impossibility: factual impossibility is not a defense. Legal impossibility is a defense.

Front 25

Battery

Back 25

The unwanted touching of another person.

General intent.

KS: knowingly or recklessly.

Injury is not required.

Aggravated battery is battery plus:
1) deadly or dangerous weapon
2)serious bodily injury, or
3) child or police officer is victim

Front 26

Assault

Back 26

Attempted battery or putting someone in reasonable apprehension of an imminent battery.

Specific intent (KS is knowingly so general intent)

Merges into battery once unwanted touching occurs.

Aggravated assault is assault plus:
1) deadly weapon, or
2) with intent to rape, maim, or murder.

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Murder

Back 27

The unlawful killing of another person with malice aforethought.

1) Intent to kill,
2) intent to inflict serious bodily injury,
3) gross recklessness in risking human life (depraved heart or implied malice)
4) felony murder

Front 28

Felony Murder

Back 28

A killing during the course of a felony.

Strict liability.

Liability limitations:
Killing at common law could be by anyone. Modern is only by co-defendant.
During: to and from scene.
Felony: proved beyond reasonable doubt (but does not have to be charged)
Foreseeability: broadly applied; intent irrelevant

Front 29

Voluntary Manslaughter

Back 29

Murder plus heat of passion.

Heat of passion is:
1) sudden and intense reaction
2) adequate provocation: inflame ordinary person, words alone insufficient.
3) no cooling off period

KS: can be charged when there was imperfect self defense

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Involuntary Manslaughter

Back 30

The unlawful killing of another person with negligence or recklessness.

KS is only recklessness because KS has vehicular homicide statute.

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First Degree Murder

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The unlawful killing of another person with premeditation and deliberation.

Specific intent.

In KS premeditation and deliberation can happen in the blink of an eye.

Also felony murder, which is strict liability and is the killing during the course of a specified felony.

Included felonies: serious felonies enumerated by statute (rape, burglary, robbery, arson, kidnapping). KS includes child abuse, fleeing and alluding from police, and others.

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Second Degree Murder

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Catch all: every other common law murder (intentional, serious bodily injury, depraved heart, felony murders not specified as first-degree).

KS: is specific intent if intentional (not depraved heart).

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Rape

Back 33

Sexual intercourse by force or threat of force without consent.

General intent.

KS: lack of consent is 1) overcoming force or fear, 2) victim is under 14, or 3) victim is incapable of giving consent.

Reasonable mistake as to consent exculpates.

Front 34

Statutory Rape

Back 34

Sex with a minor (defined by state law).

Strict liability.

KS is under 14.

Mistake is no defense.

Front 35

False Imprisonment

Back 35

Confinement of victim against will.

General intent.

Front 36

Kidnapping

Back 36

Movement (asportation) of victim against will.

KS: criminal restraint

General intent.

In KS need greater mens rea: specific intent to ransom, flee from authorities, inflict injuries on victim, or interfere with government function.

Some courts require movement beyond that incident to other crimes, such as robbery or rape. (Unclear in KS)

Front 37

Larceny

Back 37

A taking and carrying away of tangible personal property of another by trespass with intent to permanently deprive the person of his interest in the property.

Title does not pass.

Brief dispossession suffices.

Personal property only.

Front 38

Embezzlement

Back 38

The fraudulent conversion of property of another by a person in lawful possession of that property.

Front 39

False Pretenses

Back 39

Obtaining title to the property of another by an intentional false statement of past or existing fact with intent to defraud the other.

Title passes!

Front 40

Larceny by trick

Back 40

If only custody of the property is obtained by the defendant, the offense is larceny by trick.

Front 41

Robbery

Back 41

A taking of personal property of another from the other's person or presence by force or intimidation with the intent to permanently deprive him of it.

KS: is knowingly so is general intent.

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Extortion

Back 42

Seeking to obtain another's property by future threat with intent to permanently deprive.

Front 43

Receiving Stolen Property

Back 43

Receiving another's personal property with knowledge that it has been stolen and intent to permanently deprive.

Front 44

Forgery

Back 44

Making or altering of a false writing with intent to defraud.

Front 45

Uttering

Back 45

Offering as genuine an instrument that may be the subject of forgery and is false.

Does not merge with forgery.

Front 46

Malicious Mischief

Back 46

Malicious destruction of, or damage to the property of another.

Front 47

Burglary

Back 47

Common Law: A breaking and entry of the dwelling of another at nighttime with the intent of committing a felony therein.

Modern: take away dwelling and night. KS also takes away breaking requirement.

Front 48

Arson

Back 48

Common Law: The malicious burning of the dwelling of another.

Modern: Burning of any structure.

Mens Rea: Malice

KS: Explosions are included. Also is knowingly except accidentally starting fire or making explosion while making drugs.

Front 49

Houseburning

Back 49

Malicious burning of one's own dwelling if the structure is situated either: (1) in a city or town; or (2) so near to other houses as to create a danger to them.

Front 50

Possession

Back 50

Possession of a prohibited item with knowledge of possession of item.

Possession can be:
(1) Actual: physically has item.
(2) Constructive: controls access to item
(3) Joint: more than one person may possess item at same time

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Causation

Back 51

Actual Cause: but for defendant's conduct, prohibited result would not have occurred.

Proximate Cause: result was foreseeable, i.e. it was the natural and probable consequence of defendant's conduct.

Front 52

M'Naughten

Back 52

A disease of the mind caused a defect of reason 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

Front 53

Irresistible Impulse

Back 53

A defendant 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.

Front 54

Durham Test

Back 54

A defendant 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.

Front 55

ALI or Model Penal Code Test

Back 55

The defendant 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:
(1) appreciate the criminality (wrongfulness) of his conduct; or
(2) conform his conduct to the requirements of the law.

Front 56

Intoxication

Back 56

Involuntary-without knowledge or against will. Is a defense to all crimes. Apply insanity test (so in KS has to negate mens rea).

Voluntary-knowingly self induced. Defense against specific intent crimes if it negates mens rea.

Front 57

Infancy

Back 57

Common Law:
-Under 7 no liability
-Under 14 no liability, rebuttable by clear showing the defendant appreciated nature and quality of act.
-Over 14 liability as an adult.

MPC:
-Under 16 juvenile court has exclusive jurisdiction for delinquency
-16-17 same unless juvenile court approves for trial as adult in criminal court.

KS: Juvenile jurisdiction is for ages 10-18 but from ages 14-18 state can try as adult if certified.

Front 58

Mistake of Fact

Back 58

Specific intent crimes: Any mistake that negates mens rea, however unreasonable.

General intent and malice: only a reasonable mistake that negates mens rea.

Strict liability: no defense.

Front 59

Mistake of Law

Back 59

No defense generally.

Exception: relied on interpretation of official responsible for interpreting or enforcing law at issue.

Also exception when mens rea of crime includes knowledge of relevant law.

Front 60

Self Defense-Non-Deadly Force

Back 60

Non-deadly force allowed when reasonably believed force used was necessary to defend against imminent unlawful force. Retreat is not required.

Front 61

Self Defense-Deadly Force

Back 61

Reasonably believed force used was necessary to defend against imminent unlawful deadly force or serious bodily injury.

Retreat: majority does not require. Minority and common law retreat is required unless: (1) in home, (2) rape or robbery (3) making lawful arrest.

KS: retreat required unless in home, at work or in car then can stand ground. Also aggressor can only use deadly force if retreat is not possible in the case of an escalation from non-deadly force to deadly force by victim.

Front 62

Self Defense-Aggressor

Back 62

Aggressor has no right to self-defense unless:
-withdrawal plus communication
-escalation from non-deadly force to deadly force by victim.

Front 63

Defense of others

Back 63

May use such force to defend others (non-deadly or deadly) as reasonably believed others may use to defend themselves.

Front 64

Defense of property

Back 64

Non-deadly force can be used when reasonably believed necessary to prevent imminent unlawful entry or dispossession.

Deadly force-not allowed to protect property. Narrow exception in home if reasonably believed necessary to defend against entry with intent to seriously injure or commit forcible felony.

Front 65

Duress

Back 65

Defense for crimes, except homicides, if reasonably believed:

Under threat by another person, of imminent death or serious bodily injury to self or family (or possibly any third party) with no reasonable way out of the situation and the defendant is not at fault in bringing about the situation.

Front 66

Necessity

Back 66

Defense for crimes, likely excluding homicide if reasonably believed:

Necessary to avoid greater imminent harm to society from natural forces.Cannot kill to protect property or likely even to protect more lives.

Economic forces do not count so cannot steal food.

Front 67

Entrapment

Back 67

(1) The criminal design must have originated with law enforcement officers; and (2) the defendant must not have been predisposed to commit the crime prior to the initial contact by the government.

Opportunity is not entrapment. State actors only.