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226 Cards in this Set
- Front
- Back
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What is "EED"?
- Application? |
Applies to NY Manslaughter
DEF: NY Manslaughter: An intentional killing committed under the influence of a reasonable and EXTREME EMOTIONAL DISTURBANCE |
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NY DEF: Manslaughter
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"EED"
An INTENTIONAL killing committed under reasonable and EXTREME EMOTIONAL DISTURBANCE Remember: NY does NOT have Voluntary/ Involuntary Manslaughter -- Instead: NY has 1st Degree, 2nd, Criminally Negligent Homicide |
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INVOLUNTARY MANSLAUGHTER
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Common Law Only
TWO TYPES 1) Killing committed with CRIMINAL NEGLIGENCE-- i.e. gross deviation from a reasonable standard of care 2) Killing committed during the commission of a crime that does not fall under Felony Murder |
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What are the two types of involuntary manslaughter?
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Common Law Only
NY does not have voluntary/ involuntary! Two Types: 1) Killing committed with CRIMINAL NEGLIGENCE-- i.e. gross deviation from a reasonable standard of care 2) Killing committed during the commission of a crime that does not fall under Felony Murder |
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New York: 2nd Degree Manslaughter
Definition/ Elements? Two Sub-Issues? |
(1) EED Manslaughter; PLUS...
(2) Mental State: RECKLESSNESS - Df is AWARE of and CONSCIOUSLY DISREGARDS a "substantial and justifiable risk of death" Two Sub-Issues 1. Intoxication-- NOT a defense! 2. Aiding in a Suicide = NY 2nd Degree Manslaughter... --- Unless Df used duress/ coercion (then it amounts to 2nd Degree MURDER) |
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VOLUNTARY MANSLAUGHTER
4 Requirements? |
(1) OBJECTIVE PROVOCATION--- Provocation would "arouse a sudden and intense passion in the mind of a reasonable person"
(2) SUBJECTIVE PROVOCATION --- Was THIS defendant provoked? (3) NO OBJECTIVE COOLING OFF --- Objective person would not have had time to cool off (4) NO SUBJECTIVE COOLING OFF ---This Df did not actually off |
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Voluntary Manslaughter
"Objective Provocation" |
Provocation would "arouse a sudden and intense passion in the mind of a reasonable person"
-- Adequate Provocation -- 1) Serious Assault / Battery -- YES 2) Presently Witnessed Adultery-- YES 3) Words Alone --NO!!! |
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What are the two things that have been deemed "adequate provocation" regarding Voluntary Manslaughter?
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1) Serious assault/ battery
2) Presently witnessed adultery ** WORDS ALONE -- NO!! Not enough! |
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Voluntary Manslaughter
-Definition? |
1) Intentional Killing...
2) Committed in the Heat of Passion... 3) with ADEQUATE PROVOCATION |
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OVERVIEW:
What Are the TYPES of MANSLAUGHTER? --Under CL/ MBE? --In NY? |
Common Law
1) Voluntary Manslaughter 2) Involuntary Manslaughter New York 1) 1st Degree 2) 2nd Degree 3) Criminally Negligent Homicide |
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Common law VOLUNTARY MANSLAUGHTER
-- What is "cooling off" |
2 Aspects
1) OBJECTIVE COOLING OFF Passions of a reasonable person would not have cooled between time of provocation and time of killing 2) SUBJECTIVE COOLING OFF Defendant's sudden and intense passions must not have actually cooled |
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New York
2nd Degree Murder - Definition/ Elements? |
3 Different Scenarios Qualify:
1) Any intentional killing that does not qualify for 1st Degree Murder 2) Depraved Indifference Murder/ Extreme Negligence Murder 3) Felony Murder where V is killed UNINTENTIONALLY |
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Depraved Indifference Murder/ Extreme Negligence Murder
Definition/ Elements? |
1) Demonstrating an extreme indifference to human life...
2) Df engages in conduct that presents a grave risk of death to another person... 3) Causes the death of another person New York: qualifies for 2nd Degree Murder! |
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Common Law: LARCENY
-Elements? |
“Thieves Took Carmen’s Purse And Isaac’s Portfolio
T Trespassory T Taking C Carrying Away P Personal Property A of Another, with the… I Intent to… P Permanently Retain the property |
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"Thieves Took Carmen's Purse and Isaac's Portfolio"
Overview? Used For? |
DEF/ Elements of Common Law Larceny
T Trespassory T Taking C Carrying Away P Personal Property A of Another, with the… I Intent to… P Permanently Retain the property |
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"Thieves Took Carmen's Purse and Isaac's Portfolio"
1st T ? |
DEF/ Elements of Common Law Larceny
T TRESPASSORY T Taking C Carrying Away P Personal Property A of Another, with the… I Intent to… P Permanently Retain the property DEF: Trespassory -- Wrongful or Unlawful |
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"Thieves Took Carmen's Purse and Isaac's Portfolio"
T-C ? |
DEF/ Elements of Common Law Larceny
T Trespassory T Taking C Carrying Away P Personal Property A of Another, with the… I Intent to… P Permanently Retain the property "TAKING...And CARRYING AWAY..." Rule: The Property must be MOVED -- "Asportation" |
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"Thieves Took Carmen's Purse and Isaac's Portfolio"
P-A ? |
DEF/ Elements of Common Law Larceny
T Trespassory T Taking C Carrying Away P Personal Property A of Another, with the… I Intent to… P Permanently Retain the property Key Question = Who had the LAWFUL CUSTODY at the time of the taking? If Df has Lawful Custody over the Property---CANNOT be guilty of Larceny for taking it (even if Df doesn’t OWN it) *** NY DISTINCTION *** NY: Even if a person converts goods of which he has LAWFUL POSSESSION-- he will still usually be guilty of SOME form of larceny If Someone Else had Lawful Custody Over the Property (when Df took it) ---Df CAN be guilty of Larceny (even if Df is taking his OWN property) |
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"Thieves Took Carmen's Purse and Isaac's Portfolio"
"I-P" |
DEF/ Elements of Common Law Larceny
T Trespassory T Taking C Carrying Away P Personal Property A of Another, with the… I Intent to… P Permanently Retain the property "INTENT to PERMANENTLY Retain the Property" RULE: If Df intends to give the property back-- the taking is NOT a Larceny |
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Common law LARCENY
- 2 Sub-Issues? |
(1) THE ERRONEOUS TAKINGS RULE
If Df took the property under a CLAIM OR RIGHT made in Good Faith it is NOT LARCENY-- even if Df ERRONEOUSLY believes the property is his! (2) CONTINUOUS TRESPASS RULE - Note: This rule acts as an Exception to the CONCURRENCE Principle - If Df WRONGFULLY takes property, but WITHOUT the intent to steal it-- Df will NOT be guilty of Larceny - If Df LATER on forms the Intent to Steal-- the INITIAL trespassory taking is considered to have CONTINUED- and he will be guilty of larceny |
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Dudley takes Victor’s cell phone from Victor’s bag without Victor’s permission, planning to return the cell phone once he’s finished using it. Is Dudley guilty of LARCENY?
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NO—b/c Dudley plans to give the phone back → he therefore lacks the SPECIFIC Intent to steal that is req’d for Larceny
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Dudley leases his car to Victor for a one-year term. Two months into the lease, Dudley has a change of heart and takes the car back without Victor’s permission, intentionally violating the lease agreement. Is Dudley guilty of Larceny?
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YES—b/c at the time Dudley took the car, Victor had LAWFUL CUSTODY → Therefore: Dudley’s taking is TRESPASSORY—even though Dudley is the owner
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Dudley takes Victor’s laptop, mistakenly believing that the laptop is his. Is Dudley guilty of LARCENY?
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NO—because Dudley’s erroneous CLAIM OF RIGHT negates his liability
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Ex 4: Dudley takes Victor’s cell phone from Victor’s bag without Victor’s permission, planning to return the cell once he’s finished with it. After using it, however, Dudley decides that Victor’s phone is so nice he’s going to keep it. Is Dudley guilty of LARCENY?
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YES-- because Dudley's conduct constitutes a CONTINUING TRESPASS under these circumstances
(Exception to the Concurrence Principle) |
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DEF: Common Law Murder
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The unlawful killing of a human being with MALICE AFORETHOUGHT
MALICE AFORETHOUGHT: Exists if Df has any of the following states of mind: 1) Intent to Kill (Express Malice) 2) Intent to Inflict SBI 3) Reckless indifference to an unjustifiabily high risk to human life (abandoned and malignant heart) 4) Intent to Commit a Felony (usually an "Inherently Dangerous" felony) |
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DEF: New York Larceny
(4 MAJOR CRIMES) |
Any crime that would be…
• (1) LARCENY, • (2) EMBEZZLEMENT, • (3) FALSE PRETENSES or • (4) LARCENY BY TRICK.... ....at Common Law = NY Larceny |
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DEF: New York Larceny
(4 MAJOR CRIMES) |
Any crime that would be…
• (1) LARCENY, • (2) EMBEZZLEMENT, • (3) FALSE PRETENSES or • (4) LARCENY BY TRICK.... ....at Common Law = NY Larceny |
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NY Larceny
5 Statutory ACTS that constitute LARCENY |
By Statute: the following ACTS are Larceny In NY:
1) Acquiring Property known to be lost or mislaid 2) Issuing a BAD CHECK (*HIGHLY TESTED*) 3) False Promise 4) Extortion 5) Appropriating Leased or Rented Items These are IN ADDITION TO THE GENERAL CRIMES OF:• (1) LARCENY, •(2) EMBEZZLEMENT, (3) FALSE PRETENSES or (4) LARCENY BY TRICK.... |
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Issuing a Bad Check...
In NY-- this is the crime of? |
LARCENY
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DEF: Common law Murder
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The unlawful killing of a human being with MALICE AFORETHOUGHT
MALICE AFORETHOUGHT: Exists if Df has any of the following states of mind: 1) Intent to Kill (Express Malice) 2) Intent to Inflict SBI 3) Reckless indifference to an unjustifiabily high risk to human life (abandoned and malignant heart) 4) Intent to Commit a Felony (usually an "Inherently Dangerous" felony) |
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New York
2nd Degree Murder - Definition/ Elements? |
3 Different Scenarios Qualify:
1) Any intentional killing that does not qualify for 1st Degree Murder 2) Depraved Indifference Murder/ Extreme Negligence Murder 3) Felony Murder where V is killed UNINTENTIONALLY |
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What are the DEGREES of LARCENY in New York?
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*** Determined by the VALUE of what is taken ***
1st Degree → More than $1 million 2nd Degree → More than $50k - More than $50k OR "Extortion By Fear Of: (a) Physical Injury (b) Damage to Property; OR (c) Df's Abuse of His Power As a Public Servant 3rd Degree → More than $3k --More than $50k OR... ...Where the Property is an ATM or the contents of an ATM 4th Degree → More than $1k -- Property Over $1k...OR -----Public Records ----Secret Scientific Material ----Property Taken by Extortion ----Credit Cards/ Debit Cards ----Firearms ----Cars with value greater than $100 Petit Larceny → Lesser Amounts |
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NY: 2nd Degree Larceny
- Definition/ Elements? |
*** NY Larceny = determined by VALUE of What is Taken
2nd Degree → More than $50k - More than $50k OR "Extortion By Fear Of: (a) Physical Injury (b) Damage to Property; OR (c) Df's Abuse of His Power As a Public Servant |
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NY: 1st Degree larceny
- Definition? |
*** Determined by the VALUE of what is taken ***
1st Degree → More than $1 million |
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NY: 3rd Degree Larceny
Definition? |
*** Determined by the VALUE of what is taken ***
3rd Degree → More than $3k --More than $50k OR... ...Where the Property is an ATM or the contents of an ATM |
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NY: 4th Degree Larceny
Definition? |
*** NY Larceny = determined by VALUE of What is Taken
4th Degree → More than $1k -- Property Over $1k...OR -----Public Records ----Secret Scientific Material ----Property Taken by Extortion ----Credit Cards/ Debit Cards ----Firearms ----Cars with value greater than $100 |
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NY: Petit Larceny
-Definition? |
*** NY Larceny = determined by VALUE of What is Taken
Anything UNDER $1k |
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Does the CRIME of NY Larceny impose CIVIL LIABILITY?
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YES...
Civil liability is imposed on any adult and parents of minors... OBLIGATION: is to repay the FULL RETAIL VALUE of the merchandise if it is not recovered in a merchantable condition PLUS: A penalty not to exceed $500 |
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DEF: Receipt of Stolen Property
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1) Receiving Possession...
2) CONTROL of "stolen" personal property... 3) That is KNOWN to have been obtained in a manner constituting a criminal offense by another person 4) Mental State: Intent to Permanently deprive the owner of his interest in the property NOTE: The property must have "STOLEN STATUS" at the time is RECEIVED by the defendant! |
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Common Law EMBEZZLEMENT -- Definition?
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1) CONVERSION…
2) of the personal property of another… 3) by a person ALREADY IN LAWFUL POSSESSION of that property 4) Mental State: SPECIFIC Intent to DEFRAUD |
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Common Law EMBEZZLEMENT -- Definition?
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1) CONVERSION…
2) of the personal property of another… 3) by a person ALREADY IN LAWFUL POSSESSION of that property 4) Mental State: SPECIFIC Intent to DEFRAUD * "CONVERSION"The CONVERSION need not be to enrich YOURSELF (purpose is irrelevant—so long as there is a conversion) I.e. the conversion can be for the purposes of enriching a third party |
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Common Law EMBEZZLEMENT
Explain the "Conversion" Element |
The CONVERSION need not be to enrich YOURSELF (purpose is irrelevant—so long as there is a conversion)
I.e. the conversion can be for the purposes of enriching a third party * "BY A PERSON ALREADY IN LAWFUL POSSESSION"* Possession: involves MORE than mere custody → it requires the AUTHORITY to exercise some DISCRETION over the property * MENTAL STATE: "SPECIFIC INTENT TO DEFRAUD"* If Df intends to give the EXACT property back in the EXACT form → No intent to defraud |
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Common law EMBEZZLEMENT
Explain the 3rd Element: "By a person already in lawful possession of that property" |
POSSESSION vs. Custody
Possession: involves MORE than mere custody → it requires the AUTHORITY to exercise some DISCRETION over the property |
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Common Law
Embezzlement vs. Larceny |
Key Difference = in Embezzlement: Df must already have LAWFUL POSSESSION of the property BEFORE a taking can be considered embezzlement
How To Remember This .... Think of Embezzlement as the WHITE COLLAR version of Larceny WHY: because the “lawful possession” Req means AUTHORITY to exercise discretion over the property i.e. think of bank managers, trustees, high-ranking corporate directors → these are all people higher up in the corporate/ business structure—the ones who ALREADY have this authority |
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What is the Mental State required for Common Law Embezzlement?
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SPECIFIC INTENT TO DEFRAUD
If Df intends to give the EXACT property back in the EXACT form → No intent to defraud |
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A trustee siphons off trust money and donates the money to her favorite charity. LARCENY, EMBEZZLEMENT, or Neither?
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This is classic EMBEZZLEMENT—because it was lawful possession converted for her own use
Remember: the conversion need not be for Df to enrich herself! (can be for the purpose of enriching someone else—so long as there is conversion!) |
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A bank security guard wrongfully takes $1000 from the bank’s vault. LARCENY, EMBEZZLEMENT, or Neither?
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LARCENY—because the guard lacks the DISCRETIONARY AUTHORITY over the money in the vault that is necessary for Embezzlement
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The curator of an art museum sells a $50k painting entrusted to his care without asking the owner’s permission. The curator intends to buy the painting back, after doubling the $50k from the sale by playing blackjack in Vegas. Unfortunately, he loses all the money. LARCENY, EMBEZZLEMENT, or Neither?
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NEITHER—because the Curator’s intent to return the painting NEGATES the SPECIFIC INTENT necessary for both Larceny and Embezzlement
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Common Law CONSPIRACY
"UNILATERAL APPROACH" |
CL conspiracy requires that there be an agreement between TWO OR MORE conspirators...
In UNILATERAL APPROACH Jx: only ONE party is required to have a "guilty mind" In Other Words: the 2nd party in the conspiracy can come from a law enforcement officer in the course of a STING operation |
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DEF: Criminal Attempt
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An act that, although done with the intention of committing a crime, falls short of COMPLETING the crime
Requirements 1) SPECIFIC Intent to commit the crime 2) an OVERT ACT in furtherance of that intent |
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Common Law CONSPIRACY
"UNILATERAL APPROACH" |
CL conspiracy requires that there be an agreement between TWO OR MORE conspirators...
In UNILATERAL APPROACH Jx: only ONE party is required to have a "guilty mind" In Other Words: the 2nd party in the conspiracy can come from a law enforcement officer in the course of a STING operation |
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DEF: Criminal Attempt
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An act that, although done with the intention of committing a crime, falls short of COMPLETING the crime
Requirements 1) SPECIFIC Intent to commit the crime 2) an OVERT ACT in furtherance of that intent |
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What is the Mental State required for CRIMINAL ATTEMPT?
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SPECIFIC INTENT to commit the underlying crime
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What is the Mental State required for CRIMINAL ATTEMPT?
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SPECIFIC INTENT to commit the underlying crime
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Common Law FALSE PRETENSES
- Def/ Elements? |
1) Obtaining TITLE… (ownership)
2) to the Personal Property of Another… 3) by an INTENTIONAL FALSE STATEMENT 4) Mental State: SPECIFIC Intent to DEFRAUD |
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Common Law FALSE PRETENSES
- Def/ Elements? |
1) Obtaining TITLE… (ownership)
2) to the Personal Property of Another… 3) by an INTENTIONAL FALSE STATEMENT 4) Mental State: SPECIFIC Intent to DEFRAUD "False Statement" -- must be of a PAST or PRESENT event-- NOT a FUTURE promise! |
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Common Law FALSE PRETENSES
Explain the Element of "Intentional False Statement" |
must be of a PAST or PRESENT event-- NOT a FUTURE promise!
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False Pretenses vs. Larceny
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Larceny—Df gets only CUSTODY of the property
False Pretenses—Df gets TITLE (i.e. ownership) of the property |
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False Pretenses vs. Larceny By Trick
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Both involve an “Intentional False Statement”—BUT…
Larceny By Trick—(as with pure Larceny)—Df obtains only CUSTODY (not TITLE) as a result of the intentional false statement |
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Dudley says to Victor: “If you give me your cell phone, I will write you a $100 check on my new checking account, which has a balance of $1000 today.” Dudley knows that the checking account is empty. Victor agrees to the deal and gives Dudley the cell phone in return for a $100 check. Is Dudley guilty of FALSE PRETENSES?
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YES—b/c Dudley made an INTENTIONAL FALSE STATEMENT with the INTENT TO DEFRAUD and obtained TITLE (ownership) to the cell phone
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Dudley says to Victor: “If you give me your cell phone, I will give you $100 cash tomorrow.” Dudley has no intention of paying the money. Victor agrees to the deal and gives Dudley the cell phone. Is Dudley guilty of FALSE PRETENSES?
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NO—RULE = Promises of FUTURE conduct are insufficient for False Pretenses
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Dudley says to Victor: “If you lend me your cell phone for one month, I will write you a $100 check on my new checking account.” Dudley knows that the checking account is empty. Victor agrees to the deal and lends Dudley the cell phone in return for a $100 check. Is Dudley guilty of LARCENY, LARCENY BY TRICK, or FALSE PRETENSES?
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LARCENY BY TRICK—b/c with respect to the cell phone—Dudley has gained TEMPORARY CUSTODY only—NOT TITLE
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ISSUING BAD CHECKS
- NY Rule? |
** HIGHLY TESTED **
** If the check is used to OBTAIN PROPERTY --> it is LARCENY ELEMENTS 1) Person puts a check into a circulation... 2) Knowing that he does not have sufficient funds to cover it 3) With the INTENT or belief that the payment will be refused by the drawee (person he gives it to) 4) Payment IS refused by drawee *NOTE* Crime is committed even if Df does not draw the check, but passes it as a transfer PRESUMPTION: Knowledge and Intent of the drawer will be PRESUMED IF 1) no account exists with the drawee; OR 2) He has insufficient funds on the account at time of issuance |
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ISSUING BAD CHECKS
- NY Rule? |
** HIGHLY TESTED **
** If the check is used to OBTAIN PROPERTY --> it is LARCENY ELEMENTS 1) Person puts a check into a circulation... 2) Knowing that he does not have sufficient funds to cover it 3) With the INTENT or belief that the payment will be refused by the drawee (person he gives it to) 4) Payment IS refused by drawee *NOTE* Crime is committed even if Df does not draw the check, but passes it as a transfer PRESUMPTION: Knowledge and Intent of the drawer will be PRESUMED IF 1) no account exists with the drawee; OR 2) He has insufficient funds on the account at time of issuance |
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ISSUING BAD CHECKS
NEW YORK Rule "Affirmative Defense" ?? |
Affirmative Defense Exists IF:
1) Df makes the check good on the check within 10 days of it being dishonored; OR 2) DF was an employee acting at the direction of his employer and not for his own benefit |
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What is the MPC Test for INSANITY?
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Df is entitled to acquittal if he suffered from a mental disease or defect and as a result lacked substantial capacity to EITHER...
1) Appreciate the CRIMINALITY of his conduct; OR 2) Conform his conduct to the requirements of the law *NOTE* MPC Test combines the M'Naghten and "irresistable impulse" tests |
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What is the MPC Test for INSANITY?
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Df is entitled to acquittal if he suffered from a mental disease or defect and as a result lacked substantial capacity to EITHER...
1) Appreciate the CRIMINALITY of his conduct; OR 2) Conform his conduct to the requirements of the law *NOTE* MPC Test combines the M'Naghten and "irresistable impulse" tests |
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What is the MPC Test for INSANITY?
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Df is entitled to acquittal if he suffered from a mental disease or defect and as a result lacked substantial capacity to EITHER...
1) Appreciate the CRIMINALITY of his conduct; OR 2) Conform his conduct to the requirements of the law *NOTE* MPC Test combines the M'Naghten and "irresistable impulse" tests |
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Df is entitled to acquittal if he suffered from a mental disease or defect and as a result lacked substantial capacity to EITHER...
1) Appreciate the CRIMINALITY of his conduct; OR 2) Conform his conduct to the requirements of the law ***WHAT TEST IS THIS?? *** |
MPC TEST FOR INSANITY
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Common Law ROBBERY
- Def/ Elements? |
** Think of it as “Larceny +2” **
DEF: Common Law Robbery (ELEMENTS) 1) LARCENY 2) from another’s PERSON or PRESENCE 3) by… (a) Force; or (b) Threat of Immediate Injury 4) Mental State: SPECIFIC Intent to Steal * “PRESENCE” * Remember: the crime can occur directly off the person—OR—some location REASONABLY CLOSE to the victim * “FORCE” * Can be ANY AMOUNT of force sufficient to overcome resistance * “THREATS” * Requires IMMEDIATE injury to constitute a sufficient threat (“your money or your life”) --- Modern Statutes {"Threats" Individual who obtains the property of another thru oral or written threats of FUTURE harm does NOT commit robbery – he commits the crime of EXTROTION (or “blackmail”) |
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What is the Mental State required for Common Law ROBBERY?
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SPECIFIC INTENT to Steal
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What is the Mental State Required for Common Law Robbery?
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SPECIFIC INTENT to Steal
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Common Law ROBBERY
"PRESENCE" |
Remember: the crime can occur directly off the person—OR—some location REASONABLY CLOSE to the victim
Ex: rooms in a house other than the room in which the victim is located! |
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Common Law ROBBERY
"FORCE" |
* “FORCE” *
Can be ANY AMOUNT of force sufficient to overcome resistance Examples • Snatching a chain off the victim’s neck • Snatching a handbag off a woman’s extended arm BUT NOT: Pickpocketing (pickpocketing = LARCENY-- b/c it’s a crime of non-resistance) |
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Common Law ROBBERY
"THREATS" |
* “THREATS” *
Requires IMMEDIATE injury to constitute a sufficient threat (“your money or your life”) --- Modern Statutes {"Threats" Individual who obtains the property of another thru oral or written threats of FUTURE harm does NOT commit robbery – he commits the crime of EXTROTION (or “blackmail”) Ex: Give me your money or I’ll break your legs next time I see you → Extortion, not robbery Ex: Give me your money or I’ll post those pictures of you on the web → Extortion, not robbery |
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Under Modern Statutes, one who obtains the property of another thru oral or written threats of FUTURE harm commits the crime of....
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EXTORTION-- Not Robbery!
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M'Naghten Rule
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INSANITY TEST
Df is entitled to acquittal if a disease of the mind caused a defect of reason, such that Df 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 |
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M'Naghten Rule
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INSANITY TEST
Df is entitled to acquittal if a disease of the mind caused a defect of reason, such that Df 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 |
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Df is entitled to acquittal if a disease of the mind caused a defect of reason, such that Df 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 ** WHAT RULE IS THIS ? ** |
M'Naghten Rule (TEST FOR INSANITY)
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What is defendant's best argument if a particular jx uses the M'NAGHTEN TEST?
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M'Naghten Rule (TEST FOR INSANITY)
BEST ARGUMENT = Show that defendant did not know that the ACT WAS WRONG! RULE: Df is entitled to acquittal if a disease of the mind caused a defect of reason, such that Df 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 |
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New York ROBBERY
Definition? What are the Variations of "ROBBERY" in New York? |
DEF: Robbery -- Forcible Stealing
3rd DEGREE 1) Forcible Stealing 2nd DEGREE 1) Forcible Stealing—PLUS: 2) One of the Following: (a) Df is aided by another who is Actually Present; or (b) Victim is INJURED or THREATENED with physical force (e.g. display of weapon); OR (c) a CAR is stolen (carjacking) 1st DEGREE 1) Forcible Stealing—PLUS: 2) One of the Following: (a) Victim is SERIOUSLY Injured; or (b) Df uses/displays a FIREARM (“add a gun, add a degree!”) |
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NEW YORK
3rd Degree Robbery |
ONE ELEMENT {This is the BASELINE!}
1) Forcible Stealing |
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New York
2nd Degree Robbery |
1) Forcible Stealing—PLUS:
2) One of the Following: (a) Df is aided by another who is Actually Present; or (b) Victim is INJURED or THREATENED with physical force (e.g. display of weapon); OR (c) a CAR is stolen (carjacking) |
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New York
2nd Degree Robbery |
1) Forcible Stealing—PLUS:
2) One of the Following: (a) Df is aided by another who is Actually Present; or (b) Victim is INJURED or THREATENED with physical force (e.g. display of weapon); OR (c) a CAR is stolen (carjacking) |
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NEW YORK
3rd Degree Robbery |
ONE ELEMENT {This is the BASELINE!}
1) Forcible Stealing |
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New York
1st Degree Robbery |
1) Forcible Stealing—PLUS:
2) One of the Following: (a) Victim is SERIOUSLY Injured; or (b) Df uses/displays a FIREARM (“add a gun, add a degree!”) NOTE: Affirmative Defense → UNLOADED GUN RULE: if the Df can prove that the gun was UNLOADED or INOPERABLE → the crime is reduced to 2nd Degree Robbery |
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New York
1st Degree Robbery |
1) Forcible Stealing—PLUS:
2) One of the Following: (a) Victim is SERIOUSLY Injured; or (b) Df uses/displays a FIREARM (“add a gun, add a degree!”) NOTE: Affirmative Defense → UNLOADED GUN RULE: if the Df can prove that the gun was UNLOADED or INOPERABLE → the crime is reduced to 2nd Degree Robbery |
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Annie receives a stolen fur coat from her boyfriend. He tells her that he bought the coat... Later on, she discovers that the coat is stolen, but decides to keep it anyway. CRIME?
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NO-- she has NOT committed the crime of "RECEIPT of STOLEN PROPERTY"-- because this crime requires that Df receive possession and control of stolen property KNOWING that it was stolen by another person and with the INTENT TO PERMANENTLY DEPRIVE the owner of possession
HERE: Annie received the coat not knowing it to be stolen... Therefore: she did not have the INTENT at that time to depirve the true owner of it... Her later decision to keep the coat does NOT relate-back to her earlier conduct! |
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Dudley points what be believes to be a fake gun at Victor, and Victor laughs, assuming the gun to be a toy. He squeezes the trigger, and to both of their surprise, a bullet is fired, killing Victor.
Has Dudley committed a Crime? |
NO-- he did not possess an of the states of mind to constitute "MALICE AFORETHOUGHT.".... Therefore: he cannot be convicted of murder (either 1st or 2nd)
AND-- this is NOT INVOLUNTARY MANSLAUGHTER-- b/c Dudley was not "criminally negligent"-- his behavior may have been "negligent," but id did not rise to the level of "criminal Negligence" |
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Three Kinds of Vehicular Manslaughter in New York?
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2nd Degree
2nd D Vehicular Assault + DEATH 1st Degree 1st D Vehicular Assault + DEATH Aggravated Vehicular Manslaughter (a) Aggravated Vehicular Assault + DEATH ---OR--- (b) 1st D Vehicular Assault PLUS 1 DEATH AND 1 other injured/ dead |
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New York
Aggravated Vehicular Manslaughter |
(a) Aggravated Vehicular Assault + DEATH
---OR--- (b) 1st D Vehicular Assault PLUS 1 DEATH AND 1 other injured/ dead |
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New York
1st Degree Vehicular Manslaughter |
1st D Vehicular Assault + DEATH
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New York
2nd Degree Vehicular Manslaughter |
2nd Degree Vehicular Assault + DEATH
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What is the Mental State required for NY "Criminally Negligent Homicide" ?
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Mental State = CRIMINAL NEGLIGENCE:
"Serious and blameworthy conduct related to a substantial and unjustifiable risk of death" |
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What are the elements of Common Law Battery ?
(4) |
1) The UNLAWFUL...
2) Application of FORCE.. to another... 3) Resulting in EITHER: (a) Bodily Injury; OR (b) An offensive touching 4) Mental State: GENERAL INTENT |
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What are the elements of Common Law Battery ?
(4) |
1) The UNLAWFUL...
2) Application of FORCE.. to another... 3) Resulting in EITHER: (a) Bodily Injury; OR (b) An offensive touching 4) Mental State: GENERAL INTENT |
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What is the mental state required for Common Law BATTERY?
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GENERAL INTENT
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Version #2: Common Law ASSAULT
5 Elements? |
1) Intentional Creation...
2) by more than mere words... 3) Of a REASONABLE FEAR in the mind of the Victim... 4) of IMMINENT BODILY HARM 5) Mental State: SPECIFIC INTENT |
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Version #2: Common Law ASSAULT
5 Elements? |
1) Intentional Creation...
2) by more than mere words... 3) Of a REASONABLE FEAR in the mind of the Victim... 4) of IMMINENT BODILY HARM 5) Mental State: SPECIFIC INTENT |
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What is the mental state required for Common Law ASSAULT?
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SPECIFIC INTENT
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Defendant creates a "reasonable apprehension" of imminent physical injury...
-- What crime in NY? -- What crime under MBE? |
NY: this is MENACING (not assault)...
because all forms of NY Assault require PHYSICAL INJURY -- There is no "offensive touching" version MBE/ COMMON LAW This is Assault-- Version 2 |
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DEF: NY Assault
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1) Intentionally...
2) Causing PHYSICAL INJURY... 3) to another person "PHYSICAL INJURY" Impairment of physical condition or physical pain |
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New York
3rd Degree Assault |
1) Intentionally causing...
2) NON-SERIOUS physical injury 3) to another person |
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New York
2nd Degree Assault |
** BASELINE **
1) Intentionally Causing... 2) SERIOUS physical injury... 3) to another person |
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New York
1st Degree Assault |
1) 2nd Degree NY Assault; PLUS
2) a WEAPON |
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DEF: NY Assault
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1) Intentionally...
2) Causing PHYSICAL INJURY... 3) to another person "PHYSICAL INJURY" Impairment of physical condition or physical pain |
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New York
3rd Degree Assault |
1) Intentionally causing...
2) NON-SERIOUS physical injury 3) to another person |
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New York
2nd Degree Assault |
** BASELINE **
1) Intentionally Causing... 2) SERIOUS physical injury... 3) to another person |
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New York
1st Degree Assault |
1) 2nd Degree NY Assault; PLUS
2) a WEAPON |
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New York
ASSAULT -- 3 Forms? |
3rd DEGREE
1) Intentionally causing... 2) NON-SERIOUS physical injury 3) to another person 2nd DEGREE ** BASELINE ** 1) Intentionally Causing... 2) SERIOUS physical injury... 3) to another person 1st DEGREE 1) 2nd Degree NY Assault; PLUS 2) a WEAPON |
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New York
ASSAULT -- 3 Forms? |
3rd DEGREE
1) Intentionally causing... 2) NON-SERIOUS physical injury 3) to another person 2nd DEGREE ** BASELINE ** 1) Intentionally Causing... 2) SERIOUS physical injury... 3) to another person 1st DEGREE 1) 2nd Degree NY Assault; PLUS 2) a WEAPON |
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Common Law
FALSE IMPRISONMENT |
1) The Unlawful...
2) Confinement of a Person 3) Without his/ her consent 4) Mental State: GENERAL INTENT |
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Common Law
FALSE IMPRISONMENT |
1) The Unlawful...
2) Confinement of a Person 3) Without his/ her consent 4) Mental State: GENERAL INTENT |
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Common Law
FALSE IMPRISONMENT |
1) The Unlawful...
2) Confinement of a Person 3) Without his/ her consent 4) Mental State: GENERAL INTENT |
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What is the mental state required for Common Law FALSE IMPRISONMENT?
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GENERAL INTENT
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What are the levels of of FALSE IMPRISONMENT in New York?
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2nd DEGREE
1) Unlawfully... 2) Restraining someone... 3) Without their consent; and... 4) with KNOWLEDGE that the restriction is unlawful 1st DEGREE 1) 2nd Degree; PLUS... 2) Risk of Serious Physical Injury |
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New York
2nd Degree False Imprisonment (4 Elements) |
2nd DEGREE
1) Unlawfully... 2) Restraining someone... 3) Without their consent; and... 4) with KNOWLEDGE that the restriction is unlawful |
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New York
2nd Degree False Imprisonment |
2nd DEGREE
1) Unlawfully... 2) Restraining someone... 3) Without their consent; and... 4) with KNOWLEDGE that the restriction is unlawful |
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New York
1st Degree False Imprisonment (2 Elements) |
1st DEGREE
1) 2nd Degree NY False Imprisonnment; PLUS... 2) Risk of Serious Physical Injury |
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New York
2nd Degree False Imprisonment |
1st DEGREE
1) 2nd Degree False Imprisonment ; PLUS... 2) Risk of Serious Physical Injury |
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New York
AGGRAVATED VEHICULAR ASSAULT - DEF/ Elements |
1) Ist Degree Vehicular Assault; PLUS
2) Df drove RECKLESSLY * Rebuttable Presumption applies! |
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What is the BASELINE to remember for ALL New York Vehicle-based assault/ manslaughter crimes?
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2nd DEGREE VEHICULAR ASSAULT
ELEMENTS: 1) DWI... 2) As a result, Df operates the vehicle in a manner... 3) That causes SERIOUS PHYSICAL INJURY to another ** REBUTTABLE PRESUMPTION ** Once the INJURY and DWI are established-- there is a rebuttable presumption that the conduct was a result of defendant's impairment |
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New York
CRIMINALLY NEGLIGENT HOMICIDE |
NUTSHELL: Essentially the same as 2nd Degree NY Manslaughter-- Except here, Df is UNAWARE of the risk (BUT HE SHOULD HAVE BEEN AWARE!)
ELEMENTS: 1) EED Manslaughter; PLUS 2) Mental State: Criminal Negligence 3) FOREESEEABLE that death would occur |
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New York
2nd Degree Manslaughter |
** No CL Equivalent **
1) EED Manslaughter; PLUS... 2) Mental State: RECKLESSNESS "RECKLESSNESS"-- Df is AWARE of and CONSCIOUSLY DISREGARDS a substantial and unjustifiable risk of death * INTOXICATION-- NOT a defense * AIDING IN A SUICIDE: qualifies for 2nd D Manslaughter -- UNLESS Df used duress/ coercion -- then it amounts to 2nd degree MURDER |
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New York
CRIMINALLY NEGLIGENT HOMICIDE |
NUTSHELL: Essentially the same as 2nd Degree NY Manslaughter-- Except here, Df is UNAWARE of the risk (BUT HE SHOULD HAVE BEEN AWARE!)
ELEMENTS: 1) EED Manslaughter; PLUS 2) Mental State: Criminal Negligence 3) FOREESEEABLE that death would occur |
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What is the MENTAL STATE required for NY 2nd Degree Manslaughter?
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** No CL Equivalent **
1) EED Manslaughter; PLUS... 2) Mental State: RECKLESSNESS "RECKLESSNESS"-- Df is AWARE of and CONSCIOUSLY DISREGARDS a substantial and unjustifiable risk of death |
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Involuntary Manslaughter
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This is COMMON LAW
** NY Equivalent = 2nd Degree Manslaughter CAN CONSIST OF.... (1) CRIMINAL NEGLIGENCE-- Killing committed with Criminal Negligence Common Law DEF: "Criminal Negligence" = "gross deviation from a reasonable standard of care" ---OR--- (2) Killing committed during the commission of a crime that does not qualify for FELONY MURDER |
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Criminal Negligence
Common Law DEF vs. NY DEF? |
Common Law DEF: "Criminal Negligence" = "gross deviation from a reasonable standard of care"
NY DEF: "serious and blameworthy conduct related to a substantial and unjustifiable risk of death" |
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Common Law DEF: Criminal Negligence
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"gross deviation from a reasonable standard of care"
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New York DEF: Criminal Negligence
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"serious and blameworthy conduct related to a substantial and unjustifiable risk of death"
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New York DEF: "Manslaughter"
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An INTENTIONAL KILLING committed under the influence of a REASONABLE and EXTREME EMOTIONAL DISTURBANCE
REMEMBER: NY does NOT have "voluntary" / "involuntary" -- NY has 1st, 2nd, Criminally Negligent Homicide |
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New York
1st Degree Manslaughter |
1) EED Manslaughter; PLUS...
2) Mental State: Intent to Cause SERIOUS PHYSICAL INJURY |
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New York
1st Degree Manslaughter |
1) EED Manslaughter; PLUS...
2) Mental State: Intent to Cause SERIOUS PHYSICAL INJURY |
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What mental state is required for 1st Degree Manslaughter (New York)
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Intent to cause Serious Physical Injury
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4 Requirements for VOLUNTARY MANSLAUGHTER
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1) Objective Provocation
2) Subjective Provocation 3) No Objective Cooling Off 4) No Subjective Cooling Off |
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Voluntary Manslaughter
- DEFINITION/ ELEMENTS (separate from the "4 requirements" |
1) Intentional Killing...
2) Committed in the HEAT OF PASSION... 3) with ADEQUATE PROVOCATION |
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Voluntary Manslaughter
- DEFINITION/ ELEMENTS |
1) Intentional Killing...
2) Committed in the HEAT OF PASSION... 3) with ADEQUATE PROVOCATION |
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New York
2nd Degree Murder |
3 DIFFERENT SCENARIOS QUALIFY:
1) Any intentional killing that does NOT qualify for 1st Degree Murder 2) Depraved Indifference Murder/ Extreme Negligence Murder 3) Felony murder where Victim is killed UNINTENTIONALLY |
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New York
2nd Degree Murder -- Applies in what 3 scenarios? |
3 DIFFERENT SCENARIOS QUALIFY:
1) Any intentional killing that does NOT qualify for 1st Degree Murder 2) Depraved Indifference Murder/ Extreme Negligence Murder 3) Felony murder where Victim is killed UNINTENTIONALLY |
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What is "EED"?
Application? |
Applies to NY Manslaughter...
DEF: NY Manslaughter: An Intentional killing committed under the influence of a reasonable and EXTREME EMOTIONAL DISTURBANCE |
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Mental State of Depraved Indifference/ Extreme Negligence
NEW YORK Definition? New York Application? |
1) Demonstrating an extreme indifference to human life...
2) Df engages in conduct that creates a grave risk of death to another person... 3) Actually causes the death of another person NEW YORK: qualifies for 2nd Degree MURDER |
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FELONY MURDER
"Merger Rule" |
The felony must be independent of the killing..
E.g. Aggravated assault cannot be the underlying crime (the two crimes MERGE so that Df can only be charged for ONE single crime) |
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FELONY MURDER
"Merger Rule" |
The felony must be independent of the killing..
E.g. Aggravated assault cannot be the underlying crime (the two crimes MERGE so that Df can only be charged for ONE single crime) |
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DEF: Accomplice
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Aids, encourages or counsels the principal
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MBE RULE
2nd Degree Murder Majority Approach? |
All intentional murders that do not qualify for 1st degree
Also includes: --(1) Depraved Heart Murder --(2) Intent to do SBH Murder |
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When does Battery become AGGRAVATED BATTERY?
|
1) Where Df ACTUALLY CAUSES SBI
-- vs. Merely INTENDING to, which is NOT enough! 2) Where Df uses a DEADLY WEAPON 3) Where the battery is against CERTAIN INDIVIDUALS -- Women --Children -- Cops |
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1st Degree Murder
NEW YORK APPROACH? (Elements) |
1) Intent to Kill
2) Df is at least 18yrs old 3) One of 10 Aggravating Factors is Present |
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1st Degree Murder
NEW YORK APPROACH? (Elements) |
1) Intent to Kill
2) Df is at least 18yrs old 3) One of 10 Aggravating Factors is Present |
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When does Battery become AGGRAVATED BATTERY?
|
1) Where Df ACTUALLY CAUSES SBI
-- vs. Merely INTENDING to, which is NOT enough! 2) Where Df uses a DEADLY WEAPON 3) Where the battery is against CERTAIN INDIVIDUALS -- Women --Children -- Cops |
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1st Degree Murder
MAJORITY APPROACH? |
ANY KILLING committed with...
1) PRE-MEDITATION Df thought about it ahead of time 2) DELIBERATION Df was cool, calm, collected |
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1st Degree Murder
MAJORITY APPROACH? |
ANY KILLING committed with...
1) PRE-MEDITATION Df thought about it ahead of time 2) DELIBERATION Df was cool, calm, collected |
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1st Degree Murder
MAJORITY APPROACH? |
ANY KILLING committed with...
1) PRE-MEDITATION Df thought about it ahead of time 2) DELIBERATION Df was cool, calm, collected |
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New York
Generally, what will determine whether the killing qualifies as 1st Degree Felony Murder rather than 2nd Degree Felony Murder |
1st Degree = Victim was killed INTENTIONALLY
2nd Degree = Victim was killed UNINTENTIONALLY |
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New York
1st Degree Murder --"AGGRAVATING FACTORS" |
1) Victim is a LAW ENFORCEMENT OFFICER
2) Murder For Hire 3) FELONY MURDER where Victim was Intentionally Killed 4) Killing was for Purpose of WITNESS INTIMIDATION 5) +1 VICTIM killed Intentionally in same transaction ---------- (Less Important) 6) Df was already serving Life Sentence/ Escaped from 7) Torture Murder 8) Serial Murders 9) Victim was killed because he was a JUDGE 10) Terrorist Acts |
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New York
1st Degree Murder --"AGGRAVATING FACTORS" |
1) Victim is a LAW ENFORCEMENT OFFICER
2) Murder For Hire 3) FELONY MURDER where Victim was Intentionally Killed 4) Killing was for Purpose of WITNESS INTIMIDATION 5) +1 VICTIM killed Intentionally in same transaction ---------- (Less Important) 6) Df was already serving Life Sentence/ Escaped from 7) Torture Murder 8) Serial Murders 9) Victim was killed because he was a JUDGE 10) Terrorist Acts |
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New York
1st Degree Murder --"AGGRAVATING FACTORS" |
1) Victim is a LAW ENFORCEMENT OFFICER
2) Murder For Hire 3) FELONY MURDER where Victim was Intentionally Killed 4) Killing was for Purpose of WITNESS INTIMIDATION 5) +1 VICTIM killed Intentionally in same transaction ---------- (Less Important) 6) Df was already serving Life Sentence/ Escaped from 7) Torture Murder 8) Serial Murders 9) Victim was killed because he was a JUDGE 10) Terrorist Acts |
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DEF: Accessory After the Fact
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1) Person who receives, relies, comforts or assists another....
2) KNOWING that he has committed a felony.. 3) In order to help the felon escape arrest, trial or conviction |
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What are the TWO REQUIREMENTS to be convicted as an ACCESSORY AFTER THE FACT under Modern Statutes?
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1) Must be a FELONY
2) Crime must be COMPLETE at the time the accessory steps in |
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DEF: Accessory After the Fact
|
1) Person who receives, relies, comforts or assists another....
2) KNOWING that he has committed a felony.. 3) In order to help the felon escape arrest, trial or conviction |
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What are the elements of CONSPIRACY?
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1) Intent
2) Agreement 3) Overt Act in furtherance of the conspiracy |
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New York Rule-- ENTRAPMENT
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Entrapment is an AFFIRMATIVE DEFENSE
-- Must be affirmatively pleaded and proved by D BURDEN OF PROOF: D must prove by a preponderance of the evidence: (1) That he lacked the PREDISPOSITION to commit the crime... and (2) That D was INDUCED to commit the crime SOLELY by the acts of law enforcement * Conduct that affords D the OPPORTUNITY to commit the crime is NOT entrapment on its own * PROSECUTION'S REBUTTAL * Once D raises this defense, prosecution may introduce evidence to show D's past criminal acts! |
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RENUNCIATION-- New York Rule?
|
Affirmative defense of renunciation is available ONLY to D who shows that...
1) he has renounced the criminal scheme, and 2) he took action and actually PREVENTS the commission of the crime thru affirmative actions (not simply that the crime did not take place) * Must be pleaded by D and proved by a preponderance of the evidence |
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Common Law FALSE PRETENSES --Elements?
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Where the defendant...
1) Obtains TITLE 2) to the property of another... 3) By an INTENTIONAL (or knowing) FALSE STATEMENT of PAST or EXISTING fact ---- But NOT FUTURE promises! 4) Mental State: INTENT to DEFRAUD |
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Common Law
FORGERY - Elements? |
1) Making or Altering...
2) of a False INSTRUMENT... 3) with the INTENT TO DEFRAUD |
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Common Law
EMBEZZLEMENT - Elements? |
1) Fraudulent...
2) Conversion.... 3) of the Property... 4) of Another... 5) by a person in LAWFUL POSSESSION of that property |
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6th Amendment Right to Counsel and the "Federal Drug Forfeiture Statute"
|
6th Amendment has no effect on this statute... meaning government may seize money and property obtained thru drugs, even where such money and property were going to be used to PAY D's ATTORNEY FEES
* Rationale: D has no 6th Am right to spend money in which he has no legal rights for services rendered by an attorney, even if those funds are the only way that D will be able to retain the attorney of his choice * Does not matter that attorney has already provided services and billed D |
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D was caught buying what he believed to be a joint. It turns out the joint is only tobacco. Can he be charged with ATTEMPT to smoke marijuana?
|
YES-- because had the attendant circumstances been as he BELIEVED them to be, he would have committed a criminal offense
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Which type of impossibility IS A VALID DEFENSE to Attempt Crimes?
|
LEGAL Impossibility
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Which type of impossibility is NOT a valid defense to Attempt Crimes
|
FACTUAL IMPOSSIBILITY
Had the attendant circumstances been as the defendant BELIEVED them to be, he would have committed a criminal offense |
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DEF: Factual Impossibility
- Rule? |
Had the attendant circumstances been as the defendant BELIEVED them to be, he would have committed a criminal offense
RULE: this is NOT a defense to an ATTEMPT CRIME! |
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When may police make an arrest WITHOUT a warrant?
|
Where they have REASONABLE GROUNDS to believe that a felony has been committed and that the person before them has committed it
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What is the INTENT required for ACCOMPLICE LIABILITY?
|
INTENT to aid, encourage or counsel the principal in the commission of the underlying crime
- Mere KNOWLEDGE that a crime would result from the aid is INSUFFICIENT ** Remember: it IS possible for an accomplice to be convicted of a more serious crime than that for which the principal has been convicted (E.g. if accomplice intends to aid principal in an intentional killing, the principal could still show adequate provocation to reduce the felony to voluntary manslaughter, while the accomplice would be guilty of MURDER) |
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Can an accomplice be guilty of a more serious crime than the principal?
|
YES !!!
** Remember: it IS possible for an accomplice to be convicted of a more serious crime than that for which the principal has been convicted (E.g. if accomplice intends to aid principal in an intentional killing, the principal could still show adequate provocation to reduce the felony to voluntary manslaughter, while the accomplice would be guilty of MURDER) |
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EXCLUSIONARY RULE
- Rule? -Exception? |
RULE: In executing a search warrant, police officers must:
1) knock and announce their authority and purpose, and 2) Wait a reasonable time for an occupant to respond EXCEPTION: cops need not wait when there is REASONABLE SUSPICION (based on facts), that the announcement will be… a) Dangerous; b) Futile; c) Inhibit the Investigation (destruction of evidence) ** Exclusionary Rule does NOT apply to violations of Knock and Announce Rule |
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CONSPIRACY
-Common Law Elements - Modern States: add...? |
COMMON LAW ELEMENTS
1) An agreement between two or more persons; 2) INTENT to enter into an agreement 3) INTENT to achieve the objective of the conspiracy MODERN STATUTES: add the 4th Element 4) ACT IN FURTHERANCE of the conspiracy -- Act of “mere preparation” will suffice |
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CONSPIRACY—“AGREEMENT” ELEMENT
|
The parties must agree to accomplish the same objective by mutual action
Common Law: “BILATERAL APPROACH” -- If one person in a two-party conspiracy is only feigning agreement (cop in a sting situation), the OTHER person cannot be convicted of conspiracy i.e. requires at least “two guilty minds” |
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CONSPIRACY—“WITHDRAWAL”
|
Defense of withdrawal is NOT a defense to the charge of conspiracy
Defense of withdrawal only acts to LIMIT a defendant’s liability for SUBSEQUENT acts of the other members of a conspiracy, but NOT to completely absolve themselves of criminal liability |
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EXCLUSIONARY RULE
- Rule? -Exception? |
RULE: In executing a search warrant, police officers must:
1) knock and announce their authority and purpose, and 2) Wait a reasonable time for an occupant to respond EXCEPTION: cops need not wait when there is REASONABLE SUSPICION (based on facts), that the announcement will be… a) Dangerous; b) Futile; c) Inhibit the Investigation (destruction of evidence) ** Exclusionary Rule does NOT apply to violations of Knock and Announce Rule |
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EXCLUSIONARY RULE
- Rule? -Exception? |
RULE: In executing a search warrant, police officers must:
1) knock and announce their authority and purpose, and 2) Wait a reasonable time for an occupant to respond EXCEPTION: cops need not wait when there is REASONABLE SUSPICION (based on facts), that the announcement will be… a) Dangerous; b) Futile; c) Inhibit the Investigation (destruction of evidence) ** Exclusionary Rule does NOT apply to violations of Knock and Announce Rule |
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EXCLUSIONARY RULE
- Rule? -Exception? |
RULE: In executing a search warrant, police officers must:
1) knock and announce their authority and purpose, and 2) Wait a reasonable time for an occupant to respond EXCEPTION: cops need not wait when there is REASONABLE SUSPICION (based on facts), that the announcement will be… a) Dangerous; b) Futile; c) Inhibit the Investigation (destruction of evidence) ** Exclusionary Rule does NOT apply to violations of Knock and Announce Rule |
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CONSPIRACY
- Elements? |
COMMON LAW ELEMENTS
1) An agreement between two or more persons; 2) INTENT to enter into an agreement 3) INTENT to achieve the objective of the conspiracy MODERN STATUTES: add the 4th Element 4) ACT IN FURTHERANCE of the conspiracy -- Act of “mere preparation” will suffice |
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CONSPIRACY
- Elements? |
COMMON LAW ELEMENTS
1) An agreement between two or more persons; 2) INTENT to enter into an agreement 3) INTENT to achieve the objective of the conspiracy MODERN STATUTES: add the 4th Element 4) ACT IN FURTHERANCE of the conspiracy -- Act of “mere preparation” will suffice |
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DOUBLE JEOPARDY
General Rule? |
GENERAL RULE: the right to be free of double-jeopardy for the same offense bars a RETRIAL for the same offense once jeopardy has “attached” in the first trial
When Does Jeopardy Attach In A Jury Trial? When the jury is impaneled and sworn in, even if it has not yet heard any evidence |
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DOUBLE JEOPARDY
General Rule? |
GENERAL RULE: the right to be free of double-jeopardy for the same offense bars a RETRIAL for the same offense once jeopardy has “attached” in the first trial
When Does Jeopardy Attach In A Jury Trial? When the jury is impaneled and sworn in, even if it has not yet heard any evidence |
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When Does Jeopardy Attach In A Jury Trial?
|
When the jury is impaneled and sworn in, even if it has not yet heard any evidence
|
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When Does Jeopardy Attach In A Jury Trial?
|
When the jury is impaneled and sworn in, even if it has not yet heard any evidence
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Double Jeopardy -- "Mistrials"
|
Exception to General Rule
D may be retried for the same offense even after jeopardy has attached when a MISTRIAL is granted in the first trial at the request of the defendant on ANY GROUND NOT CONSTITUTING AN ACQUITTAL ON THE MERITS |
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ISSUE OF “CONSCIOUSNESS” RE: CRIMINAL CULPABILITY?
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Goes to the Requirement of the ACTUS REUS → VOLUNTARY ACT
- Virtually all crimes, including homicide, require either a VOLUNTARY PHYSICAL ACT or a FAILURE TO ACT under circumstances imposing a legal duty to act -An act performed while D is UNCONSCIOUS is NOT VOLUNTARY because it does not stem from a conscious exercise of free will |
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HOMICIDE → Issue of POISONS
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Poison is usually enough to satisfy the element of MALICE AFORETHOUGHT required for common law murder
-Malice aforethought can be established by CONDUCT ALONE with the awareness of an unjustifiably high risk to human life |
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Where prosecutor comments on D’s failure to testify at trial... Effect?
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CONVICTION CAN BE OVERTURNED….
RULE: Prosecution is NOT allowed to comment on D’s failure to testify at trial—because D is PRIVILEGED under the 5th Amendment to Remain Silent -This privilege outweighs the prosecutor’s right to comment on the state of the evidence |
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FRUIT OF THE POISONOUS TREE → “Live Witness Testimony”
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Generally difficult for D to have live witness testimony excluded as fruit of the poisonous tree because the rule requires a more DIRECT LINK between the TAINT and the EVIDENCE than is required for exclusion of other evidence
FACTOR: In determining whether there is a sufficiently direct link → court will look at the extent to which the witness is freely willing to testify |
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BURGLARY—Where D is entering the building to retrieve his own property
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CANNOT BE CONVICTED OF BURGLARY!!
ELEMENTS OF COMMON LAW BURGLARY 1) Breaking; 2) Entering 3) Of the Dwelling; 4) Of Another; 5) At Nighttime 6) With the INTENT of committing a felony therein THEREFORE: If D enters to retrieve his own property → NO INTENT to commit a felony therein! |
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LARCENY
- What is the KEY WORD to Remember? - ELEMENTS OF THE COMMON LAW LARCENY? |
Key Word = “TANGIBLE PERSONAL PROPERTY”
ELEMENTS “Thieves Took Carmen’s Purse And Isaac’s Portfolio T Trespassory T Taking C Carrying Away P Personal Property A of Another, with the… I Intent to… P Permanently Retain the property |
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LARCENY: Where D intends merely to BORROW the stolen item
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At Common Law: NOT LARCENY!!
Requires INTENT TO PERMANENTLY RETAIN THE PROPERTY! - Common Law: if D intends to return the property within a reasonable time (and at the time of the taking had a substantial ability to do so) → NOT LARCENY!! |
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FELONY MURDER—“Guilty of Underlying Crime”
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** DISREGARD OUTLINE NOTES**
RULE: DEFENDANT CANNOT BE GUILTY OF FELONY MURDER UNLESS PROSECUTION CAN PROVE THAT HE COMMITTED OR ATTEMPTED TO COMMIT THE UNDERLYING FELONY!!! |
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BURGLARY—Where D is entering the building to retrieve his own property
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CANNOT BE CONVICTED OF BURGLARY!!
ELEMENTS OF COMMON LAW BURGLARY 1) Breaking; 2) Entering 3) Of the Dwelling; 4) Of Another; 5) At Nighttime 6) With the INTENT of committing a felony therein THEREFORE: If D enters to retrieve his own property → NO INTENT to commit a felony therein! |
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BURGLARY—Where D is entering the building to retrieve his own property
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CANNOT BE CONVICTED OF BURGLARY!!
ELEMENTS OF COMMON LAW BURGLARY 1) Breaking; 2) Entering 3) Of the Dwelling; 4) Of Another; 5) At Nighttime 6) With the INTENT of committing a felony therein THEREFORE: If D enters to retrieve his own property → NO INTENT to commit a felony therein! |
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FELONY MURDER—“Guilty of Underlying Crime”
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** DISREGARD OUTLINE NOTES**
RULE: DEFENDANT CANNOT BE GUILTY OF FELONY MURDER UNLESS PROSECUTION CAN PROVE THAT HE COMMITTED OR ATTEMPTED TO COMMIT THE UNDERLYING FELONY!!! |
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FELONY MURDER—“Guilty of Underlying Crime”
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** DISREGARD OUTLINE NOTES**
RULE: DEFENDANT CANNOT BE GUILTY OF FELONY MURDER UNLESS PROSECUTION CAN PROVE THAT HE COMMITTED OR ATTEMPTED TO COMMIT THE UNDERLYING FELONY!!! |
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SELF-DEFENSE → USE OF DEADLY FORCE
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RULE: one may use deadly force in self-defense EVEN IF the use of force could be avoided by retreating safely! (i.e. no duty to retreat!)
EXCEPTION: this rule does not apply to one who is the initial aggressor |
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SELF-DEFENSE → USE OF DEADLY FORCE
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RULE: one may use deadly force in self-defense EVEN IF the use of force could be avoided by retreating safely! (i.e. no duty to retreat!)
EXCEPTION: this rule does not apply to one who is the initial aggressor |
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SELF-DEFENSE → Use of DEADLY FORCE Where D is initial aggressor and V escalated the fight…
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RULE: one may use deadly force in self-defense EVEN IF the use of force could be avoided by retreating safely! (i.e. no duty to retreat!)
EXCEPTION: this rule does not apply to one who is the initial aggressor |
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SELF-DEFENSE: When can the initial aggressor use this as a defense?
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GENERAL RULE: initial aggressor has no right to use ANY force in self-defense
HOWEVER: Initial aggressor can REGAIN the right to use force in self-defense EITHER: 1) By attempting to WITHDRAW and COMMUNICATING the withdrawal to the other person; OR 2) When the other person suddenly ESCALATES a minor fight into one involving deadly force w/o giving the initial aggressor the chance to withdraw NOTE: If Initial Aggress uses DEADLY FORCE in self-defense: he has a duty to attempt to RETREAT first or the defense will NOT apply! |
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IN WHAT CIRCUMSTANCES CAN A PERSON USE DEADLY FORCE IN SELF-DEFENSE?
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1) Where he is WITHOUT FAULT
2) Where he is confronted with UNLAWFUL FORCE 3) Where he is threatened with IMMINENT DEATH OR GREAT BODILY HARM ** CANNOT use merely to regain possession of personal property (e.g. cannot shoot at a robber as he flees with your wallet- unless he also threatened death or GBI) MAJORITY RULE: NO DUTY TO RETREAT ---Except where person claiming self-defense (and use of deadly force) was the Initial Aggressor |
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IN WHAT CIRCUMSTANCES CAN A PERSON USE DEADLY FORCE IN SELF-DEFENSE?
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1) Where he is WITHOUT FAULT
2) Where he is confronted with UNLAWFUL FORCE 3) Where he is threatened with IMMINENT DEATH OR GREAT BODILY HARM ** CANNOT use merely to regain possession of personal property (e.g. cannot shoot at a robber as he flees with your wallet- unless he also threatened death or GBI) MAJORITY RULE: NO DUTY TO RETREAT ---Except where person claiming self-defense (and use of deadly force) was the Initial Aggressor |
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SELF-DEFENSE → “Name-Calling / Insults”
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RULE: defendant can claim the privilege of self-defense even where his words TRIGGERED the fight
(calling someone names is NOT considered adequate provocation to make the defendant the Initial Aggressor) |
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LARCENY—Personal Property “OF ANOTHER”
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Remember: The property must be taken from someone who has a possessory interest SUPERIOR to that of the defendant…
If D has custody of the property, rather than mere possession, his taking of the property is LARCENY |
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LARCENY → “Trespass”
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Trespass = where the property is taken without consent of the owner
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LARCENY → “Trespass”
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Trespass = where the property is taken without consent of the owner
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Common Law
False Pretenses |
1) Obtaining title to the property of another
2) by an INTENTIONAL or KNOWING false statement 3) of PAST or EXISTING FACT 4) Mental State: Intent to Defraud |
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Common Law
False Pretenses |
1) Obtaining title to the property of another
2) by an INTENTIONAL or KNOWING false statement 3) of PAST or EXISTING FACT 4) Mental State: Intent to Defraud |
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Common Law
False Pretenses |
1) Obtaining title to the property of another
2) by an INTENTIONAL or KNOWING false statement 3) of PAST or EXISTING FACT 4) Mental State: Intent to Defraud |
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Common Law
ARSON - Definition |
DEF: Arson: the malicious burning of the dwelling of another
* Modern Statutes: have mostly done away with the “of another” requirement -- Where there is no burning to the STRUCTURE of the dwelling (e.g. just the furniture inside) = ATTEMPTED Arson only! |
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Common Law
ARSON - Definition |
DEF: Arson: the malicious burning of the dwelling of another
* Modern Statutes: have mostly done away with the “of another” requirement -- Where there is no burning to the STRUCTURE of the dwelling (e.g. just the furniture inside) = ATTEMPTED Arson only! |
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COMMON LAW BURGLARY → “Breaking”
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Requires some use of FORCE to gain entry
HOWEVER: minimal force will suffice (even USING A KEY will be enough!) |
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COMMON LAW BURGLARY → “Breaking”
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Requires some use of FORCE to gain entry
HOWEVER: minimal force will suffice (even USING A KEY will be enough!) |
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COMMON LAW BURGLARY → “Dwelling… OF ANOTHER”
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In determining whether the dwelling is that of another → look at OCCUPANCY, rather than ownership
THEREFORE: Owner of the building CAN commit burglary of his own structure if it is rented and used as a dwelling by someone else! |
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COMMON LAW BURGLARY: Can a Landlord be found guilty of burglarizing his own building?
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YES
In determining whether the dwelling is that of another → look at OCCUPANCY, rather than ownership THEREFORE: Owner of the building CAN commit burglary of his own structure if it is rented and used as a dwelling by someone else! |
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WHERE D APPEARS INCOMPETENT—What is the Judge’s Responsibility?
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JUDGE MUST RAISE THE ISSUE OF COMPETENCY, even if defense does not!
RULE: if it appears that D might be incompetent, Judge has a constitutional OBLIGATION to conduct further inquiry and determination * This rule applies whether D is represented by counsel or representing himself! |
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LARCENY BY TRICK
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All of the elements of Common Law Larceny… (with one minor difference)
“Thieves Took Carmen’s Purse And Isaac’s Portfolio'' T Trespassory T Taking C Carrying Away P Personal Property A of Another, with the… I Intent to… P Permanently Retain the property ONLY DIFFERENCE = NO “TRESPASSORY” element With Larceny By Trick → the victim CONSENTS to the defendant’s taking possession of the property—BUT such consent is induced by MISREPRESENTATION → therefore the consent is NOT VALID |
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LARCENY BY TRICK
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All of the elements of Common Law Larceny… (with one minor difference)
“Thieves Took Carmen’s Purse And Isaac’s Portfolio'' T Trespassory T Taking C Carrying Away P Personal Property A of Another, with the… I Intent to… P Permanently Retain the property ONLY DIFFERENCE = NO “TRESPASSORY” element With Larceny By Trick → the victim CONSENTS to the defendant’s taking possession of the property—BUT such consent is induced by MISREPRESENTATION → therefore the consent is NOT VALID |
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LARCENY BY TRICK
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All of the elements of Common Law Larceny… (with one minor difference)
“Thieves Took Carmen’s Purse And Isaac’s Portfolio'' T Trespassory T Taking C Carrying Away P Personal Property A of Another, with the… I Intent to… P Permanently Retain the property ONLY DIFFERENCE = NO “TRESPASSORY” element With Larceny By Trick → the victim CONSENTS to the defendant’s taking possession of the property—BUT such consent is induced by MISREPRESENTATION → therefore the consent is NOT VALID |
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PRIVATE PERSONS AND THE USE OF DEADLY FORCE TO APPREHEND A FLEEING FELON—Rule?
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RULE: a private person may use deadly force to apprehend a fleeing felon ONLY where the person was threatened with death or GBI and deadly force is necessary to prevent the felon’s escape
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Under what circumstances may a private person use force to effectuate an arrest?
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The person harmed must ACTUALLY be guilty of the felony for which the arrest was made
i.e. PRIVATE INDIVIDUAL cannot claim it “reasonably appeared” that the person was guilty as justification for using force to effectuate arrest |
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Felony Murder—Death of Co-Felon?
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MAJORITY RULE: this CANNOT be the basis for the charge of felony murder
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Felony Murder—Death of Co-Felon?
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MAJORITY RULE: this CANNOT be the basis for the charge of felony murder
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