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128 Cards in this Set
- Front
- Back
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Elements of a crime |
A crime most always requires proof of a physical act (actus reus) and a mental state (mens reus), and concurrence of the act and mental state. |
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Crimes - Felony
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Felony – a serious crime, usually punishable by imprisonment for more than one year or by death.
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Crimes - Misdemeanor
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Misdemeanor – a crime less serious than a felony, usually punishable by fine, penalty, forfeiture, or incarceration for less than one year, in a place other than prison
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Crimes - Infraction
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Infraction – a violation, usually of a rule or local ordinance, usually never punishable by incarceration and no right to a jury
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Crimes - Malum in se
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Malum in se – an act or crime that is inherently immoral (wrong/evil in itself, crimes of moral turpitude)
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Crimes - Malum Prohibitum
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Malum prohibitum – an act which is a crime simply because it is prohibited by statute, although the act itself is not necessarily immoral
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Physical Act:
Define act: |
D must have either performed a voluntary physical act or failed to act under circumstances imposing a legal duty to act.
An act is a bodily movement. |
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Omission as an Act
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Failure to act gives rise to liability only if:
1. There is a specific duty to act imposed by law. 2. The D had knowledge of the facts giving rise to the duty to act; and 3. It is reasonable to perform the duty. |
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Possession as an Act
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Possession of contraband generally requires only that the D have control of the item for a long enough period to have an opportunity to terminate the possession. Possession can be constructive - located in an area within the D's dominion and control.
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Mental State - Specific Intent
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A crime may require not only doing of an act but also the doing of it with a specific intent or objective.
Words “intent” or “intentional” are used in crime definition |
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Specific Intent Crimes (11) |
1. Solicitation: Intent to have the person solicited commit the crime. |
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Malice Crimes |
Common Law Murder (2nd Degree murder) Arson |
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Malice: What level of intent is necessary?
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The intent necessary for malice crimes requires only a reckless disregard of an obvious or high risk that the particular harmful result will occur.
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General intent crime:
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Awareness of Factors Constituting Crime, almost all crimes require general intent which is an awareness of all factors constituting the crime. 1. general intent is inferred from D’s acts2. mens rea need not be proven and may be presumed 3. defenses are available to D |
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Strict liability crime:
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1. No mens rea needed (neither proven or presumed)
2. A D can be found guilty from the mere fact that he committed the crime. |
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Model Penal Code Analysis of Fault
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MPC Analysis of Fault includes:
1. Purposely, knowingly, recklessly 2. Negligence |
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Model Penal Code Analysis of Fault:
1. Purposely 2. Knowingly 3. Recklessly |
1.Purposely a person acts purposely when his conscious objective is to engage in certain conduct or cause a certain result.
2. Knowingly A person acts knowingly when he is aware that his conduct is of a particular nature or knows his conduct will likely cause a particular result. 3. Recklessly A person acts recklessly when he knows of a substantial and unjustifiable risk and consciously disregards it |
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Model Penal Code Analysis of Fault:
1. Negligence |
1. A person acts negligently when he fails to be aware of a substantial and unjustifiable risk. An objective standard is used to determine negligence.
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Homicide
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The killing of a human being by another human being.
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1st Degree Murder
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1st degree murder is created by statute and consists of 1) intentional killing of a human, 2) with time to reflect upon that killing, and 3) doing so in a cool and dispassionate manner.
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Time to Reflect (Premeditation) |
Time to Reflect (Premeditation) – 1st degree murder requires time to reflect upon the killing or premeditation. Premeditation requires merely a moment’s reflection upon the killing, |
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Cool and Dispassionate Manner |
Cool and Dispassionate Manner – the Defendant must have committed the killing in a cool and dispassionate manner. Meaning that the defendant killed another person in a calm and calculated manner without passion. |
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Common Law Murder/Second Degree Murder
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(1) The unlawful killing of a human being by another human being 2) with malice aforethought.
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Malice - 2nd degree murder/CL murder
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Malice can either be express or implied
Malice is established by showing 1. An intent to kill 2. An intent to cause great bodily injury 3. Commission of a dangerous felony (felony murder rule) 4. A reckless disregard for an obvious risk to human life. (depraved heart murder) |
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Felony Murder Rule
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Felony Murder Rule: A death that occurs during the perpetration of an inherently dangerous felony. Malice is implied from S.I. to commit underlying felony.
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Inherently Dangerous Felonies
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Common Law: Burglary, Arson, Rape, Robbery,
Kidnapping |
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Limitations on felony murder rule:
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1. Underlying felony must be inherently dangerous
2. Felony must be distinct from the murder (not assault, battery, or aggravated) 3. Death must have been a foreseeable result of the felony 4. Death must have been a result of “immediate flight” from the felony, once D reaches a place of safety no felony murder. 5. If the underlying felony is murder then felony murder rule does not apply. |
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Redline View - Majority view
Killing of co-felon by police or by third party |
the majority view provides that a defendant cannot be guilty of felony murder for the murder of one of their co-felons by the police or by a third party during the commission of a felony.
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Killing of innocent party by victim or police:
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A defendant will be guilty of felony murder for the murder of an innocent bystander by the police or by a third party during the commission of the felony.
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Defenses to Felony Murder
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A defendant has a defense to felony murder when:
1. There is no felony other than the killing, 2. He has a defense to underlying felony, 3. The killing is unforeseeable, 4. Deaths arise after defendant has found some point of temporary safety, 5. Co-felon dies as a result of victim or police resistance (Redline - majority rule). |
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Manslaughter
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The unlawful killing of a human being without malice aforethought
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Voluntary Manslaughter
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The unlawful killing of a human being without malice aforethought usually in the heat of passion or sudden quarrel.
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Voluntary Manslaughter
Sufficient Provocation |
Sufficient provocation exists when:
1. A reasonable person would have been provoked, 2. Defendant was actually provoked, 3. A reasonable person would not have cooled, and 4. The defendant had not actually cooled. |
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Involuntary Manslaughter
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The unlawful killing of a human being without malice aforethought usually involving criminal negligence
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Misdemeanor manslaughter
(involuntary manslaughter) |
An unlawful killing during the commission of a misdemeanor which is malum in se and not malum prohibitum.
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Criminal Negligence
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Gross negligence, dong something that is dangerous to a human life and that has a high degree of risk to bodily injury or death
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Defenses
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Defendant is liable for all natural and probable consequences of his conduct unless the chain of causation is broken by the intervention of some superseding event.
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Superceding Event
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1. Superseding Event. Is an unforeseeable intervening act (e.g. gross negligence or intentional medical malpractice, coincidence, acts of nature)
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No defense to Manslaughter when...
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No Defense. When the defendant is 1) hastening an inevitable result or 2) acted simultaneously with two or more parties, there is no defense to manslaughter. However, the multiple actors may give rise to joint and several liability.
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Causation Requirement
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Defendant’s conduct must be both the actual and proximate cause of the victim’s death.
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Actual Cause - Can be Satisfied by 1 of 3 tests:
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1. "But for" test
2. Substantial Factor Test 3. Acceleration Test (Murder only) |
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"But for" Test |
But for the Defendant's actions the Victim's death would not have occurred |
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Substantial Factor Test |
Where there are multiple causes or parties responsible for the same criminal result, the courts will still find the D's conduct a cause in fact where the D's actions were a substantial factor in causing the result. |
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Acceleration Test (Murder only) |
When D's conduct speeds up an inevitable death, even by a very brief amount of time, D is considered an actual cause of death because he accelerated the inevitable result. |
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Proximate Cause
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A person is responsible for all results that occur as a natural and probable consequence of his conduct. (foreseeable)
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Intervening Act: |
An intervening act will break the chain of causation and shield the D from liability if the act was unforeseeable. Note: Medical negligence and the V's refusal of medical treatment for religious reasons is foreseeable. |
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Insanity
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Insanity is a defense to all crimes, including strict liability crimes. Jurisdictions may apply one of four tests for insanity.
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Defenses - Insanity - M’Naghten Rule
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A D is entitled to acquittal only if a D had a mental disease or defect that caused him to either:
1. Not know that his act would be wrong; or 2. Not understand the nature and quality of his actions |
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Defenses - Insanity - Irresistible impulse test
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A D is entitled to acquittal only if because of a mental illness, D was
1. Unable to control his actions or conform his conduct to the law. |
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Defenses - Insanity - Durham test
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A D is entitled to acquittal only if the crime was the product of his mental illness.
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Defenses - Insanity - A.L.I. or Model Penal Code
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A D is entitled to acquittal only if the D had a mental disease or defect and as a result he lacked substantial capacity to either:
1. Appreciate the criminality of his conduct; or 2. Conform his conduct to the requirements of the law |
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Pre-trial Psychiatric Examination
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If D does not raise the insanity issue he may refuse a court-ordered psychiatric examination to determine his competency to stand trial. If D raises the insanity issue, he may not refuse to be examined by a psychiatrist appointed to aid the court in the resolution of his insanity plea
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Mental condition during proceedings
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under the due process clause of the US Constitution, a D may no be tried, convicted, or sentenced if, as a result of mental disease or defect he is unable to:
1. Understand the nature of the proceedings being brought against him; or 2. To assist his lawyer in the preparation of his defense. |
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Defenses - Voluntary Intoxication
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Voluntary intoxication is the result of the intentional taking without duress of a substance known to be intoxicating. Voluntary intoxication is a defense only to specific intent crimes
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Defenses - Involuntary intoxication
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Involuntary intoxication results from the taking of an intoxicating substance without knowledge of its nature, under direct duress imposed by another, or pursuant to medical advice while unaware of the substance’s intoxicating effect.
1. Involuntary intoxication may be treated as a mental illness and D is entitled to acquittal if he meets the jurisdictions insanity defense. 2. Involuntary intoxication is a defense to all crimes, including strict liability crimes. |
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Defenses - Infancy
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Infancy – Infancy is a defense to all crimes
1. 0 – under 7: there is a conclusive presumption that the child lacks criminal liability. 2. 7 – under 14: there is a rebuttable presumption of no criminal liability. 3. 14 and over: there is no presumption of innocence (treated as an adult) |
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Defenses - Duress
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Duress is a defense to a crime other than homicide that the D reasonably believed that another person would imminently inflict death or great bodily harm upon him or a member of his family.
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Defenses - Mistake of Fact
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Mistake of Fact is only a defense to negate intent. For specific intent crimes, any mistake is a defense; for malice crimes and general intent crimes, a reasonable mistake is a defense; for strict liability crimes, mistake is never a defense
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Defenses - Mistake of Law
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Generally, it is not a defense that the D believed that her activity would not be a crime, even if that belief was reasonable and based on the advice of an attorney. Except
i. The statute proscribing her conduct was not published or made reasonably available prior to the conduct; ii. There was reasonable reliance on a statute or judicial decision; or iii. In some jurisdictions, there was reasonable reliance on official interpretation or advice. |
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Defenses - Consent
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Consent: is rarely a defense. Consent is a defense to minor assaults or batteries if there is no danger of serious bodily injury. Where consent may be a defense, it must be established that:
i. The consent was voluntarily and freely given; ii. The party was legally capable of consenting; and iii. No fraud was involved in obtaining the consent |
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Defenses - Condonation of victim
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No defense: Forgiveness by the victim is not a defense
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Defenses - Entrapment
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Entrapment is a very narrow defense and almost never available. Entrapment exists only if:
i. The criminal design originated with law enforcement officers and ii. The D was not predisposed to commit the crime prior to contact by the government |
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Defenses - Justification
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Justification Defenses arises when society has deemed that although the D committed the act, he should not be punished because the circumstances justify the action.
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Defenses - Self Defense
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When one endures an attack, he may use reasonably necessary counter-force, even if the basis for defense is mistaken so long as it is reasonable.
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Defenses - Self Defense - Non Deadly Force
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A person without fault may use such force as reasonably appears necessary to protect herself from the imminent use of unlawful force upon herself. There is no duty to retreat.
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Defenses - Self Defense - Deadly Force
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A person may use deadly force in self defense if:
1. She is without fault 2. She is confronted with unlawful force and 3. She is threatened with imminent death or great bodily harm. |
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Defenses - Self Defense - Retreat
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Generally, the defendant is not required to retreat unless he is the initial aggressor. However, the initial aggressor may use self-defense when non-deadly aggressor experiences deadly response or the aggressor has clearly withdrawn & communicated his withdrawal). (Minority Rule: requires retreat if safe to do so, except where the victim is at home, a victim of rape / robbery, or a police officer.)
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Defenses - Defense of Others
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A D has the right to defend others if she reasonable believes that the person assisted has the legal right to use force in his own defense. (alter ego theory).
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Defenses - Defense of Dwelling
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Non-deadly force may be used to prevent or terminate an unlawful entry into or attack on the defender’s dwelling. Deadly force may only be used to prevent a violent entry made with the intent to commit a personal attack on an inhabitant
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Defenses - Defense of Other Property
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Deadly force may never be used in defense of property. Non-deadly force may be used to defend property in one’s possession from unlawful interference.
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Defenses - Necessity
Limitations - Death,Limitations - Fault) |
Necessity: is a defense to a crime that the person reasonable believed that commission of the crime was necessary to avoid an imminent and greater injury than that involved in the crime.
i. Limitation - death causing the death of another person to protect property is never justified. ii. Limitation – fault: Necessity is not available if D is at fault in creating the situation. |
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Crimes against the person (BARK)
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Crimes against the person include battery, assault, rape, and kidnapping
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Battery
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The unlawful application of force to the person of another resulting in either bodily injury or an offensive touching.
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Aggravated Battery: Felony
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1. Battery with a deadly weapon;
2. Battery resulting in serious bodily harm; 3. Battery of a child, woman, or police officer. |
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Assault (2)
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Assault: is either (i) an attempt to commit a battery or (ii) the intentional creation - other than by mere words – of a reasonable apprehension in the mind of the victim of imminent bodily harm
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Aggravated Assault
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Assault with a deadly weapon or with intent to rape or maim.
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Aggravated Assault
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Intent to cause bodily injury:
1. On a peace officer 2. With a deadly weapon 3. On school property |
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Rape
Common Law Federal |
1. Common Law: Sexual intercourse with a woman not the spouse of the perpetrator without consent.
2. Federal Definition: Sexual intercourse without consent involving force, fear or deception. (Slight penetration is sufficient) |
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Kidnapping
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unlawful confinement of a person that involves either (i) some movement of the victim or (ii) concealment of the victim in a ‘secret’ place.
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Aggravated kidnapping
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Aggravated kidnapping includes kidnapping for ransom, for the purpose of committing other crimes, kidnapping for offensive purposes, and child stealing.
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Mayhem
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dismemberment or disablement of a bodily part.
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False Imprisonment
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False Imprisonment – (general intent)
The unlawful confinement of a person Confinement: a. Movement restricted in all directions b. Accomplished by barriers, force, or threats of force c. Must be for an appreciable amount of time. |
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Common Law Felonies - MR & MRS LAMB
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Murder, Rape, Manslaughter, Robbery, Sodomy, Larceny, Arson, Mayhem, Burglary
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Crimes Against property
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Crimes Against property
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Larceny
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1. Trespassory – without consent
2. taking and – obtaining control and dominion 3. carrying away – a movement towards removing the property (asportation) 4. of the tangible personal property 5. of another - person with possessory interest 6. with the specific intent to permanently deprive – (i) intent to withhold property permanently (ii) treats property so as to cause a substantial risk of loss a. Larceny can be committed with lost or mislaid property or property that has been delivered by mistake, but not with abandoned property. |
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Larceny by Trick
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Larceny where the victim is tricked by a misrepresentation of fact into giving up mere possession of property.
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Embezzlement
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The fraudulent conversion of personal property of another; by a person in lawful possession of that property.
1. D must intend to defraud, if the D intends to restore the exact property taken it is not embezzlement. |
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False Pretenses
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Obtaining title to personal property of another by an intentional false statement of past or existing fact with intent to defraud the other.
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Receiving Stolen Property
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1. Receiving possession and control - possession can be actual or constructive
2. Of stolen personal property 3. Known to have been stolen 4. With the specific intent to permanently deprive |
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Robbery
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1. Trespassory - Without consent
2. Taking and Carrying away - Asportation of another's property 3. Personal property of another 4. from the person or person’s presence – (inc anywhere in his vicinity) 5. By force or threat of immediate force – to victim, member of family or 3rd party 6. With the specific intent to permanently deprive |
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Extortion
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(Blackmail) obtaining property by means of threats to do harm or to expose information.
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Forgery
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(i) Making or altering (ii) a writing with apparent legal significance (iii) so that it is false (iv) with intent to defraud.
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Malicious Mischief
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The malicious (ii) destruction of or damage to (iii) the property of another.
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Crimes against the Habitation
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Crimes against the Habitation
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Common Law Burglary
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Burglary at common law is the breaking and entering into the dwelling house of another at night with the intent to commit a felony therein.
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Common Law Burglary - Breaking and
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Breaking
a. constructive or actual, however slight when entering b. if front door is open, opening of any interior door that is part of the structure will suffice |
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Common Law Burglary - Entering into the
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Entering
a. any part of the body entering the structure will suffice b. inanimate objects used to carry out felonious intent will suffice |
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Common Law Burglary - Dwelling house
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dwelling house
a. must be used for sleeping purposes b. includes other structures within the curtilage |
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Common Law Burglary - of another
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of another
a. one cannot commit a burglary in his own dwelling |
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Common Law Burglary - at night
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At common law a burglary only occurred at night
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Common Law Burglary - with the intent to commit a felony therein
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There must be intent to commit a felony.
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Burglary Modern Statutory Expansion
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No longer requires a breaking, applies burglary to any structure at any time of day with a mere intent to commit a crime inside.
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Common Law Arson
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1. The malicious
a. Intentional with reckless disregard of an obvious risk 2. Burning a. requires damage by fire not just scorching, charring is sufficient 3. of the dwelling house 4. of another |
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Misprision
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Concealment and nondisclosure of the felonious conduct of another.
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Compounding a crime
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Agreeing for valuable consideration not to prosecute another for a felony or to conceal the commission of a felony or the whereabouts of a felony.
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Accomplice Liability
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When a defendant aids or encourages the principal to commit the illegal conduct, he is liable under an accomplice theory for the crimes he did or counseled and for any other crimes committed in the course of committing the crime contemplated to the same extent as the principal as long as the other crimes were probable or foreseeable.
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Accomplice Liability - Common Law - Principles/Accessories
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i. Principal in the first degree: person who actually engaged in the act.
ii. Principal in the second degree: person who aided commanded or encouraged principal and was present at the crime. iii. Assessory before the fact: person who assisted or encouraged but was not present. iv. Accessory after the fact: person, who with knowledge that the other committed a felony assisted him to escape arrest or punishment. |
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Accomplice Liability - Modernly
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i. Actors are all “parties to the crime” for convenience think of one who actually engages in the act as the Principal and the other parties as accomplices.
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Accomplice Liability - Accessory After the Fact
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Accessory After the Fact: A person who assists another knowing that he has committed a felony in order to help him escape.
1. An accessory after the fact is not an accomplice liable for the crime, but is liable for a lesser charge |
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Withdrawal
Repudiation Attempt to neutralize Alternative |
"Withdrawal: A person who effectively withdraws from a crime before it is committed cannot be held guilty as an accomplice. Withdrawal must occur before the crime becomes unstoppable.
i. Repudiation: If the person merely encourages the commission of the crime he must repudiate his encouragement; ii. Attempt to neutralize: attempt to neutralize assistance is required if participation went beyond mere encouragement. If the person provided some material to the crime, he must do all that is possible to retrieve it. iii. Alternative, the accomplice may notify the authorities or take some action to prevent the crime’s commission. |
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Inchoate Offenses
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Inchoate Offenses: Include solicitation, conspiracy, and attempt.
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Merger - Common Law
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At common law if a person engaged in conduct constituting both a felony and a misdemeanor he could be convicted only of the felony. The misdemeanor merged into the felony.
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Merger - Modern Law
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"Under modernly law there is no longer any merger except:
1. One who solicits another to commit a crime may not be convicted of both the solicitation and the completed crime. 2. One who completes a crime after attempting it may not be convicted of both the attempt and the completed crime. 3. Conspiracy does not merge with the completed crime. |
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Solicitation
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Inciting, counseling, advising, urging or commanding another to commit a crime, with the intent that the person solicited commits the crime.
i. Refusal of the person solicited is not a defense |
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Conspiracy
Modernly - Unilateral approach Traditional Rule (CL) - Bilateral approach |
Conspiracy: Is (i) an agreement between two or more persons (ii) an intent to enter into the agreement and (iii) an intent by at least two persons to achieve the objective of the agreement.
i. A majority of jurisdictions also require an overt act but the act of mere preparation will suffice. A minority of jurisdictions and the common law require no such act. ii. Modernly – Unilateral approach: The MPC follows a unilateral approach to conspiracy which requires only one party to have a genuine criminal intent. i.e. a person can be convicted of conspiracy if he conspires with one person only and that person is a police officer working undercover. iii. Traditional Rule – Bilateral approach. At common law a conspiracy requires at least two persons who are actually committed to the illicit plan. |
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Co-Conspirator Liability
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Each conspirator is liable for all crimes of other conspirators if foreseeable and in furtherance of conspiracy.
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Multi-Party Conspiracies
Chain Relationship Hub and spoke relationship |
Multi-Party Conspiracies
1. Chain Relationship A chain relationship is a single, large conspiracy in which all parties to sub-agreements are interested in the single large scheme. All members are liable for the acts of the others in furtherance of the conspiracy. 2. Hub and spoke relationship is a number of independent conspiracies linked together by a common member. Although the common member will be liable for all of the conspiracies, members of the individual conspiracies are not liable for the acts of the other conspirators. |
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Conspiracy Defense
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The only defense is withdrawal and this only applies to liability for crimes committed in furtherance, of the conspiracy and not for the conspiracy or any crimes already committed. Impossibility and merger fail as defenses to conspiracy (e.g. conviction of both conspiracy to rob & robbery)
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Minority MPC Rule for Defense
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If the conspirator thwarts the crime by contacting the police, conspirator will not be liable
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Attempt: Elements |
The crime of attempt consists of two elements: 1) a specific intent to bring about a criminal result: and 2) a significant overt act in furtherance of that intent. |
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Attempt
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Attempt is a specific intent crime requiring a substantial step in the direction of the crime’s commission and not mere preparation.
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Defenses for Attempt
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1. Under the Majority rule – legal impossibility is a defense if D, having completed all acts that he had intended, would have committed no crime.
2. Factual impossibility is not a defense. 3. Abandonment is not a defense at common law once a substantial step has been taken. The MPC provides that a fully voluntary and complete abandonment is a defense |
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Prosecution for Attempt
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A D charged with a completed crime may be found guilty of the completed crime or an attempt, but a D charged only with attempt may not be convicted of the completed crime
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Wharton Rule
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Where two or more people are necessary for the commission of the substantive offense (dueling, adultery, and bigamy) there is no crime of conspiracy unless more parties participate in the agreement necessary for the crime
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Burden of Proof
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Defendant is presumed innocent until proven guilty.
In civil cases: Plaintiff bears the burden of proof In criminal cases: The state bears the burden of proof |
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Preponderance (weight) of evidence
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more likely than not, 50% or more standard, mostly used in civil cases
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Clear & convincing evidence
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higher probability level, 80-85% standard, only some cases
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Beyond reasonable doubt
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high probability level, 90-95% standard, used in criminal cases, not “beyond shadow of doubt” because reasonable doubt means still possible
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