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82 Cards in this Set
- Front
- Back
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Actus Rea
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Conduct - product of volition - NOT compulsively or reflexibly, but acted reflectively
*getting into a car knowing of the possibility of falling asleep |
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Omission
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Failure to act - doctrines which impose a responsibility to act
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Lists - situations that impose a duty to act
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1) statutes (e.g. income tax)
2) Contractual agreements, relied on others (lifeguards, atc) 3) Relationship between the parties - a mistreatment should be what caused the harm 4) voluntarily assuming the duty of care for someone else and failing to reasonably perform it ** 5) D's conduct created the peril |
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Good Samaritan - what is usually the case...
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voluntarily assuming the responsibility/ care of someone and failing to reasonably perform it.
someone helps, and messes up |
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Mental States
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1) Strict Liability
2) Specific 3) General |
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Strict Liability
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No need to show any mens rea/ mental state - no intent crimes.
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How do you spot a strict liability crime?
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types:
1) Administrative 2) Regulative 3) Morality based behaviors (e.g. statutory rape) When you read the statute in the question, look for something missing (knowingly, maliciously, etc.) - where there is no mental intent. |
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Defenses to Strict Liability?
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not much...
1) Consent is NOT 2) Mistake of fact is NOT 3) no Criminal intent is NOT 4) Best defense - constitutionality of the statute - attacking the statute 5) Insanity IS a defense 6) Duress IS 7) Involuntary Intoxication IS *defense that solely negates intention will be the wrong answer. |
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General Intent crimes
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Most crimes are general intent crimes - crimes not mentioned as falling w/in any other category of mental state are General intent crimes. (e.g. Battery, Rape)
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Defense to general intent crimes
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Unlike strict liability crimes, "reasonable" mistake of fact is a defense to all general intent crimes. "unreasonable" mistake of fact is not a defense to general intent crimes
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Specific Intent Crimes - Defenses
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1) Unreasonable mistake of fact
2) Diminished capacity |
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List - Specific Intent Crimes generally
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1) Inchoate Offenses
2) First degree murder 3) Assault 4) Felonies against property |
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Felonies against property
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Larceny, embezzlement, false pretenses, robbery, burglary, forgery
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Malice
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Malice (murder, arson) *malice are different from specific/general intent crimes, close
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Transferred Intent
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The intent to commit a crime may be txf'd to a different than originally intended victim of that crime. (e.g. D shot at one person, but missed the intended victim and killed another person)
***NEVER merge any crimes that have different victims, can be brought separately e.g. Arson - wind blows over the fire to another property |
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Can intent be transferred between different crimes?
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NO - burglary to burglary, arson to arson.
Exception - Felony murder rule, allows transferred intent (e.g. Robbery and someone dies, law allows the mens rea of robbery and txf's to murder) |
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Accomplice Liability (aiding and abetting)
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Accomplices are liable for:
1) the originally intended crime itself, as well as 2) all other foreseeable crimes committed by the principals |
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If someone is present at the scene of a crime and silently approves of the criminal behavior....accomplice liability?
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No - to be guilty as an accomplice, the D must have actually done something w/ the intent to assist in a criminal enterprise, OR assisted the actual perpetrators (principals) in some significant way - WITH knowledge that assistance would be used in order to commit a crime.
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What is the assistance is a service or product provided lawfully - accomplice?
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NO - only where the assumed accomplice has a "stake in the outcome" before they will be held to accomplice liability. *knowledge of. even OVER CHARGING when selling something, they then would have a stake in the outcome
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Three types of inchoate offenses:
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1) Solicitation
2) Conspiracy 3) Attempt |
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Solicitation
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1) Asking someone to commit a crime. Solicitation is complete when the question is ASKED.
*when person solicited actually agrees to the criminal proposal - then conspiracy exists (merger) - can only be convicted one or the other. |
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Conspiracy - elements:
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1) An agreement
2) Slight overt act in furtherance of the conspiracy 3) An intent to pursue the unlawful objective 4) Meeting of the minds *conspiracy does NOT merge with the substantive offense - can be convicted separately |
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Conspiracy - element of intent to pursue the unlawful objective
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No excuse, that there was a mistake of law; mistake of facts are ok, no crime
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Meeting of the minds - conspiracy
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BOTH (or more) people must have belief in commission to a crime - meeting of the minds must be actual.
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Conspiracy - what are the conspirators liable for?
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1) each conspirator is liable for all the crimes of their co-conspirators, if the crimes are committed in furtherance of the conspiracy and were reasonably foreseeable.
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Must there be an express agreement to conspire?
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NO - no written or spoken words are needed
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Withdrawal - how to
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1) conspirator must inform ALL of his co-conspirators of his intent to withdraw and this notice must be given while there is still time for the other co-conspirators to abandon their criminal plans.
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Withdrawal - how much escape from liability?
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the act of withdrawal will never relieve the withdrawing conspirator of liability for the conspiracy itself or for any reasonably foreseeable crimes which have already been committed in furtherance of the conspiracy; but not for future crimes
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Attempt - need
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1) Attempt to commit a target offense.
2) taken a SUBSTANTIAL step towards the completion of that target offense, NOT dangerous proximity to success |
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Attempt - mere preparation enough?
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NO - insufficient - need:
1) a specific intent to complete the target offense, AND 2) a substantial step must be taken towards the completion of that target offense |
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Attempt - merger
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D convicted of the completed offense then she can't be convicted of attempt of that offense.
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Attempt - substantial step
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not just preparation, intent to commit and intent to go through w/ the crime.
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Insanity - M'Naghten standard
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just know the M'Naghten Test
1) at the time of his conduct, as a result of a mental defect the D lacked ability to know the nature and quality of his acts. Known as the right/wrong test, cognitive test. ability to UNDERSTAND |
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Insanity - Irresistible impulse:
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the D, as a result of a mental defect, lacked the capacity for self-control and free choice.
volitional test |
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Insanity - Durham Rule
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1) was the D's conduct a "product" of a mental illness?
2) no longer really followed in this county, this test was the easiest for Ds to satisfy in attempting to establish the defense of insanity |
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MPC test: for insanity
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M'Naghten and irresistible impule.
Did the D lack the SUBSTANTIAL capacity to either appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law as a result ot a mental disease or defect |
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Voluntary Intoxication - diminished capacity
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1) the intoxication was knowingly and voluntarily ingested.
Not a defense to general intent crimes. |
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Involuntary intoxication
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1) not knowingly and voluntarily ingested. D was forced to ingest or was unaware that he was ingesting an intoxicating substance.
*same legal effect as insanity - defense to all crimes, including the (no intent) crimes of strict liability |
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Infancy - Defense
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1) under the age of 7 there is no criminal liability
2) under 14, rebuttable presumption of no criminal liability 3) infancy is ALWAYS the wrong answer on the Bar. |
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Self Defense - Defense of Others - non-deadly force by victim
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A victim (non-initial aggressor who possesses the legal right of self-defense) may use non-deadly force in self-defense any time that victim reasonably believes that force is about to be used against him.
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Self Defense - Deadly force by victim
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Majority rule: a victim (non-initial aggressor who possesses the legal right of self-defense) is permitted to use deadly force in self-defense any time that victim reasonably believes that deadly force is about to be used against him. *use this rule
**need NOT retreat |
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What is the minority rule for deadly force/ self defense?
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prior to using deadly force in self-defense, the victim of a deadly attack must first "retreat" to the wall if it is safe to do so.
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Exceptions to minority rule's duty to retreat - list
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1) victim of a deadly attack does not have to retreat if they are in their own home.
2) the victim of a violent felony such as rape or robbery does not have to retreat even if one is safely available. 3) police officers have no duty to retreat |
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Can an initial violent aggressor have a right of self-defense?
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1) where original-initial aggressor has withdrawn and, at some point prior to exiting, stops, turns to the victim and says something like; I'm all done!
2) a non-deadly aggressor is defending against a deadly response. |
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Does the initial aggressor have a duty to retreat?
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Yes - where there is a safe avenue of retreat available to them. Even where the supposed victim was using deadly force against the initial aggressor.
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Do insulting words make someone the initial aggressor?
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No.
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Defense of others
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Majority does not require a pre-exiting relationship w/ the person aided.
A reasonable mistake of fact is a defense, just as it is for self-defense. Minority jxn uses the alter-ego rule, that when you come to the aid of anyone else, you have no legal rights greater than those of the person to whose aid you have come. Under this alter-ego standard, only if they have a right of self defense, do you have a right to the defense of others when coming to their aid. |
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Defense of a Dwelling:
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1) deadly force may never be used solely to defend your property
UNLESS - the occupant may reasonably believe that force is needed to protect herself and/or family |
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Duress
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is a defense to all crimes except homicide. this is true even if the eventual D is threatened w/ their own or a loved one's death if they fail to commit the homicide.
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Consent - defense
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never a right answer
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Entrapment
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1) very narrow defense b/c the D's predisposition to commit the crime negates the defense.
2) Entrapment is almost never a correct answer (just as in real-life) b/c predisposition on the part of the D to commit the crime is typically obvious on the exam. |
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Battery
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1) Completed assault
2) General intent crime |
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Assault (2 def.)
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1) Attempted battery - assault is a specific intent crime b/c all attempts are specific intent crimes
2) Threat - assault - is a general intent crime |
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Homicide - principles
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1) not necessarily a crime - homicide hinges on the mens rea
2) Homicide is the killing of a human - homicide exists even if it only shortens the victim's life, even victim may have died anyway sooner |
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Homicide - intents - malice aforethought
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1) intent to kill
2) intent to do serious harm 3) Depraved heart 4) Felony murder |
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Homicide Intent - Depraved heart
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Intentional performance of an act, despite the fact that it is known by the actor to entail a substantial likelihood of causing death or great bodily injury (gross recklessness)
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Homicide Intent - Felony murder
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A homicide committed while perpetrating a felony. It is said that the intent to commit that felony creates the malice needed to make the homicide a murder.
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Defense to felony murder
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1) has defense to underlying felony, defense also for felony murder
2) Must be a separate felony from the murder itself 3) Deaths must be foreseeable 4) While deaths caused while fleeing from a felony are felony murder, once the D reaches some point of temporary safety any deaths he may cause thereafter can no longer be a felony murder as a result of the original felony. 5) D is not liable for the death of a co-felon; but is for innocent shopper being shot (foreseeable) |
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Voluntary Manslaughter
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*mitigating an intent - need provocation:
1) Fight 2) behavior which actually provoked the D would also have provoked a reasonable person. 3) No time to cool off from the passion 4) reasonable person would not have cooled off |
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Voluntary v. Involuntary manslaughter
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generally, some form of mitigation, reductions from murder/intent.
volun - there is an intent to harm/ cause seriously bodily injury, but mitigated. further mitigation results to involuntary manslaughter |
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Imperfect self defense claim
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unreasonably believing that one has a right to self defense - reduction to voluntary manslaughter.
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Diminished Capacity
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*can reduce murder to voluntary manslaughter.
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Involuntary manslaughter
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1) Criminal negligence - reckless, but if so outrageous, can be prosecuted for depraved heart murder. There was no subjective awareness of the creating of a high degree of risk
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Misdemeanor Manslaughter rule
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Killing someone during the commission of either a misdemeanor or an un-enumerated felony
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First Degree Murder
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1) nonexistent in C/L
2) just know there would be a statute provided, and follow the statute. Otherwise, it's 2nd degree (as barbri defined) |
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Kidnapping
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1) there must have been some movement of the victim (any movement)
2) concealed in what is typically referred to as a secret place |
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Rape
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1) slightest penetration
2) General intent crime - mistake of fact is a defense available to the accused, but must be reasonable |
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Statutory Rape
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Strict liability crime - consent of victim is no defense; mistake of fact is not a defense
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Property Claims - Larceny
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1) wrongful taking (stealing)
2) Carrying away (slightest movement) 3) the personal property of another 4) w/out consent 5) w/ intent to permanently deprive the rightful possessor |
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Larceny - when must there be intent?
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intent to permanently deprive must exist at time of the taking.
e.g. if intent to handle it carefully and to return it soon, then larceny has not taken place. |
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what if the property is taken w/ the belief that it's yours?
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not common law larceny - but mistake of law is still larceny (taking dog thinking it's ok); no wrongful taking, intent , or carrying away; HOWEVER - trespassory taking, and moment of wanting to keep amounts to larceny.
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Is risking the property to damage larceny?
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yes - intent to permanently deprive (even if as a joke) and placing it in risk
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Embezzlement
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the alleged embezzler must have had lawful possession at the time he improperly converted the property for their own purposes.
*no carrying away is necessary *no need to show that embezller personally benefited from the conversion |
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False Pretenses
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crime involves the perpetrator persuading, bu means of a false pretense (lie), the owner of property to convey title.
False pretense must be as to a present or a past fact. False promises to do something in the future are not enough to constitute the crime of false pretenses. |
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Robbery
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Larceny + assault
1) all the larceny elements must be present 2) taking from the person or his presence (broadly defined) 3) by means of physical harm to, or by the putting in fear by threats of imminent harm against the safety of, human being. *any force, but if no notice by the victim, no robbery (purse) |
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Do threats of future harm create a robbery?
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NO - it creates an extortion
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Extortion
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1) does not have to have taken anything from the person or presence of his victim.
2) can be a threat of future threat of harm 3)threatened harm does not have to be a person 4) does not have to be a physical harm |
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Arson
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Malicious burning of the dwelling house of another
1) Burning - need charring at the least - harm from smoke/water not arson 2) Dwelling house (CL) but in multi state exam, any structure will suffice for arson 3) Of another: burning down the dwelling of their own home is NOT arson |
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Burglary - generally
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1) entry must be accomplished by the use of some force, threats or fraud
*open door or window - no burglary *pushing open a door to enter, is burglary |
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Burglary - elements
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1) Breaking
2) Entering 3) Dwelling house (CL) 4) At night (CL) 5) intent to commit a felony or theft inside |
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Omission as an Act
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failure to act gives rise to liability if:
1) there is a specific duty to act imposed by law 2) D has knowledge of the facts giving rise to the duty to act; and 3) it is reasonably possible to perform the duty |
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Specific Intent
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1) solicitation
2) Attempt 3) Conspiracy 4) Assault 5) 1st degree premeditated murder 6) Larceny and Robbery 7) Burglary 8) Forgery 9) False pretenses 10) Embezzlement |
