Criminal Law - Ca Bar Feb 2009

Front 1

Does conspiracy merge into the principal crime? What about solicitation?

Back 1

No, it doesn't. A person may be charged with both conspiracy and the principal crime.

Solicitation, however does merge into the principal crime. One cannot be charged with both solicitation to commit the principal crime and the principal crime itself.

Front 2

Rape.

Back 2

Unlawful carnal knowledge of a woman by a man, not her husband, without effective consent.

Front 3

Actus Reus/ Mens Rea

Back 3

The two components to a crime:

(1) the act;
(2) the intent.

Front 4

Common Law Accomplice Liability.

Back 4

Common law distinguished four types of parties to a felony:

(1) principals in the first degree: those who committed the act or omission;

(2) principals in the second degree: those who aided, commanded, or encouraged and were present at the crime;

(3) accessories before the fact: those who aided, abetted, or encouraged but were not present at the crime;

(4) accessories after the fact: persons who assisted the principal after the crime.

MODERN STATUTES HAVE ABOLISHED THE DISTINCTIONS.

ALL "PARTIES TO THE CRIME" CAN BE FOUND GUILTY OF THE CRIMINAL OFFENSE.

Front 5

Withdrawal by Accomplice.

Back 5

Withdrawal can occur only BEFORE the chain of events leading to the crime becomes unstoppable.

One who has rendered encouragement or aid may avoid liability as an accomplice if he withdraws from the crime before it is actually committed by the principal.

Requirements of withdrawal depends on what the person initially did:

(1) If only encouraged, then must repudiate.

(2) If assisted in providing material to principal, must neutralize this assistance by doing everything possible to retrieve material back.

If these methods are not possible, then must NOTIFY authorities or take some other action to prevent the commission of the crime.

Front 6

Inchoate offenses. (SAC)

Back 6

An inchoate offense is one committed prior to and in preparation for what may be a more serious offense.

SOLICITATION:
(1) Inciting, counseling, advising, inducing, urging, or commanding another to commit a felony; and
(2) Specific intent that the person solicited commit the crime.

ATTEMPT:
(1) Specific intent to commit the crime; and
(2) An overt act in furtherance of that intent ("substantial step").

CONSPIRACY:
(1) An agreement between two or more persons;
(2) An intent to enter into an agreement; and
(3) An intent to achieve the objective of the agreement.

Front 7

Conspiracy.

Back 7

(i) An agreement between two or more persons to achieve a a criminal objective (ii) with the intent to enter into that agreement (iii) and the intent to achieve the criminal objective.

MEETING OF THE MINDS REQUIRED.

PROTECTED CLASS CANNOT BE GUILTY OF CONSPIRACY.

NO MERGER: can be convicted for both conspiracy and completed crime.

CO-CONSPIRATOR LIABILITY: a conspirator will be liable for the crimes of his co-conspirators if: (i) the crimes were committed in furtherance of the conspiracy; and (ii) were a "natural and probable" consequence of the conspiracy (foreseeable crimes).

Most states now require an "overt act" in furtherance of the conspiracy.

Evidence of overt acts CONCEALMENT of crime is not sufficient to make the act of concealment part of the conspiracy.

WITHDRAWAL is NOT a defense to conspiracy, but may be a defense to subsequent crimes of co-conspirators.

Front 8

Common law murder.

Back 8

The unlawful killing of another human being with malice aforethought (express or implied).

Front 9

Malice aforethought.

Back 9

ANY OF THE FOLLOWING STATES OF MIND:

(i) intent to kill (express malice); or
(ii) intent to inflict great bodily injury; or
(iii) reckless indifference to an unjustifiably high risk to human life ("abandoned and malignant heart"); or
(iv) intent to commit a felony (felony murder).

Use of deadly weapon creates inference of intent to kill.

Front 10

Voluntary manslaughter.

Back 10

Intentional killing as a result of adequate provocation.

PROVOCATION ADEQUATE IF:
(1) Provocation would arouse sudden and intense passion in the mind of an ordinary person such as to cause him to lose self-control;
(2) Defendant was, in fact, provoked;
(3) There was insufficient time between provocation and killing to "cool off";
(4) Defendant, in fact, did not "cool off" between provocation and killing.

Adequate provocation most often recognized in cases of: (a) being subjected to serious batter or a threat of deadly force; and discovering one's spouse in bed with another person.

"Mere words" are ALWAYS INADEQUATE.

Front 11

Involuntary manslaughter.

Back 11

Two types:

(1) Criminal Negligence; and
(2) "Unlawful Act" Manslaughter

Criminal Negligence: requires a greater deviation from the "reasonable person" standard than required for civil liability.

Unlawful Acts include (1) "misdemeanor manslaughter; and (2) felonies not included in felony murder.

Front 12

First degree murder.

Back 12

DELIBERATE AND PREMEDITATED:
(a) Defendant made the decision to kill in a cool and dispassionate manner; and
(b) Defendant actually reflected on the idea of killing (even if for a brief period).

FELONY MURDER:
(a) guilty of underlying felony;
(b) felony independent of killing;
(c) death foreseeable;
(d) death caused DURING the commission of the felony;
(e) defendant not liable for killing of co-felon by police or resistor;
(f) defendant IS LIABLE for killing of innocent person by police or other resistor.

Front 13

"Year and a Day" Rule.

Back 13

For a defendant to be prosecuted with homicide, the death of a victim must occur within one year and one day from the infliction of injury.

Front 14

Cause-in-fact requirement for homicide.

Back 14

D's conduct must be both the cause-in-fact and the proximate cause (foreseeable) of the victim's death.

Front 15

Kidnapping.

Back 15

(1) Some movement of the victim; or
(2) Concealment of the victim in a "secret" place.

Aggravated Kidnapping includes:
(i) for ransom;
(ii) for purpose of commission of other crimes;
(iii) for offensive purpose;
(iv) child stealing.

Front 16

Lack of Effective Consent in Rape.

Back 16

Lack of effective consent for sex accomplished by:
(i) force;
(ii) threat of force;
(iii) lack of capacity to consent;
(iv) fraud

Front 17

Larceny.

Back 17

(1) a taking (D must obtain control);
(2) and carrying away (D must move, even slightly);
(3) of personal property;
(4) of another (doesn't have to be legal owner; only possessor);
(5) by trespass (without consent);
(6) with intent to permanently deprive (or for unreasonable time) the person of his interest in the property.

Intent is insufficient:
(1) when D intends to return the property within a reasonable time and at the time of taking has a substantial ability to do so;
(2) when D honestly believes that she is entitled to them as repayment of a debt .

Front 18

Embezzlement.

Back 18

(1) The fraudulent;
(2) conversion;
(3) of the property;
(4) of another;
(5) by a person in lawful possession of that property.

Front 19

False Pretenses.

Back 19

(1) Obtaining title;
(2) to the property of another;
(3) by intentional false statement of past or existing fact;
(4) with intent to defraud the other.

Front 20

Robbery.

Back 20

(1) A taking;
(2) of personal property of another;
(3) from the other's person or presence;
(4) by FORCE or INTIMIDATION;
(5) with the intent to permanently deprive him of it.

Front 21

Extortion.

Back 21

Common law: the corrupt collection of an unlawful fee by an officer under color of his office.

Modern law: obtaining property from another by means of certain oral or written threats (blackmail).

Front 22

Receipt of stolen property.

Back 22

(1) Receiving possession and control;
(2) of "stolen" personal property;
(3) known to have been obtained in a manner constituting a criminal offense;
(4) by another person;
(5) with the intent to permanently deprive the owner of the interest in the property.

Front 23

Burglary.

Back 23

(1) A breaking;
(2) and entry;
(3) of the dwelling;
(4) of another;
(5) at nighttime;
(6) with the intent of committing a felony therein.

"Breaking" must be to enter dwelling. Minimal force is sufficient.

Includes "constructive breaking" by gaining entry through fraud, threat, or intimidation.

Entry satisfied by placing any portion of the body inside the structure, even momentarily.

Dwelling means for sleeping purposes.

MODERN BURGLARY: elimination of "breaking," "dwelling," and "nighttime" requirements.

Front 24

Arson.

Back 24

(1) The malicious;
(2) burning;
(3) of the dwelling;
(4) of another.

Malice required: D must have acted with the intent or knowledge that the structure would burn, or with reckless disregard of an obvious risk.

"Charring" is minimal requirement for burning.

Structure could be defendant's own dwelling.

Front 25

Plain meaning rule.

Back 25

When statutory language is plain an its meaning clear, the court must give effect to it even if the court feels that the law is unwise or undesirable.

EXCEPTIONS: if court feels that application of law will lead to injustice, oppression, or an absurd consequence.

Front 26

Ambiguous statutes must be strictly construed in favor of who?

Back 26

The defendant.

Front 27

Merger.

Back 27

At common law, if defendant's conduct constitutes a misdemeanor and a felony, the misdemeanor would "merge" into the felony. No merge of offenses of the same degree.

MODERN RULE:
(1) merger of solicitation or attempt in completed crimes.
(2) Merger of "lesser included" crimes, meaning that if jeopardy would prevent D from being later prosecuted for lesser crime after being tried for greater crime, the lesser crime will be merged.

Front 28

Elements of a crime.

Back 28

(1) Actus Reus (guilty act)
(2) Mens Rea (guilty mind)
(3) Concurrence of actus reus and mens rea
(4) Harmful result and causation

Front 29

Voluntariness requirement.

Back 29

Criminal act must be voluntary

Front 30

General intent crime.

Back 30

D must be aware that he is acting a proscribed way and that any attendant circumstances required by the crime are present (doesn't have to be certain).

A jury may inter the required general intent merely from the doing of the act itself.

Front 31

Specific intent crime.

Back 31

A crime that requires the doing of an act with a specific intent or objective.

LIST: solicitation, attempt, conspiracy, first degree premeditated murder, assault, larceny and robbery, burglary, forgery, false pretenses, embezzlement.

Front 32

Transferred intent.

Back 32

If a defendant intended a harmful result to a particular person or object and, in trying to carry out his intent, caused a similar harmful result to another person or object, her intent will be transferred from the intended victim to the person or object actually harmed.

Front 33

Strict liability crime.

Back 33

A crime that does require awareness of all of the factors constituting the crime.

The major significance of strict liability is that certain defenses, such as mistake of fact, are not available.

Front 34

Criminal Negligence.

Back 34

When a person fails to be aware of a substantial and unjustifiable risk that circumstances exist or a result will follow, and such failure constitutes a substantial deviation from the standard of care that a reasonable person would exercise under the circumstances.

A higher standard than civil negligence: must be VERY UNREASONABLE RISK.

Front 35

Criminal recklessness.

Back 35

Defendant consciously disregards a substantial or unjustifiable risk that circumstances exist or that a prohibited result will follow, and this disregard constitutes a GROSS DEVIATION from the standard of care that a reasonable person would exercise in the situation.

Front 36

What types of crimes can voluntary intoxication be a valid defense?

Back 36

May be good defense for specific intent crimes (crimes that require a purpose or knowledge).

NOT a defense for general intent crimes.

NOT a defense to crimes requiring malice or recklessness.

Note that involuntary intoxication is treated as a mental illness, and therefore the proper defense would be insanity.

Front 37

Involuntary intoxication.

Back 37

Only if it results (i) without knowledge of substance's nature; (ii) under direct duress imposed by another; or (iii) pursuant to medical advise, while unaware of intoxicating effect.

Involuntary intoxication may be treated as a mental illness, and therefore the proper defense would be insanity.

Front 38

Insanity Tests. MI-DAD

Back 38

MI-DAD

(1) M'Naghten Rule: defendant is entitled to acquittal if disease of the mind caused a defect of reason, such that the defendant lacked the ability at the time of his actions to either know the wrongfulness of his actions or to understand the nature and quality of his actions.

(2) Irresistible Impulse Test: defendant entitled to acquittal if proof establishes that because of mental illness he was unable to control his actions or conform his conduct to the law.

(3) Durham Test: defendant entitled to acquittal if the proof establishes that his crime was the "product of mental disease or defect."

(4) ALI Test: defendant entitled to acquittal if the proof shows that he suffered from a mental disease or defect and as a result lacked substantial capacity to either appreciate the criminality of his conduct or conform his conduct to the requirements of law.

(4) Diminished Capacity: defendant entitled to a partial defense where proof shows that as a result of mental defect short of insanity, he did not have the particular mental state required.

Front 39

M'Naghten Rule:

Back 39

The traditional test for criminal insanity.

INSANE = DDKWN

Defendant is entitled to acquittal if (1) Disease of the mind caused a (2) Defect of reason, such that the defendant lacked the ability at the time of his actions to either (2) Know the Wrongfulness of his actions or (3) to understand the Nature and quality of his actions.

Front 40

Necessity and/or Duress are NEVER available defenses for:

Back 40

homicide.

Front 41

Defense of dwelling.

Back 41

Non-deadly force -- a person is justified in the use of nondeadly force in defense of his dwelling when, he reasonably believes that such force is necessary to prevent or terminate another's unlawful entry into or attack upon her dwelling.

Deadly force justified in two situations:
(1) Tumultuous Entry Plus Personal Danger
(2) Felony -- person reasonably believes that unlawful entrant intends to commit a felony.

Front 42

Self-Defense.

Back 42

Nondeadly force:
(1) if non-aggressor may use force as reasonably necessary to protect self from imminent unlawful force.
(2) NO duty to retreat

Deadly force:
(1) if without fault;
(2) confronted with unlawful force; and
(3) threatened with imminent death or great bodily harm.

Majority Rule: NO duty to retreat.

Minority rule: retreat required, only if it can be done safely.No retreat required (i) in dwelling, (ii) when making lawful arrest; or (iii) where being robbed.

Right of Aggressor to Use Self Defense:
Generally, aggressors do not have right to self-defense, UNLESS
aggressor "regains" his right by:
(1) Withdrawal -- in good faith, removes himself from the fight, and communicates desire to remove himself; or
(2) Sudden Escalation -- where victim suddenly escalates a "minor" fight into one involving deadly force without giving aggressor opportunity to withdraw.

Front 43

Capacity of Infants.

Back 43

Under Seven -- NO CRIMINAL LIABILITY. Presumption of incapability of knowing wrongfulness of their acts.

Under 14 -- Rebuttable Presumption of No Criminal Liability.

14+ -- Adult

Front 44

Defense of others.

Back 44

No special relationship needed to assert this defense.

Valid defense only if defendant reasonably believed that the person she assisted had the legal right to use force in his own defense.

Front 45

Imperfect self-defense.

Back 45

In some states, murder may be reduced to manslaughter even though:
(i) defendant was at fault in starting the altercation; and
(ii) defendant unreasonably but honestly believed in the necessity of responding with deadly force.

Front 46

Crime prevention.

Back 46

One is generally privileged to use NONDEADLY FORCE to the extent reasonably necessary to prevent a felony, riot, or other serious breach of the peace (some states, like CA, have extended this to any crime).

DEADLY FORCE:
(1) Traditional rule was that deadly force could be used to prevent the commission of any felony.
(2) Modern rule: only if the crime is a "dangerous felony" involving risk to human life.

Front 47

Use of force to effectuate arrest.

Back 47

A private person