Criminal Law Elements Of The Crimes

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Essential Elements of a Crime

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The prosecution is general required to prove the following elements of a criminal offense:

1. Actus Reus: A physical act (or unlawful omission) by the defendant

2. Mens Rea: The state of mind or intent of the defendant at the time of his act

3. Concurrence: The physical act and the mental state existed at the same time; and

4. Harmful Result and Causation: A harmful result caused (both factually and proximately) by the defendant's act

Many crimes also require proof of certain attendant circumstances, without which the same act and intent would not be criminal

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Accessory After the Fact

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An accessory after the fact is one who:

1. Receives, relieves, 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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Solicitation

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Solicitation consists of:

1. Inciting, counseling, advising, inducing, urging, or commanding another to commit a felony

2. With the specific intent that the person solicited commit the crime

Defenses:
1. MPC recognizes renunciation if you prevent the commission of the crime

2. If you could not be found guilty of the crime because of a legislative intent to exempt you

Not Defenses:
1. Not a defense that the person solicited is not convicted, nor that the offense solicited could not have been successful

Merger:
1. If crime completed, both liable for the crime

2. If person solicited attempts and fails, both liable for attempt

3. If person solicited agrees but does not commit act, both parties liable for conspiracy

4. But solicitor CANNOT be liable for both solicitation and one of the other offenses

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Conspiracy

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The elements of conspiracy at common law are as follows:

1. An agreement between two or more persons;

2. An intent to enter into an agreement; and

3. A specific intent to achieve the objective of the agreement

Majority of States require:

4. An overt act in furtherance of the conspiracy (mere preparation is enough)

Traditional View: Acquittal (but it must be actual acquittal) of all others precludes conviction for conspiracy of defendant

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Attempt

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An attempt consists of two elements:

1. A specific intent to commit the crime; and

2. An overt act in furtherance of that intent

--(a) Traditional/Massachusetts: "Proximity" test: requires the act to be "dangerously close" to successful completion

--(b) Modern/MPC: Require the act to constitute a "substantial step in a course of conduct planned to culminate in the commission of the crime" that strongly corroborates the actor's criminal purpose

Defenses:

1. Legal Impossibility: what the defendant did or intended to do would not constitute a crime under any circumstances
--All States and MPC recognize this defense

2. Factual Impossibility: it would be factually impossible for the defendant to complete his plan (robbery victim had no money)
--This is NOT a defense

Ask: If the defendant were able to complete all of the acts he intended to do, and if all of the attendant circumstances actually were as he believed them to be, would the defendant have committed a crime?

Abandonment
1. Common Law: Not a def

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Battery

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Battery consists of:

1. An unlawful application of force

2. To the person of another

3. Resulting in bodily injury or offensive touching

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Aggravated Battery

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A battery in which:

1. A deadly weapon is used;

2. Serious bodily injury is caused; or

3. The victim is a child, woman, or police officer

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Assault

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An assault is either:

1. An attempt to commit a battery; or

2. 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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Common Law Murder

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Murder is:

1. The unlawful killing of another human being

2. With malice aforethought
--Intent to kill
--Intent to inflict great bodily injury
--Reckless indifference to an unjustifiably high risk to human life; or
--Intent to commit a felony (felony murder)

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Voluntary Manslaughter

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Voluntary manslaughter is:

1. A killing that would otherwise be murder

2. But is distinguishable from murder by the existence of adequate provocation

Elements of Adequate Provocation:

1. The provocation must have been one that would arouse sudden and intense passion in the mind of an ordinary person such as to cause him to lose his self-control

2. The defendant must have in fact been provoked

3. There must not have been a sufficient time between the provocation and the killing for the passions of a reasonable person to cool; and

4. The defendant in fact did not cool off between the provocation and the killing

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Involuntary Manslaughter

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A death caused by:

1. Criminal negligence; or

2. An unlawful act

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Statutory First Degree Murder

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A killing that is:

1. Deliberate (the defendant made the decision to kill in a cool and dispassionate manner); and

2. Premeditated (The defendant actually reflected on the idea of killing, if only for a very brief period)

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Statutory First Degree Felony Murder

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A killing tat is committed during the commission of one of the enumerated felonies, including burglary, arson, rape, robbery, and kidnapping.

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False Imprisonment

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The common law misdemeanor of false imprisonment consisted of:

1. Unlawful

2. Confinement of a person

3. Without his valid consent

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Kidnapping

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Kidnapping consists of:

1. The confinement of a person that involves either:

a) Some movement (i.e. asportation) of the victim; or

b) Concealment of the victim in a "secret" place

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Rape (Common Law/MPC)

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Rape consists of:

1. Unlawful

2. Carnal knowledge of a woman

3. By a man, not her husband

4. Without her effective consent

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Statutory Rape

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Statutory rape consists of:

1. Carnal knowledge of a person

2. Under the age of consent

Note: No mens rea (strict liability)

Note: Consent is irrelevant

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Adultery

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Adultery consists of:

1. Cohabiting or having intercourse with another;

2. The behavior is open and notorious; and either

a) The person is married and the other person involved in such intercourse is not his spouse; or

b) The person is not married and knows the other person in such intercourse is married.

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Larceny

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Larceny consists of:

1. A taking (obtaining control)

2. And carrying away (asportation)

3. Of tangible personal property (excluding realty, services, and intangibles, but including written instruments embodying intangible rights such as stock certificates)

4. Of another with possession

5. By trespass (without consent of the person in possession of the property or by consent induced by fraud)

6. With intent to permanently (or for an unreasonable time) deprive the person of his interest in the property

--Intending to deal with property in a manner that involves a substantial risk of damage or loss suffices as intent to permanently deprive

--Or an intent to sell or pledge goods to the owner

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Embezzlement

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Embezzlement consists of:

1. The fraudulent (must intend to defraud)
--If you intend to restore the EXACT property then it is not embezzlement

--If you covert if pursuant to a claim of right it is not embezzlement (whether he took it openly is an important factor)

2. Conversion (dealing with the property in a manner inconsistent with the arrangement by which defendant has possession)

3. Of property

4. Of another

5. By a person in lawful possession of that property

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False Pretenses

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The offense of false pretenses generally consists of:

1. Obtaining title

2. To the personal property of another

3. By an intentional (or knowing) false statement of past or existing fact
--Must be sole cause or major factor of victim passing title

4. With the intent to defraud the other

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Larceny by Trick

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The offense of Larceny by Trick consists of:

1. The taking; and

2. Asportation
--Obtaining possession but not obtaining title (if title-false pretenses)

3. Of the tangible personal property

4. Of another

5. By trespass when consent obtained by trick

6. With the intent to permanently deprive the person of his interest in property

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Robbery

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Robbery consists of the following:

1. A taking

2. Of personal property of another

3. From the other's person or presence (including anywhere in his vicinity)

4. By force or threats of immediate death or physical injury
--(to the victim, a member of his family, or some person in the victim's presence)

--This must be the reason she gives up the property, if not then only attempted robbery

5. With the intent to permanently deprive him of it

Pickpocketing is larceny unless they notice and resist, then it is robbery

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Extortion

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Extortion consists of:

1. Corrupt collection

2. Of an unlawful fee

3. By an officer under color of his office

Modern Statutes: Extortion/Blackmail

1. Obtaining property

2. By means of threats

3. To do harm or expose information

Extortion differs from robbery because the threats are of FUTURE HARM and taking does not have to be in the presence of the victim

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Receipt of Stolen Property

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Receipt of stolen property consists of:

1. Receiving possession and control;
--Put in location designated by defendant is sufficient

2. Of "stolen" personal property
--Must be stolen at the time defendant receives it

--Sting operation, not "stolen" but could still be attempted receipt of stolen property (would need specific intent--knowing it was stolen)

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 his interest in property

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Forgery

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Forgery consists of the following:

1. Making or altering (by drafting, adding, or deleting)

2. A writing with apparent legal significance (a contract, not a painting)

3. So that it is false

--representing that it is something that it is not, not merely containing a misrepresentation (e.g. a FAKE warehouse receipt, but NOT an inaccurate real warehouse receipt)

4. With intent to defraud (although no one need actually have been defrauded)

If defendant fraudulently causes a third person to sign a document that the third person does not realize he is signing (fraud in the factum), forgery has been committed.

But if the third person realizes what he is signing, forgery has not been committed even if the third person was induced to sign it by fraud (fraud in the inducement)

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Uttering a Forged Instrument

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Uttering consists of:

1. Offering as genuine;

2. An instrument that may be the subject of forgery and is false

3. With intent to defraud

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Malicious Mischief

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Malicious mischief consists of:

1. Malicious

2. Destruction of, or damage to

3 Property of another

Requires that the damage or destruction have been intended or contemplated by the defendant

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Burglary

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At common law, the elements of a burglary are:

1. A breaking

--Creating or enlarging an opening by at least minimal force, FRAUD, or intimidation;

--Must be TO GAIN ENTRY

--If defendant had the resident's consent (by fraud is not with consent) to enter, the entry is not a breaking

2. And entry

--Placing any portion of the body into the structure

--Placing an instrument into the structure IF it was for the PURPOSE OF COMMITING THE FELONY (if just for gaining entry, not enough)

3. Of the dwelling

--A structure used with regularity for sleeping purposes, even if used for other purposes such as conducting a business

4. Of another

--Determined by OCCUPANCY, not ownership (landlord can commit burglary)

5. At nighttime

6. With the intent of committing a felony therein

--Must be present at the time of entry

Modern: Eliminate requirements of breaking, dwelling, nighttime, and felony (any theft)

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Arson

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At common law, arson consists of:

1. The malicious

--Intentional or with reckless disregard of an obvious risk

2. Burning

--Requires some damage (charring) to the structure caused by fire (not explosion)

3. Of the dwelling

4. Of another

--Based on OCCUPANCY, not ownership

Modern/MPC: include explosions, commercial structures, cars, trains, etc.

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Houseburning

Back 31

The common law misdemeanor of houseburning consists of:

1. Malicious

2. Burning

3. Of one's own dwelling

4. If the structure is situated either:

a) In a city or town; or

b) So near to other houses as to create a danger to them

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Perjury

Back 32

At common law, perjury consisted:

1. The willful

2. And corrupt

3. Taking of a false oath

4. In regard to a material matter in a judicial proceeding

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Overt Act

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An act from which criminal intent can be inferred:

1. Majority View: Any act, however, slight, in furtherance of the conspiracy (showing up at site of intended crime or mere preparation)

2. Minority View/Common Law: The agreement itself was the criminal act (actus reus)

3. Massachusetts: Does not require an overt act

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Self-Defense: Non-Deadly Force

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An individual who is:
1. Without fault

2. May use such force as reasonably appears necessary

3. To protect herself from the imminent use of unlawful force upon herself

Majority: No Duty to Retreat

Massachusetts: Retreat is required unless it cannot be done in complete safety or a person is in their own home

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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

Majority: No duty to retreat

Massachusetts: Retreat is required unless it cannot be done in complete safety or a person is in their own home

Imperfect Self-Defense: If one of the three requirements is not met, it may still reduce murder to manslaughter

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Self-Defense: Right of Aggressor to Use Self-Defense

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An aggressor can regain her right to use self-defense in two ways:

1. Withdrawal: An aggressor who, in good faith, effectively removes herself from the fight, and communicates to the other person her desire to remove herself, regains her right to use self-defense

2. Sudden Escalation: If the victim of the initial aggression suddenly escalates a "minor" fight into one involving deadly force and does so without giving the aggressor the chance to withdraw, the aggressor may use force in her own defense

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M'Naghten Rule

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A defendant is entitled to an acquittal if the proof establishes that:

1. A disease of the mind

2. Caused a defect of reason

3. Such that the defendant lacked the ability at the time of his actions to either:

--3(a): Know the wrongfulness of his actions; or

--3(b): Understand the nature and quality of his actions

Shorthand: defendant does not know right from wrong

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Irresistible Impulse Test

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A defendant is entitled to an acquittal if the proof establishes that because of mental illness he was:

1. Unable to control his actions or to conform his conduct to the law

Shorthand: Impulse he couldn't resist

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Durham (or New Hampshire) Test

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A defendant is entitled to an acquittal if the proof establishes that his crime was the:

1. Product of mental disease or defect.

A crime is a "product of" the disease if it would not have been committed but for the disease

Shorthand: Illness was "but for" cause

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A.L.I./M.P.C./Massachusetts Test

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A defendant is entitled to an acquittal if the proof shows that he suffered from a mental disease or defect and as a result lacked substantial capacity to either:

1. Appreciate the criminality (wrongfulness) of his conduct; or

2. Conform his conduct to the requirements of law

Prosecution must prove the defendant was sane beyond a reasonable doubt

Shorthand: Combination of M'Naghten and Irresistible Impulse

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Jurisdiction

Back 41

A state has jurisdiction over a crime if:

1. Any act constituting an element of the offense was committed in the state

2. An act outside the state caused a result in the state

3. The crime involved the neglect of a duty imposed by the law of the state

4. There was an attempt or conspiracy outside the state plus an act inside the state

5. There was an attempt or conspiracy inside the state to commit an offense outside the state

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Due Process Requirements

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Due Process requires that there must be:

1. Fair warning: a person of ordinary intelligence must be able to discern what is prohibited; and

2. No arbitrary and discriminatory enforcement

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Rules Against Multiple Convictions for Same Transaction

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Double jeopardy prohibits trial or conviction of a person for a lesser included offense if he has been put in jeopardy for the greater offense.

BUT a court can impose multiple punishments at a single trial where the punishments are for two or more statutorily defined offenses specifically intended by the legislature to carry separate punishments, even though the offenses arise from the same transaction and constitute the same crime.

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Common Law: Principal in the First Degree

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Person who:

1. Actually engaged in the act or omission that constitutes the offense; or

2. Caused an innocent agent to do so

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Common Law: Principal in the Second Degree

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Person who:

1. Aided, commanded, or encouraged the principal; and

2. Was present at the crime

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Common Law: Accessory Before the Fact

Back 46

Person who:

1. Assisted or encouraged

But

2. Was not present at the crime

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Common Law: Conviction of Accessory

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Conviction of the principal was required for conviction of an accessory and the charge must have indicated the correct theory of liability (i.e., as principal or accessory)

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Modern Accomplice Liability: Principal

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Conduct: Person who commits the illegal act or who causes an innocent agent to do so.

Liability: Liable for principal crime

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Modern Accomplice Liability: Accomplice

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Conduct: Person who aids or encourages principal to commit the illegal conduct

Liability: Liable for principal crime if accomplice intended to aid or encourage the crime

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Modern Accomplice Liability: Accessory After the Fact

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Conduct: Person who aids another to escape knowing that he has committed a felony

Liability: Liable for separate, less serious crime of being an accessory after the fact

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Withdrawal from Accomplice Liability

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Withdrawal must occur BEFORE the crime before unstoppable

1. Repudiation is sufficient withdrawal for mere encouragement

2. Attempt to neutralize assistance is required if the participation went beyond mere encouragement

Notifying the police or taking other action to prevent the crime is also sufficient

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Withdrawal, in general

Back 52

Withdrawal is not a defense to the inchoate crimes (Solicitation, Conspiracy, or Attempt)

It is only a defense to Accomplice Liability

But, in a conspiracy, withdrawal will prevent liability for the future crimes of co-conspirators

MPC allows renunciation as a defense if you prevent the crime

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Wharton Rule

Back 53

Where two or more people are necessary for the commission of the substantive offense, there is no crime of conspiracy unless more parties participate in the agreement than are necessary for the crime.

BUT: Wharton rule does not apply to agreements with "necessary parties not provided for" by the substantive offense; both parties may be guilty of conspiracy even though both are necessary for the commission of the substantive offense

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Liability for Co-Conspirator's Crimes

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Conspirator may be held liable for crimes committed by other conspirators if the crimes:

1. Were committed IN FURTHERANCE of the objectives of the conspiracy; and

2. Were FORESEEABLE

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Termination of Conspiracy

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Termination of the conspiracy matters because all acts and statements of co-conspirators are admissible against a conspirator ONLY if they were done or made in furtherance of the conspiracy

Conspiracy terminates upon completion of the wrongful objective

Unless agreed to in advance, acts of concealment are NOT part of the conspiracy

Government's defeat of the conspiracy's objective does not automatically terminate the conspiracy

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Defenses to Conspiracy

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Factual Impossibility is NO DEFENSE

Withdrawal is usually no defense because the conspiracy is complete as soon as the agreement is made (common law) or the over act is performed (modern).

But withdrawal may be a defense to crimes committed in furtherance of the conspiracy, including a defense to the substantive target crime of the conspiracy (conspiracy to commit murder, withdrawal, still liable for conspiracy, but not for murder)

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Involuntary Intoxicaton

Back 57

Only if it results from taking of intoxicating substance:

1. Without knowledge of its nature

2. Under Direct Duress imposed by another; or

3. Pursuant to medical advice while unaware of the substance's intoxicating effect

Treated like Insanity--so it must meet that jurisdiction's insanity test

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Arrest by Private Persons

Back 58

Nondeadly Force:

1. Crime IN FACT committed

2. REASONABLE GROUNDS to believe person arrested committed the crime

Deadly Force
1. Only if person harmed was ACTUALLY GUILTY of the offense for which the arrest was made.

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Necessity

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Defense if person REASONABLY BELIEVED that commission of the crime was necessary to avoid and imminent and greater injury to society (Objective Test)

Death is never justified to protect property

Defense cannot be used if you're at fault in creating the situation

Duress (involves human threat) is not enough. Necessity requires pressure from natural or physical forces

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Entrapment

Back 60

Entrapment exists only if:

1. The criminal design originated with law enforcement officers; and

2. The defendant was not predisposed to commit the crime prior to contact by the government

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Malice Aforethought

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Malice Aforethought exists if:

1. There are no facts reducing the killing to voluntary manslaughter or excusing it (a defense); and

2. It was committed with one of the following states of mind:

--(a) Intent to kill

--(b) Intent to inflict great bodily injury

--(c) Reckless indifference to an unjustifiably high risk to human life ("abandoned and malignant heart"); or

--(d) Intent to commit a felony (felony murder)

Intentional use of a deadly weapon authorizes a permissive inference of intent to kill

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Limitations on Liability for Felony Murder

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1. The defendant must have committed the underlying felony; a defense that negates an element of the underlying felony will also be a defense to felony murder

2. The felony must be distinct from the killing itself (can't be aggravated battery that causes victim's death)

3. Death must have been a foreseeable result of the felony

4. The death must have been CAUSED (not necessarily have occurred) before the defendant's "immediate flight" from the felony ended; once the felon has reached a place of "temporary safety" subsequent deaths are not felony murder

5. In most jurisdictions, the defendant is NOT liable for death of a co-felon

6. Under "agency theory" defendant is not liable for deaths caused by bystanders or police

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Cause-in-Fact

Back 63

Result would not have occurred "but for" the defendant's conduct

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Proximate Cause

Back 64

Result was a natural and probable consequence of the conduct, even if he didn't foresee the precise manner in which it would occur

Negligent medical care and objections to medical treatment for religious reasons are "foreseeable" risks and not intervening causes

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Intent to Permanently Deprive for Larceny

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Intent must exist at the time of the taking (unless it is a "continuing trespass")

Sufficient intent:
1. Intent to create a substantial risk of loss

2. Intent to sell or pledge the goods to the owner

Insufficient Intent
1. Believe the property is hers

2. Intend to only borrow the property

3. Intend to keep the property as repayment for a debt

Probably Sufficient Intent
--If the goods are not for sale, taking with an intent to pay is larceny

--Taking with intent to collect a reward from the owner is larceny is there is no intent to return the goods absent a reward

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Houseburning

Back 66

1. A malicious

2. Burning

3. Of one's own dwelling

4. If the structure is situated either in a city or town, or so near to other houses as to create a danger to them