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Give the common elements basic to all crimes?
1. All crimes have several basic common elements. These basic common elements are: 1)a voluntary act (actus reus) or omission to act when a duty to act is established; 2) a culpable intent (mens rea);3) concurrence between the mens rea and actus reus; and 4)causation of harm. Some criminal offenses are "strict liability". That is , no culpable mental state at all must be shown--It is enough that the defendant performed the act in question, regardless of his mental state.
ACT, MENTAL STATE, CONCUR, HARM
2. Discuss Actus Reus? Element 1)Under common law.
Under common law actus reus requires an affirmative, voluntary act; intention to commit a crime is insufficient to convict if there is no evidence of an act putting that intent into effect. If possession, look for presence plus intent to possess, plus power to possess will equal conviction. Omission requires a statutory, relationship, contract, or voluntary assumption of care or assistance, DUTY
2b. Discuss the Actus Reus under Model Penal Code (MPC)?
Under the Model Penal Code (MPC)requires an affirmative (physical activity), voluntary act or omission; not reflex, unconsciousness, hypnosis, or self-induced. Possession is an act if: knowingly procured, or knowingly received or was aware of control for sufficient period of time. Liability for the commission of an offense may not be based on an omission unaccompanied by an action unless: Omission is expressly made sufficient by law defining offense; a duty to perform the omitted acts is otherwise imposed by law.
3a. Discuss the Mens Rea? Under common law.
Courts traditionally classify the mens rea, requirements of various crimes into three groups: 1) Crimes requiring merely "general intent" where D desired to commit the act, which served as the actus reus. 2) Crimes requiring "specific intent", D desired to do something further than bring about actus reus. 3) Crimes requiring merely "reckless or negligence". Strict Liability crimes form a fourth category, as to which there is no culpable mental state required at all.
3b. Discuss the Mens Rea? Under Model Penal Code.
Many Modern Codes and the Model Penal Code, have abandoned the general/specific distinction, and instead set forth the precise mental state required for each element of each crime.
Discuss the various Mental States?
Purposely; Knowingly; Recklessly; Negligently; Strict Liability; Vicarious Liability?
Purposely: A person acts "purposely" with respect to a particular element if it is his "conscious object" to engage in the particular conduct in question, or to cause the particular result in question.
Knowingly: A person does not desire a particular result, but is "aware" that the conduct or result is "practically certain" that his conduct will cause that result. A presumption of knowledge, and knowledge of attendant circumstances generally apply.
Recklessly: A person acts "recklessly" if he is subjectively aware or in the minority that his behavior was ovjectively extremely careless and "consciously disregards a substantial and unjustifiable risk...MPC S 2.02(2). Behavior is a "gross deviation" from the conduct of a law-abiding person.
Negligently: Most modern statutes, and the MPC, allow a finding of criminal negligence even if D was "not aware" of the risk imposed by his conduct. Gross negligence is usually required(the deviation from ordinary care must be greater than that which would be required for civil negligence.
Strict Liability: The following are often defined as Strict Liability offenses: Statutory Rape; Bigamy; Mislabeling of drugs; Polluting of water or air; Concealment of a dangerous weapon while boarding an aircraft.
Vicarious Liability: Statutes sometimes impose upon one-person liability for the act of another; this is commonly called "vicarious liability". In essence, the requirement of an act (actus reus) has been dispensed with, not the requirement of the wrongful intent.
Discuss Element 3) Concurrence as it relates to Mens Rea and Actus Reus?
There are two ways in which there must be "concurrence" involving the mens rea: 1) there must be concurrence between D's mental state and the act; and 2) there must be concurrence between D's mental state and the harmful result, if the crime is one defined in terms of bad results. Thus if the harm that actually occurs is of a completely different type from what D intended, D would generally not be guilty of the other crime. In other words, the intent for one crime may not usually be linked with a result associated with a different crime. A more accurate description might be to determine if the mental state actuates the voluntary act that causes the result.
Discuss Causation between the act and harmful result?
"Causation" in criminal law relates to the link between the Act and Element 4) the HARMFUL RESULT. The prosecution must show that the defendant's actus reus "caused" the harmful result, in two different senses: 1) That the act was the "cause in fact" of the harm; by being the BUT FOR; and the act was the "proximate cause" or "legal cause" of the harm. That this act was a substantial factor in creating the harm and brought about the result.
Discuss Proximate Cause?
Model Penal Code (MPC) 2.03 (2)(b) defines Proximate Cause if the result is not too remote or accidental in its occurence to have a (just) bearing on the actor's liability or on the gravity of his offense.
It will generally be a defense that the actual victim of D's act was not the intended victim. Instead, the courts apply the doctrine of "transferred intent" under which D's intent is transferred from the intended to the actual victim. If D's intended victim is harmed, but the harm occurs in an unexpected manner (though it is the same general type of harm intended) the unexpected manner of harm may or may not be enough to absolve D. In general D will not be liable where the harm occurs through a "completely bizarre, unforseeable chain of events."
List the criminal crimes? that SCAB RAT ROB BURGER, and his ACCOMPLICE the KID NAP KID, ATTEMPTED MURDER with a MALICE?
Solicitation, Conspiracy, Assault, Battery, Rape, Arson, Theft (Larceny, Embezzlement, False Pretenses, Extortion,) Robbery, Burglary,Accomplice, False Imprisonment, Kidnapping, Attempt, Murder(murder, manslaughter)with or without malice.
Can the Defendant be charged with Solicitation?
Under Criminal Law a Solicitation is the act of one person urging another to commit an illegal act. A solicitation is complete as soon as the urging takes place, and there is no such thing as an attempted solicitation. But if the illegal act urged is actually committed, the Solicitation merges into the criminal result.
Can the Defendant be charged with Conspiracy?
Under Criminal Law a Conspiracy is an agreement between two or more people to work toward an illegal goal. Modernly, an overt act in the furtherance of the conspiracy goal is required.
Under Wharton Rule a conspiracy requires the participation of more people than the minimum number necessary to commit the criminal act. Under the Pinkerton Rule:
Once a conspiracy forms, each member of the conspiracy is liable for all the criminal acts taken by the other conspirators if they are 1)forseeable and 2)in furtherance of the conspiracy goal. Even if the illegal goal of the conspiracy is attained, the Conspiracy Does Not Merge into the criminal result.
Can the Defendant be charged with Criminal Assault?
Under Criminal Law Assault is an act with intent to cause a Battery or an Apprehension of a Battery. The victim of the attempted Battery does not have to be aware of the danger. Where an assault is committed as part of a robbery or battery, the assault Merges into the more serious crime.
Can the Defendant be charged with Criminal Battery?
Under Criminal Law Battery is an act with intent to cause and does cause a harmful or offensive touching. Where the battery is committed as part of a robbery, the battery Does Not Merge into the robbery.
Can the Defendant be charged with Criminal Rape?
Under Criminal Law a Rape is intentional sexual intercourse, by the slightest penetration, with a female without consent. Under common law rape of a wife was impossible because consent was implied by marriage. Modernly, rape is defined by statute.
Can the Defendant be charged with Criminal Arson?
Any explosion, smoke, flame. Under common law Arson was the malicious burning of the dwelling of another. Modernly, Arson is extended by statute to the burning of other structures. Malice for arson means that the burning must be done with intent to cause a criminal result.
Can the Defendant be charged with Criminal Theft? (Larceny)
Under common law Larceny was the trespassory taking and carrying away of the personal property of another with the intent to permanently deprive. Where the possession was gained by misrepresentation rather than stealth, it was termed a Larceny by Trick. Modernly, Larceny is defined by statute under the label of THEFT.
Can the Defendant be charged with the criminal Theft of Embezzlement?
Uncer common law Embezzlement was the intentional trespassory Conversion of the property of another by one who had been entrusted with lawful possession. Modernly, embezzlement is defined by statute under the label of THEFT.
Can the Defendant be charged with criminal Theft? False Pretenses
Under common law False Pretenses was the intentional Misrepresentation of FACT to obtain titile to the property of another. Modernly, false prestenses are defined by statute under the label of THEFT.
Can the Defendant be charged with criminal Extortion?
Under common law a defendant can be charged with extortion where the defendent intentionally acts to threaten another person in order to acquire property of the victim. Modernly, Extortion is defined by statute under the label of THEFT.
Can the Defendant be charged with Robbery?
Under Criminal Law a Robbery was where the defendant intentionally acts to commit a Larceny with the added requirement that the personal property be taken from either the vicim's person or personal presence by the use of force or the threat of force. A larceny or assault merges into a completed robbery.
Can the Defendant be charged with Criminal Burglary?
Under common law a defendant could be charged with Burglary where the defendant acts to trespassory commit the 1)breaking and entering, 2)of a dwelling 3)of another 4)at night 5)with the intent to commit 6)felony within. The modern majority rule however eliminates the requirement of nighttime and extends the protection to any protected structure and also allows the intention to commit a larceny as sufficient. A charge of Burglary Does Not Merge into a completed Larceny or Felony.
CL BED N IT F
Modern BEDS NITFL
Can the Defendant be charged as an Accomplice?
A defendant can be charged as an accomplice to a crime if the defendant intentionally solicited, aided, agreed, or attempted to aid in the planning or the committing of the crime. An accomplice will be subject to the same punishment as the principle actor in the crime.
Can the Defendant be charged with False Imprisonment or Kidnapping?
A defendant can be charged with false imprisonment where the defendant intentionally acts to lawfully confine another person. A false imprisonment will merge into a completed kidnapping. A defendant can be charged with kidnapping where the defendant intentionally acts to unlawfully confine and move another person.
Can the Defendant be charged with Attempt?
Under criminal law an Attempt is committed when a Significant Step is taken with the intent of committing an Act, which is a crime at the time of the significant step. If the criminal act that was attempted is completed, then the attempt merges into the completed result.
Can the Defendant be charged with Murder?
Murder is the unlawful homicide (causing death) of another human being done with malice aforethought, where malice may be either 1)expressed by actual intent to kill; by intent to commit an inherently dangerous felony(BARRK) under the Felony Murder Rule; 3)or implied by intent to commit great bodily injury; 4)or by intent to commit an act done with a conscious disregard for unjustified risk to human life under the Depraved Heart Murder Rule.
Can the Defendant be charged with First Degree Murder?
Under common law did not recognize degrees of murder, however under the majority of modern statutes, Murder is in the 1st degree when deliberate (cool mind capable of reflection) and premediated (cool mind calculates and did reflect at least briefly) before the act of killing, carried out by means enumerated in the statute, or when committed during the commission of an inherently dangerous felony. Majority Rule is that there will be vicarious liability for all co-felons for all deaths that occur in the commission of the felony except when someone (everybody else such as victims, police, or bystanders)kills one or more of the felons committing the crime until felons reach a place of safety, because this may be a justifiable use of deadly force.
Can the defendant be charged with Voluntary Manslaughter?
Voluntary Manslaughter is the intentional unlawful homicide (causing death) of another human being without malice aforethought, but with provocation sufficient enough to raise 1)a reasonable person 2)to act in response to the provocation, 3)with immediate heat-of-passion, 4)the lapse of time was not long enough to cool off, 5)defendant had not cooled off, 6)the defendant's act was the actual cause of the homicide. Additionally, a defendant can be charged with voluntary manslaughter where the defendant honestly but unreasonably believes that the use of deadly force is necessary in Self Defense. Subjective.
Can the Defendant be charged with Criminal Second-Degree Murder?
Under the majority of modern statutes, all other murders not described in the 1st degree are second-degree. Examples of second-degree murders are the intent to commit great bodily injury and death results; or intentional commission of act done with conscious disregard for unjustified risk to human life (Depraved Heart Murder Rule.) Gun battles fall into this category.
Can the Defendant be charged with Involuntary Manslaughter?
Involuntary manslaughter is the unintentional homicide (causing death) of another human being, done without malice aforethought resulting from criminal negligence or during the commission of a lesser crime that is otherwise insufficient to sustain a charge of murder.
Name the possible Criminal Defenses?
Petite MICE Pressure PANDAS to PP Positives.+
Infancy,Mistake, Insanity, Consent, Entrapment, Duress, Prevention of Crime, Authority of Law, Necessity, Defense of Another, Self, Property, Possession of Illegal or Stolen Property, and Intoxication.
Can the Defendant raise the Criminal Defense of Infancy? Modern Rules
Modern rules in every state now make these common law distinctions almost irrelevant, as every state now has a juvenile court that is given jurisdiction between the juvenile and criminal courts. A typical provision states that juveniles under 14 years may not be subjected to criminal prosecution but only to delinquency proceedings in juvenile court. In about two-thirds of the states, the legislature has declared that all cases involving juveniles above a certain age alleged to have committed certain offenses are automatically transferred to criminal court.
Can the Defendant raise the Criminal Defense of Mistake?
A mistake is a defense if it serves to NEGATE a mental state requisiste to establish a material element of the charged crime, except that if the defendant would be guilty of another crime where the situation as the defendant believed it to be, then he may be convicted of the offense which he would have been guilty had the situation been as he believed it. As such, Mistake is never a defense to a strict liability crime. Mistake might be about the Facts or Law. Don't think of "mistake" as a separate doctrine. Instead look to effect of a particular mistake on D's mental state, and examine whether D thereby prevented from having mental state required for the crime.
Can the Defendant raise a Criminal Defense of Mistake? General/Specific
D's mistake is least likely in the matter of general intent crimes. Under Criminal Law a reasonable mistake of Fact is a defense to the General Intent Crimes. (BARS IM)Battery, Arson, Rape, Second Degree Murder, Involuntary Manslaughter. All other crimes are specific intent crimes and any mistake of fact is a defense. A reasonable mistake of fact is one that a reasonable person would have made in the same situation. Voluntary Intoxication never makes an otherwise to the Specific Intent Crimes, if the mistake NEGATES a finding of criminal intent.
Mistake of Fact is no defense to a charge of Attempt if criminal ntent is proven and the mistake merely prevented an otherwise criminal act. But there is NO ATTEMPT, even if criminal intent is shown, if the attempted crime is a legal impossibility at the time of the first substantial step.
Mistake of Law about the legality of an intended act does not alter the legality of the attempted or committed act. Does not matter what the defendant thinks about the legality or illegality of his act. The law is defined and his opinion doesn't count.
Can the Defendant raise the Criminal Defense of Insanity? Generally
Insanity can be raised as a defense if it serves to NEGATE criminal intent. However, under majority rule that insanity defense is now prescribed by statute requiring that it caused the defendant to fail to understand the nature and quality of his actions or did not know that the act was wrong, or that in addition where even if the defendant did know, that he was unable to conform his conduct to this awareness of right and wrong.
Can the Defendant raise the Criminal Defense of Insanity? M'Naughten Rule
Under the common law and the majority, M'Naughten Rule insanity is a defense if a disease of the mind at the time of the act prevented the defendant from knowing the nature and quality of his act, or that his acts were wrong.
Can the Defendant raise a Criminal Defense of Insanity? Irrestible Impulse
Under Irrestible Impulse Rule insanity is a defense if the defendant knows his acts are wrong but he cannot stop himself.
Can the Defendant raise the Criminal Defense of Insanity? MPC Substantial Capacity Test
Under the Model Penal Code MPC Substantial Capacity Test sanity is where the defendant lacks the substantial capacity to 1)appreciate the criminality or wrongfulness of the conduct or 2)to conform the conduct to what the law requires; the defendant's action may be excuse.
Can the Defendant raise the Criminal Defense of Insanity? Durham Test
The Durham test was once used but no longer is used in the US. Difficultly in defining the act be a "product of" a mental disease.
Can the Defendant raise the Criminal Defense of Consent?
Consent may be a complete defense to those offenses that include lack of consent as an element of the offense: Rape, Larceny, Battery,; but to be effective consent must be informed, voluntary, and given by one with legal capacity. Consent may also operate as a defense where it operates to induce the offense where it otherwise would not have occurred. Keep in mind more often than not consent does not bar criminal liability.
Can the Defendant raise the Criminal Defense of Entrapment?
The defense of entrapment can be raised where the police or other law enforcement persons induced the defendant to commit the crime, and where the defendant was not otherwise disposed to committing the crime. Entrapment is straightforward: it involves two elements 1)police induced the crime and 2)the defendant was not disposed to commit it.
Can the Defendant raise the Criminal Defense of Duress?
A defendant may raise the defense of duress where the defendant reasonably believes that they are under threat of death or serious bodily injury for failing to cooperate with a criminal action. To benefit from the defense, the Defendant must establish 1) threat by another person, 2) that produces a reasonable fear in the defendant, 3)that the defendant will suffer immediate or imminent 4)death or serious bodily injury.
Can the Defendant raise the Criminal Defense of Prevention of a Crime?
A private citizen may raise the defense of crime prevention where a felony is or has been committed, or a lesser crime that is a breach of the peace is or has been committed in the defendant's presence, and the defendant uses reasonable force to prevent the crime.
Arrest: A private citizen may arrest for a felony only where the felony has in fact been committed; some states also require that the person arrested be the actual perpetrator. A police officer gets the benefit of a reasonable mistake.
Deadly force: Deadly force may be used by a police officer only when reasonable belief that the suspect poses a threat of serious bodily harm or death to himself or others. A private citizen is only privileged to use deadly force where an actual dangerous felony has been committed and where the perpetrator is the one who committed the crime.
Can the Defendant raise the Criminal Defense of Authority of the Law?
A private citizen may raise the defense of Authority of Law in the assistance of a police officer or making a legal citizen arrest where the felony has been in fact committed.
Can the defendant raise the Criminal Defense of Necessity?
A defendant may raise the defense of necessity where the defendant acted to commit a crime in order to prevent what was reasonably believed to be a greater harm than was caused by the non-human event.
Describe the essential essence of the defense of Necessity?
The essential essence of the defense is that the defendant has chosen the lesser of two evils, and the harm prevented must generally be greater and not merely equal. This test is objective, not subjective, but this is tempered by the fact that the view taken in the context of the defendant's circumstances, not with the benefit of hindsight. Defendant must have believed that he was deciding the lesser evil between the two evils.
What are the general requirements of the defense of Necessity?
Generally, the defense requires: 1) the defendant sought to prevent a greater harm. 2) there was no reasonable alternative either known or that should have been known to the defendant at the time.3)the harm sought to be prevented was imminent4)the situation requiring the choice of evils was not brought about by the defendant such as were the defendant carelessly or negligently put himself into a position where emergency would arise 5) the nature of the harm sought to be prevented must generally be some kind of injury or property damage.
Can the Defendant raise the Criminal Defense of Defense of Another?
A defendant may use reasonable force to defend another person, when he reasonably believes such force is necessary to prevent imminent injury. A minority view allows the defense only where the victim themselves is also privileged.
One is justified in using reasonable force in defense of another, even a stranger, where the defendant reasonably believes that the other is in immediate danger of unlawful bodily harm from his adversary and that the use of force is necessary to avoid this danger. Deadly force is reasonable only where the attack of the adversary upon the other person reasonably appears to the defender to be a deadly attack.
Can the Defendant raise the Criminal Defense of Self?
A defendant may use reasonable force when the defendant has a reasonable belief that such force is necessary to prevent an imminent attack, and where the defendant was not the aggressor and effectively attempted to withdraw and the other party continued the attack, or where the other party escalated the violence.
Generally, 1)D was resisting what was, or at least what was reasonably believed to be, present or imminent use of unlawful force, 2)Degree of force used by D must not be excessive or more than needed to defend against the threatened harm, 3)Must not be deadly force unless danger being resisted was also what D reasonably believed to be deadly force,4)D must not have been the aggressor unless D was a non-deadly aggressor confronted with use of deadly force or withdrew after initial aggression and other party continued to attack, 5)D need not retreat, even if it could be accomplished in complete safety when D uses non-deadly force, also a current majority would not require retreat before using deadly force, even though it could be accomplished in complete safety, upon an assailant whom he reasonably believes will kill him or do him serious bodily harm.
Can the Defendant raise a Criminal Defense of Property?
A defendant may use reasonable and non-deadly force to defend his property when he reasonably believes it to be in peril of imminent trespass or theft. Reasonable force may be used to recover property but only if such attempted recovery is made in "hot pursuit".
It is not reasonable to use any force at all if the danger to property can be avoided by a request to the other to desist from interfering with the property, and D is required to make this request before using force.
Can the Defendant raise the Criminal Defense of Defense of Property? Dwelling
Defense of Dwelling; use of deadly force will generally be privileged where D acts to protect against unlawful invasion of his occupied dwelling house under circumstances causing D to reasonably believe that the invader intends to commit a felony or do serious bodily harm to the occupants.
Can the Defendant raise the Criminal Defense of Property? Mechanical Devices
Mechanical Devices; Majority would apparently allow where D himself would have been privileged to use them, such as where D sets them and they kill or injure a trespasser that intended to do great bodily injury or commit a burglary, MPC rejects JUSTIFICATION
Can the Defendant raise a Criminal Defense of Illegal Property?
Thoughts, words, possession and status: mere thoughts are never punishable as crimes. However, mere possession of an object may sometimes constitute the necessary criminal act. Example: Possession of narcotics frequently constitutes a crime in itself. When mere possession is made a crime, the act of "possession" is almost always construed so as to include only conscious posssession. Example: If the prosecution fails to prove that D knew he had narcotics on his person, there can be no conviction.
Can the Defendant raise a Criminal Defense of Stolen Property?
Elements of Stolen Property: 1)receive, 2) stolen property, 3) with knowledge that it has been stolen, and with intent to deprive the owner.
Property recovered by Police is no longer "stolen" so legal impossibility serves as a defense, and may even serve as a defense to a charge of attempted receiving of stolen property.
If the D is unaware actually believes the property is not stolen at the time it is received, he should be found not guilty unless examination of circumstancial evidence proves otherwise. Courts may infer that the D was aware the property was stolen. Circumstantial Evidence may be used to infer that 1) inadequate price paid for the goods, 2) seller irresponsible, 3)the transaction was secret,4)that the D had received other stolen property from the same or even different thief at nearly the same time.
Can the Defendant raise a Criminal Defense of Intoxicaiton? Voluntary
Voluntary Intoxication does not excuse criminal conduct, in general. Although voluntary intoxication is not an excuse, it may prevent D from having the required mental state. In a crime of general intent, intoxication would never be a defense. In a crime of specific intent D would be allowed to show that intoxication prevented him from having the requisite specific intent.
Modern Trend: But the modern courts usually don't distinguish between general and specific intent. Instead, modern courts generally allow D to show that his intoxication, even voluntary, prevented him from having the requisite mental state.
Pre-intoxication: the fact that D's intoxication prevented him from having the requisite intent at the time of the actus reus will not necessarily get him off the hook if he had intent prior to the intoxication.
Can the Defendant raise a Criminal Defense of Intoxication? Involuntary
In the rare case where D can show that his intoxication was involuntary, D is much more likely to have a valid defense.
Mistake as to the nature of the substance but mistakenly believes that it is not intoxicating, he may have two related defenses: 1)a sort of "temporary insanity" defense, due to his temporary lack of mental capacity; and 2)a defense that the intoxication NEGATED an element of the offense, even if the element was one for which recklessness will suffice.