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153 Cards in this Set
- Front
- Back
- 3rd side (hint)
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When does a state have jurisdiction?
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1. if 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; or 5. there was an attempt or conspiracy inside the state to commit an offense outside the state. |
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Requirements for non-vagueness
~i.e. criminal statute can't be vague |
1. there must be fair warning (i.e. a person of fair intelligence must be able to discern what is prohibited); and
2. no arbitrary and discriminatory enforcement No ex post facto laws or bills of attainder |
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Merger of misdemeanor and felony
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1. CL = when conduct constitutes both misdemeanor and felony, the misdemeanor mergers into felony
2. ML = no merger - can't be convicted of both Solicitation w/ completed crime, or Attempt w/ completed crime Exception - the conspiracy does merge with the completed offense (i.e. a person can be convicted of robbery and conspiracy to commit robbery) 3. Multiple convictions for same transaction - no double jeopardy -BUT |
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Define Actus reus
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R: Ordinarily, if u don't have an act u don't have a crime.
Definition- an act is a voluntary bodily movement. Ex's of movements not considered ''acts''. 1. not the product of actors volition 2. sleepwalking 3. a reflex or convulsion |
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Omission as an act
3 requirements |
Failure to act can be the basis of criminal liability.
1. you need a legal duty to act (5 different ways - by statute, contract agreement to take care of, status relationship [parent/child, spouse to spouse], voluntary assumption of care, D creates peril) 2. you need knowledge of facts giving rise to the duty AND 3. you need the ability to help |
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Possession as an ''Act''
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Requirements - when a statute criminalizes the possession of contraband (drugs, stolen property, child porn), ''possession'' means
1. control for a period of the time long enough to have an 2. opportunity to terminate the possession. Constructive Possession - The contraband need not be in Ds actual possession so long as it is close enough for him to exercise DOMINION and CONTROL over it. |
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List CL Mens rea (i.e. mental state)
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1. Specific intent - only has 2 defenses [Unreasonable Mistake of Fact and Voluntary Intoxication]
2. Malice 3. General intent 4. Strict liability |
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Mens rea: Specific intent = CLASP BARFFE
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Definition - When the crime requires not just the desire to do the act, but also the desire to achieve a specific result.
List 11 specific intent crimes Crimes against person 1. Assault 2. 1st Premeditated Murder Crimes against property Inchoate Crimes 3. Larceny 9. Solicitation 4. Embezzelment 10. Conspiracy 5. False Pretenses 11. Attemp 6. Robbery 7. Forgery 8. Burglary |
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Mens rea: Malice
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When a D acts INTENTIONAL or with RECKLESS DISREGARD of an obvious or known risk.
CL Malice crimes = murder and arson |
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Mens rea: General intent = BIRK
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D need only be GENERALLY AWARE of the factors constituting the crime; he need not intend a specific result.
Note - jury can usu. infer general intent simply from the doing of the act. 4 Examples of GI crimes: 1. Battery; 2. Foreseeable Rape; 3. Kidnapping; 4. False Imprisonment |
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Mens rea: Strict Liability
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Definition- When the crime requires simply doing the act; no mental state is needed
2 types of strict liability crimes: 1. Public welfare offenses - Regulatory or morality offenses that typically carry small penalties. E.g. selling alcohol to minors, selling contaminated food, corrupting the morals of a minor. 2. Statutory rape - having sex w/ someone under age |
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Ohio Mental States
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Ohio has 4 mental states: purposely, knowingly, recklessly, and negligently.
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Model Penal Code - Mental States
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MPC eliminates the CL distinctions between general and specific intent and adopts the following categories of intent.
1. Purposely - When it's D's conscious object to accomplish a particular result [what D wants to do] 2. Knowingly - When D is AWARE of what he is doing. 3. Recklessly - When D is knows of a substantial and unjustifiliable risk, AND consciously disregards that risk; and 4. Negligently - When D should have known about a substantial and unjustifiables risk 5. Strict Liability - no mental state is required |
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MPC Mistake of Fact
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Under MPC, a mistake of fact will be a defense if the mistake negates the required mental state
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Application of MPC Mistake of Fact
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1. For crimes of purpose, knowledge, or recklessness, a mistake of fact [even an unreasonable one] will often be a defense.
2. For crimes of negligence, only a reasonable mistake will be a defense. 3. For strict liability crimes, a mistake of fact will not be a defense, no matter how reasonable it it |
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MPC Mistake of Law
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Is not a defense
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Causation
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1. Actual - But for
- A D is an ''actual cause'' if the bad result would not have happened but for D's conduct. ~ An Accelerating cause is an actual cause. A stabs V in stomach causing wound that will kill V in minutes. 1 minute later D shoots V in the head killing V instantly. D is the accelerating cause of V's death. 2. Proximate - legal Key Concepts = Foreseeability and Fairness |
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Applications of Causation
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Applications
1. Intervening causes - D will not be considered a proximate cause if an unforeseeable intervening event causes the bad result. 2. Eggshell Victims - D will be considered a proximate cause even if victim's pre-existing weakness contributed to the bad result. Hypo 1. Where V is killed by lighting shortly after being robbed by D. D isn't a proximate cause of V's death b/c the lighting strike isn't a intervening foreseeable event. Hypo 2 - D shoots V but wound isn't fatal. V is taken to hospital to remove bullet. Surgeon accidently nicks a major artery, and V bleeds to death. D is proximate cause of V's death b/c ordinary med mal is foreseeable. |
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Concurrence of Mental Fault with Physical Act
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R - D must have the mental state [intent necessary for the crime] at the same time as he engages in the criminal act.
E.g. If D is driving to V's house to kill him, he will lack the necessary concurrence for murder if he accidently runs V over before reaching the house. Arises most frequently in 1. Larceny, and 2. Burglary |
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Battery
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1. an UNLAWFUL
2. application of FORCE to another 3. resulting in either a. BODILY or b. OFFENSIVE TOUCHING Mental state = General Intent |
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Aggravated Battery
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Under the Modern Statutory approach, many states provide that assault and/or battery will be more serious if its a -
Battery w/ deadly weapon Battery resulting in serious bodily harm; or Battery of a child, woman, or police officer |
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OH Law on Battery
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all batterys are classified as assault.
3 major categories 1. Felonious assault = assault w/ a deadly weapon 2. Aggravated assault = is caused by sudden passion or rage in response to a serious provacation. 3. simple assault = a misdemeanor |
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Assault - 2 Versions
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Version 1 = An Attempted Battery
Version 2 = 1. the INTENTIONAL creation 2. other than by MERE WORDS 3. of a REASONABLE FEAR in the mind of the victim 4. of an IMMINENT BODILY HARM [a fake punch] Mental State = Specific Intent |
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Aggravated Assault
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Assault will be more serious if
1. a weapon is used; 2. the victim is a child; or 3. the intent is to commit a robbery, rape, or maim |
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Mayhem
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At CL, the felony of mayhem required dismemberment or disablement of a body part.
Typically treated more and more as aggravated battery |
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Homicide Timeline w/n a Year or Not
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The Year and a Day Rule
CL = Death must occur w/in a year and a day of the homicidal act. MPC = Death may occur at any time |
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CL Homicidal Crimes
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1. Murder
2. Voluntary Manslaughter, and 3. Involuntary Manslaughter |
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CL Murder
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Definition -
1. the unlawful killing 2. of a person 3. with malice aforethought At CL Murder requires the Mental State MALICE AFORETHOUGHT Deadly weapon rule |
Malice Aforethought exists if there are no facts reducing the killing to voluntary manslaughter or excusing it [i.e. giving rise to a defense] or it was committed with one of the following states of mind
1. intent to kill - Deadly Weapon Rule 2. intent to inflict great bodily harm 3. extreme recklessness [to human life or have an abandoned and malignant heart] --- E.g. smashing an ashtray over someone's head 4. felony murder |
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When does Malice Aforethought exist?
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Malice Aforethought exists if there are no facts reducing the killing to voluntary manslaughter or excusing it [i.e. giving rise to a defense] or it was committed with one of the following states of mind
1. intent to kill - Deadly Weapon Rule 2. intent to inflict great bodily harm 3. extreme recklessness [to human life or have an abandoned and malignant heart] --- E.g. smashing an ashtray over someone's head 4. felony murder |
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Murder: Deadly weapon rule
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the intentional use of a deadly weapon creates an inference of an intent to kill
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Murder: Transfered Intent
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Rule- If D intends to harm one victim, but accidently harms a different victim instead, D's intent will transfers from the intended victim to the actual victim.
Exception - transformed intent doesn't apply to attempts, only to crimes with completed harms |
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First Degree Murder - a.k.a Aggravated Murder in Ohio
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Any killing w/
a. PREMEDITATION [D thought about it ahead of time - no matter how brief] [requires specific intent which can be negated by the defense of voluntary intoxication], and b. DELIBERATION [D was cool, calm, and collected] c. FELONY MURDER - [OH] if a murder is committed during perpetration of an enumerated felony, it is 1st degree murder. But if there's no intent to use force or violence in perpetrating the crime D will be guilty of involuntary manslaughter. Felonies most commonly listed include rape, arson, burglary, mayhem, and kidnapping. In these jxs, other felony murders are 2nd degree murders |
voluntary intoxication - if the D was so intoxicated that he was unable to premeditate, he can only be convicted of 2nd degree murder or common law murder, which only requires reckless indifference to human life [in which voluntary intoxication is not a defense]
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Felony murder - OH Felonies = Exterminators Kill Bugs Rapidly And Reliably
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Definition - Any killing during the commission of or attempt to commit a felony.
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Limitations on Felony murder
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1. D must be guilty of underlying felony
2. Felony must be inherently dangerous -- CL Felonies include - burglary, arson, rape, and sodomy -- OH: Escape, Kidnapping, Burglury, Rape, Arson, and Robbery 3. The felony must be separate [independent purpose] from the killing itself [i.e. rape, robbery to get $] 4. The killing must be during the felony or immediate flight 5. The death must be foreseeable 6. The victim must not be a co-felon --- OH does not follow - cares about dead co-felons |
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Felony murder: vicarious liability
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if one of the co-felons causes the death, all of the other co-felons will be guilty of felony murder.
- this applies even if the actual killing was committed by a third person [e.g. bystander, a police officer], SO LONG AS one of the felons is a ''proximate cause'' of the death. |
HYPO - Dumb and Dumber rob a bank. Dumber sits outside in the getaway car, while Dumb gets into the bank, points a gun at the teller, and says, ''This is a stick up.''
1. Dumb's gun goes off accidentally and kills teller. Both are liable 2. the teller has a heart attack from the fright of seeing Dumb's gun and later dies in the hospital. Both are liable- death foreseeable. 3. Dumb and Dumber flee the bank and teller gives Dumb a bag of money. As they leave their car strikes an arriving police officer. Driver of police car is killed. Both are guilty - happened during immediate flight. 4. A security guard fires his weapon at Dumb, but the bullet strikes and kills the teller instead. Both are guilty. 5. The security guard fires his weapon at Dumb and Dumb is killed. Neither is guilty victim is co-felon. |
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Second Degree Murder
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Defined as CL murder
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Voluntary Manslaughter
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Definition-
1. An INTENTIONAL KILLING 2. committed in the HEAT OF PASSION 3. after ADEQUATE PROVOCATION a. Provocation that would arouse SUDDEN and INTENSE PASSION in the mind of an ordinary person; b. the D was ACTUALLY provoked; c. the D did not have time to COOL OFF; and d. the D did not ACTUALLY cool off between the provocation and the killing. |
Examples of Adequate Provocation
1. A serious assault and battery 2. finding your spouse in bed w/ another person ~ actually seeing them having sex 3. but not words alone no matter how provacative 4. threat of deadly force |
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Involuntary manslaughter
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Definition -
1. A killing committed w/ CRIMINAL NEGLIGENCE, or 2. A killing committed DURING A MISDEMEANOR or a FELONY that doesn't qualify as FM. [called ''misdemeanor manslaughter''] |
limitations on misdemeanor manslaughter
- generally the misdemeanor must be malum in se, or if not the death must have been a foreseeable result of the commission of the misdemeanor. |
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MPC Homicide Crimes
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Murder
Manslaughter Criminally Negligent Homicide |
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MPC: Murder [3 Forms]
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1. Intent to kill (''premeditation and deliberation is irrelevant - no 1st or 2nd degree murder)
2. Extreme recklessness under circumstances manifesting extreme indifference to human life - similar to CL 3. Felony murder - Is a sub type of Recklessness a. Robbery b. Burglary c. Kidnapping d. Foreseeable Rape e. Arson f. Escape |
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MPC: Manslaughter
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1. A killing committed recklessly OR purposely or knowingly under the influence of extreme emotionally disturbance. [similar to ''Heat of Passion'' but don't need provocation]
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MPC: Criminally Negligent Homicide
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Mental State = negligence
Definition - the D should have known about a substantial and unjustifiable risk of death |
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False Imprisonment or Unlawful Restraint in Ohio
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Elements
1. the unlawful 2. confinement of a person 3. without consent MPC requires that confinement must interfere substantially with the victim's liberty. [It's not confinement to simply prevent a person from going where she desires to go, as long as alternative routes are available to her]. Note - consent is invalidated by coercions, threats, deception or incapacity due to mental illness, retardation or youth. Mental State = General intent |
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Kidnapping/ Aggravated Kidnapping
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Elements
1. False imprisonment 2. that involves either MOVING the victim or CONCEALING the victim in a secret place. Mental state = general intent Aggravated Kidnapping a more serious statutory offense, which usually requires only one of the following offenses 1. the purpose is to collect ransom 2. the purpose is to commit robbery or rape, or 3. the victim is a child. [the consent of a child is not of importance b/c child is incapable of giving valid defense]. |
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Forceable Rape
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Elements
1. Sex 2. without the victim's consent 3. accomplished a. by force, or b. by threat of force, or c. when victim is unconscious, or d. the victim is fraudulently caused to believe that the act is not intercourse. Note other types of fraud, e.g. perpetrator persuading victim that he is her husband or that he will marry her IS effective. Mental State = General intent |
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Statutory Rape
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Elements
1. Sex 2. with someone under age of consent as determined by the state [note-consent is not a defense] OH law - under the age of 13 Mental State = strict liability - doesn't matter about D's purpose MPC/ Minority rule = Allows a reasonable mistake of age to be a defense b/c mental state is not SL |
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CL Theft Crimes
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Larceny
Embezzlement False Pretenses Larceny by Trick Robbery |
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Larceny
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Definition - The trespassory taking and carrying away of the personal property of another, with the intent to steal.
1. Trespassory - wrongful w/o permission 2. Taking and Carrying Away - must be moved 3. Personal Property of Another - KEY is POSSESSION not title. a. If D validly possesses property, he cannot be guilty of larceny for taking it [even if D doesn't own it]. b. Conversely, D can be guilty of larceny for taking his own property, if someone else had valid possession of it. 4. With the Intent to Steal - specific intent to permanently deprive [so if D intends to give the property back, the taking is not larceny. If D erroneously thinks the property is his, the taking is not larceny.] Wrinkles - Erroneous Takings Rule Continuing trespass Erroneous takings rule - A taking under a erroneous claim of right is never larceny Continuing trespass- If a D wrongfully takes property, but w/o the intent to steal, he will not be guilty of larceny. But if the D later forms the intent to steal, the initial trespassory taking is considered to have ''continued,'' and he will be guilty of larceny. |
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Embezzlement
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1. The fraudulent
2. conversion 3. of personal property 4. of another 5. by a person in lawful possession of that property Mental state - specific intent to defraud. Key difference from Larceny - D must have lawful possession of the property before a taking can be considered embezzlement. Possession vs. Custody - Possession involves more than mere custody. It requires the authority to exercise some discretion over the property. D must have intent to defraud. If D intends to restore the exact property taken, it is not embezzlement. However, if D intends to restore similar or substantially identical property, it is embezzlement, even if it was money that was initially taken and other money- of identical value- that he intended to return. |
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False Pretenses
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Elements
1. Obtaining title 2. to personal property of another; 3. by an intentional false statement of past or existing fact; 4. with intent to defraud the other. Misrepresentation Requirement - the victim must actually be deceived by, or act in reliance on, the misrepresentation, and this must be a major factor of the vic passing title to the D. Key difference from Larceny - In larceny D gets possession; in false pretenses D gets title. Key difference from Trick by Larceny - if D obtains only possession from intentional false statement, it's Taking by Larceny. In false pretenses D gets title ''False Statement'' - must be of a past or present event [not a future promise] |
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Larceny by Trick
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If D obtains only possession [not title] as a result of the intentional false statement, the crime is larceny by trick not false pretenses
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Robbery
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Elements
1. A taking 2. of another's personal property from another 3. by force or threat of force Exam tip- to be guilty of robbery, V must give up his property b/c she feels threatened. If he gives up property for another reason [e.g. he feels sorry for the D, or he wants D to go away,] D will not be guilty of robbery. He may however be guilty of attempted robbery --- any amt of force is sufficient -snatching a necklace, but not pick pocketing 4. with intent to permanently deprive Distinguished from Larceny - Robbery requires the D to use force or threats to obtain or retain vic's property. |
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Extortion - i.e. blackmail
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CL - the corrupt collection of an unlawful fee by an officer under color of law.
Modern - extortion [blackmail] often consists of obtaining property by means of threats to do harm or to expose information. Distinguish from robbery - extortion differs from robbery b/c in extortion the threats may be of future harm and taking doesn't have to be in the presence of the victim |
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Receipt/ Possession of Stolen Property
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1. Receiving possession and control
2. of stolen person property 3. known to be obtained in a manner constituting a criminal offense; 4. by another person 5. with intent to permanently deprive the owner of his interest in it. Mental State = ... with Knowledge that it was stolen. Note - ''knowledge'' is the mental state for most possession crimes |
Manual possession is not necessary. D possesses the property when its put in a location designated by her or she arranges a sale for the thief to a third person. i.e. fencing - dealing in stolen goods.
Property must be stolen at time D receives it. |
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Theft
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Under many modern statutes and the MPC, some or all of the above property offenses are combined and defined as the crime of theft.
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Forgery
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1. making or altering a writing
2. so that it is false Mental state = ... with intent to defraud |
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Uttering
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1. offering as genuine
2. a forged instrument Mental State = ... with intent to defraud |
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Malicious Mischief
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Destroying or damaging someone else's property.
Mental State = with malice |
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CL Burglary
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Breaking and entering the dwelling of another at night with the intent to commit a felony inside.
1. ''Breaking'' - creating or enlarging an opening by at least minimal force. a. includes breaking a window, opening a window, opening a door. b. doesn't include climing trough an already open window, entering w/ permission. 2. ''Entry'' - some part of D's body must enter the building. 3. ''Dwelling'' - a structure where someone regularly sleeps. 4. ''Of another'' - u can't burglarize your own home 5. ''At night 6. ''Intent to commit a felony inside'' at the time of entry- specific intent crimes. [intent to steal, rob, rape, assault, kill etc.] |
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MPC Burglary
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many states have eliminated the technical requirements of CL burglary especially ''breaking'', ''at night'' and ''dwelling''
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OHIO Burglary
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a trespassing in an occupied structure by force, stealth, or deception with the intent to commit a criminal offense inside.
if deadly force is attempted or used the crime is Aggravated burglary |
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CL Arson
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1. the malicious [i.e. intentional or with reckless disregard on a obvious risk]
2. burning [requires the material wasting of the structure] -scorching is not enough - some part of the building must actually be burned up. 3. of the dwelling of another |
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MPC Arson
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most states have expanded the definition of arson to include damage caused by explosion or expanded the types of property might be destroyed to include commercial structures, cars, trains, etc.
Now a D could commit arson on his own property, unlike CL where D can't commit arson on his own property. |
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Accomplice Liability: DefinItions
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Definitions
1. Principal - person who commits the crime 2. Accomplice - person who helps principal commit the crime a. Act = aid or encourage the principal b. Mental State = with the intent that the crime be committed |
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Accomplice Liability: Scope
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An accomplice is guilty of
a. all the crimes the he AIDED or ENCOURAGED [just as if he did it], and b. all other FORESEEABLE crimes committed along the with aided crime. What if Principal isn't prosecuted? If principal is not prosecuted or has an individual defense [e.g. insanity], the ACCOMPLICE IS STILL GUILTY |
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When are persons not accomplices?
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1. Mere presence at the scene of the crime - doesn't make someone an accomplice [ must actually help]
2. Mere Knowledge - must actually intend to aid or encourage 3. Person is a Member of a Protected Class - the VICTIM of a crime CANNOT be an accomplice |
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Accomplice Liability: Withdrawal
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A person who effectively withdraws from a crime BEFORE it is committed cannot be held guilty as an accomplice.
1. Encourager - An accomplice who only ''encouraged'' the principal may withdraw simply by DISCOURAGING the crime before it is committed. 2. Aider - An accomplice who actually helped the principal must either NEUTRALIZE the assistance or PREVENT the crime from happening [including notifying the authorities] |
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Accessory
OH = Obstruction of justice |
To commit the separate CL offence of being an ''accessory'', a D must
1. ASSIST a principal who has committed a feloby 2. with KNOWLEDGE that the crime has been committed, and 3. with the INTENT to help the principal avoid arrest or conviction. |
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Modern Statutory Approach to ''Accessory''
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typically called ''obstruction to justice,'' ''harboring a fugitive,'' or ''hindering prosecution.''
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Inchoate Offenses
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Solicitation
Conspiracy Attempt In all theses crimes completion is not necessary |
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Solicitation
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ASKING someone to commit a crime, with the INTENT that the crime be committed.
Mental State = Specific intent Is completion necessary? No. The crime is in the asking. It doesn't matter whether the person agrees or whether the crime is actually committed. |
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Conspiracy
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CL - An Agreement between 2 or more people to commit a crime, plus an overt act in furtherance of a crime.
1. ''overt act'' - any act of preparation [minimal requirement] 2. Mental State = Specific intent to accomplish the conspiracy's objective. 3. Completion is unnecessary - the crime is in the AGREEMENT [plus the overt act] Hypo - Dud and Don agree to kill Vic, their biz partner. However, Don is an undercover FBI agent. Dud is arrested while he is preparing to kill Vic. Is Dud guilty of conspiracy to commit murder? CL - No; MPC - Yes. to allow Don to arrest him for conspiracy b/f anyone gets hurt. |
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Can you have a one person conspiracy?
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CL = NO - There must be at least 2 guilty minds, both of whom actually agree to accomplish the conspiracy's objective.
MPC = YES - Under the unilateral approach, a D may be guilty of conspiracy even if the other parties are acquitted or were just pretending to agree. 1. Husband and wife, at CL could not conspire together - distinction has been abandoned in most states. 2. No conspiracy b/w a corporation and a single agent acting on its behalf. There's a split of authority as to whether agents of a corp. can be deemed co-conspirators w/ the corp. 3. Wharton Rule - where 2 or more people are necessary to commit an offense [e.g. adultery, dueling], there's no conspiracy unless more parties participate in the agreement than are necessary for the crime. 4. Persons w/n a protected class can't be guilty of the crime or conspiracy to commit that crime |
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Can a D be found vicariously liable for other crimes committed by his co-conspirators?
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Yes. So long as those crimes
1. were in furtherance of the conspiracy's objective, and 2. were foreseeable. Hypo - Dub and Alex agree to rob a bank. As they're making their preparations, Alex says ''I'll go steal us a gun so we can use it to rob the bank.'' That night, Alex breaks into Vic's house and steals Vic's gun. Dub and Alex later use the gun to rob the bank. What crimes may Dub may be convicted of? Conspiracy, burglary, and larceny |
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Acquittal rule for conspiracy
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Under traditional view, if D is charged and tried and all others have been acquitted, then D cannot be convicted. [The acquittals show that there was no one with whom the D could conspire.]
In some traditional view jurisdictions, a conviction for conspiracy against one D is allowed to stand when the alleged co-conspirator is acquitted in a separate trial. |
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Conspiracy Defenses
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1. Impossibility - NOT a defense
2. Withdraw - Generally not a defense b/c conspiracy is complete as soon as the agreement is made and an act in furtherance is performed. Withdraw MAY be a defense to crimes committed in furtherance of the conspiracy. |
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When is withdraw effective regarding Conspiracy?
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1. a conspirator must perform an AFFIRMATIVE ACT that NOTIFIES all members of the conspiracy of her withdrawal.
2. NOTICE must be given in time for the members to abandon their plans. 3. if she has also provided assistance as an accomplice, she must try to NEUTRALIZE the assistance. Exam tip - usu. D is guilty of conspiracy even if facts show she had second thoughts, told her co-conspirators that she was backing out, warned police, hid the weapons, etc.[such actions may relieve D of criminal liability of co-conspirators' acts after this withdrawal, but they have no effect on the crime of conspiracy.] |
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Conspiracy Punishment
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No merger - Conspiracy and the completed crime are distinct offenses.
Thus, D can be convicted of and punished for both. |
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Attempt
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Elements
1. An Act 2. done with intent [specific] to commit a crime, 3. that falls short of committing the crime. A. An Act a. CL = conduct that gets DANGEROUSLY CLOSE to the commission of the crime [i.e. dangerous proximity test] b. MPC = conduct that is a SUBSTANTIAL STEP towards the crime and STRONGLY COOPERATIVE of a criminal purpose. B. Mental State = Specific intent a. You can't attempt unintentional crimes. Thus there's no attempt versions of i. reckless crimes ii. negligence crimes, or ii. felony murder b. it is possible to attempt malice, general intent, or strict liability crimes, BUT only if the D specifically intends to commit the crime. |
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Impossibility - 2 types
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1. Factual Impossibility - the claim that it was impossible to complete the crime b/c of some physical or factual condition unbeknownst to the D.
Rule - Factual impossibility is NOT A DEFENSE to ATTEMPT Hypo 1 - Dud, intending to pick V's pocket,surreptitiously puts his hand into V's pocket, but pocket is empty. D is not guilty of larceny, but is guilty of attempted larceny. Hypo 2 - Cocaine v. baby powder; D is not guilty of distributing cocaine, but is guilty of attempting to distribute cocaine. 2. Legal Impossibility - the claim that it was impossible to complete the crime b/c what the D was trying to do was not illegal. Legal impossibility IS a DEFENSE to ATTEMPT. Hypo - Dud buys and sells a bag containing baby powder and sugar. Dud believes it's a crime to distribute baby powder-sugar mixture. D is not guilty of distributing illegal drugs, AND he is not guilty of attempting to distribute an illegal substance. |
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Ohio law on Impossiblity
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Neither factual nor legal impossibility is a defense.
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Withdrawal/Renunciation/ Abandonment
What happens when a solicitor, co-conspirator, or attempter changes his mind? |
CL - Withdrawal IS NOT a defense
Wrinkle - Once D withdrawals from a conspiracy he will no longer be vicariously liable for crime committed by his co-conspirators after he left the conspiracy. However D is still guilty of conspiracy and any foreseeable crime committed prior to his withdraw. MPC - Withdrawal CAN BE a defense, BUT ONLY if 1. D VOLUNTARILY and COMPLETELY renounces the solicitation, conspiracy, or attempt AND 2. the renunciation is based on ''change of heart,'' not on fear of failing or being caught. OH - abandonment is a defense if it is voluntary and complete |
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Merger - When can a D be convicted of multiple crimes for the same conduct?
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1. Rule for Lesser included offenses - A ''lesser included offense'' is an offense that is necessarily part of the greater offense. I.e. every element of the lesser offense is also an element of the greater offense. Thus a lesser included offense will merge with the greater offense.
e.g. larceny is a lesser included offense of robbery; but larceny is not a lesser included offense of burglary 2. Rules for Inchoate Offenses a. Solicitation and Attempt merge with the completed crime [and with each other]. b. Conspiracy doesn't merge --- in OHIO, a person can't be convicted of both conspiracy of the offense and the offense itself. |
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Hypos for Inchoate offenses
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1. Dud wants to kidnap Vic, but he doesn't want to be recognized. So he decides to recruit someone else to do it.
a. is Dud guilty of a crime? No 2. Dud asks his friend Alex to do the kidnapping... is Dud guilty of a crime? Yes, solicitation. 3. Alex says, ''sure I'll do it.'' Dud then gives Alex a photo of Vice. a. is Dud guilty of another crime? Yes conspiracy b.is Dud still guilty of solicitation? No b/c solicitation merges conspiracy 4. Alex tries to commit the kidnapping. He hides in the bushes outside of V's house waiting for V to come home from work. When V arrives, he is accompanied by a bodyguard. So Alex decides to wait. a. D is guilty of attempted kidnapping and is still guilty of conspiracy at CL but NO in OHIO. 5. Alex returns the next day, and kidnaps V. a. D is guilty of kidnapping [vicarious liability b. D is not guilty of attempt or conspiracy |
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Defenses
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Capacity defenses
1. Insanity 2. Intoxication 3. Infancy Other defenses 1. Mistake of Fact 2. Mistake of Law 3. Self-Defense 4. Defense of Others 5. Defense of Property 6. Duress 7. Entrapment |
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Insanity
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1st requirement for an insanity defense is that the D MUST have a MENTAL DISEASE or DEFECT.
2nd there are 3 tests used to gauge whether the mental disease of defect renders the D legally insane. 1. M'Naughten test [oldest and used in OHIO] - D will be acquitted if a disease of the mind caused a defect of reason, such that D lacked the ability at the time of his actions to either know the wrongfulness of his actions OR understand the nature and quality of his actions. 2. Irresistible impulse test 3. Durham test 4. MPC test |
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Insanity: McNaughten
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D is entitled to acquittal only if he had a mental disease of defect that caused him to either
a. not know that his act was wrong, or b. not understand the nature and quality of his act. Loss of control b/c of mental illness is no defense |
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Insanity: Irresistible impulse
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D is entitled to acquittal only if, b/c of a mental illness he
a. was unable to control his action, or b. was unable to conform his conduct to the law. Irresistible impulse test = an impulse that D cannot resist |
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Insanity: Durham rule
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A D is entitled to acquittal if the crime was the product of his mental illness [i.e. crime would not have committed but for the disease]
Broadest and least popular among the tests - this is probably wrong answer on MBE question |
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Insanity: MPC test, which is a combination of M'Naughten and Irresistible impulse
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D is entitled to acquittal if he had a mental disease or defect, and as a result, he LACKED THE SUBSTANTIAL CAPACITY to either
a. appreciate the criminality of his conduct, or b. conform his conduct to the law. This test combines the McNaughten and the Irresistible test |
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Diminished capacity
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as a defense, D may assert that as a result of a mental defect short of insanity, he did not have the mental state required for the crime charged.
Defense mostly limited to specific intent crimes but some states allow it for general intent crimes |
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Insanity distinguished from incompetency
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Insanity - the issue is whether D was insane at the time of the crime. If yes, then D is not guilty.
Incompetency - the issue is whether D is insane at the time of trial. If yes, then the trial is postponed until D is competent |
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Intoxication - 2 Types
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Involuntary intoxication -
1. can be a defense to any crime 2. treated like a mental illness, so apply insanity tests 3. Key = intoxication must be completely involuntary [someone spiked my drink] Voluntary intoxication - intoxication is voluntary if it is the result of the intentional taking w/o duress a substance known to be intoxicating. 1. Can be a defense to specific intent crimes ONLY, if the intoxication prevents the D from forming the specific intent. 2. Cannot be a defense to malice, recklessness, negligence, general intent, or strict liability - results from the taking of an intoxicating substance w/o knowledge of its nature, under direct duress imposed by another, or pursuant to medical advice while unaware of the substance's intoxicating effect. |
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Infancy
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Common Law
1. if the age is under 7, prosecution is not allowed; 2. if the age is under 14, rebuttable presumption against prosecution 3. if the age is 14 or older, prosecution is allowed MPC 1. if the age is under 16, criminal prosecution is not allowed; juvenile delinquency proceedings in family court. 2. if the age is 16 or 17, criminal prosecution is allowed if approved by the juvenile delinquency court. |
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Self defense [Justification]
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1. The use of nondeadly force - A D may use nondeadly force in self defense if it is reasonably necessary, to avoid imminent injury or to retain property.
2. The use of Deadly Force - A D may use deadly force in self-defense, if he is w/o fault; he is confronted with ''unlawful force''; and he is facing an imminent threat of death or serious injury. Exam tip - the right to self-defense depends on the immediacy of the threat; a threat of future harm is not sufficient. --- It's crucial to determine the level of force the D used in committing the proscribed act. |
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Nondeadly force may be used if
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it can be used if its reasonably necessary to protect against an immediate use of unlawful force, i.e., to prevent of crime
e.g. shoves and punches |
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Deadly force may only be used
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to prevent an immediate threat of death or serious bodily injury.
e.g. guns and knives |
to prevent a felony risking human life
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The Aggressor Rule
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A D may not use deadly force in self defense if he is the 1st aggressor [i.e. the person who started the fight].
But, an aggressor may ''regain'' his right to use deadly force if a. the aggressor withdrawals from the fight and communicates that withdrawal to the other person, or b. the victim suddenly escalates a nondeadly fight into a deadly fight. |
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The Retreat Rule
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MPC/ Minority rule/ OHIO - a duty to retreat is required b/f using deadly force unless
1. D can't retreat in complete safety 2. the D is in his home or 3. D is defending against a kidnapping, rape, robbery, arson, or burglary 4. in Ohio if D is at his place of work. Majority - duty to retreat is not required |
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Common Law Mistake of Fact
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Rule- whether a D's mistake of fact will be a defense depends upon the mental state for the crime and whether the mistake is reasonable or unreasonable.
So if the mental state is 1. SI, then any mistake [even an unreasonable] will be a defense. 2. Malice or GI, then only a resonable mistake will be a defense. 3. If Strict liability-then the mistake is a defense Thus an unreasonable mistake is only a defense to specific intent crimes |
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CL Mistake if Law
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Is not a defense
Exceptions -the statute specifically makes knowledge of the law an element of the crime [e.g. selling a gun to face a known felon] |
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Self Defense - Reasonableness and Mistake
What happens if D is mistaken about the need to use self defense? |
1. If mistake to use self defense is reasonable, then its a fully Valid defense and will exonerate.
2. Unreasonable mistake a. CL - No defense at all b. Minority/MPC - it will mitigate liability, D will be guilty of voluntary manslaughter = ''Imperfect Self Defense'' - an intentional killing, based on an unreasonable belief in the need to use self-defense will be voluntary manslaughter. |
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Defense of Others
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A D may use force and deadly force to protect others if she reasonably believes that the person assisted has a legal right to use force in his own defense.
A ll that is necessary is the reasonable appearance of the right to use force. Generally, no need for there to be a special relationship b/w D and the person she assisted. |
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Defense of dwelling
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Nondeadly force may be used to prevent or terminate what is reasonbly regarded as an unlawful entery into or attack on the defender's dwelling.
Deadly force may be used only to prevent a violent entry made with the intent to commit a personal attack on an inhabitant, or to prevent an inhabitant, or to prevent an entry to commit a felony in the dwelling. |
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Defense of Property
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GR - deadly force may never be used to defend property.
Burglary Rule - Deadly force may be used to prevent a burglary, if the D is Inside The Home Nondeadly force may be used to defend property in one's possession from unlawful interference, but may not be used if a request to desist or refrain from the activity would suffice. |
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Duress
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Is a defense if the D was forced to commit a crime under a threat of imminent death or serious bodily injury.
Exception - Duress cannot be a defense to homice |
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Duress distinguished from necessity
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Necessity involves pressure from natural or physical forces; duress involves a human threat.
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Necessity
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Is a defense to a crime that the person reasonably believed that the commission of the crime was necessary to avoid an imminent and greater injury to society than that involved in the crime.
Test is objective; a good faith belief is not sufficient. Limitations 1. Death - causing the death of another person to protect property is never justified. 2. Fault - the defense of necessity is not available if the D is at fault in creating the situation requiring that he choose b/w 2 evils. |
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Entrapment
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If the Government unfairly tempted D to commit the crime, he may claim entrapment. Very Narrow Defense - only works if
1. the criminal design originated with the government or law enforcement officers, and 2. the D was not predisposed to commit the crime prior to contact by the government. On MBE the D is usu predisposed to commit the crime thus entrapment is usu the wrong choice. A person can't be entrapped by a private citizen. Under fed law, an entrapment defense can't be based on the fact that a gov't agent provided an ingredient for commission of the crime [e.g. ingredients for drugs], even if the material provided was contraband. |
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May force be used to regain possession of property wrongfully taken?
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No. Unless the person using force is in immediate pursuit of the taker.
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Crime prevention
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Nondeadly force may be used to the extent that it reasonably appears necessary to prevent a felony or serious breach of the peace.
Deadly force may be used only to terminate or prevent a dangerous felony involving risk of human life. |
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Use of Force to effectuate an Arrest
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1. Nondeadly force may be used by police officers if it reasonably appears necessary to effectuate an arrest.
2. Deadly force is reasonable only if necessary to prevent a felon's escape and the felon threatens death or serious bodily harm. 3. A private person has a privilege to use nondeadly force to make an arrest if a crime was in fact committed and the private person has reasonable grounds to believe the person arrested has in fact committed the crime. 4. A private person may use deadly force only if the person harmed was actually guilty of the offense for which the arrest was made. |
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Resisting Arrest
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Nondeadly force may be used to resist an improper arrest even if a known officer is making that arrest.
Deadly force may be used, however, only if the person does not know that the person arresting him is a police officer. |
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Consent
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Unless the crime requires the lack of consent of the victim [e.g. rape], consent is usu not a defense.
Consent is a defense to minor assaults or batteries if there is no danger or serious bodily injury. Whenever consent may be a defense, it must be established that 1. the consent was voluntarily and freely given; 2. the party was legally capable of consenting; and 3. no fraud was involved in obtaining the consent. |
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Mental capacity during criminal proceedings
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Under Due Process Clause, a D may not be tried, convicted, or sentenced if, as a result of a mental disease or defect, he is unable
1. to understand the nature of the proceedings being brought against him, or 2. to assist his lawyer in preparation of his defense. Note - A D may not be executed if he is incapable of understanding the nature and purpose of the punishment. |
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When does Criminal Negligence occur?
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when a person fails to be aware that a substantial and unjustifial risk exists or that a result will follow, and such failure constitutes a substantial deviation from the standard of care that a RP would under the same or similar circumstances.
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Ohio Battery
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Under Ohio law, battery crimes are referred to as assault crimes. Assault occurs when a person RECKLESSLY causes a SERIOUS PHYSICAL INJURY to another or to another’s unborn child OR KNOWINGLY causes or attempts to cause physical harm to another or another’s unborn child.
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Ohio Felonious Assault
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Under Ohio law, a person commits felonious assault when she knowingly causes OR attempts to cause physical harm to another or another’s unborn child BY MEANS OF A DEADLY WEAPON.
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Ohio Negligent Assault
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Under Ohio law, a person commits negligent assault when she NEGLIGENTLY causes physical harm to another BY MEANS OF A DEADLY WEAPON.
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Ohio Aggravated Assault
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Under Ohio law, a person commits aggravated assault when she knowingly causes or attempts to cause physical harm to another or another’s unborn child WHILE UNDER THE INFLUENCE OF SUDDEN PASSION OR RAGE BROUGHT ON BY SERIOUS PROVOCATION.
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Ohio Battery
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Under Ohio law, battery crimes are referred to as assault crimes. Assault occurs when a person RECKLESSLY causes a SERIOUS PHYSICAL INJURY to another or to another’s unborn child OR KNOWINGLY causes or attempts to cause physical harm to another or another’s unborn child.
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Ohio Negligent Homicide
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Under Ohio law, a person who negligently causes the death of another or another’s unborn child BY MEANS OF A DEADLY WEAPON commits negligent homicide.
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Ohio Felonious Assault
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Under Ohio law, a person commits felonious assault when she knowingly causes OR attempts to cause physical harm to another or another’s unborn child BY MEANS OF A DEADLY WEAPON.
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Ohio Aggravated Murder
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1. Under Ohio law, aggravated murder encompasses murders committed after prior calculation and design AND felony murders.
2. Aggravated murder also includes causing the death of another when either the victim was under 13, the offender is incarcerated for a felony, OR the victim was a law enforcement officer. If the defendant is an officer, the offender must know such information AND either the victim was engaged in his duties OR the offender’s specific purpose was to kill a law enforcement officer. |
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Ohio Negligent Assault
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Under Ohio law, a person commits negligent assault when she NEGLIGENTLY causes physical harm to another BY MEANS OF A DEADLY WEAPON.
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Ohio Murder
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Under Ohio law, murder occurs when a person purposely causes the death of another.
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Ohio Felony Murder
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1. Under Ohio law, aggravated murder may be committed by means of felony murder when the person PURPOSELY acts to cause the death of another while committing, attempting to commit, or fleeing from an inherently dangerous felony (kidnapping, rape, arson, robbery, or burglary).
2. Purpose may be inferred from the prior calculation and design. 3. If there was no intent (no plan to use force or violence) or the offender was attempting to commit a misdemeanor or regulatory offense, he is guilty only of involuntary manslaughter if the death was a proximate result of the crime. |
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Ohio Aggravated Assault
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Under Ohio law, a person commits aggravated assault when she knowingly causes or attempts to cause physical harm to another or another’s unborn child WHILE UNDER THE INFLUENCE OF SUDDEN PASSION OR RAGE BROUGHT ON BY SERIOUS PROVOCATION.
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Ohio Kidnapping
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In Ohio, a person commits kidnapping when he moves or restrains another BY MEANS OF FORCE, THREAT, OR deception OR when he moves or restrains a child under 13 or a mentally incompetent person BY ANY MEANS to either hold the victim for ransom, facilitate the commission of a felony, inflict serious harm on the victim, engage in sexual activity, OR hinder a governmental function.
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Ohio Negligent Homicide
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Under Ohio law, a person who negligently causes the death of another or another’s unborn child BY MEANS OF A DEADLY WEAPON commits negligent homicide.
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Ohio Menacing
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Under Ohio law, a person commits aggravated menancing when he knowingly causes another to believe he will cause serious physical harm to that person, the person’s property, or the person’s family.
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Ohio Aggravated Murder
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1. Under Ohio law, aggravated murder encompasses murders committed after prior calculation and design AND felony murders.
2. Aggravated murder also includes causing the death of another when either the victim was under 13, the offender is incarcerated for a felony, OR the victim was a law enforcement officer. If the defendant is an officer, the offender must know such information AND either the victim was engaged in his duties OR the offender’s specific purpose was to kill a law enforcement officer. |
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Ohio Murder
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Under Ohio law, murder occurs when a person purposely causes the death of another.
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Ohio Felony Murder
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1. Under Ohio law, aggravated murder may be committed by means of felony murder when the person PURPOSELY acts to cause the death of another while committing, attempting to commit, or fleeing from an inherently dangerous felony (kidnapping, rape, arson, robbery, or burglary).
2. Purpose may be inferred from the prior calculation and design. 3. If there was no intent (no plan to use force or violence) or the offender was attempting to commit a misdemeanor or regulatory offense, he is guilty only of involuntary manslaughter if the death was a proximate result of the crime. |
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Ohio Kidnapping
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In Ohio, a person commits kidnapping when he moves or restrains another BY MEANS OF FORCE, THREAT, OR deception OR when he moves or restrains a child under 13 or a mentally incompetent person BY ANY MEANS to either hold the victim for ransom, facilitate the commission of a felony, inflict serious harm on the victim, engage in sexual activity, OR hinder a governmental function.
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Ohio Menacing
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a. Under Ohio law, a person commits aggravated menancing when he knowingly causes another to believe he will cause serious physical harm to that person, the person’s property, or the person’s family.
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Ohio Permitting Child Abuse
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a. If a child under 18 or a mentally incompetent person under 21 suffers serious harm as a result of abuse, a guardian who permitted the abuse is guilty of permitting child abuse.
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Ohio Forceable Rape
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a. Under Ohio law, forcible rape can be committed against a man OR a woman.
b. A spouse is guilty of rape when the spouses are living separate and apart or when one compels the other to submit by force or threat of force. |
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Ohio Statutory Rape
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a. Under Ohio law, the defendant is guilty of statutory rape upon engaging in sex with a person under the age of 13.
b. Any mistake of age is NO DEFENSE. c. UNLAWFUL CONDUCT WITH A MINOR i. Under Ohio law, a person who is over 18 commits unlawful sexual conduct with a minor when he engages in sexual conduct with a minor, not his spouse, and the person KNOWS the minor is between 13 and 16 or is RECKLESS as to the minor’s age. |
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Ohio Statutory Rape--Sexual Battery
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A person commits sexual battery by having sex with someone, who is not her spouse, AND she either KNOWS the other person cannot understand or control his behavior, knows the other person mistakenly believes she is his spouse, she is in loco parentis of that person, OR she has some contractual relationship with the person (teacher, hospital attendant, or mental health professional).
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Ohio Theft
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Under Ohio law, larceny, embezzlement, and false pretenses are subsumed within the crime of theft. A person commits theft if she, with intent to deprive another of property or services, knowingly obtains or exerts control over another’s property or services without consent, beyond the scope of consent, or by deception, threat or intimidation.
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Ohio Robbery
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A defendant is guilty of robbery if, while committing theft or fleeing after a theft, he possesses or controls a deadly weapon, threatens or attempts to inflict or actually inflicts physical harm. OR uses force or threat of force.
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Ohio Burglary
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Under Ohio law, a person commits burglary if, by force, stealth, or deception, he trespasses in an occupied structure with intent to commit any criminal offense therein.
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Ohio Aggravated Burglary
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A person commits aggravated burglary if he attempts or threatens to inflict or actually inflicts physical harm OR if he is armed with a deadly weapon when he commits the burglary.
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Ohio Arson
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A person commits arson if, by means of fire, she knowingly causes or creates a substantial risk of physical harm to either the property of another without consent or any property with intent to defraud.
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Ohio Aggravated Arson
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A person commits aggravated arson if, by means of fire, she knowingly creates a substantial risk of serious physical harm to another OR to an occupied structure.
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Ohio Complicity
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In Ohio, an accomplice before the fact commits the crime of complicity.
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Ohio Conspiracy
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i. Under Ohio law, a person engages in conspiracy when he, eith the purpose of committing or facilitatiog the commission of a specified offense, he either plans or aides in planning an offense with another OR he agrees with another that one of them will commit the offense.
ii. the object of the conspiracy must be a specifically prescribed offense. iii. Conspiracy merges with attempt and with actual commission. Cannot be convicted of both. |
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Ohio Attempt -- DEFENSE OF IMPOSSIBILITY OF SUCCESS
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In Ohio, it is NO DEFENSE to attempt that commission of the crime was factually or legally impossible IF defendants believed the crime could have been committed.
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Ohio Attempt -- DEFENSE OF ABANDONMENT
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A defendant is not guilty of attempt if he can show he voluntarily abandoned his efforts to commit the intended crime or that he prevented it.
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Ohio Insanity
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Under Ohio law, a person is deemed not guilty by reason of insanity if she proves that at the time of the commission of the offense, she did not know the wrongfulness of her conduct.
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Ohio Voluntary Intoxication
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Under Ohio law, a defendant cannot use his voluntary intoxication as a defense that he did not act with the relevant mental state, but he may use it to show he was not capable of committing the crime.
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Ohio's Self Defense Retreat Rule
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Under Ohio law, a person may not kill in self defense if he can reasonably retreat from the confrontation.
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