Mbe Criminal Law 2012

Front 1

Felony

Back 1

Crime punishable by death or 1 year or more in prison

At common law, felonies were burglary, arson, rape, larceny, murder, manslaughter, and mayhem

Front 2

Misdemeanor

Back 2

Punishable by less than 1 year in prison or a fine only

Front 3

Malum prohibitum

Back 3

An act that is wrong only because it violates a statute (e.g. speeding)

Front 4

Malum in se

Back 4

Acts that are inherently wrong or evil, such as murder

Front 5

Vagueness Doctrine

Back 5

Must be sufficiently specific to give a person of ordinary intelligence fair notice of what conduct is illegal

Front 6

Ex Post Facto laws

Back 6

Prohibited by the Constitution, includes laws that RETROACTIVELY:
(1) make conduct criminal
(2) enforce strict punishment for the same crime
OR
(3) alter the procedural or evidentiary rules in such a way that the defendant may be more easily convicted

Front 7

Elements of Crimes Generally

Back 7

(1) Actus Reus
(2) Mens Rea
(3) Concurrence in time
(4) Causation

Front 8

Actus Reus

Back 8

Can be met by
(1) a voluntary act
(2) an omission to act where under a legal duty to act AND is physically capable of performing the act
or
(3) vicarious liability where the defendant is responsible for the acts of another party

Acts that are reflexive, convulsive, performed while unconscious, or otherwise involuntary are NOT sufficient

HABITUAL acts ARE considered voluntary (e.g. smoking cigarettes in a no-smoking zone)

Front 9

Legal Duty to Act

Back 9

A duty can arise in the following ways:
(1) by statute (must file tax return)
(2) by contract (e.g. lifeguard, nurse, etc.)
(3) based on a relationship (parent-child, spouses, etc)
(4) where a voluntary undertaking has begun (unreasonable abandonment of a rescue that could worsen victim's plight is sufficient)
(5) where the person failing to act CREATED THE RISK of peril to the victim

Front 10

Mens Rea

Back 10

All crimes/criminal acts (except for small category of strict liability crimes) are accompanied by a requisite mental state

Front 11

Ohio Mental States

Back 11

(1) purposely
(2) knowingly
(3) recklessly
(4) negligently

Front 12

Specific Intent

Back 12

Defendant will possess specific intent IF:
(1) he wants, hopes, or wishes that his conduct will bring about a particular RESULT, REGARDLESS of the objective LIKELIHOOD that such a result will occur
OR
(2) he EXPECTS that a particular result will occur, even if he does not necessarily intend such a result

Specific Intent Crimes - murder, theft crimes, burglary (but not arson), inchoate crimes, and assault

Front 13

General Intent

Back 13

Requires commission of an unlawful act without a specific mens rea. General bad state o mind will suffice where criminal ACT is committed voluntarily and purposely.

Criminal negligence or recklessness is sufficient for general intent crimes

General intent crimes - kidnapping, rape, battery, false imprisonment, involuntary manslaughter, and depraved-heart murder

Front 14

Malice

Back 14

Malice exists when defendant acts intentionally or with reckless disregard for an obvious or known risk that the criminal result will occur

Malice Crimes - arson and common law murder

Front 15

Strict Liability

Back 15

Defendant is culpable simply for doing the act prohibited. No mental state is required, at least for some element of the crime.

Strict liability crimes - regulatory offenses (traffic violations), public welfare offenses (regulations of food/drugs/firearms), and morality crimes (statutory rape and bigamy)

Front 16

Transferred Intent Doctrine

Back 16

Preserves liability where the defendant intends criminal conduct against one party but instead harms ANOTHER party, so that his actions bring about an "unintended" result

Front 17

Concurrence in Time

Back 17

Must be concurrence in time between the mental state and the physical act; the mental state should ACTUATE the act or omission

Front 18

Causation

Back 18

Some crimes require a result to occur in order for the crime to be completed (e.g., homicide requires death)

Must be both an ACTUAL and PROXIMATE cause

Front 19

Actual Cause

Back 19

Cause-in-fact of the result; satisfied by either of 2 tests:
(1) if the criminal result would not have occurred BUT FOR the defendant's act
OR
(2) where there are MULTIPLE CAUSES, if the defendant's act was a SUBSTANTIAL FACTOR in causing the criminal result

Front 20

Proximate Cause

Back 20

The resulting harm must be WITHIN THE RISK CREATED by the defendant's conduct in crimes involving negligence or recklessness, OR sufficiently similar to the result intended in crimes requiring intent, so as not to hold defendant liable for EXTRAORDINARY results (including for the reckless/intentional acts of others)

Front 21

Intervening Cause

Back 21

A force that COMBINES with defendant's to bring about the harm

To relieve defendant of liability and break the chain of proximate cause, the other force must be a SUPERSEDING INTERVENING CAUSE

(1) Dependent intervening cause - a force that is a result of or response to defendant's act; will NOT relieve liability UNLESS it is a COMPLETELY ABNORMAL RESPONSE to the act
(2) Independent Intervening Cause - one that would have occurred regardless of defendant's act; WILL usually supersede defendant's act, EXCEPT where it was FORESEEABLE

Front 22

Murder

Back 22

Broken into 6 categories:
(1) Intent to kill
(2) Intent to cause serious bodily harm
(3) Depraved-heart murder
(4) Felony murder
(5) First degree
(6) Second degree

Front 23

Ohio Murder Rules

Back 23

First degree murder in Ohio is known as AGGRAVATED murder, and includes the following:
(1) murder by PRIOR CALCULATION AND DESIGN
(2) purposeful form of felony murder
OR
(3) purposely causing the death combined any of the following:
(a) victims under 13
(b) offender was incarcerated or escaped at the time
(c) victim was a law enforcement officer, defendant had reason to know he was engaged in law enforcement, and his purpose was to kill a law enforcement officer

Second degree murder is simply referred to as murder and encompasses purposely causing the death of another and lesser form of felony murder

Front 24

Ohio Felony Murder

Back 24

2 Forms:
(1) aggravated - a person purposely causes the death of another while committing a dangerous felony
OR
(2) lesser - causes the death of another as a proximate result of the commission or attempt to commit an offense of violence that is a felony

Front 25

Deadly Weapons Doctrine

Back 25

Intent to kill is inferred where the defendant used any instrument which, judging from the manner of use, is calculated to produce death or serious bodily injury

Front 26

Liability for Homicide where the Death is Cause by Another

Back 26

(1) defendant is an ACCOMPLICE to the killer
(2) where the reasonably foreseeable result of a CONSPIRACY is a homicide and the homicide is committed IN FURTHERANCE of the conspiracy, then all conspirators may be guilty
(3) Where defendant causes the death of another, even if not at his own hands, during the commission or attempted commission of a dangerous felony
(4) Where defendant fails to act while under a legal duty to do so

Front 27

Murder: Intent to Kill

Back 27

Intent to Kill murder is a specific intent crime; arises where defendant engages in conduct and consciously desires to kill another person or makes the resulting death inevitable

Deadly weapons doctrine can give rise to an inference of intent to kill

Front 28

Murder: Intent to Cause Serious Bodily Harm

Back 28

Can arise from conscious desire or substantial certainty that defendant's actions will result in serious bodily injury to the victim, and the victim dies as a result

Front 29

Murder: Depraved Heart

Back 29

Also known as "extreme recklessness" murder, it is an UNINTENTIONAL killing resulting from conduct involving a WANTON INDIFFERENCE to human life and a conscious disregard of an UNREASONABLE RISK of death or serious bodily injury

Front 30

Felony Murder

Back 30

A killing proximately caused during the commission or attempted commission of a serious or inherently dangerous felony

Generally includes both accidental and intentional killings.

Felonies include: burglarly, arson, rape, robbery, and kidnapping; a majority of states also include felonies that are dangerous because of the method of their commission

The death must be a FORESEEABLE OUTGROWTH of defendant's actions, but courts are very liberal with this requirement

Note - felony "ends" when the person has reached a place of temporary safety

A minority of states (no OH) allow an exception to a non-violent co-felon who was not armed and who did not know of the violent tendencies of the other felons

Front 31

Felony Murder where Killing is by Non-Felon

Back 31

Majority Rule (agency theory) - NO felony murder liability where killing is committed by a non-felon

Minority Rule - felony murder includes killings by non-felons (such as victims, police, etc.)

Redline Exception (exception to the minority rule) - no felony murder where the killing is a justifiable or excusable homicide (e.g. self-defense, or shooting OF A FELON by an officer)

Front 32

First and Second Degree Murder

Back 32

(1) First Degree - includes intent-to-kill murder committed with premeditation and deliberation, felony murder, and in some jxs, murder by lying in wait, poison, terrorism, or torture

(2) Second degree - any murder that is not First Degree

Front 33

Voluntary Manslaughter

Back 33

An intentional killing mitigated by ADEQUATE PROVOCATION or other circumstances negating malice aforethought; sometimes called "heat-of-passion" killing

Adequate provocation is measured OBJECTIVELY and must be such that a REASONABLE PERSON would lose self-control

Must not be a period between the provocation and the act sufficient for a REASONABLE PERSON to COOL OFF, or sufficient for the defendant to ACTUALLY cool off

Common circumstances: (1) being victim of serious battery, (2) victim of a threat of deadly force, (3) finding spouse engaged in sexual conduct with another person

Generally, "MERE WORDS" are insufficient

Imperfect self-defense MAY mitigate murder to voluntary manslaughter where defendant was either AT FAULT for starting the encounter, or UNREASONABLY but honestly believed that harm was imminent or deadly force was necessary

Minority of states also allow mental incapacity short of insanity to mitigate to voluntary manslaughter

Front 34

Involuntary Manslaughter

Back 34

An unintentional killing resulting WITHOUT malice aforethought cause either by RECKLESSNESS, CRIMINAL NEGLIGENCE, or during the commission or attempted commission of an unlawful act (e.g., mishandling firearms, dangerous operation of a motor vehicle, DWI, etc.)

Most jxs do not require that defendant be aware of the risk created by his conduct

Front 35

Ohio Involuntary Manslaughter

Back 35

Person commits involuntary manslaughter when he causes the death of another as a proximate result of committing or attempting to commit a NON-VIOLENT felony or a misdemeanor of any degree or a regulatory offense

Front 36

Battery

Back 36

General intent crime

Criminal battery is the intentional, reckless, or criminally negligent unlawful application of force to the person of the victim

Includes forces PUT IN MOTION by the defendant

AGGRAVATED battery (most jxs) - (1) where defendant causes serious bodily injury, (2) defendant uses a deadly weapon, (3) defendant batters a child, woman, or law enforcement

Front 37

Assault

Back 37

Generally, an assault may be committed by:
(1) attempted battery (i.e., with intent to commit battery; the fact that defendant is UNAWARE does NOT matter for this type of assault)
OR
(2) intentionally causing the victim to FEAR an immediate battery (words generally insufficient, as are CONDITIONAL threats and threats to commit battery in the FUTURE; fear = REASONABLE APPREHENSION)

Front 38

Ohio Assault and Battery

Back 38

Ohio DOES NOT HAVE BATTERY; most common law battery offenses are charged as assault

An assault is:
(1) recklessly causing serious physical injury to another or an unborn child, OR
(2) knowingly causing or attempting to cause physical harm to another or unborn child

AGGRAVATED assault in Ohio is called FELONIOUS assault:
(1) knowingly causing SERIOUS harm to another or an unborn child
OR
(2) attempts to cause or causes physical harm to another or an unborn child with a deadly weapon

Front 39

Mayhem

Back 39

Elements:
(1) Intent to maim or do bodily injury,
AND
(2) An act that EITHER dismembered the victim, OR disabled his use of some bodily part that was useful in fighting

Front 40

False Imprisonment

Back 40

The intentional, unlawful confinement of another

If privileged, no crime has been occurred (e.g., arrests)

Victim must be FULLY confined (not just blocking 1 exit if another is open)

May be accomplished by physical barriers, applying force, or threatening to apply immediate force, or invalidly asserting authority

Victim is NOT confined if they are aware of a REASONABLE means of escape

In OHIO it is known as UNLAWFUL RESTRAINT

Front 41

Kidnapping

Back 41

Consists of the unlawful restraint of a person's liberty by force or show of force so as to move the victim to another location

Any movement will suffice, as will concealment of the victim

Front 42

Ohio Kidnapping

Back 42

(1) Moving or restraining a person by:
(a) force
(b) threat
(c) deception
OR
(d) ANY means if the person moved/restrained is under 13 or mentally incompetent

AND

(2) the restraint or movement must be to:
(a) hold the victim for ransom
(b) facilitate the commission of a felony or flight from a felony
(c) terrorize or inflict serious physical pain on the victim
(d) engage in sexual activity
OR
(e) hinder, imede, or obstruct a governmental function

Front 43

Rape

Back 43

The act of unlawful sexual intercourse with a person without consent. (at common law, only men could rape women, and no spousal rape)

Generally requires some insertion

Front 44

Ohio Rape

Back 44

Gender Neutral

CAN rape spouse by

Front 45

Ohio Sexual Battery

Back 45

A person engaging in sexual contact with another:
(1) who is not their spouse and who the offender knows lacks the ability to understand or control his/her actions because they are substantially impaired
(2) who the offender knows is under the mistaken impression that the offender IS their spouse
(3) where the offender is in loco parentis w.r.t. the victim
(4) where the offender is a teacher, school administrator, or coach of the victim
(5) where the offender is a mental-health professional and the victim is a client
(6) where the offender has authority over the victim because they are in custody or a patient of a hospital or institution

All of these are crimes REGARDLESS of consent

Front 46

Ohio Age of Consent

Back 46

13 and mistake is no defense

But Ohio also has a crime called Unlawful Sexual Conduct with a Minor, which occurs when a person who is 18 or older engages in sexual conduct with a minor:
(1) who is not their spouse
(2) who the offender knows is at least 13 but less than 16
OR
(3) where the perpetrator is reckless as to the age of the minor

Front 47

Bigamy and Incest

Back 47

Bigamy - crime of marriage by one individual to more than one person

Incest - crime of sexual relations between individuals who are closely related

Front 48

Larceny

Back 48

Elements:
(1) the taking
(2) and carrying away
(3) the tangible personal property
(4) of another
(5) with intent to permanently deprive

Taking - requires the assertion of dominion and control over the property by a defendant without lawful POSSESSION (not a crime of transferring OWNERSHIP, but only possession)

Carrying Away - also known as "asportation"; even the SLIGHTEST movement will suffice

Tangible Personal Property - modern statutes expand this to cover services or intangible property like electricity, etc.

Of Another - a good-faith claim of right IS A VALID DEFENSE; can be guilty of larceny of OWN property, where another has lawful POSSESSION of it

With Intent to Permanently Deprive the Owner - this intent CAN BE FORMULATED AT A LATER TIME (so if one takes with the intent to return the property but then decides to keep it, that will suffice); can also be satisfied by RECKLESSLY EXPOSING the property to LOSS; satisfied if they intend to USE and then ABANDON, even if the property ACTUALLY RETURNS to the victim by some means

Front 49

Embezzlement

Back 49

Elements:
(1) Fraudulent conversion or misappropriation
(2) Of the property of another
(3) by one IN LAWFUL POSSESSION of the property

Conversion - an action toward the property (such as selling, consuming, pledging, donating, discarding, heavily damaging, or claiming title to it) that SERIOUSLY INTERFERES with the rights of the owner (slight use or limited movement would not suffice)

Does not apply to services

May be defended on the grounds that the defendant intends to later restore the EXACT property (NOT to replace it)

CONTRAST to larceny - embezzlement involves misappropriation by a person with lawful custody of property; larceny requires a TAKING of property FROM someone in lawful possession

Front 50

Robbery

Back 50

Larceny plus 2 additional elements:
(1) Taking must be from the person or in the presence of the victim (an area within his control)
(2) the taking must be accomplished by either FORCE or THREAT of force or intimidation

Larceny, assault, and battery are all lesser-included offenses of Robbery

Front 51

False Pretenses

Back 51

Elements: the defendant
(1) makes A KNOWINGLY false representation
(2) of MATERIAL fact
(3) with INTENT TO DEFRAUD the victim
(4) that causes the victim to PASS TITLE of the property to the defendant

Front 52

Larceny by Trick

Back 52

Form of larceny whereby the defendant obtains possession of the personal property of another by means of a representation or promise that he KNOWS to be false at the time of the representation

Difference between Larceny by Trick and False Pretenses is that in Larceny by Trick, TITLE DOES NOT PASS, ONLY POSSESSION

Front 53

Ohio Theft Crimes

Back 53

Ohio combines all theft crimes into a single crime: Theft

Theft occurs when a person:
(1) with the INTENT TO DEPRIVE another of property or services
(2) knowingly obtains or exerts control over that property or services (a) without consent, (b) by going beyond the scope of the express/implied consent of the owner, OR (c) by deception, threat, or intimidation

Front 54

Ohio Robbery

Back 54

Robbery is committed if, while committing a theft or fleeing from a theft, the defendant:
(1) possesses a deadly weapon (need not be brandished)
(2) inflicts, threatens, or attempts to inflict physical harm on another, OR
(3) uses or threatens to use immediate force against another

Front 55

Extortion/Blackmail

Back 55

(1) Obtaining the property of another
(2) by threats of FUTURE harm

Front 56

Receiving Stolen Property

Back 56

Elements:
(1) Receiving of stolen property
(2) KNOWN to be stolen
(3) With INTENT TO PERMANENTLY DEPRIVE the owner`

Front 57

Forgery

Back 57

Elements:
(1) the fraudulent making
(2) of a false writing with apparent legal significance
(3) with the intent to make wrongful use of the forged document

Cannot be just including false information in an otherwise genuine writing

Completion of the "making" element completes the crime if done with the requisite intent; the document need not be used

Alteration must be MATERIAL

Must be of apparent LEGAL significance (deed, mortgage, negotiable instrument, etc.); things like PAINTINGS do not qualify

Front 58

Burglary

Back 58

At Common Law, elements were:
(1) Breaking (either by force or deception)
(2) and entering (any part of the body suffices, or any tool used to accomplish the FELONY but not if only used to accomplish the BREAKING)
(3) the DWELLING of another
(4) at NIGHT (largely eliminated in modern statutes)
(5) with intent to commit a felony therein

Breaking and entering must be WITHOUT CONSENT

Front 59

Ohio Burglary

Back 59

Occurs when defendant:
(1) trespasses in an OCCUPIED structure by force, stealth, or deception
(2) with INTENT to commit ANY criminal offense (felony or misdemeanor)

AGGRAVATED Burglary occurs when the perpetrator ALSO:
(1) inflicts, attempts to inflict, or threatens to inflict physical harm on another or
(2) is ARMED WITH A DEADLY WEAPON

Otherwise BREAKING AND ENTERING might be charged where:
(1) defendant trespasses in an unoccupied structure with intent to commit a THEFT
OR
(2) the trespass is on the land or premises of another with the intent to commit a FELONY

Front 60

Arson

Back 60

Elements
(1) the MALICIOUS
(2) burning (mere blackening not enough, but charring enough; must be to the STRUCTURE, not just the contents, like furniture)
(3) of a dwelling (majority rule not includes any structure, as long as the burning occurs on the structure, and not just the contents)
(4) of another (majority rule expands this to include burning of his OWN structure)


Defendant need not have intended to burn the building, malice requires only an intentional act that involved a SUBSTANTIAL RISK of burning

Front 61

Solicitation

Back 61

Occurs where a defendant, with SPECIFIC INTENT that the crime be committed, entices, advises, incites, induces, urges, or otherwise encourages another to commit a felony or breach of the peace

MPC defines it broadly as requesting another to commit ANY crime, including misdemeanors

Completed crime at the time of the solicitation; no need for crime to be actually committed

Mere approval is not sufficient

Solicitor is treated as an accessory before the fact, and will therefore be GUILTY OF ANY SOLICITED CRIME (whether attempted or completed) by the solicitee

Solicitation MERGES with the target crime upon completion

May NOT be guilty of solicitation if the defendant could not be guilty of the underlying crime

Front 62

Defenses to Solicitation

Back 62

At common law, there were no defenses, but modern statutes typically allow defenses that would be available for specific intent crimes, such as voluntary intoxication and unreasonable mistake of fact

Impossibility is NO defense, where solicitee CANNOT carry out the crime

Withdrawal is not a defense, because the crime is completed at the solicitation

Front 63

Attempt

Back 63

2 Elements:
(1) specific intent to bring about a criminal result, AND
(2) a significant overt act in furtherance of that intent

The specific intent requirement means that in some cases, the attempt offense requires MORE proof than the underlying offense

Act must be beyond mere "preparation"; at common law, it had to be the "last act necessary" to achieve the result, but modern courts now apply less stringent tests:
(1) Proximity test - how close in time and physical distance was a defendant to the time and place of the target crime
(2) Equivocality test - defendant's conduct must be such that it can have no other purpose than the commission of the crime attempted
(3) MPC requires only a "SUBSTANTIAL STEP" toward the offense that corroborates the criminal intent required (such as scouting the area of the crime)

Front 64

Defenses to Attempt

Back 64

(1) Abandonment - At common law, NOT a defense once the attempt is complete

OHIO and MPC recognize VOLUNTARY (true change of heart, not just giving up in the face of unanticipated difficulty) and COMPLETE (not just postponing) abandonment as a defense

(2) Legal Impossibility - traditionally regarded as a defense to attempt

BUT in OHIO, legal impossibility is NOT a defense to attempt if the crime could have been committed if the circumstances were as the defendant believe them to be

Front 65

Conspiracy

Back 65

Elements:
(1) An agreement between 2 or more persons (MUST be ACTUAL agreement, not merely feigned, but need not be EXPLICIT agreement)
(2) with specific intent to commit a crime
(3) an overt act in furtherance of the conspiracy (majority rule); preparation will suffice


Acquittal of one generally results in the acquittal of a single remaining conspirator, but the prosecutor NEED NOT CHARGE MORE THAN ONE conspirator

Majority rule is that conspiracy does NOT merge (BUT OHIO rule is that conspiracy DOES MERGE with the completed offense)

General rule - No one-person conspiracies - cannot be a conspiracy between a criminal and an undercover cop; at least 2 guilty minds must conspire
BUT under the MPC, there CAN be a one-person conspiracy

Front 66

Pinkerton Doctrine

Back 66

Where a conspirator does not have sufficient mens rea for liability as an accomplice, the Pinkerton rule allows liability to attach for ALL crimes of the other co-conspirators, where:
(1) the crimes were a foreseeable outgrowth of the conspiracy, AND
(2) committed in furtherance of the conspiracy

Front 67

Wharton Rule

Back 67

Crimes where two or more people are necessary to commit the offense cannot result in a conspiracy

Examples: dueling, bigamy, incest, gambling, adultery, etc.

Front 68

Defenses to Conspiracy

Back 68

Impossibility is NOT a defense to conspiracy

General rule is that WITHDRAWAL is NOT a defense to conspiracy because the conspiracy is complete as soon as the parties agreed to commit the crime

Withdrawal MAY cut off FURTHER liability for crimes committed in furtherance of the conspiracy IF the withdrawing party communicates his withdrawal to each of the co-conspirators

Under the MPC, however, withdrawal CAN be a defense to conspiracy itself IF the renouncing party gives timely notice of his plans to all members of the conspiracy AND performs an affirmative act to THWART the conspiracy

Front 69

Complicity/Accomplice Liability

Back 69

Accomplice liability arises where an individual gives assistance or encouragement or fails to act where he has a legal duty to oppose the crime of another AND purposefully intends to effectuate commission of the crime

Common law distinguished between accessories before and after the fact and principals of the first or second degree

Modern rule distinguishes only between accomplices and accessories after the fact.

Under the modern approach, an accomplice is FULLY LIABLE FOR THE UNDERLYING CRIME as well as any crimes that are the NATURAL AND PROBABLE CONSEQUENCE of the crime assisted or encouraged

MERE PRESENCE is NOT sufficient to create accomplice liability

MPC allows liability for ATTEMPTS to aid or encourage but does not ACTUALLY do so

Front 70

Withdrawal/Abandonment as a Defense to Accomplice Liability

Back 70

Generally an accomplice may sever liability for future crimes by withdrawal or abandonment

Must give no further assistance or encouragement and communicate his withdrawal to his accomplices

Many jurisdictions also require taking some action to neutralize his assistance, but need not THWART the commission of the crime

Front 71

Principal in the First Degree

Back 71

The actual perpetrator who PERFORMS the criminal act with the requisite mental state

Front 72

Principal in the Second Degree

Back 72

One who is present at the scene of a felony and aids, abets, or otherwise encourages the commission of the crime with the requisite intent

Mere presence without assistance, or assistance without intent are BOTH insufficient

Front 73

Accessory Before the Fact

Back 73

One who aids, abets, counsels, or otherwise encourages the commission of a felony, but is NOT present at the scene, is guilty as an accessory before the fact

Majority view- the principal NEED NOT be convicted to convict the accessory (change from common law, where conviction of the principal WAS required)

Front 74

Accessory After the Fact

Back 74

3 Elements:
(1) completed felony was committed
(2) the accessory must have known of the commission of the felony
AND
(3) the accessory must have personally given aid to the felon in order to hinder the felon's apprehension, conviction, or punishment

NOT punished as an accomplice (i.e., lesser punishment than the full completed crime)

Front 75

Defenses: Insanity

Back 75

If defendant is deemed insane AT THE TIME OF THE OFFENSE, the no criminal liability will be imposed.

There are 4 tests of insanity:
(1) M'Naghten Test
(2) Irresistable Impulse
(3) Durham Rule/New Hampshire Rule
(4) MPC Test

Front 76

M'Naghten Test

Back 76

If defendant was laboring under such a defect of reason from a disease of the mind that he did not know the nature and quality of the act he was doing, or if he DID know it, that he did not know what he was doing was wrong

Front 77

Irresistable Impulse Test

Back 77

Where there is a mental disease that keeps defendant from controlling his conduct

Front 78

Durham Rule or New Hampshire Rule

Back 78

"Product" rule - defendant is not responsible if his unlawful act was the product of a mental disease or defect (i.e., would not have been committed BUT FOR the disease/defect)

Front 79

MPC Insanity Test

Back 79

Defendant is not responsible IF, at the time of the conduct, as a result of a mental disease or defect, he lacked SUBSTANTIAL CAPACITY to appreciate the criminality/wrongfulness of his conduct or to conform his conduct to the requirements of law.

Typically easier to establish this because it does not require the TOTAL absence or loss of cognitive ability or volition, and also allows a verdict of not guilty for EITHER the cognitive or volitional component

Front 80

Ohio Insanity Rule

Back 80

Defendant must, at the time of the offense, not know that his conduct was wrong due to a severe mental disease or defect

Front 81

Defenses: Competency

Back 81

Differs from insanity in that it deals with defendant's competency to stand trial

Requires the sufficient PRESENT ability to consult counsel with a reasonable and rational understanding of the proceedings

If found incompetent, a defendant can be tried later if competency is restored

Front 82

Defenses: Diminished Capacity

Back 82

Available in some jurisdictions to prove that, as a result of a mental defect, the defendant lacked the state of mind that that was an element of the offense (i.e., rather than used as a defense, it is used to negate an element of the offense)

Front 83

Defenses: Intoxication

Back 83

Generally, both voluntary and involuntary intoxication are defenses to a crime when it negates the existence of an element of the crime (usually the requisite mental state for specific intent crimes

Excessive use of drugs/alcohol MAY result in ACTUAL insanity under the test for insanity

Front 84

Ohio Intoxication

Back 84

Voluntary intoxication is available as a defense ONLY to show that defendant was INCAPABLE of committing the offense

Front 85

Defenses: Infancy

Back 85

At common law, a complete defense due to incapacity existed for children UNDER 7, with children between 7-14 receiving a rebuttable presumption of incapacity. Children over 14 were held responsible as adults

States now establish their own framework generally without the presumption

Front 86

Justification Defenses

Back 86

Where an act is JUSTIFIED, no crime has been committed, notwithstanding what might otherwise be a criminal result

Justification defenses:
(1) self-defense
(2) defense of others
(3) defense of property
(4) necessity
(5) law enforcement
(6) duress
(7) public duty
(8) domestic authority

Front 87

Defenses: Self Defense

Back 87

If a person has a REASONABLE BELIEF that he is in IMMINENT DANGER of unlawful bodily harm, he may use that amount of force in self-defense that is REASONABLY NECESSARY to prevent such harm, UNLESS he is the INITIAL AGGRESSOR

Deadly force is only permitted in response to an attack that threatens death or great bodily injury

Front 88

How can Aggressor REGAIN the right to self-defense

Back 88

2 ways
(1) upon complete withdrawal perceived by the other party, OR
(2) escalation of force by the victim of the initial aggression

Front 89

Duty to retreat

Back 89

General rule is no duty to retreat where NOT the aggressor, BUT some jurisdictions DO require retreat if it can be done safely and defendant is not in his own home, auto, or workplace (but even in those places, if defendant is the aggressor, there is a duty to retreat before using deadly force)

Front 90

Defenses: Defense of others

Back 90

Generally, a person is justified in using force to defend a third person to the SAME EXTENT that the person would be justified in using force to defend himself.

Proportionality rule applies

Majority rule focuses on the REASONABLENESS of defendant's belief that the third party was under attack (so MISTAKE does not disqualify a person from this defense)

No special relationship is necessary

Front 91

Defenses: Law Enforcement

Back 91

(1) Police - may use the amount of NON-DEADLY force that reasonably believes necessary to effect a lawful arrest or prevent escape; may use DEADLY force ONLY to prevent the commission of a dangerous felony or to effectuate an arrest of a person reasonably believed to have committed a felony where it reasonably appears necessary to the officer

(2) Private Citizens - may use the amount of NON-DEADLY force that reasonably appears necessary to prevent the commission of a felony or a misdemeanor amounting to a breach of peace, or to make an arrest if the crime was in fact committed and he reasonably believes the person committed the crime; may use DEADLY force to same degree as a police officer ONLY if a dangerous felony is involved and the person is ACTUALLY GUILTY; a private citizen who uses deadly force to prevent escape but makes a MISTAKE is NOT justified

(3) Resisting Unlawful Arrest - defendant may use reasonable, non-deadly force to resist an unlawful arrest, an arrest with excessive force where defendant fears injury, or a lawful arrest where the defendant does not know the other person is a police officer

Front 92

Defenses: Duress

Back 92

Justifies criminal conduct where the defendant REASONABLY BELIEVES that the only way to avoid unlawful threats of great bodily harm or imminent death is to engage in unlawful conduct.

Duress is NOT available as a defense to MURDER

Front 93

Defenses: Public Duty

Back 93

Public official, police officer, or private citizen offering assistance is justified in using reasonable force against another or in taking the property of another provided he is acting within his authority pursuant to law, court order, or process that is valid or that he reasonably believes to be valid

Front 94

Defenses: Domestic Authority

Back 94

Parents of a minor, or one in loco parentis, may justifiably use reasonable force on the child to promote the child's welfare

Reasonableness is considered in light of the age, sex, health, and particular misconduct based on the totality of circumstances

Front 95

Defenses: Entrapment

Back 95

Exists where the criminal act is the product of creative activity originating with law enforcement officials and the defendant is in NO WAY PREDISPOSED to commit the crime

Government officials MAY ENCOURAGE criminal activity by providing equipment or opportunity

Defendant's past criminal record is relevant in proving predisposition

Front 96

Mistake of Fact

Back 96

A defense only where it negates the existence of a mental state required to establish a material element of the crime. In other words, there would be no crime if the facts were as defendant thought them to be.

To negate the existence of GENERAL intent, the mistake must be REASONABLE

To negate the existence of SPECIFIC intent, the mistake need NOT be reasonable, as long as it is HONEST

Exception - STRICT LIABILITY crimes, mistake is no defense

Front 97

Mistake of Law

Back 97

Generally, where defendant is UNAWARE that his acts are against the law, that is NOT a defense

EXCEPTIONS:
(1) statute proscribing the conduct has not been made reasonably available
(2) defendant reasonably relied on a statute or judicial decision that is later overruled or declared unconstitutional
(3) defendant relies in good faith on an erroneous official statement of law contained in an administrative order or an official interpretation by a public officer or department
(4) where some element of the crime involves knowledge or awareness of the law by defendant

Front 98

Consent

Back 98

NOT a defense to a crime EXCEPT when it negates a specific element of the crime (e.g., rape, kidnap)

Front 99

Condonation

Back 99

Subsequent forgiveness is generally NOT a defense to commission of a crime