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63 Cards in this Set

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4 common law mental states for a crime
1. Specific Intent
2. Malice
3. General Intent
4. Strict Liability
2 additional defenses for specific intent crimes
1. voluntary intoxication
2. mistake of fact (need not be reasonable)
Transferred Intent
EX - A shoots at B, intending to kill him but hits C instead. Intent to kill B is transferred to C and A is guilty of murdering C. Also, attempted murder of B.

BUT: If C is only wounded then A is not guilty of the attempted murder of C.
10 specific intent crimes
1. solicitation
2. attempt
3. conspiracy
4. first degree premeditated murder
5. assault
6. larceny and robbery
7. burglary
8. forgery
9. false pretenses
10. embezzlement
Malice crimes
Common law murder and arson

D recklessly disregarded an obvious or high risk that the particular harmful result would occur
Determining if a crime is strict liability
If the statute is:

1. administrative
2. regulatory
3. morality

and the statute does not contain an adverb, i.e. knowingly, purposely THEN strict liability crime and a defense that negates intention cannot be a defense
Accomplice Liability
liable for the crime itself and all other foreseeable crimes
Inchoate Offenses
1. Solicitation
2. Conspiracy
3. Attempt
Soliciation
Asking someone to commit a crime.

The crime ends when you ask, if the person agrees then it is conspiracy and the crime of soliciation merges.
Conspiracy
No merger - can be liable for both the conspiracy and the completed crime.
Liability of Co-conspirator for crimes committed by other conspirators
Two requirements
1. crimes were committed in furtherance of the conspiracy
2. crimes were foreseeable
Elements of Conspiracy
1. agreement between 2 or more persons
2. intent to enter an agreement
3. intent to acheive an unlawful objective
4. and in majority of states - an overt act
Agreement of Co-conspirators
1. need not be express
2. parties need not all know each other
Overt Act for a conspiracy (majority rule)

Minoirty and common law rule grounded in the agreement
An act will suffice, even mere preparation.
Defenses to Charge of Conspiracy
1. Impossiblity is not a defense.
2. Withdrawl not a defense BUT can be a defense to subsequent crimes of co-conspirators provided there is an affirmative act to notify all members of the conspiracy of the withdrawal
Attempt
= Specific Intent + substantial step beyond mere preparation in the direction of the completion of the crime
Physical Act for criminal liability - Involuntary acts
1. conduct that is not the product of the actor's determination
2. reflexive or convulsive acts (i.e. seizure)
3. acts performed while unconsciosu or asleep (i.e. sleepwalking but not driving while tired and falling asleep)
Legal Duty to Act
1. statute (income tax return)
2. contract (lifeguard or nurse)
3. relationship (parent-child, husband-wife)
4. voluntary assumption of care (no duty to save stranger you see drowning but if you start to swim out then duty)
5. creation of peril by the D
Insanity Defense - 4 formulations
1. M'Naghten Rule
2. Irrestible Impulse
3. Durham (or New Hampshire) Test
4. ALI or Model Penal Code Test
M'Naghten Rule for Insanity
Disease of the mind that caused a defect such that the D lacked the ability at the time of the crime to either:
1. know the wrongfulness of his actions or
2. understand the nature and quality of his actions
Irrestible Impulse Test for Insanity
Unable to control his actions or to conform his conduct to the law
Durham or New Hampshire Test for Insanity
crime is "product of the mental disease or defect" i.e. the crime would not have been committed but for the disease
ALI or Model Penal Code Test
Lacked capacity to either:
1. appreciate the criminality of his conduct or
2. conform his conduct to the requirements of law
Intoxication
May be caused by any substance - alochol, drugs and medicine are the most frequent.

Distinguish between:
1. Voluntary
2. Involuntary
Voluntary Intoxication
Defense to Specific Intent Crimes and only specific intent crimes

Not available if the D purposely becomes intoxicated in order to establish the defense.

EX - A drinks heavily and then breaks into a house, wrongly thinking it her own. When B the owners surpises her, A reacts with force beating B with her fists. On the way home, A it cited for speeding.

A will have a defense to burglary (specific intent crime) of intoxication

A will not have a defense to battery, a general intent crime.

A will not have a defense to speeding, a strict liability crime.
Involuntary Intoxication
treated as a mental illness - so apply the insanity test
Infancy
At common law:

Under Seven - no criminal liability

At least 7 but under 14 - rebuttable presumption of no criminal liability
Self-Defense Concepts
Distinguish between:
1. Non-deadly force and
2. Deadly force

Note that while generally an agressor has no right to use self-defense; he can regain the right.
Use of Non-deadly force in self-defense
One who is w/o fault may use non-deadly force in self-defense. There is no duty to retreat.
Use of Deadly force in self-defense
A person may use deadly force if:

1. she is w/o fault
2. she is confronted by unlawful force and
3. she is threatened with imminent death or great bodily harm

Retreat - Majority rule is that there is no duty to retreat.

Minority rule requring retreat creates 3 exceptions:
1. where the attack is in the victim's home
2. where the victim is making a lawful arrest or
3. where the assailant is in the process of robbing or raping the victim
2 ways aggressor can regain the right to self-defense
1. Withdrawal - Has to run and communicate (running along not enough)

2. Sudden Escalation - if the victim of the initial aggression suddenly escalates a "minor" fight into one invovling deadly force and does not give aggressor time to withdraw
Defense of a Dwelling
Deadly force may never be used solely to defend your property.
Duress
Defense to all crime except homicide.
Mistake or Ignorance of Fact
CHART
Defense - Consent
Consent of the victim is generally NOT a defense.

However, if it negates an element of the crime such as showing that the victim consented to sex for the crime of rape OR showing that an adult person consented to traveeling with the D for the crime of kidnapping then it is a complete defense.
Entrapment
Very narrow defense and almost never available b/c the predisposition to commit crime negates the defense.

1. The criminal design must have original with law enforcement and
2. the D must not have been predisposed to commit the crime
Battery
A completed assault - a unlawful application of force to the person of anothe resulting in either bodily injury or an offensive touching.
Assault
Defined as either:
1. an attempt to commit a battery (specific intent) OR

2. intentional creation - other than by mere words - of a reaonsable apprehension in the mind of the victim of imminent bodily harm (threat - general intent)
Homicide - 3 classifications at Common Law
1. Justifiable
2. Excusable
3. Criminal
Common Law Criminal Homicide - 3 offenses
1. Murder
2. Voluntary Manslaughter
3. Involuntary Manslaughter
Murder
= the unlawful killing of a human being with malice aforethought.
Malice Aforethought
In the absense of facts excusing the homicide or reducing it to voluntary manslaughter --> murder if the D has any of these 4 states of mind

1. Intent to Kill (express malice)

2. Intent to inflict great bodily injury

3. Reckless indifference to an unjustifiably high risk to human life ("abandoned and malignant heart")

4. Intent to commit a felony (felony murder)
Deadly Weapon Rule
The use of a deadly weapon authorizes a permissive inference of intent to kill.

Deadly weapon = any instrument or in some cases any part of the body - used in a manner calculated or likely to produce death or serious bodily injury.

EX - pilotng a speedboat through a group of people; firing a bullet into a crowded room; professional boxer who beats up and kills a belligerent tavern owner
Voluntary Manslaughter
MUST be passion to distinguish it from murder.
Involuntary Manslaughter - 2 types
1. Criminal negligence - i.e driving while tired and killing someone

2. "unlawful act" - killing in the course of commission of a misdemeanor or a felony not listed for felony murder
Statutory Modification of Common Law Classifications
All murders are 2nd degree unless the prosecution proves one of the following:
1. Deliberate and premeditated

2. First degree felony murder

3. other ways as the staute may indicate - such as lying in wait, poison or torture
Felony Murder
A killing - even an accidental one - committed in the course of a felony is murder.
Felony Murder - Limitations on Liability
1. Must be guilty of the underlying felony.

2. Felony must be independent of the killing - underlying felony such as manslaughter or aggravated battery will not qualify.

3. Death must be foreseeable e.g. death of firemen in arson foreseeable but heart attack of owner watching his building burn is not

4. Once the felony has terminated liabiliy ceases - once felon has reached a place of temporary safety

5. Majority view is that a felon is not liable for the death of a co-felon caused by resistance from the victim or police

6. states are split on whether felon is liable for the killing of an innocent party due to resistance by the victim or police
Rape
requires only the penetration - emission not necessary
Statutory Rape
Strict liability crime.

Best answer is that reasonable mistake of age is no defense.

2nd best is that reasonable mistake of age will prevent conviction if D reasonably believed that the victim was old enough to give consent - USE THIS ONLY IF NO OTHER BETTER CHOICE
Property Offenses
1. Larceny
2. Embezzlement
3. False Pretenses
Larceny - specific intent crime
1. a taking

2. and carrying away (can be slight)

3. of tangible personal property

4. of another (not larceny if you belive it is yours or that you have a right to it

5. by trespass

6. with intenet to permanently deprive the person of his interest in the property (must be at the time you take and must not intend to return)
Embezzlement
1. The fraudulent

2. Conversion (need not result in the direct personal gain to the D)

3. of property

4. of another

5. by a person in lawful possession of that property
False Pretenses
1. Obtaining title

2. to the property of another

3. by an intentional (or knowing) false statement of past or existing fact (liability cannot be grounded in a false promise - must be past or present fact)

4. with intent to defraud the other
Distingish False Pretenses and Larcenty by Trick
if only possesion is what is obtained by the D then the offense is larceny by trick not false pretenses which requires obtaining TITLE
Robbery
= larceny + assault OR
= larcenty + battery

1. a taking

2. of personal property of another

3. from the other's person or presence

4. by force or intimidation (not pickpocketing and threat must be imminent not a future threat to do harm)

5. with the intent to permanently deprive him of it
Extortion
= blackmail

The threat is future and the property need not be obtained from the victim's person or presence.
Burglary
1. a breaking
2. and entry
3. of the dwelling
4. of another
5. at night
6. with the intent to commit a felony therein
Breaking Required for Burglary
1. ACtual breaking - minimal force is sufficient such as pushing a door open but walking through an open door is not enough

2. Constructive Breaking - gaining entry by means of fraud, threat or intimidation
Entry Required for Burglary
Placing any part of the body inside the structure - even momentarily.

Insertion of tool is entry if inserted for the purposes of accomplishing the felony BUT not if for purposes of gaining entry. EX Shooting a bullet through a window with the intent to kill B is burglary
Required Intent for Burglary
Must intend to commit a felony at the time of entering - if the intent is formed after entry burglary is not committed.
Arson
1. The malicious
2. burning
3. of the dwelling
4. of another
Burning requirement for arson
1. Must have a fire; water, smoke or explosions are enough

2. Damage required - scorching is insufficient - charring is sufficient; A material wasting of the fiber of the building.