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204 Cards in this Set

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What are the inchoate offenses?
Conspiracy, Attempt, Solicitation (CAtS)
burden of proof
prosecution: to prove every element beyond a reasonable doubt.

defense: affirmative defenses (insanity, self-defense) burden of production shifts to D to prove his defense but only by a preponderance of the evidence standard (majority rule todday)
What distinguishes a misdemeanor from a felony?
Misdemeanor- punishment may not exceed one year in prison

Felony- punishment may exceed more than one year in prison
When does FAILURE TO ACT form the basis for criminal liability?
DUTY TO ACT: statute, contract, status relationship (parent, spouse), voluntary assumption of care (voluntary rescue), creation of peril

KNOWLEDGE of the duty (you must know that the person drowning is your kid)

ABILITY TO HELP (you must know how to swim)
Which crimes are specific intent crimes?
CRIMES AGAINST THE PERSON: assault, first degree premeditated murder

CRIMES AGAINST PROPERTY: Larceny, Embezzlement, False Pretenses, Robbery, Forgery, Burglary

INCHOATE CRIMES- solicitation, conspiracy, attempt
What is the definition of malice?
D acted intentionally or WITH RECKLESS DISREGARD of an obvious known risk
What crimes are malice crimes?
Murder and Arson
What crimes are strict liability crimes?
PUBLIC WELFARE OFFENSES: selling alcohol to a minor, corrupting the morals of a minor, selling contaminated food (these are accompanied by small penalties)

STATUTORY RAPE
Can mistake of fact be a defense?
SPECIFIC INTENT CRIMES- any mistake will be a defense

GENERAL INTENT CRIMES- only reasonable mistakes can be used as a defense

STRICT LIABILITY- mistake of fact is NEVER a defense!
Can mistake of law be a defense?
NO...

...unless the statute makes knowledge of the law an element of the crime (like selling a gun to a known felon)
How does the MPC split up its mental states?
PURPOSELY- D meant to do what he did

KNOWINGLY- D was aware of what he was doing

RECKLESSLY- D was aware of a substantial and unjustifiably risk and consciously disregarded it

NEGLIGENTLY- D should have known about a substantial and unjustifiable risk

STRICT LIABILITY
How does the MPC treat mistake of fact?
Purposeful, Knowledge, Reckless: ANY MISTAKE

Negligence: ONLY REASONABLE MISTAKES

Strict Liability: NO MISTAKE!
If you shoot someone but they don't die... are you responsible for medical malpractice that occurs when the bullet is removed?
YES- you are the proximate cause because medical malpractice is foreseeable
Battery (multistate)
Unlawful... Application of force to another... resulting in either bodily injury or an offensive touching

GENERAL INTENT
Assault (multistate)
Either an attempted battery

OR

The intentional creation... other than by mere words... of a reasonable fear in the mind of the victim... of an imminent bodily harm

SPECIFIC INTENT
When does the year-and-a-day rule come in to play?
Multistate: death must occur within a year and a day of the act

Maryland: death may occur at any time (no year and a day rule)
Second Degree Murder
Causing the death... of another person... with MALICE AFORETHOUGHT
What counts as malice aforethought?
Intent to kill (including deadly weapon doctrine), intent to inflict great bodily harm, extreme recklessness (depraved heart), felony murder
How does transferred intent work on the multistate exam?
If you have the requisite intent for a crime against A but commit it against B ... you are guilty of crime against B and attempt against A

But if you don't kill B... you are not guilty of attempting to kill B (you're still on the hook for attempting to kill A though)
First Degree Murder
An intentional killing committed with premeditation and deliberation... by poison... or by lying in wait

OR

Felony Murder
Voluntary Manslaughter
An intentional killing... committed in the heat of passion... after adequate provocation
What established adequate provocation for purposes of voluntary manslaughter?
1. Provocation that would arouse a sudden and intense passion in the mind of an ordinary person

AND

2. D did not have time to cool off between the provocation and the killing
What counts as adequate provocation on the multistate?
Mutual Combat (bar fights), substantial battery (punch in the face), and unlawful arrest (the arestee fights back)

AND

The sight of adultery (mere words alone do not count)
Involuntary Manslaughter
A killing committed with criminal negligence

OR

A killing committed during a crime that is not classified as felony murder (sometimes called misdemeanor manslaughter)
What is the timeline for felony murder?
The felony begins as soon as D takes a substantial step towards the commission of the felony and it continues throughout the defendant's immediate flight
Felony Murder- Death of a third party
Common Law- anyone can kill the third party and the felon will be held liable (so long as it is foreseeable)

Maryland: the killing must be done by a co-felon (unless the felon used the victim as a human shield)
Felony Murder- Death of a co-felon
Common Law: who cares- no liability

Maryland: killing of a co-felon can be felony murder
How does Maryland define felony murder?
First Degree Felony Murder: 'BRAKES'- burglary, robbery, arson, kidnapping, escape, sexual assault

Second Degree Felony Murder: felonies that are inherently dangerous (child abuse and first degree assault)

Killings during any other crime are considered misdemeanor manslaughter
How does the MPC do murder?
MURDER has three forms

1. Intent to kill: no premeditation or deliberation needed

2. Extreme Recklessness: similar to common law standard

3. Felony murder: limited to the BRAKES crimes

MANSLAUGHTER HAS TWO FORMS

1. Intentional: reasonable extreme emotional disturbance (like heat of passion)

2. Unintentional: reckless killing where D is aware of and consciously disregards a substantial and justifiable risk of death

CRIMINALLY NEGLIGENT HOMICIDE: negligent mental state where D should have known about a substantial and unjustifiable risk of death
What are the elements of false imprisonment?
the unlawful... confinement of a person... without his consent

GENERAL INTENT
What are the elements of kidnapping?
False imprisonment + moving the victim or concealing the victim in a secret place

GENERAL INTENT (multistate)
INTENT TO MOVE OR CONCEAL (MD)
How does Maryland handle forcible rape?
Second Degree Rape: sex/sodomy without the victim's consent... accomplished by force, threat of force, or when the victim is unconscious

First Degree Rape: use or threatened use of a dangerous weapon OR causing a serious physical injury OR gang rape OR rape during a burglary
How does Maryland handle statutory rape?
Second Degree Rape: victim is under 14

Third Degree Rape: victim is 14-15 and D is at least 21

Fourth Degree Rape: Victim is 14-15 and D is under 21
How does the MPC handle mistake of age for purposes of statutory rape?
Reasonable mistake IS A DEFENSE!
Larceny
trespassory... taking and carrying away... personal property of another... with the intent to permanently deprive
What is continuing trespass?
If you take something without the intent to steal but later form the intent to steal... you will be guilty of larceny
Embezzlement
Conversion... of the personal property of another... by a person ALREADY IN LAWFUL POSSESSION OF THAT PROPERTY... with the intent to defraud
False Pretenses
Obtaining TITLE... to the personal property of another... by an intentional false statement... with the intent to defraud

future promises don't count
Larceny by Trick
Obtaining POSSESSION as a result of an intentional false statement

REMEMBER- false pretenses gets you title while larceny by trick gets you possession
Robbery
Larceny... from another's person or presence... by force or threat of immediate injury... with the intent t osteal
What count as threats for purposes of robbery?
Immediate injury... 'your money or your life'

Future injury: 'give me your money or I'll break your legs tomorrow (extortion)'

Embarrassment: 'give me your money or I'll post these pictures of you (blackmail)'
How does Maryland handle theft crimes?
It consolidates larceny, embezzlement, false pretenses, and larceny by trick into one offense... THEFT

1. Felony Theft: property valued at over $500

2. Misdemeanor Theft: property valued at under $500

Robbery is divided into two categories

1. Basic Robbery: same as common law

2. Aggravated Robbery: use of a dangerous weapon, carjacking
What are the crimes concerning theft-related offenses that are not theft?
Receipt of Stolen Property: receiving possession... of stolen property... with KNOWLEDGE that it is stolen

Forgery: making or altering a writing... so that it is false... WITH THE INTENT TO DEFRAUD

Uttering: Offering as genuine... a forged instrument... WITH INTENT TO DEFRAUD (in MD, issuing a bad check turns to theft if it is honored)
How does Maryland treat burglary?
no need for it to be at night or for it to be a dwelling

mens rea for ANY crime other than trespass is good enough
What is good enough to count for arson?
Charring is enough

Scorching or blackening IS NOT ENOUGH
Accomplice v. Accessory
Accomplices are guilty of all crimes that he aided or encouraged and for all other foreseeable crimes committed along with the aided crime

Accessories after the fact are guilty of a separate lower crime and they assist the principal with knowledge that the crime has been committed and with the intent to help the principal avoid arrest or conviction
How does Maryland split up accomplices?
Accessory before the fact

Aider and Abettor
How does Maryland treat conspiracy?
It gets rid of the 'overt act' requirement
Maryland v. MPC/Majority Rule regarding one-person conspiracies
MPC/Majority- YES... you can have a one person conspiracy (undercover cop as co-conspirator)

MD: two guilty minds requirement
Are co-conspirators liable for crimes committed by other co-conspirators?
YES... VICARIOUS LIABILITY

If the other crimes are in furtherance of the conspiracy's objective and they are foreseeable
Attempt... Common Law v. Maryland and MPC
Common Law: you have to come DANGEROUSLY CLOSE to the commission of the crime

Maryland: you just have to take a SUBSTANTIAL STEP towards the crime that is STRONGLY CORROBORATIVE of a criminal purpose (like buying an untraceable gun to kill someone)
How does 'impossibility' implicate attempt?
Factual Impossibility (like trying to pickpocket someone who doesn't have a wallet)... NO DEFENSE

Legal Impossibility (like selling baby powder when you think it is illegal to sell baby powder)... VALID DEFENSE
Withdrawal Defense... Common Law and Maryland v. MPC
Common Law and Maryland: not a defense BUT you won't be vicariously liable for other crimes

MPC: valid defense if it is voluntary and complete AND the change of heart is not due to a fear of being caught
What is the M'Naughten Test for insanity?
D did not know what he was doing was wrong

OR

D did not understand the nature of his act
What is the Irresistible Impulse Test for insanity?
Defendant was unable to control his actions (voices in my head)

OR

Defendant was unable to conform his conduct to the law
What is the Durham Test for insanity?
D's conduct was the product of his mental illness

this is not recognized anywhere. red herring answer?
What is the Maryland/MPC test for insanity?
D lacked the substantial capacity to either appreciate the criminality of his conduct or conform his conduct to the law

a mix between M'Naughten and Irresistible Impulse
INFANCY... common law v. Maryland
Common Law: no prosecution if under 7... rebuttable presumption against prosecution if under 14... prosecution allowed if over 14

Maryland: 14-15 can be tried for first degree murder and related crimes... 16-17 can be tried for all felonies
Self Defense in a bar fight
If you are the aggressor, you cannot use deadly force unless you have communicated your withdrawal to the other person OR the other person escalates the fight
Retreat... MPC/Majority v Maryland
MPC/Majority: Retreat is not required

Maryland: Retreat is required unless you cannot do so safely, you are home, or you are defending against a robbery
Can you recover for humiliation if you are falsely imprisoned or falsely arrested?
YES- it is a foreseeable injury
FELONY:
CRIME PUNISHABLE BY DEATH OR IMPRISONMENT > ONE YEAR
what crimes are felonies under CL?
Burglary, arson, robbery, rape, larceny, murder, manslaughter, and mayhem
what is burglary
Burglary: breaking, entering dwelling house of another at nighttime w/I intent to commit larceny or felony therein (no state has nigthttime requirement anymore, but that=s what you follow on MBE)
MISDEMEANOR:
CRIME PUNISHABLE BY IMPRISONMENT OF < 1 YEAR OR BY FINE ONLY.
At CL: crimes not felonies were deemed ___.
misdemeanors
At CL: assault & battery were ____
misdemeanors (important because misdemeanor crimes resulting in unintended death were misdemeanor manslaughter/involuntary manslaughter at CL)
MALUM IN SE CRIMES
evil in itself - theft crimes, crimes against the person (battery, murder), robbery, larceny, manslaughter
MALUM PROHIBITUM
crimes legislatively prohibited - speeding, failing to register a firearm, failure to yield right of way, leaving scene of accident
GENERAL INTENT CRIMES V. SPECIFIC INTENT CRIMES
Most crimes are specific intent, specific mens rea (mental state) for their commission, e.g. all theft crimes. The defendant not only committed the actus reus, but did it for a particular purpose.

General intent crimes don=t require specific means rea or mental state, generally simply require the criminal act (as if we infer bad mens rea), e.g.rape, arson. .
specific intent crimes require a showing of the intent element, so that a D could claim that because intoxicated or high...
he didn't have the requisite mens rea.
voluntary intox is a possible defense for __ intent but not ____ intent crimes
specific, igeneral
malice crimes -- what crimes and do they need intent?
Arson and non 1st degree murder. (malicious destruction of property?) no intent required--Reckless conduct satisfies the malice requirement
specific intent crimes
burglary and all theft crimes; murder; (Voluntary manslaughter (intentional killing in the heat of passion)??);
Inchoate crimes: solicitation, attempt, conspiracy; assault

FIAT: First degree murder; Inchoate crimes (sneaky CATS: conspiracy, attempt, solicitation); Assault w/ attempt to commit battery; Theft offenses
general intent crimes
everything else, eg rape, Battery, kidnapping, involuntary manslaughter
STRICT LIABILITY CRIMES
Absolute criminal liability (no defenses generally)
Statutory rape, bigamy, violation of regulatory offenses (e.g., selling liquor to a minor, contributing to delinquency of a minor)
knowledge/intent not impt - no mistake of fact defense
(any defenses? insanity?)
THEORIES OF LIABILITY
direct, vicarious (e.g employer for employee), enterprise (not under CL, but modern statutes hold corps liable for agent/employees--this could also be characterized as vicarious?? likely high lvl offcr or dir also personally accountable)
MPC requires a specific duty imposed by law on the corporation, or that high-level officials have endorsed or tolerated the act.
crime elements --
Actus reus (voluntarily, volitional, conscious criminal act); mens rea; Concurrence in time between actus reus and mens rea; causation (as in torts); harm suffered by victim
criminal defenses
insanity. infancy, intoxication, justification (self defense, defense of others/property etc, duress, resisting unlawful arrest, necessity, entrapment, mistake of fact)
actus reus
1) voluntary action; 2 ) usu an affirmative act, but may be an tort-like omission when action required by virtue of: statute, contract, relationship, voluntary assumption of care, creation of peril
Mens rea (guilty mind):
Most crimes will provide you with the mens rea requirement as part of the usual definition;
Criminal statute sometimes specify the required mens rea
Concurrence in time between actus reus and mens rea
can be impt in determining whether killing was preplanned or in heat of passion, eg, or if someone broke in with intention to burgle a house
Causation: .
D's criminal act must be the proximate or legal cause of the resulting harm/injury suffered by the victim (if harm is an element, presumably)
Harm injury suffered by victim
Is this really an element? maybe sometimes. not with minor statutory violations, eg speeding
defense: insanity: McNaughton test
McNaughton test (most states follow, most likely for MBE): A defendant is relieved of criminal responsibility upon proof that at the time of commission of the act, he was laboring under such a defective reason from disease of the mind as not to know the nature and quality of the act he was doing or if he did know it, he did not know that what he was doing was wrong. Includes all mental abnormalities.
defense: insanity: irresistable impulse test
minority test: D will be found not-guilty where he had a mental disease which keeps him from controlling his conduct.
defense: insanity: MPC
(Illinois test) substantial capacity test: A person is not responsible for criminal conduct if at the time of such conduct, it was committed as a result of mental disease or defect and lacked substantial capacity to appreciate the criminality or the wrongfulness of his conduct or to conform his conduct to the requirements of the law.
(1)
Has been developed by American Law Institute (ALI), this test combines McNaughton and irresistable impulse test.
defense: insanity: Durham test/product rule test -
some states use-- the D is not criminally responsible if his unlawful act was the product of mental disease/defect.
presumption of sane D
D is presumed sane until such time as he goes forward by raising evidence sufficient to raise a reasonable doubt as to his sanity
defense: insanity: burden of production/proof
D must first present evidence raising reasonable doubt as to his sanity. Majority (IL) then require D to prove insanity by preponderance, minority require the prosecution to prove sanity beyond a reasonable doubt
defense: Infancy:
At CL, a complete defense due to incapacity existed for children under 7 years of age. Children between 7-14 were rebuttably presumed to lack criminal capacity. Children 14+ were held responsible at adults.

Modern statutes in many states have abolished CL presumptions and have established a specific criminal age.

On MBE, most likely would provide statute delineating an age; if no statute provided, follow CL rule.
defense: Intoxication:
voluntary and involuntary intoxication, whether drug or alcohol, will be a defense when it negates the existence of an element of the crime.

May be valid defense to specific intent crime if it negates the specific intent.

(However, voluntary intoxication is no defense for general intent crime or to crimes involving malice, recklessness, or criminal negligence.)

Involuntary intoxication is a defense to a crime under the same circumstances as insanity.
jurisdiction -- us
US power to prosecute US nationals for crimes anywhere in world
jurisdiction - state
crime must have some connection to state:
1)The whole crime or part of the crime occurred there;
2) Conduct outside the state that involved a crime committed inside the state;
3) A conspiracy to commit a crime and an overt act occurred within the state (act doesn't have to be criminal, eg renting a car)
under doctrine of double jeopardy, could D be tried for same crime in 2 states?
yes -- if ea has jurisdicton
can state prosecute its citizen for crime w/ no connection to state?
no
can speech form the crime's actus reus?
yes -- e.g a threat, a conspiracy
"Voluntary” does not mean you wanted to do it. It means that ...
you have control over your act.
statutory language suggesting kinds of intent: “Intent to…” =__________________
“Knowingly or recklessly….” = _______________
No mens rea language = Think about___________________
specific intent; general intent, strict liability
merger
A defendant can be convicted of more than one crime arising out of the same act. However, a defendant cannot be convicted of two crimes when the two crimes merge into one. In that case, the defendant can only be convicted of one of them. Two categories of merger are lesser included offenses and the merger of an inchoate and a completed offense.
a defendant cannot be convicted of two crimes when the two crimes merge into one. In that case, the defendant can only be convicted of one of them. Two categories of merger are ...
lesser included offenses and the merger of an inchoate (attempt) and a completed offense. Exceptions to latter-- can be convicted for attempt + completed if accidentally targeted wrong person (transferred attempt);
conspiracy is NOT merged into completed crime
generally, attempt (merges / does not merge) into successful commission
merges --(exception--can be convicted for attempt + completed if accidentally targeted wrong person (transferred attempt))
generally, solicitation (merges / does not merge) into commission
merges
conspiracy (merges / does not merge) into commission
does not merge
T/F to prove a malice crime, pros must show D acted with ill will
false -- intentionally or WITH RECKLESS DISREGARD of an obvious known risk
T/F Acts done purposefully, knowingly, or negligently under the Model Penal Code are usually general intent crimes.
false MPC no longer recognizes the distinction between general and specific intent. Rather, it spells out what is required for each crime.
Which of the following is a defense to a strict liability crime?
A. The defendant did not know that she was violating the law.
B. The defendant did not intend to violate the law.
C. The defendant's act was involuntary.
D. A reasonable person would not have known that he was violating the law.
C
principals are those D's whose acts or omissions …
form the acts reus of the crime
accomplice -- theory under which those without___ but who helped plan or implement can be held liable for a crime; accomplices are persons who __________________ the principal either before or during the commission of a crime. The accomplice must act with the ____________________ of assisting the principal to commit the crime.
actus reus, assist, the intent
T/F a bystander who approves and cheers on a gang rape can be charged as an accomplice
False
T/F Accomplices can be convicted of crimes for which they couldn't be principals and even if the principal can’t be convicted.
True
A person who’s protected by a _______________ can’t be convicted as an accomplice in its violation, e.g., the underage partner in a sexual relationship.
statute
accessory after the fact
People who assist the defendant only after the completed crime are guilty of a separate offense. (e.g., “obstruction of justice” or “harboring a fugitive”).
AIDERS / ABETTORS AND CONSPIRACY
In addition to being guilty of the substantive crime, individuals who aid or abet a defendant to commit a crime may also be guilty of the separate crime of conspiracy , Conspiracy is not merged into commission of crime.
In the defense of Mistakes (of law/fact), D claims that some fact negates their ____
mens rea
Generally, mistake of law (is / is not ) going to succeed as a defense. Relevant exception for MBE: Mistake of law that goes to an element of __________________ i______.
specific intent (Will only occur in “FIAT” crimes, specific intent crimes ) e.g. guy who legit thinks the money in his draw ar work is his own -- can't be guilty of embezzlement or theft
T/F Reliance on lawyer's mistake of law is likely to succeed as a defense
False
Mistake of fact defense. First test is to determine ___
whether SL, general intent, or specific intent crime
General Intent crime Mistake of fact defense
Mistakes of fact are a defense to a general intent crime, only if the mistake is reasonable and goes to the criminal intent. ( Remember transferred intent doctrine! Killing William when a defendant thought he was killing Edward is not a “mistake of fact” in the sense that the law uses that term, because the mistake goes to the defendant’s intent and the defendant intended to kill.)
Specific intent crime Mistake of fact defense
Mistakes of fact are a defense to a specific intent crime whether or not the mistake is reasonable. The only question is whether the D actually held the belief
insanity defense, M’Naghten test
requires finding that the defendant did not know either the nature of his act or that the act was wrong (i.e., didn’t understand what he was doing at all or knew what he wa doing but didn't know it was wrong because of a mental disease).
Irresistible impulse test:
Defendant insane if he had a mental disease or defect that meant the defendant could not control himself.
Durham rule:
Defendant would not have committed the crime but for having a mental disease or defect. (D friendly test, hardly used now)
The Model Penal Code standard
Due to a mental disease or defect, the defendant did not have substantial capacity to appreciate the wrongfulness of his acts or to conform his conduct to the law.
TF A D who claims to be insane (can / cannot ) be compelled to submit to a psychiatric examination
can
T/F Involuntary intoxication is a defense to either a general or a specific intent crime, or a malice crime.
True
Voluntary intoxication occurs when a person intentionally ingests the substance, knowing that it was an intoxicant. It does not require that the person intends ….
to become intoxicated
Voluntary intoxication is a defense only to ______________________________ crimes , and only if it prevents the defendant from forming the mens rea, not if the defendant got drunk in order to commit the crime.
specific intent (FIAT crimes)
Terry is a member of a gang. As an initiation rite, she must break into her boyfriend’s house and steal one of his mother’s shoes. She knows she’s a timid soul, so she drinks six shots of bourbon to get her courage up. She’s now quite drunk. She then climbs through an open window and begins rummaging around in the closet. Unfortunately, while she’s weaving down the driveway with one of Mrs. Young’s pumps, Mrs. Young returns home. When she confronts Terry, Terry tries to hit Mrs. Young over the head with the shoe. But Terry’s hand-eye coordination is not so good, so she misses. Terry then jumps into her car and drives off. Tragically, she runs over Ursula and kills her. Suppose she’s charged with burglary, assault, and vehicular homicide. Analyze success of intoxication defense .
Starting point - this is voluntary intoxication.
If she’d simply gotten drunk with friends and then burglarized a house thinking it was hers, she could NOT be convicted of burglary because it is a specific intent offense. But because she drank in order to commit the burglary, she CAN be convicted.
Assault (with attempt to commit battery) is a specific intent crime, but it’s not a crime she got drunk in order to commit, so if she didn’t have the MENS REA, it is okay.
Vehicular homicide is not a SPECIFIC INTENT crime, so she’s guilty even though she had no desire to run over Ursula. Voluntary intoxication is a defense only to specific intent crimes.
conspiracy
Common law: (i) an agmt (ii) between two or more people (iii) to commit an unlawful act . Modern conspiracy statutes often add a fourth requirement: (iv) the performance of an overt act that furthers the conspiracy. The overt act can be either lawful or unlawful, as long as it furthers the conspiracy. MPC: Only the defendant must actually intend to commit the unlawful act (The other people with whom the defendant agrees can be undercover agents, for example.)
Knowing a crime is going to occur and doing nothing about it (does / does not) turn a bystander into a co-conspirator
does not
t/f If what the conspirators agree to do is legal, there can be a conspiracy if they think what they’re doing is wrong.
false -- has to be an unlawful purpose
At common law, can each conspirator can be convicted both of conspiracy and of all substantive crimes committed by_____acting in furtherance of the conspiracy?
any other conspirator (what bat MPC?)
T/F a conspiracy can take place absent any explicit conversation planning a crime
True -- agate can be implicit
What extra rqmt for conspiracy under MPC?
overt act that furthers the conspiracy
Can 1 person be guilty of conspiracy?
under CL no -- min 2; under UPC, yes -- only D needs intent, others can be undercover police etc(be aware of MPC vs CL if conspiracy fact pattern)
Can an individual withdraw from a conspiracy?
Under CL no -- crime complete at time of agate; under MPC, a conspirator can withdraw prior to the commission of any overt act by communicating her intention to withdraw to all other conspirators or by informing law enforcement ; or, , can defend if helped thwart success of conspiracy. A defendant who withdraws will remain liable for conspiracy, but not for any substantive crimes committed after his withdrawal.
Frank and Jerry are both brought up on conspiracy and other charges as co-Ds and are found guilty of all. They've never met. How is this possible?
individuals found guilty as part of a large or complex conspiracy need not all plan together, or even know each other
Attempt
. An attempt requires a specific intent to commit a particular criminal act plus a substantial step that moves you down the road towards actually committing the offense. e.g scoping out the bank security system (but not getting out of bed on the day of the robbery)

T/F Attempt is a general intent crime if the completed offense would be a general intent or malice crime.
T/F Though attempt is a specific intent crime,defenses like voluntary intoxication and unreasonable mistake of fact are available only if they would have been had the crime been completed.
false
T/F you can be convicted of bot conspiracy to commit murder and murder as to the same plans/vic
true
T/F you can be convicted of attempted murder and murder of the same person in the same episode
false
Solicitation
occurs when an individual intentionally invites, requests, or commands another person to commit a crime.
if a person solicits another person who accepts, we often have a ___ crime instead
conspiracy
T/F assisting someone to commit suicide is a homicide.
true (consent is not a defense)
If the MBE states that a killing was 1st degree murder watch out for ...
defenses availv for specific intent crimes but not other kinds of killing, e.g. voluntary intoxication, mistake with no reasonableness rqmt
If the question just says “murder” on the MBE it is common-law murder, a ___ crime.
malice
T/f an unreasonable mistake of fact is a defense for murder on the MBE
False -- murder means malice common law murder. Mistake of fact must be reasonable (and intox must be involuntary)
For homicide the D's actions must have ___ the death both __ and ___
actually , proximately
three common types of murder on the bar
first-degree murder, common-law murder, and manslaughter.
common law murder
Murder is an unlawful killing of another human being committed with malice aforethought. (Most killings on the MBE. Qs to ask: was it a lawful killing (e.g. execution)? what level of malice?)
4 types malice for CL murder
intent to kill; intent to inflict serious bodily harm; abandoned and malignant heart; felony murder
common law murder--intent to kill
defendant acted with the desire that the victim end up dead. The intent can be formed in a second; it doesn’t have to be pre-premeditated.
[Delete]


common law murder--intent to inflict serious bodily harm
defendant intended to hurt the victim badly, and the victim died.
common law murder--abandoned and malignant heart
defendant acted with a really cavalier disregard for human life and a death resulted. Defendant has to realize that his conduct is really risky, eg russian roulette
common law murder--felony murder
death occurred during the commission or attempted commission of a dangerous felony – the “BARRK” felonies of burglary, arson, killing, rape and robbery, and kidnapping. (Deaths caused by other felonies get the label of misdemeanor manslaughter.)A third person killed by the resister or police officer is FM (exception-->) UNLESS the jurisdiction applies an “agency” theory. (exception-->)A defendant is not guilty of felony murder for a co-felon killed by a resister or police officer.
T?F A third person killed by the resister or police officer during the commission of BARRK felonies is felony murder
False if jurisdiction applies agency theory; True otherwise
BARRK
felonies where felony murder rule applies. burglary, arson, killing, rape and robbery, and kidnapping
manslaughter
Voluntary manslaughter occurs when a defendant does intend to kill the victim, but has acted in the “heat of passion
test to determine if manslaughter voluntary
Is the situation one in which most people would act without thinking and without time to cool off. e.g man finds wife in bed w/ someone else
Involuntary manslaughter
A criminally negligent killing or killing of someone while committing a crime other than those covered by felony murder
A defendant who engages in criminally negligent conduct (which is more than just tort negligence) and causes a death is guilty of involuntary manslaughter (e.g., traffic deaths).
Misdemeanor manslaughter:
The defendant is engaged in some crime that does not rise to the BARRK level of felony and, as a result of that crime, someone dies. eg Dog off leash kills a toddler
larceny
Taking another's 1)personal property 2)without his consent and 3)with the intent to deprive him of it 4) permanently
picking up a product in a store and moving towards the door with intention of stealing it is IMMEDIATELY larceny
yes -- ANY movement of property -- though hard to prove until he gets to the door
“Borrowing” property, even without the owner’s consent, is not larceny, as long as you intend to _____________________
return it
Joyriding which results in the car being totalled, (is / is not) larceny
is not -- intent to return and damage doesn't matter
If D accidentally takes the wrong suitcase, which is a different color. is he guilty of larceny?
not if he honetly thought it was his ; larceny (like all theft crimes) is a specific intent crime, so defense of mistake of fact need not be reasonable
embezzlement
type of theft similar to larceny -- a defendant starts out having the victim’s consent to have the property but commits embezzlement by converting the property to his own use.
(??? this does not synch with lecture) embezzlement is a modern stat doctrine, closest to the common law doctrine ____ where the initial taking is not wrongful, so intention is not concurrent with taking. Embezzlement, unlike larceny, can involve __. States vary on whether it can involve ____ as well. exact same property must be returned-- Money is not ___
“continuing trespass," financial assets (including cash), personal property, fungible
False Pretenses:
type of theft -- Obtaining title to the personal property of another by an intentional false statement with the intent to defraud.
T/F -- false pretense theft can be based on a promise to pay you tomorrow
false. past or present event, not a future event. (e.g., you give me your cell phone, and I’ll give you this first edition book (with forged signatures) that is false pretenses. However, give me your cell phone and I’ll give you $100 tomorrow, caveat emptor. E.g., No-account/insufficient funds check.
larceny by trick
If by lying all I get is possession, (e.g., lend me your cell phone for a week, I’ll give you an alleged valuable book that is actually worthless).
theft
MPC-- larceny, false pretense, embezzlement under one statute, and property can be personal or of intangible property
robbery
larceny + assault, from her person/presENCE either by violence or putting her in fear of imminent harm
Larceny from another’s person or presence by force or threat of immediate injury.
o Presence: can be stolen in your car while you’re in it. o Not pick pocketing, snatching a chain is. o Threat must be immediate injury.
EXTORTION
Extortion involves threats of future harm (including non-physical harm) and the property need not be taken directly from the victim’s presence--NOT just a threat, has to get the goods, otherwise attempted
T/F larceny merges with robbery
true - b/c robber = larceny + assault
BURGLARY
Common-law burglary: (1) Breaking and (2) entering the (3) dwelling of (4) another (5) at night (6) with the specific intent to commit a felony once inside.
Modern law: (1) Breaking and (2) entering the (3) property (4) of another (5) with the specific intent to commit a felony inside.
TF entry by fraud meets breaking element of burglary
true
burglary after invited to a concert
If person in dwelling by permission, there is no burglary -- maybe larceny
If I break into your house to burn it down, burglary?
Yes -- any felony, not just theft
Is breaking into a biz burglary?
At CL no. At modern law yes
criminal battery
Battery is an (1) unlawful (2) application of force (3) to another person (4) that causes bodily harm or (5) constitutes an offensive touching
Battery is a general intent crime, so ____ or ___ are not defenses.
voluntary intoxication, unreasonable mistake,
T/F consent is a defense to battery
true
2 kinds of assault
1) Attempted battery (e.g., take a swing and miss) (general intent crime)
2) Intentionally making the victim think you’re about to commit a battery (specific intent crimw)
I act like I'm going to hit you during a robbery to get you to comply. Later, I claim voluntary intoxication. Valid defense?
Yes -- specific intent variety of assault
I try to hit you but miss after exchanging words in a bar. Later, I claim voluntary intoxication. Valid defense?
No -- general intent variety of assault
Kidnapping:
Common law: false imprisonment against person's will that involves moving the victim or concealing the victim in a secret place.
if there is a kidnapping and the victim dies accidentally, there is also a ___. If killed intentionally, ____
felony murder, homicide - intent to kill, probably 1st degree
rape
Forcible - Nonconsensual sex accomplished by force, threat of force, or when victim is unconscious
• Consent is a defense.
• It wasn’t at CL, but now rape is gender neutral and no longer a marital immunity
Extortion:
Common law: Larceny from another’s person or presence by threat of future harm
␣ Blackmail:
larceny by threat of embarrassment
receipt of stolen property: ␣
Knowledge that property is stolen
Possession of stolen property:
Knowledge that property is stolen and that you possess
(control) it
Control: ␣
within your reach, dominion & control (but need not necessarily be in
your pocket)
Forgery:
making a false writing or altering an existing writing with the intent to defraud ␣
Uttering:
offering a forged instrument with the intent to defraud.
• E.g., I want to steal from a bank. I made up a fake ID car (forgery). Then I go to the bank and I show my ID (uttering), the bank gives me money (larceny).
Arson: •
Common law: 1) Malicious (intentionally or recklessly) 2) burning (material wasting of the structure so that some part of the structure doesn’t exist anymore – NOT smoke damage)
3) a structure Of another.
Unless q specifies otherwise, assume arson extends to any structure.
PERJURY
 Perjury is the willful act of falsely promising to tell the truth, either verbally or in writing, about material matters.
The person must know what they are saying is false, must intend to say something that is false, and the falsity must go to a material matter.
SUBORNATION OF PERJURY
A person persuades someone else to commit perjury.
BRIBERY
 Common Law: the corrupt payment of something of value for purposes of influencing a official or other person in charge of a public or legal duty in the discharge of his official duties.

Modern law: Allows for bribery to be prosecuted even if the person being bribed isn’t a public official.

from outline: Under common law, bribery was a misdemeanor involving the corrupt payment of something of value for the purpose of influencing the action of an official in the discharge of his public or legal duties. Under modern law, bribery can be a felony and may extend to persons who are not public officials. Mutuality is not required. Further, the offering or taking of a bribe may constitute a felony as well. In some jurisdictions, failure to report a bribe constitutes a misdemeanor.
duress
defense that defendant committed a crime only because he was threatened by a third party and reasonably believed that the only way to avoid death or injury to himself or others can assert this defense.
 Good for all crimes other than intentional murder.
necessity
lecture /outline says limited to natural forces; if human cause, then duress. (not sure i buy this, given the narrowness of duress application, but most examples for duress seem to involve natural disasters)
prevention of crime defense
5. Prevention of Crimes Anyone can use deadly force to prevent the commission of a serious felony involving a risk to human life, and may use nondeadly force to prevent the commission of a felony or a breach-of-the-peace misdemeanor. A private citizen who makes a mistake, even a reasonable mistake, as to the commission of a serious felony (I suppose they mean he used deadly force) by the victim is not entitled to rely on this defense.