Case Name (Facts) & concepts Flashcards

Question

**NEGLIGENCE (Civil v. Criminal)** **State v. Hazelwood**

Answer 1

FACTS: D spilled 11 mill gallons of oil in ecologically sensitive waters. Statute violated when spill committed negligently. HOLDING: Civil v. Criminal negligence: * **_Criminal negligence_**: (gross negligence) Risk must be greater. Of such "nature and degree that failure to perceive it constitutes **gross** deviation from standard of care." * Does NOT require awareness of risk of harm * Requires more culpable mental state than ordinary (civil) negligence. * **_Civil negligence_** is sufficient to impose criminal penalties "ONLY when conduct at issue is something society can reasonably expect to deter." * "Fail to perceive substantial and unjustifiable risk that particular result will occur." D convicted of criminal negligence under **civil negligence** standard.

Answer 2

**Issue:** Civil and Criminal Negligence standards **Facts**: D cut nephews neck - child abuse (negligently causing child to be placed in situation that may endanger his/her life or health). **Holding**: (Gross) Criminal negligence is required if conduct morally culpable.

Answer 3

**Issue:** Mens Rea when statute is silent **Facts**: D posted graphically violent language/imagery towards wife. Crime to "transmit any communication containing any threat to injure person." Trial court erred in using a negligence standard. **Holding**: D must be AWARE of wrongdoing for criminal liability (Reckless). Not guilty.

Answer 4

**Issue:** Willful blindness **Facts**: D entered US with marijuana - deliberately avoided positive knowledge of marijuana being there. **Holding**: "Positive knowledge" is not required IF (1) Knowledge includes awareness of a high probability of existence of fact in question AND (2) D's ignorance was entirely a result of conscious purpose of avoiding truth.

Answer 5

**Issue:** Willful blindness **Facts**: D leased home to lessees he knew were professional gamblers. He did not know they used home for gambling. Willful blindness? **Holding**: Should not use ostrich instructions. D did not ACT to avoid learning truth. Not guilty.

Answer 6

**_Lesser-Crime Principle_**: by knowingly committing crime, D runs the risk of crime resulting in greater crime and in this case, mistake of fact is NOT a defense. **Example:** *State v. Benniefield* D possessed drugs within 300 feet of school. Guilty of KNOWING he possessed drugs and could be found guilty of being in school-zone even if he did not know OR should have known he was near school

Answer 7

**Issue:** Mistake of Fact/Lesser Crime Principle **FACTS**: D took 14 year old girl out of possession of father. Girl said she was 18, D believed she was 18, belief was reasonable. **HOLDING**: Mens rea of knowledge applies to the taking of the girl from fathers possession, but not to whether girl was 16. Taking 16 year old girl is "wrong in itself." Guilty.

Answer 8

**Issue:** Mistake of Fact **Facts**: 13 y/o girl had sex with D who entered into trailer where she slept. D thought she was 18 or over. **Holding**: Mistake of AGE is NOT defense for children under 14 (strong public policy protecting children that age). * May mitigate severity of punishment

Answer 9

**Issue:** Mistake of Fact **Facts**: D has sex with minor over 14yrs old. Truly and reasonably believed she was 18+. **Holding**: Reasonable belief WAS a defense (good faith) when child 15-17 -- he was still gulity, but he was eligible for probation.

Answer 10

**Issue:** Strict Liability **Facts**: D selling drugs (opium and coca) without following new regulation. D claim they did not know they were illegal. **Holding**: SL - statute is silent (usually not SL in this case) BUT "Congress weighed possible injustice of subjecting innocent seller to penalty against the evil of exposing innocent purchasers to danger from drug." Achievement of social betterment so SL.

Answer 11

**Issue:** Strict Liability **Facts**: company sold drugs that had been misbranded by manuf. **Holding**: NO mens rea needed with respect to whether D knew or should have known shipment was mislabeled. "In the interest of larger good, burden of person who would otherwise be innocent but stands in responsible relation to a PUBLIC DANGER." Burden on person who at least has opportunity of informing himself of conditions that may endanger consumers before "sharing in illicit commerce." * If D knows he is dealing with dangerous item, he is strictly liable.

Answer 12

**Issue:** Strict Liability **Facts**: D took used bomb casings that had been lying around and rusting for years. Illegal to "knowingly convert government property." Appellate held only need knowledge that you are taking others property and NOT that one is violating owner's rights. **Holding**: statute silence on Mens Rea DOES NOT mean SL, but because crime is so well defined to require "intent in larceny-type offenses." D must KNOW the facts that made the conversion wrong

Answer 13

Strict Liability in cases of Silent Mens Rea Statute ok when: 1. Public welfare offenses (usually cases of neglect or inaction where duty imposed). Even if D did not intend violation, D would be in position to prevent it with "no more care than society might reasonably expect." 2. New regulatory offense rather than old “morally bad” offenses 3. Controls a dangerous thing 4. Defendant has care & control over potential harm. Shifts burden of care to person in control, away from public/consumer 5. Small penalties/low reputational harms

Answer 14

**Issue:** Strict liability **Facts**: D had automatic gun (metal piece keeping it from being automatic was filed down). D did not know it was automatic. Statute silent on mens rea. *US v. Freed* - similar facts but unregistered grenade. D strictly liable even though did not know grenade unregistered (dangerous device -- put on notice when you have granades). **Holding**: "Gov wants to "avoid construing a statute to dispense with mens rea where doing so would criminalize a broad range of apparently innocent conduct." * Long tradition in US of lawful gun ownership (NOT grenades nor selling dangerous drugs). * Absent a clear statement from Congress that mens rea is not required, we should NOT apply public welfare offense rationale to interpret statute defining felony offense as dispensing with mens rea.

Answer 15

**Issue:** Strict Liability **Facts**: D sells undercover cop videos staring a woman who had shot some porn before she was 18, but the D didn't know which videos were ones before she turned 18. **Holding**: Interpreted the knowingly to apply to both elements (distribute explicit media and that the media depticts minors). If the statute were ambigious (as Scalila argued), it would've been unconstitutional.

Answer 16

**Issue:** Mistake of Law FACTS: D, a federal prison guard, possessed unlicensed loaded pistol. D knew statute which that exempted "peace officers as defined in xyz may possess loaded firearm." D misinterpreted statute as meaning he could also possess. **Holding**: "Where the gov is not responsible for error (there is none except in D's own mind), mistake of law should NOT be available as an excuse." Otherwise, foster lawlessness and encourage ignorance.

Answer 17

Mistake of Law generally is NO defense * No Defense for Individual misinterpretation (Marrero) * Mistake affects mens rea (offense may require knowledge) (Smith, Varszegi) * Defense if mistake due to official document/advice that is incorrect: "person relies on law itself, and later its determined there is mistake in law itself." Person not liable for gov's mistake.

Answer 18

**Issue:** Mistake of Law **Facts**: D damaged wall panels and floor boards that he had installed as tennant. Didn't realize they actually belonged to the landlord after he installed them. **Holding**: Mistake of law (as to who owns property) IS valid defense. Knowingly destroyed, but did NOT know property being destroyed belonged to someone else.

Answer 19

**Issue:** Mistake of Law **Facts**: Tenant late on rent; landlord (D) picked lock to office, took two computers, and sold them to replace rent - illegal. **Holding**: D NOT culpable because needed INTENT to deprive tenant of property. MOL that landlord had lawful claim to P's property. D had subjective belief that what he did was legal - need not show mistaken claim of right was reasonable so long as in good faith.

Answer 20

**Issue:** Mistake of Law **Facts**: Single woman traveled to NV with D (who was married), and D filed for divorce from wife in NV (invalid) and married single woman. When returned from NV, guilty of being with married person - honest belief that divorce was valid. **Holding**: mens rea of knowledge. MOL is defense (thought guy was divorced because did not understand how law applied).

Answer 21

**Issues:** MOL, Willfully & Knowingly **Facts**: Convicted under "willful tax evasion;" D thought he owed no taxes based on some fringe literature. Willfull & Knowingly reqruied he 1. Knew the duty and 2. Deliberately did not perform. **Holding**: Tax law violations have exception with mistake of law since so complex and difficult to comprehend obligations (subjective mistake of law is a defense). SCOTUS said that the belief need not be objectionally reasonable, but the crazier it gets the less likely a jury will find the defendant held the knowledge in good faith -- sent back to circuit, and he's convicted.

Answer 22

**Issue:** Mistake of law **Holding:** MOL NOT DEFENSE - dangerous items * Ct says you only need to know you are TRANSPORTING corrosive liquids, NOT that you are violating reg.

Answer 23

**Issue:** Mistake of Law **Facts**: crime to knowingly use food stamps in unauthorized way (per statute). Does this mean know of statute/its meaning OR know that you are doing the act which happens to violate statute. **Holding**: Need to know OF STATUTE and that you are violating it - MOL is defense. Otherwise, criminalize innocent acts.

Answer 24

**(MOL NOT DEFENSE - drugs)** **Facts**: crime to knowingly distribute controlled substance. D KNEW he was distributing, but didn’t know controlled substance. **Holding**: D would need to know of law if lesser crime (i.e. tax evasion) BUT drug distribution is different - "knowledge of law is NOT element of" drug distribution offense.

Answer 25

**(MOL NOT DEFENSE - dangerous items)** **Facts**: crime to willfully and unlawfully disposing of contaminated waste water. Need knowledge of law prohibiting? **Holding**: No; when handling dangerous chemicals, burden is on D and MOL is not a defense.

Answer 26

**_MOL Official Reliance_** (Traditional View) **Facts**: D unlawfully erected signs after State Attorney that it was not a violation. **Holding**: Official reliance was NOT a defense. People should not official reliance as excuse or else official advice would be "paramount to the law."

Answer 27

MOL Official Reliance under MPC **Facts**: D convicted for trespass and protest on naval base by trial, Appellate reversed due to 1st Amendment, gov filed petition for certiorari. While SCOTUS was considering whether to review case, D protested again. **Holding**: 1st protest not protected, but 9th circuit held that 2nd protest was ok since D relied on Appellate holding that protest was ok.

Answer 28

**MOL** It was **reasonably foreseeable** that SCOTUS might find against appellate because of division in interpretations (overruled Albertini).

Answer 29

**MOL Official Reliance** **Facts:** Representatives were told they could not use 5th ammendment during a hearing, but they could've, state prosocuted based on that testamony. **Holding:** Violation of **Due Process** to convict D for conduct that government representative stated was lawful

Answer 30

**Issue:** Mistake of Law **Facts**: need to register as felon when entering CA. Each day not registered is separate offense. **Holding**: "Actual *knowledge* of duty to register or proof of *probability* of such knowledge and subsequent failure to comply are necessary for conviction." **Dissent**: encourages ignorance as excuse

Answer 31

**Issue:** MOL/Ignorance **Facts**: D told by judge that sex offender must register in SC, but not told needs to register in other states too. Moved to NC and didn’t register. Didn’t know - defense? **Holding**: No - Lambert is diff because Lambert was (1) NOT *public safety measure*, AND (2) all states have sex offender registration regime so Bryant was **put on notice** that registration may be required.

Answer 32

**Issue:** MOL, Official reliance **Facts**: Judge mistakenly told D he could not have gun during 1 year probation period following arrest (not supposed to have one after year also). Took gun again after 1 year and got in trouble. **Holding**: NOT guilty because judge misled - denial of *Due Process.*

Answer 33

**Issue:** MOL, Official Reliance Similar facts to Leavitt, BUT court held "knowing violation only requires D to know of facts constituting offense, not that it was an offense."

Answer 34

1. **Legality** * MPC: "to give fair warning of nature of conduct declared to constitute an offense" * Due process (notice), foreseeability, ex post facto (prohibits retroactive application), legislative supremacy (legislature makes laws), vagueness/specificity 2. **Culpability** * MPC: "to safeguard conduct that is without fault from condemnation as criminal." 3. **Proportionality** * MPC: "to differentiate between serious and minor offenses."

Answer 35

**Issue:** Legality (transition of CL to Statutory Authority) **Facts**: D "unlawfully, maliciously" made phone calls to P's house with intent to harass, embarrass, and vilify. NO statute/case specifically addressing issue like this, but common law is sufficiently broad to punish this as misdemeanor any act which "openly outrages decency and is injurious to public morals." Guilty of misdemeanor? **Holding**: Guilty, BUT overruled because for act to be a crime, NEEDS to be defined as crime by LEGISLATURE and NOT courts.

Answer 36

**Issue:** Legality, notice **Facts**: D transported plane he knew was stolen. Law: crime to transport stolen "motor vehicle" (any self-propelled vehicle not designed for running on rails). Does airplane count? **Holding**: If legislature intended for plane to count, they would have said so/made it more clear. Need **FAIR WARNING** of what law intends to do.

Answer 37

**Issue:** Legality, statutory interpretation of lists, Legaslative intent **Facts**: fish undersized, threw them in sea after caught by officer. USC 1519: crime to "knowingly alter, destroy (etc.) any record, doc, or tangible object with intent to impede, obstruct, (etc.)." Fish tangible object? **Holding**: Trial stated "tangible object" was independent of surrounding words (record or doc). BUT, SCOTUS held: 1519 enacted as part of Sarbanes-Oxley Act (corporate accounting crimes) - therefore, "tangible" object must be object used to "record or preserve information." * "Plainness or ambiguity of statutory language is determined by reference to LANGUAGE AND SPECIFIC CONTEXT in which language is used AND broader context of statute as a whole."

Answer 38

1. **TEXT**: look at literal meaning of text (Dissent in Yates states we should stop at text and dictionary 2. **DICTIONARY**: reference dictionary if meaning is unclear - use meaning which makes sense 3. **SUPERFLUITY**: words in statute serve purpose and should not be interpreted to be superfluous 4. **CONTEXT**: Noscitur a sociis - a word is known by the company is keeps. Legislative history/intent. 5. **GENERAL DEFINED BY SPECIFIC**: general words, when followed by specific words, must be construed to embrace ONLY objects similar in nature to those objects enumerated by preceding specific words. 6. **LENITY**: If a statute is ambiguous, use lenient interpretation. 2 rules of lenity: * (1) use narrowest plausible interpretation (good for defendant) * (2) lenity doctrine used as LAST RESORT - only when tools for interpretation fail * MPC states lenity should NOT be considered AT ALL.

Answer 39

**Issue:** Legality **Facts**: ex-husband knees ex wife in the abdomen causing death of unborn infant. Murder is "unlawful killing of HUMAN BEING with malice aforethought." Is infant "human being?" **Holding**: Human being must be born alive. Legislature intended to exclude killing of unborn fetuses. Two reasons for this interpretation: 1. **Legislative supremacy** (legislature makes laws; NO common law crimes) 2. **Due Process** (even if court interprets murder to include feticide, could not apply to this case because no **fair warning** - terms must be **sufficiently explicit** so person knows what he's getting himself into). * ALSO, cannot punish someone under EXISTING statute if interpretation of it is **unforeseeable** ("judicial enlargement). * In our case, statute was never interpreted to include feticide, so NOT foreseeable. **Dissent**: D had adequate notice that his act could constitute homicide. Due process only precludes prosecution under a (1) **new statute insufficiently explicit** regarding the specific conduct proscribed or under (2) **preexisting statute** by means of an **unforeseeable judicial enlargement**.

Answer 40

**Issue:** Legality **Facts**: 2 African Americans sat in white-only area but there was no sign or notice of this fact. Told to leave and refused. **Holding**: unforeseeable to convict Ds; would deprive them of due process * Due process restrictions on courts include the same ex post facto restrictions applicable to legislatures. * Notice, foreseeability, right to fair warning

Answer 41

**Issue:** Legality, Bench updates concept at judgement **Facts**: D stabbed guy who died 15 months later. At the time, murder can only occur if person dies within 1 yr **Holding**: D convicted regardless because "original justifications for 1 yr rule were no longer applicable." * Modifies Bouie - Cts given considerable scope to change criminal law **retroactively** * Ex post facto does NOT apply to courts (because of legislative supremacy - no common law crimes) * "Alteration of a common law doctrine of criminal law violates the principle of Fair warning, and hence must not be given retroactive effect, *_only_* where it is "**unexpected and indefensible** by reference to the law which had been expressed prior to the conduct and issue.” * Abolition of year rule was NOT unexpected and indefensible - year rule is outdated relic of common law. * Outdated rule and never served a ground of decision in any murder prosecution

Answer 42

**Issue:** Porportionality **Facts**: D stole three golf clubs. Three strikes rule (D had been convicted of 4 serious or violent felonies in past) - 25 to life. **Holding**: Guilty - 3 strikes rule has desirable societal result. 8th amendment bans cruel and unusual punishment - contains "proportionality principle" that applies to noncapital sentences. **Other Examples:** * Harmelin* - IS constitutional. LWOP for 672 grams of cocaine * Solem* - NOT constitutional. LWOP for bad check for $100 * Rummel* - IS constitutional. LWOP for obtaining 120 through false pretense

Answer 43

**Issue:** Porportionality (principle of punishment) 1. Gravity of offense v. harshness of penalty 2. Sentences imposed on OTHER criminals in same jurisdiction: (Kennedy factors of Porportionality) 3. Sentences imposed for same crime in other jurisdictions

Answer 44

**Issue:** Porportionality 1. Primacy of legislature and variety of legitimate penological schemes * Scheme of deference (primacy of legislature) * Retribution * Deterrence * Rehabilitation * Incapacitation 2. Nature of federal system 3. Requirement that proportionality review be guided by objective factors 4. 8th Amendment DOES NOT require strict proportionality between crime and sentence - it forbids *ONLY extreme* sentences that are **grossly disproportionate** to crime (this factor is informed by factors 1-3).

Answer 45

**Issue:** Porportionality **Facts**: Juvenile committed 3 serious crimes - LWOP ok? Cruel and unusual under 8th Amendment? **Holding**: **Categorical approach** since it applies to entire class of offenders (juveniles). * LWOP Is disproportionate for juveniles who have not committed homicide. * Categorical approach gives juveniles chance to reform. * LWOP sentence for juvenile would get rid of rehabilitative ideal - incapacitation cannot override all other considerations. * **Roper**: juveniles have lessened culpability (brains not fully developed) and are less deserving of most severe punishments. If crime nonhomicidal, even less culpable. * **NOT case-by-case approach** for juveniles because: * Not likely that court could accurately distinguish the lifetime offenders from those with capacity to change * Does not take into account difficulties faced by counsel when representing juveniles (juveniles don’t trust adults)

Answer 46

**Issue:** Homicide, Negligent Homicide (Civil) **Facts:** Indian family didn't take baby to doctor despite tooth abcess, odor. Baby dies. **Holding:** Example of civil negligent homicide, it's rare, might only be in WA.

Answer 47

Failure to exercise ordinary caution (that which a reasonably prudent person would exercise in a similar situation) If ordinary (civil) negligence proximately causes death, satutory manslaughter

Answer 48

1. Gross deviation from reasonable person's standard of care

Answer 49

Recklessness standard -- concious disregard to serious risk. Welansky = recklessness by severity of danger Hall = triable issue of recklessness because signifigantly increased danger

Answer 50

"Provocation" (common law) or EED (MPC) Mens Rea: Purpose/Knowledge Lower degree of homicide if comitted under one of the recognized types of provocation.

Answer 51

Mitigating circumstances deesclate murder to Voluntary Manslaughter under the following 5 circumstances: 1. Extreme assult or battery upon D 2. Mutual combat 3. D's illegal arrest 4. Injury or serious abuse of close relative to D 5. Sudden discovery of spouse's adultery Might mitigate: Words IF accompained by conduct indicating present intent/ability to cause bodily harm to D

Answer 52

**Issue:** Voluntary Manslaughter, Murder **Facts:** Army couple, wife threatens D, D stabs wife to death. **Holding:** Words can constitute adequate provocation if they are accompanied **by conduct indicating a present intention and ability to cause D bodily harm.** No such conduct was exhibited here.

Answer 53

**Issue:** Voluntary Manslaughter **Facts:** D goes in to saloon shoots a guy in the ear, but doesn't kill him. **Holding:** Distinguised from **Giourard** that doesn't need to conform to one of the 5 (+1) provocations to mitigate the circumstance, that it should be what a reasonable man of reasonable fortitute could stand. Jury should decide on cooling time.

Answer 54

**Issue:** Homicide, Voluntary manslaugther **Two components:** 1. D acted under influence of EED (subjective) 2. There was a **reasonable explanation or excuse** (objective) for emotional disturbance; *reasonableness* is determined from the viewpoint of a person in **D's situation** under circumstances **D believed** them to be No cooling off time is considered

Answer 55

**Issues:** Provocation, EED **Facts:** D killed victim after seeing him with his (ex)wife in state of undress. **Holding:** D needs to prove by perponderance that he suffered EED, and that it doesn't violate due process to shift the burden of this element onto the D.

Answer 56

**Issue:** Provocation, EED **Facts:** Guy killed another guy for coming on to him, claimed heat of passion, was convicted of murder. **Holding:** Prosecution is required to prove D didn't act under EED (rather than shift the burden onto the D like they did in Patterson).

Answer 57

**Issues:** Recklessness+, Depraved indifference murder **Facts:** D loaded revolver in a way that he thought wouldn't fire, told friend to play russian roulette, D pulled the trigger 3x, gun went off on the 3rd time. Covicted of murder. **Holding:** Motive is always relavent but never necessary. D showed malice when he pointed a lodaed gun at a vital part of another and thrice pulled the trigger. This wanton disregard to human life is sufficent to establish malice.

Answer 58

**Issues:** Depraved indifference homicide **Facts:** D drove drunk in on comming traffic at 80mph in a 30mph zone. **Holding:** Establishes Murder from **malice aforethought -** gross deviation from reasonable standard of care, aware of death or serious bodily harm.

Answer 59

Mens Rea of DIM is recklessness, recklesseness is assumed if D is partaking or attempting to partake in other violent criminal activity (robbery, rape, kidnapping, etc..)

Answer 60

**Issues:** Depraved indifference Murder **Facts:** D drove to a bar got drunk, killed someone driving after. **Holding:** D was aware because he drove the car to the bar, and knew the hazards of driving drunk. This demonstrates **malice aforethought.**

Answer 61

**Issue:** Premeditated or Intentional Murder **Facts:** Guy shoots wife in back of head while she slept. **Holding**: No preperation time is required if killing is intentional/willfull/deliberate. Mens rea is Purpose/Knowledge

Answer 62

**Issue:** Premeditated murder **Facts:** victim snapped towel hitting D in nose, D stabbed V killing him. D convicted of Murder at trial. **Holding**: There needs to be a period of time to reflect before deliberately taking action to kill in order to constitute premeditation. In other words, you can't premeditate in the instant you're spontaniously killing someone.

Answer 63

Mens rea is Purpose/Knowledge There is no period of reflection time required. (Carroll)

Answer 64

**Issues:** Cooling time, mitigating murder to manslaugther **Facts:** D killed White Bear after drinking all day and learning that White Bear raped D's mother 20years earlier. **Holding:** 20years is a sufficent cooling time, and "rekindiling" is usually not a defense.

Answer 65

**Consent** is affirmative, conscious, voluntary, and revocable. It is requried of both parties. **MOF:** _Belief_ must be **actual** and **reasonable** to be a defense (Negligence standard) **NY state:** Burden on V to show lack of consent **Wisconsin**: Burden on D to show affirmative consent **CA:** somewhere in between.

Answer 66

**Issue:** Rape **Facts:** V drove D home from bar, D invited her up, she declined, he took her car keys, she went up, he choked her a little, they had sex. **Standard:** Pre-reform **Force:** Essential, D choked V lightly, but no major physical force **Non-Consent:** Burden on V. Can establish non-con in absense of force, IF can show _failure to resist because of **fear** so great that it would overpower teh victim or not dare resist_. Fear must be **reasonable/objective** **and** **of bodily harm/death** **Resistance:** Element of crime, burden on V to resist or show fear. The location and setting weren't sufficinent to establish fear of bodily harm to render resistance useless. **Mens Rea**: Strict Liability

Answer 67

**Issue:** Rape **Standard:** Pre-reform **Facts:** D (employer) invited V (employee) into office, sat her on chair, hooked up, she said no. He didn't use much physical force. **Force:** Must be strong enough to overcome **resisting victim.** Psychological force does not apply in this employment setting. **Non-consent:** Assumed unless otherwise shown by resistance **Resistance:** Element. No resistance, no force, no force no rape. **Mens Rea:** Strict liability

Answer 68

**Issues:** Rape **Standard:** Pre-reform **Facts:** Uniformed officer picked up hitchhiker, forced her to blow him. **Force:** Reasonable **threat of phsyical force**, **psychological force** might be sufficent if victim reasonably believed resistance is useless. **Non-Consent:** She said no. Didn't physically resist, but reasonable fear demonstrated satisfies resistance. **Resistance:** Fear covers this one too. **Mens rea:** Strict Liability

Answer 69

**Issues:** Rape **Standard:** Pre-reform **Facts:** D (Principal) threatened V (student), "no sex, no graduate". **Force:**"can't stretch the definition of force to include intimidation, fear, or apprehension." **Non-Consent:** without physical resistance or reasonable fear, V can't demonstrate non-consent. **Resistiance:** no force, no resistiance = no rape. **Mens rea:** Strict Liability

Answer 70

**Issue:** Rape **Standard:** Pre-reform **Facts:** V placed in D's foster care, D threatens to send V back to detention home if she didn't sex him. **Force:** Determined no force because no physical violance or fear thereof. **Non-Consent:** No force was used, so can't prove she didn't consent. **Resistance:** No physical resistance, or fear of phsyical harm if resisted. **Mens rea:** Strict liability.

Answer 71

**Issues:** Rape **Standard:** Post-Reform **Facts:** D lives in same house as V, D goes up to V at night, facts disputed -- either they were making out and she later became upset after penetration, or she was asleep when he penetrated her. **Force:** \*\*penetration alone is enough to satisfy force requirement\*\* extrinsic force not required. **Non-consent:** Burden now on D to establish reasonabe free and affirmative consent. D didn't achieve this. **Resistance:** No longer an element of the crime. **Mens Rea:** Negligence

Answer 72

**Issues:** Rape, MOF **Standard:** Post-reform **Facts:** Disputed. D & V hooked up in rough play. Each went seperate ways for dinner, afterward, D roughly pressured V for oral sex. V kneed him in the balls to get away and sought medical treatment. **Force:** PN requires force extrinsic to sex, but D used force, even though he thought it was consentual. **Non-Consent:** repeatedly asked to stop, but D thought it was part of the game. **Resistance:** Not needed in post reform jurisdiction. **Mens rea:** If force is used = SL, if no force = negligence.

Answer 73

**Issues:** Rape, MOF **Facts:** (V) nurse hangs with D (docs) at party, D tries to sex V but she says no, D takes V to house, they all have sex with V but she doesn't say no -- MOF defense. **Force:** D picked up V to get her into the car. **Non-Consent:**"once the V says no, proceed at your own peril" Knowledge will never be the standard b/c would eliminate MOF to be reasonable. *Williams* I'm gonna kill you if you don't fuck me -- she says ok **Resistance**: not required. **Mens rea:** Negligence

Answer 74

**But-for cause/actual cause/factual cuase:**"but for x, y wouldn't have occured". **Proximate Cause:** and event, or series of events, that the but-for cause put into motion.

Answer 75

**Issue:** Causation 1. Was D's actions the actual cause of the harm? 1. If but for D it wouldn't have happend, then PC 2. If would've even without D, no PC 2. Did D intend the harm? 1. If yes, then PC 2. If no, move to next question 3. Was D's action a substantial factor 1. If yes, next question 2. If no, no PC 4. Was the result highly extraordinary (were they unreasonable to forsee) in light of the circs? 1. If yes, no PC 2. If no, then PC

Answer 76

**Issue:** Causation **Facts:** D gets in high speed chase with cops, choppers end up colliding and killing 3. **Holding:** D was proximate cause of the cash, but lacked the requisite malice to convict of depraved indifference homicide.

Answer 77

**Issue:** Causation **Facts:** V dies of overdose from multiple drugs one of which was herion that D provided him. **Holding**: Too many potentially lethal drugs in system to say the herion killed him for sure. _Can't be a proximate cause if not the but for cause_.

Answer 78

**Issue:** Causastion **Facts:** V shot and wonded by someone else, D drives V out and dumps him in the middle of nowhere. **Holding:** Not enough to prove beyond a reasonable doubt that D's driving and dumping V was the but-for cause of V's death. _If not but-for, not proximate_.

Answer 79

**Issue:** Causation **Facts:** Mom didn't get medic for daughter until 4 hrs later, and daughter died. **Holding:** Prosecution needed to prove beyond a reasonable doubt that But-For mother not calling medic, daughter would've survived. Proved only that it was possible -- not guilty

Answer 80

**Issue:** Causation **Facts:** D set fire on 5th floor, seperate fire started on 2nd floor by someone else, fireman died of smoke from the fire D didn't start. **Holding:** 1. If no fire, fireman wouldn't have been there -- **but-for cause.** 2. Reasonably forseeable that fireman would respond and be in the vicinity of life-threatening danger. **prox cause** Cites Kibbie (hit by truck), says sufficently part of the cause of death to deny motion to dismiss indictment of depraved indifference homicide.

Answer 81

**Issue:** Causation **Facts:** V dies from getting hit by truck but was left out on the highway, drunk, without a coat, and in freezing weather. Defendants were liable. **Holding:** He wouldn't have been hit by a truck _but-for_ the fact the guys left him by the side of the highway. And _was reasonably forseeable_ that he'd be hit by a truck.

Answer 82

**Issue:** Causation **Facts:** candy/chewing gum factory, explosive dust everywhere, owners warned by insurer about it, but didn't clean it -- something caused the dust to explode, but no one knew what the "triggering event" was. **Holding**: No but-for cause was known. So not reasonably forseeable. Distinguish against Kibbe, setup is the same D in both cases put everyone in danger -- only difference is that we know the "triggering event" that killed the V in Kibbe.

Answer 83

**Issue:** Defenses **Four Factors (Peterson):** 1. Threat, actual or apparent, of deadly force 2. Threat unlawful and Imminent/immediate 3. Honest belief there was imminent peril/death/serious bodily harm (subjective) 4. Response/belief was reasonable (objective)

Answer 84

**Issues:** Self-defense, defenses **Facts:** D shot 4 youths on NYC subway after one said, "gimme $5" -- His intent was to kill, didn't suspect they had a gun, but based on pased experience of being "maimed" **Holding:** D honestly believed he was under threat of immediate dealdy force, jury found the belief was reasonable.

Answer 85

**Issues:** Defenses, Self-Defense **Deadly force ok if** 1. D believed (not-objective) deadly force ncessary to protect against serious bodily injury, death, kidnapping, or rape. If belief was wrong, and **recklessly or negligently formed**, may be guilty of reckless/negligent homicide. "Honestly and reasonably believes threat is imminent"

Answer 86

**Issue:** Self defense, defenses **Facts:** D supicious of V, called police, followed him, altercation, shot V in "self-dfense". **Holding:** Not guilty. Prosecution has to prove no question of self-defense beyond a resonable doubt. Couldnt do it.

Answer 87

**Issues:** Self-Defense, Defenses, BWS **Facts:** D (wife) stabbed V (husband) with scisors as V ran at her with hands raised. **Holding:** The objective standard needs to be considered from the D's perspective. Expert testimony ok if it helps jury see from D's perspective. In this case BWS justified the killing.

Answer 88

**Issues:** Self-defense, defenses, BWS **Facts:** D had BWS, after a series of escalating attacks, V goes to sleep, D takes kid to Gma's house, comes back with gun. Shoots V in back of head 3x. **Holding**: Not justified because guy was sleeping. Not imminent threat of death/serious bodliy harm.

Answer 89

**Issues:** Duress, Defenses **Facts:** Dr intimidated by tough guys to comit fraud. Caimed duress because he feared for his/wife's bodily safety. **Holding**: Toscano Rule: 1. Duress **excuses crime** _other than murder_ 2. because **coerced** by use/threat 3. of **unlawful force** against his person or that of another 4. which a person of r**easonable firmness** in his situation would have been unable to resist.

Answer 90

**Issue:** Duress, defenses **Objective standard**: in _non-murder situations_, corerced by use/threat of unlawful force, great enough to overcome a person of reasonable firmness in same situation: * "same situation" size, age, health, etc... not temperment * Sufficent duress excuses homicide

Answer 91

**Issues:** Duress, Defenses ONLY IF: 1. threat of harm which is present, imminent, and pending 2. sufficent to induce a "well-grounded" person to fear "death or SBH" * "future harm" -- D has **duty to escape** from control and seek assistance from cops. * Not a defense for murder * Threat of slight ingury or property distruction not sufficent

Answer 92

**Issues:** Duress, Defenses **Facts:** POW in Korea, threat of death march if didn't contribute to propaganda effort **Holding**: Not under duress, because _death/SBH **was not imminent or certian**_. Might've been able to survie the death march, and he wasn't put out on the march yet.

Answer 93

**Issues:** Duress, Defenses **Facts:** D told to swollow cocaine-filled baloons, cartel would kill his wife/kids if he didn't. **Holding:** _Immediacy:_ threats **not vague** or of **future** **harm** (satisfied) _Escapability:_ no **reasonable opportunity** to escape (QoF)

Answer 94

**Issue:** Attempt **Facts:** D had AIDS, raped 3 people w/o condoms. Charged with attempted murder. **Holding**: No. * Have to show **specific intent** to kill at time of rape. Compare to: *Hinkhouse* and *Caine* * **Magnitude of risk** to which V is **knowingly** exposed

Answer 95

**Issues:** Attempt **Facts:** D aware of his HIV, had unprotected sex, and concealed his status from partners, and said, "if I had HIV, I'd spread it to others". **Holding:** Sufficent to show intent to kill based on circumstantial evidence. Consider evidence: * **explicit statements** * specific actions showing **intent** and **precluding** other possible intents.

Answer 96

**Issues:** Attempt **Facts:** D jabbed V with syringe and yelled, "I'll give you AIDS" **Holding:** Yeah, guilty as F.

Answer 97

**Issue:** Attempt, intent **Facts:** D fired pistol into driver's side windo of semi in adjecent lane, killing the driver. Charged with intentional murder, despite not being able to see where the driver was. **Holding:** Under the proper circumstances, an intent to kill may be inferred from the use of a deadly weapon directed at a vital part of the human body.

Answer 98

**Issue:** Attempt Intent + SUBSTANTIAL STEP (which is strongly corrobarative of firmness of D's criminal intent Focus on what D has already done, not what's left to be done There can satill be substantial steps left to complete (broadens scope of attempt liabilty) Mere preparation does not count (see Joyce)

Answer 99

Mens Rea same as underlying crime

Answer 100

**So near to crime's accomplishment** that in **all reasonably probability** the crime itself would have been committed, **but for timely interference**.

Answer 101

**Issue:** Attempt, Dangerous Proximity Test **Facts:** D intended to rob a guy but never found him; cops arrested D, attempt or mere prep? **Holding:** Not attmept because the intended victim wasn't around the D or the location where the arrest was made.

Answer 102

**Issue:** Attempt First step is not sufficent and final step is not required to constitute attempt.

Answer 103

**Issue:** Attempt, Dangerous Proximity Test **Facts:** Undercover cop met D in parking lot, agreed to let D have sex with her 4yr old daughter for $200, but hadn't yet paid, he follows cop out of parking lot when he's arrested. Charged for solicitation and attempted rape. **Holding:** Convicted of solicitation, but dismissed the rape charge, "had yet to see the child, didn't know where the child was, and had not paid for the child." Looked at the steps needed to be taken, or the "distance or gap between the D's actions and the unachieved goal of the consummateed crime. The distance must be relatively short, the gap narrow, if teh D is to be gulty of criminal attempt."

Answer 104

**Issue:** Attempt Look at how clearly D's actions **clearly bespeak his intent.** _MUST_ be **Overt Acts** which are sufficent in themselves to declare guilt -- _CAN'T_ be **mere words** or **innocent/ambigious** Harder to convict than Dangerous Proximity test.

Answer 105

**Issue:** Attempt, Equivocality Test **Facts:** D threatened to kill Jeans, walked toward J and constable in field holding a rifle, D stoped to load rifle, J fled, constable disarmed D. **Holding:** Not guilty, "can't say with certianty whether D came to kill"

Answer 106

**Issue:** MPC Attempt **Facts:**"billtrap", guns nearby, arrested before could rob ATM (45-90 min for response from technician). **Holding:** the billtrap wasn't sufficent to show attempted robery. They had 90min to abandon, didn't take substantial step - there's a difference between setting a billtrap (which creates the potential) and moving toward victims with gun and mask. Distinguish against *Moore* wearing mask, golves, and concealed gun -- this was considered a substantial step.

Answer 107

**Issue:** MPC Attempt **Facts:** D flew to a city to buy a bunch of coke, dealer wouldn't show the drugs upon request, D left - got arrested. **Holding:** Not sufficent, D abandoned before taking substantial step (producing the money). Everything else was mere preperation. Motive for abandoning isn't relavent.

Answer 108

**Issue:** MPC Attempt **Facts:** Undercover cop offered underage daughter for sex to D, D planned to take offer, sent sexually explicit pics, told agent to "prepare gilrs with BC", but refused to purchase flight. **Holding:** Convicted anway -- "plan for travel not necessary for substantial step" Discussion of specific travel details and messages to agent re plan were enough.

Answer 109

**Issue:** Attempt, Renunciation/Abandonment **Facts:** Robs gas station, only gets $50, says, haha JKJKJK **Holding:** Guilty. Abandonment at this point wasn't a defense

Answer 110

**Issue:** Attempt, Abandonment/Renunciation Under circumstances manfisting a voluntary and complete renunciation of the criminal purpose. The burden is on the defendant.

Answer 111

**Issue:** Attempt, Abandonment **Facts:** Ds attempt rape **McNeal:** guilty, because abandoned due to unforseen resistance **Ross:** not guilty, because victim pursuaded him to stop, and he did so of his own free will.

Answer 112

**Issue:** Attempt, Impossability Factual impossibility is not a defense -- if D tried to do something that turned out to be impossible, it's not a defense. (picking an empty pocket, still attempted picking) Legal impossability is a defense -- if D believes the conduct is illegal but it's not, then no crime has been done. (picks a pocket, but turns out it's his own)

Answer 113

**Issue:** Impossability **Facts:** D bought cloth he thought was stolen, but turns out it was perfectly legally obtained.

Answer 114

**Issue:** Impossability **Facts:** D in prison sending letters to Sister; crime to send letters from prison if you don't have knowledge & consent from warden. D **thought** the warden didn't know, but in fact the warden did know and allowed currior to "pretend cooperation" to D's plan. **Holding**: No offense comitted.

Answer 115

**Issue:** Impossability & MOF? **Facts:** D selling "herion" but it's actually some legal garbage. **Holding:** Very confusing. Legal impossabilty: D's acts of selling non-controlled substance was not a crime. (not guilty) Factual impossability: D's objective (to sell herion) only failed due to circumstances unknown to D (guilty)

Answer 116

**Issue:** Impossability **Facts:** Guy with HIV spits on a cop, bites him, and yells "die from what I have" **Holding:** MPC case so subjective belief is the only thing that matters. D believed it was possible, and intended to kill the cop. ATTEMPTED MURDER

Answer 117

**Issue:** Impossability (MPC) **Facts:** D shoots guy who's already been shot and lying still on the floor. Not clear if guy was already dead from the previous shots. So can't say murder, but maybe attempted murder? **Holding**: doesn't matter if the victim was already dead, would've been murder if the circ's were as the guy thought them. Gulty.

Answer 118

**Issues:** Conspiaracy, Parallel actions **Facts:** Crips and Bloods, D (Blood) and others talking smack to Crips, D and others drew guns and shot, no evidence anyone was wounded **Holding:** Not a consiparcy, talking smack, drawing guns, showing up prepared for a gunfight, etc... don't necessailry require horiziontal agreement. Being a member of a gang isn't sufficent.

Answer 119

**Issue:** Conspiracy 1. need not be **express** 2. Parallel action is not enough unless **plus factors**: 1. Common Motive 2. Parallel acts against self interest 3. Communications (high-volume, frequency) 4. New weird behaviour for "no other decernable reason" 3. **Cover-up** isn't sufficent 4. If actions are **equally consistient** with non-conspiracy, cannot draw inference for conspiaracy (tie goes to D)

Answer 120

**Issue:** Conspiracy **Facts:** Parents allowed child to sleep with family friend/known sex offender; financially relied on this friend, locked child in room with him; signed safety plan, witnessed abuse did not act. **Holding:** Guilty of accomplice liability, but not conspiracy. Lacked actual agreement or intent to conspire. **Dissent:** Implied agreement -- didn't disclose sleeping arragnements, willfully disregarded safety plan. Overt acts: lies to investigators in furtherance of conspiracy

Answer 121

**Issues:** Conspiracy elements **Facts:** Agreement to foment Irish rebellion **Holding:** COMMON LAW STANDARD (minority) The plot is an act in itself -- overt act not needed. Conspiracy matter of inference deduced from criminal acts in pursuance of agreed criminal purpose.

Answer 122

**Issue:** Conspiracy **Standard:** MPC, Majority Overt act is equivocal or prepratory in the law of attempts; demonstrating conspiracy is not "resting solely in the minds of conspirators nor fully completed and no longer in existence." **Other:** require Overt Act to be SUBSTANTIAL of character that minifests purpose on part of the actor that the object of conspiracy should be completed **Traditional:** Any overt act (sometimes just the agreement) suffices for conspiracy -- agreement must be concrete and unambiguous, purpose relitevly firm

Answer 123

**Issue:** Conspiracy **Facts:** Guys on phone agree that witness needs to be killed, AND discuss how to find him **Holding:** Shows intent and overt act (how to find him)

Answer 124

**Issue:** Conspiracy, Mens Rea **Facts:** D provided phone service, prostitutes were signfigant chunk of customer base, the prostitutes had a high volume of calls and D knew they were using it for prostitution purposes. **Holding:** He didn't have the requisite INTENT to further the crimes of his customers. He didn't have a stake in their venture. He didn't charge them more for the service than his other customers.

Answer 125

**Issue:** Conspiracy, Mens Rea **Facts:** D sells sugar and yeast -- charged with conspiracy of moonshine **Holding:** Knowledge of use of service/product is insufficent to establish INTENT. Didn't have sufficent evidence that D was unusually profiting from the sales to moonshiners. D didn't have a stake in their venture.

Answer 126

**Issue:** Conspiriacy If inherent susceptibility to harm/illegal use: 1. Increases liklihood that seller **Knows** used illegaly 2. by selling, **INTENT** to futher/promote illegal use, Must be more than a suspicion; informed, interested cooperation, stimulation, instigation; stake in venture (not essential but relavent)

Answer 127

**Issue:** Conspiracy, Mens Rea **Direct evidence:** seller gives **advice** to buyer re how to use for illegal enterprise **Infer Intent from Knowledge:** 1. Stake in venture 2. No legitimate use for goods/services 3. Volume of business is grossly disproportionate to any legitimate demand 4. Sales for illegal use ammount to high proportion of seller's total business

Answer 128

**Issue:** Conspiracy, Mens Rea **Facts:** D sold plane to two guys who used it for drug smuggling. **Holding:** Used Lauria analysis; guilty of conspiracy. Because sold plane at 2x market value, interior of plane had no legitimate use, no registration, was told the plane would be used for smuggling.

Answer 129

**Issue:** Conspiracy, Mens Rea **Facts:** D selling large amounts of mneth every month (too much for self-consumption) **Holding:** NOT guilty of conspiracy. D KNEW buyer was probably reselling, but INSUFFICENT to infer intent.

Answer 130

**Issue:** Conspiracy, Mens Rea **Facts:** D possessed unregistered hand granades -- but did not know they were unregistered. **Holding:** Minority (not MPC), guilty despite lack of CORRUPT MOTIVE or INTENT to engage in conduct KNOWN to be wrongful. Imposed SL because granades are so harmful he was on notice.

Answer 131

**Issue:** Conspiracy, Mens Rea Minority view (not MPC) To be a criminal conspiracy, must be motivate by a CORRUPT MOTIVE or INTENT to engage in conduct KNOWN to be wrongful Evidence of GOOD FAITH and IGNORANCE of CRIMINALITY makes consparicy not criminal.

Answer 132

**Issues:** Conspiracy, Mens Rea Intent required even for SERIOUS crimes **Camerano:** D allowed tenant to farm marijuana on property to pay rent. D KNEW but not sufficent to meet INTENT standard **Scotti:** D threatened E if he didn't pay back $50k, E asked R to help arrange mortgage to get money -- R knew extortion but agreed. R NOT guilty b/c lacked requisite intent.

Answer 133

**Issues:** Conspiracy, Accessorial liability **Overt act** of ONE participant can be attributed to all co-conspirators. More likely the greater the crime. **Elements:** 1. Conspiracy 2. Crime (if carried out, attempt if not) 3. Any acts (by all participants) in furtherance of conspiracy must be: 1. Reasonably forseeable (objective) as a NECESSARY or a NATURAL CONSEQUENCE Intent established by formation of conspiracy (mens rea DOES NOT MATTER) NOT RETROACTIVE, but past acts might be used as evidence.

Answer 134

**Issue:** Conspiracy, Pinkerton Liability **Facts:** D at party, gets into arguement. Leaves, recruits two friends, they pick up guns, return to party. D gets into fight, D's friends start shooting into crowd. **Holding:** D guilty of substantive crimes of his friends (and aggrivated assult)

Answer 135

**Issues:** Conspiracy, Accessorial Liability **Facts:** drug deal & undercover agent killed **Holding:** coconspirator can be guilty of substantive crime even if not part of the scope of initial conspiracy, when: REASONABLY FORSEEABLE + NOT minor player + Actual Knowledge = Guilty of Substantive crime _ReaForble_: large quantity of drugs & money, aware that some carreid weapons and would kill to protect conspiracy _Not Minor:_ lookout, middleman, & venue owner/translator _Actual K:_ had guy, others knew they'd use force to stay out of prison

Answer 136

**Issue:** Conspiracy, Accessorial Liability **Facts:** D and Bluitt went to kill Chuckie, find different guy, Bluitt goes to kill guy anyway, D protests. **Holding:** Reasonably forseeable that might kill someone else when you're out to kill -- D knew of Bluitt's hardheaded and erratic nature.

Answer 137

**Issue:** Conspiracy, Accessorial Liability **Facts:** Felony for someone with previous felony to possess gun; D in car with coconspirator who lawfully had gun **Holding:** Not liable, too broad application of Pinkerton. **Distinguish against:** *Newman* same facts, but unlawful posession of firearm. Guilty.

Answer 138

**Abandonment:** exculpate from FUTURE crimes, must notify police and act consistently with abandonment of conspiracy (some jurisdictions only require you to notify co-conspirators) **Renunciation:** MPC allow complete defense (even for PAST crimes) ONLY IF: 1. Circumstances **manifest renunciation** of actor's criminal purpose AND 2. Actor SUCCESSFULLY **thwarts** conspiracy (some states only require substantial effort to thwart)

Answer 139

**Issue:** Punishment **Facts:** D stole mail, was sentanced to incarceration and 3 years probation. Also shamed with sandwich board. **Holding:** Doesn't violate the Sentance Reform Act. Sentance was **reasonably related** and involved no greater deprivation of liberty than reassonably necesssary to **deter, protect,** and provide **education/corecction**

Answer 140

**Retribution:** backward looking, he deserves it. Punish the blameworthy as an end in itself **Utilitarian**: future harm reduction

Answer 141

1. **Deterrence** - consiquences to blamworthy actions 2. **Rehabilitation** - fix the underlying issue 3. **Incapacitation** - isolate the offender from society/opportunity to do harm

Answer 142

**Homicide, EED** D goes nuts after lady says she's not falling for him, stabs her then dunks her in bathtub to make sure. **Holding:** EED is allowed, but has two prongs -- one subjective and one objective. in this case, he was subjectivly under EED, but too bizzare to mitigate murder to manslaughter.

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