Crim. Law Flashcards
(194 cards)
1
Q
Jurisdiction
A
Generally, a state has jurisdiction over a crime if: any act constituting an element of the offense was committed in the state, an act outside the state caused a result in the state, the crime involved the neglect of a duty imposed by the law of the state, there was an attempt or conspiracy outside the state plus an act inside the state, or there was an attempt or conspiracy inside the state to commit an offense outside the state.
2
Q
Sources of Criminal Law
A
There is no federal common law of crimes; all federal crimes are statutory. American criminal law included the English common law of crimes unless repealed expressly or impliedly by statute. The modern trend is to abolish common law crimes either expressly by statute or impliedly by the enactment of comprehensive criminal codes.
3
Q
Theories of Punishment
A
Theories justifying criminal punishment include incapacitation of the criminal, special deterrence of the criminal, general deterrence of others, retribution, rehabilitation, and education of the public.
4
Q
Classification of Crimes
A
There are two classes of crimes: felonies and misdemeanors. Felonies are generally punishable by death or imprisonment for more than one year; other crimes are misdemeanors.
5
Q
Vagueness and Other Constitutional Limitations
A
Due process requires that a criminal statute not be vague. There must be (i) fair warning (i.e. a person of ordinary intelligence must be able to discern what is prohibited), and (ii) no arbitrary and discriminatory enforcement. The Constitution places two substantive limitations on both federal and state legislatures _ no ex post facto laws and no bills of attainder.
6
Q
Interpretations of Criminal Statutes
A
Criminal statutes are considered strictly in favor of defendants. If two statutes address the same subject matter but dictate different conclusions, the more specific statute will be applied rather than the more general. The more recently enacted statute will control an older statute. Under new comprehensive codes, crimes committed prior to the effective date of the new code are subject to prosecution and punishment under the law as it existed at the time the offense was committed.
7
Q
Common Law Merger
A
At common law, if a person engaged in conduct constituting both a felony and a misdemeanor, she could be convicted only of the felony. The misdemeanor merged into the felony.
8
Q
Modern Law _ No Merger
A
There is no longer any merger except that one who solicits another to commit a crime may not be convicted of both the solicitation and the completed crime (if the person solicited does complete it). Similarly, a person who completes a crime after attempting it may not be convicted of both the attempt and the completed crime. Conspiracy, however, does not merge with the completed offense.
9
Q
Rules Against Multiple Convictions for the Same Transaction
A
Double jeopardy prohibits trial or conviction of a person for a lesser included offense if he has been put in jeopardy for the greater offense. However, a court can impose multiple punishments at a single trial where the punishments are for two or more statutorily defined offenses specifically intended by the legislature to carry separate punishments, even though the offenses arise from the same transaction and constitute the same crime.
10
Q
Elements of a Crime
A
A crime almost always requires proof of a physical act (actus reus) and a mental state (mens rea), and concurrence of the act and mental state. It may also require proof of a result and causation.
11
Q
Physical Act
A
Defendant must have either performed a voluntary physical act or failed to act under circumstances imposing a legal duty to act. An act is a bodily movement.
12
Q
Omission as an Act
A
Failure to act gives rise to liability only if: (i) there is a specific duty to act imposed by law; (ii) the defendant has knowledge of the facts giving rise to the duty to act; and (iii) it is reasonably possible to perform the duty. A legal duty to act can arise from a statute, contract, relationship between the defendant and the victim, voluntary assumption of care by the defendant for the victim, or the creation of peril for the victim by the defendant.
13
Q
Possession as an Act
A
Criminal statutes that penalize the possession of contraband generally require only that the defendant have control of the item for a long enough period to have an opportunity to terminate the possession. Possession need not be exclusive to one person, and possession also may be constructive, meaning that actual physical control need not be proved when the contraband is located in an area within the defendant_s dominion and control.
14
Q
Possession State of Mind Requirement
A
Absent a state of mind requirement in the statute, the defendant must be aware of his possession of the contraband, but he need not be aware of its illegality. However, many statutes add a state of mind element to possession crimes. Under such statutes, the defendant ordinarily must know the identity or nature of the item possessed. On the other hand, a defendant may not consciously avoid learning the true nature of the item possessed; knowledge may be inferred from a combination of suspicion and indifference to the truth.
15
Q
Specific Intent
A
A crime may require not only the doing of an act, but also the doing of it with a specific intent or objective. The existence of a specific intent cannot be conclusively imputed from the mere doing of the act, but the manner in which the crime was committed may provide circumstantial evidence of intent. [Never forget that attempt is a specific intent crime _ even when the crime attempted is not. Thus, although murder does not require a specific intent to kill, attempted murder requires the specific intent to kill. Without that intent, a defendant is not guilty of attempted murder.]
16
Q
Solicitation Mental State
A
Specific intent; Intent to have the person solicited commit the crime.
17
Q
Attempt Mental State
A
Specific intent; Intent to complete the crime.
18
Q
Conspiracy Mental State
A
Specific intent; Intent to have the crime completed.
19
Q
First Degree Premeditated Murder
A
Specific intent; Premeditation.
20
Q
Assault Mental State
A
Specific intent; Intent to commit a battery.
21
Q
Larceny and Robbery Mental State
A
Specific intent; Intent to permanently deprive the other of his interest in the property taken.
22
Q
Burglary Mental State
A
Specific intent; Intent to commit a felony in the dwelling.
23
Q
Forgery Mental State
A
Specific intent; Intent to defraud.
24
Q
False Pretenses Mental State
A
Specific intent; Intent to defraud.
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Embezzlement
Specific intent; Intent to defraud.
26
Malice
The intent necessary for malice crimes (common law murder and arson) sounds like specific intent, but it is not as restrictive; it requires only a reckless disregard for an obvious or high risk that the particular harmful result will occur. Defenses to specific intent crimes (e.g. voluntary intoxication) do not apply to malice crimes.
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Common Law Murder Mental State
Malice.
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Arson Mental State
Malice.
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Battery Mental State
General intent.
30
Rape Mental State
General Intent.
31
Kidnapping Mental State
General intent.
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False Imprisonment Mental State
General intent.
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Statutory Rape Mental State
Strict liability.
34
Selling Liquor to Minors Mental State
Strict liability.
35
Bigamy Mental State
Strict liability.
36
General Intent
Almost all crimes require at least general intent, which is an awareness of all factors constituting the crime; i.e. defendant must be aware that she is acting in the proscribed way and that any required attendant circumstances exist. The defendant need not be certain that all the circumstances exist; it is sufficient that she is aware of a high likelihood that they will occur.
37
Inference of General Intent from Act
A jury may infer the required general intent merely from the doing of the act.
38
Transferred Intent
The defendant can be liable under the doctrine of transferred intent where she intends the harm that is actually caused, but to a different victim or object. Defenses and mitigating circumstances may also usually be transferred. The doctrine of transferred intent applies to homicide, battery, and arson. It does not apply to attempt. [A person found guilty of a crime on the basis of transferred intent is usually guilty of two crimes: the completed crime against the actual victim and attempt against the intended victim.]
39
Motive Distinguished
Motive is the reason or explanation for the crime; it is different from intent to commit the crime. Motive is immaterial to substantive criminal law.
40
Strict Liability Offenses
A strict liability or public welfare offense is one that doe not require awareness of all of the factors constituting the crime; i.e. the defendant can be found guilty from the mere fact that she committed the act. Common strict liability offenses are selling liquor to minors and statutory rape. Certain defense, such as mistake of fact, are not available.
41
Model Penal Code Analysis of Fault
The model penal code eliminates the common law distinctions between general and specific intent and adopts the following categories of intent: (1) Purposely (subjective standard) (2) Knowingly (subjective standard) (3) Recklessly (subjective standard) (4) Negligence (objective standard)
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Purposely
A person acts purposely when his conscious object is to engage in certain conduct or cause a certain result.
43
Knowingly
A person acts knowingly when he is aware that his conduct is of a particular nature or knows that his conduct will necessarily or very likely cause a particular result. Knowing conduct satisfies a statute requiring willful conduct.
44
Recklessly
A person acts recklessly when he knows of a substantial and unjustifiable risk and consciously disregards it. Mere realization of the risk is not enough. Thus, recklessness involves both objective (_unjustifiable risk_) and subjective (_awareness_) elements. Unless the statute specifies a different degree of fault or is a strict liability offense, the defendant must have acted at least recklessly to be criminal liable.
45
Negligence
A person acts negligently when he fails to be aware of a substantial and unjustifiable risk, where such failure is a substantial deviation from the standard of care. To determine whether a person acted negligently, an objective standard is used. However, it is not just the reasonable person standard that is used in torts. The defendant must have taken a very unreasonable risk.
46
Vicarious Liability Offenses
A vicarious liability offense is one in which a person without personal fault may nevertheless be held liable for the criminal conduct of another (usually an employee). The trend is to limit vicarious liability to regulatory crimes and to limit punishment to fines.
47
Enterprise Liability
At common law, a corporation does not have capacity to commit crimes. Under modern statutes, corporations may be held liable for an act performed by: (i) an agent of the corporation acting within the scope of his office or employment; or (ii) a corporate agent high enough in hierarchy to presume his acts reflect corporate policy.
48
Concurrence of Mental Fault with Physical Act
The defendant must have had the intent necessary for the crime at the time he committed the act constituting the crime, and the intent must have actuated the act.
49
Causation
Some crimes require result and causation.
50
Parties to a Crime _ Common Law
At common law, parties to a crime included the principal in the first degree (person who actually engaged in the act or omission that constitute the offense or who caused an innocent agent to do so), principal in the second degree (person who aided, commanded, or encouraged the principal and was present at the time), accessory before the fact (person who assisted or encouraged by was not present), and accessory after the fact (person who, with knowledge that the other committed a felony, assisted him to escape arrest or punishment). At common law, conviction of the principal was required for conviction of an accessory and the charge must have indicated the correct heory of liability.
51
Parties to a Crime _ Modern Statutes
Most jurisdictions have abolished distinctions between principals in the first degree and principals in the second degree or accessories before the fact. All such parties to the crime can be found guilty of the principal offense. For convenience, however, think of one who actually engages in the act (either personally or through an innocent agent) or omission as the principal and the other parties as accomplices. Note: An accessory after the fact (one who assists another knowing that he has committed a felony in order to help him escape) is still treated separately. Punishment for this crime usually bears no relationship to the principal offense.
52
Mental State _ Intent Required
To be guilty as an accomplice, most jurisdictions require that the person give aid, counsel, or encouragement to the principal with the intent to encourage the crime. In the absence of a statute, most courts would hold that mere knowledge that a crime will result is not enough, at least where the aid given is in the form of the sale of ordinary goods at ordinary prices. However, procuring an illegal item or selling at a higher price because of the buyer_s purpose may constitute a sufficient stake in the venture to constitute intent.
53
Scope of Liability
An accomplice is responsible for the crimes he did or counseled and for any other crimes committed in the course of committing the crime contemplated to the same extent as the principal, as long as the other crimes were probable or foreseeable.
54
Inability to Be Principal No Bar to Accomplice Liability
One who may not be convicted of being a principal may be convicted of being an accomplice.
55
Exclusion from Liability for Members of a Protected Class
Members of the class protected by a statute are excluded from accomplice liability.
56
Exclusion from Liability for Necessary Parties Not Provided For
A party necessary to the commission of a crime, by statutory definition, who is not provided for in the statute is excluded from accomplice liability.
57
Exclusion from Liability for Withdrawal
A person who effectively withdraws from a crime before it is committed cannot be held guilty as an accomplice. Withdrawal must occur before the crime becomes unstoppable. (i) repudiation is sufficient withdrawal for mere encouragement. (ii) Attempt to neutralize assistance is required if participation went beyond mere encouragement. Notifying the police or taking other action to prevent the crime is also sufficient.
58
Elements of Solicitation
Solicitation consists of inciting, counseling, advising, urging, or commanding another to commit a crime, with the intent that the person solicited commit the crime. It is not necessary that the person solicited respond affirmatively.
59
Defenses to Solicitation
It is not a defense that the person solicited is not convicted, nor that the offense solicited could not in fact be successful. In most jurisdictions, it is not a defense that the solicitor renounces or withdraws the solicitation. The MPC recognizes renunciation as a defense if the defendant prevents the commission of the crime, such as by persuading the person solicited not to commit the crime. However, it is a defense that the solicitor could not be found guilty of the completed crime because of a legislative intent to exempt her.
60
Merger of Solicitation
If the person solicited commits the crime solicited, both that person and the solicitor can be held liable for that crime. If the person solicited commits acts sufficient to be liable for attempt, both parties can be liable for attempt. If the person solicited agrees to commit the crime, but does not even commit acts sufficient for attempt, both parties can be held liable for conspiracy. However, under the doctrine of merger, the solicitor cannot be punished for both the solicitation and these other offenses.
61
Elements of a Conspiracy
A conspiracy requires (i) an agreement between two or more persons; (ii) an intent to enter into the agreement; and (iii) an intent by at least two persons to achieve the objective of the agreement. A majority of states now also require an overt act, but an act of mere preparation will suffice.
62
Agreement Requirement
The parties must agree to accomplish the same objective by mutual action. However, the agreement need not be express; it may be inferred from joint activity. Modern Trend _ Unilateral Approach. The modern trend follows the MPC_s unilateral approach to conspiracy which requires that only one party have genuine criminal intent. (e.g. conspiracy with an undercover police officer). Traditional Rule _ Bilateral Approach. At common law, a conspiracy requires at least two guilty minds. Under this bilateral approach, if one person in a two party agreement is only feigning agreement, the other party cannot be convicted of a conspiracy.
63
Husband and Wife
At common law, a husband and wife could not conspire together, but this distinction has been abandoned in most states.
64
Corporation and Agent
There can be no conspiracy between a corporation and a single agent acting on its behalf. There is a split of authority as to whether the agents of a corporation can be deemed co-conspirators with the corporation.
65
The Wharton Rule
Under the Wharton Rule, where two or more people are necessary for the commission of the substantive offense, there is no crime of conspiracy unless more parties participate in the agreement than are necessary for the crime. Exception: The Wharton Rule does not apply to agreements with necessary parties not provided for by the substantive offense; both parties may be guilty of conspiracy even though both are necessary for commission of the substantive offense.
66
Agreement with Person in Protected Class
If members of a conspiracy agree to commit a crime designated to protect person within a given class, persons within that class cannot be guilty of the crime itself or of conspiracy to commit that crime. Likewise, the nonprotected person cannot be guilty of conspiracy if the agreement was with the protected person only.
67
Effect of Acquittal of Some Conspirators
Under the traditional view, the acquittal of all persons with whom a defendant is alleged to have conspired precludes conviction of the remaining defendant. In some jurisdictions following the traditional view, a conviction for conspiracy against one defendant is allowed to stand when the alleged co-conspirator is acquitted in a separate trial. [Acquittal is the key here. If the defendant and others allegedly conspired and only the defendant is charged and tried, the defendant can be convicted. But if the defendant is charged ant tried and all the others have been acquitted, the defendant cannot be convicted.]
68
Mental State _ Specific Intent
Conspiracy is a specific intent crime. Parties must have: (i) the intent to agree and (ii) the intent to achieve the objective of the conspiracy.
69
Overt Act
At common law, the conspiracy was complete when the agreement with the requisite intent was reached. Most states now require that an act in furtherance of the conspiracy be performed. An act of mere preparation is usually sufficient.
70
Liability for Co-Conspirators_ Crimes
A conspirator may be held liable for crimes committed by other conspirators if the crimes (i) were committed in furtherance of the objectives of the conspiracy and (ii) were foreseeable.
71
Termination of Conspiracy
The point at which a conspiracy terminates is important because acts and statements of co-conspirators are admissible against a conspirator only if they were done or made in furtherance of the conspiracy. A conspiracy usually terminates upon completion of the wrongful objective. Unless agreed to in advance, acts of concealment are not part of the conspiracy. Note also that the governments_ defeat of the conspiracy_s objective does not automatically terminate the conspiracy.
72
Factual Impossibility
Factual impossibility is not a defense to conspiracy.
73
Withdrawal
Generally, withdrawal from the conspiracy is not a defense to the conspiracy, because the conspiracy is complete as soon as the agreement is made and an act in furtherance is performed. Withdrawal may be a defense to crimes committed in furtherance of the conspiracy, including the substantive target crime of the conspiracy.
74
When Withdrawal Effective
To withdraw, a conspirator must perform an affirmative act that notifies all members of the conspiracy of her withdrawal. Notice must be given in time for the members to abandon their plans. If she has also provided assistance as an accomplice, she must try to neutralize the assistance.
75
Withdrawal as a Testing Issue
[You must be careful here not to let your feelings get in the way of a correct answer. Remember that a conspiracy is complete upon the agreement with the requisite intent and an overt act. Since the overt act can be a preparatory act, the conspiracy is usually complete very soon after the agreement. If the crime is complete, the defendant is guilty of conspiracy _ even if the facts show that she had second thoughts, told her co-conspirators that she was backing out, warned the police, hid weapons, etc. These actions come too late; defendant is guilty of conspiracy. (Such actions relieve defendant of criminal liability for her co-conspirators_ acts after this withdrawal, but they have no effect on the crime of conspiracy)]
76
Punishment _ No Merger
Conspiracy and the completed crime are distinct offenses; i.e. there is no merger. A defendant may be convicted of and punished for both.
77
Number of Conspiracies in Multiple Party Situations
In complex situations, there may be a large conspiracy with a number of sub-conspiracies. In such situations, it is important to determine whether members of one sub-conspiracy are liable for the acts of another sub-conspiracy. The most common situations are the chain relationship and the hub and spoke relationship.
78
The Chain Relationship
A chain relationship is a single, large conspiracy in which all parties to sub-agreements are interested in the single large scheme. In this case, all members are liable for the acts of others in furtherance of the conspiracy.
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Hub-and-Spoke Relationship
In a hub-and-spoke relationship a number of independent conspiracies are linked by a common member. Although the common member will be liable for all the conspiracies, members of the individual conspiracies are not liable for the acts of the other conspirators.
80
Elements
Attempt is an act, done with intent to commit a crime, that falls short of completing the crime.
81
Mental State
To be guilty of attempt, the defendant must intend to perform an act and obtain a result that, if achieved, would constitute a crime. Regardless of the intent necessary for the completed offense, an attempt always requires a specific intent (i.e., the intent to commit the crime). Example: to be guilty of attempt to commit murder, defendant must have had the specific intent to kill another person, even though the mens rea for murder itself does not necessarily require specific intent to kill. [Attempt to commit a crime defined as the negligent production of a result is logically impossible because a person does not intend to be negligent. Thus, there can be no attempted negligent homicide, etc. The same holds true for crimes that require recklessness]
82
Overt Act
Defendant must commit an act beyond mere preparation for the offense. Traditionally, most courts followed the proximity test, which requires that the act be dangerously close to successful completion of the crime. However, today most state criminal codes (and the Model Penal Code) require that the act or omission constitute a substantial step in a course of conduct planned to culminate in the commission of the crime that strongly corroborates the actor_s criminal purpose. [Note that the overt act required for attempt is much more substantial than the overt act required for conspiracy.]
83
Legal Impossibility
If the defendant, having completed all acts that he had intended, would have committed no crime, he cannot be guilty of an attempt to do the same if he fails to competes all intended acts. Legal impossibility is a defense.
84
Factual Impossibility
The substantive crime is incapable of completion due to some physical or factual condition, unknown to the defendant. Factual impossibility is not a defense.
85
Abandonment
Abandonment is not a defense at common law. If defendant had the intent and committed an overt act, she is guilty of attempt despite the fact that she changed her mind and abandoned the plan before the intended crime was completed. The MPC followed in a number of jurisdictions, provides that a fully voluntary and complete abandonment is a defense.
86
Prosecution for Attempt
A defendant charged only with a completed crime may be found guilty of the completed crime or an attempt, but a defendant charged only with attempt may not be convicted of the completed crime.
87
M_Naghten Rule
Under this rule, a defendant is entitled to acquittal only if he had e mental disease or defect that caused him to either: (i) not know that his act would be wrong; or (ii) not understand the nature and quality of his actions. Loss of control because of mental illness is no defense.
88
Irresistible Impulse Test
Under this test, a defendant is entitled to acquittal only if, because of a mental illness, he was unable to control his actions or conform his conduct to the law.
89
Durham Test
Under this test, a defendant is entitled to acquittal if the crime was the product of his mental illness (i.e. the crime would not have been committed but for the disease). The Durham test is broader than either the M_Naghten test or the irresistible impulse test.
90
A.L.I. or Model Penal Code Test
Under the MPC test (which represents the _modern trend_), a defendant is entitled to acquittal if he had a mental disease or defect, and, as a result, he lacked the substantial capacity to either: (i) appreciate the criminality of his conduct; or (ii) conform his conduct to the requirements of law.
91
Insanity for Testing Purposes
[A shorthand way to remember the various tests is as follows: M_Naghten _ defendant does not know right from wrong; Irresistible Impulse _ an impulse that the defendant cannot resist; Durham _ but for the mental illness, defendant would not have done the act; ALI or MPC _ combination of M_Nagten and irresistible impulse.
92
Burdens of Proof and Persuasion
All defendants are presumed sane; the defendant must raise the insanity issue. In most states, once the issue is raised, the defendant must prove his insanity, generally by a preponderance of the evidence. Other states, and the MPC, require the prosecution to prove the defendant was sane beyond a reasonable doubt.
93
When Defense May be Raised
Although the insanity defense may be raised at the arraignment when the plea is taken, the defendant need not raise it then. A simple not guilty at that time does not waive the right to raise the defense at some future time.
94
Pretrial Psychiatric Examination
If the defendant does not raise the insanity issue, he may refuse a court-ordered psychiatric examination to determine his competency to stand trial. If the defendant raises the insanity issue, he may not refuse to be examined by a psychiatrist appointed to aid the court in the resolution of his insanity plea.
95
Post-Acquittal Commitment to Mental Institution
In most jurisdictions, a defendant acquitted by reason of insanity may be committed to a mental institution until cured. Confinement may exceed the maximum period of incarceration for the offense charged.
96
Mental Condition During Criminal Proceedings
Under the Due Process Clause of the United States Constitution, a defendant may not be tried, convicted, or sentenced if, as a result of a mental disease or defect, he is unable (i) to understand the nature of the proceeding being brought against him; or (ii) to assist his lawyer in the preparation of his defense. A defendant may not be executed if he is incapable of understanding the nature and purpose of the punishment.
97
Diminished Capacity
Some states recognize the defense of diminished capacity under which the defendant may assert that as a result of a mental defect short of insanity, he did not have the mental state required for the crime charged. Most states allowing the diminished capacity defense limit it to specific intent crimes, but a few states allow it for general intent crimes as well.
98
Intoxication
Intoxication may be caused by any substance. It may be raised whenever intoxication negates on of the elements of the crime. The law usually distinguishes between voluntary and involuntary intoxication.
99
Voluntary Intoxication
Intoxication is voluntary if it is the result of the intentional taking without duress of a substance known to be intoxicating.
100
Voluntary Intoxication as a Defense to Specific Intent Crimes
Evidence of voluntary intoxication may be offered by the defendant only if the crime requires purpose (intent) or knowledge, and the intoxication prevented the defendant from formulating the purpose or obtaining knowledge. Thus, voluntary intoxication may be a good defense to specific intent crimes, but not to general intent, malice, or strict liability crimes. The defense is not available if the defendant purposely becomes intoxicated in order to establish the defense.
101
Involuntary Intoxication
Intoxication is involuntary only if it results from the taking of an intoxicating substance without knowledge of its nature, under direct duress imposed by another, or pursuant to medical advice while unaware of the substance_s intoxicating effect. Involuntary intoxication may be treated as a mental illness, and the defendant is entitled to acquittal if she meets the jurisdiction_s insanity test.
102
Relationship to Insanity
Continuous, excessive drinking or drug use may bring on actual insanity and thus a defendant may be able to claim both an intoxication defense and insanity defense.
103
Infancy
At common law, there could be no liability for an act committed by a child under age seven. For acts committed by a child between ages seven and 14, there was a rebuttable presumption that the child was unable to understand the wrongfulness of his acts. Children age 14 or older were treated as adults. Modern statues often modify this and provide that no child can be convicted of a crime until a state age is reached, usually 13 or 14. However, children can be found to be delinquent in special juvenile or family courts.
104
Justification
The justification defenses arise when society has deemed that although the defendant committed a proscribed act, she should not be punished because the circumstances justify the action.
105
Nondeadly Force
A person without fault may use such force as reasonably appears necessary to protect herself from the imminent use of unlawful force upon herself. There is no duty to retreat.
106
Deadly Force
A person may use deadly force in self-defense if (i) she is without fault; (ii) she is confronted with _unlawful force_; and (iii) she is threatened with imminent death or great bodily harm. [If the defendant kills in self-defense but not all three of the requirements for the use of deadly force are met, some states would find the defendant guilty of manslaughter rather than murder under the _imperfect self-defense_ doctrine.
107
Retreat
Generally, there is no duty to retreat before using deadly force. The minority view requires retreat before using deadly force if the victim can safely do so, unless: (i) the attack occurs in the victim_s own home (but a victim who is an initial aggressor must regain his right to use self-defense, even though he may be in his home); (ii) the attack occurs while the victim is making a lawful arrest, or (iii) the assailant is in the process of robbing the victim.
108
Right of Aggressor to Use Self-Defense
If one is the aggressor in the confrontation, she may use force in defense of herself only if (i) she effectively withdraws from the confrontation and communicates to the other her desire to do so, or (ii) the victim of the initial aggression suddenly escalates the minor fight into a deadly altercation and the initial aggressor has no chance to withdraw.
109
Defense of Others
A defendant has the right to defend others if she reasonably believes that the person assisted has the legal right to use force in his own defense. All that is necessary is the reasonable appearance of the right to use force. Generally, there need be no special relationship between the defendant and the person in whose defense she acted.
110
Defense of a Dwelling
Nondeadly force may be used to prevent or terminate what is reasonably regarded as an unlawful entry into or attack on the defender_s dwelling. Deadly force may be used only to prevent a violent entry made with the intent to commit a personal attack on an inhabitant, or to prevent an entry to commit a felony in the dwelling.
111
Defending Possession
Deadly force may never be used in defense of property. Nondeadly force may be used to defend property in one_s possession from unlawful interference, but may not be used if a request to desist or refrain from the activity would suffice.
112
Regaining Possession
Force cannot be used to regain possession of property wrongfully taken unless the person using force is in immediate pursuit of the taker.
113
Crime Prevention
Nondeadly force may be used to the extent that it reasonably appears necessary to prevent a felony or serious breach of the peace. Deadly force may be used only to terminate or prevent a dangerous felony involving risk to human life.
114
Use of Force to Effectuate Arrest
Nondeadly force may be used by police officers if it reasonably appears necessary to effectuate an arrest. Deadly force is reasonable only if it is necessary to prevent a felons escape and the felon threatens death or serious bodily harm.
115
Private Persons Use of Force to Effectuate Arrest
A private person has a privilege to use nondeadly force to make an arrest if a crime was in fact committed and the private person has reasonable grounds to believe the person arrested has in fact omitted the crime. A private person may use deadly force only if the person harmed was actually guilty of the offense for which the arrest was made.
116
Resisting Arrest
Nondeadly force may be used to resist an improper arrest even if a known officer is making that arrest. Deadly force may be used, however, only if the person does not know that the person arresting him is a police officer.
117
Necessity
It is a defense to a crime that the person reasonably believed that commission of the crime was necessary to avoid an imminent and greater injury to society than that involved in the crime. The test is objective; a good faith belief is not sufficient. Under the traditional common law view, the pressure producing the choice of evils had to come from natural forces; modern cases have abandoned this requirement. Limitation _ Death. Causing the death of another person to protect property is never justified. Limitation _ Fault. The defense of necessity is not available if the defendant is at fault in creating the situation requiring that he choose between two evils.
118
Public Policy
A police officer (or one assisting him) is justified in using reasonable force against another or in taking property, provided the officer acts pursuant to a law, court order, or process requiring or authorizing him to so act.
119
Domestic Authority
The parents of a minor child, or any person in loco parentis with respect to that child, may lawfully use reasonable force upon the child for the purpose of promoting the child_s welfare.
120
Excuse of Duress
It is a defense to a crime other than homicide that the defendant reasonably believed that another person would imminently inflict death or great bodily harm upon him or a member of his family if he did not commit the crime. Traditionally, threats to property were not sufficient; however, a number of states, consistent with the MPC, do allow for threats to property to give rise to a duress defense, assuming that the value of the property outweighs the harm done to society by commission of the crime. Unlike necessity, duress always involves a threat by a human.
121
Mistake or Ignorance of Fact
Mistake or ignorance of fact is relevant to criminal liability only if it shows that the defendant lacked the state of mind required for the crime; thus, it is irrelevant if the crime imposes strict liability. If mistake is offered to disprove a specific intent, the mistake need not be reasonable; however, if it is offered to disprove any other state of mind, it must have been reasonable mistake or ignorance.
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Mistake or Ignorance of Law
Generally, it is not a defense that the defendant believed that he activity would not be a crime, even if that belief was reasonable and based on the advice of an attorney. However, if the reliance on the attorney negates a necessary mental state element, such reliance can demonstrate that the government has not proved its case beyond a reasonable doubt.
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Exceptions to Mistake or Ignorance of Law
The defendant has a defense if: (i) the state proscribing her conduct was not published or made reasonably available prior to the conduct; (ii) there was reasonable reliance on a statue or judicial decision; or (iii) in some jurisdictions, there was reasonable reliance on official interpretation or advice.
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Ignorance of Law May Negate Intent
If the defendant_s mistake or ignorance as to a collateral legal matter proves that she lacked the state of mind required for the crime, she is entitled to acquittal. The ignorance or mistake must involve the elements of the crime, not the existence of a statute making the act criminal.
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Consent
Unless the crime requires the lack of consent of the victim, consent is usually not a defense. Consent is a defense to minor assaults or batteries if there is no danger of serious bodily injury. Whenever consent may be a defense, it must be established that: (i) the consent was voluntarily and freely given; (ii) the party was legally capable of consenting; and (iii) no fraud was involved in obtaining the consent.
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Condonation or Criminality of Victim
Forgiveness by the victim is no defense. Likewise, the nearly universal rule is that illegal conduct by the victim of a rime is no defense.
127
Entrapment
Entrapment exists only if (i) the criminal design originated with law enforcement officers and (ii) the defendant was not predisposed to commit the crime prior to contact by the government. Merely providing the opportunity for a predisposed person to commit a crime is not entrapment.
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Entrapment _ Private Inducement or Material for Crime Provided by Government Agent
A person cannot be entrapped by a private citizen. Under federal law, an entrapment defense cannot be based solely on the fact that a government agent provided an ingredient for commission of the crime, even if the material provided was contraband. [Entrapment is a difficult defense to establish in court and so too on the MBE. In fact, on the exam, the defendant is usually predisposed to commit the crime and thus entrapment usually is a wrong choice.]
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Battery
Battery is an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching. Simple battery is a misdemeanor. A battery can be but need not be intentional, and the force need not be applied directly. Some jurisdictions recognize consent as a defense to simple battery and/or certain specified batteries.
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Aggravated Battery
Most jurisdictions treat the following as aggravated batteries and punish them as felonies: (i) battery with a deadly weapon; (ii) batter resulting in serious bodily harm; and (iii) battery of a child, woman, or police officer.
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Assault
Assault is either (i) an attempt to commit a battery or (ii) the intentional creation _ other than by mere words _ of a reasonable apprehension in the mind of the victim of imminent bodily harm. If there has been an actual touching of the victim, the crime can only be battery, not assault.
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Aggravated Assault
Aggravated assault (e.g. with a deadly weapon or with intent to rape or maim) is treated more severely than simple assault.
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Mayhem
At common law, the felony of mayhem required either dismemberment or disablement of a bodily part. The trend is to abolish mayhem as a separate offense and to treat it instead as a form of aggravated battery.
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Murder
Murder is the unlawful killing of a human being with malice aforethought. Malice aforethought exists if there are no facts reducing the killing to voluntary manslaughter or excusing it and it was committed with one of the following state of minds: (i) intent to kill; (ii) intent to inflict great bodily injury; (iii) reckless indifference to an unjustifiably high risk to human life (abandoned and malignant heart); or (iv) intent to commit a felony (felony murder). Intentional use of a deadly weapon authorizes a permissive inference of intent to kill.
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Voluntary Manslaughter
Voluntary manslaughter is a killing that would be murder but for the existence of adequate provocation. Provocation is adequate only if: (i) it was a provocation that would arouse sudeen and intense passion in the mind of an ordinary person, causing him to lose self-control (e.g. exposure to a threat of deadly force or finding your spouse in bed with another); (ii) the defendant was in fact provoked; (iii) there was not sufficient time between provocation (or provocations) and killing for passions of a reasonable person to cool; and (iv) the defendant in fact did not cool off between the provocation and the killing.
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Imperfect Self-Defense
Some states recognize an _imperfect self-defense_ doctrine under which murder may be reduced to manslaughter even though (i) the defendant was at fault in starting the altercation; or (ii) the defendant unreasonably but honestly believed in the necessity for responding with deadly force.
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Involuntary Manslaughter
A killing is involuntary manslaughter if it was committed with criminal negligence (or by _recklessness_ under the MPC) or, in some states, during the commission of an unlawful act (misdemeanor or felony not included within the felony murder rule). Foreseeability of death also may be a requirement.
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Statutory Modifications of Common Law Classification
In some jurisdictions, murder is divided into degrees by statute. A murder will be second degree murder unless it comes under the following circumstances, which would make it first degree murder: (1) Deliberate and Premeditated or (2) First Degree Felony Murder.
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Deliberate and Premeditated
If defendant made the decision to kill in a cool and dispassionate manner and actually reflected on the idea of killing, even if only for a very brief period, it is first degree murder. [First degree murder based on premeditation requires a specific intent, which may be negated by the defense of voluntary intoxication. If the defendant was so intoxicated that he was unable to premeditate, he can be convicted only of second degree or common law murder, which requires only reckless indifference to human life (and for which voluntary intoxication is not a defense).
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First Degree Felony Murder
In many states, a killing committed during the commission of an enumerated felony is felony murder and called first degree murder. The felonies most commonly listed are burglary, arson, rape, robbery, and kidnapping, but other felonies that are inherently dangerous to human life are often specifically added. Another statute (or case) may provide that a killing during any felony is felony murder, but the killing will typically be classified as second degree murder.
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Felony Murder
Any death caused in the commission of, or in an attempt to commit, a felony is murder. Malice is implied from the intent to commit the underlying felony.
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Limitations on the Felony Murder Rule
(i) the defendant must have committed or attempted to commit the underlying felony; a defense that negates an element of the underlying offense will also be a defense to felony murder. (ii) the felony must be distinct from the killing itself. (iii) death must have been a foreseeable result of the felony; (iv) the death must have been caused before the defendant_s _immediate flight_ from the felony ended; once the felon has reached a place of temporary safety subsequent deaths are not felony murder; (v) in most jurisdictions, the defendant is not liable for felony murder when a co-felon is killed as a result of resistance from the felony victim or police. (vi) Under the proximate cause theory, felons are liable for the deaths of innocent victims caused by someone other than a co-felon. Under the agency theory of felony murder, a felon is liable for only the killings by a co-felon or his agent.
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Causation
The defendant_s conduct must be both the cause-in-fact and the proximate cause of the victim_s death.
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Cause-in-Fact
A defendant_s conduct is the cause-in-fact of the result if the result would not have occurred but for the defendant_s conduct.
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Proximate Causation
A defendant_s conduct is the proximate cause of the result if the result is a natural and probable consequence of the conduct, even if the defendant did not anticipate the precise manner in which the result occurred. Superseding factors break the chain of proximate causation.
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Rules of Causation
An act that hastens an inevitable result is still the legal cause of that result. Also, simultaneous acts of two or more persons may be independently sufficient causes of a single result. A victim_s preexisting weakness or fragility, even if unforeseeable, does not break the chain of causation.
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Limitations on Causation
Year and a Day Rule. Traditionally, for a defendant to be liable for homicide, the death of the victim must occur within one year and one day from infliction of the injury or wound. Intervening Acts. Generally, an intervening act shields the defendant from liability if the act is a coincidence or is outside the foreseeable sphere of risk created by the defendant. Note that a third party_s negligent medical care and the victim_s refusal of medical treatment for religious reasons are both foreseeable risks, so the defendant would be liable.
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False Imprisonment
False imprisonment consists of the unlawful confinement of a person without his valid consent. The MPC requires that the confinement must interfere substantially with the victim_s liberty. It is not confinement to simply prevent a person from going where she desires to go, as long as alternative routes are available to her. Note also that the consent is invalidated by coercion, threats, deception, or incapacity due to mental illness, substantial cognitive impairment, or youth.
149
Kidnapping
Modern statutes often define kidnapping as unlawful confinement of a person that involves either (i) some movement of the victim, or (ii) concealment of the victim in a secret place.
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Aggravated Kidnapping
Aggravated kidnapping includes kidnapping for ransom, kidnapping for the purpose of committing other crimes, kidnapping for offensive purposes, and child stealing (the consent of a child to her detention or movement is not of importance because a child is incapable of giving valid consent).
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Rape
Traditionally, rape was the unlawful carnal knowledge of a woman by a man, not her husband, without her effective consent. Today, a number of state statutes have renamed rape as gender-neutral sexual assault. The slightest penetration is sufficient.
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Absence of Marital Relationship
Under the traditional rule and MPC, a husband cannot rape his wife, but most states today either reject this rule entirely or reject it where the parties are estranged or separated.
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Lack of Effective Consent
To be rape, the intercourse must be without effective consent. Lack of effective consent exists where: (i) intercourse is accomplished by actual force; (ii) intercourse is accomplished by threats of great and immediate bodily harm; (iii) the victim is incapable of consenting due to unconsciousness, intoxication, or mental condition; or (iv) the victim is fraudulently caused to believe that the act is not intercourse. Note that consent due to other types of fraud is effective.
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Statutory Rape
This is carnal knowledge of a person under the age of consent; it is not necessary to show lack of consent.
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Mistake as to Age
Will a defendant_s reasonable mistake as to the victim_s age prevent liability for statutory rape? For the purposes of the examination, the best answer is no, since statutory rape is a strict liability crime. A second best answer, to be used only if no alternative making use of the best position is presented, is that a reasonable mistake as to age will prevent conviction if the defendant reasonably believed the victim was old enough to give an effective consent.
156
Adultery and Fornication
Adultery is committed by both parties to sexual intercourse if either is validly married to someone else. It is often required that the behavior be open and notorious. Fornication is sexual intercourse or open and notorious cohabitation by unmarried persons.
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Incest
Incest consists of marriage or a sexual act between closely related persons.
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Seduction
Seduction consists of inducing, by promise of marriage, an unmarried woman to engage in intercourse. The MPC does not require chastity or that the female be unmarried.
159
Bigamy
Bigamy is the common law strict liability offense of marrying someone while having another living spouse.
160
Larceny
Larceny consists of: (i) a taking (obtaining control); (ii) and carrying away (asportation) (iii) of tangible personal property (excluding realty, services, and intangibles, but including written instruments embodying intangible rights such as stock certificates); (iv) of another with possession; (v) by trespass (without consent or by consent induced by fraud); (vi) with intent to permanently deprive that person of her interest in property.
161
Possession
The property must be taken from the custody or possession of another. If the defendant had possession of the property at the time of the taking, the crime is not larceny, but may be embezzlement.
162
Custody vs. Possession
Possession involves a greater scope of authority to deal with the property than does custody. Ordinarily, low level employees have only custody of an employer_s property and so are guilty of larceny for taking it. A bailee, on the other hand, ahs a greater scope of authority over an owner_s property and so is not guilty of larceny for taking it, but may be guilty of embezzlement.
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Intent to Permanently Deprive
Generally, larceny requires that at the time of the taking defendant intend to permanently deprive a person of her property. Sufficient Intent. An intent to create a substantial risk of loss, or an intent to sell or pledge the goods to the owner, is sufficient for larceny. Insufficient Intent. Where the defendant believes that the property she is taking is hers or where she intends only to borrow the property or to keep it as repayment of debt, there is no larceny.
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Abandoned, Lost, or Mislaid Property
Larceny can be committed with lost or mislaid property or property that has been delivered by mistake, but not with abandoned property.
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Continuing Trespass Situation
If the defendant wrongfully takes property without the intent to permanently deprive, and later decides to keep the property, she is guilty of larceny when she decides to keep it. However, if the original taking was not wrongful and she later decides to keep it, it is not larceny.
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Embezzlement
Embezzlement is: (i) the fraudulent; (ii) conversion (i.e. dealing with the property in a manner inconsistent with the arrangement by which defendant has possession); (iii) of personal property; (iv) of another; (v) by a person in lawful possession of that property.
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Distinguish from Larceny
Embezzlement differs from larceny because in embezzlement the defendant misappropriates property while it is in his rightful possession, while in larceny the defendant misappropriates property not in his possession.
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Intent to Restore
If the defendant intends to restore the exact property taken, it is not embezzlement. However, if the defendant intends to restore similar or substantially identical property, it is embezzlement, even if it was money that was initially taken and other money _ of identical value _ that he intended to return.
169
Claim of Right
As in larceny, embezzlement is not committed if the conversion is pursuant to a claim of right to the property. Whether defendant took the property openly is an important factor.
170
False Pretenses
The offense of false pretenses is: (i) obtaining title; (ii) to personal property of another; (iii) by an intentional false statement of past or existing fact; (iv) with intent to defraud the other.
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Larceny by Trick Distinguished
If the victim is tricked _ by a misrepresentation of fact _ into giving up mere custody of the property, the crime is larceny by trick. If the victim is tricked into giving up title to property, the crime is false pretenses.
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The Misrepresentation Required
The victim must actually be deceived by, or act in reliance on, the misrepresentation, and this must be a major factor (or the sole cause) of the victim passing title to the defendant. Traditionally, the defendant_s misrepresentation must have related to a past or present fact, and false promises to do something in the future, even without the present intent to perform, were not sufficient. However, under the MPC, any false representation suffices, including a false promise to perform.
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Intent to Defraud
Depending on the statute involved, the defendant must either have known the statement to be false or have intended that the victim rely on the misrepresentation. Most states will find that the defendant knew of the falsity of any statements when, after being put on notice of the high probability of the statements falsity, he deliberately avoided learning the truth.
174
Robbery
Robbery consists of: (i) a taking; (ii) or personal property of another; (iii) from the other_s person or presence (including anywhere in his vicinity); (iv) by force or threats of immediate death or physical injury to the victim, a member of his family, or some person in the victim_s presence; (v) with the intent to permanent deprive him of it.
175
Distinguish Larceny
Robbery differs from larceny because robbery requires that the defendant use force or threats to obtain or retain the victim_s property. Thus, pickpocketing generally would be larceny, but if the victim notices the attempt and resists, the taking would be robbery.
176
Extortion
Common law extortion consists of the corrupt collection of an unlawful fee by an officer under the color of office. Under modern statutes, extortion (blackmail) often consists of obtaining property by means of threats to do harm or to expose information. Under some statutes, the crime is complete when threats are made with the intent to obtain property; i.e. the property need not be obtained.
177
Distinguish Robbery
Extortion differs from robbery because in extortion the threats may be of future harm and the taking does not have to be in the presence of the victim.
178
Receipt of Stolen Property
Receipt of stolen property consists of: (i) receiving possession and control; (ii) of stolen personal property; (iii) known to have been obtained in a manner constituting a criminal offense; (iv) by another person; (v) with the intent to permanently deprive the owner of his interest in it.
179
Possession
Manual possession is not necessary. The defendant possesses the property when it is put in a location designated by her or she arranges a sale for the thief to a third person.
180
Stolen Property
The property must be stolen property at the time the defendant receives it.
181
Theft
Under many modern statutes and the MPC, many common property offenses are combined and defined as the crime of Theft.
182
Forgery
Forgery consists of the following: (i) making or altering (by drafting, adding, or deleting); (ii) a writing with apparent legal significance; (iii) so that it is false, i.e., representing that it is something that it is not, not merely containing a misrepresentation; (iv) with intent to defraud (although no one need actually have been defrauded)
183
Fraudulently Obtaining the Signature of Another
If the defendant fraudulently causes a third person to sign a document that the third person does not realize he is signing, forgery has been committed. But if the third person realizes he is signing the document, forgery has not been committed even if the third person was induced by fraud to sign it.
184
Uttering a Forged Instrument
Uttering a forged instrument consists of: (i) offering as genuine; (ii) an instrument that may be the subject of forgery and is false; (iii) with intent to defraud.
185
Malicious Mischief
Malicious mischief consists of: (i) the malicious; (ii) destruction of or damage to; (iii) the property of another. Malice requires no ill will or hatred. It does, however, require that the damage or destruction have been intended or contemplated by the defendant.
186
Burglary
Common law burglary consists of: (i) a breaking (creating or enlarging an opening by at least minimal force, fraud, or intimidation); (ii) and entry (placing any portion of the body or any instrument used to commit the crime into the structure); (iii) of a dwelling (a structure used with regularity for sleeping purposes, even if used for other purposes such as conducting a business); (iv) of another (ownership is irrelevant; occupancy by someone other than the defendant is sufficient); (v) at nighttime; (vi) with the intent to commit a felony in the structure. [at the time of entry]
187
Arson
Arson at common law consists of: (i) the malicious (i.e. intentional or with reckless disregard of an obvious risk); (ii) burning (requiring some damage to the structure caused by fire); (iii) of the dwelling; (iv) of another.
188
Damage Required
Destruction of the structure, or even significant damage to it, is not required to complete the crime of arson. Mere blackening by smoke or discoloration by heat (scorching( is not sufficient, but mere charring is sufficient.
189
Related Offense _ Houseburning
The common law misdemeanor of houseburning consisted of: (i) a malicious; (ii) burning; (iii) of one_s own dwelling; (iv) if the structure is situated either in a city or town, or so near to other houses as to create a danger to them.
190
Perjury
Perjury is the intentional taking of a false oath (lying) in regard to a material matter (i.e. one that might affect the outcome of the proceeding) in a judicial proceeding.
191
Subornation of Perjury
Subornation of perjury consists of procuring or inducing another to commit perjury.
192
Bribery
Bribery at common law was the corrupt payment or receipt of anything of value for official action. Under modern statutes, it may be extended to nonpublic officials, and either the offering of a bribe or the taking of a bribe may constitute the crime.
193
Compounding a Crime
Compounding consists of agreeing, for valuable consideration, not to prosecute another for a felony or to conceal the commission of a felony or the whereabouts of a felon. Under modern statutes, the definition refers to any crime.
194
Misprision of a Felony
At common law, misprision of a felony consisted of the failure to disclose knowledge of the commission of a felony or to prevent the commission of a felony. Under modern statutes, misprision is no longer a crime, or if it remains a crime, it requires some affirmative action in aid of the felon.
