Crimes Against the Person

Question 1

What are the elements of AND required mental state for common law 1st degree murder?

Answer 1

Common Law 1st Degree Murder =

1) Causing the death;
2) of another person;
3) with malice aforethought (the specificintent to kill) (premeditation ANDdeliberation)

Question 2

What are the special rules for common law intent to kill murder?

Answer 2

Common Law Intent to Kill =

1) Deadly weapon rule = the intentional use of a deadly weapon creates an INFERENCE of an intent to kill
2) Transferred intent = if a ∆ intends to harm one victim, BUT accidentally harms a DIFFERENT victim instead, the ∆’s intent will TRANSFER from the intended victim to the actual victim

NOTE: Most often applies to (all)homicide, but can also apply to other crimes, such as battery and arson

EXCEPTION: transferred intent does NOT APPLY to attempts, only to crimes w/ completed harms; does NOT APPLY to recklessness or negligence either

Question 3

What are the elements of AND the required mental state for common law 2nd degree murder?

Answer 3

Common Law 2nd Degree Murder =

1) Causing the death;
2) of another person;
3) with intent to inflict serious bodily harm; OR EXTREME recklessness (reckless indifference to human life a/k/a “depraved heart”)

Question 4

What are the types of AND the required mental states for common law criminal assault?

Answer 4

Version 1 = Attempted battery (e.g. a swing/miss)
Version 2 = Reasonable apprehension (e.g. a fake punch)
- the intentional creation;
- other than by mere words;
- of a reasonable apprehension in the victim’s mind;
- of imminent bodily harm

Mental state = specific intent

Question 5

What are the elements of ANDrequired mental state for common law criminal battery?

Answer 5

Battery =

1) the unlawful;
2) application of force to another;
3) resulting in EITHER bodily injury OR an offensive touching; with
4) General intent

Question 6

What are the elements of AND the required mental state for common law criminal false imprisonment?

Answer 6

False imprisonment =

1) the unlawful;
2) confinement of a person;
3) without his consent
4) General intent

Question 7

What is common law felony murder AND its limitations?

Answer 7

Felony murder = ANY killing caused during the commission of OR attempt to commit a felony

6 limitations =
1) ∆ must be GUILTY (factually, not charged) of the underlying felony (defense to felony = defense to felony murder)

2) Felony must be inherently dangerous
3) The merger rule: the felony must be INDEPENDENT of the killing
4) Killing must take place DURING the felonyOR during the immeidate flight from the felony (felony ends when felons reach temporary safety)
5) Death must be foreseeable
6) Victim must NOT be a co-felon

Question 8

What are the vicarious liability theories under common law felony murder?

NOTE: NY Distinction

Answer 8

1) Proximate cause theory (majority rule) = if one of the co-felons proximately causes the victim’s death, then ALL of the other co-felons will be guilty of felony murder, EVEN IF the actual killing is committed by a 3rd party (e.g. a bystander, a police officer, etc)

2) “Agency” theory = felony murder doctrine applies ONLY IF the killing is committed by one of the co-felons
* * NY DISTINCTION: this is the approach followed in NY

Question 9

What are the elements of AND the required mental states for common law forcible rape?

Answer 9

Forcible rape =

1) sexual intercourse (ANY type of penetration)
2) without the victim’s consent;
3) accomplished by:
(i) force;
(ii) threat of force; OR
(iii) when the victim is unconscious
4) General intent

Question 10

What are the types of involuntary manslaughter?

Answer 10

1) A killing committed with criminal negligence
(a GROSS deviation from a reasonable std of care)

2) A killing committed during the commission of a crime to which the felony murder doctrine DOES NOT apply (unlawful act OR misdemeanor manslaughter)

Question 11

What are the elements of AND required mental state for common law kidnapping?

Answer 11

Kidnapping =

1) false imprisonment (unlawful confinement without consent);
2) that involves either moving the victimORconcealing the victim in a secret place
3) General intent

Question 12

What are the elements of AND the required mental state for common law statutory rape?

NOTE: NY Distinction

Answer 12

Statutory rape =

1) sexual intercourse (ANY type of penetration);
2) with someone UNDER the age of consent
3) Strict liability w/ no defense (majority rule)
* * Minority rule = REASONABLE mistake of age is a defense

NY DISTINCTION: age of consent is 17
(∆ MUST be at least 21, and the victim 16 or younger)

Question 13

What are the elements of common law voluntary manslaughter?

Answer 13

Voluntary manslaughter =

1) an intentional killing;
2) committed in the heat of passion;
3) upon adequate provocation
4) ∆ was actually provoked (a subjective consideration)
5) ∆ did not have time to “cool off”
6) ∆ did not ACTUALLY cool off between the provocation and the killing

** Provocation needs to be OBJECTIVELY adequate (e.g. serious assault or battery; presently witnessed adultery; normally NOT words)

Question 14

In NY, what is 2nd degree unlawful imprisonment (as well as 1st degree)?

Answer 14

2nd degree unlawful imprisonment =

1) unlawfully;
2) restraining someone;
3) without their consent; AND
4) with knowledge that the restriction is unlawful

1st degree unlawful imprisonment =

1) 2d degree unlawful imprisonment; AND
2) a risk of serious physical injury

Question 15

In NY, when is a homicide crime elevated to “aggravated”?

Answer 15

1) when the victim of the homicide is a police officer killed in the line of duty, the offense can be… -
- Aggravated Murder
- Aggravated Man 1
- Aggravated Man 2
- Aggravated Crim. Negl. Homicide

2) when the ∆, over the age of 18, causes the death of a child UNDER the age of 14 in an especially cruel and wonton manner = aggravated murder

Question 16

In NY, what is 2nd degree criminal assault (along with 1st and 3rd)?

Answer 16

2nd degree assault =

1) intentionally causing;
2) serious physical injury

1st degree assault =

1) 2d degree assault; AND
2) a weapon ————

3d degree assault =

1) intentionally causing;
2) non-serious physical injury

• ———– NOTE:
  1) All versions of assault in NY require INJURY (there is no offensive touching
  2) Attempted assault requires intent to assault
  3) Menacing: Merely creating a reasonable apprehension (without intent to actually injury) is NOT assault (this is a seperate crime, “menacing”)
  4) Battery is NOT a separate crime in NY!!

Question 17

In NY, what are the ONLY felonies that can give rise to felony murder?

Answer 17

B-R-A-K-E-S

1) Burglary
2) Robbery
3) Arson
4) Kidnapping
5) Escape
6) Sexual assault

Question 18

In NY, what is criminally negligent homicide and the required mental state?

Answer 18

The ∆ SHOULD have been aware of a substantial and unjustifiable risk of death

Mental state = criminal negligence

Question 19

In NY, what are the elements for the “non-slayer” defenseto felony murder?

Answer 19

NY provides a limited affirmative defense to felony murder IF the ∆ can prove…

1) the ∆ did not kill the victim;
2) the ∆ did not have a deadly weapon;
3) the ∆ had no reason to believe that his co-felons had a deadly weapon; AND
4) the ∆ had no reason to believe that his co-felons intended to do anything that was likely to result in death

Question 20

In NY, what is 2nd degree kidnapping (as well as 1st degree)?

Answer 20

2d degree kidnapping =abducting someone

1st degree kidnapping=
1) 2d degree kidnapping (abducting someone); AND
2) one of the following:
(i) death of the victim;
(ii) ransom; OR
(iii) restraint for more than 12 hrs w/ intent to rape, injure or rob

NOTE:

1) if the victim is killed ACCIDENTALLY, it’s 2nd degree felony murder
2) if the victim is killed INTENTIONALLY, it’s 1st degree felony murder

Question 21

In NY, what is 1st degree manslaughter (along w/ 2nd degree manslaughter)?

Answer 21

1st degree manslaughter =

1) Extreme Emotional Disturbance (EED) manslaughter; OR an intentional killing committed under the influence of a reasonable and extreme emotional disturbance
2) An intent to cause serious physical injury

NOTE: EED manslaughter is an affirmative defense to Murder 2, which ∆ must prove by a perponderance of the evidence

2nd degree manslaughter =

1) ∆ is AWARE of and CONSIOUSLY disregards a substantial and unjustifiable risk of death
2) Recklessness

Question 22

In NY, what are the various types of homicides?

Answer 22

1) Murder 1
2) Murder 2
3) Manslaughter 1
4) Manslaughter 2
5) Criminally Negligent Homicide

Question 23

In NY, what is 1st degree murder (along with 2nd degree murder)?

Answer 23

1st degree murder = a ≥ 18 yr old ∆ who…

1) intentionally kills with aggrevating factor
(i) victim is an on-duty cop;
(ii) ∆ is murdering for hire;
(iii) killing for witness intemidation; OR
(iv) ≥ 1 victim is same criminal transaction
NOTE: premeditation and deliberation are IRRELEVANT in NY

2) commits felony murder where victim was intentionally killed

2nd degree murder = a ∆ of ANY age who…

1) intentionally kills without aggrevating factor; OR
2) commits highly-reckless killing demonstrating depraved indifference to human life (w/ more than one victim); OR NOTE: If just ONE victim, you need torture
3) commits felony murder where a non-co-felon victim is unintentionally killed

Question 24

What is the Year-and-a-Day Rule?

NOTE: NY Distinction

Answer 24

It’s a MINORITY rule that states that death MUST occur within a year + a day of the homicidal act

NY DISTINCTION: NY does NOT follow the Yr + a day rule; death may occur at ANY time