Criminal Law Flashcards
(196 cards)
1
Q
State’s Jurisdiction Over a Crime
A
- Any act constituting an element of offense was committed in the state
- Act outside state caused a RESULT in the state
- Crime involved neglect of duty imposed by law of state
- Attempt or conspiracy outside state PLUS act inside state
- Attempt or conspiracy inside state to commit an offense INSIDE state
2
Q
Common Law - Merger
A
At CL, if a person engaged in conduct constituting both a felony and a misdemeanor, they could be convicted only of the felony; misdemeanor merges into felony
3
Q
Modern Law - Merger
A
No merger of crimes in American law
However, solicitation and attempt merge into the completed crime
Conspiracy does not merge with the completed offense
4
Q
MPC - More than One Inchoate Crime
A
Under MPC, defendant may NOT be convicted of more than one inchoate crime (attempt, solicitation, conspiracy) when their conduct was designed to culminate in the commission of the same offense.
Ex. Defendant who conspired to commit burglary and then actually attempted to commit burglary could NOT be convicted of BOTH conspiracy and attempt
5
Q
Rules against Multiple Convictions for Same Transaction
A
Double jeopardy prohibits trial or conviction of a person for a lesser included offense if they have been put in jeopardy for the greater offense
However, a court can impose multiple punishments at a single trial where punishments are for two or more statutorily defined offenses specifically intended by legislature to carry SEPARATE punishments even though the offenses arise from same transaction and constitute same crime
6
Q
Classification of Crimes - Felony & Misdemeanors
A
Felonies are punishable by DEATH or IMPRISONMENT FOR MORE THAN ONE YEAR
Other crimes are misdemeanors
7
Q
Elements of a Crime
A
- Physical act - actus reus
- Mental state - mens rea
- Concurrence of act and mental state
8
Q
Physical Act
A
Defendant must have either
(1) Performed voluntary physical act or
(2) Failed to act under circumstances imposing a legal duty to act.
An act is a bodily movement.
The following do not qualify for criminal liability:
* Conduct that is not product of person’s own volition
* Reflexive/convulsive act
* Act performed while unconscious or asleep
9
Q
Omission as an Act
A
Failure to act gives rise to liability only if
(1) Legal duty to act
(2) Defendant has knowledge of facts giving rise to the duty to act and
(3) It is reasonably possible to perform a duty
10
Q
How can legal duty to act arise?
A
- Statute
- Contract –> on-duty, not off-duty
- Relationship between parties
- Voluntary assumption of care by defendant for the victim
- Defendant created peril for the victim
11
Q
Possession as an Act
A
Criminal statutes that penalize possession of contraband generally require only defendant have control of item for a long enough period to have opportunity to terminate the possession.
Possession need not be exclusive to ONE person, may be constructive (actual physical control doesn’t need to be proved when contraband is located in an area within defendant’s control)
State of mind required: Defendant need not be aware of illegality, but many statutes add a statute of mind to possession crimes and here, defendant ordinarily must know the identity or nature of item possessed. Knowledge can be inferred from combination of suspicion and indifference to truth
12
Q
Specific Intent
A
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
13
Q
Available Defenses to Specific Intent Crimes Only
A
1) Voluntary intoxication
2) Unreasonable mistake of fact
14
Q
Major Specific Intent Crimes (11) (And Intents Required)
A
“Spongebob Flips Burgers And Cheeseburgers, Adds Romaine Lettuce, Egg, French Fries”
1) Solicitation - intent to have person solicited commit the crime
2) Conspiracy - intent to have crime competed
3) Attempt - intent to complete crime
4) First degree premeditated murder - premeditated intent to kill
5) Assault - intent to commit battery
6) Larceny - intent to permanently deprive the other of their interest in the property taken
7) Embezzlement - intent to defraud
8) False pretenses - intent to defraud
9) Robbery - intent to permanently deprive Theo her of their interest in the property taken
10) Burglary - intent to commit a felony in the dwelling
11) Forgery - Intent to defraud
15
Q
Malice - Common Law Murder & Arson
A
Intent necessary for malice crimes (second degree murder and arson) requires a reckless disregard of an obvious or high risk that the particular harmful result will occur
Defenses to specific intent crimes do NOT apply to malice crimes
16
Q
General Intent
A
Catch-all category; if crime is not specific intent, strict liability, or malice, then it falls under general intent crime and does NOT get the two additional defenses as specific intent crimes get
Ex. Battery, rape, kidnapping, false imprisonment
17
Q
Inference of Intent from Act
A
Jury may infer required general intent merely from doing of the act
18
Q
Strict Liability
A
Defenant can be found guilty from mere fact they committed the act; no mens rea required.
- Statutory rape
- Selling liquor to minors
Defenses that negate state of mind, like mistake of fact, are NOT available
(1) If crime is in the Administrative, Regulatory or Morally area AND
(2) There are no adverbs in statute, (knowingly, willfully, intentionally), then statute is meant to be a NO INTENT CRIME OF STRICT LIABILITY
19
Q
MPC Categories of Intent (4)
A
- Purposely
- Knowingly
- Recklessly
- Negligent
20
Q
Purposely
A
Conscious objective is to engage in certain conduct or cause certain result
Subjective
21
Q
Knowingly
A
- Person acts knowingly w/ respect to nature of their conduct when they are aware that their conduct of a particular nature or that certain circumstances exist.
- Deemed aware of circumstances when they are aware of a HIGH probability that they exist and deliberately avoid learning the truth.
- Person acts knowlgly w/ respect to result of their conduct when they know their condcut will necessarily or very likely cause particular result
- Subjective
22
Q
Recklessly
A
- Conscious disregard of a substantial and unjustifiable risk that circumstances exist OR that a prohibited result will follow AND this disregard constutites a GROSS deviation from standard of care that a rx person would exercise in the situation.
- Objecive [unjustifiable risk] and Subjective [awareness]
23
Q
Negligence
A
- Fail to be aware of a substantial and unjustifiable risk, where such failure is a substantial deviation from standard of care
- Objective standard
24
Q
Vicarious Liability Offenses
A
Person without personal fault may be held liable for criminal conduct of another (usually employee)
25
Enterprise Liability
* **CL**: Corporation does not have capacity to commit crimes
* **Modern statutes**: corps may be held liable for act performed by (1) corps acting within the scope of office/employment or (2) corporate agent high enough in hierarchy to presume their acts reflect corporate policy
26
Transferred Intent
* Intend the harm that is actually but to a different victim or object
* Defenses and mitigating cicumstances can be transferred
* Transferred intent applies to homicide, battery, arson, NOT attempt
* Usually person guilty of transferred intent is guilty of 2 crimes: completed crime against actual victim and attempt against intended victim
27
Concurrence of Mental Fault w/ Physical Act
Defendant must have intent necessary for crime AT TIME they committed the act constituting the crime, and the intent must have prompted the act.
28
Causation
Some crimes, like homicide, require result AND causation.
When crime is defined to require not merely conduct but also a specified result, defendant's conduct must be both cause-in-fact AND promximate cause of specified result.
29
Common Law Parties to a Crime
(1) Principals in the First Degree
(2) Principals in the Second Degree
(3) Accessories Before the Fact
(4) Accessories After the Fact
Note: At CL conviction of the principal was required for conviction of an accessory, but most jx have abandoned this requirement.
30
Principals in the First Degree
Persons who engage in act that constitute the crime
31
Principals in the Second Degree
Persons who aid, advise, or encourage the principal and are present at the crime
32
Accessories Before the Fact
Persons who assisted or encouraged but were NOT present
33
Accessories After the Fact
Persons who, with knowledge that the other committed a felony, assisted them to escape arrest or punishment
34
Modern Statutes Parties to a Crime
All such parties to the crime can be found guilty of the principal offense.
35
Principal in Modern Statutes
One who, with the requisite mental state
36
Accomplice in Modern Statutes
One who aids, advises, or encourages the principal w/ the commission of the crime charged
37
Accessory after the fact in Modern Statutes
One who assists another knowing that they committed a felony in order to help them escape is still treated separately. Punishment for this crime usually bears no relationship to the principal offense.
38
Convicted of a Substantive Crime as an Accomplice (2) Requirements:
In order to be convicted of a substantive crime as an accomplice the accomplice must have:
(1) Intent to assist the principal in the commission of the crime; and
(2) Intent that the principal commit the substantive offense.
39
If Substantive Offense has Recklessness or Negligence as its Mens Rea:
Most jx would hold that the intent element is satisfied if the accomplice:
(1) Intended to facilitate the commission of the crime; and
(2) Acted w/ recklessness or negligence (whichever is required by the particular crime).
40
Mere Knowledge that a crime will result is:
Not enough for accomplice liability, at least where the aid given is in the form of the sale of ordinary goods at ordinary price.
i.e. gas station attendant knowingly selling a gallon of gas will not be held liable for arson.
BUT: Charging the arsonist $100 for the gallon of gas may constitute a sufficient stake in the venture to constitute intent.
41
Accomplice's Scope of Liability
An accomplice is responsible for the crimes they did or counseled AND for any other crimes committed in the course of committing crime contemplated to the same extent as the principal, as long as the other crimes were probable or foreseeable.
42
Withdrawal from Accomplice Liability
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**.
(1) Must repudiate encouragements;
(2) Must attempt to neutralize any assistance;
(3) Notifying police or taking other action to prevent crime also sufficient.
43
Inchoate Offenses (3)
(1) Conspiracy
(2) Solicitation
(3) Attempt
44
Conspiracy (4) Elements
Conspiracy requires:
(1) An agreement between 2 or more persons;
(2) Intent to enter into agreement;
(3) Intent to achieve unlawful objective;
(4) Overt act required by majority of states. But, an act of mere preparation will suffice.
45
Agreement Requirement for Conspiracy
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.
(1) Unilateral Approach (modern)
(2) Bilateral Approach (traditional)
46
Unilateral Approach for Conspiracy (Modern Trend)
**One** **party** must have genuine criminal intent. Under the unilateral approach, a defendant can be convicted of conspiracy if they conspire w/ an undercover officer.
47
Bilateral Approach for Conspiracy (Traditional)
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 conspiracy.
48
Wharton Rule
Two or more people are necessary for the commission of the substantive offense (i.e. adultery) there is no crime of conspiracy unless more parties participate in the agreement than are necessary for the crime (i.e. it takes two people to commit adultery)
49
Agreement w/ Person in Protected Class
If members of a conspiracy agree to commit a crime designed to protect persons within a given class, persons within that class cannot be guilty of the crime itself or of conspiracy to commit that crime.
Likewise, non protected person cannot be guilty of conspiracy if the agreement was with the protected person only.
50
Effect of Acquittal of Some Conspirators
Under the traditional view, the acquittal of all persons w/ whom a defendant is alleged to have conspired precludes conviction of the remaining defendant.
51
Mental State for Conspiracy
Conspiracy is a specific intent crime. Parties must have:
(1) Intent to agree; and
(2) Intent to achieve the objective of the conspiracy (unlawful).
52
Overt Act for Conspiracy
(1) Overt act is not required under CL.
(2) However, it is required in most states, under the majority rule, which requires an agreement plus an overt act, any little act can be an overt act in furtherance of the conspiracy, even mere preparation.
53
Termination of 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.
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.
Note: Gov't's defeat of the conspiracy's objective doesn't automatically terminate the conspiracy
54
Liability for Co-Conspirator's Crimes
A conspirator may be held liable for crimes committed by other conspirators if the crimes were:
(1) Committed in furtherance of the objectives of the conspiracy; and
(2) Foreseeable.
55
Defenses to Conspiracy
(1) Factual impossibility;
(2) Withdrawal
56
Withdrawal From Conspiracy
Withdrawal from the conspiracy is not a defense to the conspiracy because the conspiracy is:
(1) Complete as soon as the agreement is made; and
(2) An act in furtherance is performed.
57
Withdrawal may be a defense to crimes committed in furtherance of the conspiracy if:
Withdrawal may be a defense to crimes committed in furtherance of the conspiracy, including the substantive target crime of the conspiracy. This means the defendant can withdraw from liability for the other conspirator's crimes, but the defendant cannot withdraw from the conspiracy itself.
- Conspirator must perform affirmative act that **notifies** co-conspirators of withdrawal in time for them to abandon their plans.
- If the conspirator has also provided assistance as an accomplice, they must try to **neutralize** the assistance.
58
Punishment for Conspiracy
Conspiracy and the completed crime are distinct offenses; there is NO merger. A defendant may be convicted of and punished for both.
59
Solicitation
Solicitation consists of:
(1) Asking;
(2) Inciting;
(3) Counseling;
(4) Advising;
(5) Urging; or
(6) Commanding
Another to commit a crime, with the intent that the person solicited commit the crime. It is not necessary that the person solicited agree to commit the crime.
Once they agree, both parties will be liable for conspiracy. Under the doctrine of merger, the solicitor cannot be punished for both the solicitation and these other offenses.
60
Attempt
Attempt is an:
(1) Act;
(2) done with intent;
(3) to commit a crime;
(4) that falls short of completing it.
Attempt requires:
(1) Specific intent; and
(2) an overt act in furtherance of the crime.
61
Intent
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. (intent to commit the crime)
62
Overt Act for Attempt
The defendant must commit an act beyond mere preparation for the offense.
Courts apply (2) Tests:
(1) Proximity Test (Traditional);
(2) Substantial Step (Majority/Modern).
63
Proximity Test (Traditional)
Requires that the act be dangerously close to successfully completion of the crime.
64
Substantial Step (Modern/Majority)
Conduct planned to culminate in the commission of the crime that strongly corroborates the actor's criminal purpose.
65
Defenses for Attempt
(1) Abandonment;
(2) Legal Impossibility;
(3) Factual Impossibility (NO)
66
Abandonment of Attempt
(1) Not a defense under Common Law.
(2) Valid defense under MPC if fully voluntary and complete abandonment.
67
Legal Impossibility
Valid defense. If the defendant, having completed all acts that they had intended would have committed no crime, they cannot be guilty of an attempt to do the same if they fail to complete all intended acts. Legal impossibility is a defense.
i.e. purchasing fireworks in which the party believed was illegal, but it was legal.
68
Factual Impossibility
Not a defense. When the substantive crime is incapable of completion due to some physical or factual condition, unknown to the defendant.
69
Prosecution for Attempt
Attempt is an act done w/ the intent to commit a crime that falls short of the crime's completion. Attempt requires both specific intent and an over act in furtherance of the crime.
Defendant charged only w/ a completed crime may be found guilty of the completed crime **or** an attempt, but a defendant charged only w/ attempt may not be convicted of the completed crime.
Always remember merger! Merger for attempt does merge. Cannot be on the hook for attempted murder and murder.
However, there is NO merger for conspiracy!!!
70
Common Law Murder
Murder is the unlawful killing of a human being with malice aforethought.
71
Malice Aforethought
Malice aforethought exists if there are not facts reducing the killing to voluntary manslaughter or excusing it and it was committed with one of the following states of mind:
(1) Intent to kill (First Degree Murder);
(2) Intent to inflict great bodily harm (Second Degree Murder);
(3) Reckless indifference to an unjustifiably high risk to human life - Depraved heart (Second Degree Murder);
(4) Intent to commit a felony (Common Law and in most jx First Degree Murder)
72
Intentional use of a deadly weapon
Authorizes a permissive inference of intent to kill.
73
First Degree Murder
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 First Degree Murder;
(2) First Degree Felony Murder;
(3) Others
74
Deliberate and Premeditated First Degree Murder
Defendant made decision to kill in cool and dispassionate manner and actually reflected on idea of killing, even if only for a very brief period, it is first degree murder.
Defendant must have acted with:
(1) Intent; or (2) Knowledge that their conduct would cause death.
75
First Degree Felony Murder
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.
76
Other First Degree Murder (Police Officers)
Some statutes make killings performed in certain ways (i.e. torture) or with certain victims first degree murder. Many states make the homicide of a police officer first degree murder. The defendant must (1) know the victim is a law enforcement officer, and (2) the victim must be acting in the line of duty (even if they are off-duty if they are acting in line of duty it's first degree)
77
Second Degree Murder
Classified as a depraved heart killing (a killing done with a reckless indifference to an unjustifiably high risk to human life) or any murder that is not classified as a first degree murder.
78
Felony Murder
Any death, even an accidental death, caused in the commission or in an attempt to commit, a felony is murder. Malice is implied from the intent to commit the underlying felony.
BARRK - CL First Degree Felony Murder:
(1) Burglary (most often tested)
(2) Arson
(3) Rape
(4) Robbery
(5) Kidnapping
79
Limitation on Felony Murder Liability
(1) Defendant must have committed or attempted to commit the underlying felony;
(2) Felony must be distinct from the killing itself;
(3) Death must have been a foreseeable result of the felony;
(4) Death must have been caused before the defendant's immediate flight from the felony ended - felon has reached a place of "temporary safety", subsequent deaths are not felony murder;
(5) Defendant is not liable for felony murder when a co-felon is killed as a result of resistance from the felony victim or the police.
80
Liable for Felony Murder by Co-Felon
(1) Proximate Cause Theory;
(2) Agency Theory.
81
Proximate Cause Theory of Felony Murder
Felons are liable for the deaths of innocent victims caused by someone other than a co-felon. (Minority view)
82
Agency Theory of Felony Murder
The killing must be committed by a felon or their agent (an accomplice) with limited exceptions in cases in which the victim was used as a shield or otherwise forced by the felon to occupy a dangerous place. (Majority view)
83
Voluntary Manslaughter
Voluntary manslaughter is a killing that would be murder but for the existence of adequate provocation.
84
Voluntary Manslaughter Adequate Provocation
Provocation is adequate only if it would arouse:
(1) Sudden and intense passion in the mind of an ordinary person, causing them to lose self-control;
(2) Defendant was in fact provoked;
(3) There was not sufficient time between provocation and the killing for passion for a reasonably person to cool off; and
(4) Defendant in fact did not cool off between the provocation and the killing.
i.e. finding your spouse in bed w/ another or being a victim of a serious battery.
85
Heat of Passion
Heat of passion is not a defense to killing, although it may reduce the killing from murder to manslaughter. Must show sufficient provocation and then ask about D's criminal liability.
86
Imperfect Self-Defense Doctrine
Murder may be reduced to manslaughter even though:
(1) the Defendant was at fault in starting the altercation; or
(2) the Defendant unreasonably but honestly believed in the necessity of responding w/ deadly force.
i.e. killing someone after honestly believing their life was in danger.
87
Involuntary Manslaughter
A killing is involuntary manslaughter if it was committed:
(1) With criminal negligence (or by "recklessness" under the M.P.C.) or
(2) During the commission of an unlawful act. Foreseeability of death also may be requirement.
Recklessness could be operating a motor vehicle while doing something you shouldn't be doing.
88
Abandoned and Malignant Heart Murder v. Involuntary Manslaughter
Abandoned and malignant heart murder at Common Law involves **high** **risk** of death while involuntary manslaughter based on recklessness requires only a **substantial** **risk**.
89
Causation
Defendant's conduct must be both:
(1) Cause-in-fact; and
(2) Proximate cause of the victim's death.
90
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.
91
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 factor break the chain of proximate causation.
92
Rules of Causation
An act that hastens and 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.
93
Limitations for Homicide
(1) Year and a day rule;
(2) Intervening Acts.
94
Year and a Day Rule Limitation
Traditionally, for a Defendant to be liable for homicide, the death of the victim must occur within one year and one day from infliction or the injury or wound.
Most states have reviewed this rule have abolished it.
95
Intervening Acts Limitation
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: A third party's negligent medical care and the victim's refusal of medical treatment for religious reasons are both FORESEEABLE RISKS, so Defendant would still be liable.
96
Battery
Battery is an unlawful application of force to the person of another resulting in either:
(1) bodily injury; or
(2) an offensive touching.
A battery can be, but need not be, intentional, and the force need not be applied directly (i.e. causing a dog to attack the victim)
Battery is a general intent crime. So specific intent defenses (unreasonable mistake of fact; voluntary intoxication) does not apply.
Some jx recognize consent as a defense to simple battery and/or certain specified batteries.
97
Aggravated Battery
Most jx treat the following as aggravated batteries and punish them as felonies:
(1) Battery w/ a deadly weapon;
(2) Battery resulting in serious bodily harm; and
(3) Battery of a child, woman, or police officer.
98
Assault - Specific Intent Crime
Assault is either:
(1) An attempt to commit a battery; or
(2) 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.
99
Aggravated Assault
Aggravated assault is an assault plus one of the following:
(1) Use of a deadly or dangerous weapon; or
(2) With the intent to rape, maim, or murder.
100
False Imprisonment
Unlawful confinement of a person without the person's 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 they desire to go, as long as alternative routes are available to them.
101
Consent Invalidated in Following Situations
Consent is invalidated by coercion, threats, deception, or incapacity due to mental illness, substantial cognitive impairment or youth.
102
Kidnapping
Unlawful confinement of a person that involves either:
(1) Some movement of the victim; or
(2) Concealment of the victim in a "secret" place.
103
Aggravated Kidnapping
Aggravated kidnapping includes kidnapping for:
(1) Ransom;
(2) Purpose of committing other crimes;
(3) Offensive purpose; and
(4) Child stealing
(the consent of a child to their detention or movement is not of importance because a child is incapable of giving valid consent)
104
Rape
To be rape, the intercourse must be without effective consent. Lack of effective consent exist where intercourse is accomplished by:
(1) Actual force;
(2) threats of great and immediate bodily harm;
(3) Victim is incapable of consenting due to unconsciousness, intoxication, or mental condition; or
(4) Victim is fraudulently caused to believe that the act is not intercourse.
(i.e. Persuading victim that the perpetrator will marry victim is effective)
105
Traditional and Modern Standards of Rape
Traditionally, rape was the unlawful carnal knowledge of a woman by a man, not her husband, without her effective consent.
Under traditional rule and the 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.
Modern law, most state statutes have renamed rape as gender-neutral sexual assault. **The slightest penetration is sufficient.**
106
Statutory Rape
Carnal knowledge of a person under the age of consent. Statutory rape is a strict liability crime, and, therefore, it is not necessary to show lack of consent.
107
Mistake of Age
A Defendant's reasonable mistake as to the victim's age will NOT prevent liability for statutory rape because statutory rape is a strict liability crime.
108
Larceny
Larceny consists of:
(1) A taking;
(2) and carrying away;
(3) of tangible personal property;
(4) of another with possession;
(5) by trespass;
(6) With intent to permanently deprive that person of their interest in the property.
Tangible property exclude realty, services, and in-tangibles, but include written instruments embodying intangible rights i.e. stock certificates.
109
Asportation
The slightest movement of the property is enough for purposes of the bar exam.
110
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.
111
Possession v. Custody
Possession involves a greater scope of authority to deal with the property than does custody. Generally, the Defendant has possession if they were given discretionary authority over the property and has custody if they were given only limited authority over the property.
Ordinarily, low level employees have only custody of an employer's property and so are guilty of larceny for taking it.
112
Bailee "Breaking Bulk"
A bailee has possession and thus may be guilty of embezzlement if they take the property. However, if the bailee opens closed containers in which the property has been placed by the bailor (bailee breaks bulk) the possession is regarded, by use of fiction, as returning to the bailor and thus the bailee may then be guilty of larceny if they take that property.
113
Sufficient Intent for Larceny
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.
114
Insufficient Intent for Larceny
If the Defendant:
(1) Believes that the property that they are taking is theirs; or
(2) They intended only to borrow the property or to keep it as repayment of a debt, there is no larceny; or
(3) They had some right to the property.
115
Possibly Sufficient Intent for Larceny
There may be larceny where the Defendant:
(1) Intended to pay for the goods (if the goods were NOT for sale); or
(2) intends to collect a reward from the owner (if there is no intent to return the goods absent a reward)
116
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.
117
Continuing Trespass Situation
Defendant wrongfully takes property without the intent to permanently deprive and later decides to keep the property, the Defendant is guilty of larceny when they decide to keep it.
However, if the original taking was not wrongful (I.e. Defendant took the umbrella thinking it was theirs) and later decides to keep it, it is not larceny.
118
Embezzlement
Embezzlement is:
(1) The fraudulent;
(2) Conversion (dealing w/ the property in manner inconsistent w/ the arrangement by which D has possession);
(3) Of another’s personal property;
(4) By a person in lawful possession of that property.
119
Embezzlement v. Larceny
Embezzlement differs from larceny because in embezzlement the Defendant misappropriates property while it is in their rightful possession, while larceny the defendant misappropriates property NOT in their possession.
120
Defendant's Intent to Restore for Embezzlement
If the Defendant intends to restore the **exact** property taken, it is not embezzlements. However, if the Defendant intends to restore similar or substantially endemically property, it is embezzlement, even if it was money that was initially taken an other money - of identical value - that they intended to return.
121
Claim of Right for Embezzlement
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.
NOTE: A Trustee is often the MBE embezzler; a person does not have to carry away to be an embezzler - just the possession of the property is required; the embezzler does not have to get the benefit.
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False Pretenses
The offense of false pretenses is:
(1) Obtaining **title**;
(2) To personal property of another;
(3) By an intentional false statement of a past or existing fact;
(4) With intent to defraud the other.
123
Misrepresentation Required for False Pretenses
Victim must actually be deceived by or act in reliance on the misrepresentation, and this must be a major factor 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.
Under MPC, and modern prevailing view - any false representation suffices, including a false promise to perform in the future.
124
Intent to Defraud for False Pretenses
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 statement's falsity, they deliberately avoided learning the truth.
125
Larceny by Trick
Victim is tricked by a misrepresentation of fact into giving up mere custody or possession of property, the crime is larceny by trick.
NOTE: If the victim is tricked into giving up title to property, the crime is false pretenses.
126
Robbery
Robbery consists of:
(1) A taking;
(2) Of personal property of another;
(3) From the other's person or presence (very broadly drawn - victim can be pretty far in distance);
(4) By force or threats of immediate death or physical injury to the victim, a family member, or some person in the victim's presence (force or threat can be minimal - ripping necklace from victim's neck is sufficient);
(5) With the intent to permanently deprive them of it.
The threat must be a threat of imminent harm.
127
Robbery v. Larceny
Robbery differs from larceny because robbery requires that the defendant use force or threats to obtain or retain the victim's property.
So, pickpocketing is generally larceny, but if the victim notices the attempt and resists, the taking would be robbery.
128
Simulating a Deadly Weapon
Elevates to the higher crime - Armed Robbery/Burglary
129
Extortion
Common law extortion consists of the corrupt collection of an unlawful fee by an officer under color of office.
Modern Statutes - Extortion 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; the property need not be obtained.
130
Robbery v. Extortion
Extortion differs from robbery because in extortion the threat may be of future harm and the taking does not have to be in the presence of the victim.
131
Receipt of Stolen Property
Receipt of stolen property consists of:
(1) Receiving possession and control;
(2) Of stolen personal property;
(3) Known to have been obtained in a manner constituting a criminal offense;
(4) By another person;
(5) With the intent to permanently deprive the owner of their interest in it.
132
Possession
Manual possession is not necessary. The Defendant possesses the property when it is put in a location designated by them or they arrange a sale for the thief to a third person, that is "fencing"
133
Stolen Property
The property must be stolen property at the time the Defendant receives it.
134
Fraudulently Obtaining Signature of Another
If the Defendant fraudulently causes third person to sign a document that the third person does not realize they are signing, forgery has been committed.
But if the third person realizes they are signing the document, forgery has not been committed even if the third person was induced by fraud to sign it.
134
Forgery
Forgery is the making or altering of a false writing with intent to defraud. More specifically, forgery consists of the following:
(1) Making or altering;
(2) A writing with apparent legal significance;
(3) So that it is false;
(4) With intent to defraud.
135
Uttering a Forged Instrument
Uttering a forced instrument consists of:
(1) Offering as genuine;
(2) An instrument that may be the subject of forgery and is false;
(3) With intent to defraud.
136
Burglary
At Common Law burglary consists of:
(1) Breaking;
(2) and entry;
(3) of a dwelling;
(4) of another;
(5) at nighttime;
(6) with the intent to commit a felony in the structure. (even if the felony is not committed, if there was intent at the time of breaking and entering the element is met)
Modern statutes eliminate many technicalities - is not limited to a dwelling, can be an office space, and nighttime - can be at any time of the day. But, in CL jx must meet all (6) elements.
137
"Breaking" under Burglary
(1) Actual Breaking - it is not actual breaking for a person to come united through a wide open door or window. If it is wide open, there is NO breaking. But if a person pushes open an interior door to another room then a breaking exists.
i.e. Backdoor to the house open, so individual goes in and steals. Not a burglary under CL - there has been no breaking. But if he goes in and opens an interior door (i.e. bedroom door) then there is a breaking.
(2) Constructive Breaking - Breaking by fraud or threat.
138
Key to the Dwelling/Office
If the individual was provided the key by the owner but used the key for a purpose other than the purpose they were given the key, that is going to be a breaking for purposes of breaking in common law burglary.
139
Intent to Commit a Felony Therein
The intent to commit the felony must exist at the time of the breaking and entering.
140
Arson
Arson at Common Law consists of:
(1) The malicious (intentional or w/ reckless disregard of an obvious risk);
(2) burning;
(3) of dwelling;
(4) of another.
Most states have expanded the definition of arson to include damages caused by explosion, and expanded the types of property that may be destroyed to include commercial structures, cars, trains, etc. On MBE this modern view applies.
141
Malice Requirement for Arson
No specific intent is required. Acting w/ reckless disregard of an obvious risk that the structure would burn will suffice for arson culpability.
142
Damage Requirement for Arson
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 is not sufficient, but mere charring is sufficient.
Scorching = Not Sufficient
Charring = Sufficient
143
Houseburning
At Common Law, the building has to be the house of another; one could not be guilty of arson of one's own house.
The Common Law misdeamnor of house burning consisted of:
(1) Malicious;
(2) Burning;
(3) Of one's own dwelling;
(4) If the structure is situated either in a city or town, or so near to other houses as to create a danger to them
144
Insanity - Defenses to Crimes
There are several formulations of the test to be applied to determine whether, at the time of the crime, the Defendant was so mentally ill as to be entitled to acquittal.
(1) M'Naghten Rule;
(2) Irresistible Impulse Test;
(3) Durham;
(4) ALI or MPC Test
145
M'Naghten Rule
Defendant is entitled to acquittal if:
(1) Disease of mind;
(2) Caused a defect of reason;
(3) Such that the Defendant lacked the ability at the time of their actions to either know the wrongfulness of their actions or understand the nature and quality of their actions.
Delusions - beliefs that one's actions are morally right, or loss of control because of mental illness are not defenses unless this test is met.
146
Irresistible Impulse Test
Defendant is entitled to acquittal only if because of a mental illness, they were:
(1) Unable to control their actions; or
(2) Conform their conduct to the law.
147
Durham Test (New Hampshire)
Defendant is entitled to acquittal if:
Crime was the **product** of their mental illness.
Only applied in New Hampshire. The Durham Test is broader than either the M'Naghten test or the irresistible impulse test.
148
ALI or MPC Test
Defendant is entitled to acquittal if they had a mental disease or defect, and, as a result, they lacked the substantial capacity to either:
(1) Appreciate the criminality of their conduct; or
(2) Conform their conduct to the requirements of law.
149
Burdens of Proof and Persuasion of Insanity
- All Defendants are presumed sane;
- The Defendant must raise the insanity issue;
- In most states, once the issue is raised, the Defendant must prove their insanity, generally by a preponderance of the evidence.
- MPC require the prosecution to prove the Defendant was sane beyond a reasonable doubt.
Federal Courts require the Defendant to prove insanity by clear and convincing evidence.
150
When the Insanity Defense May be Raised
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.
151
Pretrial Psychiatric Examination
If the Defendant does NOT raise the insanity issue, they may refuse a court-ordered psychiatric examination to determine their competency to stand trial.
If the Defendant raises the insanity issue, they may not refuse to be examined by a psychiatrist appointed to aid the court in the resolution of his insanity plea.
152
Post-Acquittal Commitment to Mental Institution
In most jx, 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.
153
Mental Condition During Criminal Proceedings
Under the Due Process Clause, a Defendant may not be tried, convicted, or sentenced if as a result of a mental disease or defect they are unable to:
(1) Understand the nature of the proceedings being brought against them; or
(2) To assist their lawyer in preparation of their defense.
A Defendant may not be executed if they are incapable of understanding the nature and purpose of the punishment.
154
Diminished Capacity Defense
Defendant may assert that as a result of a mental defect short of insanity, they 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.
155
Intoxication
Intoxication may be caused by any substance (drugs, alcohol, medicine). It may be raised whenever intoxication negates one of the elements of the crime.
The law distinguishes between voluntary and involuntary intoxication.
156
Voluntary Intoxication Defense
- Results from intentional taking, without duress, of substance known to be intoxicating.
- Defense to Specific Intent Crimes.
Specific intent crimes requires (1) purpose - intent; or (2) knowledge and the defense argues that the intoxication prevented the Defendant from formulating the purpose or obtaining the knowledge.
157
Addicts who are Intoxicated when Committing a Crime
Addicts who are intoxicated when committing a crime are considered voluntarily intoxicated, rather than involuntary.
158
Involuntary Intoxication Defense
Intoxication is involuntary only if it results from the taking of an intoxicating substance:
(1) Without knowledge of its nature;
(2) Under direct duress imposed by another; or
(3) 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 they meet the jurisdiction's insanity test.
Involuntary intoxication can be a defense to ALL crimes.
159
Insanity and Intoxication Defense
Excessive drinking or drug use may bring on actual insanity and thus a Defendant may be able to claim both an intoxication defense and an insanity defense.
160
Infancy Defense (Common Law)
(1) Under Age 7 - No criminal liability;
(2) Ages 7 - 14 - Rebuttable presumption child unable to understand wrongfulness of acts;
(3) Age 14 and Older - Treated as adult.
Modern statutes often modify and provide no child can be convicted of a crime until a stated age is reached, usually 13 or 14. However, a child can be found to be delinquent in special juvenile or family courts.
161
Self-Defense and Justification Defenses
Justification defenses arise when society has deemed that although the Defendant committed a proscribed act, they should not be punished because the circumstances justify the action.
(1) Nondeadly Force;
(2) Deadly Force.
162
Nondeadly Force - Justification Defense
Person without fault may use such force as the person reasonably believes is necessary to protect themself from the imminent use of unlawful force upon themself. There is not duty to retreat.
163
Deadly Force - Justification Defense
A person may use deadly force in self-defense if the person is:
(1) Without fault;
(2) Confronted w/ unlawful force; and
(3) Reasonably believes that they are threatened w/ 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.
164
Retreat Defense
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:
(1) Attack occurs in the victim's own home;
(2) Attack occurs while the victim is making a lawful arrest; or
(3) The assailant is in the process of robbing the victim.
165
Right of Aggressor to Use Self-Defense
If one is the aggressor in the confrontation, they may use force in defense of themself only if:
(1) They effectively withdraw from the confrontation and communicate to the other their desire to do so; or
(2) The victim of the initial aggression suddenly escalates the minor fight into a deadly altercation and the initial aggressor has no chance to withdraw.
166
Defense of Others
A Defendant has a right to defend others if they:
(1) Reasonably believe that the person assisted has the legal right to use force in their own defense. All that is necessary is the reasonable appearance of the right to use force.
Generally, no special relationship between the Defendant and the person in whose defense they acted. Minority is the familial relationship. But apply general rule unless told otherwise.
167
Defense of Dwelling
A person may use non deadly force in defense of their dwelling when, and to the extent that they reasonably believe that such conduct is necessary to prevent or terminate another's unlawful entry into or attack upon their dwelling.
Deadly force may be used only to prevent a violent entry and when the person reasonably believes that the use of force is necessary to prevent a personal attack on themself or another in the dwelling, or to prevent an entry to commit a felony in the dwelling.
168
Defending Possession
Deadly force may NEVER be used in defense of property. Reasonable, non-deadly force may be used to defend property in one's possession from what they reasonably believe is an imminent, unlawful interference.
Force may not be used if a request to desist or refrain from the activity will suffice.
169
Regaining Possession
A person may use force to regain possession of property that they reasonably believe was wrongfully taken only if they are in immediate pursuit of the taker.
i.e. Cannot take matter into your own hands and go after the thief after realizing 2 days later they stole your phone.
170
Crime Prevention
Non-deadly 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 if it appears reasonably necessary to terminate or prevent a dangerous felony involving risk to human life.
171
Use of Force to Effectuate Arrest (Police Officers)
Non-deadly force may be used by police officers if reasonably necessary to effectuate an arrest.
Deadly force is reasonable only if it is necessary to prevent a felon's escape AND the police officer reasonably believes that the felon threatens death or serious bodily harm.
172
Bystander Summoned by Police Officer
A bystander summoned by a police officer to assist them in making an arrest has the same authority to use force as the officer, and the bystander's good faith assistance is justified even if it turns out that the officer was exceeding their authority.
173
Private Person Right to Arrest
A private person has the same right to arrest as a police officer with the following exceptions:
(1) Private person has privilege to use non-deadly force to make arrest if a crime was in fact committed and the private person has reasonable grounds to believe the person arrested has in fact committed the crime;
(2) Private person may use deadly force only if the person harmed was actually guilty of the offense for which the arrest was made.
174
Resisting Arrest
Under the majority rule, non deadly force may be used to resist an improper arrest even if a known officer is making that arrest. (Minority of courts and the MPC do not allow one to resist a know police officer)
Deadly force may be used, only if the person does not know that the person arresting them is a police officer.
175
Duress Defense
Duress is a defense to a crime, other than intentional homicide, that the defendant reasonably believed that another person would imminently inflict death or great bodily harm upon them or a member of their family if the Defendant did not commit the crime.
Threats to harm a third person may also suffice to establish the defense of duress.
i.e. I had to go rob the market because they said they were going to kill my kids.
176
Threats to Property Defense
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.
177
Necessity Defense
Defense that defendant reasonably believed commission of crime was necessary to avoid imminent and greater injury to society.
This 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 (tornado, hurricane, earthquake); modern cases have abandoned this requirement.
i.e. tsunami waves are coming towards the island, guy steals from a canoe shop to get his family to safety. This would be valid necessity defense under CL.
178
Limitation - Death
Causing the death of another person to protect property is NEVER justified.
179
Limitation - Fault
The defense of necessity is not available if the Defendant is at fault in creating the situation requiring that they choose between two evils.
180
Duress Distinguished
Unlike necessity, duress ALWAYS involved a threat by a human.
181
Mistake or Ignorance of Fact Defense
Relevant to criminal liability if it shows the Defendant lacked state of mind required for the crime. Thus, it is irrelevant if the crime imposes strict liability (no defense to any type of mistake)
Specific intent - mistake can be unreasonable.
Any other state of mind - mistake must be reasonable.
182
Reasonableness for Mistake or Ignorance of Fact
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 a reasonable mistake or ignorance.
183
Mistake of Fact v. Factual Impossibility
Mistake of fact - there was never an intent to commit that crime;
Factual impossibility - defendant intended to commit the crime but they're mistaken about the facts that that they cannot commit the crime.
184
Mistake or Ignorance of Law Defense
Generally, not a defense that the Defendant believed that their 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.
185
Exceptions to Mistake or Ignorance of Law Defense
Defendant has a defense if:
(1) Statute proscribing their conduct was not published or made reasonably available prior to the conduct;
(2) there was reasonable reliance on a statute or judicial decision; or
(3) Some jx, there was reasonable reliance on official interpretation or advice.
186
Mistake or Ignorance of Law May Negate Intent
If the Defendant's mistake or ignorance as to a collateral legal matter proves that the Defendant lacked the state of mind required for the crime, they are entitled to acquittal.
The ignorance or mistake must involve the elements of the crime, not the existence of a statute making the act criminal.
i.e. Defendant cannot be found guilty of selling a gun to a known felon if the Defendant thought that the crime the buyer had been found guilty of was only a misdemeanor.
187
Entrapment
Entrapment occurs if the intent to commit the crime originated not with the Defendant but with law enforcement officers. Entrapment exists only if:
(1) The criminal design originated with law enforcement officers; and
(2) The Defendant was not predisposed to commit the crime prior to contact by the government.
* Defendant is usually always predisposed - had an intent to commit the crime.
Undercover officer buying drugs - discuss crime of entrapment. Entrapment is not a valid defense 99% of the time because it's almost always the person will have some predisposition to commit the crime. For this defense to work, the officer must urge D to commit the crime.
188
Entrapment by Private Citizen
A person cannot be entrapped by a private citizen.
189
Entrapment - Material for Crime Provided by Gov't Agent
Under federal law, an entrapment defense cannot be based solely on the fact that a gov't agent provided an ingredient for commission of the crime, even if the material provided was contraband.
190
Perjury
Intentional taking of a false oath (lying) in regard to a material matter in a judicial proceeding.
191
Subordination of Perjury
Subordination of perjury consists of procuring or inducing another to commit perjury.
192
Bribery
Under Common Law, 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 the 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 consists 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.
195
Criminal Law Essay Pointers
(1) Crimes
- Analyze each elements of the crime
(2) Defenses
*Look for trigger words that give rise to specific crimes.
- Trapped or confined - False Imprisonment
- Touched - Battery
- Fearful - Assault
- Breaking into a house - Burglary (remember it doesn't have to be stealing, just need intent to commit felony)
