Criminal Law 2 Flashcards
(32 cards)
What is the starting point for analysis when discussing whether a crime has occured?
The four elements of a crime that must be proved are:
Physical act (actus reus);
Mental State element (mens rea);
Causation (actual and proximate cause); AND
Concurrence (mental state and physical act occur at the same time).
What is the common law definition of murder?
What is required to be guilty of common law murder?
When is a defendant the actual cause of murder?
When is the defendant the proximate cause of murder?
How does an intervening cause impact foreseeability?
The (i) unlawful (i.e., without a legal excuse) (ii) killing (iii) of another human being (iv) committed with malice aforethought.
To be guilty of common law murder, a defendant must have acted with the requisite mens rea of malice aforethought. The prosecution must prove the defendant’s act was both the actual (“but for”) and proximate (legal) cause of the victim’s death.
If a victim would not have died “but for” the defendant’s act, then the defendant’s act is the actual cause (i.e., “cause-in-fact”) of the killing. And when a defendant sets in motion forces that lead to the death of the victim, the defendant is the actual cause of the victim’s death.
Proximate cause exists only when the defendant is deemed to be legally responsible for the crime. For the defendant to be legally responsible for the crime, the victim’s death must be foreseeable. That is, the death must be the natural and probable result of the defendant’s conduct (i.e., not too remote or accidental in its occurrence as to be unforeseeable). Actions by a third party or the victim are also generally foreseeable.
No. An intervening cause will not relieve the defendant of criminal responsibility unless it was so out of the ordinary that it would be unjust to hold the defendant responsible.
What are the specific intent crimes?
What are the general intent crimes?
What are malice crimes?
The common-law crimes that require specific intent are
- First-degree murder
- Inchoate offenses – attempt, solicitation, and conspiracy
- Assault with intent to commit battery
- Theft offenses – larceny, larceny by trick, false pretenses, embezzlement, forgery, burglary, and robbery
(FIAT)
General-intent crimes are (manslaughter, battery, rape, kidnapping, false imprisonment) and require only the intent to perform an unlawful act.
Malice crimes (e.g., common-law murder, arson) require reckless disregard of a high risk of harm. Malice does not require that a defendant act with ill will toward the victim. The defendant need only
commit the criminal act without excuse, justification, or mitigation.
What type of killing of a co-felon will support a felony-murder conviction? (P1)
What is the Redline doctrine?
The death of a cofelon (i.e., an accomplice) can support a felony-murder conviction when the defendant unintentionally kills the cofelon while committing or attempting to commit the inherently dangerous felony.
However, most jurisdictions do not consider it felony murder when a cofelon is killed by a victim or a police officer during the commission of an inherently dangerous felony. This is known as the “Redline Doctrine”
What is the doctrine of merger?
What are the two main categories? (P1)
What crimes do not merge? (P3)
Under the doctrine of merger, a defendant can be convicted of more than one crime arising out of the same act. However, a defendant cannot be convicted of two crimes when those two crimes merge.
Two main categories of merger are:
1) Lesser-included offenses (assault merging with robbery) (underlying felony merging with felony murder)
Ex: Since larceny and assault/battery are lesser included offenses to robbery, they merge into the completed robbery. Therefore, the defendant may only be convicted of robbery—not its constituent offenses.
2) The merger of an inchoate and a completed defense (solicitation and attempt merging with murder)
Ex: Modern law applies the merger doctrine to solicitation and attempt. This means that a
defendant may be tried, but not punished, for (1) solicitation and the completed crime or (2) attempt and the completed crime.
Under the modern view, the crime of conspiracy does not merge into the completed target crime. Note: However, at common law, conspiracy and attempt do not merge with the completed crime.
What are the elements for conspiracy under the MPC? (majority view) (P1)
What is required under the common law approach?
Under the MPC (majority view) conspiracy requires that:
(1) the defendant enter into an agreement to commit a crime,
(2) the defendant specifically intend that the crime be committed, and
(3) at least one conspirator commit an overt act.
Note: Since the MPC follows the unilateral approach, only one party need actually agree to the conspiracy. (Contrast with common-law bilateral approach)
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Under the common law approach, all that is required is for two or more people to enter into an agreement to commit a crime. But no overt act is needed.
How does the dangerous proximity test differ from the substantial step test?
What is never a defense to attempt? (P1)
Under the substantial step test, a person is guilty of an attempted crime if the person took a substantial step toward completing a crime beyond conduct done in mere preparation. The act must be conduct in furtherance of the crime.
Under the dangerous-proximity test (minority rule), an act occurs when the defendant is so close to completing the target crime that it is essentially unstoppable.
Factual impossibility. It does not matter whether the crime attempted is factually impossible to commit due to circumstances unknown to the defendant.
What is involuntary manslaughter? (use instead of brainscape definition) (E1)
How does criminal negligence (minority approach) differ from recklessness (majority approach)?
Involuntary manslaughter is an unintentional homicide that is either committed either 1) committed while the defendant is engaged in an unlawful act; or 2) recklessly (majority approach) or 3) with criminal negligence (minority approach).
Criminal negligence is a grossly negligent action that puts another person at a significant risk of serious bodily injury or death. It requires more than ordinary tort negligence, but less than the conduct required for depraved-heart murder. (i.e., can be convicted if a reasonable person in the same position would have been aware that their conduct creates an unreasonable risk of death or serious bodily injury).
By contrast, involuntary manslaughter in some jurisdictions and under the Model Penal Code (MPC) only requires the defendant’s conduct to have been reckless. Reckless conduct is defined as “a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.” And this second approach requires the defendant to have been actually aware of the risk his conduct posed.
For a finding of involuntary manslaughter, there must be a causal connection between the defendant’s criminally negligent or unlawful act and the death.
What is involuntary intoxication and when does it apply? (new def) (P2)
When does voluntary intoxication not apply?
Involuntary intoxication is the unknowing or forcible ingestion of an intoxicating substance is a defense to any crime if it 1) negates an element of the charged crime or 2) placed the defendant in the same mental state required for an insanity defense. It is a defense to specific, general intent, malice, and strict liability crimes (all crimes)
Voluntary intoxication is a defense to specific intent crimes, but NOT a defense to general intent, malice crimes, or strict liability crimes
What is the Pinkerton Rule? (P2)
Under the Pinkerton Rule, a conspirator is criminally liable for any foreseeable crimes committed by a co-conspirator acting in furtherance of the conspiracy, regardless of whether they had knowledge of those crimes.
When can an initial aggressor claim self defense? (P2)
An initial aggressor can claim self-defense only if (1) the aggressor’s use of non-deadly force was met with deadly force or (2) the aggressor, in good faith, completely withdrew from the altercation and communicated that fact to the victim.
When can mistake of fact be used as a defense to a general, specific intent, and strict liability crimes? (P2)
When can mistake of law be a valid defense?
What about if they relied on erroneous legal advice? (P3)
Mistake of fact is a defense to specific intent and general intent crimes (because it negates the mens rea). It only applies as a defense to general intent crimes if the mistake was REASONABLE and HONESTLY made.
For specific intent crimes, it can apply even if the mistake was UNREASONABLE as long as it was HONEST.
Note: But it is never a defense to strict liability crimes like bigamy—because they have no mens rea requirement
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Under the common law mistake of law provides no no defense. Under the MPC, it may provide a defense if the mistake negates the requisite mental state.
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A mistake of law based on erroneous legal advice is generally no defense to criminal liability. However, reliance on such advice may serve as a defense when the mistake negates the required mental state.
How is “breaking” and “entering” defined for the purposes of burglary? (E2)
What is a wrinkle to look out for regarding breaking and entering?
“Breaking” is generally accomplished by using force to create an opening into a dwelling, but slight force, such as pushing open a window that was ajar, satisfies this element.
“Entering” occurs when any portion of the defendant’s body crosses into the dwelling without permission through the opening created by the breaking.
Note: Even if someone originally entered the home with permission, they can still be charged with burglary for breaking and entering a SPECIFIC ROOM in the house (i.e. a closed door) without permission, which is sufficient to satisfy the breaking and entering requirement. However, they still must have intent to commt a felony when entering the room to be convicted of burglary.
What is the “continuing trespass” rule for larceny and how does it relate to “after-acquired” intent? (E2)
When an initial taking was trespassory but there was no intent at the time to permanently deprive the person of the property, then the continuing trespass rule serves to deem the original trespass “continuing” so that it coincides with “after-acquired” criminal intent.
“After-acquired” intent may be sufficient to find the necessary intent for larceny under the continuing trespass rule.
How is embezzlement defined in the context of trust funds?
How is conversion defined? (E2)
How is the amount of embezzlement measured?
Embezzlement is the conversion of lawfully possessed property that belongs to another
Conversion is the inappropriate use of property, held pursuant to a trust agreement, which causes a serious interference with the owner’s rights to the property.
The amount of an embezzlement is measured by the value of the property at the time of conversion.
How is “knowledge” of stolen property evaluated for embezzlement? (E2)
The act of receiving the property must coincide with the recipient’s knowledge that the property is stolen.
Some jurisdictions require that the defendant have actual, subjective knowledge that the property has been stolen.
Other jurisdictions permit the defendant’s knowledge to be inferred from facts that would alert a reasonable person to unlawful acquisition of the property.
What are strict liability crimes where no mens rea is required? (P3)
Statutory rape, bigamy, and violations of food or drug regulations
When does causation exist for felony murder?
What is the agency theory vs. proximate cause theory of felony murder? (P3)
Causation exists if the victim would not have died but for the defendant’s conduct (actual causation) and the death was foreseeable (proximate causation) and closely related in time and space.
Under the agency theory of felony murder (majority rule), a defendant is responsible for deaths proximately caused by him/herself or cofelons during the commission or attempted commission of an inherently dangerous felony—but not for deaths caused by others.
Under the proximate cause theory (minority rule) the defendant is responsible for deaths caused by any person (e.g., cofelon, police, bystander)
General note: A killing of another person that occurs during the commission of an inherently dangerous felony can qualify as felony murder, even if the killing occurs accidentally (as long as it was a natural and probable result of the accident and still closely connected to the commission of the felony)
How does the common law vs. the modern (majority) view differ on accomplice liability? (P3)
At common law, an accomplice could be convicted of the crime only if the principal was previously convicted.
However, under the modern majority view, an accomplice may be convicted of a crime even if the principal is not tried, is not convicted, has received immunity from prosecution, or is acquitted.
What is forgery? What does “making” mean? (P3)
Forgery is (1) the making of a false writing of apparent legal significance with (2) the specific intent to defraud.
“Making” includes creating a document, altering a document, or fraudulently inducing another to sign a document when that person is unaware of the significance of the document.
When a statute does not specify the requisite mental state, what is the minimum required mental state according to the MPC? (P3)
Recklessness—i.e., the conscious disregard of a substantial and unjustified risk
What is the main limitation on accomplice liability?
Does accomplice liability require providing aid that is necessary/ultimately used in the commission of a crime?
Under what three situations is a person not liable as an accomplice (P3)?
Can accomplice liability be imposed for a crime merely requiring the principal to act intentionally or recklessly (i.e., involuntary manslaughter)?
Mere knowledge that another person intends to commit a crime or merely being present is not enough to make a person an accomplice.
No. Accomplice liability is imposed when a person provides even slight aid or encouragement, even when that assistance is not necessary to complete the crime.
A person is not liable as an accomplice if (1) the crime requires more than one participant, (2) the criminal statute imposes liability on only one participant, and (3) the person acts as the non-liable participant.
Yes. However, when the crime committed by the principal only requires the principal to act recklessly or negligently (e.g., involuntary manslaughter), a person may be an accomplice to that crime under the majority rule if the person merely acts recklessly or negligently with regard to the principal’s commission of the crime, rather than purposefully or intentionally
What qualifies as “adequate provocation” for voluntary manslaughter?
Can mere words or battery count?
What is transferred provocation?
Note: Remeber, voluntary manslaughter is the killing of a victium in a heat of passion generated by adequate provocation OR while acting in imperfect self defense
A serious battery, a threat of deadly force, or discovery of adultery by a spouse constitutes adequate provocation.
Usually mere words, such as taunts, are not adequate provocation. However, words that convey inflammatory or offensive information may cause an immediate and intense emotional response that is sufficient. Battery can also count as adequate provocation
When the defendant, because of a reasonable mistake of fact, errs in identifying her provoker or accidentally kills the wrong person, she will be guilty of voluntary manslaughter (not murder) if that would have been her crime had she killed the provoker. This is referred to as “transferred provocation.
What do all murders require proof of? (starting point for analysis)
What is something to look out for when you’ve narrowed between involuntary manslaughter and murder?
Malice aforethought.
I.e., you can’t get to first degree murder without malice aforethought as a prerequisite
Note: Be on the lookout for questions which ask “what is the most serious crime for which a person can/could be convicted” vs. “which crime should they be convicted for”. The former is from the perspective of the prosecutor, the latter is from the perspective of the criminal defense attorney.
Ex: If a question asks about you can/could, and you narrow down between involuntary manslaughter and murder. Murder may apply even if it is not the “best” or most closely fitting answer, as long as the prosecution could make an argument for a depraved heart murder (A reckless disregard of an extreme risk to human life)
