Criminal Law Flashcards
(220 cards)
1
Q
What are the sources of law?
A
Common Law!, MPC, and majority rules
2
Q
What are the essential elements of a crime?
A
Physical act, mental state, causation, and concurrence.
3
Q
What are the two types of crimes?
A
Crimes against person and crimes against property
4
Q
What are the inchoate offenses?
A
Solicitation, conspiracy, and attempt
5
Q
What are the available defenses?
A
Insanity, intoxication, infancy, self-defense, necessity and duress, entrapment.
6
Q
Who has jurisdiction when it comes to criminal law cases?
A
Territorial. Crime may be prosecuted in any state where an act that was part of the crime took place or in any state where the result took place.
7
Q
When may VA courts take jurisdiction of criminal cases?
A
1) offense was committed wholly or partly w/in state; 2) attempt or conspiracy occurred outside the state and the act was committed w/in state; 3) attempt or conspiracy occurred inside the state to commit an offense outside the state.
8
Q
What is the proper venue in VA for a criminal case?
A
City or county where the crime occurred. May prove where the crime occurred by circumstantial evidence but must prove to the extent of creating a “strong presumption.”
9
Q
What does the prosecution have the burden of proving/disproving and what is the burden of proof?
A
P must prove each element of the crime beyond a reasonable doubt; P must also disprove every element of D’s defense beyond a reasonable doubt.
10
Q
What defense does P not have to disprove beyond a reasonable doubt?
A
Insanity. D must prove by a preponderance of the evidence.
11
Q
What is the difference between felony and misdemeanor?
A
Six classes of felony in VA that may be punished by more than 1 year in prison; 4 classes of misdemeanor in VA for which the maximum punishment may not exceed 1 year in prison.
12
Q
What is an “act” and why do you need it?
A
Voluntary bodily movement i.e. brain told muscle to move. If you have no act, you have no crime.
13
Q
What movements are not considered “acts”?
A
Sleepwalking, reflex or convulsion that you aren’t on notice of, someone else moves D.
14
Q
When can failures to act be the basis of criminal liability?
A
Requires 1) legal duty to act; 2) knowledge of the facts giving rise to the duty; 3) ability to help.
15
Q
What are the five ways a legal duty could arise?
A
Statute, contract or agreement, status relationship (parent-child, spouses), voluntary assumption of care (if you start rescuing, you must continue), creation of peril.
16
Q
What are the four mental states in criminal law?
A
Specific intent, malice, general intent, and strict liability.
17
Q
What is specific intent?
A
When the crime requires not just the desire to do the act, but also the desire to achieve a specific result.
18
Q
What are the specific intent crimes?
A
Assault, first degree premeditated murder, larceny, embezzlement, false pretenses, robbery, forgery, burglary, solicitation, conspiracy, and attempt.
19
Q
What is special about specific intent crimes?
A
Some defenses like mistake of fact and intoxication are available here but aren’t available with lower mental state reqs.
20
Q
What is malice?
A
When a D acts intentionally or with reckless disregard of an obvious or known risk.
21
Q
What are the CL malice crimes?
A
Murder, arson
22
Q
What is general intent?
A
D need only be generally aware of the factors constituting the crime; he need not intend a specific result. Jury can usually infer this from the doing of the act.
23
Q
What are examples of general intent crimes?
A
Battery, false imprisonment, kidnapping, forceable rape.
24
Q
What is strict liability?
A
Crime requires simply doing the act, no mental state needed.
25
What are the two types of strict liability crimes?
Public welfare offenses and statutory rape.
26
What are public welfare offenses?
Regulatory or morality offenses that typically carry small penalties. EX: selling booze to minor, corrupting morals.
27
What is statutory rape?
Having sex with someone under the age of consent.
28
What is mistake of fact?
D says required mental state didn't exist when crime committed. Whether this is a valid defense depends on the mental state required for the crime and whether the mistake is reasonable.
29
What is mistake of fact for a specific intent crime?
Any honest mistake (even an unreasonable one) is a defense.
30
What is mistake of fact for a general intent crime?
Only an honest and reasonable mistake will be a defense.
31
What is mistake of fact for a strict liability crime?
Mistake is never a defense.
32
How do we state the mistake of fact defense in terms of reasonableness?
A reasonable mistake will be a defense to any crime except SL crime; an unreasonable mistake will be a defense only to specific intent crimes.
33
What is mistake of law?
Not a defense. There are four rare ways this can be invoked: 1) statute specifically makes knowledge of the law an element of the crime, 2) statute was not available, 3) D reasonably relied on statute or judicial decision that was overruled or declared unconstitutional, 4) D relied on official interpretation or advice from someone charged with enforcement, admin, or interpretation of laws. Bad advice from attorney doesn't allow this claim.
34
What are the MPC mental states?
Intentionally, knowingly, recklessly, negligently?
35
What is MPC intentionality?
When it is D's conscious object to accomplish a particular result.
36
What is MPC knowingly?
When D is aware of what he is doing.
37
What is MPC recklessly?
When D is aware of a substantial and unjustifiable risk, and consciously disregards that risk.
38
What is MPC negligently?
When D should have known about a substantial and unjustifiable risk.
39
What is actual causation?
D is an "actual cause" if the bad result would not have happened BUT FOR D's conduct. If D is an accelerating cause, he is an actual cause.
40
What is proximate causation?
A D is a proximate cause if the bad result is a natural and probable consequence of D's conduct. Consider 1) foreseeability and 2) fairness.
41
What is the rule about eggshell victims?
D will be considered a proximate cause even if the V's preexisting weakness contributed to the bad result.
42
How do intervening causes interfere with proximate cause?
D will not be considered a proximate cause if an unforeseeable intervening event causes the bad result.
43
What is concurrence?
Must have the mental state at the same time as he engages in the act. Issues arise most frequently with larceny and burglary.
44
What is a battery?
The UNLAWFUL application of FORCE to another, resulting in either BODILY INJURY or OFFENSIVE TOUCHING. Mens rea: general intent.
45
What is assault?
Either (1) attempted battery or (2) the INTENTIONAL creation other than by MERE WORDS of a REASONABLE APPREHENSION in the mind of V of IMMINENT BODILY HARM. This requires specific intent.
46
What is aggravated assault and battery? (Majority statute rule)
Crime will be found more serious if any of the following: 1) a weapon is used, 2) the V is a child, elderly, handicapped, or otherwise vulnerable, 3) intent is to commit robbery or rape.
47
What is VA malicious wounding?
Malicious shooting, stabbing, etc., w/ intent to maim, disfigure, or kill. EX: injury by explosive, attempts to poison, adulteration of food, drink, other substances, etc.
48
What is VA aggravated malicious wounding?
If V is severely injured and suffers permanent and significant physical impairment.
49
What is VA wounding while committing a felony?
Shooting, stabbing, or displaying a firearm while committing or attempting to commit a felony.
50
In homicide, when must a V die in order to allow prosecution of D?
At CL, death must occur w/in a year and a day. Modern rule is that death can occur anytime.
51
What is the definition of murder?
Causing DEATH of ANOTHER PERSON with MALICE AFORETHOUGHT.
52
What are the specific types of malice aforethought?
1) intent to kill; 2) intent to inflict great bodily harm; 3) extreme recklessness; 4) felony murder.
53
What is the deadly weapon rule?
The intentional use of a weapon creates an inference of an intent to kill.
54
What is the rule of transferred intent?
If D intends to harm one V, but accidentally harms a different V, D's intent will transfer form intended V to actual V.
55
What is the exception to the rule of transferred intent?
Transferred intent does not apply to attempts, only to crimes with completed harms.
56
Under majority statutes, what are the types of first degree murder?
Intentional (any killing committed with premeditation and deliberation) or felony murder (i.e. killing during a particular enumerated felony).
57
What is voluntary manslaughter?
An INTENTIONAL KILLING committed in the HEAT OF PASSION after ADEQUATE PROVOCATION i.e. circumstances require some mitigation.
58
What are the two components of adequate provocation?
1) Provocation that would arose a sudden and intense passion in the mind of an ordinary person and 2) D didn't have time to cool off.
59
What are examples of adequate provocation?
Serious assault and battery, finding a spouse in bed with someone else. NEVER WORDS ALONE. Key = reasonableness of being provoked.
60
What is involuntary manslaughter?
A killing committed with CRIMINAL NEGLIGENCE (should have known) or a killing committed DURING A CRIME that doesn't arise to felony murder.
61
What is felony murder?
Any killing caused during the commission of or attempt to commit a felony.
62
What are the limits on felony murder?
D must be guilty of the underlying felony, the felony must be inherently dangerous, the felony must be separate from the killing itself, the killing must be during the felony or immediate flight, the killing must be in furtherance of the felony, death must be foreseeable, and V must not be a co-felon helping in the commission of the crime.
63
Are co-felons vicariously liable for each others felony murders?
Yes. Modern rule is if a co-felon causes a death satisfying FM rule, all other co-felons guilty of felony murder. At CL, all felons guilty of any death caused because of the felony (i.e. PO killing a bystander).
64
What is VA capital murder?
Willful, deliberate, and premeditated murder committed under one of 14 aggravating circumstances.
65
What is VA first degree murder?
Murder other than capital murder committed by poison, lying in wait, imprisonment, starvation, or any willful, deliberate and premeditated killing that doesn't fall w/in capital murder.
66
What is VA second degree murder?
This is where we presumptively start in addressing where a murder falls. The burden is on P to elevate it to first degree or capital murder and on D to reduce to manslaughter.
67
What are the felonies under which a felony murder charge may arise in VA?
Arson, rape, forcible sodomy, robbery, burglary, abduction, or inanimate object sexual penetration.
68
What is the VA felony murder rule?
Treat as first degree murder any murder committed whether intentional or accidental during the commission of an enumerated felony. A death that results not from the actions of the felon or from acts directly calculated to further the felony or necessitated by the felony but from circumstances coincident to the felony is NOT a felony murder.
69
What is VA felony homicide?
Accidental killing contrary to the intent of parties while committing some non-enumerated felonious act. Critical factor is the existence of a causal connection between the felony and the accidental killing.
70
What is the difference between felony homicide and 2d murder?
2d murder = not on felony murder list and intentional; felony homicide = not on felony murder list and accidental.
71
What is VA voluntary manslaughter?
Unlawful killing w/o malice. EX: killing during mutual combat.
72
What is VA involuntary manslaughter?
A killing of one accidentally contrary to the intention of parties either 1) during the performance of some unlawful but not felonious act or 2) during the improper performance of a lawful act amounting to criminal negligence.
73
What is false imprisonment?
UNLAWFUL CONFINEMENT of a person W/O THE PERSON'S CONSENT. Requires general intent.
74
What is kidnapping?
FALSE IMPRISONMENT that involves either MOVING the V or CONCEALING the V in a secret place. Requires general intent.
75
What is aggravated kidnapping?
Requires one of the following aggravating factors: purpose is to collect ransom, purposes is to commit robbery or rape, or V is a child.
76
What is aggravated abduction in VA?
Kidnapping with specific intent to extort $, rob or rape, or V is under 16.
77
What is VA kidnapping?
When a person, by force, intimidation, or deception, w/o legal justification or excuse, seizes, physically detains, takes, transports, or secretes another person w/ intent to deprive such person of personal liberty or to withhold or conceal him from another person, authority, or institution lawfully entitled to his charge. (Note: no asportation requirement.)
78
What is forcible rape?
SEX w/o V's CONSENT accomplished by force, threat of force, or when V is unconscious. Need general intent.
79
What is statutory rape?
SEX w/ someone under the AGE of CONSENT. Majority rule (VA) is that this is SL; MPC/Minority rule is that reasonable mistake of age is a defense.
80
What is VA rape's marital defense?
Largely abolished, but for marital rape it must be proven that spouses were living separate and apart or that D caused serious physical injury to V by force or violence.
81
What is VA's statutory rape law?
1) Sex with child under age 13 punished as rape; 2) Class 4 felony to have carnal knowledge of child older than 13 but younger than 15; 3) further limitations if accused is a minor and V consents.
82
What is larceny?
Trespassory taking and carrying away of the personal property of another with the intent to steal.
83
What does it mean to be "trespassory"?
Wrongful or w/o permission.
84
What is a "taking and carrying away"?
Property must be moved.
85
What is the "personal property of another"?
Key is possession. If D validly possesses property, he cannot be guilty of larceny. However, D can be guilty of larceny for taking his own property if someone else had valid possession.
86
What is "with the intent to steal"?
Specific intent to permanently deprive. If intent to return, no larceny; if D thinks property is his, no larceny.
87
What is the erroneous takings rule?
A taking under a claim of right is never larceny.
88
What is the continuing trespass rule?
If D wrongfully takes property w/o intent to steal, no larceny. BUT if D later forms the intent to steal, the initial trespassory taking is considered to have "continued," and he is guilty of larceny.
89
What is embezzlement?
Conversion of personal property of another by a person already in lawful possession of that property, with the intent to defraud.
90
What if D intends to give exact property back in exact form?
No intent to defraud. BUT money is never fungible.
91
What is the key difference between larceny and embezzlement?
D must already be in lawful possession of the property before a taking can be considered embezzlement. In companies, this means high level employees embezzle but low level employees commit larceny because they don't have sufficient control over funds.
92
Possession v. custody
Possession requires more than mere custody. It requires the authority to exercise some discretion over the property.
93
What is false pretenses?
Obtaining title to the personal property of another by an intentional false statement with the intent to defraud.
94
What is the difference between larceny and false pretenses?
In larceny, D gets only possession. In false pretenses, D gets title.
95
What are the requirements for D's "false statement"?
Must relate to a past or present event. Cannot be a lie about the future.
96
What is larceny by trick?
If D obtains possession only (not title) as a result of the intentional false statement, the crime is larceny by trick and not false pretenses.
97
What is robbery?
A larceny from another's person or presence by force or threat of immediate injury.
98
What is the required mental state for robbery?
Intent to steal.
99
What does the person or presence requirement for robbery mean?
Must take from V's vicinity or V's house while V is in it.
100
What is the requisite force for robbery?
Sufficient to overcome resistance. Picking a pocket without more is insufficient, but snatching a chain off someone's body is enough.
101
In crimes of theft, what are the different kinds of threat and their corresponding crimes?
Immediate injury = robbery; future injury = extortion; embarrassment = blackmail.
102
What is larceny in VA?
Any crime that would be larceny, embezzlement or false pretenses under CL may be charged as larceny.
103
What are the three ways larceny can become grand larceny in VA?
1) Larceny from the person of another taking money or things worth more than $5; 2) simple larceny not from the person of another taking goods or chattels worth $200 or more; 3) simple larceny not from the person of another, taking any firearm, regardless of value.
104
What is the VA presumption of larceny (minority rule)?
One in unexplained possession of recently stolen property can be presumed to be guilty of larceny.
105
What is the relationship between larceny and robbery?
Larceny is a lesser included offense.
106
What is extortion in VA?
Threatening injury to the character, person, or property of another or accusing another of any offense and thereby extorting money, property, pecuniary benefit, or any note or other evidence of a debt. OR sending a note or an electronic communication threatening to kill or do great bodily harm to V or family.
107
What is forgery?
Making or altering a writing so that it is false with the intent to defraud.
108
What is uttering?
Offering as genuine a forged instrument with the intent to defraud.
109
What is malicious mischief?
Destroying or damaging someone else's property with the intent to defraud.
110
What is the crime of "possession"?
When a statute criminalizes the possession of contraband, "possession" means 1) CONTROL for a period of time long enough to have and 2) OPPORTUNITY TO END THE POSSESSION.
111
What is constructive possession?
The contraband need not be in D's actual possession so long as it is close enough for him to exercise dominion and control over it.
112
What is the requisite mental state for possession?
Knowledge.
113
What is CL burglary?
Breaking and entering the dwelling of another at night with the intent to commit a felony inside.
114
What is CL "breaking"?
Creating or enlarging an opening by FORCE. Includes breaking or opening a window, opening a door. Doesn't include climbing through an already open window or entering with permission.
115
What is CL "entry"?
Some part of D's body must enter the building.
116
What is CL "dwelling"?
A structure where someone regularly sleeps.
117
What is CL "at night"?
Countenance of person can't be discerned by natural light.
118
What is CL "intent to commit a felony inside"?
Specific intent to commit a felony is required.
119
What are VA's statutory modifications and modern requirements for burglary?
Entry into houses, offices, shops, occupied outhouses, etc. w/ intent (often inferred from unauthorized presence).
120
Does VA require a "breaking" to get to burglary?
In daytime, yes. At night, burglary w/ or w/o a breaking.
121
What is CL arson?
The malicious burning of a building. Need malicious intent or reckless disregard.
122
What is "burning"?
Requires the material wasting of the structure. Mere scorching is not enough.
123
What are the typical statutory developments for arson?
CL used to limit arson to dwellings and D couldn't commit arson on own property. Now, arson may be committed on all buildings and on own property.
124
What is VA arson?
The malicious burning (incl. by use of explosive) or destruction of any building.
125
What dwellings are included in VA arson statutes?
Any structure or building in which persons usually dwell or lodge including manufactured homes, boats, trailers, hotels, hospitals, mental health facilities, houses of worship, RR cars, vessels, jail, or prison but not outhouses.
126
What are the definitions for principal and accomplice?
The person who commits the crime is the principal. The person who helps is the accomplice. Accomplice must AID or ENCOURAGE the principal w/ the INTENT that the crime be committed.
127
What is the modern law approach to accomplice liability (for the MBE)?
Individuals can be held responsible for the crimes of others if govt shows 1) D provided assistance to the person committing the crime AND 2) D did so intentionally.
128
What are the four CL categories of parties to the crime?
Principal in first degree, principal in second degree, accessory before the fact, and accessory after the fact.
129
What is the principal in first degree?
The criminal actor who, with the requisite criminal intent, is present at the scene of the crime and commits at least one element of the crime or does so through an agent.
130
What is the principal in the second degree?
One who not only is present but also commits some OVERT ACT or shares in perpetrator's CRIMINAL INTENT. EX: lookout, get away driver.
131
What is an accessory before the fact?
One who is not at the scene of the crime, but who provides assistance ahead of time.
132
If you are a principal in first or second degree or an accessory before the fact, what crime are you guilty of?
The underlying offense.
133
What is an accessory after the fact?
To commit the separate CL offense of being an "accessory," D must ASSIST principal who committed a felony with KNOWLEDGE crime has been committed and with INTENT to help principal avoid arrest or conviction.
134
What is the accomplice guilty of?
All crimes that he aided or encouraged and all other foreseeable crimes committed along with the aided crime. VA has a narrow view on foreseeability.
135
What is the CL rule about the unprosecuted principal?
If principal wasn't prosecuted or had an individual defense, accomplice not guilty.
136
What is the modern majority rule for the unprosecuted principal?
Most jurisdictions abolished distinctions between principals in first degree, principals in second degree and accessory before the fact. Thus, all parties to the crime can be found guilty, regardless of whether the principal has been prosecuted.
137
Who is NOT an accomplice?
Those who are 1) merely present, 2) who have mere knowledge of the crime, and 3) members of the protected class (victims) can't be accomplices.
138
What happens when an accomplice changes his mind?
One who only encouraged a principal may withdraw by discouraging the crime before it's committed. One who actually helped the principal must either neutralize the assistance or prevent the crime.
139
In VA, what is the rule about accomplice liability?
Follow the CL. In felony cases, every principal in second degree and accessory before the fact may be indicted, tried, convicted, and punished in all respects as if a principal in the first degree. Accessory after the fact is a separate crime.
140
What is the exception to the VA rule of accomplice liability?
Only the principal in the first degree can get the death penalty. A principal in the second degree or accessory before the fact can get a max of life UNLESS murder for hire or act of terrorism.
141
Is it necessary for the principal in the first degree to be convicted in VA for accomplice liability to follow?
No. BUT it must be shown that a crime has been committed by the principal before the accessory can be convicted.
142
How can an accomplice withdraw in VA?
Regardless of whether a person aided or encouraged, in order to withdraw for a completed felony, A must withdraw before COMPLETION and withdraw all aid and encouragement as evidenced by ACTS or WORDS showing confederates disapproval of opposition to the contemplated crime.
143
What is critical about VA withdrawal?
Must be made in DUE TIME and withdrawer must do everything to detach himself from the criminal enterprise and to prevent the consummation of the crime.
144
What is solicitation?
Asking someone to commit a crime with the specific intent that the person you're asking commit the crime. The crime is in the asking i.e. completion of the crime is unnecessary.
145
What is conspiracy?
An AGREEMENT between two or more people to commit a crime plus an OVERT ACT in furtherance of the crime.
146
What is an "overt act"?
Any act of preparation (minimal requirement). CL did not require an overt act, but majority now do.
147
What is the mental state for conspiracy?
Specific intent to accomplish the conspiracy's objective.
148
Is completion of a conspiracy necessary?
No. The crime is in the agreement. Why? Group criminal acts are more dangerous.
149
Can you have a one person conspiracy at CL?
No. Must have at least 2 guilty minds, both of whom actually agree to accomplish the conspiracy's objectives. Consequently, if all other parties to the agreement are acquitted, the last remaining D can't be convicted.
150
Can you have a one person conspiracy under the MPC?
Yes. Under the unilateral approach, D may be guilty of conspiracy even if the other parties are acquitted or were just pretending to agree.
151
What is the CL rule for vicarious liability?
In addition to conspiracy, D will be liable for other crimes committed by co-conspirators, so long as those crimes were 1) in furtherance of conspiracy's objectives and 2) foreseeable.
152
What is VA conspiracy's bilateral approach?
Conspiracy is committed when there is an agreement between 2+ persons, entered into w/ intent to commit a felony.
153
Can a police officer be a co-conspirator?
NO! Under CL and VA, accused may not be convicted for conspiracy w/ police officer and the officer's CI.
154
Does VA conspiracy require an overt act?
NO! This is different from MBE. Conspiracy is committed when the agreement to commit the offense is complete.
155
Does VA allow separate trials for underlying crime and conspiracy?
If D already tried and convicted of act he also conspired to commit, he is subject to conviction only for the completed substantive offense.
156
What are the exceptions to the VA conspiracy and underlying offense conviction rule?
(1) Conspiracy conviction is not barred where it is based on acts separate from the substantive conviction. (2) D may be convicted of both the completed substantive offense and the underlying conspiracy if convictions occur in a single trial.
157
What if D is acquitted of the underlying felony in VA conspiracy?
Subsequent prosecution for conspiracy is barred.
158
What is the VA co-conspirator's hearsay exception?
Statement made in furtherance and during the course of the conspiracy.
159
What is the MPC/majority test for attempt?
Conduct that is a substantial step toward the crime and strongly corroborative of a criminal purpose. Must be beyond mere preparation.
160
What is the CL test for attempt?
Conduct that gets dangerously close to the commission of the crime.
161
What is the VA test for attempt?
A direct act done with intent to commit the crime but which falls short of completing the crime. Similar to MPC substantial step.
162
What is the mental state required for attempt?
Specific intent to commit the crime. You cannot attempt unintentional crimes. There is no attempted reckless crime, negligent crime, or felony-murder. It is only possible to commit malice, general intent, or SL crimes.
163
What is factual impossibility?
Defense to specific intent crimes, not a defense to attempt. Claim it was impossible to complete the crime because of some circumstance beyond D's control.
164
What is legal impossibility?
Claim it was impossible to complete the crime because what D was trying to do was not illegal. This is a defense to attempt.
165
What is withdrawal from a conspiracy at CL?
Withdrawal is not a defense. Once D withdraws he will no longer be vicariously liable for crimes committed by his co-conspirators after he left the conspiracy.
166
What is withdrawal from a conspiracy under MPC?
Withdrawal can be a defense only if 1) D voluntarily and completely renounces the solicitation, conspiracy, or attempt, AND 2) renunciation based on a change of hear not a fear of failing or being caught.
167
What is the rule for lesser included offenses i.e. merger?
A lesser included offenses is an offense that is necessarily part of the greater offense. Every element of the lesser offense is also an element of the greater offense. A lesser included offense merges with the greater offense.
168
What are the merger rules for inchoate offenses?
Attempt merges with the complete crime; conspiracy does not merge; solicitation merges with the complete crime and conspiracy.
169
What are the capacity defenses?
Insanity, intoxication, and infancy.
170
What is the constant requirement for insanity?
D must have a mental disease or defect.
171
What are the four different tests of insanity that gauge whether a mental disease or defect renders D legally insane?
M'Naughten, Irresistible impulse, product test, and MPC.
172
Which two of the insanity tests are good law in VA?
M'Naughten and irresistible impulse.
173
What is the M'Naughten test?
D either (1) did not know his act was wrong OR (2) did not understand the nature of his act.
174
What is the irresistible impulse test?
D either was (1) unable to control actions OR (2) was unable to conform conduct to law.
175
What is the product test?
Only NH follows. Crome was the product of mental illness.
176
What is the MPC test for insanity?
D lacked the substantial capacity to either (1) appreciate the criminality of his conduct or (2) conform his conduct to law.
177
What must D do when he wants to raise the insanity defense?
First, give VA attorney written notice at least 60 days prior to trial that D will use insanity defense. Second, D has burden of proving to satisfaction of jury that D was insane (odd standard).
178
Insanity v. incompetency.
Insanity: issue is whether D was insane at the time of crime and if yes D is not guilty. Incompetency: issue is whether D is insane at time of trial and if yes trial adjourned until D is competent.
179
What is involuntary intoxication?
Defense to any crime and treated like mental illness so apply insanity tests. KEY: intoxication must be completely involuntary i.e. roofies.
180
What is voluntary intoxication at CL?
Can be a defense to specific intent crimes if intoxication prevents D from forming specific intent.
181
What is voluntary intoxication in VA?
Not a defense even for specific intent crimes UNLESS it produced permanent insanity.
182
What is the exception to the VA voluntary intoxication rule?
Defense to crime of first degree or capital murder if a person is so greatly intoxicated as to be unable to deliberate and premeditate. BUT mere intoxication from drugs or alcohol is not sufficient by itself to negate premeditation.
183
What is infancy at CL?
If under age 7, prosecution not allowed. Between 7 and less than 14, presume against prosecution. Over 14, prosecution allowed.
184
What is infancy in VA?
Assume incapable of forming intent under age 7. If under age 14, rebuttable presumption of incapacity (weaker as child grows older). Over 14, presume capacity.
185
What is the difference between deadly and non-deadly force for the purposes of self-defense?
Shoves and punches = non-deadly. Guns and knives = deadly.
186
When may a D use non-deadly force in self-defense?
It is (1) reasonably necessary (2) to protect against imminent use (3) of unlawful force against himself.
187
When may a D use deadly force in self-defense?
D is facing imminent threat of death or serious injury.
188
What is the aggressor rule for self-defense?
A D may not use deadly force if he is the initial aggressor. He may regain right to use deadly force if he first withdraws from the fight AND communicates that withdrawal to the other person OR the V suddenly escalates a non-deadly fight into a deadly fight.
189
What is the retreat rule under majority/VA law?
D not required to retreat before using deadly force in self-defense. "True man rule."
190
What is the minority jurisdiction retreat rule?
Retreat required unless 1) D can't retreat in complete safety, 2) D is in his home (castle exception), 3) D is making a lawful arrest, OR 4) D is in the process of being robbed.
191
What are the VA rules for use of non-deadly force?
D may use physical force to defend himself if reasonable appearance (determined from subjective view of D at time he acted) that use of force was justified. No duty to retreat but use of force must be reasonable under the circumstances.
192
What is the VA defender w/o fault rule for use of deadly force?
Person claiming self-defense must be w/o fault and show an imminent danger of death or great bodily injury.
193
What is the VA present danger rule for use of deadly force?
If used in self-defense to a threat, there must be a present danger of death or great bodily injury--words alone are insufficient and fear of life and safety must be reasonable.
194
What is the VA retreat rule for use of deadly force?
Retreat not required when confronted w/ aggressor unless D at fault or provoked aggressor in which case he must retreat as far as safely possible before using deadly force. If on own property, no duty to retreat but force must be reasonably calculated to repel the intruder.
195
What is the VA right of the aggressor rule for use of deadly force?
Right of aggressor to use force in self-defense may be regained after total abandonment of the original attack.
196
What if D is mistaken about need to use self-defense?
If it's a reasonable mistake, still claim self-defense. If it's an unreasonable mistake, no defense at CL, but under minority/MPC rule, imperfect self-defense claim for unintentional killing based on unreasonable belief in the need to use self-defense = voluntary manslaughter not murder.
197
What if D is using force to prevent a crime?
Nondeadly force may be used if necessary to prevent a crime. Deadly force may only be used to prevent a felony risking human life.
198
What is the majority rule for defense of others?
A D may use force and deadly force to protect others if he reasonably believes that the person he is assisting has a legal right to use force.
199
What is the minority/VA rule for defense of others?
D steps into the shoes of the person he defends, so if person he defends has no legal right to use force in self-defense D has no right.
200
What is the right to use non-deadly force in defense of a dwelling?
A person is justified in using non-deadly force when she reasonably believes it is necessary to prevent or terminate another's unlawful entry.
201
What is the right to use deadly force in defense of a dwelling?
Justified when either (1) tumultuous (riotous or violent) entry plus D reasonably believes use of force necessary to prevent personal attack on self or another in dwelling OR (2) D reasonably believes force necessary to prevent entry by person who intends to commit a felony in the dwelling.
202
What is the right to use force in defending a dwelling in VA?
Nondeadly force may be used to prevent entry but deadly force may only be used when fearing great bodily injury.
203
When may non-deadly force be used in defending property?
Defend property in one's possession from unlawful interference--need to use non-deadly force must reasonably appear imminent and cannot use force to regain possession unless in immediate pursuit of taker.
204
When may deadly force be used in defending property?
Defense of property alone can NEVER justify use of deadly force. VA holds to this rule.
205
When may D use force in resisting arrest?
If D knows or reasonably should know that the person performing the arrest is a police officer, if the arrest is improper D may use non-deadly force to resist the arresting officer.
206
What is the rule about the necessity defense?
It is a defense to criminal conduct if D reasonably believed the conduct was necessary to prevent a greater harm.
207
What is the exception to the necessity defense?
Necessity can't be a defense to homicide.
208
What is the rule regarding the duress defense?
It is a defense if D was forced to commit a crime under the threat of death or serious physical injury.
209
What is the exception to the duress defense?
Duress can't be a defense to homicide.
210
What is entrapment?
If gov't unfairly tempted D to commit the crime, he may claim entrapment.
211
When does the entrapment defense work?
(1) Criminal design originated w/ govt AND (2) D not predisposed to commit the crime.
212
What is the VA rule about the entrapment defense?
Govt may use prior crimes to show predisposition if prior crime is 1) close in time, 2) similar crime, and 3) probative value outweighs the prejudice.
213
What is perjury?
Willful false swearing regarding material matter while under a lawfully administered oath, or subsequently giving conflicting testimony under oath to the same matter.
214
What can a person convicted of perjury not do in VA?
Hold office or serve as a juror.
215
What is subornation of perjury?
Inducing another to give false, material testimony D can be punished as though he committed perjury.
216
What is bribery?
A corrupt gift or offer to a public official or candidate w/ intent to influence his official acts. Accepting a bribe is also a crime if recipient is a public employee, official, or candidate for office.
217
What is obstruction of justice?
Attempt to intimidate a W, officer of the court, or law enforcement officer, OR to knowingly and willfully make false statements or representations to a law enforcement officer who is conducting an investigation of a crime allegedly committed by another party.
218
What is false reports?
Knowingly giving false reports w/ intent to mislead police officers as to the commission of a crime.
219
What is concealing/compounding an offense?
Taking money to compound, conceal, or not prosecute an offense OR willfully concealiing or destroying evidence w/ intent to hinder prosecution of D charged w/ crime against another.
220
What is resisting arrest?
When a person prevents a law enforcement officer w/ or w/o a warrant from lawfully arresting him.
