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Flashcards in Criminal Law Deck (147)
1

What are the multistate sources of criminal law?

  1. Common law
  2. Model penal code (MPC)
  3. Majority statutory rules

2

What are the essential elements of crimes?

  1. Physical act
  2. Mental state
  3. Causation
  4. Concurrence

3

What crimes are sufficiently specific?

  • Crimes against a person
  • Crimes against property

4

What is liability for the conduct of others called?

Accomplice liability

5

What are the inchoate offenses?

  1. Solicitation
  2. Conspiracy
  3. Attempt

6

What are the criminal defenses?

  1. Insanity
  2. Intoxication
  3. Infancy
  4. Self defense (self, others, property)
  5. Necessity & duress
  6. Entrapment
  7. Mistake of fact or law

7

How does criminal law jurisdiction work in general?

Criminal law jurisdiction is territorial

A crime may be prosecuted in any state where either:

  • An act that was part of the crime took place
  • The result of the crime took place

8

How does criminal law jurisdiction work in Virginia?

Virginia state courts can exercise jurisdiction if:

  1. The offense was committed wholly or partly in the state
  2. An attempt or conspiracy occurred
    • Outside the state, but the necessary act took place in the state
    • Inside the state, but the necessary act took place outside the state

9

How does criminal law venue work in Virginia?

The trial must take place in the city or county where the crime occurred

The Commonwealth may prove where the crime occurred by circumstantial evidence but must do so by creating a strong presumption

10

What is the burden of proof in a criminal case?

What does that mean regarding elements of the crime?

What does that mean regarding elements of any defense?

The prosecution must prove each element of the crime beyond a reasonable doubt

The proseuction must disprove each element of any defense raised beyond a reasonable doubt

11

Are there any exceptions to the burden of proof in a criminal case?

In most states, the insanity defense must be proven by the defendant by a preponderance of the evidence

12

What is a felony?

Any crime that may be punished by more than 1 year in prison

13

What is a misdemeanor?

Any crime for which the maximum punishment may not exceed 1 year in prison

14

What are the different classes of felonies in Virginia?

  • Class 1
    • Death or life in prison
  • Class 2
    • 20 years to life
  • Class 3
    • 5-20 years
  • Class 4
    • 2-10 years
  • Class 5
    • 1-10 years, or
      • Up to 1 year in jail, and/or
      • Up to a $2,500 fine
  • Class 6
    • 1-5 years, or
      • Up to 1 year in jail, and/or

      • Up to a $2,500 fine

15

What are the different classes of misdemeanors in Virginia?

  • Class 1
    • Up to 1 year in jail, and/or
    • Up to a $2,500 fine
  • Class 2
    • Up to 6 months in jail, and/or
    • Up to a $1,000 fine
  • Class 3
    • Up to a $500 fine
  • Class 4
    • Up to a $250 fine

16

What is the physical act requirement for criminal liability?

What are examples that don't meet the requirement?

An act is a voluntary bodily movement

The following are not physical acts:

  • Sleepwalking or other unconscious movements
  • Reflex or convulsion
    • Blackout on medications once, not an act
    • Blackout on medications 2 or three times, you have notice so it is an act
  • Someone else moves the defendant

17

When can a failure to act (i.e., an omission) meet the physical act requirement as a the basis for criminal liability?

The defendant must have:

  1. legal duty to act, based on:
    • Statute (e.g., filing tax returns)
    • Contract or agreement (e.g., babysitter)
    • Status-relationship, but only:
      • Parent-child
      • Spouse-spouse
    • Voluntary assumption of care (e.g., starting to help)
    • Creation of a peril (e.g., causing the problem)
  2. Knowledge of the facts giving rise to the duty
  3. The ability to help

18

What are the common law mental states?

  1. Specific intent
    •  
  2. Malice
    •  
  3. General intent
    •  
  4. Strict liability
    •  

19

What is specific intent?

What are the specific intent crimes?

Specific intent is when the crime requires not just the desire to do the act, but also the desire to achieve a specific result

  1. Assault
  2. M1
  3. Larceny
  4. Embezzlement
  5. False pretenses
  6. Robbery
  7. Forgery
  8. Burglary
  9. Solicitation
  10. Conspiracy
  11. Attempt

("A Man Left Every Fact Reasonably Found By State Covered Already")

20

What are the specific intent crimes against the person?

Assault

M1

21

What are the specific intent crimes against property?

Larcey

Embezzlement

Forgery

Robbery

False pretenses

Burglary

 

22

What are the specific intent inchoate crimes?

Solicitation

Conspiracy

Attempt

23

What is malice?

What are the common law malice crimes?

When a defendant acts:

  • Intentionally, or
  • With reckless disregard of an obvious or known risk

 

  1. Murder
  2. Arson

24

What is general intent?

What are examples of general intent crimes?

The defendant need only be generally aware of the factors constituting the crime; he need not intend a specific result (i.e., the jury can usually infer general intent simply from the doing of the fact)

  1. Battery
  2. False imprisonment
  3. Kidnapping
  4. Forcible rape

25

What is strict liability?

What are the strict liability crimes?

Crimes that require simply doing the act - no mental state needed

 

  1. Public welfare offenses
    • Regulatory or morality offenses that typically carry small penalties (e.g.,selling alcohol to a minor, selling contaminated food)
  2. Statutory rape
    • Having sex with someone under the age of consent

26

When will mistake of fact be a valid defense?

(State it two ways)

If the crime requires:

  • Specific intent
    • Any honest mistake of fact (even if unreasonable) is a defense
      • E.g., mistaken belief as to ownership is a defense to burglary
  • General intent
    • Only a reasonable honest mistake of fact is a defense
      • E.g., mistaken belief as to consent is a defense to forcible rape
  • Strict liability
    • No mistake of fact is a defense
      • E.g., mistaken belief as to age is not a defense to statutory rape

reasonable mistake of fact is a defense to any crime unless it is a strict liability crime

An unreasonable mistake of fact is only a defense to a specific intent crime

27

When will mistake of law be a valid defense?

Mistake of law is generally not a valid defense

Exceptions:

  1. Statute specifically makes knowledge of the law an element of the offense
  2. Statute was not available
  3. Defendant reasonably relied upon a statute or judicial decision that was overruled or declared unconstitutional
  4. Defendant relied on official interpretation or advice from someone charged with enforcement, administration, or interpretation of the law (but not a private attorney)

28

What are the MPC's mental states (i.e., levels of culpability)?

  1. Intentionally (or purposefully)
    • Defendant's conscious object is to accomplish a particular result
  2. Knowingly (or willfully)
    • Defendant is aware of what he is doing
  3. Recklessly
    • Defendant is aware of a substantial and unjustifiable risk, and consciously disregards that risk
  4. Negligently
    • Defendant should have known about a substantial and unjustifiable risk

29

What is actual causation?

When the bad result would not have happened but for the defendant's conduct

Note: an accelerating cause is an actual cause

  • E.g., if a victim will die in five minutes, and someone walks up and shoots him in the head, they are an actual cause of the death

30

What is proximate causation?

When the bad result is a natural and probable result of the defendant's conduct

Key concepts:

  • Foreseeability
  • Fairness

 

31

What is the eggshell victim doctrine?

The defendant takes his victim as he finds him

So, the defendant is the proximate cause even if the victim's preexisting weakness contributed to the bad result

E.g., heart attack during robbery

32

What is the intervening causes doctrine?

A defendant is not the proximate cause when an unforeseeable intervening event causes the bad result

 

33

What are the different types of causation?

Actual causation

Proximate causation

34

What is the concurrence requirement for criminal liability?

When does this issue arise the most?

The defendant must have the mental state at the same time as he engages in the act

This arises the most in cases involving:

  • Larceny
  • Burglary

35

What are the elements of common law battery?

What is the requisite mental state?

  • The unlawful
  • Application of force to another
  • Resulting in either:
    • Bodily injury
    • Offensive touching

Mental state: general intent

36

What are the elements of common law assault?

What is the requisite mental state?

Version 1 (e.g., swing and a miss):

  • Attempted battery

Version 2 (e.g., fake punch):

  • The intentional creation
  • Other than by mere words
  • Of a reasonable apprehension in the mind of the victim
  • Of imminent bodily harm

Mental state: specific intent

37

When might there be aggravated assault and battery?

  • Weapon is used
  • Victim is a child, elderly, handicapped, or otherwise vulnerable
  • Intent is to commit a robbery or a rape

38

What are the Virginia statutory assaults and bodily woundings?

  1. Malicious wounding
    • Malicious shooting, stabbing, etc.
    • With intend to maim, disfigure, or kill
  2. Aggravated malicious wounding
    • Victim is severely injured and suffers permanent and significant physical impairment
  3. Wounding while committing felony
    • Offense consists of either:
      • Shooting
      • Stabbing
      • Displaying a firearm
    • While committing or attempting to commit a felony
  4. Specific assaults/batteries that carry greater penalties
    • Assault as a hate crime
    • Assault on a:
      • Law enforcement officer
      • Firefighter
      • Certain school employees
  5. Injuring certain emergency personnel
    • Unlawfully causing bodily injury with intent to maim, disfigure, disable, or kill while knowing it is a:
      • Law enforcement officer
      • Firefighter
      • Emergency medical services worker
  6. Assaulting family or household member
  7. Stalking

39

For a homicide prosecution, when does the death have to occur under:

  • Common law
  • Virginia law

Common law

  • Death must occur within a year-and-a-day of the homicidal act

Virginia

  • Death may occur at anytime

40

What are the elements of common law murder?

  • Causing death
  • Of another person (i.e., not a fetus)
  • With malice aforethought, which includes:
    1. Intent to kill
    2. Intent to inflict great bodily harm
    3. Extreme recklessness (i.e., depraved heart)
    4. Felony murder

41

What is the deadly weapon rule?

The intentional use of a deadly weapon creates an inference of the intent to kill

42

What is the rule regarding transferred intent?

If a defendant intends to harm one victim, but accidentally harms a different victim instead, the defendant's intent will transfer from the intended victim to the actual victim

Exception:

  • Transferred intent does not apply to attempts - i.e., only to crimes with completed harms

43

Under the majority rule, what are the different degrees of murder?

What are their elements?

  1. First degree murder (M1)
    • Includes either:
      • Any killing committed with both:
        • Premeditation
        • Deliberation
      • Felony murder
        • A killing committed during a particular enumerated felony
  2. Second degree murder (M2)
    • All other murders

44

What are the elements of common law voluntary manslaughter?

  • An intentional killing
  • Committed in the heat of passion
  • After adequate provocation, which requires:
    • Provocation that would arouse a sudden and intense passion in the mind of an ordinary person,
    • The defendant did not have time to cool off

45

What are the different types of common law homicide?

  • Murder
    • M1
    • M2 (including felony murder)
  • Voluntary manslaughter
  • Involuntary manslaughter (including misdemeanor manslaughter)

46

What are the elements of common law involuntary manslaughter?

  • A killing committed either:
    • With criminal negligence
    • During a crime if it is not felony murder (i.e., sometimes called misdemeanor manslaughter)

47

What are the elements of common law felony murder?

  • Defendant 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 during immediate flight from the felony
  • The kiling  must in furtherance of the felony
  • The death must be foreseeable
  • The victim must not be a co-felon

48

What are the different types of Virginia homicide?

  1. Capital murder
  2. First degree murder (M1)
    • Including felony murder
  3. Second degree murder (M2)
  4. Voluntary manslaughter
  5. Involuntary manslaughter
  6. Felony homicide

49

What are the elements of capital murder in Virginia?

Willfuldeliberate, and premeditated murder committed under 14 aggravating circumstances

50

What are the elements of M1 in Virginia?

Murder, other than capital murder, by one of the following:

  1. Poison
  2. Lying in wait
  3. Imprisonment
  4. Starvation
  5. Any willful, deliberate, and premeditated murder that does not fall within capital murder

51

What are the elements of M2 in Virginia?

All murder is presumed to be M2

The burden is on the prosecution to elevate it to M1 or capital murder

The burden is on the defense to reduce it to manslaughter

52

What are the elements of felony murder in Virginia?

Any murder committed, whether intentional or accidental, during the commission of or during an attempt to commit:

  1. Arson
  2. Rape
  3. Forcible sodomy
  4. Robbery
  5. Burglary
  6. Abduction
  7. Inanimate object sexual penetration

53

What is the difference between how common law and Virginia treats vicarious liability for homicide?

For vicarious liability to stick, it must be a co-felon that causes the death. Co-felons cannot be vicariously liable for death caused by a third-party

54

What are the elements of felony homicide in Virginia?

The accidental killing, contrary to the intention of the parties, while committing a non-enumerated felony

Note: there must be some causal connection between the felony and the killing

55

What are the elements of manslaughter in Virginia?

An unlawful killing without malice (e.g., in the heat of passion)

56

What are the elements of involuntary manslaughter in Virginia?

An accidental killing, contrary to the intention of the parties, either:

  • During the performance of a non-felony
  • During the improper performance of a lawful act amounting to criminal negligence

57

What are the elements of common law false imprisonment?

  • The unlawful
  • Confinement of a person
  • Without the person's consent

Mental state: general intent

58

What are the elements of common law kidnapping?

  • False imprisonment that involves either:
    • Moving the victim
    • Concealing the victim in a secret place

Mental state: general intent

59

When may kidnapping be deemed aggravated kidnapping?

  • The purpose is to collect ransom
  • The purpose is to commit robbery or rape
  • The victim is a child

60

What are the elements of Virginia kidnapping?

A person is guilty of kidnapping (abduction) if:

  • By forceintimidation, or deception
  • Without legal justification or excuse
  • Seizes, physically detains, takes, transports, or secretes,
  • Another person
  • With intent to either:
    • Deprive such person of personal liberty
    • Withold or conceal him from another person, authority, or institution lawfully entitled to his charge

61

What are the elements of common law forcible rape?

  • Sex
  • Without the victim's consent
  • Accomplished either:
    • By force
    • By the threat of force
    • When the victim is unconscious

Mental state: general intent

62

What are the elements of common law statutory rape?

  • Sex
  • With someone under the age of consent

Mental state:

  • Majority: strict liability
  • Minority (MPC): Reasonable mistake of age is a defense

63

What is the difference between rape under the Common law and in Virginia?

For spouses, it must be proven that either:

  • The spouses were living separate and apart
  • The defendant caused serious physical injury to the victim by force or violence

64

What are the distinctions of Virginia statutory rape?

Sex with a child under the age of 13

If the child is betwee the age of 13 and 15, Class 4 felony (i.e., carnal knowledge)

 

65

What are the common law theft crimes?

  • Larceny
  • Embezzlement
  • False pretenses
  • Larceny by trick
  • Robbery

66

What are the elements of common law larceny?

  • The trespassory (i.e., wrongful or without permission)
  • Taking and carrying away (i.e., moving)
  • Of the personal property
  • Of another (i.e., someone with possession)
  • With the intent to steal (i.e., permanently deprive)

Mental state: specific intent

67

What is the erroneous takings rule?

A taking under a claim of right is never larceny

68

What is the doctrine of continuing trespass?

If a defendant wrongfully takes property, but without the intent to steal, he is not guilty of larceny, unless:

  • He later forms the intent to steal

69

What are the elements of common law embezzlement?

  • Conversion
  • Of the personal property of another
  • By a person already in lawful possession of that property
  • With the intent to defraud

Mental state: specific intent

Note: money is not fungible, so if the defendant intends to reimburse the victim with different funds, he will have the intent to defraud

70

What is the key difference between common law larceny and embezzlement?

For embezzlement, the defendant must already have lawful possession

71

What is the difference between possession and custody?

Posession is more - it requires the authority to exercise some discretion over the property

So, if a bank teller wrongfully takes money from the cash drawer, that is larceny, not embezzlement, because the teller never had possession. He only had custody.

72

What are the elements of common law false pretenses?

  • Obtaining title
  • To the personal property of another
  • By an intentional false statement
  • With the intend to defraud

Mental state: specific intent

73

What is the difference between common law larceny and false pretenses?

In larceny, the defendant gets possession

In false pretenses, the defendant gets title

74

For false pretenses, what are the requirements for a false statement?

Must be of a past, present, or future event

Old view was that it could not be a future promise, but it probably can

75

What is common law larceny by trick?

When the defendant obtains possession (but not title) as a result of an intentional false statement

76

What are the elements of common law robbery?

  • larceny
  • From another's person or presence
  • By force or threat of immediate injury

Mental state: specific intent

77

What does the "from another's person or presence" requirement for common law robbery mean?

 E.g., from the victim's vicinity or from the victim's house while he is in it

78

What does the "force" element for common law robbery mean?

Sufficient to overcome resistance (e.g., not picking a pocket)

79

What does the "threat of immediate injury" element of common law robbery mean?

Immediate injury (i.e., robbery)

  • "Your money or your life"

Future injury (i.e., extortion, not robbery)

  • "Give me your money or I'll break your legs tomorrow"

Embarrassment (i.e., blackmail, not robbery or extortion)

  • "Give me your money or I'll post those photos"

 

80

What is Virginia larceny?

Any crime that would be the following under common law:

  • Larceny
  • Embezzlement
  • False pretenses

81

What are the types of larceny in Virginia?

  • Grand larceny
    • Includes:
      • Larceny from another taking $5 or more
      • Larceny not from another taking:
        • $200 or more
        • A firearm
  • Petit larceny
    • Lesser amounts

82

What is the presumption of larceny in Virginia?

Someone in the unexplained and exclusive possession of recently stole property may be presumed to be guilty of larceny

83

In Virginia, what is the relationship of larceny to robbery?

Larceny is a lesser-included offense of robbery (i.e., rebuttable presumption)

(This is unique in Virginia)

84

What are the elements of extortion in Virginia?

1. Either:

  • Threatening injury to the character, person, or property of another
  • Accusing another of any offense

And thereby extorting money, property, pecuniary benefit, or any note, or other evidence of debt, or

2. Sending a note or an electronically transmitted communication threatening to kill or do great bodily harm to the victim or her family

85

What are the elements of foregery in Virginia?

  • Making or altering a writing
  • So that it is false
  • With the intent to defraud

Mental state: specific intent

86

What are the elements of uttering in Virginia?

  • Offering as genuine
  • A forged instrument
  • With the intent to defraud

Mental state: specific intent

87

What are the elements of malicious mischief in Virginia?

Destroying or damaging someone else's property

88

What are the elements of common law possession?

  • Control for a period of time long enough to have
  • An opportunity to terminate possession
  • Of contraband that is specifically criminalized

89

What is the meaning of "control" for purposes of the common law crime of possession?

Possession can be constructive.

The contraband just needs to be close enough for the person to exercise dominion and control over it.

90

What are the elements of common law burglary?

Describe each element in detail

  • Breaking
    • Creating or enlarging by force
  • And entering
    • Some part of the defendant's body must enter the building
  • The dwelling
    • A structure where someone regularly sleeps
  • Of another
    • Cannot be your own house
  • At night
    • Cannot be during natural light
  • With the intent to commit a felony inside
    • Specific intent

91

When is the continuing trespass doctrine applicable, and when is it not?

It is applicable for larceny but not for burglary

92

What is different about the crime of burglary in Virginia?

Virginia has eliminated technical requirements, such as at night (but if during the day there must be breaking, not so if at night) and expanded what a dwelling is

93

What are the elements of common law arson?

The malicious burning (i.e., material wasting) of a building

Mental state: malice

94

What is different about the Virginia crime of arson?

  • Burning
    • Expanded to include use of explosive devices
  • Building
    • Expanded to include any building, but not outhouses

95

For purposes of accomplice liability, who is:

  • The person who commits the crime
  • The person who helps

  • Principal
  • Accomplice

96

What are the elements of accomplice liability?

  • Aiding or encouraging the principal
  • With the intent that the crime be committed

97

Under common law, what are the categories of accomplice liability?

  1. Principal in the first degree (not a crime)
    • Criminal actor (i.e., commits at least one element of the crime)
  2. Principal in the second degree (not a crime)
    • Present and also either:
      • Assisting
      • Encouraging
  3. Accessory before the fact (not a crime)
    • Not present but either
      • Assisting
      • Encouraging
    • Before the crime
  4. Accessory after the fact (crime)
    • Assisting the principal
    • Who already committed a felony
    • With intent to help him avoid arrest or conviction

98

What is an accomplice guilty of?

All crimes that he either:

  • Aided
  • Encouraged
  • Should have foreseen

99

If the principal was not prosecuted or had an individual defense, is the accomplice guilty?

Common law

  • No

Modern law

  • Yes

100

Who is not an accomplice?

  • Mere presence (i.e., must actually help)
  • Mere knowledge (i.e., must actually help)
  • Victims (i.e., member of a protected class)

101

What happens when an accomplice changes his mind?

It depends on what the accomplice did:

  • Encourager withdraws by:
    • Discouraging
  • Aider withdraws by either:
    • Neutralizing the asisstance
    • Preventing the crime (e.g., notifying police)

102

What is the rule regarding accomplice liability in Virginia?

The following are treated as principals in felony cases:

  • Principal in the second degree
  • Accessory before the fact

Exception:

  • In murder cases, only the actual murderer can get the death penalty, unless:
    • Murder for hire
    • Terrorism

103

In Virginia, can an accessory be convicted if the principal is not?

Yes, so long as:

  • It is shown that a crime was committed

104

In Virginia, how does an accessory withdraw?

Withdrawal must be:

  • Before completion of the felony
  • In due time
  • Doing everything possible to both:
    • Detach from the crime
    • Prevent the crime

105

What are the inchoate offenses?

  1. Solicitation
  2. Conspiracy
  3. Attempt

106

What are the elements of solicitation?

  • Asking someone to commit a crime
  • With the intent that the crime be committed

Mental state: specific intent

 

107

If a crime is never committed, can there be solicitation?

Yes. The crime is the asking

108

What are the elements of conspiracy?

  • An agreement
  • Between two or more people
  • To commit a crime
  • Plus an overt act (i.e., any act of preparation)
  • In furtherance of the crime

Mental state: specific intent

109

If a crime is never committed, can there still be a conspiracy?

Yes. The crime is in the agreement (plus the overt act)

110

Can you have a one person conspiracy?

In other words, what if there is one guilty mind and five undercovers?

  • Common law
    • No. There must be at least two guilty minds
    • If all other parties are acqutted, the last cannot be convicted of conspiracy
  • MPC
    • Yes.
    • If all other parties are acquitted, the last can be convicted of conspiracy

111

What is the common law rule regarding the vicarious liability of co-conspirators?

In addition to conspiracy, all co-conspirators are liable for other crimes committed by co-conspirators so long as the crimes were both:

  • In futherance of the conspiracy's objective
  • Foreseeable

 

112

What are the Virginia distinctions regarding conspiracy?

  1. Felony requirement
    • Conspiracy must be to committ felony
  2. Bilateral approach
    • Must have two or more people
  3. No overt act
    • Agreement must be complete
  4. Conviction
    • Cannot be convicted of substantive offense and then convicted of conspiracy for it
    • Exceptions:
      • Separate acts
        • If the conspiracy is based on acts separate from the conviction, there may be a separate conviction
      • Single trial
        • Both convictions may take place in the same trial
  5. Acquittal
    • If a defendant is acquitted of the underlying felony, he cannot be prosecuted for conspiracy to commit it

113

When might there be cross-over between evidence and criminal law on an exam question about conspiracy?

Hearsay exception - statemens made in furtherance of a conspiracy are admitted against all conspirators

114

For common law attempt, what is the act requirement under:

  • MPC/Majority
  • Common law
  • Virginia

MPC/Majority

  • Conduct must be both:
    • substantial step (more than mere preparation) towards the crime
    • Strongly corroborative of a criminal purpose

Common law

  • Conduct must be:
    • Dangerously close to the commission of the crime

Virginia (not really different than MPC)

  • Conduct must be:
    • direct act
    • With the intent to commit the crime
    • But falls short of completing the crime
    •  

115

What type of crimes cannot be attempted?

  • Reckless crimes
  • Negligent crimes
  • Felony murder

116

What if it was impossible to commit a particular crime, can you be prosecuted for attempting?

Factual impossibility

  • Yes. Factual impossibility is not a defense to attempt.
    • E.g., trying to pickpocket someone with an empty pocket is still attempted larceny

Legal impossibility

  • No. Legal impossibility is a defense to attempt.
    • E.g., trying to sell baby powder when you think it is an illegal substance is not attempt

 

117

Can withdrawal be a defense to an inchoate crime?

Common law

  • No, but:
    • Once D withdraws, he cannot be vicarously liable for crimes committed after withdrawal

MPC

  • Only if both:
    • voluntarily and completely renounces the conspiracy, soliciation, or attempt
    • Based on a change of heart (i.e., not a fear of being caught)

118

When can a defendant be convicted of multiple crimes for the same conduct?

A lesser included offense is an offense that is necessarily included in the greater offense

Every element of the lesser offense must be included in the greater offense

A lesser-included offense merges with the greater offense

Rules:

  • Attempt
    • Merges
  • Conspiracy
    • Does not merge
  • Soliciation
    • Merges

119

What are the capacity defenses?

  • Insanity
  • Intoxication
  • Infancy

120

How do you prove insanity?

  1. Show that defendant has a mental disease or defect
  2. Apply one of the following tests:
    1. M'Naughten
    2. Irresistible impulse
    3. Product
    4. MPC

121

What is the M'Naughten test for insanity?

This is the oldest test. The defenant is insane if he either:

  1. Did not know his act was wrong
  2. Did not understand the nature of his act

122

What is the irresistible impulse test for insanity?

This is usually added to the M'Naughten test. The defendant is insane if he was either:

  1. Unable to control his actions
  2. Unable to conform his conduct to the law 

123

What is the product test for insanity?

The defendant is insane if the crime was the product of his mental illness

124

What is the MPC test for insanity?

This combines the first two common law tests - i.e., M'Naughten and irresistible impulse

The defendant is insane if he:

  • Lacked the capacity to either:
    • Appreciate the criminality of his conduct
    • Conform his conduct to the law

125

What is the Virginia test for insanity?

The defendant may choose to use one of the following tests:

  • M'Naughten
  • Irresistible impulse

126

What are the procedural requirements for raising an insanity defense?

  • Notice to state
    • D must give the Commonwealth's attorney notice of his intent to raise the insanity defense at least 60 days prior to trial
  • Burden of proof
    • D must prove insanity to the satisfaction of the jury

127

What is the distinction between the insanity defense and the incompetence defense?

Insanity

  • Was D insane at the time of the crime?
    • If so, no conviction

Incompetence

  • Was D insane at the time of the trial?
    • If so, trial adjourned

128

What are the requirements for the defense of intoxication under the common law?

What about in Virginia?

Common law:

  • Involuntary intoxication
    • Can be a defense to any crime
    • Apply the insanity tests
  • Voluntary intoxication
    • Can be a defense to specific intent crimes
    • Must prohibit defendant from forming specific intent

Virginia:

  • Involuntary intoxication
    • Same as above
  • Voluntary intoxication
    • Must have produced permanent insanity
    • Exceptions:
      • Can prevent premeditation

129

What are the rules regarding infancy under the common law?

What about in Virginia?

Common law

  • Less than 7
    • No prosecution
  • Between 7 and 14
    • Rebuttable presumption against prosecution
  • Greater than or equal to 14
    • Prosecution allowed

Virginia

  • Same as above
  • Child may be tried as adult if charged with offense that would be a felony if committed as an adult

130

What are the requirements for self-defense under the common law?

Non-deadly force (e.g., shoves and punches)

  • Must be:
    • Reasonably necessary
    • To protect against an imminent use
    • Of unlawful force against himself

Deadly force (e.g., guns and knives)

  • Must be:
    • Response to an imminent threat
    • Of death or serious injury
  • Agressor rule
    • Self defense is not available when both:
      • Defendant was the agressor
      • Defendant did not regain right to use it by:
        • Withdrawal and communication thereof
        • And victim suddenly escalates from non-deadly to deadly afterwards
  • Retreat rule
    • Majority
      • Retreat not required
    • Minority
      • Retreat required unless:
        • D cannot retreat in complete safety
        • D is in his home
        • D is making a lawful arrest
        • D is being robbed

131

What are the requirements for self-defense in Virginia?

Non-deadly force

  • Must be:
    • In response to a reasonable appearance
    • That the force is justified
    • Based on the defendant's subjective view
  • Retreat not required

Deadly force

  • Must be:
    • In response to an imminent danger
    • Of death or great bodily injury
    • When defendant is without fault
  • Retreat not required unless:
    • Defendant is at fault
    • Defendant did not totally abandon attack

132

What if the defendant is mistaken about the need to use self-defense?

As long as the mistake is reasonable, he can still use self-defense

Minority/MPC

  • If intentional killing, even unreasonable mistake can support self-defense to reduce murder to voluntary manslaughter (i.e., imperfect self-defense)

133

When can non-deadly force be used to prevent a crime? 

What about deadly force?

Nondeadly force - any crime

Deadly force - a felony risking human life

134

What is the common law rule regarding defense of others?

What is the Virginia rule?

Common law

  • Look at the defendant
    • Defense of others is allowed only if the defendant reasonably believed the victim had a legal right to use self-defense

Virginia

  • Look at the victim
    • Defense of others is allowed only if the victim had a legal right to use self-defense (i.e., steps in their shoes)

135

When can a person use non-deadly force in defense of a dwelling under common law? 

What about deadly force?

What about in Virginia?

Non-deadly force

  • When the defendant reasonably believed it was necessary to either:
    • Prevent unlawful entry
    • Terminate unlawful entry

Deadly force

  • When the defendant reasonably believed it was necessary to prevent:
    • Personal attack on self or other
    • Entry by someone who intends to commit a felony in the dwelling

Virginia:

  • Deadly force only allowed when fearing great bodily injury

136

When can a person use non-deadly force in defense of property?

What about deadly force?

Non-deadly force

  • Only when both:
    • The need is imminent
    • In immediate pursuit if to regain possession

Deadly force

  • Never just to defense property

137

When can a person use force to resist arrest?

Only if the arrest is inmproper, and only if non-deadly force is used

138

What is the necessity defense, and when can it be used?

It is when the crime charged of was caused by the circumstances

It can be used when the defendant reasonably believed the criminal conduct was necessary to prevent greater harm, but never for homicide

139

What is the duress defense and when can it be used?

It is when the crime charged of was caused by another person

It can be used when the defendant was:

  • Forced to commit a crime
  • Under the threat of either:
    • Death
    • Serious physical injury

It can never be used for homicide

140

What is entrapment and when can it be used as a defense under the common law?

What about in Virginia?

Very narrow defense when the government unfairly tempted a person to commit a crime

Common law

  • Can only be used when:
    • The criminal design originated with the government
    • The defendant was not predisposed to commit the crime

Virginia

  • Same, but
  • Government can use prior crimes to show predisposition if the prior crime was:
    • Close in time
    • Similar
    • Probative value outweighs prejudice

141

What is perjury and was are its consequences?

Either:

  • Willful false swearing regarding a material matter while under oath
  • Subsequently giving conflicting testimony under oath to the same matter

Consequences:

  • Cannot hold office
  • Cannot serve as a juror

142

What is subornation of perjury and what are its consequences?

Inducing another to give false, material testimony

Defendant can be punished as if committed perjury

143

What is bribery?

  • Either giving:
    • A corrupt gift or offer thereof
    • To a public official or candidate
    • With the intent to influence his official acts
  • Or accepting:
    • A bribe
    • If recipient is a:
      • Public employee,
      • Public official, or
      • Candidate for public office

 

144

What is obstruction of justice?

Either

  • Attempt to intimidate:
    • Witness
    • Officer of the court
    • Law enforcement officer
  • Willful false statement or representation
    • To law enforcement officer
    • Who is conducting an investigation

145

What are false reports?

Knowingly giving false reports with intend to mislead police officers as to the commission of a crime

146

What is concealing/compounding offenses?

Either

  • Taking money to compound, concel, or not prosecute
  • Concealing or destroying evidence with intent to hinder prosecution

147

What is resisting arrest?

When a person prevents a law enforcement officer, with or without a warrant, from lawfully arresting him