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Flashcards in Criminal Law Deck (105):
1

What are the four theories in deciding what sentence should be imposed?

Specific and General Deterrence, Incapacitation, Rehabilitation, Retribution (This public policy, good to have in the back of your mind as you “solve” problems. Foundation to all crimes and laws.)

2

Specific and General Deterrence

Purpose of sanction is to send message to offender (specific) or others (general) to avoid similar conduct.

3

Incapacitation

Separate offender to protect people; ensure physically incapable of committing crime.

4

Rehabilitation

Punitive measures to reform offender, change mental outlook (may include probation, counseling, medical treatment); instill proper values and attitudes to provide means of leading productive life.

5

Retribution

Eye for an eye; may be barbaric and have a sense of vengeance, but appropriate in some cases; belief is if punishment doesn't fit crime, it may lead to vigilantism.

6

Elements of Crime

Every crime will consist of five elements:
Physical act(s): actus reus
A criminal state of mind: mens rea
Relevant fact(s): attendant circumstances
An injury: harm; and
A result: causation.

7

Mens Rea

(1) D must have an intent or criminal state of mind (intent or knowledge).
(2) Includes acts that are reckless or negligent (grossly negligent).
(3) No mens rea for strict liability crimes (i.e. statutory rape).
(4) D intends to commit the physical ACT, and not the result are general intent crimes. D intended the act only.
(5) D intends the specific criminal result is a specific intent crime. D intended the actus reus + result.
Wrongful mind; D must have intent or criminal state of mind, (malice, intent, knowledge, recklessness, negligence, willfulness, premeditation, deliberation, willful blindness); general (intend act, but not result) or specific intent (intend act and specific criminal result); includes acts reckless or negligent; don't need for strict liability.

8

General vs Specific Intent

General intent:
Knowledge, recklessness or negligence.
Less likely to be affected by intoxication.
Specific intent:
Mens rea as defined in the crime (must intentionally).
Requires intent and purpose.
Intent to commit a future act.
Intent for a special purpose for actus reas
Aware of attendant circumstances.
Intoxication may be a better defense.
General just intended an act; specific intended the act and something else (i.e. possess drugs with intent to distribute).

9

Actus Reus

Wrongful act; positive or failure to act; voluntary, words not enough, possession requires knowledge, but not that it's illegal, actual or constructive, omissions not crime unless statute, contract, relationship, voluntary assumption, status not a crime, but actions stemming.
(1) The D’s act must be voluntary.
(2) Mere words are not enough.
(3) Possession may be a criminal act, but typically requires knowledge of the possession, but not necessarily that the object is illegal.
(4) Possession may be either actual or constructive.
(5) Omissions are typically not a crime.
(6) D’s status is not a crime, but actions stemming from that condition may be.

10

Attendant Circumstances

If it weren't for certain circumstances, act might not be illegal, i.e. age of victim in statutory rape.

11

Causation

But-for (direct/actual): if it weren't for the acts of defendant, crime would not have happened. Proximate (indirect): chain of events defendant put in motion caused crime, which could have been foreseeable; intervening cause might break chain of causation; dependent is foreseeable, and independent is unforeseeable.

12

Harm or Result

Harm or result is directly related to events caused by victim.

13

Homicide

Any unlawful taking of the life of another. It requires an act (or omission where the duty is to act) which is the
actual and proximate cause of death within one year and one day. The two principal kinds of homicide are murder and manslaughter
In many jurisdictions, there are different degrees of murder and 2 kinds of manslaughter.
Statutes may also include other forms of homicide (i.e. vehicular homicide for unintentional death caused by the driver of a car).

14

Murder

Unlawful killing of another with malice.
Mens rea required: malice
Malice can be either express (intentional) or implied (unintentional).
Unintentional killings include those done with: intent to inflict great bodily harm, reckless indifference to human life / depraved heart, or intent to commit a felony. In some jurisdictions, by the deadly weapon doctrine.
Generally, first degree murder requires malice aforethought + premeditation and deliberation; and second degree murder requires only malice.
FYI: Felony murder can be either 1st or 2nd degree depending on the statute.

15

First Degree Murder

Killing of another with malice, premeditation and deliberation.

16

Second Degree Murder

Killing of another with malice, but no premeditation and deliberation.

17

Voluntary Manslaughter

Homicide where malice is mitigated by adequate legal provocation, the defendant acted upon the provocation, killing in the heat of passion without a period to cool off.

Passion killing where there was adequate provocation (some jurisdictions from victim), defendant acted on provocation, there was no cooling off period, and defendant did not cool off.

18

Involuntary Manslaughter

Killing without malice, resulting from gross recklessness (aware of unacceptable high risk to human life), or criminal negligence (was not aware of risk to human life), Can be misdemeanor manslaughter.

19

Malice

Express intent to kill, or implied through intent to cause great bodily harm, depraved heart or reckless disregard for human life, or felony murder rule. In some jurisdictions, can be implied through the deadly weapon doctrine.

20

Premeditation and Deliberation

Premeditation is satisfied when one has had time, even a moment, to think about the idea of killing and consider the seriousness of his acts and its consequences.

Deliberation is shown where a defendant formed the intent to kill without being influenced by emotions.

Determined through planning, motive, and manner. Did the defendant plan the murder, did they have sufficient motive for the killing (relationship or history), and did they carry out the killing in a deliberate manner (preconceived design)?

21

Manslaughter

Killing without malice.

22

Felony Murder Rule

Causes unintentional killing to become murder if occurs during commission of felony. Limits: 1) predicate felony must be inherently dangerous crime (i.e. BARRK), 2) if not, then dangerous act (i.e. crime not dangerous but may have dangerous consequences), 3) merger (all lesser felonies merge into higher one and cannot be predicate felonies for the FMR; some states expand to include assault/assaultive crimes or felonious assault, unless separate mens rea); felony must have independent felonious design, 4) causation - but-for or proximate (1. reasonably foreseeable and 2. related to felony or reasonable link with no separate intervening cause to break the chain of causation; intervening causes can be dependent related and fair to hold D liable, or independent, where not foreseeable and D did not intend and may not be liable); depending on jurisdiction recognition, agency would allow defendant to be liable for co-felon doing killing, and proximate would allow defendant to be liable for any killing, even if cop carried out); 5) res gestea - time, place and causal relation must be closely related for felony and death; once defendant finds place of temporary safety, res gestea ends.

23

Transferred Intent

When one has the intent to harm one person or object, but inadvertently harms another person or object, the intent is transferred to the person or object harmed.

Intention to harm someone that is inadvertently transferred to another (aim for one but miss). Charges not increased (i.e. police officer would be aggravated battery otherwise).

24

Ostrich/Jewell Instruction

Ignorance through conscious effort, or willful blindness, may still satisfy requirement of knowledge. Being aware of high probability of something being illegal but choosing to ignore it.

25

Assault

Two types: Intent to cause fear of physical harm (requires proof of threatening conduct intended to injure or frighten), or attempted battery (requires proof of attempt to cause physical injury and present ability). Misdemeanor.

26

Battery

Intentional offensive bodily contact or physical harm (indirect - pointing laser pointer at cop).
Defense to Assault and Battery: consent (unless serious and beyond scope of consent, and if person incompetent to give consent)

27

Aggravated Assault

Intent to frighten or attempt battery on child, elderly, or officer (felony).

28

Attempt

Substantial step towards accomplishing desired result; advance conduct beyond mere intent.
An effort, even if unsuccessful, to commit a crime
Generally requires a mens rea and actus reus
Usually specific intent to commit an offense and a failed act
Actus reus tests: dangerous proximity and substantial step (more than mere preparation)
DANGEROUS PROXIMITY: what actions still need to be done
SUBSTANTIAL STEP: what actions have already been done
TIP: Should be a substantial step toward commission of the crime
(1) Thousand (cop poses as minor Bekka): court holds that D is not charged with the object crime (which would be impossible because V is not a minor) but with the ATTEMPT, which is a separate offense. Whether the object crime could be completed is irrelevant. Conviction upheld.
(2) Prisoner w/HIV: theoretical possibility is enough, likelihood is irrelevant, the D believed the attack would transmit HIV and belief was not absurd.

29

Attempted Battery

Reasonable apprehension of battery (requires proof of intent to cause physical harm or produce apprehension of battery). General intent is ok in CA (no knowledge necessary), but otherwise, specific.

30

Rape or Sexual Assault

Under common law, rape is forced sexual intercourse, without consent, with a female who is not the spouse of defendant. In modern law, it was expanded to include males, spouses, and other acts not amounting to sexual intercourse. 1) Force (physical force, threat of bodily harm/fraud), 2) resistance (historically, but mostly not today), 3) nonconsent (subjectively), 4) mens rea (whether defendant realizes nonconsent varies by jurisdiction: knowledge, recklessness, negligence). Mens rea - force is required element. General intent - even if didn't intend to have sex without consent (rape), but intent to have sex necessary. Strict liability - if defendant did not know, not a defense. Sex with a woman who lacks ability to consent (underage or intoxicated) is also rape. Mistake is not defense (some states reasonable and genuine, rare, defense, but cannot be reckless).

31

Malum In Se v. Malum Prohibitum

Malum in se is inherently evil, and malum prohibitum is prohibited by law.

32

Indecent Assault

Indecent contact w/another without consent (no force). Fear or immediate unlawful bodily injury (subjective - victim fears and submits; objective - reasonable fear taken advantage of).

33

Aggravated Sexual Assault

1) Employing a dangerous weapon, 2) suffocating/strangling/disfiguring, 3) threatening with death, suffocation, strangulation, disfigurement, injury, kidnapping, 4) aided and abetted by another, 5) connected to burglary.

34

Statutory Rape

Strict liability; difference in age (within 3 years) may be defense; some restrict victims to females; reasonable mistake of fact may be defense (honest and reasonable), induced by false claim by victim, but most jurisdictions, not defense.

35

Types of Defenses

1) Failure of proof (attacks prosecution's proof), 2) true defense (self-defense), doesn't add element, 3) affirmative defense (type of true, i.e. insanity), adds element - D must raise evidence for defense (burden of production). Vary by jurisdiction, and can overlap or be inconsistent. 4) Rebuttal - similar to failure of proof, where D presents evidence to contradict P's proof.

36

Procedural Defense

D must take procedural steps to raise defense; true and affirmative may place burden on D (less than reasonable doubt, but vary).

37

Justification Defense

Offense committed, but not morally wrong; self-defense (using reasonable force to defend self against unlawful, imminent force). D admits offense, but denies any moral wrong-doing (i.e. self defense)

38

Excuse Defense

Offense committed, and wrong, but responsibility not assigned; impaired mental state or not blameworthy. D admits offense, but D is not criminally responsible for actions due to D’s decision-making ability was impaired (i.e. insanity)

39

Self-Defense

Permitted to defend oneself from attack by another who has no right to attack; most jurisdictions, reasonable person standard with reasonable force to defend against imminent use of unlawful force. Can be used against non-deadly force. Usually not available if D reckless or negligent.

40

Elements of Self-Defense

Person actually and reasonably believes attack is imminent by a person acting unlawfully, and that he must use force and uses the amount of force reasonable.
1) Reasonable belief in need to use force to defend self, 2) reasonable belief that attack is imminent, 3) amount of defensive force reasonable under circumstances, 4) against person acting unlawfully, 5) actual belief of attack and amount of force needed to protect.

41

Additional Self-Defense Points

Deadly force only to protect against imminent death or serious injury; first aggressor usually cannot claim S/D, unless they try to abandon and other continues, then, S/D OK. Imperfect S/D (honest but unreasonable belief, so might use excessive force); mutual combat is not S/D; generally retreat before deadly force, unless home, but not required if non-deadly force.

42

Battered Woman Syndrome

Most jurisdictions allow evidence of subjective elements in connection with determining reasonable person belief in necessity of self-defense.

43

Defense of Third Party

May use physical force against another to extent reasonably believes necessary to defend self, or third person, from belief of use or imminent use of unlawful physical force by such person. Majority - reasonable force relative to harm, even if mistake, as long as reasonable (except if conduct provoked by actor with intent to cause physical injury to another, actor initial aggressor, in defense, or product of combat not authorized by law). May not use deadly force, unless believes other using deadly force or if able to retreat (doesn't have to retreat if in own dwelling, is an officer, believes kidnap, rape, robbery, or burglary attempt/commission). What rights does person being harmed have, and actor can step into his shoes. May be able to mitigate to manslaughter from murder.

44

Defense of Property

May use non-deadly force to protect property, but less important than self-defense. Severe limits exist on deadly force. May threaten or intentionally use force against another to prevent or terminate what they reasonably believe to be unlawful interference with person's property.
(1) Generally reasonable non-deadly force to protect property
(2) Force necessary to: terminate the trespass, terminate the unlawful interference with property, and to recover property
(3) Deadly force may be permitted to protect a dwelling or to prevent certain property crimes involving violence (i.e. arson, burglary)
(4) D may be criminally liable if D sets up deadly mechanical device that kills or injures someone

45

Law Enforcement Defense, Resisting Arrest, Public Duty Defense

Law enforcement officers may arrest in proper circumstances without criminal liability for reasonable force to effectuate arrest. If arrestee risists arrest, officer may use self-defense, if needed. Officer has public duty to carry out job - people who assist officers are covered by public duty defense (w/o deadly force, but can use S/D).

46

Defense of Necessity

Necessity: due to nature or chance: D must pick from the lesser of 2 evils (I am justified because I had to pick between the lesser of 2 evils). Modernly, may be due to other person’s acts.
(a) danger is clear and imminent
(b) no reasonable non-criminal alternatives
Defense that may justify actions to dilemma where danger is clear and imminent and no reasonable non-criminal alternative exists. Traditionally arising from nature or chance, so defendant must choose the lesser of two evils, traditionally without human purpose to create defendant's choice. Choose to commit crime to avoid alternate act of greater evil.Reaction to natural threat (steal food not to starve, breaking down door to run away from threat).

47

Defense of Duress

Defense that may excuse actions if coerced to act based on fear of imminent physical harm to self or third party where the actor did not create the situation, and a person with reasonable firmness would act in the same way. This is not a defense to murder.
Duress (aka coercion): due to coercion from a person (I did wrong, but I was forced to).
(a) Immediate physical harm
(b) harm to actor or 3rd party
(c) objective test: threat must overcome the will of person of reasonable firmness
(d) D cannot place self in the position
(e) some states do not allow this defense to murder
Defense that may excuse actions to dilemma traditionally arising from human agency in the form of threat that if defendant does not commit crime, other individual will carry out threat. Coerced with immediate threat of death or serious injury, reasonable fear that threat will happen, no reasonable opportunity to escape threat. Sometimes, must contact authorities after reaching safety. Modernly, expanded to include nature or animal forcing action, and some treat as specialized form of necessity and sometimes collapse distinction. Excuses criminal liability. Limits: immediate physical harm to person or third party. Objective test - reasonable person would be compelled to act based on harm. Some jurisdictions, must be toward actor. Cannot be reckless, or source of problem, or cannot trigger scenario.

48

Defense of Insanity

M'Naghten, irresistible impulse, Durham, MPC/substantial capacity.
Actus reus: did D act voluntarily or was D unable to control violent action
Mens rea: is D mentally able to formulate intent
Incompetence to stand trial: can D participate meaningfully in her defense
Criminal insanity: is there a defense of insanity whereby D is not morally blameworthy.

49

M'Naghten

Cognitive or moral incapacity; lack the ability at the time of action to understand nature or quality of his actions, or the wrongfulness of his actions. Right-or-wrong - defendant does not understand what he is doing and doesn't know it is wrong (at the time of the crime). May be acquitted.

50

M'Naghten + Irresistible Impulse

Does the defendant know right from wrong at the time of the crime? Plus, conduct excused if induced by truly irresistible impulse. Could not control behavior.

51

Durham

Acquittal if act is product of mental disease or defect. Broadened insanity defense.

52

MPC / Substantial Capacity

Lack of substantial capacity to appreciate wrongfulness of conduct or conform his conduct to requirements of the law as a result of mental disease or defect.

53

Insanity Defense at Trial

D presumed sane
D has burden of production offers some evidence that he is insane)
Generally, as an affirmative defense, D has burden of production & persuasion
Minority view: burden shifts: D has burden of production and then prosecutor has burden to disprove insanity
Standard of proof varies by state
Generally, notice must be given pre-trial
Verdicts: guilty, not guilty, not guilty by reason of insanity (acquittal), guilty but mentally ill (sentenced to mental health facility)

54

Incompetency

Incompetence to stand trial. Different from insanity - looks at mental capacity at time of trial, not time of crime. If cannot understand what's going on, may not be tried, sentenced or executed. Are they able to meaningfully assist in their defense? Mental institution until competent to stand trial. Any party can raise.

55

Intoxication and Diminished Capacity

Closely related defenses
Defense negates an element of the crime (failure of proof defense)
INTOXICATION: D voluntarily / knowingly ingests substance. May be a defense to specific intent crimes to negate D’s ability to form necessary intent. D ingests substance; may be used to assist insanity or diminished capacity defense
DIMINISHED CAPACITY: mental deficiencies less than insanity; impaired mental condition short of insanity caused by intoxication, trauma or disease that prevents D from having necessary mental state; serves as a partial defense; D incapable of forming mens rea or negating mens rea

56

Mistake and Ignorance

Mistake of fact if reasonable may be a defense: D is mistaken on some fact. D is hunting. Shoots at what he reasonably believes is deer. Kills B. No state of mind for murder. Compare: D is hunting. Wants to kill B, but kills C by mistake. No defense because D had state of mind to kill) (also transferred intent doctrine).
Mistake of law: generally not successful: D is mistaken about a legal principle (D did not know about law, or was wrong about the law applying to her acts). But may be defense if mistake is to a collateral aspect of the law. (D sells gun to Buyer. D knows it is against the law to sell gun to a felon, but believes that D has been convicted only of a misdemeanor; so she did not have required state of mind to sell gun to a felon).
Ignorance of the law is no defense unless knowledge of illegality is an element; statute was inadequately disseminated; or D reasonably relied upon an authoritative interpretation (D and muzzle loading gun)

57

Juveniles

Under 7: presumed incapable
7 to 14: presumed capable, but rebuttable
14 to 21: presumed to be same as adults

58

Theft and Property Crimes

Larceny, larceny by trick, false pretenses, embezzlement

59

Larceny

1) Trespassory (by force) 2) taking/caption and 3) asportation/carrying away of 4) personal property 5) of another 6) with intent to deprive 7) permanently, 8) with intent at the time of the taking.

60

Larceny by Trick

Not only trespassory taking, but by fraud, deception, or trick. Fraudulent taking and carrying away of personal property of another with intent to permanently deprive.

61

Larceny by False Pretenses

Intent to defraud, falsely representing present or past facts to gain title.
False representation of material present or past facts which cause person to pass title of property to misrepresenter who knows that representations are false and intends to defraud. Obtaining title and not merely possession by fraud, deception (intent to obtain title). Requires representation as to an existing fact was false, made with knowledge of falsity, intent to deceive, person deceived relied on this to a detriment.

62

Embezzlement

Fraudulent conversion of property of another by one already in possession.
Fraudulent conversion of property of another by one who is already in lawful possession of it. No trespassory taking, because trusted associate and owner consented to initial transfer of possession to thief; thief might have clean mind initially, but later decide to convert. Has possession, and converts for own use.

63

Robbery

Aggravated form of larceny - theft and violence. (Physical harm or threat of it while theft deserves higher sentence.) Taking must be accomplished by violence to the V or by putting the V in fear of immediate injury.

64

Extortion

Threat to injure property or reputation combined with intent to extort property of another (blackmail).

65

Burglary

Historically: 1) breaking and 2) entering 3) the dwelling 4) of another 5) at night 6) with the intent to commit felony therein. Modernly 1) no breaking, just entry, 2) remaining in concealed structure, 3) structure beyond dwelling (including yard/car), 4) night not required, and 5) intent to commit any threat.
What is a building? Storage bin w/one side open: not a building; but shoe store showcase under stairwell was a building because under the same roof.
What is entering? Any part of body, even momentarily is enough. Insertion of tool is enough if purpose is to accomplish the felony, not merely for gaining entry.

66

MPC Criminal Trespass

Lesser included crime of burglary
Knowing that she is not licensed or privileged to do so, she enters or remains in any building or occupied structure
Defenses: abandoned building, open to public, reasonably believed owner would permit. Note: permission may be limited.

67

Preparatory / Inchoate Crimes

Attempt, solicitation, conspiracy.
States will vary as to what combination may or may not be charged
General inchoate crimes: applies to all offenses
Specific inchoate crimes: applies to only specific crime (generally written in statute)
Punishments are linked to target crimes (states vary):
Solicitation

68

Attempt

Specific intent to commit crime and overt act in furtherance of that intent. A significant step toward the commission of the target crime. Unsuccessful commission.
An effort, even if unsuccessful, to commit a crime
Generally requires a mens rea and actus reus
Usually specific intent to commit an offense and a failed act
Actus reus tests: dangerous proximity and substantial step (more than mere preparation)
DANGEROUS PROXIMITY: what actions still need to be done
SUBSTANTIAL STEP: what actions have already been done
TIP: Should be a substantial step toward commission of the crime

69

Soliciation

Inciting, counseling, advising, inducing, urging, or commanding another to commit a felony with specific intent that the person commit the crime (broad). Trying to get another person to engage in criminal activity.
A crime in every state
Specific intent crime: D must intend that other person engage in conduct constituting a crime (merely saying or doing something is not enough without intent)
Actus reus: D must make an effort to engage the other in criminal activity (does not require the efforts to be successful)
States may allow solicitation for any crime or only serious crimes
States may require that the communication be received
Some states allow for solicitation from a public platform
States vary if there is solicitation if agent is INNOCENT AGENT, INCOMPETENT PERSON or PERSON NOT IN POSITION OR LACKS CHARACTERISTIC REQUIRED
Solicitation merges with the completed crime.
Solicitation and attempt: Mens rea is the same: D must have specific intent to have the crime committed
Solicitation and conspiracy:
Solicitation is an attempted conspiracy
Generally cannot be convicted of both
Conspiracy is continuing offense, while solicitation occurs when mens rea and actus reus are present (or offer is outstanding)
Generally, factual or hybrid impossibility is NOT a defense
Pure legal impossibility is a defense (solicits someone to commit a crime that is NOT illegal
Renunciation: complete and voluntary. D persuades the person not to commit the crime or prevents the crime from happening.
Some states require corroboration of either mens rea and actus reus: CASE: guilty of solicitation of murder of wife, but not attorney

70

Conspiracy

An agreement between two or more persons with specific intent to enter into an agreement and carry out the objective of the agreement. Sometimes an overt act by a conspirator toward the completion of the target crime is also required.
Plurality: 2 or more (problems w/undercover agent and minors)
Agreement: between the parties; group identity formed with agreement
Intent to agree: parties must have intent to enter into the agreement (presence and mere knowledge may not be enough ).
Intent to promote object of conspiracy: must be an unlawful objective (to commit a crime); intent to promote the crime (may be shown by repeated transactions, inordinate profits *Cases Lauria, Roy, meth lab). Some states include facilitation as a separate crime.
Overt act: MPC and some states require only for serious crimes Overt act may be innocuous. Some states require a substantial step toward the object offense.

71

Notes on Conspiracy

Not all states have conspiracy
D may be guilty of both conspiracy and the object crime
Does not require 2 convictions
Conspirators’ identities may be unknown to each other (as well as numbers)
Agreement need not be express (Some states allows for unilateral agreements, i.e. undercover stings)
Generally, agreement to commit more than 1 offense is only 1 conspiracy (i.e. kidnap 2 kids)
Some states: still only 1 conspiracy if several crimes are being committed during one continuous conspiratorial relationships (i.e. robbing several banks in a row)
Structure: CHAIN LINK or SPOKE WHEEL
(9) Some states: D cannot be conspirator if D cannot be charged w/substantive crime
(10) Wharton’s Rule: if 2 Ds are required = no conspiracy (but 3rd D can be charged). Legislature can intend for redundancy.

72

Mens Rea and Actus Reus of Attempt

Mens rea is specific intent and actus reus is determined by dangerous proximity (comes close to completion of object crime) and substantial step (what already done towards crime).

73

Impossibility Defense for Attempt

True legal impossibility, factual impossibility, hybrid impossibility, inherent impossibility.
True legal impossibility: always a good defense: crime, even if completed, is not crime even though D thinks it is a crime
Factual impossibility: usually not a good defense: actor misperceives the facts, but if facts were what D believed, then crime would have been completed
False or hybrid legal impossibility: D argues legal impossibility to sidestep factual impossibility (may be a defense) Legal impossibility is NARROW.
Inherent impossibility: D’s attempt is so incompetent that it is harmless. Negates intent.
(1) Thousand (cop poses as minor Bekka): court holds that D is not charged with the object crime (which would be impossible because V is not a minor) but with the ATTEMPT, which is a separate offense. Whether the object crime could be completed is irrelevant. Conviction upheld.
(2) Prisoner w/HIV: theoretical possibility is enough, likelihood is irrelevant, the D believed the attack would transmit HIV and belief was not absurd.

74

Renunciation / Abandonment Defense for Attempt

Renunciation / abandonment; abandonment must be complete, voluntary, and must avoid harm.
Renunciation: D desists short of completion of the object crime
Not a defense when D is afraid of getting caught or decides to wait until a better opportunity arises to commit the crime
Abandonment must be complete and voluntary, and must avoid harm
If person leaves, conspiracy is over for that person (statements made by others are no longer admissible against him as a co-conspirator’s admission)
Generally requires informing law enforcement or other conspirators of abandonment
Some require thwarting or actual preventing of the success of the conspiracy
Must be complete and voluntary
Does not include arrest or incarceration
Generally, impossibility is not a defense (conspiracy may continue even if object of the conspiracy cannot be achieved

75

Facilitation / Aiding and Abetting

.

76

Limitations and Duration of Conspiracy / Pinkerton

Statute of limitations begins to run when conspiracy is over (or when individual leaves conspiracy)
Pinkerton rule no longer applies once conspiracy is over
Conspiracy can stop and start, conspirators can join and withdraw.
Conspiracy is over by obtaining criminal objectives (D get what they expected) OR abandoned by all participants
States may include escape, distribution of goods, efforts to conceal crime, obstruction of justice

77

Accomplice Liability / Complicity

Modernly:
(1) Very broad: liable if solicits, aids, agrees, or attempts to aid with purpose of promoting or facilitating the commission of the offense
(2) Case
(a) Brothers stab/shoot V: does not require prior arrangement or communication
(3) Vicarious liability if:
(a) an affirmative act done w/intent to solicit or aid
(b) use an innocent or irresponsible person
(c) failure to perform a legal duty with intent to promote or facilitate a crime

No need to prove conspiracy since complicity is independent of any conspiracy liability
D can be derivatively liable for the principal violating the law (because of their relationship)
Accomplice is charged with the principal crime
Vicarious liability for completed crimes, based on the acts of others
ACCOMPLICE liability is derivative (not just vicarious) and is based on the primary actor’s crime. The Accomplice must TAKE PART in the object crime to be criminally liable. Based on what actor did.
Different from conspiracy: which only an agreement to commit a crime

78

Pinkerton

Conspirators liable for all reasonably foreseeable completed crimes by co-conspirators during conspiracy and in furtherance of the crime.
Greatly expands criminal liability of conspirators
Every conspirator is liable for every completed substantive crime by all co-conspirator that occurs during the conspiracy that is reasonably foreseeable as part of same conspiracy, and is in furtherance of the conspiracy
Rules:
(1) conspiracy is a partnership in crime; and it has implications distinct from the object crime
(2) D can be punished for both
(3) As long as crime continues, the D is still offending until he withdraws or until offense is terminated (accomplished or withdraw).

79

4 Common Law Categories of Accomplice Liability

Historically: Principals in the first degree: actually committed the crime
Principals in the second degree: aided and abetted and were present at the scene of the crime to assist in the commission of the crime
Accessories before the fact: aided and abetted beforehand (need not be present at the scene of the crime)
Accessories after the fact: know that crime committed and provides aid after the offense
Modernly: principals or accessories - aid / abet (even if principal acquitted; liable for reasonably foreseeable results of crime)

80

Actus Reus for Accomplice Liability

Assist or attempt to assist crime, include aiding (physical) or abetting (psychological) part of primary crime; can be omission if legal duty to act.

81

Mens Rea of Accomplice Liability

(1) Two kinds of intent:
Intent to assist the principal offender; and
Intent that the principal offender commit the offense
(2) some states will impose culpability even if the primary offense has an element of unintended result (recklessness or negligence is required mens rea)
(3) Generally extends beyond the primary crime to natural and probable consequences

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Notes on Accomplice Liability / Aiding and Abetting

D can be convicted of aiding and abetting even after the principal was acquitted (fate of other participant is not relevant)
Aiding and abetting describe any type of assistance by words or deeds that are intended to encourage, support or incite the commission of that crime
Standing ready to provide aid is enough, but principal must be aware of accomplice’s intentions
More than mere presence at scene of the crime plus mens rea required (but not much more)
D was not innocent, passive, unwitting bystander based on presence, companionship and conduct
Historically, if principal does not go far enough to complete the crime or attempt, then accomplice not criminally liable. MPC/modern statutes will find culpability if D is guilty of an attempt to commit the crime (even if crime is not committed or attempted by the principal)

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Vicarious Liability

Punished for the acts of others.
Vicarious liability if:
(a) an affirmative act done w/intent to solicit or aid
(b) use an innocent or irresponsible person
(c) failure to perform a legal duty with intent to promote or facilitate a crime

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Hindering / Compounding

Harboring, aiding, concealing (actus reus), knowing person committed some crime (mens rea); exceptions relatives.
Compounding:
(a) accepting pecuniary benefits in exchange for not reporting crime (some states broader to include concealing)
(b) reasonable compensation exception
(c) some states only for serious crimes

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Corporate and Organizational Liability

Civil liability may not be enough
Sanctions include fine, probation, community service, restitution
Due diligence may be a defense for corp
A agent is liable for reckless omissions if he has primary responsibility for that duty

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RICO (Racketeer-Influenced Corrupt Organization

RICO: imposes liability for a person who engages in a pattern of racketeering activity in connection with the activities of an enterprise
Pattern: two predicate crimes within 10 years
Enterprise: any business entity and includes a group of individuals
Sanctions: triple damages for civil suits, forfeiture of property
Prohibits use of proceeds; and any interstate commerce

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Entrapment

Intent to commit crime originated with law enforcement officers, and defendant was not predisposed to commit the crime prior to initial contact by government (i.e. undercover cop). Inducement or persuasion. (Makes sure gov't doesn't go too far.) Objective approach makes sure that if a non-predisposed person would still be persuaded, then predisposed may have defense.
Action by government agent
Inducement or persuasion
Two approaches to assess government acts:
Subjective approach (majority view): D’s mental state or predisposition to commit crime; was predisposed D merely responding to opportunity or did government persuade an otherwise innocent person to commit crime
Objective approach: does not consider the D’s predisposition; focus on whether government’s persuasion or inducement was proper. Defense arises if government methods create a substantial risk that persons who are not ready to commit the offense may be induced to commit it.
Other approaches:
(a) did government become an active participant (supplying an essential or important ingredient)
(b) was government’s misconduct outrageous

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Actus Reus

1) D's acts must be voluntary, 2) mere words are not enough, 3) possession may be criminal act, but typically requires knowledge of possession, but not necessarily that the object is illegal, 4) possession may be actual or constructive, 5) omissions are typically not a crime (except for duties, relationship, etc) 6) D's status is not a crime, but actions stemming from that condition may be.

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Mens Rea

1) D must have an intent or criminal state of mind (intent or knowledge), 2) includes acts that are negligent or reckless, 3) no mens rea for strict liability crimes (i.e. stat rape), 4) D intends to commit the physical ACT and not RESULT, this is general intent crime, 5) D intends the specific criminal result is a specific intent crime (D intends actus reus + something further (poss w/intent to dist).

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General Intent

Knowldge, recklessness, or negligence. Less likely to be affected by intoxication.

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Specific Intent

Mens rea as intended in the crime, requires intent and purpose, intent to commit a future act, intent for a special purpose for actus reus, and aware of attendant circumstances. More likely intoxication will be a good defense.

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US v Zandi

Issue: whether the brothers had possession of the opium and knowledge that the package contained opium.
Rules: (1) possession of a controlled substance with intent to distribute may be either actual or constructive possession. (2) knowledge may be found due to circumstantial evidence (do not need direct evidence).
Holding: (1) Actual possession is based on dominion and control. (2) Constructive possession exists when D exercises or has the power to exercise dominion and control over the item. (3) Knowledge that package contained opium was based on sufficient circumstantial evidence including the actions of the Ds, the phone calls, and exculpatory statements.

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Carroll and Anderson Cases

In Caroll, (military shot wife), D guilty of FIRST degree murder. Court held that if killing was intentional, even a brief amount of time was enough for premeditation; and jury is free to disregard expert testimony.
In Anderson, (drunk killed 10 year old in home), D guilty of SECOND degree murder after considering planning, motive, and manner.

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Arson

Common law: the malicious burning of the dwelling of another.
Mens rea is malice, not intent. D need not intend to create a burning, only that D intended to act under circumstances that pose a large risk of a burning
Modern: no longer requires a dwelling. Also, building doesn’t have to belong to the D. Some burning required, not just smoke damage (building need not be destroyed; charring).

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Midemeanor Manslaughter

Malum in se, malum prohibitum;
Commission of an unlawful act (non-felony) results in a killing = involuntary manslaughter.
Limits:
Proximate causation: strong causal connection between the unlawful act and the homicide.
Inherently bad/Malum in Se/Dangerous offenses: excludes regulatory offenses.

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Burden of Proof

Standard of Proof: prosecution must prove all elements beyond a reasonable doubt
Burden of production: party required to offer some proof (prima facie)
Burden of persuasion: party required to demonstrate that standard of proof has been satisfied
Lower standards of proof in hearings for probation/parole, bail, evidence.

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Strict Liability

Crimes without mental elements
Does not require any particular mens rea
Typically not serious offenses
Often involves health and safety regulations
Serious offenses include DUI, statutory rape
Some crimes do not expressly state a mens rea (may not always be strict liability)

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Consent

Generally, consent is a defense to assault and battery
Does not include the infliction of serious injury (harm must be within the scope of consent)
Must be legal activity; person competent to give consent

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Stalking

Stalking: more than 1 occasion intending to cause emotional distress to another or place in reasonable fear by following or harassing

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Harrassment

Harassment: telephone or writing directed at a specific person

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Domestic Violence

Domestic violence: created because existing assault and battery laws___________; difficulties w/prosecuting; enormous numbers; may not have V’s cooperation

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Theft and Ownership Notes

Person owns property if she has legal right to dispose of it (has title)
Possession is separate from ownership
Custody: physical control over property (usually for a short time)
Bailment: contractual transfer of possession for a limited purpose (D has lesser interest than Victim). (Coat check / valet)
False promise: false promise to do something in the future
Forgery and bad checks: forging someone else’s name = false pretenses; signing own name but ISF is false pretenses (majority) or larceny (minority)
White collar offenses resulted in Federal Mail Fraud Statute, Federal Bank Robbery Statute (both very broad)

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Receive Stolen Property

D receives (or conceals) property that was stolen by someone else and D knew that the property was stolen and D had intent to deprive owner of that property
Statutes often allow for sting operations (item will not actually be stolen)

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Criminal Trespass

Lesser included crime of burglary
Knowing that she is not licensed or privileged to do so, she enters or remains in any building or occupied structure
Defenses: abandoned building, open to public, reasonably believed owner would permit. Note: permission may be limited.

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Kidnapping

Unlawfully seizing and carrying away another by force or fraud, or detaining a person against his or her will with the intent to carry away at a later time.