Flashcards in Criminal Law Deck (127):
When will a state have jurisdiction over a crime?
1. Element committed in state
2. Out-of-state act caused in-state result
3. Crime involved neglect of duty imposed by statute within state
4. Attempt/conspiracy out of state plus in-state act
5. In-state conspiracy to commit out-of-state crime
May a jury be instructed to presume mental state?
No - prosecution carries BOP as to each element, including mental state.
What is prosecution's burden of proof?
Beyond reasonable doubt
In general, what are hallmarks of crime classified as felony?
Punishable by death or imprisonment for more than one year.
In general, what are hallmarks of crime classified as misdemeanor?
Punishable by fine or imprisonment for a year or less.
What due process requirements apply to statutes?
1. Must be fair warning (person of ordinary intelligence must be able to understand prohibited conduct AND
2. No arbitrary/discriminatory enforcement.
If two statutes address same subject matter but dictate different conclusions, which statute will be followed?
More specific one.
What was common law merger rule?
If person engaged in conduct hat could constitute both felony and misdemeanor, could only be convicted of felony and the merger fell within.
What is modern law merger rule?
No merger anymore, except that
- solicitation and completed crime merge
- attempt and completed crime merge
Conspiracy does not merge.
MPC treatment of inchoate offenses and merger
Under MPC, D may not be convicted of more than 1 inchoate crime (solicitation, conspiracy, ottempt) when conduct was designed to culminate in the same offense
When does jeopardy attach in jury trial?
When jury is sworn in
When does jeopardy attach in bench trial?
When witness is sworn in
When does jeopardy attach in guilty plea?
When court unconditionally accepts the plea.
Does double jeopardy apply to civil proceedings?
When are statutes sufficiently different such that the prosecution for both will not constitute double jeopardy?
When the statutes each contain an element that the other does not, but NOT if only one statute requires an element that the other does not (b/c that would mean that one is a lesser included offense)
What is actus reus?
Bodily act. Must be voluntary.
Examples of non-voluntary acts that will not constitute actus reus:
- Being pushed
- Unconscious (unless knew would become unconscious and commit act)
When can an omission constitute an act, such that it meets actus reus requirement?
1. Legal duty
2. D has knowledge of facts giving knowledge to legal duty, AND
3. Reasonably possible to perform duty.
What creates legal duty for actus reus omission requirement?
1. Parent/spouse- special relationship
2. Voluntary assumption of care
3. Creation of peril for V by D
4. By statute
5. By contractual duty to render care
When can possession constitute an act (actus reus requirement)?
Generally, only need to show that D had control for item long enough to have opportunity to terminate possession.
- multiple people can concurrently possess
- may be constructive (if located in area within D control/dominion)
- re: state of mind (need not be aware of illegality, unless statute includes mind element (knowingly) - then must know identity/nature, but can't consciously avoid learning true nature, and knowledge can be inferred from suspicion + indifference)
What are the specific intent crimes? (11) [common law]
Intent to commit the act itself.
Crimes against person
- 1st degree premeditated murder
Crimes against property
- False pretenses
If defendant makes mistake w/r/t critical fact, it doesn't matter whether reasonable or unreasonable. He is not guilty.
Voluntary intoxication is a defense, but must have been so drunk he didn't know what he was doing.
What are general intent crimes? (4) [common law]
Battery, rape, kidnapping, false imprisonment
Awareness of all factors constituting the crime (aware acting, aware that any required attendant circumstances exist)
What are common law mens rea categories?
Specific intent, general intent, malice, strict liability
What is mens rea of malice? TO which crimes does it apply?
Common law murder and arson, OR statutory offense where malice/maliciously appears in definition.
(1) intent or
(2) extremely reckless behavior; reckless disregard of obvious or high risk that particular harmful result will occur.
The malice to commit an underlying felony can be evidence of malice for murder if results in death.
Voluntary intoxication or unreasonable mistake of fact defenses DO NOT apply. Reasonable mistake of fact IS a recognized offense.
What are the two defenses that only apply to specific intent crimes?
Voluntary intoxication and unreasonable mistake of fact
Note: voluntary intoxication doesn't count if you form the requisite intent before getting drunk to work up the courage; can still be charged with attempted murder.
Can general intent be inferred?
Yes, jury may infer merely from doing the act.
What are strict liability offenses under common law and MPC?
Doesn't require awareness of all factors constituting crimes; act alone is enough.
Ex. selling liquor to minors, statutory rape.
Ex. public welfare offenses (contaminated foods, transferring unregistered firearms, shipping adulterated drugs in commerce)
Defenses that negate state of mind are not available.
What are MPC categorizations of mens rea?
What is MPC mens rea - purposely?
When "conscious object" is to engage in certain conduct or cause certain result. This is what D wants to do.
What is MPC mens rea - knowingly?
When D is aware that conduct is of particular nature, or that certain circumstances exist.
Knows, believes, or substantially certain that something will exist.
Knowledge can be inferred when aware of "high probability that circumstances exist and deliberately avoids learning the truth" OR when knows that conduct will "necessarily or very likely" result in result?
[ in short - when it's practically certain]
What is MPC mens rea - recklessly?
Ex. manslaughter, battery.
Conscious disregard of substantial and unjustifiable risk that circumstances exist or that result will follow, constituting a gross deviation from standard of care that reasonable person would exercise?
Note both subjective (awareness) and objective (unjustifiable risk, gross deviation) elements
Voluntary intoxication is not a recognized defense.
If D made mistake critical to element of a crime, the mistake must be reasonable (didn't mean to shoot person, meant to shoot deer)
What is MPC mens rea - negligence?
Fails to be aware of substantial and unjustifiable risk, when such failure is substantial deviation from objectively reasonable standard).
What type of causation is needed for criminal liability?
But-for causation and proximate cause
Under but-for causation, accelerated death still constitutes but-for.
Under proximate cause, must be natural and probable consequence
* Eggshell P rule applies
* No unforeseeable intervening event
When may a corporation be held liable for an act of its employee? (Enterprise liability)
When act performed by:
1. agent of corporation acting within scope of employment, or
2. corporate agent high enough in hierarchy to presume acts reflect corporate policy
In public welfare offenses, corporate leader can be held individually liable for corporate acts when agent stands in "responsible relation" to situation that created public danger
What is doctrine of transferred intent?
Intends harm actually accused, but to different V or object.
Defenses and mitigating circumstances usually can transfer (ex. voluntary manslaughter & adequate provocation)
Applies to homicide, battery, arson.
DOES NOT APPLY to attempt. (Ex. you intend to burn down your house, only reckless re: neighbor's house, can't be charged with attempted arson to your neighbor's house)
Ex. if you intend to cause serious bodily harm to one, and then someone else dies, that's common law murder.
What is the concurrence principle?
D must have required mental state at the time he does act.
Ex. if driving to V's house to kill him but accidentally runs him over on the way no necessary concurrence for murder.
Who are the parties to a crime under common law?
Principal in first degree - actually engaged in act/omission that constituted offense, or caused innocent to do so
Principal in second degree - aid/command/encouraged principal and was present
Accessory before fact - assisted/encouraged but not present
Accessory after fact - w/ knowledge that other committed felony, assisted to escape
Needed conviction of the principal to convict accessory.
Who are parties to crime under MPC?
Principal: person who commits illegal act or causes innocent agent to do it. Liable for principal crime.
Accomplice: aids or encourages principal to commit illegal conduct. Liable if
1. intended to assist
2. intent that principal commit the crime, and
Must meet negligence/reckless standard if the statute requires it (test: intended to facilitate commission, and acted with recklessness/negligence). Scope of liability: crime itself and any foreseeable crimes.
Accessory after the fact: aids another to escape knowing that he committed felony. Liable for separate offense.
How can a person withdraw as accomplice?
Must do so before the crime becomes unstoppable. Must:
1. repudiate (sufficient if only encouraged)
2. attempt to neutralize (if participation went beyond encouragement)
Examples of neutralize: notifying police or taking other action, try to stop the crime from happening
What are elements of crime of solicitation? (Inchoate offense)
Inciting, counseling, advising, urging, or commanding another to commit a crime, with the intent that the person solicited commit crime.
Mental state: specific intent.
The essence is the asking.
Merger: if solicited person commits crime, that person and solicitor can be held liable for that crime (but it merges). If solicited person attempts or conspiracy, both parties can be held liable (but it merges).
What are defenses to the crime of solicitation?
Solicitor could not be found guilty because of legislative intent to except (i.e. 14 year old cannot solicit statutory rape).
MPC allows renunciation if D prevents crime. Most CL doctrines don't recognize repudiation.
Not a defense that person solicited not convicted, or that offense wasn't possible.
What are the elements of the crime of conspiracy?
1. between 2+ people to commit a crime,
2. intent to enter into the agreement,
3. intent by at least 2 people to achieve the objective of agreement
4. PLUS an overt ACT in furtherance of that crime (majority) -- mutual action/joint activity constitutes inferred agreement
Specific intent crime.
Co-conspirators are liable both for conspiracy and for all substantive offenses committed in furtherance of the conspiracy
What is the unilateral approach to conspiracy crime?
This is the modern, MPC approach.
Only one party needs to have genuine criminal intent.
Ex. D and cop conspire. D can be found guilty.
Ex. D may be found guilty if all other co-conspirators found innocent.
Ex. D may be found guilty if all other members were just pretending to agree.
What is bilateral approach to conspiracy crime?
Older, CL approach.
Need at least two parties to have genuine criminal intent.
Husband and wife could not conspire together under CL (though minority rule now). Corporation and agent can't conspire.
Under Wharton rule, need 3+ people if crime necessitates 2 people.
Ex. D and cop conspire. D can't be found guilty.
Ex. D can't be found guilty if ALL co-conspirators found innocent/acquitted (doesn't count if they just weren't charged, or if charges were dismissed for some reason - can still be found guilty)
Ex. D cannot be found guilty if other members just pretending to agree, or are members of a protected class.
When does conspiracy terminate?
Upon completion of the wrongful objective. Unless already agreed upon, acts of concealment are not part of agreement.
If government defeats objective, conspiracy isn't necessarily terminated.
When can D be held liable for co-conspirators' crimes?
If crime was committed (i) in furtherance of the objectives of conspiracy, and (ii) were foreseeable. This is the Pinkerton Rule.
Pinkerton liability ends only when withdraws from conspiracy, applies prospectively and not retrospectively.
What are defenses to conspiracy?
Factual impossibility is NOT a defense to conspiracy (can conspire to kill a person who is already dead)
Withdrawal is generally not defense to conspiracy, since conspiracy only needs agreement + preparatory act. However, can be a defense to crimes committed in furtherance of conspiracy.
How does merger affect conspiracy prosecution?
It doesn't - conspiracy and the completed crime are distinct and separate offenses
What is the Wharton Rule?
Where there is a crime that requires 2+ people to commit crime (adultery, dueling, i.e.), no conspiracy unless more parties (3 or more) conspire in the agreement.
Exception: when the statute doesn't provide for the necessary parties.
When is withdrawal to conspiracy sufficient?
Must perform affirmative act that notifies all members of conspiracy of withdrawal.
1. Must voluntarily give up plan, AND
2. Communicate to all other participants in time for the other members to change/abandon their plans.
Effect of withdrawal: ends liability for substantive crimes, not for the underlying crime of conspiracy.
If provided assistance as accomplice, must neutralize.
What are elements of the crime of attempt?
An act, done with intent to commit a crime, that falls short of completing the crime.
Specific intent to commit the crime required. Thus, there can be no attempted involuntary homicide (reckless/negligence)
MERGES with other crimes!!
What are the two tests for whether an act constitutes attempt?
In either one, "mere preparation" is generally not considered to be sufficient for an attempt.
Common law proximity test: must get "dangerously close" to commission.
MPC substantial step test:
1. Act constituting "substantial step" in the course of conducted intended to result in the crime, and
2. Act be strong corroboration of the D's criminal purpose, though it need not establish purpose by itself.
What defenses are available for attempt crime?
Legal impossibility is a defense (if defendant were to commit all acts and ti wouldn't be a crime). Factual impossibility is NOT a defense (physical/factual condition makes it impossible).
Withdrawal usually not a defense (CL), but MPC provides that "fully voluntary and complete abandonment" is a defense. Under that, must prove:
(i) abandonment was entirely voluntary, i.e. not motivated in any way by circumstances not present or apparent earlier that increase the difficulty of committing a crime
(ii) abandonment was complete - can't simply be a decision to postpone a crime until a better time, victim, opportunity is found.
Bottom line: under withdrawal, if the crime was simply becoming more complicated than envisioned, the decision to abandon is not voluntary and likely incomplete.
What liability attaches to parties in chain relationship of conspiracy?
Single, large conspiracy in which all parties to subagreements are interested in bigger scheme. All memebrs are liable for acts of others in furtherance.
What liability attaches to parties in hub-and-spoke relationship of conspiracy?
Several independent conspiracies, linked by common member. Common member liable to all conspiracies, individuals not liable for acts of other conspirators.
What are the 4 tests for establishing insanity (D so mentally ill as to be entitled to acquittal)?
1. M'Naghten Rule
2. Irresistible impulse?
3. New Hampshire (Durham) test?
4. ALI/MPC test
What is the M'Naghten rule for establishing insanity defense?
Establishes insanity sufficient for acquittal if:
1. Disease of the mind
2. Caused a defect of reason
3. Such that D lacked ability at time of actions to either know the wrongfulness of actions OR to understand nature and quality of actions
(doesn't know right from wrong OR doesn't understand actions)
What is irresistible impulse test for establishing insanity defense?
Only if, because of mental illness, unable to control actions or conform conduct to the law
What is the Durham test for establishing insanity defense?
If crime was product of mental illness (broad)
What is the MPC test for establishing insanity defense?
If has mental disease or defect, and as a result, lacked the substantial capacity to either appreciate the criminality of conduct or conform conduct to the requirements of law
What is required mental condition during criminal proceedings?
Whether at time of trial defendant can either not understand proceedings against him or assist his lawyer in preparation of defense. If either is established, trial is postponed until D regains competency.
The judge is constitutionally obligated to raise the issue of competency if it appears the defendant may be incompetent.
Post-acquittal commitment to mental institution
Confinement may exceed maximum period of incarceration for charged offense
Pretrial psychiatric examination
If D doesn't raise insanity, may refuse court-ordered psych examination to determine competency to stand trial. If raises insanity, may not refuse that.
What is the diminished capacity defense?
D asserts that as a result of defect short of insanity, did not have requisite mental state. Limited usually to specific or general intent crimes.
What is the defense of intoxication?
May be raised when it negates one of the elements of the crime. May be caused by any substance. Split into voluntary and involuntary intoxication.
What is voluntary intoxication?
Result of intentional taking without duress of a substance known to be intoxicating.
You need to be so intoxicated that you cannot form intents.
Can be raised as a defense only to purpose (intent) or knowledge crimes, if intoxication prevented D from formulating purpose or obtaining knowledge.
What is involuntary intoxication?
Taking intoxicating substance without knowledge of its nature, under duress or pursuant to mental advice.
Treated as a mental illness - apply appropriate insanity test. May be defense to all crimes.
What is the defense of infancy?
Rule of 7s (CL):
If under 7, no prosecution.
If under 14, rebuttable presumption against prosecution.
If 14 or over, can prosecute.
What is the justificatory defense of self-defense?
Person is responding with force they reasonably believe is necessary to protect from imminent use of unlawful force
(reasonably believed under attack + actions were reasonable)
When is force appropriate to use in self-defense?
Deadly: May only use if without fault, is confronted with unlawful force, and reasonably believes threatened with imminent death or great bodily harm
Deadly force is anything like knife, gun, or anything used in a manner likely to produce death/SBH.
Non-deadly force can be used to avoid imminent injury or retain property, such as person "reasonably believes is necessary" to protect from harm. No duty to retreat?
What is imperfect self-defense doctrine?
If D kills in self-defense but not all three requirements are met (without fault, unlawful force, reasonably believes imminent harm of SBH/death).
This would come up if there was a reasonable mistake as to the need to use deadly force. If it's reasonable, there is a complete defense. If unreasonable, split:
- MPC minority: imperfect self defense
- Majority: no defense
When is there a duty to retreat if confronted with unlawful force and D without fault?
Generally, no duty to retreat. Minority says duty to retreat unless
i. In home
ii. While victim making lawful arrest, or
iii. assailant is robbing the V.
When may an initial aggressor use self defense as justification?
1. Effectively withdraws and clearly communicates desire to do so, or
2. Victim suddenly escalates from non-deadly to deadly altercation, and initial aggressor cannot withdraw
When can someone defend another? (self-defense)
If reasonably believes person assisted has legal right to use force in own defense
When and how may someone defend a dwelling? (self-defense)
Non-deadly force: when reasonably believes necessary to prevent or terminate unlawful entry into or attack upon dwelling
Deadly force: only to prevent violent entry and person reasonably believes use of force necessary to prevent personal attack on self/other in dwelling, or to prevent entry to commit felony
When and how may someone defend their own possession/property? (self-defense)
Deadly force: never
Non-deadly force: if person reasonably believes force necessary to defend property in possession (but if request to desist would suffice, can't use force).
May use force to regain property that reasonably believes was taken ONLY when in immediate pursuit of taker
When can someone use force to prevent a crime?
Nondeadly: if person reasonably believes necessary to prevent felony or serious breach of peace
Deadly: only to extent person reasonably believes deadly force necessary to prevent or end felony risking human life
When and how can police officer use force in effectuating an arrest?
Nondeadly force: If officer reasonably believes force necessary to arrest
Deadly: only to prevent escape of felon, and officer reasonably believes suspect threatens death or SBH
When and how can a private person use force in effectuating an arrest?
Nondeadly force: if crime in fact committed and reasonable belief this person committed
Deadly: Only to prevent escape of person who actually committed felony, and person reasonably believes that suspect threatens death or GBH
When and how can someone use force in resisting an arrest?
Nondeadly: majority says can be used to resist improper arrest even if known officer. MPC/minority - no force ever on known officer
Deadly: only if improper rrest and defendant doesn't know arrester is cop
What is the necessity defense? (Justification)
Full defense and justification.
Person reasonably believed commission of crime necessary to avoid imminent and greater injury to society than involved in crime. Objective test (good faith insufficient).
Common law: choice of evils needed to be natural force
Majority: choice of evils need not be natural force
Note: can't be a harm of equal magnitude
Cannot be used if you kill someone to protect property
Cannot use if D creates choice of evils.
What is the excuse of duress?
D reasonably believed that another person would imminently inflict death or SBH upon him or member of family if did not commit crime.
Minority: threats to property insufficient.
MPC majoirty: threats to property give rise to defense, assuming value of property outweighs harm done to society by commission of crime.
Note: cannot be defense to intentional homicide, though it can sometimes reduce homicide from murder to manslaughter.
Must always be a threat by human.
What is the mistake/ignorance of fact defense?
D lacked state of mind required for crime.
If offered to disprove specific intent crime, need not be reasonable.
If offered to disprove any other mental state, must have been reasonable mistake.
Usually raised as defense to crime that has been completed.
Mistake of law as a defense?
There is no defense for mistake or ignorance of law, unless the statute wasn't published or made reasonably available, there was reasonable reliance on statute/judicial decision, or there was reasonable reliance on official interpretation or advice (minority)
What is the consent defense?
Usually not a defense, unless rape.
Defense to minor A&B if no danger of SBH.
Must show that:
1. Consent was voluntarily and freely given,
2. Party was capable of consenting, and
3. No fraud in obtaining consent
What is the entrapment defense?
1. Criminal design originated with law enforcement officers AND
2. D was not predisposed to commit crime prior to contact by gov't
(narrow bar, and prior record shows predisposition)
A person cannot be entrapped by private citizen. Merely providing ingredient for crime commission is not sufficient for defense.
What are the elements of battery (criminal)?
Unlawful application of force to person of another
Resulting in either bodily injury or offensive touching
Does not need to be intentional, force need not be applied directly.
Simple battery: misdemeanor
Aggravated battery: felony -- battery with deadly weapon battery resulting in SBH, battery of child/woman/cop
What are the elements of assault?
(a) attempt to commit battery OR
(b) Intentional creation (other than by mere words) of reasonable apprehension in mind of victim of imminent bodily harm?
IF there is actual touching, it's battery and not assault
What are the elements of the common law crime of mayhem?
CL: a felony. Dismemberment or disablement of a body part.
Modern: treated as aggravated battery.
What are the common law categories for homicide?
2. Voluntary manslaughter
3. Involuntary manslaughter
What are elements of common law murder?
Unlawful killing of human being with malice aforethought. Malice aforethought can be through:
1. Intent to kill;
2. Intent to inflict SBH
3. Reckless/extreme indifference to an unjustifiably high risk to human life ("depraved heart") OR
4. Intent to commit a felony (felony murder rule) - most cabin to "inherently dangerous felony"
Intentional use of deadly weapon authorizes permissive inference of intent to kill.
What is the "year and a day" rule?
Old CL rule that we shouldn't apply unless told to. Person had to die within year and a day to be guilty of homicide.
What is voluntary manslaughter?
A killing that would be murder but for the existence of adequate provocation ("extreme emotional disturbance for which there is a reasonable excuse"). Provocation adequate only if:
i. Would arouse sudden/intense passion in ordinary person (objective)
ii. D was in fact provoked (subjective)
iii. No cooling off period (objective)
iv. D did not in fact cool off (subjective)
Ex. woman subjected to insults and taunting, followed by a sudden punch.
Finding your spouse in sex act with another; being physically assaulted.
What is involuntary manslaughter?
Unlawful killing without malice aforethought.
Committed with criminal negligence (or recklessness under MPC)
Misdemeanor manslaughter rules: (minority - don't apply unless told to) during commission of unlawful act not otherwise within the felony murder rule - misdemeanor murder, e.g.
Ex. father failing to provide medical treatment for their child who is critically ill
What creates the statutory modification of first-degree murder?
Assume there isn't division unless explicit reference to this statutory modification.
1. Deliberate & premeditated (cool and dispassionate decision, actually reflected on idea of killing - however briefly)
2. First degree felony murder (enumerated felony - burglary, arson, rape, robbery, kidnapping; or a felony inherently dangerous to human life)
3. Statutorily created specification for killing performed ina certain way (torture, i.e.)
Intoxication is a defense to deliberate & premeditated.
If doesn't fit into these, 2nd degree murder
What is felony murder?
Any death caused in commission of, or attempt to commit, a felony is murder. Malice is implied from the intent to commit the underlying felony.
All participants in the felony will be liable for murder if the killing was foreseeable.
What are limitations on liability for felony murder?
1. D must have committed or attempted to commit the underlying felony (can negate elements of the felony)
2. Felony must be distinct from killing
3. Death must have been foreseeable result
4. Death must have been caused before D's immediate flight (no felony murder if after temporary safety/shelter) - res gestae principle
5. Not liable when co-felon killed as a result of resistance from felony victim or police (majority - Redline)
6. Proximate cause/agency theory of felony murder
What is the split between proximate cause and agency theory of felony murder? (vicarious liability provisions)
Proximate cause theory: can be held liable for felony murder even when co-felon wasn't killer of innocent V (ex. security guard accidentally kills teller, still liable)
Agency theory: killing must be committed by felon or felon's agent (accomplice) unless V was used as shield or forced by felon to be in dangerous place
What is the born alive rule?
V must be born alive to be victim. More states are extending protection to unborn children.
What are the elements of crime of false imprisonment?
Unlawful confinement of person without valid consent.
MPC: confinement must interfere substantially with victim's liberty.
General intent crime.
Not crime if there are alternative routes available.
Consent invalidated by coercion, threat, deception, or incapacity (mental illness, substantial impairment, youth)
What are the elements of kidnapping?
Unlawful confinement of person involving either movement or concealment of victim. (heightened form of false imprisonment)
General intent crime.
Aggravated kidnapping (ransom, for purpose of committing other crimes, kidnapping for offensive purpose, child stealing)
What are elements of CL rape?
Unlawful carnal knowledge of a woman by man not her husband, without effective consent.
Usually - recklessness. Voluntary intoxication is not a defense.
How is "lack of effective consent" defined?
1. Actual force,
2. Threats of great and immediate bodily harm,
3. Victim incapable of consenting due to unconsciousness, intoxication, mental condition, OR
4. V fraudulently caused to believe act isn't intercourse (though other types of fraud are consent)
What is statutory rape?
Sex under age of consent.
Mistake as to age not effective D because strict liability.
Note: you can't be charged with aiding and abetting a crime like this or like booze sale to underage kids because they are the class designed to be protected
What is crime of adultery and fornication?
Both parties commit if either is validly married to someone else. Must be open and notorious.
Fornication - open & notorious cohabitation or sex between unmarried persons
What is crime of seduction?
Inducing sex by promise of marriage to unmarried woman.
What are elements of larceny?
Trespassory taking and carrying away of personal property in the possession of another with the intent to permanently deprive the other of interest in the property.
1. Taking (obtaining control, intentionally);
2. And carrying away (asportation - must be moved, even if just 1 step);
3. Of tangible personal property (not realty/service/intangible, but including written instruments embodying intangible rights)
4. Of another with possession (doesn't need title, just superior right to possess);
5. By trespass (without consent; possession was not given)
6. With intent to permanently deprive that person of interest in property (intent at time of taking, unless continuing trespass case)
Specific intent crime! Recklessness/extreme indifference doesn't count. Even unreasonable mistake is a defense. Voluntary intoxication is a defense, but must be so drunk that didn't know what doing.
Can be committed with lost/mislaid property, or property that was mistakenly delivered. Can be your own property, if you are the bailor but the bailee has a superior right of possession.
Can't be committed with abandoned property.
Note: you can get someone else to go take the property for you, don't have to physically be there.
Continuing trespass applies (if you trespassorily take but later form requisite intent to keep forever, can still be larceny)
NOTE: cannot be charged with both larceny and robbery, b/c robbery is like aggravated larceny!
When may a bailee be guilty of larceny?
If "breaks bulk" - opens the closed containers in which the property was placed. Generally, a bailee has possession and may be guilty of embezzlement if takes property.
What is continuing trespass theory?
If D wrongfully/trespassorily takes property without specific intent to permanently deprive, but then later formulates that intent, can be found guilty of larceny. This is an exception to the concurrence requirement.
If they did not wrongfully take property in first instance (took umbrella thinking hers) but then decides to keep it, it isn't larceny.
It is if they wrongfully took it just to borrow, but then decide to keep it.
What are elements of crime of embezzlement?
Theft from a high-level employee or position of trust.
Conversion (dealing w/ property in manner inconsistent with arrangement; no embezzlement if claim of right)
Of personal property
By person in lawful possession of that property
With intent to defraud
Intent: specific intent to defraud (either known statement to be false or have intended victim rely on misrepresentation; if deliberately avoided learning truth if put on notice)
Lawful possession (more than mere custody - requires authority to exercise discretion).
Can enrich third party (favorite charity); doesn't need to only enrich self.
If D intends to restore the exact property taken, it is not embezzlement. If they intend to restore similar or substantially identical money (money with other money), still embezzlement.
If determining whether employee embezzled/larceny:
If control for a long period of time, that will be embezzlement. If it's low-level employee with limited amount of control, it will be larceny.
What are the elements of the crime of false pretenses?
Defendant obtains the title to the property by means of a false representation of a material present or past fact that causes the victim to pass title to his property to the defendant, who knows his representations to be false and intends to defraud victim.
1. defendant obtains title
2. false representation of material fact
3. fact causes victim to pass title to defendant
4. defendant knows representations are false
5. defendant intends to defraud victim
Intent: specific intent to defraud
Misrepresentation must be major factor, victim must have actually been tricked.
Note: can apply to money (if you trick someone into giving you cash, then you obtain title to that), can apply to gas (title to the gas is yours if you get a free fill up)
What is larceny by trick?
Obtaining custody (NOT TITLE) of personal property of another by false statement made knowingly with intent to defraud
Specific intent to steal.
Misrepresentation must be major factor, victim must have actually been tricked.
Note: don't need trespassory entry here.
What are the elements of robbery?
Trespassory taking and carrying away of personal property of another, by force or intimidation from the other's person or presence, with the intent to permanently retain
Larceny + 2:
+ from someone's person or presence (zone of presence)
+ by force or threat of immediate injury to victim, member of family, or someone in victim's presence (any amount sufficient to overcome resistance; must be immediate).
Cannot be charged with both larceny and robbery, b/c larceny is a lesser included offense
Intent: specific intent to steal
Differs from larceny in the force and threat (pickpocketing usually larceny)
Note: if threat is used, it must be of SBH.
What are the elements of extortion?
Corrupt collection of an unlawful fee by an officer under color of office.
Modern statutes: adds means of threat to do harm or expose information. Split: whether the property actually must be obtained.
What are the elements of Receipt of Stolen Property?
1. Receiving possession and control (manual possession not required; when put in location designated by D or when D arranges for sale to third person)
2. Of stolen personal property (must be stolen at time defendant receives it)
3. Known to have been obtained in a manner constituting a criminal offense
4. By another person
5. With the intent to permanently deprive the owner of his interest in it
Intent must be formed at the time of receiving the stolen property. You can't later discover it was stolen and be charged with this (concurrence principle)
What is the MPC crime of "theft"?
Property offenses under common law - extortion, receipt of stolen property, larceny, larceny by trick, false pretenses, embezzlement).
Under this approach, determine the value of what was taken.
What are the elements of forgery?
1. Making or altering
2. A writing with apparent legal significance (contract not a painting)
3. So that it is false (representing something that it is not - fake vs. inaccurate)
4. With intent to defraud (though actual defrauding need not happen)
Ex. fraudulently obtaining signature of another, uttering a forced instrument (offering as genuine an instrument that may be the subject of forgery and is false, with the intent to defraud)
What are the elements of malicious mischief?
The malicious destruction of or damage t the property of another.
Malice - doesn't need hatred, requires that the damage/destruction was either intended or contemplated by the defendant.
What are the elements of common law burglary?
Breaking and entering of a dwelling of another at nighttime with the intent to commit a felony in the structure
1. A breaking (creating/enlarging entry through minimal force, fraud, intimidation; if window is open or there is consent, not met; can be constructively met if obtained through fraud)
2. And entry (any body part or instrument to commit crime)
3. Of a dwelling (regularly used for sleeping, even if also a business - hotel included)
4. Of another (can own but can't occupy)
5. At nighttime
6. With the intent to commit a felony in the structure (intent must be present at time of entry; cannot formulate intent to commit felony after the fact)
Does NOT merge with larceny, robbery!!
What are the elements of common law arson?
1. malicious (intentional/reckless disregard of obvious risk)
2. burning (requires structural damage, mere blackening or discoloration insufficient; charring IS sufficient)
3. of the dwelling of another.
MPC expands liability, including other types of property, damage caused by explosion, etc.
Note: not specific intent crime, even though malice is intent required. Voluntary intoxication is not a defense.
On exam, will often assume CL + broader, i.e. dwelling definition expanded.
Transferred intent doesn't apply if you meant to burn down your own home (not illegal at common law in the first place).
What is perjury?
Intentional taking of a false oath regarding a material matter in a judicial proceeding?
What is subornation of perjury?
Procuring or inducing another to commit perjury.
What is bribery?
CL: corrupt payment or receipt of anything of value for official action.
Modern: can be extended to non-public officials, either offering or taking can constitute the offense.
What is compounding a crime?
Agreeing, for valuable consideration, not to prosecute another for a felony or to conceal the commission of a felony or the whereabouts of a felon.
Modern: any crime, not just felony
What is misprision of a felony?
CL: failure to disclose knowledge of the commission of a felony or to prevent commission of a felony
Modern: no longer a crime, and where it is it requires affirmative action in aid of a felon.
What is an accomplice?
(i) with the intent to assist the principal
(ii) with the intent that the principal commit the substantive offense
(iii) actually aids, counsels, or encourages the principal before or during the commission of a crime.
What is defendant's burden of proof in establishing insanity?
Could be either clear and convincing or beyond a reasonable doubt.