Criminal Law Flashcards

Question

Bills of Attainder: defined

Answer 1

A legislative act that inflicts punishment or denies a privilege WITHOUT A JUDICIAL TRIAL. Although a bill of attainder may also be an ex post facto law, a distinction can be drawn in that an ex post facto law does not deprive the offender of a judicial trial.

Answer 2

1. Plain Meaning Rule 2. Ambiguous Statutes Strictly Construed in Favor of Defendant 3. Expressio Unius, Exclusio Alterius 4. The Specific Controls the General, the More Recent Controls the Earlier. 5. Effect of Repeal.to bar prosecutions for earlier violations provided the prosecution is pending or not under way at the time of repeal (unless there is a saving provision)

Answer 3

1. Misdemeanor merges into Felony | 2. No merger among offenses of same degree

Answer 4

No merger with the following limited exceptions: 1. Merger of Solicitation or Attempt into Completed Crime 2. Merger of Lesser Included Offenses into Greater Offenses in the sense that one placed in jeopardy for either offense may not later be retried for the other. Nor may one be convicted of both the greater offense and a lesser included offense. A lesser included offense is one that consists entirely of some, but not all, elements of the greater crime. (Required by the constitutional prohibition against double jeopardy.) 3. Many states are developing rules against multiple convictions for parts of same transaction.

Answer 5

statute provides multiple punishments for single act and the punishments are imposed at a single trial.

Answer 6

1. Actus Reus 2. Mens Rea 3. Concurrence 4. Harmful Result and Causation

Answer 7

Guilty Act: A physical act (or unlawful omission) by the defendant. An act is defined as a bodily movement. A thought is not an act. Must be voluntary--a conscious exercise of the will. The following acts are not voluntary: 1. conduct that is not the product of the actor's determination 2. Reflexive or convulsive acts 3. Acts performed while the defendant was either unconscious or asleep unless the defendant knew that she might fall asleep or become unconscious and engaged in dangerous behavior.

Answer 8

A defendant's failure to act will result in criminal liability provided 3 requirements are met: 1. Legal Duty to Act 2. Knowledge of Facts Giving Rise to Duty (in some cases the law imposes a duty to know the facts) 3. Reasonably Possible to Perform

Answer 9

1. A statute 2. A contract 3. The relationship between teh defendant and the victim, which must be sufficiently close to create a duty. 4. The voluntary assumption of care by the defendant of the victim 5. The creation of peril by the defendant.

Answer 10

Criminal statutes that penalize the possession of contraband generally require only that the defendant have control of the item for a long enough period to have an opportunity to terminate the possession. Possession need not be exclusive to one person, and possession may also be constructive, meaning that actual physical control need not be proved when the contraband is located in an area within the defendant's "dominion and control." Absent a state of mind requirement in the statute, the defendant must be aware of his possession of the contraband, but he need not be aware of its illegality or true nature. However, many statutes and the MPC require a "knowingly" or "intentionally" state of mind element to possession crimes.

Answer 11

To distinguish between inadvertant or accidental acts and acts performed by one with a "guilty mind." However, in some cases (strict liability crimes) mens rea is not required.

Answer 12

If the definition of a crime requires not only the doing of an act, but the doing of it with a specific intent or objective, the crime is a "specific intent" crime.

Answer 13

It is necessary to identify specific intent for 2 reasons: 1. Need for Proof: the existence of a specific intent cannot be inferred from the doing of the act. The prosecution must produce evidence tending to prove the existence of the specific intent. 2. Applicability of Certain Defenses: Some defenses, such as voluntary intoxication and unreasonable mistake of fact, apply only to specific intent crimes.

Answer 14

1. Solicitation: intent to have the person solicited commit the crime 2. Attempt: intent to complete the crime 3. Conspiracy: intent to have the crime completed 4. First Degree Premeditated Murder (where so defined by statute): Premeditated intent to kill 5. Assault: intent to commit a battery 6. Larceny: Intent to permanently deprive another of his interest in the property taken 7. Robbery: Intent to permanently deprive another of his interest in the property taken 8. Burglary: intent at the time of entry to commit a felony in the dwelling of another 9. Forgery: intent to defraud 10. False Pretenses: intent to defraud 11. Embezzlement: intent to defraud

Answer 15

Defendant recklessly disregarded an obvious or high risk that the particular harmful result would result. Although the intents required for the "malice" crimes--common law murder and arson--sound similar to specific intent (e.g., the intent to kill for murder), these crimes are NOT open to the specific intent defenses. The common law created the special mental state category especially to deny MURDER and ARSON the specific intent defenses.

Answer 16

Awareness of factors constituting crime--defendant must be aware that she is acting in the proscribed way and that any attendant circumstances required by the crime are present. General Intent can be INFERRED FROM THE ACT. TRANSFERRED INTENT: most commonly applies to homicide, battery and arson. It does not apply to attempt. It must be the same crime.

Answer 17

A motive is the reason or explanation underlying the offense. It is generally held that MOTIVE IS IMMATERIAL to substantive criminal law. A good motive will not excuse a criminal act.

Answer 18

One that does not require awareness of all the factors constituting the crime. Generally, the requirement of a state of mind is not abandoned with respect to all elements of the offense, but only with regard to one or some of the elements. Certain defenses, such as mistake of fact, are not available.

Answer 19

Generally are offenses that are part of a regulatory scheme and involve a relatively low penalty and are not regarded by the community as involving significant moral impropriety. The fact that a statute is silent of the mental state does not necessarily make it a strict liability offense. The courts may still interpret the statute as requiring some mens rea, especially if the statute appears to be a codification of a traditional common law offense or it the statute imposes a severe penalty.

Answer 20

Majority view is that strict liability offenses are constitutional. Exception: The Supreme Court struck down as a violation of due process a Los Angeles municipal ordinance imposing strict liability for failure to register as a felon. The key factor in the court's decision was the absence of "circumstances which might move one to inquire as to the necessity of registration. NOTE: the holding is limited to statutes making criminal the failure to register.

Answer 21

MPC advocates the elimination of the ambiguous common law distinction between general and specific intent. Instead, the MPC proposes 4 categories into which the mental component of a criminal offense can be characterized.

Answer 22

1. Purposely A person acts purposely with respect to his conduct when it is his conscious object to engage in certain conduct or cause a certain result. 2. Knowingly (Willfully) A person acts knowingly with respect to the result of his conduct when he knows that his conduct will necessarily or very likely cause such a result. 3. Recklessly (Wantonly) A person acts recklessly when he consciously disregards a substantial or unjustifiable risk that circumstances exist or that a prohibited result will follow, and this disregard constitutes a gross deviation from the standard of care that a reasonable person would exercise in the situation.

Answer 23

A person acts negligently when he fails to be aware of a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such failure constitutes a SUBSTANTIAL DEVIATION FROM THE STANDARD OF CARE that a reasonable person would exercise under the circumstances. However, this is not just the reasonable person standard that is used in torts; the defendant must have taken a VERY UNREASONABLE RISK in light of the usefulness of his conduct, his knowledge of the facts, and the nature and extent of the harm that may be caused. VIOLATION OF STATUTE OR ORDINANCE MAY BE EVIDENCE OF NEGLIGENCE. (as in torts)

Answer 24

The specified state of mind applies to all material elements of the offense unless a contrary purpose appears in the statute.

Answer 25

Defendant must have acted with at least recklessness with regard to each material element of the offense.

Answer 26

One in which a person without personal fault may nevertheless be held vicariously liable for the criminal conduct of another (usually an employee). The criminal law doctrine of vicarious liability is analogous to the tort doctrine of respondeat superior. Vicarious liability dispenses with the actus reas requirement but retains the need for mental fault on the part of the employee.

Answer 27

Because the imposition of criminal liability for faultless conduct is contrary to the basic premise of criminal justice that crime requires fault on the part of the accused, at least one state court has held that imprisonment in such cases violates the due process guarantees of the state constitution. The current trend is to limit vicarious liability to regulatory crimes and to limit punishment to fines.

Answer 28

Liability of Corporations and Associations NO CRIMINAL LIABILITY A corporation could not commit a crime because it was unable to form the necessary criminal intent.

Answer 29

Liability of Corporations and Associations VICARIOUS CRIMINAL LIABILITY Modern statutes often provide for the liability of corporations and sometimes even unincorporated associations (e.g., partnerships). This liability is, by necessity, vicarious. Under such provisions, corporations may be held liable under the following conditions: 1. Act Within Scope of Office Except where the law specifically provides otherwise, the conduct giving rise to corporate liability must be performed by an agent of the corporation acting on behalf of the corporation and within the scope of his office or employment. 2. "Superior Agent Rule" Some jurisdictions limit corporate criminal liability to situations in which the conduct is performed or participated in by agents sufficiently high in the corporate hierarchy to presume that their acts reflect corporate policy.

Answer 30

Liability of Corporations and Associations Under MPC a corporation may be guilty of a criminal offense provided the offense: 1. Consists of the FAILURE TO DISCHARGE A SPECIFIC DUTY imposed by law on the corporation. 2. Is defined by a statute in which a LEGISLATIVE PURPOSE TO IMPOSE LIABILITY on corporations plainly appears; OR 3. Was "authorized, requested, commanded, performed, or recklessly tolerated BY THE BOARD OF DIRECTORS OR BY A HIGH MANAGERIAL AGENT acting on behalf of the corporation within the scope of his office or employment.

Answer 31

The person who, in the name of the corporation, performs (or causes to be performed) the conduct that is an element of the offense is legally accountable and subject to punishment to the same extent as if the conduct were performed in his name or on his own behalf. Both the corporation and the individual can be convicted.

Answer 32

The defendant must have had the intent necessary for the crime at the time he committed the act constituting the crime. In addition, the intent must have prompted the act.

Answer 33

Some crimes require a harmful result and causation.

Answer 34

The common law distinguished four types of parties to a felony: 1. Principals in the first degree (persons who actually engage in the act or omission) 2. Principals in the second degree (persons who aid, command or encourage the principal and are present at the crime. 3. Accessories before the fact (persons who aid, abet, or encourage the principal but are NOT present at the crime) 4. Accessories after the fact (persons who assist the principal after the crime.)

Answer 35

At common law, the distinctions between the parties had a great deal of procedural significance. For example, an accessory could not be convicted unless the principal had already been convicted, although both could be convicted in a joint trial if the jury determined the prinicipal's guilt first.

Answer 36

All parties to the crime can be found guilty of the criminal offense. Principal: one who, with the requisite mental state, actually engages in the act or omission that causes the criminal result. Also, anyone who acts through an innocent, irresponsible, or unwilling agent is classified as a principal. Accomplice: one who, with the intent that the crime be committed, aids, counsels, or encourages the principal before or during the commission of the crime. Accessory After the Fact: one who receives. relieves, comfortes, or assists another knowing that he has committed a felony, in order to HELP THE FELON ESCAPE ARREST, TRIAL, OR CONVICTION. The crime committed by the principal must be a FELONY and it must be COMPLETED at the time the aid is rendered. Typically the punishment for the crime bears no relationship to the principal offense: 5 years is the most common sentence. Exemptions usually provided for close relatives. (Common law exempted only the spouse.)

Answer 37

selling a good at a higher price with the knowledge that a crime will be committed with the good is a stake in the venture and could constitute accomplice liability.

Answer 38

An accomplice is liable for the crimes he did or counseled AND for any other crimes committed in the course of committing the crime contemplated, as long as the other crimes were PROBABLE OR FORESEEABLE.

Answer 39

1. Members of the Class protected by the statute 2. Liability of Necessary Parties not Provided For In the Statute 3. Withdrawal from the crime before it is actually committed by the principal. Effective withdrawal depends on what the person initially did: (i) If the person merely encouraged, withdrawal requires that he repudiates his encouragement. (ii) if the person assisted by providing some material to the principal, withdrawal requires that the person attempt to neutralize the assistance, e.g., by doing everything possible to retrieve the material provided. If impossible to withdraw by these means, the person must notify the authorities or take some other action to prevent the crime. Withdrawal must occur BEFORE the chain of events leading to the commission of the crime become unstoppable.

Answer 40

Solicitation, conspiracy, attempt Quite frequently considered felonies.

Answer 41

At common law, it was a misdemeanor to solicit another to commit a felony or an act that would breach the peace or obstruct justice. Modern statutes often retain solicitation, but restrict it to the solicitation of certain serious felonies.

Answer 42

Inciting, counseling, advising, inducing, urging, or commanding another to commit a felony with the specific INTENT THAT THE PERSON SOLICITED COMMIT THE CRIME (general approval or agreement is not sufficient). The offense is complete at the time the solicitation is make. It is not necessary that the person solicited agree to commit the crime or do anything in response.

Answer 43

If the person solicited does the crime, the solicitor will be liable for the crime as a party (including attempt). Solicitation is generally not an attempt to commit the crime solicited. This distinction is important in jurisdictions where there is no crime of solicitation or where the crime of solicitation does not extend to as many offenses as does the crime of attempt.

Answer 44

1. Impossibility No Defense 2. Withdrawal or Renunciation No Defense 3. Exemption from Intended Crime IS Defense (minor female/statutory rape)

Answer 45

Combination or agreement between two or more persons to accomplish some criminal or unlawful purpose, or to accomplish a lawful purpose by unlawful means.

Answer 46

that the object of the conspiracy be a specifically proscribed offense. Yet many states essentially codify the expansive common law notion by making it a crime to conspire to commit acts injurious to the public welfare. The Supreme Court has indicated that such statutes are unconstitutionally vague unless construed narrowly.

Answer 47

NO MERGER Under the old rule, if the conspirators were successful and completed their crime, the crime of conspiracy "merged" into the completed crime. While the members of the agreement could be convicted of the completed crime, they could not be convicted of conspiracy. This is no longer the law in most jurisdictions. Now, if the conspirators are successful, they can be convicted of both criminal conspiracy and the crime they committed pursuant to the conspiracy.

Answer 48

ACCOMPLICE LIABILITY One conspirator may, by virtue of his participation in the scheme, meet the requirements for "aiding and abetting" the commission of crimes by his co-conspirators and therefore be liable for those crimes as an accomplice. SEPARATE DOCTRINE Even if the conspirator did not have the sufficient mental state for accomplice liability, a separate doctrine provides that each conspirator may be liable for the crimes of all other conspirators if TWO REQUIREMENTS are met: 1. The CRIMES WERE COMMITTED IN FURTHERANCE of the objective of the conspiracy; AND 2. The crimes were "a natural and probably consequence" of the conspiracy, i.e., FORESEEABLE. This doctrine applies only if the conspirator has not made a legally effective withdrawal from the conspiracy before the commission of the crime by the co-conspirator.

Answer 49

In attempt cases, the law requires that there be a SUBSTANTIAL STEP toward commission of the crime. In conspiracy cases, at least at common law, the agreement itself is normally sufficient to constitute the crime. Hence in common law conspiracy cases the law intervenes at an earlier stage than the planning of the crime. The reason for this is that the secret activity is potentially more dangerous to society and, since a group is involved, it is more difficult for one person to stop the activity once the agreement has been made.

Answer 50

1. An AGREEMENT BETWEEN TWO OR MORE persons; 2. An INTENT TO ENTER INTO AN AGREEMENT; and 3. An INTENT TO ACHIEVE THE OBJECTIVE of the agreement. Under the traditional definition of conspiracy, the agreement itself was the culpable act (the actus reus). Today, a majority of states require an OVERT ACT in furtherance of the conspiracy, but mere preparation will usually suffice.

Answer 51

Parties must agree to accomplish the same objective by mutual action. The agreement need not be express. The existence of the agreement may be shown by a concert of action on the part of the conspirators over a period of time under circumstances showing that they were aware of the purpose and existence of the conspiracy and agreed to participate in the common purpose. If there is an agreement among the parties to engage in a COURSE OF CRIMINAL CONDUCT constituting all the crimes, then there is only ONE CONSPIRACY.

Answer 52

1. Chain Relationship--One Large Conspiracy | 2. Hub and Spoke Relationships--Multiple Conspiracies

Answer 53

At common law, a husband and wife could not conspire together because they were viewed as one person. This distinction has been abandoned in virtually all states today.

Answer 54

Since a corporation can only act through an agent, there has been held that there can be no conspiracy between the corporation and a single agent acting on behalf of the corporation. There is a split of authority on whether the agents can be deemed co-conspirators. Note that a corporation may be a party to conspiracy with other corporations or individuals who are not agents of the corporation.

Answer 55

Where two or more people are necessary for the commission of the substantive offense (e.g., adultery, dueling, sale of contraband), the Wharton Rule states that there is NO CRIME OF CONSPIRACY UNLESS MORE PARTIES PARTICIPATE IN THE AGREEMENT THAN ARE NECESSARY FOR THE CRIME. Some courts hold that if the Wharton Rule applies there can never be a conviction for conspiracy. Others hold that if the rule applies, it prohibits conviction for both conspiracy and the crime that the parties agreed to commit.

Answer 56

If members of a conspiracy agree to commit an act that violates a statute that was designed to protect persons within a given class, A PERSON WITHIN THAT CLASS cannot be guilty of the crime itself. Moreover, she CANNOT BE GUILTY OF A CONSPIRACY to commit that crime. It follows, then, that between the two people, the person NOT in the protected class cannot be guilty of criminal conspiracy on the basis of an agreement with the person in the protected class.

Answer 57

A conspiracy requires two guilty parties at common law. Thus, in most courts, the acquittal of ALL persons with whom a defendant is alleged to have conspired precludes conviction of the remaining defendant. This rule does NOT apply where the other parties are not apprehended, are charged with lesser offenses, or are no longer being prosecuted.

Answer 58

Under the MPC's unilateral approach, conspiracy is established by showing that the defendant "agreed" with another to commit the crime (regardless of whether the other person shared in that communication); it is not necessary to show an actual agreement between two or more persons. Thus, the fact that all the other parties to the conspiracy have been acquitted or were only feigning agreement will NOT prevent the defendant's conviction.

Answer 59

Conspiracy is a SPECIFIC INTENT crime. There are two different intents that are necessary: 1. Intent to Agree: It is very difficult to separate the intent to agree from the act of agreement. Hence, most courts do not even try. Intent to agree can be INFERRED from conduct. 2. Intent to Achieve Objective of Conspiracy. This intent must be established as to EACH individual defendant.

Answer 60

A person who acts with the intent to facilitate a conspiracy may thereby become a member of the conspiracy. However, INTENT CANNOT BE INFERRED FROM MERE KNOWLEDGE. Therefore, a merchant who sells a good in the ordinary course of business that he knows will be used to further a conspiracy does not thereby join the conspiracy. On the other hand, a merchant may be held to have joined the conspiracy if the good sold is a specialty item that cannot easily be obtained elsewhere or if the merchant otherwise has a stake in the criminal venture (e.g., by raising the price of the good because of the buyer's purpose).

Answer 61

CORRUPT MOTIVE NOT REQUIRED The majority rule is that the parties to a conspiracy need not have been aware that their plan was an illegal one. A minority of courts have held to the contrary, however, reasoning that a requirement of evil motive flows implicitly from the word conspiracy. According to the "corrupt motive" doctrine, which operates as an exception to the general rule that ignorance of the law will not excuse criminal liability, the parties to a conspiracy must have known that their objective was criminal. The corrupt motive doctrine is usually limited to offense that malum prohibitum.

Answer 62

Conspiracy is a specific intent crime. Therefore, a conspiracy to commit a "strict liability" crime (for which intent is not required) requires intent.

Answer 63

Traditionally, the conspiracy was complete when the agreement with the requisite intent was reached. This is still the law in some states. Most states, however, require that an act in furtherance of the conspiracy be performed. If an overt act is required, any act in pursuit of the conspiracy will suffice, even an act of mere preparation. The act may be performed by any one of the conspirators.

Answer 64

Since acts or declarations of co-conspirators are admissible only if made in furtherance of the conspiracy, it becomes critically important to determine when the conspiracy ends. This is also important for statute of limitations purposes.

Answer 65

Since most criminals attempt to conceal the fact that they have committed a crime, courts have generally taken the view that EVIDENCE OF OVERT ACTS OF CONCEALMENT IS NOT SUFFICIENT TO MAKE THE ACT OF CONCEALMENT PART OF THE CONSPIRACY.

Answer 66

The government's defeat of the conspiracy's ultimate objective does not automatically terminate the conspiracy.

Answer 67

1. Impossibility--No Defense 2. Withdrawal--No Defense To Charge of Conspiracy (MPC recognizes as a defense if the defendant thwarts the success of the conspiracy, say by informing the police. 3. Withdrawal--Defense to Subsequent Crimes of Co-Conspirators Including Target Crime (i) Affirmative act that NOTIFIES ALL MEMBERS of the conspiracy (ii) Such notice must be given in time for them to have the opportunity to abandon their plans.

Answer 68

Because a defendant may be convicted of both conspiracy and the completed crime, most jurisdictions have enacted express penalty provisions for conspiracies. Some statutes make conspiracy a misdemeanor regardless of its objective; some provide a permissible maximum sentence regardless of the objective; and still others provide different maximums depending upon the objective.

Answer 69

A criminal attempt is an act that, although done with the intention of committing a crime, falls short of completing the crime. An attempt therefore consists of two elements: 1. specific intent to commit the crime (regardless of the intent required for the actual crime) 2. an overt act in furtherance of that intent

Answer 70

The defendant must have the intent to perform the act and obtain a result that, if achieved would constitute a crime. Attempt to commit negligent crimes is logically impossible. Attempt to commit strict liability crimes requires intent.

Answer 71

The defendant must have committed an act BEYOND MERE PREPARATION for the offense. Traditional Rule--Proximity Test Evaluation as to how close the defendant came to completing the offense. Under the typical proximity test, attempt requires an act that is dangerously close to success. Majority Rule--Model Penal Code Test The act or omission constitute a "substantial step in a course of conduct planned to culminate in the commission of the crime." In addition, an act will not qualify as a substantial step unless it is strong corroboration of the actor's criminal purpose.

Answer 72

1. Legal Impossibility Is Always a Defense Legal impossibility arises only when the defendant did, or intended to do, acts that would not constitute a crime under any circumstances. 2. Factual Impossibility Is NO Defense Includes impossibility due to attendant circumstances--if the circumstances had been as she believed them to be, what she set out to do would be a crime. 3. Abandonment: If a defendant has, with the required intent, gone beyond preparation, may she escape liability by abandoning her plans? GENERAL RULE: NO MPC: YES BUT ONLY IF: (i) it is fully VOLUNTARY and not made because of the difficulty of completing the crime or because of an increased risk of apprehension; and (ii) it is a COMPLETE ABANDONMENT of the plan made under circumstances manifesting a renunciation of criminal purpose, not just a decision to postpone committing it or to find another victim.

Answer 73

A defendant charged with a completed crime may be found guilty of either the completed crime OR an attempt to commit the crime.

Answer 74

Most states punish attempt less severely than the crime attempted. The most common statutory scheme permits a penalty up to 1/2 the maximum penalty for the completed crime, with a specific maximum set for attempts to commit crimes punishable by death or life imprisonment. Under MPC and some states, attempt may be punished up to the same extent as the completed crime, except for capital crimes and the most serious felonies.

Answer 75

The insanity defense exempts certain defendants because of the existence of an abnormal mental condition at the time of the crime. The various formulations differ significantly on what effects a mental illness must have had to entitle the defendant to an acquittal. Insanity is a LEGAL TERM rather than a psychiatric one. Usually the cause of a defendant's mental illness or insanity is irrelevant in determining the legal consequences.

Answer 76

The traditional M'Naghten Rule provides that a defendant is entitled to an acquittal if the proof establishes that: 1. A DISEASE of the mind 2. CAUSED A DEFECT of reason 3. Such that the defendant LACKED THE ABILITY AT THE TIME of his actions to either: (i) Know the WRONGFULNESS of his actions; or (ii) Understand the NATURE AND QUALITY of his actions.

Answer 77

If the defendant suffered from delusions (false beliefs), it is necessary to determine whether his actions would have been criminal if the facts had been as he believed them to be.

Answer 78

A defendant is not entitled to an acquittal merely because he believes his acts are morally right, unless he has lost the capacity to recognize that they are regarded by society as wrong.

Answer 79

Under the traditional interpretation given to the M'Naghten Rule, it is irrelevant that the defendant may have been unable to control himself and avoid committing the crime. Loss of control because of mental illness is NO DEFENSE.

Answer 80

In practice, the M'Naghten Rule does not unduly restrict the evidence heard by juries. Most jurisdictions admit any evidence that reasonably tends to show the mental condition of the defendant at the time of the crime.

Answer 81

A defendant is entitled to an acquittal if the proof establishes that because of mental illness he was UNABLE TO CONTROL HIS ACTIONS OR TO CONFORM HIS CONDUCT TO THE LAW. Contrary to what the name irresistible impulse might imply, this inability need not come upon the defendant suddenly. A number of jurisdictions apply both Irresistible Impulse and M'Naghten test. Thus, a person is entitled to an acquittal if he meets either test.

Answer 82

A defendant is entitled to an acquittal if the proof establishes that his crime was the PRODUCT OF MENTAL DISEASE OR DEFECT. A crime is a product of the disease if it would not have been committed BUT FOR the disease. In this way the Durham test is broader than either the M'Naghten or irresistible impulse tests; it was primarily intended to give psychiatrists greater liberty to testify concerning the defendant's mental condition

Answer 83

The defendant is entitled to an acquittal if the proof shows that he suffered from a MENTAL DISEASE or defect and as a result LACKED SUBSTANTIAL CAPACITY to either: 1. APPRECIATE THE CRIMINALITY (wrongfulness) of his conduct; OR 2. CONFORM HIS CONDUCT to the requirements of the law. This test combines the M'Naghten and Irresistible Impulse tests by allowing for the impairment of both cognitive and volitional capacity. Prevailing trend is toward MPC test's use.

Answer 84

Many formulations, including the MPC test, expressly exclude the psychopathic criminal--the person who repeatedly commits crimes without experiencing guilt. This usually accomplished by defining "mental illness" so as to exclude any abnormality evidenced only by repeated antisocial conduct. "Sociopathic" and "psychopathic" are synonymous.

Answer 85

If the defendant does not put his mental state in issue and does not plan to use an insanity defense, he may refuse to participate in a court-ordered psychiatric examination to determine competency to stand trial. If he does not refuse, he is entitled to the Miranda warnings prior to such an examination.

Answer 86

1. PRESUMPTION OF SANITY AND BURDEN OF PRODUCING EVIDENCE All defendants are presumed sane. The insanity issue is not raised, then, until the defendant comes forward with some evidence tending to show that he was insane under the applicable test. Depending upon the jurisdiction, this burden is carried either by a mere shred (or scintilla) of evidence sufficient to raise a reasonable doubt as to sanity. 2. BURDEN OF PERSUASION In some jurisdictions and under MPC, once the issue has been raised, the prosecution must prove the defendant was sane beyond a reasonable doubt. In others, the defendant must prove his insanity, generally by a preponderance of the evidence. Federal courts require the defendant to prove insanity by clear and convincing evidence.

Answer 87

1. Defense May Be Raised At or After Arraignment. A minority of jurisdictions require that the defendant give reasonable notice to the prosecution of an intent to raise the defense at trial. 2. Neither Prosecutor Nor Judge May Raise Defense for Competent Defendant (who is adequately represented)

Answer 88

1. RIGHT TO SUPPORT SERVICES FOR DEFENSE Where the defendant has made a preliminary showing that it is likely he will be able to use the insanity defense, the state must provide a psychiatrist for the preparation of the defense. 2. NO PRIVILEGE AGAINST SELF-INCRIMINATION At the present time, a defendant has no right to refuse to be examined by a psychiatrist appointed to aid the court in the resolution of his insanity plea. However, a defendant who does not put his mental state in issue is entitled to the Miranda warnings before he may be compelled to undergo a court-ordered competency examination; the defendant may then refuse to be examined.

Answer 89

COMMITTED UNTIL CURED In some jurisdictions, commitment is possible only if it proven that the defendant is presently mentally ill and dangerous. In other, commitment follows automatically. CONFINEMENT MAY EXCEED MAXIMUM PERIOD OF INCARCERATION CARRIED BY OFFENSE (does not deny due process)

Answer 90

Under Due Process Clause, a defendant may not be tried, convicted, or sentenced if, as a result of a mental disease or defect, he is UNABLE: 1. TO UNDERSTAND THE NATURE OF THE PROCEEDINGS being brought against him; or 2. TO ASSIST HIS LAWYER in the preparation of his defense. The Due Process Clause prevents a defendant from being declared incompetent without notice and a hearing. Many jurisdictions grant a right to a jury determination of competence. A finding of incompetence will suspend the criminal proceedings and invariably RESULT IN COMMITMENT until such time as the defendant regains competence. The Constitution may demand that the defendant's hospitalization be limited to a reasonable period of time necessary to decide whether there is a likelihood of recovery in the near future.

Answer 91

A defendant may not be executed if he is incapable of understanding the nature and purpose of the punishment. Modern statutes often permit only the warden to raise this issue. Some expressly provide for jury determination.

Answer 92

About half the states limit evidence on the issue of insanity to expert psychiatric testimony. The MPC rejects this approach, and would allow any type of evidence relevant to the issue of whether the defendant had the mental state required for the particular crime charged.

Answer 93

Some states recognize a defense of "diminished capacity" under which the defendant may assert that as a result of a mental defect (e.g., neurosis, obsessive compulsiveness, or dependent personality) short of insanity, he did not have the particular mental state (purpose, knowledge, recklessness, or negligence) required for the crime charged. Most state recognized this defense limit it to specific intent crimes.

Answer 94

Some states, such as California, employ a 2-stage trial process whenever the defense of insanity is raised. The first stage determines GUILT; the second stage determines INSANITY. second stage may be tried before a new jury at the judge's discretion

Answer 95

May be caused by any substance. Evidence of intoxication may be raised whenever the intoxication negates the existence of an element of a crime. The law generally distinguishes between voluntary and involuntary intoxication.

Answer 96

intoxication is voluntary if it is the result of the intentional taking without duress of a substance know to be intoxicating. The person need not have intended to become intoxicated.

Answer 97

DEFENSE TO SPECIFIC INTENT CRIMES Voluntary intoxication evidence may be offered, when the defendant is charged with a crime that requires PURPOSE (INTENT) OR KNOWLEDGE, to establish that the intoxication prevented the defendant from formulating the requisite intent. Good defense for specific intent crimes, but usually not sufficient defense for general intent crimes. Defense not available if defendant purposely becomes intoxicated to establish the defense. NO DEFENSE TO CRIMES REQUIRING MALICE, RECKLESSNESS, NEGLIGENCE, OR STRICT LIABILITY. DEFENSE TO FIRST DEGREE MURDER, BUT NOT SECOND DEGREE MURDER Will reduce first degree murder to second degree, but cannot reduce second degree to manslaughter because in a jurisdiction which divides murder into degrees, all murders are second degree murder unless the prosecution proves deliberation and premeditation.

Answer 98

Involuntary only if it results from the taking of an intoxicating substance: WITHOUT KNOWLEDGE of its nature UNDER DIRECT DURESS imposed by another OR PURSUANT TO MEDICAL ADVICE while unaware of the substance's intoxicating effect. Involuntary intoxication may be TREATED AS MENTAL ILLNESS, in which case a defendant is entitled to acquittal if, because of the intoxication, she meets whatever test the jurisdiction has adopted for insanity.

Answer 99

Insanity and Intoxication are two separate defenses. However, continuous, excessive drinking or drug use may bring on actual insanity (e.g. delirium tremens). Thus, a defendant may be able to claim both an intoxication defense and an insanity defense.

Answer 100

At common law, the defense of lack of capacity to commit a crime by reason of infancy gave rise to three presumptions. PHYSICAL AGE (not mental age) AT TIME OF CRIME (not time of trial) governs. UNDER SEVEN--NO CRIMINAL LIABILITY UNDER FOURTEEN--REBUTTABLE PRESUMPTION OF NO CRIMINAL LIABILITY OVER FOURTEEN--ADULT

Answer 101

SOME HAVE ABOLISHED PRESUMPTIONS and have stated that no child can be convicted of a crime until a stated age is reached, usually 13 or 14. JUVENILE DELINQUENCY All states have enacted some type of juvenile delinquency laws or have set up special juvenile or family courts. These laws ordinarily provide that with respect to conduct that would be deemed criminal if committed by an adult, the juvenile court has exclusive jurisdiction over children under a certain age, and concurrent jurisdiction over older children. In the concurrent jurisdiction situation, the child must be charged with delinquency in the juvenile court unless the court waives jurisdiction and authorizes the trial of the child as an adult. MPC: provides that juvenile court has exclusive jurisdiction over minors younger than 16 and concurrent jurisdiction over 16 and 17 year old minors..

Answer 102

Under certain circumstances, the commission of a proscribed act is viewed by society as justified and hence not appropriate for criminal punishment. Generally, the defendant must raise the issue of justifiable use of force by introducing SOME evidence (more than a scintilla) tending to show justification of an affirmative defense. Once she has done this, the state may require the prosecution to prove that the use of force was not justified, or it may impose on the defendant the burden of proving this affirmative defense by a preponderance of the evidence.

Answer 103

As a general rule, an individual who is without fault may use SUCH FORCE AS REASONABLY APPEARS NECESSARY to protect herself from the imminent use of unlawful force upon herself. There is NO DUTY TO RETREAT before using nondeadly force, even if retreat would result in no further harm to either party.

Answer 104

A person may use deadly force in self-defense if (i) she is without fault (did not initiate assault or provoke other) (ii) she is confronted with unlawful force, AND (iii) she reasonably believes she is threatened with IMMINENT death or great bodily harm if she does not respond with deadly force.

Answer 105

MAJORITY RULE--NO DUTY TO RETREAT MINORITY RULE--NO RETREAT REQUIRED - -unless can be done in complete safety - -where attack occurs in victims own home - -where attack occurs while the victim is making a lawful arrest - -where the assailant is in the process of robbing the victim

Answer 106

Generally one who begins a fight has no right to use force in her own defense during that fight. But an aggressor can "regain" her right to use self-defense in two ways: WITHDRAWAL An aggressor who, in good faith, effectively removes herself from the fight, and communicates to the other person her desire to remove herself, regains her right to use self defense. SUDDEN ESCALATION If the victim of the initial aggression suddenly escalates a "minor" fight into one involving deadly force and does so without giving the aggressor the chance to withdraw, the aggressor may use force in her own defense.

Answer 107

There are two issues in determining whether a person who has used force to defend another person is criminally liable for her acts. RELATIONSHIP WITH PERSON AIDED Majority Rule--no special relationship between defendant and person in whose defense she acted Minority Rule--member of family or servant or employer STATUS OF PERSON AIDED Majority Rule: A defendant has the defense of defense of others if she reasonably believed that the person she assisted had the legal right to use force in his own defense. Minority Rule--Defendant steps into shoes of person she defends and therefore has no defense if the person had no legal right to use force in self-defense.

Answer 108

A person is justified in the use of nondeadly force in defense of her dwelling when, and to the extent that, she reasonably believes that such conduct is necessary to prevent or terminate another's unlawful entry into or attack upon her dwelling.

Answer 109

One is generally justified in the use of deadly force in two situations: 1. TUMULTUOUS ENTRY PLUS PERSONAL DANGER Use of deadly force is justifiable where the entry was made or attempted in a riotous, violent, or tumultuous manner AND the person reasonably believes that the use of force is necessary to prevent a personal attack upon herself or another in the dwelling. 2. FELONY Use of deadly force is justifiable where the person reasonably believes that such force is necessary to prevent the entry into the dwelling by a person who intends to commit a felony in the dwellling.

Answer 110

Nondeadly force may be used to defend property in one's possession from unlawful interference. REAL PROPERTY-- this means entry or trespass; PERSONAL PROPERTY--this means removal or damage The need to use force must reasonably appear imminent. Thus, force may not be used if a request to desist or refrain from the activity would suffice. In addition, the right is limited to property in one's possession. Force cannot be used to regain possession of property wrongfully taken, unless the person using it is in "immediate pursuit" of the taker.

Answer 111

Defense of property alone can never justify the use of deadly force.

Answer 112

Generally, one is privileged to use force to the extent that it reasonably appears necessary to prevent a felony, riot, or other serious breach of the peace, although some states have extended this to the prevention of any crime.

Answer 113

Traditional rule: deadly force could be used to prevent the commission of any felony. Modern rule: deadly force may be used only if the crime is a "dangerous felony" involving risk to human life. This would include robbery, arson, burglary of a dwelling, etc.

Answer 114

Use of deadly force to apprehend a fleeing felon constitutes a seizure. The force used to effect a seizure must be reasonable. Deadly force is reasonable only when the felon threatens death or serious bodily harm and deadly force is necessary to prevent his escape. Thus, a police office cannot use deadly force to apprehend an unarmed, nondangerous felon; but an officer may use deadly force to prevent a felon from escaping if the felon poses a threat of serious bodily harm to the officer or others.

Answer 115

A private person has the same right to use force to make an arrest as a police officer or one acting at the direction of a police officer, except that the private person has a defense to the use of DEADLY FORCE ONLY IF the person harmed was ACTUALLY GUILTY of the offense.for which the arrest was made. It is not enough that it reasonably appeared that the person was guilty. A private person has the privilege of using NONDEADLY FORCE to make an arrest if a crime was in fact committed and the private person has REASONABLE GROUNDS TO BELIEVE the person arrested has in fact committed the crime.

Answer 116

PERSON NOT KNOWN TO BE AN OFFICER And individual may lawfully repel, with deadly force if necessary, an attack made by an officer trying to arrest her if the individual does not know that the person is a police office. KNOWN POLICE OFFICER Majority rule: nondeadly force may be used to resist an improper arrest Minority and MPC: force may not be used

Answer 117

Conduct otherwise criminal is justifiable if, as a result of pressure from natural forces, the defendant reasonably believed that the conduct was necessary to avoid some harm to society that would exceed the harm caused by the conduct. The TEST IS OBJECTIVE; a good faith belief in the necessity of one's conduct is insufficient. Causing the death of another person to protect property is never justified. Defense of necessity is not available if the defendant is at fault in creating a situation which requires that she choose between two evils.

Answer 118

Duress involves human threat, necessity involves pressure from natural or physical forces.

Answer 119

A police officer or one assisting her is justified in using reasonable force against another, or taking property, provided the officer acts pursuant to a law, court order, or process requiring or authorizing her to so act.

Answer 120

The parents of a minor child, or any person "in loco parentis" with respect to that child, may lawfully use reasonable force upon the child for the purpose of promoting the child's welfare. Whether or not the force is reasonable is judged by the totality of the circumstances, including the age, sex, and health of the child.

Answer 121

aka Compulsion or Coercion A person is not guilty of an offense, OTHER THAN HOMICIDE, if he performs an otherwise criminal act under the threat of imminent infliction of death or great bodily harm, provided that he reasonably believes death or great bodily harm will be inflicted on himself or a member of his immediate family if he does not perform such conduct. Threats to harm any third person may also suffice to establish the defense of duress. Note that an act committed under duress is termed excusable rather than justifiable. The subtle distinction stems from the fact that criminal acts performed under duress are condoned by society rather than encouraged.

Answer 122

Ignorance or mistake as to matter of fact will affect criminal guilt only if it shows that the defendant did not have the state of mind required for the crime. MALICE AND GENERAL INTENT CRIMES--REASONABLENESS REQUIRED SPECIFIC INTENT CRIMES--REASONABLENESS NOT REQUIRED STRICT LIABILITY--MISTAKE NO DEFENSE

Answer 123

GENERAL RULE--NO DEFENSE EXCEPTIONS - -statute not reasonably available - -reasonable reliance on statute or judicial opinion - -reasonable reliance on official interpretation and advice (not one's counsel)

Answer 124

Consent of the victim is generally no defense unless it negates an element of the offense. Whenever consent may be a defense, it must be established that: 1. The consent was VOLUNTARILY AND FREELY given (without compulsion or duress); 2. The party was LEGALLY CAPABLE of consenting; and 3. NO FRAUD was involved in obtaining the consent.

Answer 125

NO DEFENSE Forgiveness by the injured party after the crime has been committed ordinarily does not operate as a defense to the commission of a crime, unless a statute establishes such a defense.

Answer 126

NO DEFENSE

Answer 127

Entrapment occurs if the intent to commit the crime originated not with the defendant, but rather with the creative activities of law enforcement officers. If this is the case, it is presumed that legislature did not intend to cover the conduct and so it is not criminal.

Answer 128

The defense of entrapment consists of 2 elements: 1. The CRIMINAL DESIGN must have ORIGINATED WITH LAW ENFORCEMENT officers; and 2. The defendant must NOT have been PREDISPOSED to commit the crime prior to the initial contact by the government. If the defendant offers credible evidence on these two elements, in most jurisdictions the government must then show predisposition beyond a reasonable doubt. MINORITY RULE: replace elements with a test based entirely on the nature of the police activity. Under this test, the defendant would be entitled to acquittal if the police activity was reasonably likely to cause an innocent person to commit the crime.

Answer 129

It is not entrapment if the police officer merely provides the opportunity for the commission of a crime by one otherwise ready and willing to commit it. It is not entrapment for the government to provide material for the crime, even if contraband. (minority states say it is entrapment if the material is essential, such as drugs or ingredients for drugs)

Answer 130

Inapplicable A person cannot be entrapped by a private citizen. Must be an officer or one working for an officer or under his control or direction.

Answer 131

Modern trend--can use defense even while denying committing the offense.

Answer 132

An unlawful application of force to the person of another resulting in entirely bodily injury or an offensive touching. Simple battery is a misdemeanor.

Answer 133

Intent not required. A battery need not be intentional. It is sufficient that the defendant caused the application of force with criminal negligence.

Answer 134

INDIRECT APPLICATION OF FORCE SUFFICIENT The force need not be applied directly. Thus, it is sufficient if the force is applied by a force or substance put in motion by the defendant. example: causing a dog to attack the victim or causing the victim to take poison

Answer 135

Most statutes define certain acts as aggravated batteries and punish them as felonies. Among the most common are batteries in which: 1. A DEADLY WEAPON is used (any ordinary object may become a deadly weapon, depending on how it is used) 2. SERIOUSLY BODILY INJURY is caused; OR 3. The VICTIM IS A CHILD, WOMAN, OR POLICE OFFICER.

Answer 136

Contrary to the general rule that consent of the victim is not a valid defense, some jurisdictions recognize consent as a defense to simple battery and/or certain specified batteries, e.g., medical operation, or reasonable injuries incurred in consensual athletic contests.

Answer 137

In a majority of jurisdictions, an assault is either: 1. An ATTEMPT TO COMMIT A BATTERY; or 2. The INTENTIONAL CREATION--other than by mere words--of a REASONABLE APPREHENSION in the mind of the victim of imminent bodily harm. A minority of jurisdictions limit assault to an attempt to commit a battery. Simple assault is a misdemeanor.

Answer 138

Required for liability in some statutes.

Answer 139

If there has been an actual touching of the victim, the crime can only be battery. If there has been no touching, the act may or may not constitute an assault, depending on the circumstances.

Answer 140

All jurisdictions treat certain "aggravated assaults" more severely than simple assault. Such aggravated assaults include, but are not limited to, assaults: 1. With a DANGEROUS (OR DEADLY) WEAPON 2. With INTENT TO RAPE, MAIM, OR MURDER

Answer 141

The felony of mayhem required either dismemberment (the removal of some bodily part) or disablement of a bodily part. The crime was enforced to preserve the King's right to his subject's military service.

Answer 142

Most states retain the crime of mayhem in some form, although the recent trend is to abolish mayhem as a separate offense and to treat it as a form of aggravated battery. Modern statutes have expanded the scope of mayhem to include permanent disfigurement. A few states require a specific intent to maim or disfigure.

Answer 143

JUSTIFIABLE homicides (those commanded or authorized by law) EXCUSABLE homicides (those for which there was a defense to criminal liability) CRIMINAL homicides

Answer 144

MURDER VOLUNTARY MANSLAUGHTER INVOLUNTARY MANSLAUGHTER

Answer 145

Murder is the unlawful killing of another human being with malice aforethought. Malice aforethought may be express or implied.

Answer 146

In the absence of facts excusing the homicide or reducing it to voluntary manslaughter, malice aforethought exists if the defendant has any of the following states of mind: I. Intent to kill (express malice) 2. Intent to inflict great bodily injury 3. Reckless indifference to an unjustifiably high risk to human life (abandoned and malignant heart) OR 4. Intent to commit a felony (felony murder) In the case of 2, 3, or 4, the malice is implied

Answer 147

Intentional use of a deadly weapon authorizes a permissive inference of intent to kill. A deadly weapon is any instrument--or in some limited circumstances, any part of the body--used in a manner calculated or likely to produce death or serious bodily injury.

Answer 148

Voluntary manslaughter is an intentional killing distinguished from murder by the existence of adequate provocation; i.e., a killing in the heat of passion.

Answer 149

At common law, provocation would reduce a killing to voluntary manslaughter only if it met four tests: 1. the provocation must have been one that would arouse SUDDEN AND INTENSE PASSION in the mind of the ORDINARY PERSON such as to cause him to lose his self-control; 2. The defendant must have IN FACT been PROVOKED; 3. There MUST NOT HAVE BEEN A SUFFICIENT TIME between the provocation and the killing for the passions of a reasonable person to cool. (This is a factual question that depends upon the nature of the provocation and the attendant circumstances, including any earlier altercations between the defendant and the victim); AND 4. The defendant IN FACT did not cool off between the provocation and the killing.

Answer 150

Adequate provocation is most frequently recognized in cases of 1. Being subjected to a SERIOUS BATTERY or a threat of DEADLY FORCE; and 2. Discovering one's SPOUSE IN BED WITH ANOTHER PERSON. At common law, provocation is inadequate as a matter of law where there were "mere words." Modern courts tend to submit the question to the jury as to whether "mere words" were adequate.

Answer 151

Some states recognize an "imperfect self defense" doctrine under which a murder may be reduces to manslaughter even though: 1. The DEFENDANT WAS AT FAULT in starting the altercation; or 2. The defendant UNREASONABLY BUT HONESTLY BELIEVED in the necessity of responding with deadly force.

Answer 152

CRIMINAL NEGLIGENCE If death is caused by criminal negligence, the killing is involuntary manslaughter. Criminal negligence requires a greater deviation from the "reasonable person" standard than is required for civil liability. UNLAWFUL ACT MANSLAUGHTER A killing caused by an unlawful act is involuntary manslaughter.

Answer 153

MISDEMEANOR MANSLAUGHTER RULE A killing in the course of the commission of a misdemeanor is manslaughter, although most courts would require either that the misdemeanor be malum in se (and inherently wrongful act), or if malum prohibitum, that the death be the foreseeable or natural consequences of the unlawful conduct. FELONIES NOT INCLUDED IN FELONY MURDER If a killing was caused during the commission of a felony but does not qualify as a felony murder case, the killing will be involuntary manslaughter.

Answer 154

Modern statutes often divide murder into degrees, and the bar examination often contains questions based on statutes similar to them. Under such schemes, all murders are SECOND DEGREE murders unless the prosecution proves any of the following, which would make the murder FIRST DEGREE murder: 1. Deliberate and Premeditated Killing Deliberate means that the defendant made the decision to kill in a cool and dispassionate manner. "Premeditated" means that the defendant actually reflected on the idea of killing, if only for a very brief period. 2. First Degree Felony Murder Felonies most commonly listed include arson, robbery, burglary, rape, mayhem, and kidnapping. Under these statutes, other felony murders are second degree murder rather involuntary manslaughter. 3. Others Some statutes make killings performed in certain ways first degree murder. Thus, killing by lying in wait, poison, or torture may be first degree murder.

Answer 155

Malice is implied from the intent to commit the underlying felony.

Answer 156

Most courts limit the felony murder doctrine to felonies that are inherently dangerous.

Answer 157

When the felony murder doctrine is combined with conspiracy law, the scope of liability becomes very broad. If, in the course of a conspiracy to commit a felony, a death is caused, all members of the conspiracy are liable for murder if the death was caused in furtherance of the conspiracy and was a foreseeable consequence of the conspiracy.

Answer 158

There are some limitations on liability under the broad felony murder doctrine. 1. GUILTY OF UNDERLYING FELONY if have defense for felony, then also has defense for felony murder 2. FELONY MUST BE INDEPENDENT OF KILLING 3. FORESEEABILITY OF DEATH 4. DURING THE COMMISSION OF A FELONY felony terminated when place of "temporary safety" reached 5. KILLING OF CO-FELON BY VICTIMS OF FELONIES OR PURSUING POLICE OFFICERS Majority view--no

Answer 159

MUST BE CAUSE IN FACT (BUT FOR CAUSE) AND PROXIMATE CAUSE When a crime is defined to require not merely conduct but also a specified result of that conduct, the defendant's conduct must be both the cause in fact and the proximate cause of the specified result. BUT FOR CAUSE The death of the victim must occur within one year and one day from the infliction of injury or wound even when it was the but for cause of the death. PROXIMATE CAUSE All natural and probable results are proximately caused.

Answer 160

1. HASTENING INEVITABLE RESULT An act that hastens an inevitable result is nevertheless a legal cause of that result. 2. SIMULTANEOUS ACTS Simultaneous acts by two or more person may be considered independently sufficient causes of a single result. 3. PREEXISTING CONDITION A victim's preexisting condition that makes him more susceptible to death does not break the chain of causation; i.e., the defendant takes the victim as he finds him.

Answer 161

As a general rule, an intervening act will shield the defendant from liability if the act is a mere coincidence or is outside the foreseeable sphere of risk created by the defendant's act. examples: Act of Nature Act by Third Party Act by the Victim

Answer 162

Ask the following questions: 1. Did the defendant have any of the STATES OF MIND sufficient to constitute malice aforethought? 2. If the answer to one is yes, is there proof of anything that will, under any applicable statute, raise the homicide to FIRST DEGREE MURDER? 3. If the answer to one is yes, is there evidence to reduce the killing to VOLUNTARY MANSLAUGHTER, i.e., adequate provocation. 4. If the answer to one is no, is there a sufficient basis for holding the crime to be INVOLUNTARY MANSLAUGHTER, i.e., criminal negligence or misdemeanor manslaughter? 5. Is there adequate causation between the defendant's acts and the victim's death? Did the victim DIE WITHIN A YEAR AND ONE DAY? Was the defendant's act the FACTUAL CAUSE of death? Is there anything to break the chain of PROXIMATE CAUSATION between the defendant's act and the victim's death?

Answer 163

Common law misdemeanor of false imprisonment consisted of: 1. Unlawful 2. Confinement of a person 3. Without his valid consent

Answer 164

Confinement requires that the victim be compelled either to go where he does not wish to go or to remain where he does not wish to remain. It is not confinement to simple prevent a person from going where he desires to go, as long as there are alternative routes available to him. The confinement may be accomplished by actual force, by threats, or by a show of force. MPC: confinement must interfere substantially with the victim's liberty

Answer 165

Confinement is unlawful unless it is specifically authorized by law or by the consent of the person.

Answer 166

Must be FREELY GIVEN by one with CAPACITY to give such consent.

Answer 167

COMMON LAW: forcible abduction or stealing away of a person from his own country and sending him into another. MODERN STATUTES AND MPC generally expand the definition of kidnapping far beyond the common law definition, although it usually remains a form of aggravated false imprisonment

Answer 168

Kidnapping is often defined as confinement of a person that involves either some MOVEMENT (i.e. asportation) of the victim OR CONCEALMENT of the victim in a "secret" place

Answer 169

1. KIDNAPPING FOR RANSOM 2. KIDNAPPING FOR PURPOSE OF COMMISSION OF OTHER CRIME 3. KIDNAPPING FOR AN OFFENSIVE PURPOSE 4. CHILD STEALING

Answer 170

Common law required extreme movement. Most modern statutes require only some movement of the person; if such movement occurs, the extent of the movement is not material. Other statutes require no movement, making confinement sufficient.

Answer 171

Generally, it is not necessary that kidnapping involve secrecy. Some statutes, however, require secrecy when the kidnapping is based on confinement rather than movement of the victim.

Answer 172

Must be FREELY GIVEN by one with CAPACITY to consent.

Answer 173

Statutes that define kidnapping as detention involving movement of the victim mean that it is arguable that kidnapping occurs incident to the commission of other crimes, such as robbery or rape. Some courts--but not all--have held that in such situations kidnapping (in addition to the robbery or rape) is committed only if the movement of the victim substantially increases the risk to the victim over and above that necessarily involved in the other crime. If no such increased risk is involved, the defendant will be hld to have committed only the robber or rape.

Answer 174

Rape, a felony, is the unlawful carnal knowledge of a woman by a man, not her husband, without her effective consent. PENETRATION SUFFICIENT ABSENCE OF MARITAL RELATIONSHIP REQUIRED (Common law and MPC--most states have dropped this requirement where the couple is estranged or separated or abolished it entirely) LACK OF EFFECTIVE CONSENT

Answer 175

Consent, even if given, may be ineffective in several situations. INTERCOURSE ACCOMPLISHED BY FORCE INTERCOURSE ACCOMPLISHED BY THREATS WOMAN INCAPABLE OF CONSENTING CONSENT OBTAINED BY FRAUD

Answer 176

Fraud as to Whether the Act Constitutes Sexual Intercourse--Rape Fraud as to Whether Defendant Is Victim's Husband--Not Rape Other Fraud--Not Rape

Answer 177

Statutory rape is the crime of carnal knowledge of a female under the age of consent. Even if the female willingly participated, the offense is nevertheless committed because consent is irrelevant. The age of consent varies from state to state, generally from 16 to 18.

Answer 178

strict liability crime

Answer 179

Bestiality is probably the only crime that survives.

Answer 180

Adultery and fornication were not common law crimes in England, but were punished by the church as ecclesiastical offenses. They are made misdemeanor offenses by statute in some states.

Answer 181

Under modern statutes: Any person who cohabits or has sexual intercourse with another not his spouse commits the misdemeanor offense of adultery if: 1. The behavior is OPEN AND NOTORIOUS; AND 2. The person is MARRIED and the other person involved in such intercourse is not his spouse; or 3. The person is not married and knows the OTHER PERSON in such intercourse is MARRIED.

Answer 182

Fornication is the open and notorious sexual intercourse between or cohabitation by unmarried persons.

Answer 183

Incest is a statutory offense, usually a felony, that consists of either marriage or a sexual act between persons who are too closely related. DEGREE OF RELATIONSHIP Not uniform among states. Majority restrict to blood relatives. DEGREE OF RESPONSIBILITY Some states make a distinction in penalty depending on the parties involved.

Answer 184

A statutory felony in many states, the crime of seduction is committed when a male person induces an unmarried female of previously chaste character to engage in an act of intercourse on promise of marriage. The MPC includes a section on seduction: it requires only that there be false promise of marriage and does not require chastity or that the female be unmarried. In many states, subsequent marriage of the parties is a defense.

Answer 185

Bigamy is a traditional strict liability offense that consists of marrying someone while having another living spouse. At common law, a defendant is guilty of bigamy even if she reasonably believes that a purported divorce is valid or that her spouse is dead.

Answer 186

Larceny was the basic common law property offense. It has been significantly modified by statute in many American jurisdictions. Larceny consists of: 1. A taking (caption); 2. And carrying away (asportation) 3. Of tangible personal property; 4. Of another; 5. By trespass; 6. With intent to permanently (or for an unreasonable time) deprive the person of this interest in the property.

Answer 187

Larceny can be committed only by the acquisition of PERSONAL PROPERTY capable of being possessed and of some value. REALTY AND SEVERED MATERIAL Are NOT subjects of larceny. If something is severed from the realty and taken before it comes in possession of the landowner as personal property, larceny is not committed. If, however, the landowner gains possession of the severed material as personalty, a subsequent taking of it is larceny. SERVICES Obtaining services wrongfully cannot give rise to larceny. INTANGIBLES Intangibles cannot give rise to larceny. Note that gas and electricity are considered tangible goods. DOCUMENTS AND INSTRUMENTS Documents and instruments were, at common law, regarded as merged with the matter they represented. Thus, unless they had monetary value in themselves, they could not be the subject of larceny. Modern statutes have expanded larceny to include written instruments embodying intangible rights.

Answer 188

Larceny is a crime against possession. Therefore, all that is necessary is that the property be taken from someone who has a possessory interest superior to that of the defendant. REQUIREMENT THAT TAKING BE FROM ONE WITH POSSESSION The property must be taken from someone with possession other than the defendant. If the defendant had possession at the time of the taking (such as a bailee of property), then resulting offense is not larceny (but may be something else, such as embezzlement). However, if the defendant has custody rather than possession, the misappropriation of the property is larceny. CUSTODY V POSSESSION Possession involves much greater scope of authority to deal with the property than does custody. EMPLOYEES Low level employees generally have only custody of their employer's property. They have possession, however, if the employer gives them especially broad powers over it or if the property is given directly to them by a third person, without the employer having intermediate possession. BAILEE AND BREAKING BULK Generally a bailee has possession. If however, she opens closed containers in which the property has been placed by the bailor (i.e., she breaks bulk), the possession is regarded by use of a fiction as returning to the bailor. If a bailee misappropriates property after breaking bulk, she takes it from the possession of the bailor and is guilty of larceny if she has the intent to steal. POSSESSION IS ALL THAT IS NEEDED If property is taken from a thief it is larceny because the thief has superior possessory interest in the property. JOINT PROPERTY At common law, larceny could not be committed by the taking of jointly owned property by one of the joint owners. LOST, MISLAID, AND ABANDONED PROPERTY Lost or mislaid property is regarded as constructively in the possession of the owner, and thus if it is found and taken, it is taken from his possession and larceny might be committed. Abandoned property, however, has no owner and larceny cannot be committed by appropriating it.

Answer 189

It is essential that the defendant actually obtain control of the property. DESTRUCTION OR MOVEMENT IS NOT SUFFICIENT SUFFICIENT IF CAUSED TO OCCUR BY AN INNOCENT AGENT

Criminal Law Flashcards

(213 cards)