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Bar Exam Prep > Criminal Law > Flashcards

Criminal Law Flashcards

1
Q

Common Law False Imprisonment

A

(i) Unlawful;
(ii) confinement of a person;
(iii) without valid consent

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2
Q

Common Law Kidnapping

A

Confinement of a person that involves either:

a) Some MOVEMENT of the victim; or
b) CONCEALMENT of the victim in a “secret place”

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3
Q

Types of Aggravated Kidnapping

A

1) For ransom
2) For the purpose of commission of other crimes
3) For offensive purpose (intent to harm person, etc.)
4) Child stealing

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4
Q

Common Law Larceny

A

Only for acquisition of PERSONAL PROPERTY

(i) A taking;
(ii) and carrying away;
(iii) of tangible personal property;
(iv) of another;
(v) by trespass;
(vi) with the INTENT to permanently (or for an unreasonable amount of time) deprive the person of his interest in the property

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5
Q

Common Law Embezzlement

A

(i) The fraudulent;
(ii) conversion;
(iii) of property;
(iv) of another;
(v) by a person in LAWFUL POSSESSION of that property

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6
Q

Model Penal Code (MPC) Analysis for Fault

A

1) Purposely
2) Knowingly
3) Recklessly
4) Negligence

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7
Q

Purposely, Knowingly, Recklessly

A

Subjective standard;

For statutes that require D act intentionally/knowingly

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8
Q

Negligence

A

Objective standard;
Failure to be aware of a SUBSTANTIAL and UNJUSTIFIABLE risk that circumstances exist or will a result will follow, and such failure = SUBSTANTIAL DEVIATION from reasonable person’s standard of care

D must have taken a VERY unreasonable risk in light of the usefulness of his conduct, knowledge of the facts, and the nature/extent of harm that may be caused

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9
Q

Battery

A

Unlawful application of force to the person of another resulting in either bodily injury or an offensive touching

Simple battery = misdemeanor
Consent MAY be a defense to simple battery

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10
Q

State of Mind for Battery

A

Intent NOT required, only need criminal negligence

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11
Q

Indirect Application of Force = Battery?

A

Yes, deemed sufficient

i.e.: having a dog bite someone; having someone drink something poisoned

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12
Q

Aggravated Battery

A

Same as simple battery, but when coupled with one of these circumstances, it becomes a felony:

1) Use of a deadly weapon
2) SERIOUS bodily injury caused
3) Victim is a child, women, or police officer

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13
Q

Assault

A

Either:

1) An ATTEMPT to commit a battery; or
2) The INTENTIONAL CREATION (other than my mere words) of a reasonable APPREHENSION in the mind of the victim of imminent bodily harm

Some statutes require ‘present ability to succeed’

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14
Q

Aggravated Assault

A

Assault with:

1) A dangerous (or deadly) weapon; and/or
2) Intent to rape, maim, or murder

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15
Q

Three Classifications of Homicides

A

1) Justifiable - authorized by law
2) Excusable - defense to criminal liability
3) Criminal

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16
Q

Common Law Murder

A

Unlawful killing of another human being with malice aforethought

Malice aforethought can be express or implied

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17
Q

Malice Aforethought

A

D has any of the following states of mind:

1) 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 “depraved heart” murder)
4) Intent to commit a felony

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18
Q

Deadly Weapon Rule

A

intentional use of a deadly weapon authorizes permissive inference of intent to kill

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19
Q

Voluntary Manslaughter

A

“Killing in the heat of passion”

Killing would be a murder, but there was ADEQUATE PROVOCATION to lower the charge to voluntary manslaughter

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20
Q

Elements of Adequate Provocation

A

(i) One that would arouse SUDDEN and INTENSE PASSION in the mind of an ORDINARY person, such as to cause him to lose his self-control;
(ii) D must have IN FACT been PROVOKED;
(iii) There must NOT have been a SUFFICIENT TIME between provocation and killing for the passions of a reasonable person to cool; AND
(iv) D IN FACT did not cool off between provocation and killing

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21
Q

What is Adequate Provocation?

A

1) Being subjected to a SERIOUS BATTERY or threat of DEADLY FORCE
2) Discovering one’s SPOUSE in bed with another person

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22
Q

Types of Involuntary Manslaughter

A

1) Criminal negligence (or recklessness); and

2) “Unlawful act” manslaughter

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23
Q

Manslaughter as a Defense

A

“Imperfect self-defense” doctrine

Murder reduced to manslaughter EVEN THOUGH:

a) D was AT FAULT in starting altercation; OR
b) D UNREASONABLY, but HONESTLY believed in the necessity of responding with deadly force

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24
Q

Situs

A

Place where proscribed act (or omission) takes place, if the crime is defined in these terms; or

the place of the harmful result if the crime includes result as a material element

CL rule - state that has situs of crime has jurisdiction

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25
Q

Theories of Punishment

A

1) Incapacitation (restraint)
2) Special Deterrence
3) General Deterrence
4) Retribution
5) Rehabilitation
6) Education

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26
Q

Felony

A

All crimes punishable by death or imprisonment EXCEEDING one year

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27
Q

Misdemeanor

A

Crimes punishable by imprisonment for LESS than one year or by a fine

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28
Q

Malum In Se

A

“Wrong in itself”
Inherently evil, because criminal intent is an element of the offense, or because the crime involves “moral turpitude”

i.e.: murder, battery, drunk driving

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29
Q

Malum Prohibitum

A

Wrong only because it is prohibited by legislation

i.e.: hunting without a license

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30
Q

Due Process Clause

A

Found in 5th and 14th Amendments

Requires that no criminal penalty be imposed without fair notice that the conduct is forbidden

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31
Q

Void-for-Vagueness Doctrine

A

Requires scrutiny of criminal statutes capable of reaching speech protected by the 1st Amendment

The doctrine incorporates two considerations:

1) Fair warning (person of ordinary intelligence)
2) Arbitrary and discriminatory enforcement must be avoided

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32
Q

Ex Post Facto Laws

A

Expressly prohibited by the C

Law that operates retroactively to:

(i) MAKE CRIMINAL an act that, when done, was not criminal;
(ii) Aggravate a crime or INCREASE the punishment therefor;
(iii) Change the rules of evidence to the DETRIMENT of criminal defendants as a class; or
(iv) Alter the law of criminal procedure to DEPRIVE criminal defendants of a substantive right

Distinction from bills of attainder- Ex post facto laws do not deprive offender of judicial trial

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33
Q

Bills of Attainder

A

C prohibits

Legislative act that inflicts punishment or denies a privilege WITHOUT a judicial trial

Distinction from ex post facto laws - deprives offender of judicial trial

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34
Q

Ambiguous Statutes are Strictly Construed in Favor of the ___________?

A

Construed in favor of the DEFENDANT

required by Rule of Lenity

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35
Q

Ambiguity Distinguished From Vagueness

A

Ambiguous statute is susceptible to TWO or more equally reasonable interpretations

A vague statute is one that is so unclear as to be susceptible to NO reasonable interpretation

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36
Q

Two Statutes Address Same Subject Matter, But Have Different Conclusions?

A

The more SPECIFIC statute will be applied, rather than the more general

The more RECENTLY enacted statute will control an older statute

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37
Q

Effect of Repeal

A

At CL, in absence of a saving provision, repeal or invalidation of a statute bars prosecutions for earlier violations, provided the prosecution is still pending or not yet underway

Repeal will not set free a person who has been prosecuted, convicted, and for which there is a final judgment

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38
Q

Saving Provision

A

Many new codes include a provision to the effect that crimes committed prior to the effective date of the new code are subject to prosecution and punishment under the law as it existed at the time the offense was committed

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39
Q

Common Law Merger

A

If D engaged in conduct constituting BOTH a felony and a misdemeanor, she could be convicted only of the FELONY

Misdemeanor regard as merged into felony

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40
Q

Common Law Merger of Offenses of Same Degree

A

Same act or series of acts all part of same transaction constituted several felonies (or several misdemeanors), there was NO MERGER of any of the offenses into any of the others

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41
Q

Modern Merger - Generally

A

Generally NO MERGER in American law

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42
Q

Exceptions to Modern Merger Law

A

a) “Merger” of Solicitation or Attempt into Completed Crime

b) “Merger” of Lesser Included Offenses into Greater Offenses

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43
Q

“Merger” of Solicitation or Attempt into Completed Crime

A

D who solicits another to commit a crime (where solicitation itself is a crime) can NOT be convicted of BOTH the solicitation AND the completed crime (if the person solicited does complete it)

Person who completes a crime AFTER attempting it may NOT be convicted of BOTH the attempt AND the completed crime

Conspiracy does NOT merge with the completed offense

44
Q

“Merger” of More than One Inchoate Crime

A

Under the MPC, D may not be convicted of more than one inchoate crime when his conduct was designed to culminate in the commission of the SAME crime

i.e.: D conspired to commit burglary and then actually attempted to commit burglary, she could not be convicted of both conspiracy and attempt because her conduct was designed to culminate in a single crime - burglary

45
Q

Inchoate Crimes

A

Crimes completed by taking a punishable step towards the commission of another crime (usually attempt, solicitation, or conspiracy)

Committed prior to and in preparation for what may be a more serious offense. It is a COMPLETE offense in itself, even though the act to be done may not have been completed

EXCEPT for conspiracy, inchoate offenses merge into the target crime

At CL, under the doctrine of merger, inchoate offenses = misdemeanors; if principal offense was carried out = felonies (abandoned in most jurisdictions for cases involving a conspiracy - allows accused to be convicted of BOTH conspiracy and the principal offense)

46
Q

“Merger” of Lesser Included Offenses into Greater Ones

A

Lesser included offenses “merge” into greater ones, in the sense that D placed in jeopardy for either offense may NOT be RETRIED for the other or be convicted of BOTH greater and lesser included offenses

47
Q

Lesser Included Offense

A

Consists entirely of SOME, but not all, the elements of the greater crime

Sometimes called Rule of Merger
Required by C prohibition against double jeopardy

48
Q

Modern Merger Examples

A

i.e.: D convicted of operating motor vehicle without owner’s consent. Charged with stealing the vehicle based upon the same incident. Operating the vehicle without the owner’s consent is a lesser included offense of theft, because theft requires proof of everything necessary to prove operation of a vehicle without the consent of the owner PLUS the intent to steal. May D be prosecuted for theft?
Held: No. Conviction for a lesser included offense bars prosecution for the greater offense

i.e.: D convicted of felony murder based on proof that accomplice shot and killed store clerk during armed robbery. D charged and convicted of armed robbery based on the same incident.
Held: Okay because armed robbery was the underlying felony for the felony murder conviction; it is a lesser included offense of the felony murder and subsequent prosecution is barred

i.e.: D allegedly possessed certain narcotics. On this basis, she is charged with (i) illegal possession of narcotics, (ii) illegal possession of narcotics for sale, and (iii) possession of a drug not in a properly stamped container. May she be convicted of all three?
Held: No. D can NOT be convicted of simple possession and possession for sale. She MAY be convicted of possession for sale and possession in an improper container because neither is a lesser included offense of the other. (ii) requires intent to sell and (iii) requires use of an improper container

49
Q

Double Jeopardy for Statute with Multiple Punishments for Single Act?

A

No.

Cumulative punishments for two or more statutorily defined offenses, specifically intended by the legislature to carry SEPARATE PUNISHMENTS, arising from the same transaction, and constituting the same crime does NOT violate the Double Jeopardy Clause prohibition against multiple punishments for the same offense when the punishments are imposed at a single trial

i.e.: D robs store at gunpoint. D can be sentenced to cumulative punishments for armed robbery and “armed criminal action” under a “use a gun, go to jail” statute.

50
Q

Elements of a Crime

A

(i) Actus reus (guilty act);
(ii) Mens rea (guilty mind);
(iii) Concurrence (act and mindset at same time);
(iv) Harmful result and causation (both factually and proximately by D’s act)

51
Q

General State of Mind Requirement

A

Use RECKLESSNESS as standard if statue does not include a state of mind requirement (other than for strict liability offenses)

D must have acted with AT LEAST recklessness with regard to EACH material element of the offense

Higher degrees of fault WILL satisfy recklessness requirement
Higher and lower standards must be specified in the language of the statute

52
Q

Physical Act

A

Defined as BODILY movement

Must be VOLUNTARY or FAILURE to act under circumstances imposing a legal DUTY to act

A thought is not an act
Speech is an act

53
Q

Voluntary Requirement

A

Act must be VOLUNTARY

Must be a conscious exercise of the will

54
Q

Involuntary Acts

A

No criminal liability for involuntary acts (D would not be deterred by punishment for an involuntary act)

a) Conduct that is NOT the product of the actor’s determination;
i. e.: A shoves B into C, with the result that C falls to his death. No liability to B for C’s death

b) Reflexive or convulsive acts;
c) Acts performed while D was either UNCONSCIOUS or asleep, UNLESS D KNEW or should have known she might fall asleep or become unconscious engaged in dangerous behavior

55
Q

Omission as an “Act”

A

D’s failure to act will result in criminal liability if three requirements are satisfied

1) Legal Duty to Act
2) Knowledge of Facts Giving Rise to Duty
3) Reasonably Possible to Perform

56
Q

Legal Duty to Act

A

Legal duty to act can arise from the following sources:

1) Statute
2) Contract
3) Relationship between D and the victim which may be sufficiently close to create a duty
(i. e.: parent-child, spouse-spouse)
4) Voluntary assumption of care by D of the victim
5) Creation of peril by D

No CL duty to help someone in distress. Once aid is rendered, the Good Samaritan may be held criminally liable for not satisfying a reasonable standard of care

57
Q

Possession as an “Act”

A

Criminal statutes that penalize possession of contraband require ONLY that D has CONTROL over the item for a long enough period to have an opportunity to terminate the possession

Possession doesn’t need to be exclusive to one person
Possession may be “constructive” (actual physical control need not be proved when the contraband is located within D’s “dominion and control”)

D MUST be aware of his possession of the contraband (absent a state of mind requirement in the statute)

D does not need to be aware of its illegality or true nature

Many statutes, an MPC add a “knowingly” state of mind element to possession crimes

D may not consciously avoid learning true nature of item possessed; knowledge may be INFERRED from a combination of suspicion and indifference to truth

58
Q

Specific Intent

A

Crime that requires not only the doing of an act, but the doing of it with a specific intent or objective

Can NOT be imputed from mere doing of act

The MANNER in which the act was done may provide circumstantial evidence of intent

Prosecution must produce evidence tending to prove the existence of the specific intent

59
Q

Specific Intent Defenses

A

Defenses such as

a) Voluntary intoxication; and
b) Unreasonable mistake of fact only apply to specific intent crimes

60
Q

Specific Intent - Solicitation

A

Intent to have person solicited commit the crime

61
Q

Specific Intent - Attempt

A

Intent to complete the crime

62
Q

Specific Intent - Conspiracy

A

Intent to have the crime completed

63
Q

Specific Intent - First Degree Premeditated Murder

A

Premeditated intent to kill

64
Q

Specific Intent - Assault

A

Intent to commit a battery

65
Q

Specific Intent - Larceny and Robbery

A

Intent to permanently deprive another of his interest in the property taken

66
Q

Specific Intent - Burglary

A

Intent at the TIME OF ENTRY entry to commit a felony in the DWELLING of another

67
Q

Specific Intent - Forgery

A

Intent to defraud

68
Q

Specific Intent - False Pretenses

A

Intent to defraud

69
Q

Specific Intent - Embezzlement

A

Intent to defraud

70
Q

Malice - CL Murder and Arson

A

NOT open to specific intent defenses

CL created special mental state of “malice” to deny murder and arson specific intent defenses

Malice requires only that D recklessly disregarded an obvious or high risk that the particular harmful result would occur

71
Q

General Intent

A

Awareness of all factors constituting the crime
All crimes require “general intent”

(i.e.: D must be AWARE that she is acting in the proscribed way AND that any attendant circumstances required by the crime are present)

D need not be certain attendant circumstances exist; sufficient that she is aware of a HIGH LIKELIHOOD they exist

72
Q

General Intent - Inference of Intent from Act

A

Jury CAN infer general intent merely from the doing of the act

73
Q

Strict Liability Offenses

A

Also known as “public welfare offenses”
Does NOT require awareness of all the factors constituting the crime
State of mind (usually) only abandoned with respect to ONE or SOME elements of the offense

Defenses that would negate state of mind, such as mistake of fact, are NOT available

74
Q

Negligence - Violation of a Statue

A

Violation of a state statute, municipal ordinance, or an administrative regulation may (as in tort law) be EVIDENCE of liability

75
Q

State of Mind - Elements of Offense

A

Statue establishes a culpable state of mind but does not indicate if it is required for all material elements of the offense - specified state of mind applies to ALL material elements of the offense, UNLESS a contrary purpose appears in the statute

76
Q

Vicarious Liability Offenses

A

Where a person without personal fault may nevertheless be held vicariously liable for the criminal conduct of another (usually an employee)

Dispenses personal actus reaus requirement, but retains the need for MENTAL FAULT on the part of the employee (mens rea) - opposite for strict liability

Trend in legislature is to limit vicarious liability to REGULATORY crimes and to limit the punishment to FINES (basic premise of criminal law that crime requires fault on part of the accused)

Analogous to tort doctrine of Respondeat Superior

77
Q

Implying Vicarious Liability from Strict Liability Offense

A

Mere fact that underlying offense is a strict liability offense should NOT imply a legislative intent to impose vicarious liability

i.e.: Statute makes it a crime “for anyone to serve an alcoholic beverage to a minor.” Although a bartender may be strictly liable under this statute regardless of her belief that the customer was legally old enough to drink, this statute should not be construed to impose liability on the tavern owner who neither was present at the time the minor was served nor authorized the actions of the bartender

78
Q

Common Law Enterprise Liability

A

No criminal liability at CL

View that corporation cannot commit a crime because it is unable for form the necessary criminal intent

79
Q

Enterprise Liability - Modern Statutes

A

Provide for the liability of a corporation and sometimes even unincorporated associations (e.g.: partnerships)

Liability is (by necessity) vicarious

May be held liable under the following conditions:
1) Act Within Scope of Office - conduct giving rise to corporate liability must be performed by an agent of the corporation AND within the scope of his office or employment

2) “Superior Agent Rule” - criminal liability may be limited to situations in which the conduct is performed or participated in by agents sufficiently high in the corporate hierarchy to presume their acts reflect corporate policy

80
Q

Enterprise Liability - Model Penal Code

A

Under MPC, 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”

81
Q

Enterprise Liability - Individuals

A

Individual liability is independent of enterprise liability

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

Similarly - fact that corporation is liable does NOT PREVENT conviction of individual who committed the offense

82
Q

Transferred Intent

A

D intended harmful result to particular person or object, and in trying to carry out that intent, caused SIMILAR harmful result to another person or object, her intent will be transferred from the intended person or object to the one actually harmed

Defenses or mitigating circumstances will also be transferred (in most cases)

Most commonly applies to homicide, battery, and arson
It does NOT apply to ATTEMPT

i.e. A shoots at B, intending to kill him. Because of bad aim, she hits C, killing him. Is A guilty of C’s murder?
Held: Yes. Her intent to kill B will be transferred to C. A may also be guilty of the attempted murder of B.

Compared with
i.e.: A shoots twice at B, thinking that B was C, whom she wanted to kill. She wounds, not only B, but D, a bystander. Is A guilty of the attempted murder of B and D?
Held: A is guilty of the attempted murder of B, because her mistake as to B’s identity is a mistake of fact that does not negate her intent to kill the person in front of her (B). There is no transferred intent issue in that scenario. Most courts would find A is not guilty of the attempted murder of D.

83
Q

Motive Distinguished

A

Motive is the REASON or EXPLANATION underlying the offense; distinct from the INTENT to commit it

Generally held that motive is IMMATERIAL to substantive criminal law
A good motive will NOT excuse a criminal act
Lawful act done with bad motive NOT punished

84
Q

Concurrence of Mens Rea with Actus Reaus

A

D must have had intent necessary for the crime AT THE TIME he committed the act constituting the act

INTENT must have PROMPTED the act

i.e.: A decides to kill B. While driving to the store to purchase a gun for this purpose, A negligently runs over B and kills him. Is A guilty of murder?
Held: No. Although at time A caused B’s death, he had the intent to do so, this intent did not prompt the act resulting in B’s death (A’s poor driving)

Compared with
i.e.: With the intent to kill B, A strangles B to the point of unconsciousness, but does not actually kill B. Thinking B is dead, A buries B, and B dies as a result. Is A guilty of murder, even though the death-causing act of burying B was done without the intent to murder?
Held: Yes. Most courts would find that the two acts were part of a single transaction with a common intent

85
Q

Common Law Parties to a Crime

A

Four types of parties to a felony:

1) Principals in the First Degree
2) Principals in the Second Degree;
3) Accessories Before the Fact; and
4) Accessories After the Fact

86
Q

Principals in the First Degree

A

Persons who actually engage in the act or omission that constitutes the criminal offense

87
Q

Principals in the Second Degree

A

Persons who aid, command, or encourage the principal and are PRESENT at the crime

88
Q

Accessories Before the Fact

A

Persons who aid, abet, or encourage the principal, but are NOT present at the crime

89
Q

Accessories After the Fact

A

Persons who assist the principal AFTER the crime

90
Q

Modern Statute Parties to a Crime

A

Under the modern approach, all “parties to the crime” can be found guilty of the criminal offense

Actual perpetrator of the crime is the PRINCIPAL
All other parties to the crime are ACCOMPLICES

91
Q

Modern Statue - Principal

A

One who, with the requisite mental state, ACTUALLY ENGAGES in the act or omission that causes the criminal result

Anyone who acts through an innocent, irresponsible, or unwilling agent is classified as the principal

92
Q

Modern Statute - Accomplice

A

One who (i) with the INTENT to ASSIST the principal and the INTENT that the principal COMMIT the crime (ii) ACTUALLY aids, counsels, or encourages the principal before or during the commission of the crime

93
Q

Modern Statute - Accessory After the Fact

A

One who receives, relieves, comforts, or assists another KNOWING that he has committed a felony, in order to help the felon ESCAPE arrest, trial, or conviction

Crime committed by principal must be a FELONY and it must be COMPLETED at the time aid is rendered

Commonly called “harboring a fugitive,” “aiding escape,” or “obstructing justice”

94
Q

Accessory After the Fact - Penalty

A

Usually bears no relationship to the principal offense; five years is the most common maximum sentence

Exemptions usually provided for close relatives of the principal offender (CL only exempted the spouse)

95
Q

Requirements to be Convicted of a Substantive Crime as an Accomplice

A

Accomplice must have

(i) the intent to ASSIST the principal in the commission of a crime; AND
(ii) the intent that the principal COMMIT the substantive offense

If substantive offense only requires recklessness or negligence, intent satisfied if the accomplice (i) INTENDED to facilitate the commission of the crime; and (ii) acted with RECKLESSNESS or negligence (whichever required)

96
Q

Accomplice Liability - Ordinary Goods/Prices

A

Courts hold mere knowledge that a crime would result from the aid provided is INSUFFICIENT for accomplice liability, at least where the aid involves the sale of ordinary goods at ordinary prices

97
Q

Accomplice Liability - Illegal Items/Higher Prices

A

Procuring an illegal item or selling at a higher price because of the buyer’s purpose may constitute a SUFFICIENT “stake in the venture” for a court to find intent to aid

98
Q

Accomplice Liability - Scope

A

Accomplice responsible for 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

99
Q

Accomplice Liability - Exclusions

A

a) Members of the protected class
b) Necessary Parties Not Provided For
c) Withdrawal

100
Q

Accomplice Liability - Members of the Protected Class

A

Statute intended to protect members of a limited class from exploitation or overbearing, members of that class are presumed to be IMMUNE from liability, even if they participate in the crime in a manner that would otherwise make them liable

i.e.: A charged with transporting B, a woman, in interstate commerce for immoral purposes; B is charged as an accomplice on the ground that she encouraged and assisted A. Is B guilty?
Held: No. The statute was intended to protect women, and therefore the woman transported cannot be convicted

101
Q

Accomplice Liability - Necessary Parties Not Provided For

A

Statute defines a crime in a way that necessarily involves more than one participant and provides for the liability of only one participant, it is presumed that the legislative intent was to IMMUNIZE the other participant from liability as an accomplice

Most often applied to statutes making the sale of certain items a criminal offense

i.e.: A asked B to sell her some heroin. B did so. Both were apprehended. B was charged as a principal for the sale of narcotics; A was charged as an accomplice. Is A subject to conviction?
Held: No. Since the statute prohibiting the sale does not mention the liability of the buyer, the presumed legislative intent is to exempt her

102
Q

Accomplice Liability - Withdrawal

A

One who has rendered encouragement or aid to another may avoid liability as an accomplice is he VOLUNTARILY withdraws from the crime BEFORE it is actually committed by the principal.

Requirements for effective withdrawal depend on what the person INITIALLY did

(i) If the person merely ENCOURAGED the commission of the crime, withdrawal requires that he REPUDIATE this encouragement
(ii) If the person assisted by PROVIDING some material to the principal, withdrawal requires at least that the person ATTEMPT to neutralize his assistance (e.g.: doing everything possible to retrieve the material provided)
(iii) If the other two means of withdrawal are impossible, an alternative means of withdrawing is to NOTIFY AUTHORITIES or take some ACTION to PREVENT the commission of the offense

Withdrawal must occur BEFORE the chain of events leading to the commission of the crime becomes UNSTOPPABLE

103
Q

Solicitation

A

CL = misdemeanor to solicit another to commit a felony or an act that would breach the peace or obstruct justice

Modern statutes often retain the crime of solicitation, but some restrict it to the solicitation of certain felonies

104
Q

Solicitation - Elements

A

Solicitation consists of inciting, counseling, advising, inducing, urging, or commanding another to commit a crime with the SPECIFIC INTENT that the person SOLICITED commit the crime (general approval or agreement = insufficient)

Offense complete at time solicitation was made
Other party does not have to agree or do anything in response

105
Q

Solicitation Distinguished from Attempt

A

Solicitation is generally NOT an attempt to commit the crime solicited

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

Bar Exam Prep (8 decks)

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