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Flashcards in Criminal Law & Criminal Procedure Deck (47)
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Merger doctrine

Conspiracy, solicitation, and attempt merge into the completed offense.

Conspiracy merges into attempt.


Merger – felony murder

If D has committed several felonies and it is unclear which is the underlying felony for felony murder, the trial court must merge with the felony murder the most severe felony.

Where D kills while committed a felony and is found guilty of (1) felony; (2) murder based on malice aforethought; and (3) felony murder, then the merger does not apply. D will be sentenced for both the felony and the malice murder.


Inference of intent from act

A person is not presumed to act with criminal intention, but such intention may be inferred upon consideration of the words, conduct, and other circumstances associated with the act for which the defendant is prosecuted.


Accomplice liability

Anyone concerned in the commission of a crime is a party to the crime and may be charged with and convicted of the crime.

Approval, not amounting to encouragement, or presence at the crime scene will not be sufficient.



D commits solicitation when, with intent that another person engage in conduct constituting a felony, he solicits, requests, commands, or otherwise attempts to cause the other to engage in such conduct.



D commits conspiracy when (1) he, together with at least one other person, conspires to commit any crime and (2) any one of such persons commits an overt act to bring about the object of the conspiracy.


Conspiracy – defense

Withdrawal: a co-conspirator will be relieved of criminal liability for the conspiracy if, before the occurrence of the overt act, he withdrew his agreement to commit a crime.



Criminal attempt consists of (1) intent to commit a specific crime; and (2) the performance of an act that constitutes a substantial step toward the commission of that crime.


Attempt – defenses

Impossibility is not a defense

Abandonment: D abandoned his effort to commit the crime or in some other way prevented its commission under circumstances showing a voluntary and complete renunciation of his criminal purpose. Belief that circumstances render completion more difficult or decision to postpone do not constitute renunciation.


Insanity defense

Two bases:

(1) if at the time of the crime, D did not have mental capacity to distinguish between right and wrong

(2) if at the time of the crime, because of mental disease, injury, or congenital deficiency, D acted as she did because of a delusional compulsion that mastered her will to resist committing the crime


Intoxication defense

Voluntary intoxication is not a defense unless D can show that the intoxication resulted in more than a temporary alteration of brain function such that D could not form the requisite intent

Involuntary intoxication is a defense if it deprived D of sufficient mental capacity to distinguish between right and wrong in relation to the criminal act.


Infancy defense

Anyone younger than 13 years old cannot be found guilty of a crime


Self-defense – non-deadly force

A person is justified in threatening or using force when and to the extent she reasonably believes it to be necessary to defend herself or a third person against the other's imminent use of unlawful force


Self-defense – deadly force

Justified only if D reasonably believes it is necessary to prevent the death or great bodily harm to herself or another, or to prevent the commission of a forcible felony.

If uses an unlawful weapon in using deadly force, D loses immunity (e.g., sawed off shotgun).


Duty to retreat

No duty to retreat and can stand his ground when force is authorized.


Self-defense – first-aggressor

Use of force is not justified if D (1) initially provokes the use of force intending to use it as an excuse to inflict bodily harm; (2) is attempting to commit, is committing, or is fleeing after committing a felony; or (3) was the aggressor or engaged in combat by agreement, unless he withdraws and communicates intent to withdraw.


Defense of dwelling

Deadly force can be used to protect D's home when (1) entry is made or attempted in violent manner and D reasonably believes that entry is being made to commit an assault or other violent crime within; (2) deadly force is used against another who is not a household member and who unlawfully and forcefully entered the home and D believed that unlawful or forcible entry occurred; or (3) D reasonably believes that entry is made or attempted for the purpose of committing a felony therein and force is necessary to prevent the felony.


Defense of property

Non-deadly force is justified to the extent it is reasonably believed necessary to prevent or terminate a trespass or wrongful interference with real property other than a habitation or personal property other than a motor vehicle, provided the property is in (1) D's possession; (2) possession of D's immediate family; or (3) possession of someone D has a duty to protect.

Deadly force is not permitted unless D reasonably believes it necessary to prevent a forcible felony against a person.



D is not guilty of a crime, except murder, if the act is performed under such coercion that the person reasonably believes performing the act is the only way to prevent her imminent death or great bodily injury.



(1) idea and intention to commit the crime originated with government officer or agent
(2) officer or agent induced D to commit the act by undue persuasion or deceit
(3) D was not predisposed to commit the crime


Battery (4 types)

Simple battery: (1) intentionally making physical contact of
an insulting or provoking nature with the person of another; or (2) intentionally causing physical harm to another.

Battery: intentionally causing substantial physical harm or visible bodily harm

Family violence battery: battery committed upon past or present spouses, parents of the same child, foster parents/children, or other persons living or formerly living in the same household

Sexual battery: intentionally making physical contact with the intimate parts of the body of another person without the consent of that person


Aggravated battery

Maliciously causing bodily harm to another by depriving the other of a member of her body, rendering a member of her body useless, or seriously disfiguring her body.


Reckless conduct

Act of criminal negligence that causes bodily harm or endangers another's bodily safety



(1) attempt to commit a violent injury to the person of another; or (2) commit an act that places another in reasonable apprehension of immediately receiving a violent injury


Aggravated assault

D assault another person (1) with intent to murder, rape, or rob; (2) with a deadly weapon (or what appears to be a deadly weapon); (3) with any object likely to or actually does result in strangulation; or (4) by discharging a firearm from with a motor vehicle.



Unlawfully and with malice aforethought, express or implied, causing the death of another human being.

Express malice is a deliberate intention to unlawfully take the life of another human being, manifested by external circumstances capable of proof.

Implied malice: no considerable provocation appears and all the circumstances of the killing show an abandoned and malignant heart or a reckless disregard for human life


Voluntary manslaughter

When one causes the death of another if D acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person.

If there is an interval between provocation and the killing for the voice of reason to be heard, killing will be murder.


Involuntary manslaughter

When D causes death without intending to do so by the commission of a lawful act in an unlawful manner likely to cause death or great bodily harm, e.g., self defense with excessive force


Second degree murder

In the commission of second degree cruelty to children, D causes death of another human being.

Second degree cruelty to children: causing, with criminal negligence, a child under 18 yrs. excessive physical or mental pain


Felony murder

Any killing that occurs during the commission of an inherently dangerous felony.

Felony does not need to be independent of the killing - aggravated battery or assault can qualify as the underlying felony.

Proximate cause theory: if one of the co-felons proximately causes the victim's death, all other co-felons will be guilty of felony murder, even if the killing is committed by a third party and even if the person killed is a co-felon.