Crimes Requiring Specific Intent - It's a specific
intent crime to Purposely FLAME CRABS.
MURDER, FIRST DEGREE
Crimes Requiring General Intent - It's a general
intent crime for MARK to FIB.
MURDER in the commission of a dangerous,
statutorily enumerated felony
Defenses Available - The prosecutor PACED as his
charges against defendant fell like DOMINOS
defense of PROPERTY
AGE (7 to 13 = rebuttable presumption that child
prevention of CRIME constituting breach of peace
(non-deadly) or risking human life (deadly)
DURESS (mitigates murder to manslaughter)
OTHER party consented to act
MISTAKE of fact
NECESSITY - avoid a greater evil
defense of OTHERS
When Omission To Act Is A Crime - You can't just
watch them SCRAP when you've got a legal duty to
break it up.
STATUTORY duty (filing taxes)
CONTRACT (nurse, lifeguard)
RELATIONSHIP (parent, spouse)
ASSUMPTION of duty voluntarily (rescuer liability)
PERIL (caused risk of harm)
Defense To Felony Murder - The BUC stops at the
no reason to BELIEVE co-felon was armed or
intended to engage in conduct likely to result in
UNARMED; and didn't COMMIT, command or request homicide;
Strict Liability Crimes - If you pick a SCAB, you're strictly liable as a criminal.
CONTRIBUTING to the delinquency of a minor ABNORMALLY dangerous activities
An Unlawful Confinement of Another that either:
a) Involves moving the other’s Person; or
b) Concealment of the other’s Person in a secret place
(Aggravated kidnapping is kidnapping with the additional intent to commit a further crime, such as rape, or ransom)
Example: A defendant would have committed kidnapping when they locked the victim in a basement, and then threw a tarp or cover over the door (preventing its existence from being seen). Additionally, the defendant would likely be guilty of kidnapping if he grabbed the victim, put them into a locked car and drove.
ELEMENTS OF A CRIME: MENTAL STATES
Specific Intent: Act must be done with the specific intent or objective to commit the act (cannot be inferred).
-Crimes: Assault, Attempt, Burglary, Conspiracy, Embezzlement, False Pretenses, First Degree Premeditated Murder, Forgery, Larceny/Larceny by Trick, Robbery, and Solicitation.
-Defenses: General Defenses + MOF + Voluntary Intoxication
Malice: Requires only the reckless disregard of an obvious risk of harm.
-Crimes: Arson and Murder.
-Malice Defenses: General defenses. Voluntary intoxication is not a defense. Only reasonable mistakes of fact are permitted
General Intent: D need only be generally aware of the factors constituting the crime; need not intend a specific result.
-Crimes: All crimes that do not fall into the categories of malice or specific intent crimes (examples: Battery, False Imprisonment, Kidnapping, Rape).
-Defenses: Qualifies for general defenses
Strict Liability: Public welfare offense; does not require awareness/mental state constituting the crime. Can be guilty without intent. Actus reus is enough.
-Crimes: Administrative, Regulatory, or Morality area, then they are strict liability crimes
-Defenses: Any defense that negates intention is not a defense to strict liability. Involuntary intoxication (but not voluntary intoxication), insanity, infancy, duress are defenses. Mistake of Fact is never a defense
ACCOMPLICE LIABILITY: ELEMENTS
1. PARTIES INVOLVED: The person who actually engages in the act / omission is the principal; other parties are accomplices.
-Modernly: Most jurisdictions have abolished distinctions, and all such parties to the crime can be found guilty of the principal offense.
EXCEPTION: An accessory after the fact is still treated separately. Punishment typically bears no relationship to the principal offense
2. LIABILITY: Accomplice is liable for the crime itself and all other foreseeable crimes.
-Liability exists only for those who were actively involved in the crime. Presence alone is not enough, even if they are consenting or not calling the police.
-Silent approval of the criminal behavior does not amount to liability.
-Most jurisdictions require that the person give aid, counsel, or encouragement to the principal with the intent to encourage the crime. Mere knowledge is not enough. “Stake in the venture”
3. EXCLUSION FROM LIABILITY: Members of the class protected by a statute are excluded from liability. Party necessary to the crime but is not provided for in the statute.
-Withdrawal: Withdrawal from a crime before it is committed cannot be held guilty as an accomplice. Withdrawal must occur before the crime becomes unstoppable
-Repudiation is sufficient when a person merely encouraged the crime;
-Attempt to neutralize is required if participation went beyond mere encouragement.
(Notifying the police or taking action to prevent the crime)
-Cannot generally withdraw from solicitation, conspiracy, or attempt.
INCHOATE (INCOMPLETE) OFFENSES:
SOLICITATION: Solicitation of another to commit a felony with the specific intent that the crime be committed.
- Mental State: Specific intent that person solicited commit the crime.
-Overt Act: No act other than solicitation. As a result, withdrawal will likely not be a defense.
-Merger: If the person solicits another to commit a crime and the person agrees, solicitation merges into conspiracy. Thus, the person cannot be convicted of both.
ATTEMPT: Performance of an act that would amount to a crime if successful
-Mental State: Specific intent to commit the particular crime attempted. (All attempts, even attempts to commit general intent or strict liability crimes, are specific Intent crimes.)
-Overt Act: Act dangerously close to success. Mere preparation (showing up) doesn’t count.
-Merger: Attempt merges with the substantive crime committed (can’t be guilty of both).
CONSPIRACY: An agreement between two or more people to commit a crime (pursuing an unlawful objective)
-Mental State: Specific Intent to (1) Enter into agreement, (2) Achieve unlawful objective, (3) meeting of the minds
-Overt Act: Act in furtherance of the conspiracy
-Merger: N/A - conspiracy does not merge with the substantive offense. Can be convicted for both the conspiracy AND the completed crime.
-Liability: Each party is liable for the crimes of co-conspirators if the crimes were committed in furtherance of the conspiracy and were reasonably foreseeable
INCHOATE (INCOMPLETE) OFFENSES:
-Withdrawal: Generally N/A
-Actual Impossibility: N/A Claim that it was impossible to complete the crime because of some circumstances beyond the D’s control
-Legal impossibility: If what the person was attempting to do was actually not a crime even though s/he thought it was
-Withdrawal: Generally not a defense to conspiracy.
-Exception: May be a defense to crimes in furtherance of the conspiracy, including the substantive target crime of the conspiracy.
-When withdrawal effective: A conspirator must inform all of his co-conspirators of his intent to withdrawal and this notice must be given while there is still time for the other co-conspirators to abandon their criminal plans
-Future Crimes: A D who does successfully withdrawal, can save himself from liability for the FUTURE (not yet committed) crimes of his former co-conspirators.
-Acquittal by all other parties: Shows that there was no one with whom the defendant could conspire. However, non-prosecution of co-conspirators doesn’t negate the conspiracy for the D
An unlawful application of force to the person of another resulting in either bodily injury or an offensive touching
a. Need not be intentional, need not be applied directly. Battery is a completed assault. A general intent crime, never strict liability.
b. Aggravated Battery: Most jurisdictions treat the following as aggravated batteries and punish them as felonies: (1) battery with a deadly weapon; (2) battery resulting in serious bodily harm; and (3) battery of a child, woman or police officer.
An attempt to commit a battery (specific intent) or
Intentional creation of a reasonable apprehension of an imminent bodily harm (a threat / general intent)
o Actual touching: there is only battery, not assault.
o Best defense is that there was no intent. There may be instances where there is a creation of reasonable apprehension of harm, but not attempt to commit battery. Must distinguish.
o Aggravated Assault: With a deadly weapon or with intent to rape or maim is treated more severely than simple assault.
At common law, the felony of mayhem required the dismemberment or disablement of a bodily part. The recent trend is to abolish mayhem as a separate offense and to treat it instead as a form of aggravated battery.
1. RAPE: Unlawful carnal knowledge of a woman by a man, not her husband, without her effective consent.
a. Lack of Effectual Consent: To qualify as rape, the victim must not give effective consent to the intercourse. Lack of effective consent exists where:
i. Intercourse is accomplished by actual force;
ii. Intercourse is accomplished by threats of great and immediate bodily harm;
iii. The victim is incapable of consenting due to unconsciousness, intoxication, or mental condition; or
iv. The victim is fraudulently caused to believe that the act is not intercourse.
2. STATUTORY RAPE: Carnal knowledge of a female under age of consent; not necessary to show lack of consent.
3. CRIMES AGAINST NATURE: Adultery and fornication, incest, seduction, bigamy, bestiality.
4. SEDUCTION: Consists of inducing, by promise of marriage, an unmarried woman to engage in intercourse. The Model Penal Code does not require chastity or that the female be unmarried.
5. BIGAMY: Common law strict liability offense of marrying someone while having another living spouse
The unlawful confinement of a person without valid consent. Model Penal Code requires that the confinement substantially interfere with the victim’s liberty.
Defense to ALL crimes, including strict liability crimes. Several formulations of the test:
M’Naghten Rule: (Most important test) Defendant had a mental disease or defect that caused him to either: (1) not know that his act would be wrong; or (2) not understand the nature and quality of his actions.
-Does not know right from wrong at the time of his act.
Irresistible Impulse Test: Defendant is unable to control his actions or conform his conduct to law.
-Impulse defendant cannot resist / rises to the level of a mental disease or defect.
Durham (or New Hampshire) Test: A defendant is entitled to acquittal if the crime was the product of his mental illness.
-But for the mental illness, there would be no act.
Model Penal Code Test: A defendant is entitled to an acquittal if s/he had a mental disease or defect, and, as a result, s/he lacked the substantial capacity to either: (1) appreciate the criminality of his conduct OR (2) conform his conduct to the requirements of law.
-Does not know right from wrong and has an irresistible impulse
Caused by substances (drugs, alcohol, medicine). May be raised to negate intent.
Voluntary Intoxication: Defense only to SPECIFIC INTENT crimes. May be offered only if the crime requires purpose (intent) or knowledge AND the intoxication prevented the defendant from formulating the purpose or obtaining the knowledge. Not available if the defendant becomes intoxicated to establish the defense. Not for malice, recklessness, negligence, or strict liability.
i. Note: Even if one is an addict=still voluntary.
Involuntary Intoxication: Defense to all crimes, including strict liability. Examples include: taken without knowledge, under direct duress, or pursuant to medical advice.
-Treated as mental illness: Basically the legal equivalent to insanity
-Where the intoxicant was not knowingly and voluntarily ingested
-Under 7: No liability for an act committed by a child under age seven. Defense to all crimes.
-Ages 7 to 14: Rebuttable presumption that the child was unable to understand the wrongfulness of his acts
The taking and carrying away of the personal property of another without his consent with the intent to deprive the person permanently of the property
DEFENSES: Taking property “with the belief it is yours” is not larceny
The taking must be wrongful: either by trespass or trick (thus taking under a claim of right is not larceny), but the distance does not matter (can be a slight distance). For consent to be a defense, it cannot be gained by fear or fraud.
Intent: The intent to deprive a person must exist at the time of the taking.
Possession: Larcenist gets possession only, not title. If the person had possession of the property at the time of the taking, it is not larceny but may be embezzlement. If the defendant validly possesses the property, s/he cannot be guilty of larceny for taking it, even if the defendant does not own it. Also, the defendant can be guilty of larceny for taking his OWN property, if someone else had valid possession of it
The fraudulent conversion by someone with lawful possession. Do not need a taking away nor do you need to personally benefit
DEFENSES- Intent to restore: If the defendant intends to restore the exact property taken, it is not embezzlement. Claim of right is a defense.
Obtaining title to personal property of another by an intentional false statement of past or existing fact, with intent to defraud the other. Future false promises do not create liability.
The taking of personal property of another from the other's person or presence by force or threat with the intent to permanently deprive him of it.
Blackmail— consists of obtaining property by means of threats to do future harm or to expose information. Crime occurs when threat is made with the intent to obtain property.
COMMON LAW RULE: The breaking and entering of a dwelling of another at night with the intent to commit a felony in the structure.
MODERNLY: Courts have mostly done away with the nighttime requirement
COMMON LAW RULE: The malicious burning of a dwelling of another.
MODERNLY: Courts are more lenient with what qualifies as a dwelling, so on the MBE, any structure will suffice for arson. Moreover, arson can include damage from smoke, water, an explosion, or other like damage.
DEFNSE: SELF DEFENSE
Non-deadly force: A person may use such force as reasonably appears necessary to protect himself from the imminent use of unlawful force upon his body. There is NO duty to retreat.
Deadly force: A person may use deadly force in self-defense if:
He is without fault;
He is confronted with unlawful force; and
He is threatened with imminent death or great bodily harm.
Duty to Retreat: Even under the majority rule, which generally does not require retreat for one who has a right of self-defense, someone who was the initial aggressor must retreat if they can do so safely
Right of Initial Aggressor to Use Self-Defense: The initial aggressor may use force in defense of himself only if (1) she effectively withdraws from the altercation and communicates to the other the intention to do so, OR (2) the victim of the initial aggression suddenly escalates the minor fight to deadly altercation and the initial aggressor has no chance to withdraw
It is a defense to a crime that the person reasonably believed that commission of the crime was necessary to avoid an imminent and greater injury to society than that involved in the crime. The test is objective and a good faith belief is not sufficient.
Limitation - Death: Causing the death of another person to protect property is NEVER justified.
Limitation - Fault: The defense of necessity is not available if the defendant is at fault in creating the situation requiring that he choose between two evils.
Duress Distinguished: Necessity involves pressure from natural or physical forces, while duress involves a human threat.
It is a defense to a crime other than homicide that the defendant reasonably believed that another person would imminently inflict death or great bodily harm upon him or a member of his family if he did not commit the crime.
DEFENSE: MISTAKE OF FACT
Relevant only if it showed the defendant lacked the state of mind required for the crime. Thus, it is irrelevant if the crime imposes strict liability.
DEFENSE: MISTAKE OF LAW
Applicable to crimes with a mental state element and statutory crimes. The mistake must negate awareness of some aspect of law that the crime requires or must be due to:
1. Statute not being reasonably available;
2. Reasonable reliance on statute or judicial interpretation; or
3. Reasonable Reliance on official interpretation or advice
Unless the crime requires the lack of consent of the victim (i.e., rape), consent is usually not a defense. Consent is a defense to minor assaults or batteries if there is no danger of serious bodily injury.
Whenever consent may be a defense, it must be established that:
a. Consent was freely given;
b. Party was legally capable of giving the consent; and
c. No fraud involved in obtaining the consent.
Entrapment exists only if:
a. The criminal design originated with law officers; and
b. The defendant was not predisposed to commit the crime prior to contact by the government. (Predisposition by a defendant negates entrapment
Intentionally taking a false oath in regard to a material matter (one that might affect the outcome of the proceeding) in a judicial proceeding.
COMMON LAW: The corrupt payment or receipt of anything of value for official action.
MODERNLY: Bribery can be extended to nonpublic officials, and either the offering of a bribe or the taking of a bribe may constitute the crime.
COMPOUDING A CRIME
Agreeing, for valuable consideration, not to prosecute another for a felony or to conceal the commission of a felony or the whereabouts of a felon.
MISPRISON OF A FELONY
COMMON LAW: The failure to disclose knowledge of the commission of a felony or to prevent the commission of a felony.
MODERNLY: No longer a crime in most jurisdictions; where it is a crime, it generally requires an affirmative action in aid of the felon.