Emmanuel Criminal law

Question 1

In general what are the elements of a crime?

Answer 1

1. Act (Actus Reus)- can be omission where there’s a duty to act
2. Mental State (Mens Rea)-varies from crime to crime (strict liability a crime not requiring Mens Rea)
3. Concurrence between act and required mental state
4. Causation-actual and proximate cause of result

Question 2

what’s the difference between a crime and a tort?

Answer 2

Tort is a civil wrong committed against an individual; a crime is a public wrong committed against the state.(violating statutes)

Question 3

What theories of punishment might the criminal law be seen to serve?

Answer 3

Retribution
Rehabilitation
Incapacitation
Deterrence

Question 4

In the classification scheme used by most states today, what is the distinction between felonies and misdemeanors?

Answer 4

Felony = Crime punishable by either imprisonment exceeding one year in prison or jail or by death

Misdemeanor = crime punishable by a fine or imprisonment not exceeding one year

battery and assault generally are misdemeanors but aggravated assaults and batteries are felonies

Question 5

What are the common law felonies?

Answer 5

(Today there are no common law felonies almost all are statutory)

Murder, Manslaughter, Mayhem, Rape, Robbery, Sodomy, Larceny, Arson and Burglary.

Question 6

Which provision of the Bill of Rights provide the primary constitutional limitations on criminal punishment?

Answer 6

First Amendment
Fourth Amendment
Fifth Amendment
Eighth Amendment

Question 7

If the states have primary responsibility for enforcing criminal laws and given that provisions of the Bill of Rights apply only to the federal government are states free from all federal constitutional regulation?

Answer 7

No, even though the Bill of Rights explicitly applies only to the federal government, the majority of its provisions (including those relevant to criminal law) are considered to be “incorporated” into the Fourteenth Amendment’s due process clause and therefore applicable to the state

Question 8

What is the legality principle?

Answer 8

It is the proposition, derived from the Constitution that no person may be punished unless that person’s conduct was criminalized before the act occurred.

Question 9

What is a “principal in the first degree”

Answer 9

It is the person who causes a criminal result through actual engagement in an act or omission or causes an innocent or incapable agent to so act.

Question 10

What is “principle in the second degree”?

Answer 10

a person who is present at the time of the crime and aids, and counsels, directs, or encourages (aiding and abetting) the principal in the first degree in committing the crime. Principles in the second degree as well as accessories before the fact are generally called accomplices.

Question 11

Distinguish between an “accessory before the fact” and a “principal in the second degree”

Answer 11

one who procures, counsels or commands the commission of a felony but who unlike a principal in the second degree is not present actually or constructively at the commission of the criminal act.

an accessory can be found guilty even if the principal has not been apprehended yet.

accessory after the fact is retained as a separate crime “harboring a fugitive/felon” or “obstructing justice”

Question 12

In the criminal prosecution and conviction of a principal in the first degree and a principal in the second degree, what will be the difference in punishment?

Answer 12

None; they will receive the same punishment. There can be a guilty principal in the second degree without a guilty principal in the first degree.

Principals in the second degree as well as accessories before the fact are commonly called “accomplices”

Question 13

What is the essential Actus Reus that is at the heart of accomplice liability?

Answer 13

Accomplice liability developed to criminalize the behavior of one who “aids, abets, encourages or assists another”in the commission of a crime. Culpability for the accomplice who aids or abets another in the commission of a crime requires more than “mere presence” or a failure to intervene to present the crime from occurring but will exist where such conduct is done with the purpose and has the effect of assisting or encouraging completion of the crime.

Question 14

What does it mean to say that a statute is “void for vagueness”?

Answer 14

A statute will be unconstitutionally vague and therefore unenforceable if it does not indicate to a person of ordinary intelligence what conduct is prohibited

Question 15

Why are unreasonably vague statutes unconstitutional

Answer 15

1. the related legality principle presumes that people will have reasonable notice and fair warning with respect to the actions criminalized by the statute
2. unreasonably vague statutes may vest government officials with excessive discretion in deciding which people or what conduct should be be punished

Question 16

Describe the proportionality principle

Answer 16

The proportionality principle refers to general proposition that punishment for criminal conduct should be roughly proportionate to its seriousness. Although proportionality is largely a policy consideration for legislatures rather than a rule of decision for courts it does have important consequences in the area of capital punishment

Question 17

What is the rule of lenity?

Answer 17

Rule of lenity is the generally accepted notion that ambiguities in a criminal statutes should be construed against the government and in favor of the defendant. Although the rule itself is applied in only the most exceptional cases, it does represent a rule of statutory constructions to which courts will occasionally resort.

Question 18

What is a “bill of attainder”?

Answer 18

It is a statute that mandates punishment or denies a privilege without a judicial trial.

Bills of attainder are prohibited by the constitution

Question 19

What is an “ex post facto law”?

Answer 19

Make an act criminal that was not criminal when it took place or “aggravate” a crime or make its punishment more severe or change the rules of evidence against criminal defendants as a class or change criminal procedure to deprive criminal defendants of any substantive right

Ex post facto laws are prohibited by the constitution.

Question 20

What is a “lesser included offense”?

Answer 20

It is one that requires only proof of some but not all of the elements of another offense and no other elements.

Significance: One cannot be convicted of both a lesser-included offense and the greater offense neither can an accused be tried for one and later for the other as this would constitute double jeopardy.

Question 21

What’s the difference between a crime that is “malum in se and one that is “malum prohibitum?”

Answer 21

A crime that is malum in se it one that is inherently evil (murder, battery, robbery)

A crime that is malum prohibitum is one that is wrong only because the law prohibits it (speeding, taxes)

Question 22

What connection if any exists between the criminal law and public morality?

Answer 22

Criminal law represents a moral judgement by a community and even though concepts of morality played an important role in development of theories of punishment, the direct link between criminal law and morality is diminishing.

There exists a large number of public welfare or regulatory offenses that do not bear moral implications and a large body of morally questionable behaviors that are not made unlawful

Question 23

What is the standard of proof necessary to secure a criminal conviction?

Answer 23

Government must prove each element of the charged crime beyond a reasonable doubt (there must be an abiding conviction, to a moral certainty of the truth of the charge)

Government may benefit from certain presumptions regarding the existence of those elements but Due Process requires that nay such presumptions be rebuttable by the defendant and that they not have the effect of shifting the burden to the defendant to disprove one or more element s defining the crime

Question 24

Four categories of parties to a felony at common law

Answer 24

1. Principals in the first degree
2. Princpals in the second degree
3. Accessories before the fact
4. Accessories after the fact

Question 25

Must an individual's assistance be necessary to commission of the crime for that person to be charged as an accomplice

Answer 25

No. The weight of authority suggests that a purposeful effort to aid, abet, encourage or assist is sufficient, even if the crime most likely would have been completed anyway. However accomplice liability will not attache where the intended aid or assistance had no effect on the principle criminal actor or where principal ultimately did not commit or attempt to commit a crime.

Question 25

Beyond the criminal activity intentionally aided or encouraged by an alleged accomplice for what"other" crimes committed by the principal will the accomplice normally be responsible?

Answer 25

Majority rule provides that where the principal commits a crimes other than that intentionally facilitated by the accomplice the accomplice will additionally be criminally responsible for those results that are the "natural and probable" consequences of the conduct that the defendant intended to aid or encourage. MPC: takes opposite view rejects liability for other crimes committed by principal unless specifically intend by the accomplice

Question 26

At what point can an accessory before the fact withdraw from criminal activity and avoid criminal liability for the completed crime?

Answer 26

Where an accessory has only counseled commanded or encouraged the crime he may withdraw by communicating his changed intention to the other parties. If he has already given tangible aid, he must withdraw the aid or try to prevent its use.

Question 27

What does "compounding a crime" consist of ?

Answer 27

To compound a crime one must: 1. Expressly agree not to prosecute give evidence on or report a felony (few states also include misdemeanors) 2. That one knows has been committed e

Question 28

Beyond the criminal activity intentionally aided or encouraged by alleged accomplice, for what "other" crimes committed by the principal will the accomplice normally be responsible?

Answer 28

Majority rule provides that where the principal commits a crime other than the intentionally facilitated by the accomplice, the accomplice will additionally be criminally responsible for for those results that are the "natural and probable" consequences of the conduct that the defendant intended to aid or encourage.

Question 29

Must a person be convicted as a principal in the commission of a crime to permit the conviction of an accomplice?

Answer 29

No. Accomplice liability represents an instance in which the accomplice becomes liable for the crimes of the principal, and the principal therefore must be guilty in fact (crime occurred) however there may be occasions in which principal may avoid conviction for a crime that in fact happened such as where principal has a complete defense (insanity) that is personal to that individuals. In theses circumstances , the failure to convict the principal os no obstacle to charging the alleged accomplice

Question 30

To be found insane under the M'Naghten rule, must a criminal defendant fulfill both halves of the test i.e the "nature and quality" and "right and wrong" tests?

Answer 30

No. Fulfilling the conditions of either half of the M'Naghten rule suffices for criminal insanity. An instruction that required both constitutes reversible error.

Question 31

Under the common law, at what age is a child conclusively presumed to lack the legal capacity to commit a crime?

Answer 31

7 and under. Modern Rule: apply variety of standard- children under certain age cannot be convicted

Question 32

What is the automatism defense?

Answer 32

Premised on the requirement that a defendant commit a voluntary act to be subject to criminal conviction. Certain cases, the defendant may have been affected by a physical or mental condition that makes it difficult or impossible to construe that defendant's conduct as truly voluntary Where defendant can satisfy the fact-finder as to the existence of a physical condition or mental condition that renders the charged conduct involuntary may defeat conviction

Question 33

What 3 offenses are considered "inchoate" offense

Answer 33

Attempt, Conspiracy and Solicitation. Inchoate offense is committed in anticipation of and preparation for, another offense and inchoate offense is considered "complete" in and of itself.

Question 34

What is the common law crime of "solicitation"?

Answer 34

Solicitation requires: 1. enticing, advising, encouraging or ordering another to commit a 2. felony or misdemeanor against the public welfare 3. with specific intent that the one solicited commit the crime conviction of solicitation does not require that the one solicited actually commit the crimes

Question 35

What mental state must be shown to convict a defendant of solicitation?

Answer 35

like accomplice liability, the defendant must have intended to induce the person solicited to commit the crime. Additionally a defendant charged with solicitation must also possess that level of culpability used to define the underlying crime.

Question 36

What result in circumstances in which a potential defendant's request (i.e solicitation) is never communicated to the would-be recipient?

Answer 36

When the defendant fails to communicate his criminal request results vary from jurisdiction. Majority permits conviction of the lesser offense of attempted solicitation.

Question 37

The Model Penal Code charge on solicitation

Answer 37

Permit conviction for the completed crime of solicitation, even where communication is never received (1) the defendant possessed the required mental state and (2) his conduct was designed to communicate a criminal proposal.

Question 38

What are the elements of conspiracy?

Answer 38

An act in furtherance of the conspiracy, by any conspirator is required in addition to these elements must be unlawful: (1) an agreement between at least two people (2) intent to enter into such and agreement (3) intent to achieve agreements objective

Question 39

What Mens Rea is required for conspiracy

Answer 39

Conspiracy is a "specific intent" crime there must be: 1. intent to enter into the agreement to combine 2. intent to commit a specific unlawful act through the combination

Question 40

In conspiracy, must the agreement to conspire be "express"?

Answer 40

No. It can be inferred from the circumstances of the case and the conduct of the alleged conspirators

Question 41

Distinguish between an "accomplice" (such as an accessory before the fact or a principal in the second degree) and a "conspirator"

Answer 41

A conspirator has agreed with others as to the commission of a crime A accomplice need not have agreed or conspired to commit a crime, but may have aided the commission without agreement. Accomplice liability requires a completed crime, a conspiracy will arise where a crime is contemplated but not completed. In most cases however an accomplice will also be a conspirator

Question 42

Why is conspiracy regarded as a particularly dangerous crime?

Answer 42

When a person has the pressure and support of other to commit a crime, the odds that he'll follow through are must greater than if her were acting alone. He'll be must less likely to abandon his criminal place if others are involved With the division of labor involved in a conspiracy its much more likely that the conspiracy will achieve its criminal objective than if an individual were acting alone

Question 43

There are two different ways in which large conspiracies are considered to be organized. What are they?

Answer 43

1. Chain relationship- one overall conspiracy. each conspirator has an interest in the entire scheme 2. Hub and Spoke (aka Wheel) relationship- many small conspiracies with one central figure. All agreement in the group have one common member, but each agreement is reasonably independent of the others, such that each has no particular interest in whether the others succeed.

Question 44

Chain v. Hubb and Spoke relationships

Answer 44

A chain relationship is more likely to result in every member being considered every other member's co-conspirator because there is interdependence. In a Hub and Spoke situation, no such interdependence, exists, and so those who do not deal directly with each other are less likely to to be considered co-conspirators. However if the operation requires many participants (like large gambling operation) a hub and spoke organization can be considered one large conspiracy.

Question 45

Under what circumstances will a conspirator be liable for the acts of a fellow conspirator?

Answer 45

When: 1. the crimes are committed in furtherance of the conspiracy's objectives 2. The crimes were foreseeable Conspirator can avoid liability by effectively withdrawing before the crimes take place. The conspiracy must obviously be prove first

Question 46

To be found guilty of conspiracy, must one of the conspirators commit an "over act" in furtherance of the conspiracy?

Answer 46

Traditionally no- the agreement to conspire constituted the Actus Reus. Today some states stick to this and require mere agreement to be guilty of conspiracy but most states either by case or statute require an "overt act" by one of the conspirators.

Question 47

In jurisdictions that require an "overt act" in furtherance of a conspiracy before liability will attach, must the "overt act" be criminal?

Answer 47

No. The purpose of the "overt act" is only to prove the existence of the conspiracy so it need to not be illegal itself. It need only be a step toward executing the conspiracy or to effect the objection of the conspiracy or an act of preparation to effect the conspiracy's aim. An "overt act" need only be undertaken by one member of the conspiracy not all of them.

Question 48

In the context of conspiracy, which is the more stringent or demanding standard: an overt act in furtherance of a conspiracy or an attempt at a crime.

Answer 48

Providing an attempt is more stringent standard. An act taken in furtherance of a conspiracy is sufficient overt if it goes beyond the "agreement" stage. Preparations that does not suffice for attempt is sufficient for "overt act"

Question 49

Is legal impossibility a defense to a conspiracy charge?

Answer 49

No-neither is factually impossibility. Compare: Attempts where legal impossibility is a valid defense

Question 50

Does "overt act" mean the same thing in attempts as it does in conspiracies?

Answer 50

No. in attempts, a sufficient act is an act beyond mere preparation that subjects the actor to liability. The standard for such an act varies, but it must at least a "substantial step" toward committing the crime In conspiracies over act refers to any act by any conspirator in furtherance of the conspiracy, It need not be substantial- it can be a call as long as its made to her effect the conspiracy's aim

Question 51

Define "legal Impossibility"

Answer 51

Legal impossibility arises when what the defendant intends to do is not criminal. It is a valid defense to an attempt charge.

Question 52

Define "Factual Impossibly"

Answer 52

not a defense to attempt only arises when completion of the crime is impossible due to physical facts not know to the defendant

Question 53

Does the Model Penal Code recognize "impossibly" as a defense to attempt?

Answer 53

No. it rejects the defense whether the impossibility is "legal" or "factual " as does the modern trend: where the actual intent is to perform an act of effect a result proscribed by law, impossibility is no defense

Question 54

Is "insanity " a psychiatric term?

Answer 54

No. it is a legal conclusion that a defendant is not criminally responsible for his acts, due to a mental abnormality, which makes it inappropriate to imprison him. most popular test is M'Nagten Rule (knowledge test), MPC test (alternative knowledge or control)

Question 55

What is the principal behind the insanity defense?

Answer 55

The primary justification for the insanity defense is that a defendant who, by reasons of mental disease or defect is unable to distinguish right from wrong or unable to control his conduct does not present a legitimate case for criminal punishment. Neither of the broad penological purposes of punishment, deterrence or retribution, is served by conviction a person who can establish insanity (as defined in the jurisdiction) at the of the crime

Question 56

Is the insanity defense constitutionally required?

Answer 56

Although virtually every state recognizes the insanity defense in some form it foes not appear to be required by the federal constitution under certain circumstances such as with respect to the application of the death penalty

Question 57

There are 4 principal tests for insanity what are they?

Answer 57

1. M'Naghten Rule 2. Irresistible Impulse Test 3.Durham Rule 4. ALI/Model Penal Code "Substantial Capacity" Test

Question 58

How does the Model Penal Code define "criminal insanity"?

Answer 58

whether the defendant lacked substantial capacity as a result of a mental disease or defect either by: 1. to appreciate the criminality (or wrongfulness) of his conduct or 2. To conform his conduct to the requirements of the law. (Combines the M'Nagten and the Irresistible Impulse test)

Question 59

What is meant by the phrase "unable to comprehend the nature and quality of his acts" referring to the definition of insanity under M'Nagten Rule?

Answer 59

The defendant is not able to understand the physical consequences of his act, e.g a man hits his wife in the head with a bat believing her head is a baseball. obviously such people are rare and cases under M'Nagten Rule most frequently deal with defendants ability or lack thereof to diminish right from wrong.

Question 60

What is the Durham rule?

Answer 60

A small minority of jurisdictions accept the Durham Rule rather than the M'Nagten Rule is defining criminal insanity. It hold that a person is legally insane if his act was the product of a mental disease or defect. The Durham Rule is criticized as being too vague, too subject to the influence of experts and too favorable to defendants.

Question 61

Is a criminal defendant discharged and released from custody upon a verdict of not guilty by reason of insanity?

Answer 61

No. the law of every jurisdiction operate such that a defendant who successfully invoke the insanity defense will most likely be confined to a mental health institution until he is either "cured" or no longer poses a danger to the community

Question 62

What is the "diminished responsibility" defense?

Answer 62

Recognized in a minority of states, the "diminished responsibility" defenses exonerated defendants who are not "insane", but nonetheless lack the mental capacity to be held liable for their actions due to their inability to form the required Mens Rea (remediation in first degree murder, specific intent in larceny). Note: one of "diminished capacity" can still be liable for crimes that require a lesser Mens Rea like negligence

Question 63

under what circumstances will a defendant be found incompetent to stand trial

Answer 63

When he: 1. cannot understand the nature of the proceeding brought against him 2. He cannot assist his lawyer in preparing a defense If defendant satisfies either of these, it will be a due process violation for him to stand trial or be convicted or sentences. Instead the trial must be postponed until the defendant regains his competency

Question 64

Insantity v. Incompetency

Answer 64

Insanity addresses the defendant's ability due to his mental state when the act was committed incompetency addresses the defendant's mental state at the time of trial and does not involve the defendant's criminal liability