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Flashcards in MBE - Criminal Law Deck (176)

What are the essential elements of crimes?

(a) Act requirement
(b) Mental State
(c) Causation
(d) Concurrence principle


D, in CA fills out a false insurance claim and mails it to CT. D may be prosecuted for insurance fraud in ____?

CA - where act took place AND

CT - where result took place.


On MBE, what is the burden of proof for elements of crime?

Prosecution must prove each element beyond a reasonable doubt.


What are the requirements for a crime to be classified as a felony?

Punishable by death or imprisonment for more than 1 year.


What are the requirements for a crime to be classified as a misdemeanor?

Punishable by a fine and/or imprisonment for no more than 1 year.


True or False: Culpable acts can be either commissions (physical acts) or omissions (failure to act)?



What are some involuntary movements NOT considered criminal acts?

(1) one that is not produce of actor's volition
(2) Sleepwalking
(3) Reflex or convulsions


What are the requirements for an omission to be the basis of criminal liability?

(1) Legal duty to act (via statute, contract, status relationship, voluntary assumption of care, or D is creation of peril).

(2) Knowledge of facts giving rise to duty

(3) Ability to help


What are the four common law mental states?

(1) Specific Intent
(2) Malice
(3) General Intent
(4) Strict Liability


What is the definition of specific intent?

Crime which requires not just the desire to do that ACT< but also the desire to achieve a specific result.


What are the specific intent crimes?

1st Degree Premeditated Murder

False Pretenses



What are the only two defenses available for specific intent crimes?

(a) Voluntary intoxication
(b) Unreasonable mistake of fact


What is the definition of malice?

Mental State - when a D acts intentionally or with reckless disregard of an obvious or known risk.


What are the common law malice crimes?

Murder AND arson.


What is the definition of general intent?

Mental state - D need only be generally aware of the factors constituting the crime, he need not intend the specific result.

EX: battery, forcible rape, false imprisonment, kidnapping


What are two types of strict liability crimes?

Strict liability = crime requires simply doing the act, no mental state is needed.

PUBLIC WELFARE offenses --> regulatory offenses that implicate public health or safety.
STATUTORY RAPE --> having sex with someone under the age of consent.


What two types of causation are required to sufficiently prove elements of a crime?

(1) Actual (But For) Causation
(2) Proximate Causation


V is walking down street when D pulls gun on him and yells, "this is a stick up" and then takes V's wallet. Standing in the same spot, moments later V is struck by lighting and killed.

Is D actual cause of V's death?


But for the stick up, V would not have been standing in that spot.


A stabs V causing fatal wound that will kill V in 5 minutes. One minute later, D walks by and shoots V in head, killing him instantly.

Is D an actual cause of V's death?


D's conduct is an accelerating cause of V's death, which qualifies as actual cause.


V is walking down street when D pulls gun on him and yells, "this is a stick up" and then takes V's wallet. Standing in the same spot, moments later V is struck by lighting and killed.

Is D a proximate cause of V's death?


Being struck by lightning is an unforeseeable intervening event.


What is the rule regarding proximate causation?

D is proximate cause if the bad result is NATURAL AND PROBABLE consequence of D's conduct.

However, D will not be considered a proximate cause if an unforeseeable intervening event causes the bad result.

Yet, D will be considered proximate cause even if V's preexisting weakness contributed to bad result (Egg shell V).


V is walking down street when D pulls gun on him and yells, "this is a stick up" and then takes V's wallet. Standing in the same spot, moments later V is struck by lighting and killed.

Is D criminally liable for V's death?

No, criminal liability requires both actual and proximate cause.


D shoots V, but wound is not fatal. V goes to hospital, but as results of blood-clotting disorder, V dies on operating table.

Is D a proximate cause of V's death?


Eggshell victim - does not matter V had preexisting weakness.


What is common law battery?

The unlawful, application of force to another, resulting in either bodily injury OR an offensive touching.

Mental state = general intent


What is common law assault?

Versions: (1) attempted battery or (2) reasonable apprehension.

The intentional creation, other than by mere words, of a reasonable apprehension of imminent bodily harm.

MS = specific intent


What are the common law homicide crimes?

(1) Murder
(2) Voluntary Manslaughter
(3) Involuntary Manslaughter


What is the definition of common law murder?

Causing the death of another person with malice aforethought.

MS = malice aforethought satisfied by any of four following mental states:
(i) intent to kill
(ii) intent to inflict serious bodily harm
(iii) extreme recklessness
(iv) intentional commission of inherently dangerous felony


What are two special rules regarding intent to kill murder?

(1) Deadly weapon rule
(2) Transferred Intent


What is the deadly weapon rule?

Special rule regarding intent to kill murder.

The intentional use of a deadly weapon creates an inference of a deadly weapon.

Deadly weapon = any instrument used in a manner likely to produce death or serious bodily injury.


What is transferred intent

Special rule for intent to kill murder.

If D intends to harm one victim, but accidentally harms a different victim instead, the D's intent will TRANSFER from the intended victim to the actual victim


D shoots at D, intending to kill him. A ducks and D's bullet hits and kills V.

(a) Is D guilty of V's murder?
(b) Is D guilty of any crime with respect to A?

(a) YES. The intent to kills A transfers to V.

(b) YES. Attempts murder bc D intends to kill A (two victims, so no merger).


What is the exception to the transferred intent doctrine?

Transferred intent does not apply to ATTEMPTS, only to crimes w/ completed harms.


D shoots at A, intending to kill him. A ducks, and D's bullet hits V, wounding but not killing him.

(a) is D guilty of attempted murder of A?
(b) is D guilty of attempt murder of V?

(a) YES. D intended to kill A.

(b) NO. BC V didnt die, the harm was incomplete as to him, the intent to kill A does not transfer to V.


What is the definition of felony murder?

Any killing caused during the commission of or attempt to commit a felony.


True or false: D must be guilty of the underlying felony to be liable for felony murder?



True or False: a common limitation on felony murder is that the felony must be inherently dangerous?



True of False? To alleged felony murder, the killing can take place anytime after the felony, even after the felon reaches a place of safety (hide out), as long as its reasonable and could include a co-felon.


(a) The killing must take place during the felony or during IMMEDIATE FLIGHT from the felony. Once the felon reaches a place of temporary safety, the felony ends.

(b) The death must be foreseeable.

(c) The victim must not be a co-felong


How does vicarious liability apply to felony murder?

Proximate cause theory: In most states, if one of the co-felons proximately causes the victim's death, ALL OF THE OTHER CO-FELONS will be guilty of felony murder, even if the actual killing is committed by a 3P.

This is majority view.

Minority view = agency theory, where felony murder only applies if killing made by co-felon.


On the MBE, what are the statutory variations for murder?

Most states have created two degrees of murder by statute:

1st Degree murder --> any killing committed with PREMEDITATION and DELIBERATION.

2nd Degree murder --> all other intentional murders, including depraved heart murder and intent to inflict serious bodily harm murder (where exists).


What is the definition of common law voluntary manslaughter?

An intentional killing, committed in the HEAT OF PASSION, upon adequate provocation.

Four common law requirements:
(1) Provocation was objective adequate
(2) D was actually provoked
(3) D did not have time to cool-off
(4) D did not actually cool-off


What does it mean for "provocation to be objectively adequate" regarding voluntary manslaughter?

Provocation would arose SUDDEN AND INTENSE PASSION in the mind of a reasonable person.


Under common law, what are the two types of involuntary manslaughter?

Killing committed with Criminal negligence, or

Killing committed during the commission of a crime.


D shoots V in leg, hoping to prevent V from competing in figure skating championship. To D's surprise, V dies.

What NY homicide has D committed?

1st degree manslaughter (intent to inflict serious physical injury).


As D is cleaning gun, his friend V sits next to him. Although D knows the gun is pointed at V and loaded, D continues to clean firearm. Gun fires accidentally, killing V.

What NY charges?

2nd degree manslaughter (Reckless killing).


D is cleaning gun and thinks its unloaded, however there is one gun in chamber. Gun fires accidentally, killing V.

What NY charges?

Criminally negligent homicide.


What is aggravated homicide?

Victim of homicide is a police officer in the line of duty.


What are the elements of common law false imprisonment?

confinement of a person
without his consent

MS = general intent


What are the elements of "unlawful" imprisonment in NY?

2nd Degree = Unlawfully, restraining someone, without their consent. MS = general intent

1st degree = above + risk of serious physical injury.


What are the elements of common law kidnapping?

False imprisonment + either moving the victim or concealing the victim in a secret place.

MS = general in


What are the elements of kidnapping in NY?

2nd degree --> abducting someone

1st degree --> above + ransom; restraint for more than 12 hours with intent to rape, injure or rob; OR the death of victim.


True or false: If the victim is killed accidentally during kidnapping, the resulting charge is 2nd degree (felony) murder.



True or false: If the victim is killed intentionally during a kidnapping of the 1st degree, resulting charge is 1st degree (felony) murder.



What are the elements of forcible rape?

Sexual intercourse, w/o victim's consent, accomplished by (a) force, (b) threat of force, or (c) when victim is unconscious.

MS = General Intent


What are the elements of statutory rape?

Sexual intercourse with someone under the age of consent.

MS = strict liability. (Minority rule - reasonable mistake of age = defense)


What is the age of consent in NY?


D must be at least 21 and victim must be 16 or younger.


What are the common law elements of larceny?

"Thieves Took Carmen's Purse And Isaac's Portfolio."

Taking and
Carrying away the
Personal Property of
Another, with the
Intent to
Permanently retain the property.


True or False: If D intends to give property back (which was previously taken from another) then the taking is STILL considered larceny.


Taking is not larcenous.


True or False: If D had lawful custody of property, he cannot be guilty of larceny for taking it (even if D doesn't own it).


Conversely, D can be guilty of larceny for taking his own property, if someone else had lawful custody of the property when D took it.


True or false: A taking under a claim of right is always larceny, even if the D erroneously believes the property is his.

False - this is the opposite of the erroneous takings rule.

A taking under a claim of right is NEVER larceny, even if DD erroneously believes the property is his.


D takes V's phone from V's bag without permission planning to return the phone once he has used it. After using however, D decides that V's phone is so nice, he's going to keep it - is D guilty of larceny?

Yes. D's conduct constitutes a continuing trespass under these circumstances.


What is the common law definition of embezzlement?

Conversion of the personal property of another by a person already in lawful possession of that property, with the intent to defraud.

MS = specific intent to defraud

Key difference from larceny --> D must already have lawful possession of the property before the taking can be considered embezzlement.


What is the distinction between possession and mere custody (generally for property theft offenses)?

Possession involves more than mere custody. It requires the authority to exercise some discretion over the property


A trustee sipons off trust money and donates the money to her favorite charity, what charge?



A bank security guard wrongfully takes $1,000 from the bank's vault, what charge?


The guard lacks the discretionary authority over the money in the vault that is necessary for embezzlement.


Curator sells a $50,000 painting under his care without the owner's permission. Curator intends to buy the painting back after doubling the proceeds by gambling. But he loses all the money, is this larceny or embezzlement or neither?


The curator's intent to return the painting negates the specific intent necessary for both larceny and embezzlement.


What are the elements of common law false pretenses?

Obtaining title to the personal property of another by intentional false statement, with the intent to defraud.

Key difference from larceny -- D gets only custody of the property, in false pretences, the D gets title meaning ownership.


D says to Victor, "If you give me your cell phone, I will give you $100 cash tomorrow." D had no intention of paying money. V agrees to deal. Is D guilty of false pretenses?

No. Promises of future conduct are insufficient for false pretenses.


How is false pretenses distinguished from larceny by trick?

If D obtains only custody (not title) as a result of the intentional false statement, then the crime is larceny by trick, not false pretenses.

Under false pretenses, D OBTAINS TITLE via false statement.


What are elements of common law robbery?

Larceny +2

Larceny PLUS from another's person or presence by force or threat of immediate injury.

MS = specific intent to steal


True or False: Picking a man's pocket equals sufficient force to qualify is a robbery.



What are the common law elements of forgery?

Making or altering a writing so that it is false.


What is the NY definition of larceny?

Any crime that would be larceny, embezzlement, false pretenses or larceny by trick is all considered LARCENY in NY.

3rd Degree = more then $3,000

2nd Degree = more than $50,000
1st Degree = more than $1,000,000
4th Degree = more than $1,000
Petit = lesser amounts


What is the NY definition of robbery?

3rd Degree = forcible stealing

2nd Degree = forcible stealing plus
(a) D aided by another actually present
(b) victim injured, or
(c) carjacking

1st degree = forcible stealing plus
(i) victim SERIOUSLY injured
(ii) D uses or displays firearm


True or False: If the D can prove that the gun was unloaded or inoperable at time of alleged robbery, the crime is reduced to second degree robbery.



What are the elements of arson under the NY Penal law?

A person commits arson in the first degree if he:

(i) intentionally damages a building or motor vehicle
(ii) by intentionally starting a fire by using an incendiary or explosive device. and
(iii) with knowledge that a nonparticipant is present in the building/vehicle OR circumstances are such that a person's present therein is a reasonable possibility.


What are the elements of felony murder (second degree murder) under the NY Penal law?

A person is guilty of felony murder when he commits any certain enumerated felonies and a nonparticipant is killed in the course of commission of the felony or Ds immediate flight therefrom.

The death of the nonparticipant must be independent of the felony committed.


What are the elements of extortion?

D obtains property from another by means of threats to physically harm the victim or his property.


What are the elements of criminal facilitation under NY Penal Law?

D commits criminal facilitation when he knowingly aids in the commission of a crime but his culpability does not reach accomplice level.

The facilitator need only believe that is was probable that he was rendering aid, and the conduct alleged must have aided in the commission of the object felony.

Facilitator has an affirmative defense i he takes steps to prevent the felony.


What is the exclusionary rule regarding confessions?

Under the exclusionary rule, a confession that was obtained illegally is generally not admissible into evidence.


What are a Ds two distinct rights to counsel?

6th Am -- provides right to counsel after judicial proceedings have begun. This right is claim specific.

5th Am -- right to counsel under Miranda, arises whenever there is a custodial interrogation by the police. This right is not offense specific, once claimed the D cannot be questioned about any crime without counsel present.


Describe the more detailed NY approach to right of counsel.

NY provides an indelible right to counsel:

(i) whenever D is in custody, there is overwhelming police activity and D requests counsel

(ii) at arraignment

(iii) upon the filing of an accusatory instrument; or

(iv) whenever there has been any significant judicial activity


True or False: once a NY right to counsel attaches, it ay not be waived by anyone known to be represented by counsel unless counsel is present.



What is common law burglary?

Breaking and entering the dwelling of another at night with the intent to commit a felony inside.


Under common law burglary, the breaking element includes ___?

Creating or enlarging an opening by at least minimal force.

Includes breaking a window, opening a window, opening a door.

Does not include climbing through an already open window or entering with permission.


D covets Victor's flatscreen TV. Knowing V's family is away on vacation, D breaks into V's house at midnight to steal the TV. What crime has D committed?

Common law burglary.

D broke into house at night to commit the felony of larceny/


What are the elements of third degree burglary in NY?

Entering or remaining in a building unlawfully with the intent to commit a crime inside (any crime, not just felonies).


What are the elements of second degree burglary in NY?

Third degree PLUS (one of the following):

(i) the building is a DWELLING
(ii) the non-participant is injured
(iii) the D carries a weapon


What are the elements of first degree burglary in NY?

Second degree plus knowledge that D is burglarizing dwelling and

(i) non participant is injured, or
(ii) D carries a weapon.


What is common law arson?

The malicious burning of a building.

SM = malice

Burning --> requires material wasting and charring itself that burns.


What are the elements of arson in NY (4th degree start)?

4th --> intentional burning of a building
3rd --> reckless burning of a building
2nd --> third degree where D knows or should have known someone was inside building
1st --> second degree plus an explosive or incendiary device


What is required to be convicted for possession of contraband?

CONTROL for a period of time long enough to have an opportunity to terminate possession.


CONSTRUCTIVE POSSESSION where contraband need not be in D's actual possession, but close enough for him to exercise dominion and control.

MS = knowledge (of possession and character item possessed)


What is required to be convicted for receipt of stolen property?

(a) Receiving possession and control
(b) of stolen personal property.

MS = KNOWING property was obtained illegally, and the INTENT to permanently deprive the owner of his interest in the property.


NY distinctions regarding the crime of receipt of stolen property?

The property must really be stolen.

Property that is recovered or that is used with permission (by police in uncovered sting) is not considered stolen.


What is a the principle?

Under accomplice liability, the principle is the person who commits the crime.


What is the act/mental state required for accomplice liability?

Act = aids or encourages the principle
Mental State = with the intent that the crime be committed.


What is the scope of accomplice liability?

The accomplice is guilty of
(a) all crimes that he aids or encourages, and
(b) all other foreseeable crimes committed along with the aided crime.


True or False: In NY, the accomplice need not specifically intend that the crime be committed.


It is enough if the accomplice specifically intends to aid the principal's conduct.

Therefore, it is possible in NY to be an accomplice to a negligence or reckless crime.


When is a person NOT an accomplice?

(a) mere presence
(b) mere knowledge
(c) victims of crimes


True or False: NY requires intent for accomplice liability. However, mere knowledge can make someone guilty of the (lesser) crime of criminal facilitation?


Intent to aid = accomplice liability

Mere knowledge = criminal facilitation


What is the relevance of the withdrawal principle?

An accomplice can avoid criminal liability by withdrawing BEFORE the crime is committed.


What must an accomplice who ENCOURAGED do to withdraw from a crime?

Simple repudiation of the encouragement before the crime is committed.


What must an accomplice who AIDED the principal do to withdraw from a crime?

Aider must either neutralize the assistance or otherwise prevent the crime from happening (by notifying the authorities)


What must an accomplice do to withdrawal in NY?

RENUNCIATION (affirmative act).

The accomplice must make a substantial effort to prevent the commission of the crime.

Renunciation is in affirmative defense.


What is the common law approach to accessory after the fact?

D must:

(a) Help a principal who has committed a felony
(b) with knowledge that the crime has been committed, and
(c) with the intent to help the principal avoid arrest or conviction.


What is the modern (NY) statutory approach to accessory after the fact?

Now can commit statutory crimes, such as obstruction of justice, harboring a fugitive or (as NY) hindering prosecution.


What are the three inchoate offenses?

(1) Solicitation
(2) Conspiracy
(3) Attempt


What is the definition of solicitation?

Asking someone to commit a crime, with the intent the the crime be committed.

MS = specific intent

Crime = in the asking.


What is the definition of conspiracy?

An agreement between 2 or more people to commit a crime, plus an over act in furtherance of the crime.


What qualifies as an "overt act" for the crime of conspiracy?

ANY ACT, even if merely preparatory, performed by any of the co-conspirators.


What is the mental state required for conspiracy?

MS = specific intent to do two things:

(a) Enter into an agreement (this can be proved by conduct - "concert of action" towards a common goal)

(b) to accomplish the objectives of the conspriacy


True or False: Under the common law, can you have a one-person conspiracy?


Follows the bi-lateral approach where there must be 2 guilty minds.

If all other parties to the agreement are acquitted the last remaining D cannot be convicted.


D1 and D2 agree to kill V, their business partner. However, D2 is actually an undercover FBI agent. D1 is arrested while preparing to kill V. Is D1 guilty of conspiracy to commit murder?

Common law --> NO.

NY --> Yes. The unilateral approach of MPC requires only 1 guilty mind for conspiracy.


What is the Wharton rule?

Rule regarding conspiracy.

When 2 or more people are necessary for the commission of the substantive offense, there is no conspiracy unless MORE parties participate in the agreement than are necessary for the crime.


What is vicarious "pinkerton" liability under the common law?

In additional to conspiracy, a defendant will be liable for other crimes committed by his co-conspirators, so long as those crimes:

(a) were committed in furtherance of the conspiracy's objective AND
(b) were foreseeable.


What is the NY distinction regarding vicarious "pinkerton" liability?

No vicarious liability for one who merely conspires and does not participate in a crime committed by a co-conspirator.


What is the rule regarding impossibility and conspiracy?

Impossibility is never a defense to a charge of conspiracy.


What are the requirements of attempt?

Unlike conspiracy, attempt requires an overt act beyond mere preparation.


What is the NY distinction regarding attempt?

Proximity Test.

Conduct that gets dangerously close to the commission of the crime (strict rule).


What is the MPC/Majority "Substantial Step" Test regarding attempt?

Substantial Step (generous).

Conduct that constitutes a substantial step towards the commission of the crime, provided that conduct strongly corroborates the actor's criminal purpose.


D wants to kill V. His plan is to shoot V as he is walking home from work. At what point has D engaged in enough conduct to be guilty of attempted murder?

(a) D buys an untraceable gun
NY --> No, not close enough
MPC/Majority --> Yes, likely substantial step that strongly corroborates D's criminal purpose.

(b) D takes loaded gun and dries alone V's usual route home
NY --> still no

(c) D tries again later, this time he finds V and raises gun.
NY --> Yes - this conduct is dangerously close


What is the mental state required for attempt?

MS = specific intent to commit the underlying crime.

You cannot attempt unintentional crimes (No attempt for recklessness, negligence or felony murder).


What are the two types of impossibility?

Factual and legal.


What is factual impossibility?

Some physical or factual condition unknown to D prevents the underlying crime from taking place.


What is legal impossibility?

Some legal circumstance or status unknown to the D prevents the successful completion of the underlying crime.


True or False: Legal impossibility is NOT a defense to attempt.


However, legal impossibility is a defense to attempt.


True or False: Under the common law, withdrawal is not a defense to inchoate offenses.


(1) Once D withdraws from conspiracy he will no longer be vicariously liable for crimes committed by his co-conspirator AFTER he left the conspiracy.

(2) HOWEVER, D is still guilty of conspiracy and of all foreseeable crimes committed by co-conspirators prior to his withdrawal.


What is the rule regarding renunciation to inchoate offenses in NY?

Renunciation is a defense to solicitation, conspiracy and attempt, but only if:

(1) D renounces criminal purpose prior to the commission of the substantive offense AND makes sincere and successful effort to prevent commission of offenses,

(2) Renunciation is complete and voluntary, based on genuine change of heart.


True or False: Solicitation and attempt merge with the complete crime.



True or false: Conspiracy generally does merge with the completed crime.

FALSE - MBE favorite (so remember!)


What is the NY distinction regarding the merger of inchoate crimes with the completed crime?

UNLIKE common law rule, solicitation DOES NOT merge with completed offense in NY.


What is the first requirement for an insanity defense?

Mental disease or defect.


What is the majority test used to gauge whether the mental disease or defect renders D legally insane?



What is the M'Naughten test?

Test for insanity defense - purely cognitive.

D must prove that he either:
(a) That he didn't known his conduct was wrong, OR
(b) He did not understand the nature of his conduct.


If the D shows that he either did not KNOW his conduct was wrong OR he did not UNDERSTAND THE NATURE of his conduct - D is attempting what defense?

Insanity defense under the M'Naughten Test.


What is the irresistible impulse test?

Volitional test for insanity defense.

D must prove that he either: (a) was unable to control his actions or (b) was unable to conform his conduct to the law.


What is the MPC Test regarding insanity?

D is considered insane because he lacked the substantial capacity to either (a) appreciate the criminality of his conduct, or (b) conform his conduct to the requirements of law.


What is the rule regarding the insanity defense in New York?

D must prove that he lacked substantial capacity to know or appreciate either:

(a) the NATURE AND CONSEQUENCES of his conduct, or
(b) that his conduct was WRONG.


What is the distinction between insanity and incompetency?

Insanity --> issue is whether D was sane at the TIME OF THE CRIME. (If yes, he was not guilty by reason of insanity.

Incompetency --> issue is whether D AT THE TIME OF TRIAL, (i) cannot understand the nature of proceedings against him OR (ii) cannot assist his lawyer in his defense.


If D cannot understand the nature of proceedings against him OR assist his lawyer in defense, what likely result?

D deemed INCOMPETENT - Trial is postponed until D regains competency.


True or False: Voluntary intoxication can be a defense to specific intent crimes.


But cannot be a defense to malice, general intent, or strict liability crimes.


True or False. Voluntary intoxication can also be a defense to malice, general intent or strict liability crimes.

FALSE - defense to SPECIFIC INTENT crimes only.


Why is voluntary intoxication a valid defense for specific intent crimes?

D has such severe "prostration of the faculties" that the D cannot form the requisite specific intent (Too drunk to form specific intent).


What is the rule regarding the defense of voluntary intoxication in New York?

Can be a defense to intent crimes and knowledge crimes, if the intoxication prevents the defendant from forming the required state of mind.


True or false: in NY, voluntary intoxication can be a defense to crimes of recklessness, negligence or strict liability.



D and his friend P are sitting around drinking beer. After finishing off their fourth six-pack, they decide to create a bonfire by torching the barn next door. As the barn burns, the pair is arrested as they stare at the fire. Can D and P plead intoxication as a defense to the following crimes?

(a) Conspiracy to commit arson.
(b) Arson at CL.
(c) Arson in NY.

(a) Conspiracy to commit arson:
MBE --> yes defense valid, conspiracy is specific intent crime
NY --> yes conspiracy requires intent

(b) Arson at CL --> No, defense invalid because arson is malice crime.

(c) 3rd D Arson in NY --> Yes, defense valid bc 3rd D arson in NY requires intentional burning.


What is the key to remember with the competency defense of infancy?

The rule of sevens


What is the rule of sevens?

Key to infancy defense.

Age 7 or Below -- if D is seven or below at the time of crime, prosecution is NOT ALLOWED.

Age 14 or Below -- there is a rebuttable presumption against prosecution

Age 14 or Older -- prosecution is allowed.


What is the NY rule regarding the defense of infancy?

(i) 13 and below - prosecution for juvenile delinquency only, no criminal prosecution as adult

(ii) Age 13 -- criminal prosecution allowed as afult for SECOND DEGREE MURDER.

(iii) Age 14/15 -- prosecution as adult allowed for serious crimes against persons or property

(iv) Age 16 -- criminal prosecution as adult allowed for any crime.


Regarding the NY rules on infancy, at what age can a child D be charged as an adult for any crime?

Age 16 or older.


What is the rule regarding the defense of MISTAKE of fact at common law?

D's mistake of fact will be a defense depends upon the mental state for the crime AND whether the mistake is reasonable or unreasonable.


True or False: Any mistake of fact (even an unreasonable one) will be a defense to a SPECIFIC INTENT crime.



True or False: Only an unreasonable mistake of fact will be a defense to a malice or general intent crime.



True or False. Mistake of fact can be a defense for strict liability crimes.



What is the key thing to remember regarding an unreasonable mistake of fact?

It is ONLY a defense to specific intent crimes.


Under NY law, what is the rule regarding a mistake of fact defense?

It is only a defense if the mistake negates the required mental state, meaning:

Crimes of intent, knowledge or recklessness - any mistake of fact (even unreasonable) is usually a defense.

Crimes of negligence - only a reasonable mistake of fact is a defense.

Strict liability - mistake of fact never a defense


What is the rule regarding a mistake of law defense?

Both at CL and in NY, if is generally NOT a defense.

Exception -- if statute makes knowledge of the law an element of the crime (ex. "selling phony Rolex watches KNOWING it is unlawful to do so")


What is the distinction between deadly and non-deadly force with self-defense?

Deadly -- use of guns or knives

Non-deadly -- use of shoves and punches


What is the rule of non-deadly force regarding self-defense?

A D may use non-deadly force in self-defense if:

(i) Reasonably necessary
(ii) to protect against an IMMEDIATE use of
(iii) UNLAWFUL force against himself.


What is the rule for the use of deadly force under self-defense?

A D may use deadly force in self-defense, if he is facing an imminent threat of death or serious bodily injury.


What is the initial aggressor rule?

Regarding self-defense, a D may not use deadly force if he is the initial aggressor (person who started confrontation).


When can an initial aggressor "regain" his right to use deadly force in self-defense?

(a) Withdrawal --> initial aggressor withdraws from fight and communicates that withdrawal to the other person OR

(b) Victim suddenly escalates --> escalates a nondeadly fight into a deadly one.


True or False. In NY, the initial aggressor is not required to withdraw before using deadly force in self-defense even if the other party suddenly escalates.

FALSE - initial aggressor MUST WITHDRAW before using deadly force, even with sudden escalation.


What is the majority rule regarding a requirement to retreat before using deadly force in self-defense



True or False. In NY, retreat is required UNLESS (i) D cannot retreat in complete safety, or (ii) D is in home.


Unable to retreat in complete safety OR in home are exceptions to general requirement to retreat before using deadly force in self-defense.


D punches V in nose. In response, V pulls out knife and runs at D. Just before V stabs D, D shoots V with gun, killing him. Is D guilty of homicide?

(a) MBE
(b) NY

(a) MBE --> No, although D is initial aggressor, he was using NON-deadly force. V escalated, so D was able to regain the right to use deadly force in self-defense.

(b) NY --> YES, D would be guilty of murder bc NY does not recognize sudden escalation exception to the initial aggressor rule.


What happens if D is mistaken about the need to use unlawful force is self-defense?

(i) Reasonable mistake - complete defense
(ii) Unreasonable mistake -- no defense at all (note there is a minority rule that an unreasonable mistake will mitigate but no exonerate)


D is walking down street, late at night, by himself. V suddenly appears and walks toward D. D nervously asks V what he wants. V doesn't respond and instead reaches for his waistband. Afraid V is going to pull a gun, D pulls gun and kills V. V was just reaching for wallet.

Is D guilty of homicide offense?

Depends on if jury believes deadly force was reasonably (not guilty of homicide) or unreasonable (guilty).

If jury finds mistake was unreasonable, D will be guilty of:
(i) Majority/NY --> Murder (no defense)
(ii) Minority --> Manslaughter (partial defense)


If the final scene from Gran Torino (old man reaches for lighter and is killed by hoodlums who think he is reaching for a gun) occurs in NY, what crime will the hoodlums be convicted of, if they claim self-defense?

Murder, D's mistake about the need to use unlawful force is NO DEFENSE AT ALL.


When can force be used to complete a crime?

Nondeadly force may be used if reasonably necessary to prevent any serious breach of the peace.

Deadly force may only be used to prevent a felony risking human life.


True or False: deadly force may be used to defend property (loaded spring gun).

FALSE. Deadly force may not be used to defend property.

However, deadly force may be used IN DWELLING when (a) intruder entered in TUMULTUOUS MANNER and (b) occupant reasonable believes force is necessary to PREVENT PERSONAL ATTACK.


What is the rule regarding resisting arrest?

Majority --> if arrest is unlawful, the D may use non-deadly force to resist the arresting officer.

NY --> force may NOT be used to resist arrest, even an unlawful one, unless officer uses excessive force.


What is the necessity defense?

Defense to criminal conduct if the D reasonably believes that the conduct was necessary to prevent a greater harm.


Under what limitations is the defense of necessity unavailable?

(1) D causes death of another person to protect property, or

(2) The D is at fault in creating situation that creates a choice of evils.


What is the defense of duress?

Defense that D was coerced to commit a crime bc of threat from another person of imminent death or serious bodily injury to himself or a close family member.


True or False: Duress cannot be a defense to homicide.



What is the defense of entrapment?

If the government unfairly tempted the D to commit the crime, he may claim entrapment. Only works if:

(a) criminal design originated with the government, AND
(b) D was not predisposed to commit the crime.