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{{ | ==I. Jurisdiction and General Matters == | ||
# '''Jurisdiction''' | |||
## Generally a state has jx. over a crime if that sate is the legal situs of the crime. Either the conduct happened there or the result happened there. More than one state may have jx. over a single crime. | |||
## Crimes of omission – jx. lies where the act should have been performed. | |||
# '''Merger''' | |||
## '''''Generally''''', there is no merger. You can be convicted of more than one crime from a single act. | |||
## '''''But''''', there is merger for '''''solicitation '''''and '''''attempt'''''. That is, solicitation and attempt merge into the substantive offense. Thus, actually committing the crime is a complete defense to attempt. | |||
## Note: conspiracy does NOT merge with the substantive offensive. So you can be convicted of conspiracy to rob and robbery. | |||
==II. Essential Elements of a Crime== | |||
''A crime always requires proof of a physical act and a mental state.'' | |||
# '''Physical Act''' | |||
## Any '''''bodily movement'''''. Except an act that is: (1) involuntary, (2) reflective or convulsive (e.g. epileptic seizure), or (3) performed while unconscious or asleep (sleep-walking). | |||
## Omission: failure to act gives rise liability only if | |||
### There is a specific duty to act. May arise from | |||
#### Statute | |||
#### Contract | |||
#### Relationship between the parties (parents, spouses, etc.) | |||
#### Voluntarily assuming duty of care for someone else, and then failing to adequately perform it (rescue) | |||
#### Where your conduct created the peril | |||
### The D has knowledge of the facts giving rise to the duty to act | |||
### It is reasonably possible to perform the duty. | |||
# '''Mental State''' | |||
## '''''Specific Intent''''': requires intent to engage in proscribed conduct. All defenses that negate intent are available. Subjective test. | |||
{| style="border-spacing:0;width:5.9236in;" | |||
|- | |||
| style="border-top:0.5pt solid #000000;border-bottom:0.5pt solid #000000;border-left:0.5pt solid #000000;border-right:none;padding-top:0in;padding-bottom:0in;padding-left:0.075in;padding-right:0.075in;" | '''''Solicitation''''' | |||
| style="border:0.5pt solid #000000;padding-top:0in;padding-bottom:0in;padding-left:0.075in;padding-right:0.075in;" | Intent to have the person solicited commit the crime | |||
|- | |||
| style="border-top:0.5pt solid #000000;border-bottom:0.5pt solid #000000;border-left:0.5pt solid #000000;border-right:none;padding-top:0in;padding-bottom:0in;padding-left:0.075in;padding-right:0.075in;" | '''''Conspiracy''''' | |||
| style="border:0.5pt solid #000000;padding-top:0in;padding-bottom:0in;padding-left:0.075in;padding-right:0.075in;" | Intent to have the crime completed | |||
|- | |||
| style="border-top:0.5pt solid #000000;border-bottom:0.5pt solid #000000;border-left:0.5pt solid #000000;border-right:none;padding-top:0in;padding-bottom:0in;padding-left:0.075in;padding-right:0.075in;" | '''''Attempt''''' | |||
| style="border:0.5pt solid #000000;padding-top:0in;padding-bottom:0in;padding-left:0.075in;padding-right:0.075in;" | Intent to complete the crime | |||
|- | |||
| style="border-top:0.5pt solid #000000;border-bottom:0.5pt solid #000000;border-left:0.5pt solid #000000;border-right:none;padding-top:0in;padding-bottom:0in;padding-left:0.075in;padding-right:0.075in;" | '''''First Degree Murder''''' | |||
| style="border:0.5pt solid #000000;padding-top:0in;padding-bottom:0in;padding-left:0.075in;padding-right:0.075in;" | Pre-meditation (distinguished from murder (CL or 2<sup>nd</sup> degree) which requires malice). | |||
|- | |||
| style="border-top:0.5pt solid #000000;border-bottom:0.5pt solid #000000;border-left:0.5pt solid #000000;border-right:none;padding-top:0in;padding-bottom:0in;padding-left:0.075in;padding-right:0.075in;" | '''''Assault ''''' | |||
| style="border:0.5pt solid #000000;padding-top:0in;padding-bottom:0in;padding-left:0.075in;padding-right:0.075in;" | Intent to commit a battery (as attempted battery, rather than threat) | |||
|- | |||
| style="border-top:0.5pt solid #000000;border-bottom:0.5pt solid #000000;border-left:0.5pt solid #000000;border-right:none;padding-top:0in;padding-bottom:0in;padding-left:0.075in;padding-right:0.075in;" | '''''Larceny & robbery''''' | |||
| style="border:0.5pt solid #000000;padding-top:0in;padding-bottom:0in;padding-left:0.075in;padding-right:0.075in;" | Intent to permanently deprive the other of his interest in the property taken | |||
|- | |||
| style="border-top:0.5pt solid #000000;border-bottom:0.5pt solid #000000;border-left:0.5pt solid #000000;border-right:none;padding-top:0in;padding-bottom:0in;padding-left:0.075in;padding-right:0.075in;" | '''''Burglary''''' | |||
| style="border:0.5pt solid #000000;padding-top:0in;padding-bottom:0in;padding-left:0.075in;padding-right:0.075in;" | Intent to a commit a felony in the dwelling | |||
|- | |||
| style="border-top:0.5pt solid #000000;border-bottom:0.5pt solid #000000;border-left:0.5pt solid #000000;border-right:none;padding-top:0in;padding-bottom:0in;padding-left:0.075in;padding-right:0.075in;" | '''''False Pretenses''''' | |||
| style="border:0.5pt solid #000000;padding-top:0in;padding-bottom:0in;padding-left:0.075in;padding-right:0.075in;" | Intent to defraud | |||
|- | |||
| style="border-top:0.5pt solid #000000;border-bottom:0.5pt solid #000000;border-left:0.5pt solid #000000;border-right:none;padding-top:0in;padding-bottom:0in;padding-left:0.075in;padding-right:0.075in;" | '''''Forgery''''' | |||
| style="border:0.5pt solid #000000;padding-top:0in;padding-bottom:0in;padding-left:0.075in;padding-right:0.075in;" | Intent to defraud | |||
|- | |||
| style="border-top:0.5pt solid #000000;border-bottom:0.5pt solid #000000;border-left:0.5pt solid #000000;border-right:none;padding-top:0in;padding-bottom:0in;padding-left:0.075in;padding-right:0.075in;" | '''''Embezzlement''''' | |||
| style="border:0.5pt solid #000000;padding-top:0in;padding-bottom:0in;padding-left:0.075in;padding-right:0.075in;" | Intent to defraud | |||
|} | |||
## '''''Malice''''': requires a reckless disregard of an obvious or high risk that the particular harmful result will occur. Subjective test. | |||
### Defenses to specific intent crimes do not apply to malice crimes | |||
### Only applies to common law '''''murder''''' and '''''arson''''' | |||
## '''''General Intent''''': requires awareness of acting in a proscribed manner. Subjective test. | |||
### Catch-all category. | |||
### Includes: battery, rape, kidnapping, false imprisonment, assault as a threat | |||
## '''''Strict Liability''''': requires conscious commission of a proscribed act. Objective test. | |||
### If the crime is (1) in the administrative, regulatory, or morality area and (2) there are no adverbs like knowingly, willfully, or intentionally → then it is likely be a SL crime. | |||
### Any defense that negates intention cannot be a defense | |||
### E.g. statutory rape, selling liquor to minors, bigamy (some jurisdictions) | |||
## '''''Model Penal Code''''' – for statutory violations | |||
### '''''Purposely''''': requires that D had conscious objective to engage in the proscribed conduct. Subjective test. | |||
### '''''Knowingly''''': requires awareness that conduct is of a particular nature or will cause a particular result. Subjective test. | |||
### '''''Recklessly''''': requires conscious disregard of a substantial known risk. Subjective test. | |||
### '''''Negligently''''': requires failure to be aware of a substantial risk. Objective test. | |||
## '''''Transferred Intent''''' – D may be liable under the doctrine of transferred intent where she intends the harm that is actually caused, but to a different victim or object. | |||
### Results in two crimes. E.g. shoot at someone, miss, but hit someone else. You’re guilty of attempted murder against V1 and actual murder against V2. (no merger issues b/c there are two different victims). | |||
<div style="margin-left:0.75in;margin-right:0in;"></div> | |||
==III. Accomplice Liability== | |||
# Requires that the person was | |||
## '''''Actively involved and the crime''''' (by giving aid, counsel or encouragement to the principal) | |||
## With '''''intent''''' to encourage the crime | |||
# What is NOT sufficient for accomplice liability | |||
## Merely being present when the crime is committed | |||
## Mere knowledge that a crime could result (no accomplice liability for selling gasoline to a person who later uses the gas to commit an arson) | |||
# '''''Liability''''': Accomplices are liable for the crime itself AND all other foreseeable crimes. | |||
# '''''Withdrawal '''''is a defense, as long as withdrawal occurs before the crime becomes unstoppable. | |||
## '''''Repudiation '''''is sufficient withdrawal for mere encouragement | |||
## '''''Attempt to neutralize '''''is required if participation went beyond mere encouragement | |||
## '''''Notifying the police '''''or taking other action re prevent the crime is also sufficient. | |||
==IV. Inchoate Offenses – Incomplete Offenses== | |||
# '''Solicitation''': '''''inciting, counseling, advising, urging, or commanding someone to commit a''''' '''''crime''''' with the '''''intent''''' that the person solicited commit the crime. | |||
## Crime ends when you ask them if the person agrees to commit the crime → it becomes a conspiracy → solicitation '''''merges''''' with the conspiracy → the only crime left is conspiracy. | |||
## '''''Defenses''''': withdrawal is NOT a defense to solicitation. Also, it is not a defense that the person solicited is not convicted, nor that the offense solicited could not in fact have been successful. | |||
# '''Conspiracy''': two people must be pursuing an unlawful objective. | |||
## '''''Requires''''': | |||
### An '''''agreement''''' between '''''two or more people''''' (does not have to be express. It may be inferred from joint activity. Parties do not have to know each other.) | |||
### An '''''intent to agree''''', | |||
### An '''''intent to pursue an unlawful objective''''' | |||
### [the majority of states also require an '''''overt act''''']. | |||
## '''''No Merger''''': You can be convicted of conspiring to do something and the underlying crime. | |||
## '''''Liability''''': each conspirator is liable for all the crimes of co-conspirators if those crimes were committed in furtherance of the conspiracy and were foreseeable. | |||
## '''''Defenses''''': | |||
### '''''Impossibility''''' is no defense to conspiracy. | |||
### '''''Withdrawal''''': D can withdraw from liability for the other conspirator’s subsequent crimes. But, D can never withdraw from the conspiracy itself. | |||
# '''Attempt''': an act done with intent to commit a crime that falls short of completing the crime. | |||
## '''''Requires''''': (1) '''''specific intent''''' AND (2) a '''''substantial step''''' [beyond mere preparation] in the direction of the commission of the crime. | |||
## '''''Defenses''''': | |||
### Factual impossibility is NOT a defense (e.g. not a defense to attempted robbery that the intended victim had not money) | |||
### Legal impossibility IS a defense (e.g. that it is no crime to that which the D intended) | |||
### Abandonment is NOT a defense | |||
## '''''There IS Merger''''': D cannot be found guilty of both attempt and the completed crime. | |||
==V. Defenses== | |||
''Generally the defenses apply to ALL crimes, EXCEPT: (1) '''voluntary intoxication''' and (2) '''unreasonable mistake of fact''', which apply exclusively to specific intent crimes.'' | |||
# '''Insanity – 4 Formulations''' | |||
## '''M’Naghten Rule''': D is entitled to acquittal only if due to his mental illness, at the time of his conduct, D lacked the ability to (1) know the wrongfulness of his actions or (2) understand the nature and quality of his actions. | |||
## '''Irresistible Impulse Test''': D is entitled to acquittal only if due to his mental illness, D lacked the capacity to (1) control his actions or (2) conform his conduct to the law (no self-control, free-will) | |||
## '''Durham Test''': D is entitled to acquittal if his conduct was the product of mental illness. | |||
## '''Model Penal Code''': D is entitled to acquittal if due to his mental illness D lacked the substantial capacity to either (1) appreciate the criminality of his conduct or (2) conform his conduct to the requirements of the law. | |||
# '''Intoxication''' | |||
## '''''Voluntary Intoxication''''': intentional talking (w/out duress) of a substance know to be intoxicating (defense to specific intent crimes if the intoxication prevents formation of the required intent) | |||
## '''''Involuntary Intoxication''''': taking an intoxicating substance w/out knowledge of its nature, under duress, or pursuant to medical advice (treated as a mental illness – apply appropriate insanity test) | |||
# '''Infancy''' | |||
## Under 7 → no criminal liability | |||
## Under 14 → rebuttable presumption of no criminal liability | |||
# '''Self-Defense''' | |||
## '''''Non-deadly force''''': A V may use non-deadly force in self-defense anytime that V reasonably believes that force is necessary to protect self | |||
## '''''Deadly force''''' | |||
### '''''Majority''''': V may use deadly force anytime the V reasonably believes that deadly force is about to be used on him | |||
### '''''Minority''''': V may use deadly force '''''only after retreat''''' where safe to do so. EXCEPT: | |||
#### No duty to retreat from your home | |||
#### No duty to retreat from a rape or robbery | |||
#### Police officer has no duty to retreat | |||
# '''Defense of a Dwelling''' | |||
## '''''Non-deadly force''''': V may use non-deadly force he reasonably believes is necessary to prevent or end unlawful entry | |||
## '''''Deadly Force''''': You may '''''NEVER''''' use deadly force for the sole purpose of defending your property. '''''But''''', deadly force may be used to protect persons inside home. | |||
# '''Duress''' | |||
## Where someone reasonably believes that another person would imminently inflict death or great bodily harm upon him or a member of his family. (e.g. when someone holds a gun on you and says if you don’t rob that bank I’m going to kill you). | |||
## A defense against all crimes '''''except homicide''''' | |||
# '''Mistake of Fact''': a defense only when it '''''negates intention'''''. | |||
{| style="border-spacing:0;width:5.9236in;" | |||
|- | |||
| align=center style="border-top:0.5pt solid #000000;border-bottom:0.5pt solid #000000;border-left:0.5pt solid #000000;border-right:none;padding-top:0in;padding-bottom:0in;padding-left:0.075in;padding-right:0.075in;" | '''Mental state of the crime charged''' | |||
| align=center style="border:0.5pt solid #000000;padding-top:0in;padding-bottom:0in;padding-left:0.075in;padding-right:0.075in;" | '''Application of the defense''' | |||
|- | |||
| style="border-top:0.5pt solid #000000;border-bottom:0.5pt solid #000000;border-left:0.5pt solid #000000;border-right:none;padding-top:0in;padding-bottom:0in;padding-left:0.075in;padding-right:0.075in;" | Specific Intent | |||
| style="border:0.5pt solid #000000;padding-top:0in;padding-bottom:0in;padding-left:0.075in;padding-right:0.075in;" | Any mistake (reasonable or unreasonable) | |||
|- | |||
| style="border-top:0.5pt solid #000000;border-bottom:0.5pt solid #000000;border-left:0.5pt solid #000000;border-right:none;padding-top:0in;padding-bottom:0in;padding-left:0.075in;padding-right:0.075in;" | Malice and general intent together | |||
| style="border:0.5pt solid #000000;padding-top:0in;padding-bottom:0in;padding-left:0.075in;padding-right:0.075in;" | Reasonable mistakes only | |||
|- | |||
| style="border-top:0.5pt solid #000000;border-bottom:0.5pt solid #000000;border-left:0.5pt solid #000000;border-right:none;padding-top:0in;padding-bottom:0in;padding-left:0.075in;padding-right:0.075in;" | Strict liability | |||
| style="border:0.5pt solid #000000;padding-top:0in;padding-bottom:0in;padding-left:0.075in;padding-right:0.075in;" | NEVER | |||
|- | |||
|} | |||
# '''Consent''' | |||
## Generally NOT a defense UNLESS the crime requires lack of consent of the victim (e.g. rape) | |||
## Where consent is required, defense applicable only if: | |||
### Consent is freely given | |||
### The party is capable of consenting AND | |||
### No fraud was used to obtain the consent. | |||
# '''Entrapment''' – very narrow defense. Available only if: | |||
## The '''''criminal design originated with law enforcement''''' officers and | |||
## The D was '''''not predisposed''''' to commit the crime prior to contract by the government | |||
==VI. Common Law Crimes== | |||
# '''Assault & Battery ''' | |||
## '''''Battery''''': an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching (general intent crime). | |||
## '''''Assault''''': either (1) an attempt to commit battery (specific intent crime) or (2) a threat (general intent crime) (Remember '''''merger''''': if there has been a touching of the V, the crime can only be battery, not assault). | |||
# '''Homicide''' | |||
## '''''Murder''''' (CL or 2<sup>nd</sup> Degree): unlawful killing of a human being with malice aforethought. Malice aforethought exists if, the D had: | |||
### Intent '''''to kill'''''<nowiki>;</nowiki> | |||
### Intent '''to inflict great bodily injury'''<nowiki>;</nowiki> | |||
### '''''Reckless indifference to an unjustifiably high risk to human life''''' (e.g. Russian Roulette); OR | |||
### Intent to '''''commit a felony''''' (felony murder) | |||
## '''''Voluntary Manslaughter''''': a killing that would be murder but for the existence of adequate provocation. Provocation is adequate only if: | |||
### The provocation would arouse '''''sudden and intense passion''''' in the mind of an '''''ordinary person''''', causing him to lose self-control | |||
### The D was '''''in fact provoked''''' | |||
### There was '''''not sufficient time '''''between provocation and killing for passions of a reasonable person to cool; AND | |||
### The D '''''in fact did not cool off''''' between the provocation and the killing. | |||
## '''''Involuntary Manslaughter''''': a killing that was committed: | |||
### With criminal negligence OR | |||
### During the commission of a misdemeanor or an un-enumerated felony | |||
## '''''Felony Murder''''': any death caused in the commission of, or in an attempt to commit, a felony is murder. | |||
### '''''CL''''': enumerated felonies include: burglary, arson, rape, etc. (must be inherently dangerous) | |||
### '''''Limitations''''' | |||
#### The '''''D must be found guilty''''' of the underlying felony. If D has a defense to the underlying felony, he has a defense against felony murder. | |||
#### The '''''felony must be independent '''''from the murder (commission of aggravated battery that causes a V’s death does not qualify as an underlying felony) | |||
#### Death must be '''''foreseeable''''' | |||
#### Where D reaches a point of '''''temporary safety''''', any subsequent deaths ≠ felony murder. But deaths occurring during D’s immediate flight = felony murder | |||
#### D is NOT liable for the death of a '''''co-felon''''' that results from resistance of a victim or the police. | |||
# '''Sex offenses''' | |||
## '''''Rape''''': unlawful intercourse of a woman by a man, not her husband, without her effective consent. Note: slightest penetration completes the crime of rape. Lack of effective consent: | |||
### Intercourse is accomplished by actual force | |||
### Intercourse is accomplished by threats of great and immediate bodily harm | |||
### The V is incapable of consenting due to unconsciousness, intoxication, or mental cond. | |||
## '''''Statutory rape''''': intercourse with a female under the age of consent; it is not necessary to show lack of consent. Reasonable mistake as to age is irrelevant. This is a strict liability crime. | |||
# '''Property Offenses''' | |||
## '''''Larceny''''' – stealing. Requires | |||
### A wrongful taking | |||
### A carrying away (any movement_ | |||
### Of the personal property | |||
### Of another | |||
### By trespass (without consent) | |||
### With intent to deprive permanently (intent must exist at the time of the taking) | |||
###*''Note: taking property in the belief that is yours, or that you have some right to it ≠ larceny'' | |||
## '''''Embezzlement''''': | |||
### The fraudulent | |||
### Conversion (i.e. dealing w/ the property in a manner inconsistent w/ the arrangement by which D has possession) | |||
### Of personal property | |||
### Of another | |||
### By a person in lawful possession of that property | |||
### With intent to defraud | |||
## '''''False Pretenses''''': | |||
### Obtaining title; | |||
### To personal property of another; | |||
### By intentional false statement of past or existing fact | |||
### With intent to defraud by the other. | |||
## '''''Robbery''''' (larceny + assault) requires: | |||
### A wrongful taking | |||
### Of personal property of another | |||
### From the other’s person or presence | |||
### By force or threat of immediate physical harm | |||
### With the intent to permanently deprive him of it | |||
# '''Offenses Against Habitation''' | |||
## '''''Burglary''''': requires | |||
### A breaking (creating or enlarging an opening by at least minimal force, fraud, or intimidation) | |||
### And entry (placing any portion of the body inside) | |||
### Of a dwelling | |||
### Of another (question of occupancy not ownership) | |||
### At nighttime | |||
### With the intent to commit a felony inside (intent must exist at the time of entry) | |||
## '''''Arson''''': | |||
### The malicious | |||
### Burning (not water damage, smoke or explosion) | |||
### Of the dwelling | |||
### Of another | |||
==Hot Topics in Criminal Law== | |||
# Mental states for crime – general and specific | |||
# Transferred intent | |||
# Accomplice liability – liable for the crime itself and all other foreseeable crimes | |||
# Inchoate offenses | |||
## Solicitation | |||
## Conspiracy* | |||
## Attempt | |||
# Hot Defenses | |||
## Intoxication | |||
## Infancy | |||
## Self-defense | |||
## Mistake of facts* | |||
# Crimes | |||
## Homicide + 5 defenses to felony murder | |||
## Distinguish the 3 common law property crimes (larceny, embezzlement, false pretenses) | |||
## Robbery | |||
## Burglary | |||
## Arson | |||
[[Category:General Outlines]] | |||
[[ | ==See also== | ||
*[[RICO]] |
Latest revision as of 17:22, May 28, 2022
I. Jurisdiction and General Matters[edit | edit source]
- Jurisdiction
- Generally a state has jx. over a crime if that sate is the legal situs of the crime. Either the conduct happened there or the result happened there. More than one state may have jx. over a single crime.
- Crimes of omission – jx. lies where the act should have been performed.
- Merger
- Generally, there is no merger. You can be convicted of more than one crime from a single act.
- But, there is merger for solicitation and attempt. That is, solicitation and attempt merge into the substantive offense. Thus, actually committing the crime is a complete defense to attempt.
- Note: conspiracy does NOT merge with the substantive offensive. So you can be convicted of conspiracy to rob and robbery.
II. Essential Elements of a Crime[edit | edit source]
A crime always requires proof of a physical act and a mental state.
- Physical Act
- Any bodily movement. Except an act that is: (1) involuntary, (2) reflective or convulsive (e.g. epileptic seizure), or (3) performed while unconscious or asleep (sleep-walking).
- Omission: failure to act gives rise liability only if
- There is a specific duty to act. May arise from
- Statute
- Contract
- Relationship between the parties (parents, spouses, etc.)
- Voluntarily assuming duty of care for someone else, and then failing to adequately perform it (rescue)
- Where your conduct created the peril
- The D has knowledge of the facts giving rise to the duty to act
- It is reasonably possible to perform the duty.
- There is a specific duty to act. May arise from
- Mental State
- Specific Intent: requires intent to engage in proscribed conduct. All defenses that negate intent are available. Subjective test.
Solicitation | Intent to have the person solicited commit the crime |
Conspiracy | Intent to have the crime completed |
Attempt | Intent to complete the crime |
First Degree Murder | Pre-meditation (distinguished from murder (CL or 2nd degree) which requires malice). |
Assault | Intent to commit a battery (as attempted battery, rather than threat) |
Larceny & robbery | Intent to permanently deprive the other of his interest in the property taken |
Burglary | Intent to a commit a felony in the dwelling |
False Pretenses | Intent to defraud |
Forgery | Intent to defraud |
Embezzlement | Intent to defraud |
- Malice: requires a reckless disregard of an obvious or high risk that the particular harmful result will occur. Subjective test.
- Defenses to specific intent crimes do not apply to malice crimes
- Only applies to common law murder and arson
- General Intent: requires awareness of acting in a proscribed manner. Subjective test.
- Catch-all category.
- Includes: battery, rape, kidnapping, false imprisonment, assault as a threat
- Strict Liability: requires conscious commission of a proscribed act. Objective test.
- If the crime is (1) in the administrative, regulatory, or morality area and (2) there are no adverbs like knowingly, willfully, or intentionally → then it is likely be a SL crime.
- Any defense that negates intention cannot be a defense
- E.g. statutory rape, selling liquor to minors, bigamy (some jurisdictions)
- Model Penal Code – for statutory violations
- Purposely: requires that D had conscious objective to engage in the proscribed conduct. Subjective test.
- Knowingly: requires awareness that conduct is of a particular nature or will cause a particular result. Subjective test.
- Recklessly: requires conscious disregard of a substantial known risk. Subjective test.
- Negligently: requires failure to be aware of a substantial risk. Objective test.
- Transferred Intent – D may be liable under the doctrine of transferred intent where she intends the harm that is actually caused, but to a different victim or object.
- Results in two crimes. E.g. shoot at someone, miss, but hit someone else. You’re guilty of attempted murder against V1 and actual murder against V2. (no merger issues b/c there are two different victims).
- Malice: requires a reckless disregard of an obvious or high risk that the particular harmful result will occur. Subjective test.
III. Accomplice Liability[edit | edit source]
- Requires that the person was
- Actively involved and the crime (by giving aid, counsel or encouragement to the principal)
- With intent to encourage the crime
- What is NOT sufficient for accomplice liability
- Merely being present when the crime is committed
- Mere knowledge that a crime could result (no accomplice liability for selling gasoline to a person who later uses the gas to commit an arson)
- Liability: Accomplices are liable for the crime itself AND all other foreseeable crimes.
- Withdrawal is a defense, as long as withdrawal occurs before the crime becomes unstoppable.
- Repudiation is sufficient withdrawal for mere encouragement
- Attempt to neutralize is required if participation went beyond mere encouragement
- Notifying the police or taking other action re prevent the crime is also sufficient.
IV. Inchoate Offenses – Incomplete Offenses[edit | edit source]
- Solicitation: inciting, counseling, advising, urging, or commanding someone to commit a crime with the intent that the person solicited commit the crime.
- Crime ends when you ask them if the person agrees to commit the crime → it becomes a conspiracy → solicitation merges with the conspiracy → the only crime left is conspiracy.
- Defenses: withdrawal is NOT a defense to solicitation. Also, it is not a defense that the person solicited is not convicted, nor that the offense solicited could not in fact have been successful.
- Conspiracy: two people must be pursuing an unlawful objective.
- Requires:
- An agreement between two or more people (does not have to be express. It may be inferred from joint activity. Parties do not have to know each other.)
- An intent to agree,
- An intent to pursue an unlawful objective
- [the majority of states also require an overt act].
- No Merger: You can be convicted of conspiring to do something and the underlying crime.
- Liability: each conspirator is liable for all the crimes of co-conspirators if those crimes were committed in furtherance of the conspiracy and were foreseeable.
- Defenses:
- Impossibility is no defense to conspiracy.
- Withdrawal: D can withdraw from liability for the other conspirator’s subsequent crimes. But, D can never withdraw from the conspiracy itself.
- Requires:
- Attempt: an act done with intent to commit a crime that falls short of completing the crime.
- Requires: (1) specific intent AND (2) a substantial step [beyond mere preparation] in the direction of the commission of the crime.
- Defenses:
- Factual impossibility is NOT a defense (e.g. not a defense to attempted robbery that the intended victim had not money)
- Legal impossibility IS a defense (e.g. that it is no crime to that which the D intended)
- Abandonment is NOT a defense
- There IS Merger: D cannot be found guilty of both attempt and the completed crime.
V. Defenses[edit | edit source]
Generally the defenses apply to ALL crimes, EXCEPT: (1) voluntary intoxication and (2) unreasonable mistake of fact, which apply exclusively to specific intent crimes.
- Insanity – 4 Formulations
- M’Naghten Rule: D is entitled to acquittal only if due to his mental illness, at the time of his conduct, D lacked the ability to (1) know the wrongfulness of his actions or (2) understand the nature and quality of his actions.
- Irresistible Impulse Test: D is entitled to acquittal only if due to his mental illness, D lacked the capacity to (1) control his actions or (2) conform his conduct to the law (no self-control, free-will)
- Durham Test: D is entitled to acquittal if his conduct was the product of mental illness.
- Model Penal Code: D is entitled to acquittal if due to his mental illness D lacked the substantial capacity to either (1) appreciate the criminality of his conduct or (2) conform his conduct to the requirements of the law.
- Intoxication
- Voluntary Intoxication: intentional talking (w/out duress) of a substance know to be intoxicating (defense to specific intent crimes if the intoxication prevents formation of the required intent)
- Involuntary Intoxication: taking an intoxicating substance w/out knowledge of its nature, under duress, or pursuant to medical advice (treated as a mental illness – apply appropriate insanity test)
- Infancy
- Under 7 → no criminal liability
- Under 14 → rebuttable presumption of no criminal liability
- Self-Defense
- Non-deadly force: A V may use non-deadly force in self-defense anytime that V reasonably believes that force is necessary to protect self
- Deadly force
- Majority: V may use deadly force anytime the V reasonably believes that deadly force is about to be used on him
- Minority: V may use deadly force only after retreat where safe to do so. EXCEPT:
- No duty to retreat from your home
- No duty to retreat from a rape or robbery
- Police officer has no duty to retreat
- Defense of a Dwelling
- Non-deadly force: V may use non-deadly force he reasonably believes is necessary to prevent or end unlawful entry
- Deadly Force: You may NEVER use deadly force for the sole purpose of defending your property. But, deadly force may be used to protect persons inside home.
- Duress
- Where someone reasonably believes that another person would imminently inflict death or great bodily harm upon him or a member of his family. (e.g. when someone holds a gun on you and says if you don’t rob that bank I’m going to kill you).
- A defense against all crimes except homicide
- Mistake of Fact: a defense only when it negates intention.
Mental state of the crime charged | Application of the defense |
Specific Intent | Any mistake (reasonable or unreasonable) |
Malice and general intent together | Reasonable mistakes only |
Strict liability | NEVER |
- Consent
- Generally NOT a defense UNLESS the crime requires lack of consent of the victim (e.g. rape)
- Where consent is required, defense applicable only if:
- Consent is freely given
- The party is capable of consenting AND
- No fraud was used to obtain the consent.
- Entrapment – very narrow defense. Available only if:
- The criminal design originated with law enforcement officers and
- The D was not predisposed to commit the crime prior to contract by the government
VI. Common Law Crimes[edit | edit source]
- Assault & Battery
- Battery: an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching (general intent crime).
- Assault: either (1) an attempt to commit battery (specific intent crime) or (2) a threat (general intent crime) (Remember merger: if there has been a touching of the V, the crime can only be battery, not assault).
- Homicide
- Murder (CL or 2nd Degree): unlawful killing of a human being with malice aforethought. Malice aforethought exists if, the D had:
- Intent to kill;
- Intent to inflict great bodily injury;
- Reckless indifference to an unjustifiably high risk to human life (e.g. Russian Roulette); OR
- Intent to commit a felony (felony murder)
- Voluntary Manslaughter: a killing that would be murder but for the existence of adequate provocation. Provocation is adequate only if:
- The provocation would arouse sudden and intense passion in the mind of an ordinary person, causing him to lose self-control
- The D was in fact provoked
- There was not sufficient time between provocation and killing for passions of a reasonable person to cool; AND
- The D in fact did not cool off between the provocation and the killing.
- Involuntary Manslaughter: a killing that was committed:
- With criminal negligence OR
- During the commission of a misdemeanor or an un-enumerated felony
- Felony Murder: any death caused in the commission of, or in an attempt to commit, a felony is murder.
- CL: enumerated felonies include: burglary, arson, rape, etc. (must be inherently dangerous)
- Limitations
- The D must be found guilty of the underlying felony. If D has a defense to the underlying felony, he has a defense against felony murder.
- The felony must be independent from the murder (commission of aggravated battery that causes a V’s death does not qualify as an underlying felony)
- Death must be foreseeable
- Where D reaches a point of temporary safety, any subsequent deaths ≠ felony murder. But deaths occurring during D’s immediate flight = felony murder
- D is NOT liable for the death of a co-felon that results from resistance of a victim or the police.
- Murder (CL or 2nd Degree): unlawful killing of a human being with malice aforethought. Malice aforethought exists if, the D had:
- Sex offenses
- Rape: unlawful intercourse of a woman by a man, not her husband, without her effective consent. Note: slightest penetration completes the crime of rape. Lack of effective consent:
- Intercourse is accomplished by actual force
- Intercourse is accomplished by threats of great and immediate bodily harm
- The V is incapable of consenting due to unconsciousness, intoxication, or mental cond.
- Statutory rape: intercourse with a female under the age of consent; it is not necessary to show lack of consent. Reasonable mistake as to age is irrelevant. This is a strict liability crime.
- Rape: unlawful intercourse of a woman by a man, not her husband, without her effective consent. Note: slightest penetration completes the crime of rape. Lack of effective consent:
- Property Offenses
- Larceny – stealing. Requires
- A wrongful taking
- A carrying away (any movement_
- Of the personal property
- Of another
- By trespass (without consent)
- With intent to deprive permanently (intent must exist at the time of the taking)
- Note: taking property in the belief that is yours, or that you have some right to it ≠ larceny
- Embezzlement:
- The fraudulent
- Conversion (i.e. dealing w/ the property in a manner inconsistent w/ the arrangement by which D has possession)
- Of personal property
- Of another
- By a person in lawful possession of that property
- With intent to defraud
- False Pretenses:
- Obtaining title;
- To personal property of another;
- By intentional false statement of past or existing fact
- With intent to defraud by the other.
- Robbery (larceny + assault) requires:
- A wrongful taking
- Of personal property of another
- From the other’s person or presence
- By force or threat of immediate physical harm
- With the intent to permanently deprive him of it
- Larceny – stealing. Requires
- Offenses Against Habitation
- Burglary: requires
- A breaking (creating or enlarging an opening by at least minimal force, fraud, or intimidation)
- And entry (placing any portion of the body inside)
- Of a dwelling
- Of another (question of occupancy not ownership)
- At nighttime
- With the intent to commit a felony inside (intent must exist at the time of entry)
- Arson:
- The malicious
- Burning (not water damage, smoke or explosion)
- Of the dwelling
- Of another
- Burglary: requires
Hot Topics in Criminal Law[edit | edit source]
- Mental states for crime – general and specific
- Transferred intent
- Accomplice liability – liable for the crime itself and all other foreseeable crimes
- Inchoate offenses
- Solicitation
- Conspiracy*
- Attempt
- Hot Defenses
- Intoxication
- Infancy
- Self-defense
- Mistake of facts*
- Crimes
- Homicide + 5 defenses to felony murder
- Distinguish the 3 common law property crimes (larceny, embezzlement, false pretenses)
- Robbery
- Burglary
- Arson