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| Defenses |
CAPACITY:
--INSANITY: mental disease or defect +
-M'Naughten Test: did not know act was wrong or did not understand nature of act
-Irresistible Impulse Test: unable to control actions or to conform conduct to the law
-***MA/MPC Test: lacked subs. capacity to either appreciate the criminality of conduct or conform conduct to the law
***MA: "diminished capacity" NOT a separate defense but may reduce first-degree murder to second-degree
--INTOXICATION:
-involuntary: defense to ANY crime
-voluntary: defense to specific intent crime, but NOT malice, general intent, strict liability
--INFANCY
<7: prosecution not allowed
<14: rebuttable presumption against prosecution
14+: prosecution allowed
***MA:
<14: not allowed
14-16: adult prosecution req. for murder, permitted for other serious felonies
>16: adult criminal prosecution req.
SELF-DEFENSE (justification):
- deadly force: req. imminent threat of death or serious physical injury
- non-deadly force: must be reasonably necessary to protect against imminent use of unlawful force
* AGGRESSOR RULE: D may not use deadly force if the initial aggressor EXCEPT if D withdraws and communicates withdrawal OR the victim suddenly escalates a nondeadly fight into a deadly fight
* RETREAT RULE: no duty
***MA: req. unless impossible to retreat in complete safety or at home
* Reasonableness and mistake:
-reasonable: valid self-defense
-unreasonable: ***MA/common law: NO self-defense; MPC: reduces to voluntary manslaughter BUT
DURESS: defense that D was forced to commit a crime under threat of imminent death or serious bodily injury--NOT a defense to murder
ENTRAPMENT: only if criminal design originated w/ govt and D was not predisposed to commit the crime |
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Robin Tue, 30 Jun 2009 18:55:10 GMT |
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| Inchoate offense doctrines |
WITHDRAWAL / RENUNCIATION / ABANDONMENT:
***MA/common law: NOT a defense EXCEPT withdrawal from conspiracy (D no longer vicariously liable for crimes beyond conspiracy)
MPC: defense IF D voluntarily and completely renounces solicitation, conspiracy, or attempt AND renunciation is based on a change of heart (not fear of getting caught or failing)
MERGER:
- rule for lesser incl. offense
- rule for inchoate offenses: solicitation and attempt merge w/ complete crime
- conspiracy does NOT merge |
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Robin Tue, 30 Jun 2009 18:14:57 GMT |
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| Impossibility |
FACTUAL: NOT a defense to attempt
LEGAL: defense to attempt
e.g., attempted murder of a corpse is possible |
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Robin Tue, 30 Jun 2009 18:07:01 GMT |
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| Attempt |
***MA/common law: conduct that gets dangerously close to commission (based on degree of risk and seriousness of threatened harm)
MPC: subs. step that is strongly corroborative of a criminal purpose
specific intent--NO attempted accidental crimes (i.e., NO attempt versions of: reckless crimes, negligent crimes, felony-murder)
possible to attempt: malice, general intent, strict liability crimes IF D has specific intent |
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Robin Tue, 30 Jun 2009 18:05:27 GMT |
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| Vicarious liability |
common law: in addition to conspiracy, D is liable for other crimes committed by co-conspirators if committed in furtherance of conspiracy's objective and foreseeable
***MA: NO vicarious liability for co-conspirator's crimes |
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Robin Tue, 30 Jun 2009 17:58:18 GMT |
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| Inchoate offenses |
SOLICITATION: asking someone to commit a crime w/ intent that they do it (specific intent)--crime is in asking
CONSPIRACY: agreement btw 2+ to commit a crime + an overt act in furtherance (specific intent)--crime is in agreement
***MA: NO over act req.
- 1-person conspiracy (e.g., others pretending): MPC/majority-yes, MA/common law-no, and if others acquitted, then last may not be convicted |
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Robin Tue, 30 Jun 2009 17:58:18 GMT |
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| Liability for conduct of others: accomplice liability |
ACCOMPLICE aids or encourages the principal who commits the crime w/ intent that crime be committed
scope: all crimes that he aided or encouraged + all foreseeable crimes committed w/ the aided crime (vicarious liability)
does NOT require that principal be found guilty
does NOT incl.:
- mere presence
- mere knowledge
- members of the protected class (victim, minors drinking, etc.)
defense: withdrawal
- encourager: must discourage
- aider: must neutralize assistance or prevent crime from happening (e.g., notify)
***MA: JOINT VENTURE RULE: D is present at crime w/ knowledge that principal intends to commit a crime and by agreement is willing and able to help
ACCESSORY AFTER THE FACT: D assists a principal who has committed a felony w/ knowledge that it has been committed and w/ intent to help the principal avoid arrest or conviction
***MA: "obstruction of justice" and "witness intimidation" only apply after judicial proceedings commenced |
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Robin Tue, 30 Jun 2009 17:50:59 GMT |
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| Misc. MA statutory crimes |
OUI
unauthorized access to a computer (knowingly)
stalking (incl. threat w/ intent to create fear)
possession of child pornography: < age 18
drug offenses |
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Robin Tue, 30 Jun 2009 17:38:22 GMT |
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| Crimes against property: habitation offenses |
BURGLARY: breaking and entering dwelling at night w/ intent to commit a felony inside
***MA STATUTORY BURGLARY: eliminate req. of "night," "dwelling," "felony"
BUT: intent to commit a crime still req., otherwise "criminal trespass"
ARSON: malicious burning of a building (intentional or reckless); must be material wasting (NOT blackening) |
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Robin Tue, 30 Jun 2009 17:38:22 GMT |
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Misc. theft-related offenses (common law & MA)
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RECEIPT/POSSESSION OF STOLEN PROPERTY: w/ knowledge that property was stolen
FORGERY: making or altering a writing so that it is false w/ intent to defraud
UTTERING: offering as genuine a forged instrument w/ intent to defraud
***MA: Bad Check Statute: (attempted) larceny to intentionally (attempt to) pass a bad check
MALICIOUS MISCHIEF: destroying or damaging another's property w/ malice (intentional or reckless)
***MA: "malicious destruction of property" |
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Robin Tue, 30 Jun 2009 17:28:50 GMT |
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| Crimes against property: theft-related offenses |
common law (NOT MA):
LARCENY: trespassory taking and carrying away of personal property of another (D does not have possession, although D may own) w/ intent to PERMANENTLY deprive (SPECIFIC intent) (i.e., cannot be taking under claim of right); may be continuing trespass (intent developed later)
EMBEZZLEMENT: conversion of personal property of another when D is in lawful possession (custody suff.) w/ intent to defraud (SPECIFIC intent) (i.e., not if D intends to return exact same property)
FALSE PRETENSES: obtaining TITLE to personal property of another by intentional false statement (of past or present event, NOT future promise) w/ intent to defraud (distinction from larceny: title, not just possession)
LARCENY BY TRICK: D only obtains possession (not title) as result of intentional false statement
ROBBERY: larceny from another's person or presence by force or threat of immediate injury (specific intent: to steal)
* distinction:
- threat of future injury: extortion
- embarrassment: blackmail
***MA theft crimes:
LARCENY: incl. larceny, embezzlement, false pretenses, larceny by trick
GRAND larceny: >$250 or car
PETIT larceny: $250 or less
ROBBERY: common law robbery
ARMED robbery: w/ dangerous weapon (life) |
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Robin Tue, 30 Jun 2009 17:19:26 GMT |
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| Crimes against the person: sex offenses |
FORCIBLE RAPE: sex or sodomy w/o consent by force OR threat of force OR when victim is unconscious (general intent)
***MA: AGGRAVATED: causing serious injury OR >1 perpetrator OR during serious felony (punishable by life)
STATUTORY RAPE: sex or sodomy w/ person under age of consent (STRICT liability)
***MA: age 16 |
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Robin Tue, 30 Jun 2009 12:59:12 GMT |
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| Crimes against the person: confinement offenses |
FALSE IMPRISONMENT: unlawful confinement w/o consent (general intent)
KIDNAPPING: false imprisonment that involves moving or concealing the victim (general intent)
***MA: if incl. ransom, max. punishment is life in prison (FIRST DEGREE) |
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Robin Tue, 30 Jun 2009 12:59:12 GMT |
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| MPC homicide crimes |
MURDER: 3 mental states:
- intent to kill
- extreme recklessness
- felony-murder: limited to burglary, robbery
arson, kidnapping, escape (custody, etc: forcible, NOT statutory), sexual assault
MANSLAUGHTER:
- intentional: under reasonable, extreme emotional disturbance (similar to "heat of passion")
OR
- unintentional: reckless
CRIMINALLY NEGLIGENT HOMICIDE: negligence |
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Robin Tue, 30 Jun 2009 12:52:24 GMT |
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| Transferred intent |
- murder
- battery
- arson
does NOT apply to attempts! |
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Robin Tue, 30 Jun 2009 12:44:54 GMT |
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| Crimes against the person: homicide |
FIRST DEGREE MURDER:
- intentional killing w/ premeditation and deliberation OR extreme atrocity and cruelty
OR
- felony murder
SECOND DEGREE MURDER: causing death of human w/ malice aforethought
- intent to kill (use of deadly weapon suff.)
- intent to inflict great bodily harm
(intent may be transferred)
- extreme recklessness ("depraved heart")
- felony murder
***MA: "human" incl. viable fetus
common law: child must be born alive
VOLUNTARY MANSLAUGHTER: intentional killing in heat of passion after adequate provocation (sudden or intense passion aroused and w/o time to cool off) (e.g., serious assault and battery, finding spouse in bed w/ other, but NOT words alone)
INVOLUNTARY MANSLAUGHTER: killing w/ criminal negligence OR during a crime
***MA: unintentional killing committed recklessly OR during violent battery OR w/ excessive force in self-defense
FELONY MURDER: killing during (attempted) inherently dangerous felony separate from killing itself (purpose other than hurting victim, i.e., NOT battery)
- D must be guilty of the felony
- killing must be foreseeable and in furtherance of the felony (NOT necessarily intentional)
* VICARIOUS LIABILITY for co-felons
common law: if third party commits actual killing (of NON-co-felon), felons still guilty if one is a proximate cause
***MA: actual killing must be by a felon, and victim may be a co-felon
***MA: FIRST DEGREE felony-murder: punishable by life (armed robbery, aggravated rape, kidnapping w/ ransom)
SECOND DEGREE felony-murder: others that exhibit "conscious disregard of the risk to human life" |
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Robin Tue, 30 Jun 2009 12:44:54 GMT |
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| Crimes against the person: homicide definition |
***MA & common law: death must occur w/in 1yr + 1 day from homicidal act
majority rule: death may occur at any time |
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Robin Tue, 30 Jun 2009 12:44:54 GMT |
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| Liability for conduct of others |
accomplice liability |
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Robin Tue, 30 Jun 2009 12:22:32 GMT |
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| Specific crimes |
- crimes against person
- crimes against property |
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Robin Tue, 30 Jun 2009 12:22:32 GMT |
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| Sources of law |
MBE:
- common law
- Model Penal Code
- majority state rules
***MA: common law + statutory variations |
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Robin Tue, 30 Jun 2009 12:22:32 GMT |
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| Elements of crimes |
- physical act
- mental state
- causation
- concurrence |
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Robin Tue, 30 Jun 2009 12:22:32 GMT |
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| Crimes against person: assault & battery |
BATTERY: unlawful application of force to another resulting in bodily injury or offensive touching (general intent)
ASSAULT: attempted battery OR intentional creation other than mere words of a reasonable fear in victim's mind of imminent bodily harm (specific intent)
***MA variations:
- BATTERY: more serious if D causes serious bodily injury or victim is pregnant, elderly, disabled, a child, or has a restraining order
- ASSAULT: NOT necessary that victim actually fearful, suff. that D intended to make victim fearful
- AGGRAVATED assault & battery: w/ dangerous weapon
- CARJACKING: assault w/ intent to steal a motor vehicle |
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Robin Mon, 29 Jun 2009 23:13:29 GMT |
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| Concurrence |
D must have mental state at time that he engages in the act
arises in:
- larceny
- burglary |
0 |
Robin Mon, 29 Jun 2009 23:13:08 GMT |
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| Causation |
need: actual (but-for) + proximate (legal cause)
actual cause: can have more than 1; irrelevant that actual cause merely accelerated certain death
proximate cause: natural, probable result
focus on:
- foreseeability
- fairness
unforeseeable intervening event may preclude proximate cause
NOTE: med mal considered foreseeable |
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Robin Mon, 29 Jun 2009 22:58:21 GMT |
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| MPC mistake doctrine |
mistake of fact: defense if negates the required mental state
- purposely
- knowingly
- recklessly
for negligence: only reasonable mistake is a defense
NO mistake of fact defense for strict liability
mistake of law: NOT a defense |
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Robin Mon, 29 Jun 2009 22:58:21 GMT |
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| MPC mental states |
- purposely
- knowingly
- recklessly
- negligently
- strict liability |
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Robin Mon, 29 Jun 2009 22:58:21 GMT |
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| Mental state: mistake |
mistake of fact:
- specific intent: ANY mistake
- general intent: reasonable mistake
- strict liability: NO mistake as defense
(reasonable mistake is a defense to ANY crime except strict liability; unreasonable mistake only a defense to specific intent)
mistake of law: NOT a defense
EXCEPT: if statute requires knowledge of law (e.g., fed. tax violations) |
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Robin Mon, 29 Jun 2009 22:58:21 GMT |
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| Mental states (common law & MA) |
SPECIFIC INTENT: D intends act and specific result
against person:
- assault
- 1st deg. premeditated murder
against property:
- larceny
- embezzlement
- false pretenses
- robbery
- forgery
- burglary
inchoate:
- solicitation
- conspiracy
- attempt
MALICE: D acts intentionally or with reckless disregard of obvious/known risk (result may be accidental)
- murder
- arson
GENERAL INTENT: D is generally aware of factors constituting crime
against person:
- battery
- kidnapping
- false imprisonment
- forcible rape
STRICT LIABILITY: NO mental state req.
- public welfare offenses (regulatory or morality offenses w/ small penalties)
--selling alcohol to minor, etc.
- statutory rape |
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Robin Mon, 29 Jun 2009 22:40:49 GMT |
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| Act requirement |
must be VOLITIONAL
may be OMISSION if:
--legal duty exists (statute, contract, status relationship, voluntary assumption of care, creation of the peril)
--knowledge of facts giving rise to duty
--ability to help
may be POSSESSION if criminalized by statute if:
--control for period long enough to have
--opportunity to terminate possession
--may be constructive possession |
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Robin Mon, 29 Jun 2009 22:40:49 GMT |
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| Classification of crimes |
MBE:
- felony: punishable by imprisonment of >1yr
- misdemeanor: max. punishment imprisonment of 1yr or less
***MA:
- felony: punishable by imprisonment in STATE prison min. 2.5yrs
- misdemeanor: max. punishment imprisonment in HOUSE OF CORRECTION 2.5yrs or less |
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Robin Mon, 29 Jun 2009 22:40:49 GMT |
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| Burden of proof |
beyond a reasonable doubt
once defense is raised: prosecution must disprove each element beyond a reasonable doubt
burden stays on prosecution EXCEPT: insanity defense |
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Robin Mon, 29 Jun 2009 22:19:43 GMT |
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| Jurisdiction |
criminal law jurisdiction is territorial: crime may be prosecuted in any state where an act that was part of the crime took place OR in any state where the result took place |
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Robin Mon, 29 Jun 2009 22:19:43 GMT |
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| Defenses |
mental competency:
- insanity
- intoxication
- infancy
- self-defense
- duress
- entrapment |
0 |
Robin Mon, 29 Jun 2009 22:19:43 GMT |
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| Inchoate (incomplete) offenses |
- solicitation
- conspiracy
- attempt |
0 |
Robin Mon, 29 Jun 2009 22:19:43 GMT |
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| Liability for conduct of others |
accomplice liability |
0 |
Robin Mon, 29 Jun 2009 22:17:27 GMT |
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| Specific crimes |
- crimes against person
- crimes against property |
0 |
Robin Mon, 29 Jun 2009 22:17:27 GMT |
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| Sources of law |
MBE:
- common law
- Model Penal Code
- majority state rules
***MA: common law + statutory variations |
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Robin Mon, 29 Jun 2009 22:17:27 GMT |
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| Elements of crimes |
- physical act
- mental state
- causation
- concurrence |
0 |
Robin Mon, 29 Jun 2009 22:17:27 GMT |
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| Immunity |
witness may be compelled to answer Qs if granted adequate immunity from prosecution
testimony obtained by promise of immunity is COERCED (involuntary), therefore CANNOT be used for impeachment (but CAN be used in trial for perjury) |
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Robin Wed, 17 Jun 2009 23:06:07 GMT |
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| Self-incrimination |
violation does not occur until statements used against D in criminal case
D may still be required to take stand, listen to Qs
applies to compelled testimonial, but NOT physical evidence (docs may be seized, lineup ok)
NO privilege if no possibility of incrimination (e.g., statute of limitations run) |
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Robin Wed, 17 Jun 2009 23:06:07 GMT |
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| Appeals by prosecution |
DJ not implicated when state appeals dismissal on D's motion that does not constitute an acquittal on the merits
DJ does not bar appeals if successful appeal would NOT require retrial
NO bar to govt appeal of a sentence imposed (except death penalty) |
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Robin Wed, 17 Jun 2009 22:58:40 GMT |
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| Exceptions to double jeopardy permitting retrial |
- hung jury
- manifest necessity
- state may retry upon successful appeal of conviction (but NOT try greater offense)
- if D breaches plea bargain |
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Robin Wed, 17 Jun 2009 22:55:16 GMT |
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| Double jeopardy |
attaches:
- in jury trial: when jury empaneled
- in bench trial: when first witness sworn |
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Robin Wed, 17 Jun 2009 22:54:06 GMT |
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| Death penalty |
prohibited in rape and felony-murder cases
it is cruel and unusual punishment where D is insane or mentally retarded, minor |
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Robin Wed, 17 Jun 2009 22:54:06 GMT |
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| Collateral attacks on guilty pleas after sentencing |
- involuntariness
- lack of jurisdiction
- ineffective assistance of counsel
- failure to keep plea bargain |
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Robin Wed, 17 Jun 2009 22:50:34 GMT |
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| Guilty plea |
must be voluntary and on the record
judge must ensure that D knows:
- nature of charge and crucial elements
- max. possible penalty and mandatory min.
- right not to plead guilty
- that D waives right to trial
prosecutor MAY threaten to charge more serious crime
may be used as a conviction in other proceedings when relevant (e.g., basis for sentence enhancement) |
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Robin Wed, 17 Jun 2009 22:50:34 GMT |
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| Burden of proof |
state must prove guilt beyond a reasonable doubt
state may impose burden of proof on D w/ regard to an affirmative defense (insanity, self-defense)
mandatory presumption that shifts burden of proof to D violates the 14th am. |
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Robin Wed, 17 Jun 2009 22:37:22 GMT |
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| 6th am. right to effective assistance of counsel |
D must show:
- deficient performance
- but-for the deficiency, result would have been different |
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Robin Wed, 17 Jun 2009 22:28:52 GMT |
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| Right to self-representation |
NO right on appeal |
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Robin Wed, 17 Jun 2009 22:27:57 GMT |
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| NO right to counsel |
- blood sampling
- taking handwriting or voice exemplars
- precharge investigative lineups
- photo IDs
- preliminary hearings to determine probably cause to detain
- brief recesses during testimony at trial
- discretionary appeals
- parole and probation revocation proceedings
- post-conviction proceedingsq |
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Robin Wed, 17 Jun 2009 22:27:24 GMT |
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| Right to counsel |
- custodial police interrogation
- post-indictment interrogation
- preliminary hearings to determine probably cause to prosecute
- arraignment
- post-change lineups
- guilty plea and sentencing
- felony trials
- misdemeanor trials when imprisonment imposed or suspended jail sentence imposed
- overnight recesses during trial
- appeals as a matter of right
- appeals of guilty please |
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Robin Wed, 17 Jun 2009 22:27:24 GMT |
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| Sentence enhancement |
requires proof beyond reasonable doubt of additional facts (other than prior conviction) |
0 |
Robin Wed, 17 Jun 2009 22:21:31 GMT |
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| Impartial jury |
- right to question on racial bias when race at issue or interracial capital crime
- juror opposition to penalty: NO automatic exclusion by the state
- juror favoring automatic death penalty: D may exclude |
0 |
Robin Wed, 17 Jun 2009 22:21:31 GMT |
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| Inconsistent verdicts |
not reviewable |
0 |
Robin Wed, 17 Jun 2009 22:19:44 GMT |
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| Right to trial by jury |
- only for serious offenses: imprisonment >6 mo.
- min. 6 jurors; convictions do NOT need to be unanimous except if 6-person
- right to venire selected from representative cross-section
- NO peremptory challenges for race and gender-based discrimination |
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Robin Wed, 17 Jun 2009 22:19:44 GMT |
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| Trial |
press and public have 1st am. right to attend trial even when D and prosecution agree to close it
right to unbiased judge: no actual malice and no financial interest in a guilty verdict |
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Robin Wed, 17 Jun 2009 22:14:08 GMT |
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| Competency to stand trial |
compare: insanity is a defense to a charge (mental condition at time of crime)
competency: ability to stand trial
Due Process Standard: D is incompetent to stand trial if lacks a rational and factual understanding of charges and proceedings OR lacks sufficient present ability to consult with lawyer
- D may be required to show preponderance of evidence, but NOT clear and convincing evidence |
1 |
Robin Wed, 17 Jun 2009 22:12:44 GMT |
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| Prosecutorial duty to disclose exculpatory info and notice of defenses |
failure: Due Process Clause violation if D can show evidence is favorable or prejudice has resulted (reasonable probability of other result) |
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Robin Wed, 17 Jun 2009 22:09:59 GMT |
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| Right to speedy trial |
- totality of circumstances
- attaches when D arrested or charged |
0 |
Robin Wed, 17 Jun 2009 22:09:59 GMT |
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| Exclusion of minorities |
may be used to quash a grand jury indictment |
0 |
Robin Wed, 17 Jun 2009 22:07:03 GMT |
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| Subpoena |
no 4th am. challenge |
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Robin Wed, 17 Jun 2009 22:06:41 GMT |
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| Grand juries |
generally only required in eastern states
secret: D has no right to notice or to be present and confront witnesses
witnesses have NO Miranda warning or right to attorney
grand jury may base indictment on inadmissible evidence |
0 |
Robin Wed, 17 Jun 2009 22:06:41 GMT |
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| Bail |
Sup. Ct. has held that it may be denied if arrestee poses danger or would fail to appear
NOT provided by 8th am., but state statutes |
0 |
Robin Wed, 17 Jun 2009 22:06:41 GMT |
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| Pretrial procedures |
preliminary hearing to determine probable cause to detain (unless already determined, e.g., by arrest pursuant to warrant or grand jury indictment) |
0 |
Robin Wed, 17 Jun 2009 22:06:41 GMT |
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| Pretrial ID |
6th am. right to counsel at post-charge lineup or showup but NOT at photo arrays, taking of physical evidence (handwriting, fingerprints)
lineup is non-testimonial, therefore no 5th am. right against self-incrimination to refuse to participate |
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Robin Wed, 17 Jun 2009 21:58:44 GMT |
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| Miranda warning exception |
public safety concern |
0 |
Robin Wed, 17 Jun 2009 21:58:44 GMT |
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| Wiretapping |
valid warrant requirements: showing of
- probably cause
- named persons in conversations
- particular conversations
- short period
- terminated when info obtained
- return made to court showing what conversations intercepted
* speaker assumes risk that other is informant |
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Robin Wed, 17 Jun 2009 21:39:24 GMT |
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| Exceptions to warrant requirement |
- contemporaneous search incident to constitutional arrest (incl. inventory at station)
- auto (whole vehicle--incl. containers, depending on what they are looking for)
- plain view (if legitimately on premises and w/ probably cause to believe item is evidence or contraband
- consent (voluntary and intelligent) of person with reasonably apparent authority
- stop and frisk (based on articulable and reasonable suspicion of criminal activity)
- hot pursuit, evanescent evidence, other emergencies
- administrative inspections and searches: may be warrantless--to seize contaminated food, highly regulated businesses, airline passengers, parolees, inventory searches of arrestees, govt employees' desks, drug tests of railroad employees involved in accidents, drug tests of persons seeking customs positions in drug interdiction, public schoolchildren in extracurricular activities
- foreign searches of aliens
- border searches of anyone
- opening international mail based on reasonable cause
- immigration enforcement actions |
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Robin Wed, 17 Jun 2009 21:37:42 GMT |
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| Evidentiary searches and seizures |
- D had a 4th am. right (seizure by govt concerning place/thing to which D had a reasonable expectation of privacy: possession, home/overnight guest; NO sense-enhancing tech)
- govt had a valid warrant based on probable cause and reasonably precise as to place/items
- valid warrantless search and seizure |
0 |
Robin Wed, 17 Jun 2009 21:37:42 GMT |
|
| Auto stops |
require reasonable suspicion OR special law enforcement needs
pretextual stops ok |
0 |
Robin Wed, 17 Jun 2009 21:37:42 GMT |
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| Stop and frisk |
requires reasonable suspicion of criminal activity or involvement in a completed crime supported by articulable facts (not a hunch)
police may frisk for weapons if upon reasonable suspicion that D is armed/dangerous
D may be arrested for failure to state name |
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Robin Wed, 17 Jun 2009 21:37:42 GMT |
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| Exclusionary Rule limitations |
- inapplicable to grand juries, civil proceedings, violations of state law, internal agency rules, parole revocation proceedings
- good faith reliance on law, defective search warrant, clerical error
- use of excluded evidence for impeachment |
0 |
Robin Wed, 17 Jun 2009 21:04:36 GMT |
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| Exceptions to fruit of the poisonous tree doctrine |
- fruits obtained in violation of Miranda
- evidence obtained by independent source
- intervening act of free will
- inevitable discovery
- violation of knock and announce rule |
0 |
Robin Wed, 17 Jun 2009 21:04:36 GMT |
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| Arrest |
taken into custody for prosecution or interrogation
- requires probable cause
- warrant generally NOT required except for home arrests |
1 |
Robin Wed, 17 Jun 2009 21:09:40 GMT |
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| Seizure |
reasonable person would believe they are not free to leave |
0 |
Robin Wed, 17 Jun 2009 21:01:22 GMT |
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| 1-8 constitutional amendments |
made applicable to states through 14th amendment Due Process Clause |
0 |
Robin Wed, 17 Jun 2009 20:49:24 GMT |
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| 8th amendment |
prohibition against cruel and unusual punishment |
0 |
Robin Wed, 17 Jun 2009 20:48:30 GMT |
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| 6th amendment |
- right to speedy trial
- right to public trial
- right to trial by jury
- right to confront witnesses
- right to compulsory process for obtaining witnesses
- right to assistance of counsel in felony cases and misdemeanor cases where imprisonment is imposed AFTER JUDICIAL PROCEEDINGS HAVE BEGUN |
1 |
Robin Wed, 17 Jun 2009 21:47:35 GMT |
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| 5th amendment |
privilege against compulsory self-incrimination
prohibition against double jeopardy |
0 |
Robin Wed, 17 Jun 2009 20:48:30 GMT |
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| 4th amendment |
prohibition against unreasonable searches and seizures |
0 |
Robin Wed, 17 Jun 2009 20:48:30 GMT |
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| Arson |
- malicious (intent or reckless disregard of obvious risk)
- burning (charring, but NOT blackening)
- of the dwelling (w/ statutory exceptions)
- of another |
0 |
Robin Wed, 17 Jun 2009 19:30:12 GMT |
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| Burglary |
- a breaking (any opening w/o consent)
- and entry (of any body part used to commit crime)
- of a dwelling (w/ statutory exceptions)
- of another (ownership is irrelevant)
- at nighttime (w/ statutory exceptions)
- w/ intent to commit a felony inside (or intent to commit misdemeanor theft) AT THE TIME OF ENTRY |
0 |
Robin Wed, 17 Jun 2009 19:30:12 GMT |
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| Extortion |
corrupt collection of an unlawful fee by an officer under color of office (blackmail)
modern rule: by means of threats to do harm or expose info -- compare: robbery does NOT include future threats and victim must be present
may be treated as complete when threats made (i.e., property need not be obtained) |
0 |
Robin Wed, 17 Jun 2009 19:23:11 GMT |
|
| Robbery |
- a taking
- of personal property of another
- from the other's person or presence
- by force or threats of immediate or physical injury (which must be the reason the victim gives up the property)***
- w/ intent to permanently deprive
***compare: larceny has no threat requirement (may be pickpocketing) |
0 |
Robin Wed, 17 Jun 2009 19:23:11 GMT |
|
| Larceny by Trick |
victim is tricked (by a misrepresentation of fact) into giving up mere POSSESSION |
0 |
Robin Wed, 17 Jun 2009 19:23:11 GMT |
|
| False pretenses |
- obtaining TITLE (compare: larceny by trick)
- to personal property of another
- by an intentional false statement of past or existing fact (NOT a future promise)
- w/ intent to defraud |
0 |
Robin Wed, 17 Jun 2009 19:23:11 GMT |
|
| Embezzlement |
- fraudulent (intent)
- conversion
- of personal property
- of another
- by a person in lawful possession
* misappropriation of property IN D's lawful possession (compare: larceny = misappropriation of property NOT in D's possession)
does NOT exist if D has a claim of right |
0 |
Robin Wed, 17 Jun 2009 19:17:02 GMT |
|
| Larceny |
- a taking (obtaining control)
- and carrying away
- of tangible personal property (not re, services)
- of another with possession (more than mere custody)***
- by trespass (w/o consent or by consent induced by fraud)
- w/ intent to permanently deprive
*** if D had possession at time of taking, the crime is NOT larceny; it may be EMBEZZLEMENT
CONTINUING TRESPASS: if D wrongfully takes w/o intent to permanently deprive it is still larceny if D later decides to keep; BUT if taking was NOT wrongful, later decision to keep is NOT larceny |
0 |
Robin Wed, 17 Jun 2009 19:17:02 GMT |
|
| False imprisonment |
unlawful confinement w/o valid consent
kidnapping: + movement of victim or concealment |
0 |
Robin Wed, 17 Jun 2009 19:17:02 GMT |
|
| Homicide: causation |
cause-in-fact AND proximate cause
- NO defense that the act hastened an inevitable result
- intervening acts: med mal, etc., ARE foreseeable, therefore no break in causation |
0 |
Robin Wed, 17 Jun 2009 18:52:10 GMT |
|
| Manslaughter |
VOLUNTARY: adequate provocation (sudden and intense passion sufficient to cause reasonable person to lose control, D was provoked, insufficient time to cool AND D did not cool off)
INVOLUNTARY: w/ criminal (gross) negligence OR during commission of an unlawful act (misdemeanor or felony not within felony-murder) |
0 |
Robin Wed, 17 Jun 2009 18:52:10 GMT |
|
| Homicide |
MURDER: malice aforethought (no facts reducing to manslaughter or excusing) + intent to kill, intent to inflict great bodily injury, reckless indifference to an unjustifiable high risk to life, OR intent to commit a felony (felony-murder)
* intentional use of deadly weapon authorizes inference of intent to kill
1st DEGREE: deliberate + premeditated
defense: voluntary intoxication
2nd DEGREE: reckless indifference
voluntary intoxication NOT a defense
FELONY-MURDER: during arson, robbery, burglary, rape, mayhem, kidnapping (otherwise 2nd degree) - requirements:
- D is guilty of underlying felony
- death was foreseeable result of the felony
- death was caused before D's flight from felony
* D NOT liable for felony-murder when co-felon killed as a result of resistance from victim or police
* D NOT liable for felony-murder when innocent party killed unless caused by D or agent/accomplice; MAY be liable as proximate cause when innocent party killed by victim or police |
0 |
Robin Wed, 17 Jun 2009 18:52:10 GMT |
|
| Assault |
- attempt to commit battery
OR
- intentional creation (other than mere words) of a reasonable apprehension of imminent bodily harm
* if there is actual touching, then the crime is BATTERY, not assault
- "aggravated" = w/ deadly weapon or w/ intent to rape or maim |
0 |
Robin Wed, 17 Jun 2009 18:52:10 GMT |
|
| Battery |
- unlawful application of force to body (may be indirect)
* need NOT be intentional
- "aggravated" = w/ deadly weapon, resulting in serious bodily harm, or of a child, woman, or police officer |
0 |
Robin Wed, 17 Jun 2009 18:08:08 GMT |
|
| Entrapment |
*difficult to establish*
ONLY if
- criminal design originated w/ law officers
- D was NOT predisposed to commit the crime |
0 |
Robin Wed, 17 Jun 2009 18:08:08 GMT |
|
| Mistake of law |
NO defense
EXCEPT:
- statute not reasonably available / published
- reasonable reliance on statute / decision / interpretation
- MAY negate required intent IF about elements, not existence of statute |
0 |
Robin Wed, 17 Jun 2009 17:58:20 GMT |
|
| Mistake of fact |
- defense to specific intent crimes
- must be REASONABLE for general intent crimes |
0 |
Robin Wed, 17 Jun 2009 17:58:20 GMT |
|
| Duress |
excuse to crimes other than homicide |
0 |
Robin Wed, 17 Jun 2009 17:58:20 GMT |
|
| Self-defense: deadly force |
- prevent home invasion (b/c of risk to humans)
- to terminate/prevent a dangerous felony involving risk to human life
- in arrest: if necessary to prevent a felon's escape AND the felon threatens death or bodily harm
- never justified to protect property |
0 |
Robin Wed, 17 Jun 2009 17:58:20 GMT |
|
| Infancy |
<7: no liability
7-14: rebuttable presumption that child unable to understand wrongfulness
>14: treated as adults |
0 |
Robin Wed, 17 Jun 2009 12:51:28 GMT |
|
| Intoxication |
VOLUNTARY: may be defense to specific intent crimes (unless done intentionally to establish defense)
- NO defense to other crimes involving malice, recklessless, strict liability |
0 |
Robin Wed, 17 Jun 2009 12:51:28 GMT |
|
| Insanity |
- M'Naghten Rule: not know act would be wrong OR not understand nature/quality of actions
- Irresistible Impluse Test: unable to control actions or conform conduct to the law
- Durham (NH) Test: crime was the product of mental illness (disease was but-for cause)
- ALI/MPC: lack of substantial capacity to appreciate criminality of the conduct or conform to the law because of mental illness or defect (M'Naghten + Irresistible Impluse)
NOTE: Due Process prohibits D from being tried, convicted, sentenced, executed if unable to understand proceedings or assist lawyer due to mental illness |
0 |
Robin Wed, 17 Jun 2009 12:51:28 GMT |
|
| Inchoate offenses |
SOLICITATION: inciting, etc., with intent of commission, regardless of affirmative response
defenses:
- NO defense that person solicited not convicted
- NO defense that solicitor renounces
- it IS a defense that solicitor could not be convicted of completed crime because of legislative intent (e.g., to be transported for sex)
- merger: solicitor cannot be punished for completed crime/attempt/conspiracy PLUS solicitation
CONSPIRACY: 2+ ACTUAL agreement + intent to enter agreement + intent to achieve SAME object of agreement + over act OR preparation
- conspirator may be liable for foreseeable crimes of co-conspirators committed in furtherance of the objectives
defenses:
- NO defense of withdrawal
- BUT: withdrawal may be defense to crimes committed in furtherance
- NO merger: conspiracy + completed crime are distinct offenses
ATTEMPT: overt act (more substantial than for conspiracy) done with intent that falls short of completing the crime
defenses:
- legal impossibility (NOT factual)
- NO defense of abandonment
- merger: with completed crime, therefore D cannot be found guilty of both |
0 |
Robin Wed, 17 Jun 2009 03:29:16 GMT |
|
| Exclusions from accomplice liability |
- members of protected class
- necessary parties not provided for
- withdrawal (BEFORE crime is unstoppable: e.g., repudiation of encouragement, attempt to neutralize assistance) |
0 |
Robin Wed, 17 Jun 2009 03:29:16 GMT |
|
| Accomplice liability |
- requires intent
scope of liability:
- crimes done/counseled AND crimes probable/foreseeable in the course of committing the contemplated crime
NO EXCUSE that accomplice could not be convicted as the principal (e.g., in rape) |
0 |
Robin Wed, 17 Jun 2009 02:54:11 GMT |
|
MPC analysis of fault
(eliminates common law distinctions between general and specific intent) |
- purposely, knowingly, recklessly (subjective)
- negligence (objective) |
0 |
Robin Wed, 17 Jun 2009 02:54:11 GMT |
|
| Strict liability |
public welfare offense: no awareness required, guilt may be established from mere fact that act committed |
0 |
Robin Wed, 17 Jun 2009 02:54:11 GMT |
|
| General intent |
awareness of all factors constituting the crime (awareness of high likelihood of circumstances sufficient) |
0 |
Robin Wed, 17 Jun 2009 02:35:12 GMT |
|
| Malice (common law murder & arson) |
requires reckless disregard of obvious/high risk that particular harm will occur |
0 |
Robin Wed, 17 Jun 2009 02:35:12 GMT |
|
| Specific intent crimes |
AGAINST PERSON:
- solicitation
- attempt (***even though crime attempted may not require specific intent--e.g., murder***)
- conspiracy
- 1st deg. premeditated murder
- assault
AGAINST PROPERTY:
- larceny and robbery
- burglary
INTENT TO DEFRAUD:
- forgery
- false pretenses
- embezzlement |
0 |
Robin Wed, 17 Jun 2009 02:35:12 GMT |
|
| Possession as an "act" |
- must be long enough to control and have opportunity to terminate possession
- may be constructive (within dominion)
- state of mind (but not of illegality) |
0 |
Robin Wed, 17 Jun 2009 02:27:41 GMT |
|
| Omission as an "act" |
- specific duty to act imposed by law (statute, contract, relationship. voluntary assumption)
- D has knowledge of facts giving rise to duty
- it is reasonably possible to perform the duty |
0 |
Robin Wed, 17 Jun 2009 02:27:41 GMT |
|
| Elements |
actus reus (physical act: must be VOLUNTARY; may be specific omission)
+ mens rea (mental state)
AND: concurrence
+ result & causation |
0 |
Robin Wed, 17 Jun 2009 02:27:41 GMT |
|
| Double jeopardy |
D cannot be tried or convicted for a lesser included offense if already put in jeopardy for the greater offense.
BUT: a court may impose multiple punishments based on the same transaction/crime where intended by legislature |
0 |
Robin Wed, 17 Jun 2009 02:27:41 GMT |
|
| Common law merger: NO LONGER EXISTS, except that D cannot be convicted of both solicitation/attempt AND the completed crime |
If D engaged in conduct constituting a felony AND a misdemeanor, then D can only be convicted of the felony. |
2 |
Robin Wed, 17 Jun 2009 02:20:41 GMT |
|
| Due process & Constitutional limitations |
- fair warning
- no arbitrary and discriminatory enforcement
&
- no ex post facto laws
- no bills of attainder |
0 |
Robin Wed, 17 Jun 2009 02:18:24 GMT |
|
| Felonies / Misdemeanors |
punishable by death or imprisonment for >1 year / other crimes are misdemeanors |
0 |
Robin Wed, 17 Jun 2009 02:18:24 GMT |
|
| Jurisdiction |
- act constituting element of offense committed in the state
- act committed outside the state caused result in the state
- duty imposed by law of the state
- attempt/conspiracy inside the state |
0 |
Robin Wed, 17 Jun 2009 02:18:24 GMT |
|
