Study criminal Flash Cards
log in to save your progress
Pile Management Card
criminal
criminal
| 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 |
| 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 |
| Impossibility |
|
FACTUAL: NOT a defense to attempt LEGAL: defense to attempt e.g., attempted murder of a corpse is possible |
| 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 |
| 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 |
| 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 |
| 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 |
| 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 |
| 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) |
|
Misc. theft-related offenses (common law & MA) |
|
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" |
| 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) |
| 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 |
| 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) |
| 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 |
| Transferred intent |
|
- murder - battery - arson does NOT apply to attempts! |
| 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" |
| 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 |
| Liability for conduct of others |
| accomplice liability |
| Specific crimes |
|
- crimes against person - crimes against property |
| Sources of law |
|
MBE: - common law - Model Penal Code - majority state rules ***MA: common law + statutory variations |
| Elements of crimes |
|
- physical act - mental state - causation - concurrence |
| 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 |
| Concurrence |
|
D must have mental state at time that he engages in the act arises in: - larceny - burglary |
| 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 |
| 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 |
| MPC mental states |
|
- purposely - knowingly - recklessly - negligently - strict liability |
| 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) |
| 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 |
| 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 |
| 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 |
| 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 |
| 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 |
| Defenses |
|
mental competency: - insanity - intoxication - infancy - self-defense - duress - entrapment |
| Inchoate (incomplete) offenses |
|
- solicitation - conspiracy - attempt |
| Liability for conduct of others |
| accomplice liability |
| Specific crimes |
|
- crimes against person - crimes against property |
| Sources of law |
|
MBE: - common law - Model Penal Code - majority state rules ***MA: common law + statutory variations |
| Elements of crimes |
|
- physical act - mental state - causation - concurrence |
| 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) |
| 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) |
| 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) |
| 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 |
| Double jeopardy |
|
attaches: - in jury trial: when jury empaneled - in bench trial: when first witness sworn |
| Death penalty |
|
prohibited in rape and felony-murder cases it is cruel and unusual punishment where D is insane or mentally retarded, minor |
| Collateral attacks on guilty pleas after sentencing |
|
- involuntariness - lack of jurisdiction - ineffective assistance of counsel - failure to keep plea bargain |
| 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) |
| 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. |
| 6th am. right to effective assistance of counsel |
|
D must show: - deficient performance - but-for the deficiency, result would have been different |
| Right to self-representation |
| NO right on appeal |
| 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 |
| 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 |
| Sentence enhancement |
| requires proof beyond reasonable doubt of additional facts (other than prior conviction) |
| 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 |
| Inconsistent verdicts |
| not reviewable |
| 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 |
| 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 |
| 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 |
| 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) |
| Right to speedy trial |
|
- totality of circumstances - attaches when D arrested or charged |
| Exclusion of minorities |
| may be used to quash a grand jury indictment |
| Subpoena |
| no 4th am. challenge |
| 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 |
| 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 |
| Pretrial procedures |
| preliminary hearing to determine probable cause to detain (unless already determined, e.g., by arrest pursuant to warrant or grand jury indictment) |
| 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 |
| Miranda warning exception |
| public safety concern |
| 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 |
| 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 |
| 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 |
| 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 |
| Auto stops |
|
require reasonable suspicion OR special law enforcement needs pretextual stops ok |
| 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 |
| Arrest |
|
taken into custody for prosecution or interrogation - requires probable cause - warrant generally NOT required except for home arrests |
| 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 |
| 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 |
| Seizure |
| reasonable person would believe they are not free to leave |
| 1-8 constitutional amendments |
| made applicable to states through 14th amendment Due Process Clause |
| 8th amendment |
| prohibition against cruel and unusual punishment |
| 5th amendment |
|
privilege against compulsory self-incrimination prohibition against double jeopardy |
| 4th amendment |
| prohibition against unreasonable searches and seizures |
| Arson |
|
- malicious (intent or reckless disregard of obvious risk) - burning (charring, but NOT blackening) - of the dwelling (w/ statutory exceptions) - of another |
| 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 |
| 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) |
| 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) |
| Larceny by Trick |
| victim is tricked (by a misrepresentation of fact) into giving up mere POSSESSION |
| 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 |
| 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 |
| 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 |
| False imprisonment |
|
unlawful confinement w/o valid consent kidnapping: + movement of victim or concealment |
| 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 |
| 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) |
| 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 |
| 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 |
| 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 |
| Entrapment |
|
*difficult to establish* ONLY if - criminal design originated w/ law officers - D was NOT predisposed to commit the crime |
| 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 |
| Mistake of fact |
|
- defense to specific intent crimes - must be REASONABLE for general intent crimes |
| Duress |
| excuse to crimes other than homicide |
| 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 |
| Infancy |
|
<7: no liability 7-14: rebuttable presumption that child unable to understand wrongfulness >14: treated as adults |
| 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 |
| 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 |
| 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 |
| 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) |
| 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) |
|
MPC analysis of fault (eliminates common law distinctions between general and specific intent) |
|
- purposely, knowingly, recklessly (subjective) - negligence (objective) |
| Strict liability |
| public welfare offense: no awareness required, guilt may be established from mere fact that act committed |
| General intent |
| awareness of all factors constituting the crime (awareness of high likelihood of circumstances sufficient) |
| Malice (common law murder & arson) |
| requires reckless disregard of obvious/high risk that particular harm will occur |
| 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 |
| 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) |
| 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 |
| Elements |
|
actus reus (physical act: must be VOLUNTARY; may be specific omission) + mens rea (mental state) AND: concurrence + result & causation |
| 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 |
| 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. |
| Due process & Constitutional limitations |
|
- fair warning - no arbitrary and discriminatory enforcement & - no ex post facto laws - no bills of attainder |
| Felonies / Misdemeanors |
| punishable by death or imprisonment for >1 year / other crimes are misdemeanors |
| 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 |
Place this card into pile:
Copyright © Jadence, LLC 2007 - 2012. All Rights Reserved.