Criminal law

Prohibition against vagueness (2)

Fair warning, no arbitrary and discriminatory enforcement

Elements of crime (3+2)

Actus reus, mens rea, concurrence of act and mental state, and sometimes proof of result and causation

Actus rea - can any intentional act qualify?

Yes.

Actus rea - what doesn't qualify?

Conduct not product of your own volition, reflexive or convulsive acts, acts performed while unconscious or asleep

Driver has seizure and kills someone. What could make this an actus rea?

Driver drives despite knowledge of dangerous pre-existing condition

Omission as an act gives rise to liability only when (3)

Specific duty to act, D has knowledge of facts giving rise to duty, reasonably possible to perform

Situations in which a legal duty to act can arise:

Statutes requiring action, contractual agreements relied on by others (e.g., doctor agrees to perform surgery); relationships between parties (e.g., parents' duties to care for kids); voluntarily assuming duty of care for someone else; then failing to reasonably perform it; D's conduct created peril

Bar examiners like to use relationship/duty scenarios to test…

cause in fact

Specific intent crimes (11)

Inchoate offenses (Solicitation (to have person solicited commit the crime), attempt (to complete crime - even when crime attempted doesn't require intent), conspiracy (to have the crime completed)); first degree murder (premeditation); assault (to commit battery), larceny & robbery (to permanently deprive other of interest in property taken); burglary (to commit felony in dwelling), forgery (to defraud), false pretenses (to defraud), embezzlement (to defraud)

Murder on the bar means…

Second-degree murder, a malice crime (only first degree murder, a specific intent crime, if it's specifically stated in statute/fact pattern)

Malice crimes (2)

Common law murder, arson

Malice crimes - mistake of fact allowed?

Reasonable mistake of fact only, with the rare exception of a claim of Imperfect Self-Defense

General intent crimes (4 common)

Battery, rape, kidnapping, false imprisonment

__________ mistake of fact is a defense to general intent crimes

Reasonable

Transferred intent crimes (3)

Homicide, battery, arson

In transferred intent crimes, which are available for prosecution?

The crime actually committed, the attempted crime not committed

Can intent be transferred between two different crimes - e.g., can felonious intent to commit battery be transferred to crime of arson?

No

Strict liability crimes (3 common examples)

Statutory rape, selling liquor to minors, bigamy (some jurisdictions)

Specific intent mens rea

intent to engage in proscribed conduct

Specific intent crimes - defenses

Reasonable or unreasonable mistake of fact, diminished capacity (voluntary or involuntary intoxication)

Accomplices are liable for

Originally intended crime and all other foreseeable crimes committed by the principles

Silent approval _______ accomplice liability

is not sufficient - D must have done something with the intent to assist in criminal enterprise (including cheering them on), or assisted perpetrators in some significant way, with knowledge that assistant would be used to commit a crime

When does provider of legal service/product, who has knowledge that service will be used for criminal activity, become liable as an accomplice?

When they have a "stake in the outcome" - overcharging, or criminal activity becomes major portion of their business

On the bar exam, the prospective accomplice is…

usually guilty as accomplice

General intent mens rea

awareness of acting in proscribed manner

Malice mens rea

reckless disregard of known risk

Strict liability statutes involve…

crimes in administrative, regulatory, morality area, and statute involves no adverbs

Strict liability mens rea

conscious commission of proscribed act (objective)

In strict liability crimes, ________ and _______ do not matter

Defenses that negate intention - neither do consent

Strict liability crimes - defenses

ONLY insanity, involuntary intoxication, possibly duress

Four broad types of crime on the bar, re mens rea

Strict liability, malice, general intent, specific intent

Purposely mens rea

conscious object to engage in proscribed action

Knowingly mens rea

awareness that conduct is of a particular nature or will cause a particular result

Recklessly mens rea

consciously disregarding a substantial known risk

Negligently mens rea

failure to be aware of a substantial risk (objective)

Solicitation - elements

Inciting, counseling, advising, urging, or commanding another to commit a crime, with the intent that the person solicited commit the crime

If a person who is solicited accepts, then there is a …

conspiracy. D can be charged with both but can be found guilty only for solicitation OR conspiracy - not both

Solicitation - defenses

that solicitor could not be found guilty of completed crime because of a legislative intent to exempt her

Solicitation - merger

solicitor can also be held liable for underlying crime, if person solicited commits the crime, but not for both the crime and the solicitation

Conspiracy - elements (4)

Agreement by at least two persons, intent by at least two persons to enter into agreement (not found if one is undercover agent), intent by at least two persons to achieve the unlawful objection (mistake of fact is defense, but not mistake of law), overt act or act of mere preparation

Conspiracy - liability

All co-conspirators are liable for reasonably foreseeable crimes committed in furtherance of the conspiracy

Do co-conspirators have to have meet to be liable for each others' crimes?

No - they just have to know the other exists

Conspiracy - overt act - minority rule

No overt act needed

Conspiracy - agreement - MPC unilateral approach

D can be convicted of conspiracy even if all other parties have been acquitted or were only feigning agreement

Conspiracy - withdrawal

Not a defense to conspiracy, may be defense to crimes committed in furtherance of conspiracy

Conspiracy - withdrawal - elements

Conspirator must inform all co-conspirators of his intent to withdraw, and this notice must be given while there is still time for the other co-conspirators to abandon their criminal plans

Conspiracy - withdrawal - effect

Never relieves the withdrawing conspirator of liability for the conspiracy itself or for any reasonably foreseeable crimes which have already been committed in furtherance of the conspiracy - CAN save from liability for future crimes of former co-conspirators for which he would've been liable had he remained in the conspiracy

Conspiracy - merger

Merger doctrine does not apply - can be convicted of conspiracy and actual crime

Attempt - elements (3)

Act - a "substantial step" (beyond mere preparation), done with specific intent to commit the target offense, that falls short of completing the offense (old /minority rule = act had to put D dangerous proximity to success)

Attempts - defense

Legal impossibility (not factual)

Attempt - abandonment

Not defense

Attempt - merger

Merger doctrine applies; D can't be guilty of both attempt and underlying crime (but can be charged with both)

Defense - four types of insanity

M'Naghten test (majority), Irresistible impulse test, Durham test, ALI/MPC test

Defense - Insanity - M'Naghten test

D did not know his act would be wrong or did not understand the nature and quality of his actions (NOT loss of control) - cognitive

Defense - insanity - Irresistible impulse test

D was unable to control his actions or conform his conduct to the law - volitional test

Defense - insanity - Durham (New Hampshire) Test

But for the mental illness, D would not have done the act - easiest for Ds to satisfy, not really followed in U.S. anymore

Defense - insanity - ALI/MPC test

D lacked substantial capacity to either appreciate the criminality of his conduct or conform his conduct to the requirement of law, as a result of mental defect

Defense - voluntary intoxication

intentional taking of substance known to be intoxicating

Are addicts/alcoholics voluntarily intoxicated?

Yes

Defense - involuntary intoxication

taking intoxicating substance without knowledge of its nature, under duress, or pursuant to medical advice

Involuntary intoxication has the same legal effect as…

Insanity - it is a defense to ALL crimes, including strict liability, once it is established that the intoxication caused the actus rea

Defense - infancy

Under age of 7, no criminal liability, under 14 there is a rebuttable presumption of criminal liability. Almost always the wrong answer on the bar exam

Defense - self defense - Non-deadly force by victim is lawful when

A victim (non-initial aggressor who possesses the legal right of self-defense) may use non-deadly force in self-defense any time that victim reasonably believes that forces is about to be used against him

Defense - self defense - Someone can only defend himself when an attack against him is ….

imminent (no preemptive strikes)

Defense - self-defense - Deadly force by victim (majority rule)

A victim (non-initial aggressor who possesses the legal right of self-defense) may use deadly force in self-defense any time that victim reasonably believes that deadly forces is about to be used against him - no duty to retreat

Defense - self-defense - Deadly force by victim (minority rule)

Majority rule + duty to retreat: Prior to using deadly force in self-defense, the victim of a deadly attack must first "retreat" to the wall if it is safe to do so - but not in their home, or if they're the victim of a violent felony (rape/robbery/etc), or if they're a police officer

Defense - self-defense - use of force by an initial aggressor is ONLY OK when

Original aggressor has withdrawn and says something like "I'm all done now"; a non-deadly aggressor is defending himself against a deadly response (NOTE: aggressor is still guilty of the initial crime) - either way, an initial aggressor must retreat if safe avenue available before using deadly force in self-defense

Insulting words are never…

initial aggression or provocation

Descriptive words (I'm going to kill you; I just shot your brother) can be….

initial aggression or provocation

Defense of others -

Majority common law - same rules as self-defense; no need to know/have relationship with person. Reasonable mistake of fact is a defense.

Defense of others - alter-ego rule

Significant majority rule - Defender gains no legal rights greater than the person to whose aid you come. So if defender is reasonably mistaken and comes to defense of aggressor, you have no greater rights than they do (so you're screwed

Defense of dwelling

Deadly force may never be used solely to defend your property ("spring gun" scenario). But deadly force can be used when occupant reasonably believes that force is needed to protect herself and/or her family

Defense - duress - applies to…

all crimes except homicide

Defense - consent - is ______ on the Bar Exam

almost never

Defense - entrapment is a ___________ defense, because _________

very narrow… D's predisposition to commit the crime negates the defense.

Defense - diminished capacity

D has mental defect short of insanity and so lacks required mental state to commit the crime

Homicide - murder

Unlawful killing of human being with malice aforethought: intent to kill (intentional use of deadly weapon), intent to inflict great bodily injury, Depraved heart - reckless indifference to an unjustifiably high risk to human life, intent to commit felony

Homicide - voluntary manslaughter

Intentional killing with adequate provocation - that would arouse sudden and intense passion in an ordinary person causing him to lose self-control, D was in fact provoked, there was insufficient time for a reasonable person to cool off, and D did not in fact cool off; OR, imperfect claim of self defense (significant minority- honestly but unreasonably believes they must do so in self defense), OR, diminished capacity (many jurisdictions)

Homicide - involuntary manslaughter

Killing committed with criminal negligence or during commission of unlawful act - either a misdemeanor or an un-enumerated felony (a felony that's not inherently dangerous) (not within felony murder rule)

Homicide - murder - first degree

Deliberate and premeditated murder, felony murder, sometimes other types - it will be enumerated on the exam; otherwise it's 2d degree murder

Homicide - murder - felony murder

Death foreseeably caused in commission of, or in attempt to commit an inherently dangerous felony, before D's "immediate flight"

Homicide - murder - felony murder - defenses

A defense to the underlying felony is a defense to the felony murder; the underlying felony must be something other than the attack that led to the killing - e.g., can't be manslaughter; deaths must be foreseeable (bolt of lightning); once D reaches some point of temporary safety, any deaths he may cause thereafter can no longer be a felony murder as a result of the origional felony (because the original felony ended before the deaths occurred); D is not liable for death of a co-felon as a result of resistance by the victim or the police (but D is liable for felony murder if someone is killed by an innocent 3d party while trying to resist a robbery)

False imprisonment

Unlawful confinement of a person without his valid consent (MPC - must "interfere substantially" with v's liberty)

Kidnapping

Unlawful confinement of a person that involves either movement of V or concealment of V in "secret" place

Battery

Completed assault

Assault - two types

Assault as an attempted battery (specific intent crime), assault as a threat (general intent crime) - test will specify

Rape - elements

unlawful carnal penetration of a woman by a man, not her husband (traditional/MPC), without effective consent.

Rape - lack of consent

Actual force, threats of great and immediate bodily harm, V incapable of consenting, V fraudulently caused to believe that the act is not intercourse

Rape - mistake of fact

Must be reasonable, because rape is a general intent crime

Statutory rape

Specific intent

Are consent/mistake of fact defenses to statutory rape?

No

Larceny - elements

Taking and carrying away of tangible personal property known to be that of another by trespass with intent to permanently deprive

To be larceny, does the property have to be taken from the rightful owner?

No - larceny is a crime against rightful posession (can't take car from mechanic without paying)

To be larceny, the intent to permanently deprive must ________

exist at the time of the taking

If you take a dog, believing that it's not wrong to take a dog, is that a defense to larceny?

No - mistake of law is not a defense

Is taking the ming vases to juggle them, then bringing them back, larceny?

Yes, because intent to risk the property qualifies is intent to permanently deprive

If you take and then only later decide to permanently deprive, is that larceny?

Only if the initially taking was wrongful - not if it's a mistake (wrongful trespass survives…)

Embezzlement - elements

Fraudulent conversion of personal property of another by a person in lawful possession of the property

Does the alleged embezzler have to personally benefit?

No

If title is acquired by the alleged perpetrator, the crime is not _________ or ________, but __________

Not larceny or embezzlement, but false pretenses

False pretences - elements

Obtaining title to personal property of another by an intentional false statement of past or present fact with intent to defraud; V must be deceived by the misrepresentation

False promises to ______________ are not enough to constitute the crime of false pretenses

do something in the future

Larceny by trick

Larceny in which D gives up possession of property ecause of a lie(distinguish false pretences in which D gives up title)

Robbery

Taking and carrying away of personal of property of another from the other's person or presence, by trespass, with intent to permanently deprive, by force or threats of immediate death or physical injury with the intent to permanently deprive

Not force to constitute a robbery

Threats of embarrassment (not bodily harm), threats of future harm, picking a pocket/snatching a purse - if V's not aware of takign

Extortion

Corrupt collection of illegal fee under color of office (by means of threats)

Difference between threats involved with robbery/extortion

Extortion can be of future harm, need not be to a person, need not be of physical harm

Receipt of stolen property

Receiving possession and control of stolen personal property, known to have been obtained in a manner constituting a criminal offense by another person with the intent to permanently deprive

Forgery

Making or altering a writing with apparent legal significance so that it is false with intent to defraud

Malicious mischief

Malicious destruction of or damage to property of another

Burglary - elements (CL)

Breaking (by force, threats, fraud - pushing open half-open internal doors can qualifying) and entry (by any body part) of a dwelling of another (C/L at nighttime) with intent to commit a felony in the structure (intent must exist at time of breaking/entry)

Arson - elements (CL)

Malicious burning of any structure or dwelling (C/L - only dwelling of another) - need charring

Perjury

Intentional taking of a false oath in regard to a material matter

Subornation of perjury

Procuring or inducing another to commit perjury