Criminal Law Review

CRIMINAL LAW 33 Questions (20 on criminal law, 13 on criminal procedure) criminal procedure = more important for the essay criminal law = more important for multiple choice. I. Jurisdiction a. A state acquires jurisdiction if the Conduct happened there or the result happened there. i. Person shoots a rifle while standing in Nevada hitting a person in California. Both Cal and Nev. have jurisdiction. b. Crimes of Omission: i. Jurisdiction lies with where the act should have been performed. c. Merger i. Generally there is no merger. ii. Solicitation and attempt merge into the substantive offense. 1. one who solicits another to commit a crime cannot be convicted of both the solicitation and the completed crime. iii. Conspiracy does NOT merge 1. you can be convicted of conspiring to do something and doing it. Elements of a Crime a. ACT (actus reus) i. A physical act (or unlawful omission) by the defendant. ii. Bodily movement that does not qualify for criminal liability 1. conduct that is not the product of your own volition. 2. reflective or convulsive act (like having an epileptic seizure) 3. Act performed while unconscious or asleep. a. i.e. sleepwalking b. falling asleep at the wheel is not an act peformed while unconscious. iii. Omission 1. Generally, no duty to rescue 2. Sometimes there is a legal duty to act. a. 5 circumstances of duty to act II. i. Statute 1. i.e. filing tax returns ii. Contract 1. i.e. lifeguard, nurse iii. Relationship between parties 1. i.e. parents iv. *voluntarily assuming a duty of care towards someone else and failing adequately to perform it. 1. i.e trying to save someone and then, realizing it is someone you don’t like, not helping. v. your conduct created the peril 1. i.e. pushing someone in to a pool who can’t swin. vi. b. Guilty Mind (Mens Rea)******** i. The state of mind or intent of the defendant at the time of his act ii. 4 Common Law Mental States 1. Specific Intent a. Qualify for additional defenses not available for other kinds of crime. 2. Malice a. 2 Malice Crimes i. Murder ii. Arson 3. General Intent a. Catch-all category b. i.e. Rape, Battery 4. Strict Liabilty a. = the no intent crimes b. any defense that negates intention will not be a defense to strict liability crimes. c. Concurrence Elements of a Crime - Act. Any bodily movement. - 1. Conduct which is not the product of your own volition is not an act. (Example of someone pushing you into a 3rd person who gets shoved into a bus. Not your fault) 2. Reflexive or convulsive acts do not qualify as an act. (Seizure, unconscious or sleep walking). Omission. No legal duty to rescue but sometimes there is a legal duty to act. 1. By statute. 2. By Contract (Lifeguard, Nurse) 3. Because of relationship between parties (parents, spouses) 4. Voluntarily assuming a duty of care to someone else and then failing adequately to do it. (Someone in the lake drowning, guy swims out and decides not to save him is an example) 5. Where your conduct created the peril. Mens Rea (Mental State for a crime.) (MOST IMPORTANT SUBJECT FOR CRIM!) 1. Specific Intent. 2. Malice. (Murder and Arson) 3. General Intent. 4. Strict Liability (The No Intent Crimes) - - Transferred Intent Never merge different crimes that have different victims. Shoot at one person and kill another. (Murder for 2nd person, Attempt for the person you tried to kill) Specific Intent - All 3 of inchoate offenses. (Solicitation, Conspiracy, Attempt.) - 1st Degree Murder. - Assault * - Larceny - Embezzlement - False Pretenses - Robbery - Burglary - Forgery Malice - 2nd Degree Murder (The word Murder on the bar exam is common law murder. Can’t use specific intent crime defenses.) - Arson General Intent - H - H Strict Liability (Any defense that negates intent cannot be a defense to strict liability) - If the Crime is in the administrative, regulatory or morality area and you look at crime and don’t see anything like knowingly, willingly, intentionally then it is a crime of strict liability. - H Q 16 Q 17 Accomplice Liability - Liable for the crime itself and all other foreseeable crimes. - Must be actively in on the crime. - Never give an accomplice liability on the bar just because they are present and/or if they don’t call the police. III. Accomplice Liability a. Accomplices are liable for the crime itself and all other foreseeable crimes. i. We don’t give accomplice liability simply because the person is present. 1. They must be actively in on the crime. ii. Never give anyone accomplice liability unless they are actually taking part of that crime. Inchoate Offenses a. 3 Inchoate Offenses i. Solicitation ii. Conspiracy iii. Attempt b. Solicitation= asking a person to commit a crime. i. the crime of solicitation ends when you ask them ii. If the person you ask agrees to do it, the solicitation merges into conspiracy, and the only crime left is conspiracy. c. Conspiracy= i. Elements 1. agreement 2. Intent to agree 3. Intent to pursue the unlawful objective. 4. over act (majority) IV. ii. Person in the question must be pursuing an UNLAWFUL objective iii. Example 1. slick and joe agree to meet at slick’s house and take the silvery to pawn it. This is not a conspiracy because it is not unlawful objective. iv. *conspiracy does NOT merge with the substantive offense, meaning you can be convicted of both conspiracy and what you are conspiring to do. v. Liability for conspiracy 1. each conspirator is liable for all the crimes of coconspirators if those crimes were (1) committed in furtherance of the conspiracy and (2) were foreseeable. 2. Example: a. drug conspiracy to ship drugs to NY, Philly, and Boston. A conspirator in Philly is liable for all the crimes. vi. Agreement 1. Agreement does not need to be express. 2. Written or spoken words are not necessary. 3. Various people can be in a conspiracy even though they don’t know each other vii. Overt Act 1. Majority Rule: in order to have conspiracy, you need an agreement and an overt act. 2. Minority Rule/Common Law Rule: conspiracy with the agreement itself. 3. Any little act will do to be an overt act a. Example: Showing up at the place you agreed to rob. 4. know both rules. viii. Impossibility Is NOT a defense to conspiracy. ix. *Withdrawal, even if it is adequate, can never withdraw the defendant from liability for the conspiracy itself. 1. all he can do is withdraw liability from the other conspirators subsequent crimes. 2. “I withdraw from this conspiracy” you can’t do that. d. Attempt i. Attempt = specific attempt plus a substantial step, beyond mere preparation, in the direction of the commission of the crime. ii. Mere preparation 1. mere preparation is not enough. V. Defenses a. Insanity i. Defense to ALL CRIMES, including the no intent crimes of strict liability ii. M’Naghten Rule: At the time of his conduct, defendant lacked the ability to know the wrongfulness of his actions, or understand the nature and quality of his actions iii. Irresistible Impulse Test: Defendant was unable to control his actions or to conform his conduct to the law. iv. Durham Rule: Defendant’s conduct was a product of mental illness. v. Penal Code: Defendant lacked the ability to conform his conduct to the requirements of the law. b. Intoxication i. Involuntary intoxication 1. Form of insanity. 2. Defenses to ALL CRIMES, including the no intent crimes of strict liability. 3. i.e. someone slipped something in your drink ii. Voluntary Intoxication 1. Defendant 2. defense to only the specific intent crimes** 3. (not a defense to speeding or battery, but to burglary) c. Infancy i. Under 7= No criminal liability ii. Under 14= rebuttable presumption of no criminal liability d. Justification Defenses i. Self Defense 1. Use of Non-Deadly Force: a. A victim may use non-deadly force in self-defense any time the victim reasonably believes that force will be used on them 2. Use of Deadly Force: a. Majority: permits a victim to use deadly force any time that victim reasonably believes deadly force will be used on them. b. Minority: victim must retreat to the wall, if it is safe to do so. i. 3 Exceptions to duty to retreat 1. don’t have to retreat out of your home. 2. Don’t have to retreat if you are the victim of a rape or robbery 3. Police officers have no duty to retreat. 3. Aggressor’s right to self-defense a. One who begins a fight has no right to use force in her own defense during that fight. b. Exceptions: Aggressor can “regain” her right to use self-defense in 2 ways i. Withdrawal- 2 requirements 1. remove yourself from fight 2. communicate to other person desire to remove herself ii. Sudden escalation 1. if victim suddenly escalates a “minor” fight into one involving deadly force and does so without giving the aggressor the chance to withdraw, the aggressor may use force in selfdefense. ii. Defense of Others 1. One may use force in defense of any other person if the other requirements of the defense are met. 2. A defendant has the defense of defense of others only if she reasonably believed that the person she assisted had the legal right to use force in his own defense. iii. Defense of a Dwelling 1. Rule: deadly force may never be used to defend your property. 2. Spring Guns- never allowed. e. Duress i. Duress is when someone threatens to kill you if you don’t do a criminal act. ii. Duress is a defense to all crimes EXCEPT homicide. f. Mistake of Fact i. Varies on the mental state. 1. Mistake must be reasonable if charged with a malice or general intent crime 2. Any mistake, reasonable or unreasonable, is allowed for a specific intent crime. 3. Mistake is NEVER a defense for Strict Liability crimes g. Consent*** i. Consent on the victim is almost never a defense to a crime in this country. h. Entrapment i. Requirements 1. criminal design originated with law enforcement officers 2. No predisposition to commit crime prior to initial contact by the government. ii. The entrapment defense is very narrow iii. Almost never available, because predisposition on the part of the defendant to commit the crime negates entrapment. VI. Common Law Crimes a. 10 questions are gonna be about the common law crimes. You need to know the common law crimes b. ASSAULT & BATTERY i. Battery= completed assault 1. General Intent Crime never strict liability ii. Assault* 1. 2 theories a. =Assault as an attempted battery i. this is a specific intent crime (like all attempts) ii. merges, so if you actually hit, it is a battery. b. =Assault as a threat i. this is a general intent crime c. HOMICIDE*** i. Important points 1. victim must be human 2. if you see “Murder” = common law murder, it is a malice crime, and you can’t use the additional defenses that ii. iii. iv. v. apply to specific intent crimes (voluntary intoxication, any mistake of fact that is unreasonable) Murder: 1. At common law, homicide is murder if you show 1 of the following 4 intents: a. intent to kill b. intent to inflict great bodily injury c. reckless indifference to an unjustifiably high risk to human rife and malignant heart (i.e Russian roulette) d. Intent to commit a felony (i.e. Felony Murder) Manslaughter 1. Voluntary Manslaughter a. Voluntary manslaughter = Killing from Passion i. some provoking event 2. Involuntary Manslaughter a. 2 Kinds i. killing from criminal negligence 1. i.e. drunk driving, fall asleep at the wheel ii. Misdemeanor Manslaughter 1. killing someone while you are perpetrating a misdemeanor or an unenumerated felony: a. Unenumerated felony= killing was caused during the commission of a felony but does not qualify as a felony murder case First Degree Murder 1. Common Law did not have degrees of murder. 2. There is no uniform definition of 1st degree murder. Felony murder 1. 5 Defenses a. If the defendant has a defense to the underlying felony, he has a defense to felony murder b. Felony they are committing must be something OTHER than the killing c. Deaths must be FORESEEABLE d. **Deaths caused while fleeing from a felony ARE felony murder BUT once the defendant reaches some point of temporary safety, deaths caused thereafter ARE NOT felony murder. e. Defendant is NOT liable for the death of a cofelon as a result of resistance by the victim or the police. i. Only the death of a co-felon ii. Slick & Joe, convenient store owner shoots at Joe, misses and kills a shopper- slick & Joe are guilty of felony murder. vi. d. FALSE IMPRISONMENT i. Not important e. KIDNAPPING i. Not important f. VII. Sexual Crimes a. RAPE i. The slightest penetration completes the crime of rape. b. STATUTORY RAPE i. Classic example of strict liability 1. Mistake of fact is no defense 2. Consent of victim is no defense c. CRIMES AGAINST NATURE i. Not important d. ADULTERY & FORNICATION i. Not important e. INCEST i. Not important f. BIGAMY i. Not important VIII. Property Crimes*** (must know the difference between the 3) a. LARCENY i. Larceny is a specific intent crime. ii. Elements 1. Taking a. Wrongful taking (by trespass or trick) 2. Carrying Away a. Can be VERY slight 3. Tangible Personal Property of another 4. By trespass 5. Intent to Permanently Deprive a. This intent MUST exist at the time of the taking, or it is not common law larceny. b. Taking property in the belief that it is yours is NOT common law larceny. (Mistake of Fact) b. Embezzlement i. Embezzlement = Lawfulness of the possession, followed by an illegal conversion. (usually Trustees) 1. Embezzlers have possession only, not title. ii. Do NOT need a carrying away iii. Elements 1. Fraud 2. Conversion 3. Property of Another 4. By a person in lawful possession of that property. c. False Pretenses i. Defendant persuades the owner of the property to convey title by false pretenses. 1. KEY = conveyance of title. 2. False Pretense must be as to a present or false fact a. Promise to do something in the future is not a false pretense ii. Element 1. Obtaining title 2. To property of another 3. by an intentional (or knowing) false statement of PAST or EXISTING FACT 4. With intent to defraud the other. iii. Larceny by Trick- distinguished 1. false pretenses differs from larceny by trick in what is obtained. If only possession of the property is obtained by the defendant, the offense is larceny by trick. If title is obtained, the offense is false pretenses. What is obtained depends on what the victim intended to convey to the defendant. d. Robbery i. Robbery = Larceny + Assault ii. Elements of Robbery 1. Taking 2. Personal Property of another 3. From other’s person or presence 4. by force or intimidation 5. with the intent to permanently deprive him of it. iii. MUST BE FROM THE PERSON’S PRESENCE. 1. very broad 2. i.e. tying farmer up in his barn and ransacking his house. iv. Force or threat of force of IMMINENT HARM 1. must be imminent (if it was not imminent, it would be extortion) 2. any act of violence or putting in fear. 3. i.e. yanking a necklace off someone’s chain a. picking someone’s pocket = larceny. 4. Harm does not need to be to victim, could be to someone with victim. e. Extortion i. Extortion = blackmail ii. Distinctions between Extortion and Robbery 1. don’t have to take it from the person or in his presence 2. threats are of future harm IX. Offenses Against Habitation a. Burglary i. Elements 1. Breaking a. Actual or constructive 2. Entry a. Any part of the defendant’s body enters the house 3. of the Dwelling 4. Of Another 5. At nighttime*** 6. With intent of committing a felony therein ii. Examples 1. if you leave your door wide open, and the person walks right in, it is not a burglary under common law 2. if you give your housekeeper a key to clean once a week, and she comes over at midnight with a bunch of friends, it is a constructive breaking. iii. Intent to Commit the felony- must exist at the time of the breaking. 1. Example: D breaks in to A’s house because he feels like it. Once inside, he decides to steal from her. This is NOT burglary. b. Arson i. Malice crime. ii. Arson = malicious burning of the dwelling house of another 1. only applies to fire**** a. not to explosions, water damage. iii. Elements 1. malicious 2. Burning 3. Of the dwelling 4. of another iv. Must be a material wasting of the fiber of the building by fire. 1. Damage required= scorching (insufficient) v. Charring (sufficient). Destruction of the structure or even significant damages to is not required to complete the crime of arson. But mere blackening by smoke or discoloration by heat (scorching) is not sufficient. There must be some damage to the fiber of the wood or other combustible material. v. If you own it, it is not common law arson. vi. If the structure is situated either: 1. In a city or town; or 2. So near to other houses as to create a danger to them REMEMBER: NEVER GIVE ANY ACCOMPLICE LIABILITY UNLESS THEY ARE IN ON THE CRIME (JUST GOING ALONG WITH IT IS NOT ACCOMPLICE LIABILITY)