Glossary of Criminal Law - MBE (FINAL)
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- When does a state have juridiction over a crime?
- if the state is the legal situs of the crime
- 5 circumstances in which a duty to ACT arises
- 1. by statute. (Eg, file a tax return)
2. by contract (Eg, lifeguard, nurse)
3. relatoinship btw parties (parent/child; spouses to one another)
4. ** voluntarily assuming a duty of care toward s/o else and then failing to perform it
5. Where your conduct created the peril
- 4 common law mental states, and crimes associated with each
- (1) specific intent --solicitation; conspiracy; attempt; first degree murder; Assault; Larceny; Embezzlement; False pretenses; Robbery; Burglary; Forgery
(2) malice -- murder (2nd degree); arson
(3) general intent -- all other crimes (eg, battery and rape)
(4) strict liability - statutory rape [formula for knowing if it's SL: if the crime is in administrative, regulatory, or morality area, and statute has no adverbs (knowingly, willfully, intentionally, etc), it’s an SL crime]
- If you aim to shoot A, and hit B instead (by accident), what doctrine covers the killing of B? What crimes can you be charged with?
- Transferred intent.
The intent to kill one person is transferred to govern the death of the person you actually killed.
Murder and attempted murder. (** There are always 2 crimes in a transferred intent scenario. No merger b/c there are 2 victims.)
- Accomplice liability - Rule
- accomplices are liable for the crime itself and all other foreseeable crimes.
Exam tip: NEVER give accomplice liability unless the person is actively aiding, abetting, or counseling the crime. Even if person seems to be going along w/ it, or doesn’t call the police, this alone doesn’t give rise to accomplice liability.
- Murder - definition
- Murder is the unlawful killing of a human being with malice aforethought
- Malice aforethought - definition
- Malice aforethought exists if the defendant has ONE of the following:
1.intent to kill,
2.intent to inflict great bodily injury
3.awareness of an unjustifiably high risk to human life
4.intent to commit a felony
- What is voluntary manslaughter? When can an intentional killing be reduced to voluntary manslaughter?
- A provoked killing; involves passion or provoking event.
Murder can be reduced to V.M. ONLY if ALL of the following are true:
i.The defendant acts under a provocation that would around sudden and intense passion in the mind of an ordinary person such as to cause him to lose self-control;
ii.There is insufficient time between the provocation and the killing for the passions of a reasonable person to cool; and
iii. The defendant did not, in fact, cool off between the provocation and the killing.
- Involuntary manslaughter - definition/elements
- Involuntary manslaughter is when death is caused by *criminal negligence*, rather than by an intentional act
- Solicitation - definition/elements
- Solicitation consists of inciting, counseling, advising, inducing, urging, or commanding another to commit a felony with the specific intent that the person solicited commit the crime.
EXAM TIP: solicitatoin ENDS when the person agrees to do the crime.
- CONSPIRACY - elements
- A conspiracy is an agreement between 2 or more persons to accomplish some unlawful purpose, or to accomplish a lawful purpose by unlawful means.
There must be (i) an agreement, (ii) an intent to enter into an agreement, and (iii) an intent to achieve the objective of the agreement. The parties must agree to achieve the same objective by mutual action. Requires a meeting of at least two “guilty minds”
EXAM TIP: Unwitting agents are not conspirators .
- Can someone "withdraw" from a conspiracy? What is the effect of withdrawal?
- NO. Withdrawal from a conspiracy is no defense to a charge of conspiracy.
But withdrawal IS a defense to subsequent crimes committed by other members of the conspiracy *if the withdrawing party affirmatively notifies via (an affirmative act) all members of the conspiracy in time for them to have oppty to abandon their plans*.
- Co-conspirator liability - Rule
- Each conspirator is liable for the crimes of all other co-conspirators if:
1. the crimes were committed in furtherance of the objectives of the conspiracy AND
2. the crimes were a natural and probable consequence of the conspiracy.
- Forgery -- definition
- Forgery consists of the making of a false writing or the altering of an existing writing with intent to defraud
EXAM TIP: Any writing that has potential legal significance is a potential subject of forgery.
- Uttering - definition
- Uttering consists of offering as genuine an instrument that may be the subject of forgery, and is false, with intent to defraud.
- Larceny - definition/elements
- Larceny consists of a taking and carrying away of tangible personal property of another by trespass, with intent to permanently deprive the person of her interest in the property. It is a specific intent crime.
EXAM TIP: The intent to permanently deprive must exist AT THE TIME OF THE TAKING -- UNLESS the doctrine of continuing trespass applies.
EXAM TIP: The "carrying away" can be VERY VERY SLIGHT
EXAM TIP: Taking property in the belief that it is yours – or that you have some right to it – is NOT larceny
- Continuing trespass doctrine
- If a defendant takes property with a wrongful state of mind but without the intent to steal, and later, while still in possession of it, forms the intent to steal it, the trespass involved in the original wrongful taking is regarded as “continuing” and the defendant is guilty of larceny!
- Larceny by trick
- All of the elements of larceny...BUT: if the victim consents to the defendant’s taking possession of the property, but such consent was induced by a misrepresentation, the consent is not valid, and the offense is called larceny by trick.
- Embezzlement is the fraudulent conversion of property of another by a person in lawful possession of that property. The misappropriation of the property occurs while the defendant has lawful possession of it.
- False pretenses
- False pretenses consists of obtaining title to property of another by an intentional (or knowing) false statement of past or existing fact (false pretemse), with intent to defraud the other.
EXAM TIP: The conveyance of TITLE is the key.
The false pretense must be as to a PRESENT OR PAST FACT. A false promise to do something in future CANNOT ground liability for false pretences.
- Attempt requires specific intent PLUS a substantial step beyond mere preparation in the direction of the commission of the crime.
RULE: Mere preparation for a crime can’t ground liability for attempt.
- Is impossiblity a defense to attempt? To conspiracy?
- NO. It is no defense to a charge of attempt or conspiracy that it would have been impossible for the defendant to do all the things he intended to do. (Factual impossibility)
Legal impossibility – a defense – occurs when a defendant sets out to do something she mistakenly believes constitutes to be a crime.
- Conspiracy and merger
- Conspiracy DOES NOT MERGE with the substantive offense.
- Rules re: conspiracy and the requirement of an overt act
- Majority Rule: to ground liability for conspiracy, there must be an agreement PLUS an overt act.
Minority rule (followed in VIRGINIA): liability for conspiracy is grounded with the agreement itself. NO OVERT ACT REQUIRED IN VIRGINIA!
Exam Tip: under majority rule, any little act will do
- Four Insanity Tests and Definitions of each
- M’Naghton test: At the time of her conduct, def lacked the ability to know the wrongfulness of her actions or to understand the nature and quality of her actions
Irresistible impulse test - Def lacked capacity for self control and free choice.
Durham rule - Def’s conduct was a product of a mental illness.
MPC test - Def lacked the ability to conform her conduct to the requirements of law.
- Intoxication Defense
- 1. Voluntary intoxication - Includes addicts/alcoholics; a defense ONLY to specific intent crimes!
2. Involuntary intoxication - a form of insanity. This & insanity ARE defenses to ALL crimes, INCLUDING SL crimes
- Infancy defense
- Under 7, no criminal liability.
Under 14, rebuttable presumption of no criminal liability.
- Self Defense - non-deadly force rule
- A victim may use non-deadly force in self-defense any time s/he reasonably believes that force is about to be used on him/her.
- Self-Defense - deadly force rule
- Majority rule: Victim can use deadly force in self-defense anytime s/he reasonably believes that deadly force is about to be used on them. (VA is a MAJORITY RULE STATE)
Minority rule: requires a victim, prior to use of deadly force, to retreat to the wall if it is safe to do so. (See Retreat Jurisdiction rules)
- Exceptions to the Duty to Retreat in retreat jurisdictions
- 3 exceptions to the duty to retreat:
i. You don’t have to retreat out of your home
ii. You don’t have to retreat if you are the victim of a rape or robbery
iii. Police officers have no duty to retreat
- Can you ever give back to an aggressor the defense of self-defense?
- Yes, but it almost never happens. Can happen if: person in Q WITHDRAWS (run for door), then stops, turns to original victim, and COMMUNICATES withdrawal to victim.
- Defense of a dwelling - rule
- Deadly force may never be used SOLELY to defend your property. (You can use it to defend yourself or others) (eg, no spring-loaded guns)
- A DEFENSE to ALL CRIMES EXCEPT HOMICIDE. The threat of harm must be imminent, not future.
- Mistake of Fact (as a defense)
- Mistake of fact can be a defense only when it negates intention.
If def is charged w/ a malice or GI crime, the mistake has to be reasonable.
ANY mistake is a defense if the def is charged w/ a specific intent crime.
Mistake of fact is NEVER a defense to no intent crimes of SL
- Consent defense
- The victim consented. This is almost NEVER a valid defense
- Entrapment -- definition/elements
- A VERY narrow defense -- and almost never available b/c predisposition on part of defendant to commit the crime negates entrapment.
1. The criminal design or plan must have originated with law enforcement officers
2. There's no entrapment if an officer merely provides opportunity for commission of a crime to one otherwise ready and willing to commit it.
b. The defendant must not have been in ANY WAY predisposed to commit the crime
i. If D was predisposed to commit the crime prior to interaction with an officer, the defendant can’t use the defense
1. NOTE: a mere inclination to engage in illegal activity isn’t adequate proof of predisposition
- Battery - definition/elements
- A completed assault.
"An unlawful application of force to the person of another resulting in either bodily injury or an offensive touching."
general intent crime.
- Assault - definition/elements
- 2 theories of assault at common law:
1. Assault as an attempted battery (I swing, you duck, I miss). This is a specific intent crime (an attempt)
2. Assault as a threat. (I threaten you with bodily injury.) This is a general intent crime.
- Additional defenses for specific intent crimes
- 1. voluntary intoxication(can be used, eg, to reduce first degree murder to murder)
2. mistake of fact
- Defenses to felony murder
- 1. If def has a defense to the underlying felony, s/he has a defense to felony murder
2. deaths have to be foreseeable
3. Deaths caused while fleeing from a felony ARE felony murder. But once the def reaches a point of temporary safety (spending night at s/o’s house), deaths caused thereafter are NOT felony murder
4. Def not liable for death of co-felon that results from resistance by victim or police
5. The felony involved is not an enumerated felony.
6. The felony they are committing has to be something other than the killing
EXAM NOTE: if a death is caused by circumstances coincident to the felony, it is not felony murder. There has to be a causal connection btw the murder and the felony.
- Enumerated felonies in VA
- In VA, enumerated crimes are:
b. Rape, forcible sodomy, inanimate or animate object sexual penetration
e. Abduction (kidnapping)
IN VIRGINIA, felony murder is recognized as 1st degree murder. All felons are responsible for all deaths caused by all felons, but not liable for any deaths caused by non-felons.
- Robbery = Larceny + assault
The taking of personal property of another from the other’s person or presence, by force or intimidation, with the intent to permanently deprive her of it.
PRESENCE requirement is BROAD.
Picking a pocket = larceny. Yanking a necklace off a neck = robbery
“Your money or your life” –must be threat of imminent harm, not FUTURE harm.
- Breaking and entering another person’s house at night w/ intent to commit a felony inside
Can be ACTUAL (force) or CONSTRUCTIVE (threats or fraud) breaking.
EXAM TIP: Not a breaking for s/o to come uninvited through an open door/window!But if person then pushes open INTERIOR door, THAT is a breaking
B&E has to be with the INTENT TO COMMIT A FELONY INSIDE. That intent has to exist at the time of the breaking!
- Is abandonment a defense to attempt?
- Not usually. Abandonment is NOT a defense to attempt if you have the specific intent to commit, say, a robbery, and you went beyond mere preparation (attempt).
- The malicious burning of the dwelling house of another
ONLY applies to BURNINGS/FIRES – NOT water/smoke/soot damage, or explosion
DAMAGE required: a material harming of the building by firing.
If you OWN it, it can’t be common law arson
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