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05-06 Fall - Criminal Law


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What is the result if someone is charged with a crime that no reasonable person would assume to have been a crime.
A conviction would be a due process violation for lack of notice. (Palmer v. Euclid)
Does the American justice system require actual notice that a crime is in fact a crime?
No, actual notice requirement would promote ignorance.
In the American justice system what are the two elements generally required to commit a crime?
actus rea and mens rea
What is the physical element required to commit most crimes?
actus rea
What is the term for the mental element required to commit most crimes?
mens rea
What is a homicide?
the killing of one person by another without justification or excuse.
What is the killing of one person by another without justification or excuse?
a homicide.
In a homicide, does the mens rea requirement mean that the person must've intended to kill the other?
No, just required to do substantial bodily harm.
If D intends to inflict substantial bodily harm upon X, and kills X, is mens rea satisfied?
What is the definition of malice? (terms that equate to malice)
Ill-wil, wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, etc...
If D acts with recklessness of consequences and his actions kill X, has he acted with the necessary mens rea?
What is the doctrine of implied malice?
Malice need not be expressly to carry out the occuring act, intend to do harm can imly malice.
A reviewing court should give ________ ________ to the facts found by a trial court.
Substantial deference
To establish extreme indifference does a victim's indifference need to be directed specifically to the victim or to human life in general?
human life in general, not necessarily to the specific victim.
is risk determined objectively or subjectively?
What level must a risk arise to in order to support a conviction of murder?
a "very high degree of risk"
What are the three levels of risk in ascending order of "risky-ness"?
- Unreasonable risk
- High degree of risk
- Very high degree of risk
Are subjective circumstances taken into account when determining level of risk?
No, it is an objective test... what a reasonable person would recognize as the risk in the same situation. (objective test w/ subjective elements)
Is intent to kill a prerequisite for murder?
Intent is required but it need not be expressed, intent also need not be to actually murder.
Hypo: A person goes hunting with a shotgun, sees what he thinks is an abandoned cabin, tries to shoot out the window of the cabin... kills X. What should he be charged with?
He would most likely be charged in the alternative with both Murder (based on proving implied malice through an extremely high degree of risk) and involuntary manslaughter (if intent cannot be proven)
Would the following lead to liability for criminal homicide if the victim dies? D stabbing V.
Would the following lead to liability for criminal homicide if the victim dies? D failing to provide food for her son.
Yes, arises from a duty as a parent.
Would the following lead to liability for criminal homicide if the victim dies? D shooting V
Would the following lead to liability for criminal homicide if the victim dies? D failing to pull a stranger from a burning building.
No, there is no duty upon D to save.
D stabbed P, who was 8 months pregnant, in the chest and abdomen. P dies immediately. Her unborn child was dead upon arrival at the hospital. Is D likely to be found criminally liable for the death of the child?
No, because the child did not live on its own prior to its death.
What is the essential dividing line between murder and manslaughter?
Can malice be found in the following state of mind? intent to kill another human being.
Can malice be found in the following state of mind? Intent to inflict grievous bodily harm on another person.
Can malice be found in the following state of mind? extreme reckless disregard for human life.
Can malice be found in the following state of mind? Intent to commit a felony.
What is required for a homicide to be first degree murder?
intentional killing with malice aforethought.
What is required for a homicide to be second degree murder?
intentional killing with malice, no premeditation.
What is required for a homicide to be voluntary manslaughter?
intentional killing mitigated by sudden passion as a result of adequate provocation.
What is required for a homicide to be involuntary manslaughter?
a killing committed through criminal negligence
When does criminal negligence occur?
when there is a gross departure from the standard or ordinary care.
Is a "negligent" state of mind sufficient to satisfy a mens rea requirement of "intentional"?
Is a "reckless" state of mind sufficient to satisfy a mens rea requirement of "intentional"?
Is a "purposeful" state of mind sufficient to satisfy a mens rea requirement of "intentional"?
Is a "knowing" state of mind sufficient to satisfy a mens rea requirement of "intentional"?
D pays X $10 for a toy her child wants for christmas valued at $300. can D be charged with "knowingly receiving stolen property"?
Yes, regardless of knowledge as to the actual status, her conduct is knowing.
D buys a toy for her child for $150 that has a store value of $250. Can D be charged with "knowingly receiving stolen property?"
probably not, the price difference is probably not sufficient to satisfy the mens rea intent requirement.
What is the purpose of the Felony Murder Doctrine (why do we have it?)
to dissuade people from engaging in felonies in a reckless or negligent way which don't have murder as an object but occasionally cause death.
Why is the Felony Murder Doctrine criticized?
It erodes the mens rea requirement from murder.
When is something "inherently dangerous?"
when there is "a high probability" that it will result in death.
is shooting a firearm at an occupied building inherently dangerous?
yes (people v. hansen, guy shot at apartment, not knowing kids were inside)
is using and giving others cocaine inherently dangerous?
No (People v. Patterson)
What is the standard of review of a reviewing court?
Substantial Deference to the facts found by trial.
When must an appellate court affirm under the standard of review on a sufficiency of evidence question?
Must affirm if any rational juror could reach the conclusion reached be the lower court.
What is Murder 2?
any homicide with malice but without premeditation.
What is Murder 1?
homicide with mlice and premeditation.
what is manslaughter (general)?
unlawful killing of another without malice.
What 2 requirements must be satisfied for a homicide to be a voluntary manslaughter?
1. D must act in the heat of passion
2. Passion must flow from adequate provocation.
In terms of Voluntary Manslaughter, what is NEVER sufficient provocation?
words alone.
How is "Passion" determined with respect to Voluntary Manslaughter?
Two Prong Test.
A) Objective - an ordinary man must feel passion and react without reflection.
B) Subjective - D must have actually felt passion.

If either prong fails it is likely murder.
How is "Adequate Provocation" determined with respect to Voluntary Manslaughter?
Voluntary Manslaughter

When is adultery "adequate provocation"?
D must find V (or V's) IN THE ACT of adultery to establish adequate provocation.
Voluntary Manslaughter

What is the purpose for Voluntary Manslaughter?
It's the law acknowledging that humans are emotional and can "react" without thinking in some situations.
Voluntary Manslaughter

Can provocation build up over a stretched period of time?
Yes (Borchers), but there must be one culminating event (snapping point).
D kills V, his wife after she is seen having coffee with a male co-worker because in D's culture it is custom to do so if she is seen in public with another man... What crime if any?
Most Likely murder.

Most Likely NOT Vol Man. D subjectively felt a heat of passion and adequate provocation, but this doesn't satisfy the objective test for adequate provocation. (his acting upon a subjective cultural norm in contrast to the majority culture may be taken into account at sentencing.)
Involuntary Manslaughter

What is a definition?
A homicide commited without malice arising from criminally negligent actions.
Involuntary Manslaughter

Is foreseeability an issue in determining criminal negligence of the acts?
Yes, A must be reasonably foreseeable to cause B.
What if A likes to play Russian Roulette, he has B come over. They decide to play at A's suggestion, B dies. Has A committed a crime?
Possibly Murder 2 - There's an extreme indifference to human life to imply malice.

Possibly Criminally Negligent Homicide
How does a "failed self-defense" affect what D would be charged with if a homicide occured.
Under normal circumstances it might be Murder 1, but D's state of mind could mitigate the charge down to a Voluntary Manslaughter.
For homicide purposes, what is required for the killing of a fetus to be called a murder?
In most states the fetus must have been "born alive" for a homicide charge to stand.
Criminal Assault

What is a basic definition
an attempt to commit a battery.
Criminal Assault

What is required (from V) to commit an assault?
Apprehension (US v. Jacobs)
If D shoots V from behind, has D committed an assault?
No, V did not feel apprehension.
D went down to the park to relax and saw V studying, this made D mad and he threw a rock at her and hit her. What crime if any has been committed?
D went down to the park to relax and saw V studying, this made D mad and he threw a rock at her V saw D throw it and moved so he missed. What crime if any has been committed?
D went down to the park to relax and saw V sleeping, D threw a rock at her and missed. V did not wake up. What crime if any has been committed?
No crime, no apprehension for assault. No contact so no battery.
D decides he want to hit a person, attempts to punch V, V moves and D misses. is there a crime?
Yes, Assault
D decides he wants to scare V and pretends to punch at him. What crime if any has been committed?
If V feels apprehension of an imminent battery then there is an assault.
D decides he wants to scare V and pretends to punch at him. V is blind. What crime if any?
No crime. There's no intent and there's no apprehension.
Criminal Assault

Is apprehension by the victim subjective or objective?

What is the main required element for a rape to have occured?
"Forcible Compulsion"

How can "Forcible Compulsion" be established?
1. Physical Force
2. Threat of Force
3. Psychological Coercion.

What are the points of rape-shield laws?
to fight the trend of putting the victim on trial. (exposing sexual history in an attempt to show she "invited" the rape).

Must a victim resist?
No, not under modern statutes.

How have modern rape laws changed "spousal rape"?
every state in the US now acknowladges it is a crime.

True or False, Rape is now categorized as a type of assault.

True or False, Rape is a gender specific crime.

True or False, A victim must show resistance?

True or False, silence equates to consent.

What is the definition?
Breaking and entering in the nighttime into the dwelling of another with the intent to commit a crime.

True or False, a burglary can only be committed at night.
True (at common law, some states have changed this by statute)
V is in the shower... D rings door bell and says he's the UPS man... V tells him to come in... D steals something and leaves. Is there a breaking?
Yes, there's a constructive breaking through fraud.

Can breaking be "constructive?"

How much force is necessary to establish a breaking?
Not much... If any part of D's body passes into the dwelling it is a breaking.

Can you burglarize yourself?
Person plans on committing burglary, go by the dwelling, throw a rock through a window, walk up to the house⬦ get apprehended while walking up to the house? Burglary?
No, no entry
Person plans on committing burglary, goes up to the dwelling, leans on pane of window at weak point and window “falls out”Burglary?
Yes, satisfies breaking element. (D must have intended to commit a felony)
Person throws rock through window, when they throw the rock they see police coming and runs away⬦ comes back Sunday night and goes in on Sunday... Burglary?
It satisfies Breaking and Entry elements.... others need to be satisfied... but it's on it's way to being burglary.

How have modern statutes effected breaking element of burglary?
Many states don't require breaking for a burglary.

How have modern statutes affected the entry requirement?
Requirement has not changed anywhere... entry is still required.

How have modern statutes affected the "dwelling" element?
Has been widened incredibly (offices, garages?). It still has to be someone elses dwelling.

How have modern statutes affected the "intent to commit a felony" requirement?
Most states have lessened the requirement of a felony down to the commission of any crime.

What is the mens rea requirement for burglary?
there must be intent to commit a felony.

What's the common law definition?
Trespassory taking and carrying away of the personal property of another with the intent to permanently deprive.

True or False, The property taken in a larceny must be personal property.

Can one commit larceny upon a thief at common law?
No, a thief doesn't have personal property rights in the stolen property. (modern law would view this different, but it's unlikely that a thief would turn someone in)

True of False, it is possible to commit a larceny on your own property if it is taken from someone who has a lien on the property.

Can you commit a larceny upon a dead person?
Yes, the personal property immediatly becomes property of his heirs.

Is larceny a specific intent crime?
How is embezzlement differentiated from larceny?
A taking is larceny if D is not given the property directly by the owner.

A taking is embezzlement if he is given it directly by the owner.

What is the difficult question that arises when someone is arrested for shoplifting while still inside of a store
The taking away element has not been satisfied.

If you take something from its owner with the intent to return it to its owner later, is that a larceny?
No, no intent to permanently deprive.

How can abandonment be established as a defense to larceny?
It shows that there is no intent to permanently deprive.

What is required for the Abandonment defense to be applicable?
The property must be left where it is reasonably certain that the true owner will find it. (depends heavily on the circumstances)
What is the difference between "Obtaining Property under False Pretenses" and "Larceny by Trick"?
In OPFP the D gets possession AND title.

In Larceny by Trick the D only gets possession and true owner keeps title.
Obtaining Property by False Pretenses

What difference does the victim/givers intent make?
If V intends to give you what you obtain title to then it's OPFP

If V does not intend to give you what you obtain title to.
What is meant by "Imputability"
attributing acts of someone else upon D.
If D knows of a potentially dangerous situation and does not avoid it... can that failure to act constitute an act?
Yes, (People v. Decina, the guy who had a seizure while driving)
What is required for an "attempt" to have occured?
An overt act beyond mere preperation.
At what point does an act cross over from preparation to attempt?
When an "overt act" is committed.
When is impossibility an available defense for an attempted crime?
when there is legal impossibility.
Can a D avoid an attempt charge because of fortuity?
No, being lucky that you didn't succeed is still an attempt.
Is Legal impossibility a defense to an attempt charge?
Is Factual impossibility a defense to an attempt charge?
What is it called when the actions which the D performs or sets in motion, even if fully carried out as he desires, would not constitute a crime?
Legal Impossibility
What is it called when the objective of the D is proscribed by the criminal law but a circumstance unknown to the actor prevents him from bringing about that objective?
Factual Impossibility

What is the actus reas required in solicitation?
contributing to the incentive or motive that leads another to commit a crime.

Can solicitation have occured if the solicitee turned down the opportunity to commit a crime?
Yes, solicitee turning down the opportunity to commit a crime doesn't necessarily negate a solicitation charge.

Can solicitation occur if the target offense is committed?
No, they merge and D is charged with the target offense.

What elements must be satisfied for abandonment be a legitimate defense?
D must voluntarily leave or stop the crime and communicate intent to all other parties.
Can a D be charged with murder for a negative act?
Yes, if D had a duty to perform (parent)
What must the prosecution show in a negative act case?
They must show that the D had the ability to do what they are being charged with not doing.
What is the public policy behind a conspiracy charge?
People who act in groups are more likely to succeed and more likely to follow through with their crime.
Is conspiracy a crime by itself?
No, it has to be conspiracy to do something.
Is attempt a crime by itself?
No, it has to be an attempt to do something.
Can a conspiracy be determined to exist only by expressed agreement?
No, it can be implied from the facts and actions of the parties.
What is Wharton's Rule?
If a crime by definition takes two people to commit, then there cannot be a conspiracy to commit it.
What does RICO allow for?
Imputing the acts of one to all others in a conspiracy, and vice versa
What are two limitations on imputing acts of others in a conspiracy?
1. Imputable acts must be within the scope of the conspiracy to impute co-conspirators.
2. Imputable acts must be foreseeable occurrences in the furtherance of the conspiracy.
When has a conspiracy occured?
when there is an agreement among people to commit an offense and an overt act done by one in furtherance of the agreement.
Is respondeat superior applicable in criminal law?
No, (only in EXTREME cases of failure to supervise)
are seperate crimes not in furtherance of a conspiracy imputable to the other actors involved?
No, unless they are reasonably foreseeable to occur.
What is required for someone to be held liable for Aiding and Abetting?
D must have knowledge of the intent of the perpetrator AND intent of encouraging or fascilitating the commission of the offense.
Is it possible to be held liable for accessory after the fact if the principal crime is legally impossible?
Yes, A & A is a seperate distinct crime.
Can intent be imputed to foreseeable occurances?
Yes, if they're reasonably foreseeable (bending over stop signs is sufficient intent to cause a wreck)
What are the 2 proximate cause tests?
1. But, For test (X wouldn't have occured, but for D's actions)
2. Substantial Factor test (D's actions were a substantial factor in the resulting harm)
What must occur to defeat proximate cause?
an intervening cause
What is an "independant intervening circumstance"?
an event that breaks the chain of causation, clearing one from liability from a proximate cause.
What is Vicarious Liability?
when someone is held liable for something that they didn't actually do themselves based on the theory of imputability.
What are the mens rea components?
purpose, knowledge, recklessness, negligence.
What is the difference b/w purpose and knowledge in terms of mens rea components?
not much...

purpose- acting to achieve an end
knowledge- acting knowing that your actions could achieve an end
What is the "offense analysis" of mens rea?
applying mens rea componenets to the whole offense.
What is the "element analysis" of mens rea?
applying mens rea components to each individual element.
What is mens rea analyzed in relation to under an element analysis theory?
1. Conduct
2. Circumstances
3. Result
What does Willfull mean?
with bad purpose or an evil intent.
D beats V, V goes to hospital where doctors act negligently in "saving her". What result?
D is still liable since he set the chain of events in motion.
Are most comon law offenses specific intent or general intent?
Specific intent.
which mens rea analysis would be used in a situation where there is only one element?
offense analysis, elemental analysis wouldn't make sense.
How does strict liability differentiate from the rest of criminal law?
they generally do not require mens rea.
what is a "crime mala in se"?
a crime that is wrong in itself.
What is a "crime mala prohibita"?
a crime that is wrong because it is prohibited.
How can mens rea requirement be determined in a strict liability situation?
severity of punishment. The more severe, the more likely the legislature intended for there to be specific intent.
What process must you go through when determining a mens rea requirement for a strict liability law?
1. analyze statute
2. look at common law
3. look at legislative intent
What concern does a situation that shifts the burden of proof to the D raise?
It raises a Due Process concern.
How can a strict liability being silent on mens rea be interpreted?
a. no mens rea desired
b. mens rea implied
What is the only felony based on strict liability?
Statutory Rape.
What are the three common law divisions for age when considering capacity?
1. under 7
2. 7-14
3. 14 and above.
what is the common law capacity presumption for a child under 7?
there is an irrebutable presumption of incapacity.
What is the common law capacity view on a child 7-14 years old?
There was a rebutable presumption of incapacity
What is the common law capacity view on a child over 14 years old?
There was a rebutable presumption of capacity.
What are the two tests for insanity?
1. ALI test
2. Right-Wrong test
What is the right-wrong test for insanity?
"if at the time the crime is committed the person suffers from such a disease or deranged condition of the mind as to render the person incapable of knowing the nature and quality of the ac thte person is committing or incapable of distinguishing between right and wrong in relation to that act.
What is the ALI test for insanity?
A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks adequate capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law
What is the policy behind the insanity defense?
We believe that a person should have moral agency about them to be blameworthy.
What is the idea of "dimiinished capacity"?
D can appreciate that his acts are wrong, but can't fully appreciate the totality of what he's done. Will mitigate the punishment, not excuse conduct.
What are the three "mental" states (other than sane)
- guilty but mentally ill
- diminished capacity
- insane
Who has the burden of proof in a capacity question?
To what extent must influence go for involuntary intoxication to apply?
influence must go so far as duress or fraud.
When does a mistake of law defense apply?
only when there is an official misinterpretation (preferably written) of the law by one who has a duty to interpret the law (attorney general for example)
How is a mistake of fact defense viewed in terms of statutory rape?
Split authority.

Majority view it as not being an issue.
When is a choice of evils defense possibly applicable?
D must be threatened by imminent injury, response has to be reasonable under hte circumstances
What are the two prongs of self defense?
Subjective - D must prove he felt the need to defend

Objective - must be reasonable under the circumstances.
What is battered womens syndrome?
a form of self defense arising out of an abusive and dependant realationship affectuated through economic, social, and psychological manipulation.
How can Battered Women's Syndrome be shown?
through expert testimony and the testimony of the woman herself.
What is the purpose of Battered Woman's Syndrome?
used to exert a perfect self defense.
What is the difference between a perfect self defense and an imperfect self defense?
Perfect self defense satisfies the two prong test and will result in acquittal.

An imperfect self defese qualifies only the subjective prong and will only mitigate the charge (from murder to involuntary manslaughter)
What result if neither prong is satisfied in a self defense situation?
if neither prong is satisfied, D will be convicted of original charge.
What is the test in a defense of others situation?
D has the right to defend someone if they have the right to defend themselves.
If D comes to the defense of X, and X is the aggressor to V. D is put on trial for battery of V, what defense would D likely use?
Mistake of Fact... D thought he had the right to defend X from V and mistook V as the aggressor.
When is entrapment satisfied?
When the conduct of the government would cause a normal citizen to break the law.

When is entrapment satisfied?

When the conduct of the
government would cause a normal citizen to break the law.

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