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1. Check list a. Major issue i. Component checklist 2.

State issue, tell the rule -- and the public policy basis for the rule, 3. Jurisdiction a. When the state is the legal cite -- conduct or example b. As to crimes of omission, the jurisdiction applies to where the act should have been performed 4. Elements of a crime a. Act i. Any bodily movement 1. Exceptions a. Act which is not the product of the actor's own volition i. Someone pushes someone into a third person b. Reflexive or convulsive act, like having an epileptic seizure c. Act performed while one is unconscious or asleep i. Sleep walking ii. Omissions 1. Duty to act a. Statute (tax returns) b. Contract (lifeguard, nurse) c. Relationship between the parties (parents, spouses) d. Voluntarily assuming a duty of care towards someone else, than failing to perform e. Where your conduct created the peril f. duty to control conduct of others g. duty of landowner 2. inability to act a. exonerated for inability to act i. father who cannot swim 3. duty +ability=guilt b. Mental state i. Transferred intent -- intent gets transferred from one's attempt to their right -- makes one crime into two 1. Murder 2. Attempt at what failed

ii.

Common law -- want to know which crimes go with which crimes under the common law 1. Specific intent a. Intend the result b. Must be proven not presumed c. the state must prove the intent by independent evidence (and cannot be inferred from the conduct) Qualify for additional defenses not available for other kinds of crimes. Voluntary intoxication is a defense d. Inchoate crimes i. Solicitation: Asking someone to commit a crime 1. Solicitation is the counseling, inciting, or inducing of another to commit an offense. 2. The crime is complete upon the performance of this act; it is not necessary that the person solicited respond affirmatively 3. The common law crime of solicitation requires a showing that the defendant acted volitionally and with the intent or purpose of causing the person solicited to commit the crime 4. Typically a Mideamenor ii. Conspiracy: If one asks someone to commit a crime, and they agree (only crime is conspiracy) iii. Attempt e. First Degree Murder (created by statute) i. If you see "murder" -- it is murder in the 2nd degree, and is not a specific intent crimes ii. A defense would reduce the first degree crime to a malice crime of murder -- which is murder in the 2nd degree f. Assault (*) g. All common law felonies against property h. Larceny

i. embezzlement j. robbery k. burglary l. forgery m. false pretences

Specific Intent MPC: Purposely and Knowingly

BURGLARY ASSAULT FORGERY FALSE PRETENSES LARCENY EMBEZZLEMENT PREMEDIDATED


MURDER

ATTEMP CONSPIRACY KIDNAPPING


2. Malice (two malice crimes at common law ( Murder, and Arson)) a. Common law murder 3. General Intent (rape and battery and more) -all other crimes unless they qualify for strict liability -- intent can be inferred from conduct a. All other crimes are general intent b. Intent to do the act c. Includes reckless and criminal negligience d. Presumption of intent Permitted i. A person of sufficient intellgince io understand the nature of his

iii.

actions is presumed to intend the natural and probable consequences of hs action ii. Permissible Inference iii. NOT Mandatory Inference 1. sandstorm 2. maintains burden of proof beyond reasonable doubt 4. Strict Liability a. If the crime is in the administrative, regulatory, or morality area (if there are no adverbs) -- problem with assumption of strict liability according to the b. Mistake of fact negates intention -so it can't be a defense to strict liability i. If a statute is administrative, regulatory, or morality area c. Any defense that negates an intention is no defense to the no intent crimes of strict liability Model Penal Code -- know what the four intents are, and how they correspond to the common law 1. Purposely (subjective) a. one wants the end results to happen (no matter how unlikely) b. Conscious Desire c. Common Law: specific intent 2. Knowingly (subjective) a. didnt' need to want the result, but engaged in conduct overwhelmingly likely to produce that result b. knows conduct will cause a certain result c. Common Law: specific intent 3. Recklessly (Objective and Subjective) a. Engage in conduct where there is a great risk of harm b. Knew there was a great risk of harm, and disregarded it c. subjective-Disregarded Risk d. obbjective-undertook an unjustifiable risk 4. Criminal Negligence (do note equate to a. Like civil negligence, only at a higher standard b. Criminal negligence requires greater negligence than the ordinary negligence

iv.

v.

required for civil liability. In fact, some courts would require that the defendant be aware of the high and unreasonable risk of death. 5. Under MPC if no culpability specifiedminimum is reckless Motive 1. Not required 2. may go to mens rea as evidence (goes to desire) 3. underlying reason crime was committed 4. may help with necessity defense Transferred Intent 1. intent for one crime transfers to another 2. must be a connection between the the crimes 3. malum prohibutum will not transfer to malum in se

5. Causation a. Actual cause i. But For ii. Substantial Cause iii. Concurrence mens reaact b. Proximate cause i. UNFORSEEN, INDEPENDENT, INTERVENING ACT 1. breaks chain of causation 2. several sources a. victim i. Refuses medical treatment 1. split authority b. third person i. life support d/c pc sustained ii. medical negligence 1. gross-unforeseeable no pc 2. general (mere) negligenceforeseeablePC sustained c. defendant d. non human source 3. differentiation based on coincidence or response to criminal act a. coincidencefailed proximate cause unless foreseeable b. responseproximate cause sustained ii. if cause is either foreseeable or not independentPC stands

6. Accomplice Liability a. Accomplices are liable for the crime itself and all other foreseeable crimes i. Natural and probable consequence ii. Do not give anyone accomplice liability the person does not actively aiding abetting or counseling the Accessory crime before the iii. Don't give people accomplice liability just because fact: they are present, but they seem to be consenting iv. They need to be liable for the crime itself and all Procures other foreseeable crimes Counsels v. Principal must know of accomplices intentions for Commands accomplice to be liable vi. If statute protects victim they cannot be accomplice Not actually (whartons rule under conspiracy) or 1. same applies for conspiracy constructivel b. Classes under CL y present at i. Principal in the first degree the ii. Principal in the second degree commission iii. Accessory before the fact of the act iv. Accessory after the fact c. Accessory before the fact i. Those who incite or abet the commission of a crime by another but are not actually or constructively present at the commission of the offense are accessories before the fact ii. An accessory to a crime must have had the intent required for the crime iii. The accessory must have had the intent required for the crime plus, under the modern view, the purpose Accessory of assisting or encouraging the perpetrator Must have iv. Additionally, while some jurisdictions do not require a the Intent finding of purpose for serious crimes, a finding of plus, under purpose is generally necessary when a crime, such the modern Withdrawal as this one, is presumably a minor offense. view, the : v. At Common Law, A person cannot be guilty as purpose of an accessory before the fact if the perpetrator assisting or Renounce (Princial (first or second dgree) did not actually encouraging Criminal commit the crime (not found guilty) the Purpose 1. no longer true in most jursidcitions perpetrator. Naturalize vi. Abandonment: counsel or vii. Withdrawal: physical 1. An abettor (assists ) cannot withdraw by a assistance renunciation alone, but must deprive his earlier (tangible action of its effectiveness. aid) Must Occur before chain of events is unstoppable

POST CRIME AID He: Harbor Must means Wash:Warn Evidence Fast:Force

2. The renunciation must renuciate his crimical purpose 3. If only requesting or encouraging, renunciation of criminal purpose is enough else must neutralize other assistance. a. Get weapons back b. Call police c. Lock door etc etc d. Principals i. Principal of the first degree 1. is the actual perpetrator of a crime. 2. ii. Principal of the 2nd degree 1. incite or abet the commission of a crime by another and who are actually or constructively present at the commission of the offense 2. A person is constructively present when he assists the principal at the very time the crime is committed but from such a distance that he is not actually present 3. held liable for the crime at Common law 4. CL principal in second could be convicted in absence of principle in first being convicted e. Accessory after the fact i. Accessories after the fact are those who receive, comfort, or assist another, knowing that the other has committed a felony, in order to hinder the perpetrators arrest, prosecution, or conviction ii. Elements 1. Knowledge (not just suspicion) 2. Personal Assistance to the felon 3. Asstitance to the Felon a. Hinder: i. Detection ii. Arrest iii. Trial iv. Punishment iii. Post Crime Aid 1. He: Harbor 2. Must means a. Weapons b. Transportation c. disguise 3. Wash: Warn crimiocal of impending discovery or apprehension 4. Evidence

5. Fast:Force, intimidation, deception to prevent discovery iv. Misprison (Common Law) 1. compounding without the consideration 2. Failure to report or prosecute 3. Not a crime today in most jursidictions v. Compounding the Crime 1. expressly agree not to a. prosecute b. give evidence c. report a felony (some states include misdemeanors) d. In return for payment (of any kind) vi. Modern statutory crime of accessory after the fact 1. obstructing justice 2. harboring a fugitive 3. treated as separate offense f. Vicarious Liability i. liability for crimes committed by another person, imposed because of the relationship between the defendant and the perpetrator. g. General issues: i. At common law, conviction of the principal was essential to conviction of an accessory. (However, the rule is otherwise in most jurisdictions today.) ii. Under the majority rule, an accomplice is liable for all probable (i.e., foreseeable) consequences of her conduct. Thus, liability may be imposed not only for the offense incited or abetted but also for all other crimes committed by the perpetrator that were a reasonably foreseeable result of the contemplated crime. iii. As a general rule, it is no defense to accomplice liability based on aiding and abetting that the defendant was incapable of committing the crime. However, there are three exceptions to this rule: 1. if the defendant is the victim of the crime; or 2. if the crime is so defined that participation by the defendant is inevitable, incident to the commission of the crime and the legislature has provided no punishment for such involvement in the criminal statute; 3. the defendant is a member of the protected class established by the legislation. h. Accomplice verses accessories i. Modern view

1. accomplice=Accessory Before the fact + principals in second dregree 2. punished to same extent as principals i. family members i. cl: privilege for wife to assist (coercion presumed) ii. some states extend to family members Inchoate Crimes 1. Solicitation a. Enticing, advising, encouraging or commanding another to commit a crime i. Usually a felony or misdemeanor against public welfare ii. Specific intent for the solicited person to commit the crime b. Acceptance not required c. Impossibility and withdrawal are not valid d. MPC allows for voluntary renunciation 2. Conspiracy (see top) a. If one asks someone to commit a crime, and they agree (only crime is conspiracy) b. elements of conspiracy i. An agreement (act) 1. at CL no over act was required 2. modern rule requires an act in furtherance of the conspiracy 3. agreement can be inferred from conduct need not be express 4. MPC allows a unilateral approach a. Two Parties One has the intent the other does not b. Only one is guilty of conspiracy ii. Intent to agree iii. Intent to pursue the unlawful objective (target crime) c. Liability for conspiracy: each conspirator is liable for all the crimes of co-conspirators if those crimes were committed in furtherance of the conspiracy and were foreseeable. i. Each member of a conspiracy is liable for any crime committed by any other member of the conspiracy that was: 1. a reasonably foreseeable result of the conspiracy; and 2. committed in furtherance of the conspiracy

d. Agreement necessary for conspiracy -- but the agreement does not have to be express e. Conspiracy verses accomplice i. Conspiracy-need agreement accomplice-no agreement necessary ii. Accomplice need to complete act conspiracy no completed act needed f. Defenses to conspiracy i. Overt act 1. Majority: Agreement and some overt act a. Any act will do i. Guy shows up at place he agrees to rob ii. Second meeting 2. Minority: -- and common law -- conspiracy is in agreement itself 3. Under the common law rule and MPC , conspiracy does not require any overt act beyond the making of the agreement 4. if over act required and over actor acquitted conspiracy is dead ii. Impossibility (legal or Factual) is no defense to conspiracy 1. unlike attempt-legal impossibility is a valid defense iii. Withdrawals from conspiracy 1. Even if withdrawal is adequate, it can never withdraw the defendant from liability from the conspiracy itself a. Can withdraw from liability from other subsequent crimes b. conspiracy is complete as soon as the agreement is made and, in some jurisdictions, an overt act is committed 2. Withdraw, even if adequate can never withdraw from liability from the conspirators other subsequent crimes 3. MPC: a. the defendant must do more than just tell her co-conspirators that she desires to withdraw; she must show that she thwarted the success of the conspiracy under circumstances manifesting a complete and voluntary renunciation of the criminal purpose.

iv.

v.

vi.

vii.

viii.

For example, she could inform the police who arrive and prevent the crime Some courts have suggested that, besides having the intent to agree and the intent to accomplish the objective, the parties to a criminal conspiracy must also have a corrupt motive. As the phrase is generally construed, this means that each of the purported conspirators must be shown to have known that the objective of their agreement was illegal. Other courts, however, have rejected this approach, reasoning that there is no policy reason to require awareness of the law in this one area of criminal liability. Feigning: 1. At common law, a defendant cannot be held guilty of conspiracy where all of the other coconspirators are shown to have only feigned agreement, as where the others were police officers pretending to be willing to commit the crime Knowledge of other conspirators 1. It is not required that all conspirators know each other, or even that they be aware of the number of persons involved. Such knowledge is a mere detail. It is enough that each agreed to render some aid to the unlawful act. Pinkerton Rule 1. The rule that conspiracy and the underlying crime are separate offenses; established in Pinkerton v. U.S., 328 U.S. 640 (1946). 2. Vicarious Liability for all crimes even if no MR 3. No Merger Whartons Rule 1. Whartons Rule provides that where persons agree to commit an offense that by its definition necessarily requires a preliminary agreement between the parties, there can be no conviction for conspiracy. 2. Classic examples include adultery, incest, bigamy, and dueling. 3. 2 cannot be convicted of conspiracy and crime >2 they can 4. Some courts do not apply the rule, however, if there are more conspirators than the number

i.

of participants required to commit the contemplated crime ix. Acquittal of all other conspirators 1. At common law, the acquittal of all persons with whom a defendant is alleged to have conspired precludes conviction of the remaining defendant a. Acquittal is not required if some of the other co-conspirators, but not all, have been acquitted, because an agreement remains possible as long as there is at least one other possible guilty coconspirator. x. Chain Conspiracy 1. every link is interdependent on the rest a. smugglertrafficerdealerlocal pusher 2. need a concert of purpose xi. Merger 1. at common law conspiracy merged with the underlying offense 2. now abandoned under common law-now no merger a. separate crimes b. unlike attempt which merges 3. Attempt (see top) a. Attempt is specific intent, and a substantial step in the direction of the crime i. Recklessness and Negligience wont do, need SI ii. Mere preparation for crime cannot be enough, must be a step beyond mere preparation iii. Tests 1. Last Act a. Def performs last act necessary to complete the defense 2. Proximity Test a. After preparations , comes so close that the target crime would be accomplished save external intervention (police) 3. Dangerous Proximity (Oliver Wendell Homes) a. Gravity of Harm b. Degree of apprehension generated c. Probability of completion of target crime 4. Unequivocable (res ispsa loquitur) a. Rarely used b. Conduct is unequivocal

i. ii.

Conduct on its own generates no doubt as to attempt res ipsa loquitur test provide that an act amounts to attempt only when, considered alone, it firmly shows the actors intent to commit the crime.

5. MPC: a. Purpose b. Substantial step toward commission (culminating in the target crime) of target offense and include: i. lying in wait, searching for, or following the contemplated victim of the crime; ii. enticing or seeking to entice the contemplated victim of the crime to go to the place where the crime is to be committed; MPC Substantial iii. reconnoitering the place where Step the crime is to be committed; iv. unlawfully entering a structure, vehicle, or enclosure in which the L Lying in wait crime is to be committed; E-entices victim v. possessing materials to be employed in the commission of E-enters a structure the crime, if those materials are unlawfully specially designed for the A- (assesses) recognizance unlawful use or serve no lawful P-possess materials either purpose of the defendant; illegal or vi. possessing, collecting, or fabricating materials to be used in P- possesses materials which the commission of the crime at or serve no lawful purpose near the place at which the crime S-solicits is to be committed, where this serves no lawful purpose of the defendant; and vii. soliciting an innocent agent to engage in conduct constituting the crime and a willingness to commit the crime. viii. L Lying in wait ix. E-entices victim x. E-enters a structure unlawfully xi. A- (assesses) reconizance xii. P-possess materials either illegal

b.

c.

d.

e.

f.

g.

P- posseses materials which serve no lawful purpose xiv. S-solicit Factual Impossibility is no defense to a charge of attempt i. Majority/MPC: 1. If the facts could have been as the defendant believed them, and if that would be a crime, then he would be guilty of attempting the crime under the MPC and under the majority position. Legal Impossibility i. Valid defense under the common law but generally not recognized by most jurisdictions ii. Person performs a lawful act believing its a crime Hybrid Impossibility i. When a defendant sets out to do things that he believes constitute a crime but, because he misunderstands the surrounding circumstances, his conduct would not actually constitute a crime, most courts hold that he has no impossibility defense to attempt Abandomenent: i. MPC: The Model Penal Code permits a defendant to avoid liability for attempt by proving voluntary abandonment, subject to two conditions: 1. abandons effort 2. completely renounces criminal purpose a. not complete if due to fear of apprehension or just delay execution of target crime ii. CL: generally not recognized 1. the abandonment must have been entirely voluntary and a. not voluntary is due to resistance or intervention 2. renounce criminal purpose. Attempt where target crime is strict liability i. Although attempt generally is a specific intent crime, only a few courts require proof of intent to convict for attempt of a strict liability crime Merger i. Attempt merges with target crime if target crime is completed xiii.

Defenses

a. Insanity -- four test i. M'Naughton Rule (traditional/Majority): Defendant is not guilty by reason of insanity if he lacked the ability to know (and the time of his conduct) the MNaghten wrongfulness of his action or to understand the nature and quality of his action As a Result of MI: 1. I.e. one thinks that they are squeezing lemons 2. Under the MNaghten rule, a cognitive test, a Didnt Know Act defendant is to be acquitted by reason of was Wrong insanity only if, at the time of the crime and as a result of his mental impairment, he either (i) OR did not know the nature and quality of his act, or (ii) did not know that the act was wrong. Irresistible Didnt ii. Irresistible impulse: Defendant lacked the ability or Impulse understand capacity for self control and free choice. Nature and 1. Under the irresistible illness test, a defendant quality of of As a Resultact is entitled to acquittal on insanity grounds if his (Physical MI: commission of the crime was caused by an Consequences) insane Cannot Control 2. impulse that overcame his will to avoid the actions crime 3. Def. Unable to control actions or conform his OR conduct to the law iii. Durham rule (formerly test in DC and NH): Conform Defendant's conduct is a product of a mental illness Conduct to the 1. Under the Durham rule, a defendant is entitled law to acquittal if her crime was the product of a mental disease or impairment that she had at the time. A crime is a product of the impairment if it would not have been committed but for the impairment iv. ALI or MPC test: Defendant lacked the ability to conform his conduct to the requirements of law or MPC lacked SUBSTANTIAL capacity or to appreciate the wrongfulness (criminality) of his act as a resu;t of a As a Result of medntal disease or defect. (Substantial Capacity MD: test). The MNaghten rule and the irresistible impulse Lacks test require a complete loss of cognitive or volitional Substantial power; the Model Penal Code test does not. Capacity to v. General notes: 1. The cause of mental illness is usually Appreciate immaterial. Criminality b. Intoxication Wrongfulness i. Voluntary intoxication: Addicts and alcoholics are of Act voluntarily intoxicated OR Conform Conduct to the law

1. Voluntary intoxication is a defense only to specific intent crimes ii. Involuntary intoxication: When someone is slipped into one's drink or forced to drink) 1. This is a form of insanity 2. Just like insanity it is a defense to all crimes, even the no intent crimes of strict liability 3. Intoxication as a result of mistake of fact is involuntary intoxication, which is treated the same as insanity c. Infancy i. Under seven -- no criminal liability ii. Under fourteen -- rebuttable presumption of criminal liability 1. If the child was between seven and 14, he could be convicted if the prosecution rebutted the presumption that he was unable to form criminal intent. d. Self defense i. Elements: 1. Reasonably Believes, amount of force reasonably needed 2. Imminent threat 3. Cannot be Orginal Agressor 4. No Retreat required if non-deadly a. Can reset by renunciating and withdrawing ii. the defense is available even if it turns out that the belief was wrong iii. Burden of disproving SD is the Prosecutors if raised as an affirmative defense iv. Non-deadly force: one may use non-deadly force any time they believe that a victim reasonably believes that force is about to be used on him v. Deadly force 1. Majority: A victim may use deadly force any time that victim reasonably believes that deadly force is about to be used on him a. Deadly force is any force that results in death 2. Minority: Require a victim to retreat to the wall if it safe to do so a. Exceptions to duty to retreat i. Don't have to retreat out of your home or business

Don't have to retreat if you are a victim of a rape or robbery iii. Police officers have no duty to retreat vi. Resetting status after Initial Aggression 1. Generally, a person who was the initial aggressor cannot use force to defend himself, unless: a. the aggressor runs away and stops at the door, communicate that he is withdrawing. b. Generally, a person who was the initial aggressor cannot use force to defend himself. However, an initial aggressor can regain the right to act in self-defense if the victim responds to his use of nondeadly force with deadly force vii. Effecting a Ciztizens Arrest 1. A private citizen may use nondeadly force to make a felony arrest if the felony was in fact committed, the defendant reasonably believes that the arrested person committed it, and the defendant used no more force than reasonably appeared necessary to effect the arrest. 2. Must be a felony 3. Reasonable force to effect arrest e. Defense of others: i. This turns on only the reasonableness of the belief that they need your assistance. ii. the majority rule is that a defendant has the right to use force in defense of others as long as it reasonably appears that the person assisted has the right to use force in self-defense iii. Most authorities hold that a person can use deadly force to prevent a felony that creates a substantial risk of serious bodily harm to another, such as rape iv. Majority: mistake of fact does not apply as a defense f. Defense of a dwelling i. Deadly force may never be sued solely to defend your property ii. Spring guns are a crime -- deadly force may never be used solely to defend your property iii. Reclaiming of property 1. Force cannot be used to regain possession of property wrongfully taken, unless the action is taken immediately after the loss of the

ii.

property or while in hot pursuit of the dispossessor (must be reasonable force) 2. Otherwise Person not in the position of Posessor, they lost possession and must see other legal means to regain possession g. Duress and Necessity i. Defenses to all crimes at common law, except homicide 1. Necessity is the same as duress, except that it is a defense to all crimes, except homicide 2. May mitigate malice murder to manslaughter ii. the threat must be of death or serious bodily injury, and in all cases, the defendants submission must have been reasonable. iii. A successful assertion of the defense of duress requires that the defendants submission to the coercion and demand that he commit the crime have been reasonable. There must, for example, have been no opportunity to obtain assistance or to avoid the harm by some other, noncriminal method. iv. Threat must be of immediate harm v. It is sometimes a defense to a criminal charge that the defendant committed the criminal act under duress, i.e., a threat made by another to use force against the defendant unless the defendant commits the offense. vi. Threats to harm a defendants family are sufficient. However, the threat must be of immediate harm. vii. Prison escape: Generally, claims of escaped prisoners that escape was necessary to avoid greater evils that awaited them in prison, such as sexual assault, have been rejected on the ground that there were other, noncriminal options available, such as reporting the danger to prison authorities viii. Necessity: 1. The defense of necessity is available where the accused acted in the reasonable belief that perpetration of the offense would prevent the occurrence of a greater harm or evil. h. Mistake of fact i. (defense only when it negates intention) 1. SI:Reasonable or Unreasonable a. Must be an honest mistake 2. GI/MAL:Reasonable

ii. iii.

Any mistake, no matter how preposterous is an event, if the defendant is charged with a specific intent crime MPC: provides that a mistake is a defense if it negates the mental state required to establish any element of the offense.

Mistake of fact chart Mental State of the Crime Specific Intent Application of the Defense Any mistake (reasonable or unreasonable) many courts do not require a showing of reasonableness. Must be an Honest Mistake

Malice and General Intent Strict Liability i. Mistake of law i. ii.

Reasonable Mistakes only

Never

Generally No excuse Exceptions a. Enactment Not reasonably Made available b. Reliance on Public Official c. Reliance on Judicial Decision d. Bad Advise of Counsel:A mistaken belief that criminal law does not prohibit the defendants intended conduct generally is not a defense in a criminal case, and all courts agree that there is no

exception to this rule for good faith reliance on the advice of privately consulted counsel. Rationale: Recognizing such a defense would put a premium on bad legal advice and would create a danger of collusion between a defendant and a lawyer e. Different Law Defense i. f. Negation of Mens Rea i. Specific intent crime ii. A mistake of law is a defense if the mistake negates the intent required for the crime charged iii. GI or SL:no defense reasonable or not

Specific General Intent / Malice or Specific Inent or Srict Liability

Mistake of Law

Mistake of Fact

Honest mistake

General/Malice

Defense Fails YES

NO Strict Liability YES Defense Fails Enactment Not reasonably Made available or law specifically requires awareness of law NO NO Reasonable Mistake YES Jursidcition Applies Moral Wrong Doctrine

YES

if the facts had been as the defendant believed them to be, his conduct would still be immoral.

NO

YES

NO where, if the facts were as the defendant thought them to be, his conduct would still be "illegal.

Jursidcition Applies Legal Wrong Doctrine

NO

YES

Reliance on Judicial Decision

YES NO YES Defense Fails person or public body with responsibility for the interpretation, administration, or enforcement of the law

NO

Reliance on Pubic Official

YES

NO

Reliance on Advise of Counsel

YES

Defense in Valid

NO

Reliance on Advise of Prosecution NO

YES

NO Def Mis-Understood or Mis-Interpreted or lacked Knowledge of the law (usually non penal law)

NO Lead to Violation of Penal Law

NO

NO Negated Specific Intent (reasonable or Unreasonable)

Different law Defense (CL)

YES

YES

YES

General Intent or Strict Liability

NO

YES

Affirmative Defense

b. Consent of the victim i. Battery: At common law consent of the victim may be a defense to battery if: (i) the criminal act did not involve serious bodily injury or the risk of such injury; (ii) there is widespread acceptance of the risk (e.g., in sporting events); and (iii) there is a distinct beneficial effect attending the defendants conduct (as in the case of medical surgery). ii. MPC: Under the Model Penal Code, consent to bodily harm is a defense where the defendants conduct and the harm are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport. c. Entrapment i. Almost never available because predisposition on the part of the defendant to commit the crime negates entrapment ii. Under the traditional approach, entrapment exists only if a law enforcement officer created the intent to commit the crime in the mind of a person who was not predisposed to commit crimes iii. the modern approach, which focuses on the propriety of the officers conduct iv. In some courts an accused cannot both claim entrapment and deny commission of the crime. However, in other jurisdictions and in all federal courts a defendant can both deny guilt and alternatively claim entrapment. v. Entrapment can be as a result of an act by a law enforcement officer or one acting as an agent of a law enforcement officer (snitch). d. Public Authority i. A public officer is authorized to use force and sometimes to take or damage property in carrying out official duties pursuant to a valid statute or court order ii. A teacher may use reasonable force upon a student to promote the students education or to maintain discipline. This right exists regardless of parental consent e. Protected Class

If a crime is defined so as to protect persons in a particular category, persons within that category are not guilty of the crime despite their participation 2. Common law crimes -- no state actually has them. One you know the old common law crimes, one can predict the MPC versions 3. Crimes Against People a. Battery -- (General Intent) a completed assault i. Battery Intent or Reckless Unlawful Force o No Consent ii. o No Privilege iii. Cause Bodily Injury or iv. Cause Offensive Touching v. vi. Battery is the unlawful application of force to the person of another. Force may be directly or indirectly applied, and the Moreover, the victim need not be aware of the touching. Includes the slightest offensive touching Force can be direct or indirect Battery need not be intentional; criminal negligence will suffice (Reckless for MPC) Under MPC reckless is the minimum mens rea for battery Consent may be a defense to battery if: a. the criminal act did not involve serious bodily injury or the risk of such injury; b. there is widespread acceptance of the risk (e.g., in sporting events); and c. there is a distinct beneficial effect attending the defendants conduct (as in the case of medical surgery) The crime of assault merges into a completed battery.

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vii.

Assault Attempted Battery Specific Intent Majority: Or Intends to place victim in apprehension of a touching-same as tort criminal assualt

b. Assault -- to tie to a mental state, it is necessary --must look at the statute i. Assault as an attempted battery (specific intent crime) a. Like all attempts, assault as an attempted battery is a specific intent crime Assault as a threat -- (general intent crime) that some jurisdictions in which assault is defined as an attempted battery also require a showing that the defendant had the present ability to succeed. Merger:assault merges with completed battery

ii. iii. iv.

b. Homicide i. Victim must be human and must be dead ii. iii. Majority rule: no body needed circumstantial is ok a. Common lawhad to produce body or there would be no liability iv. Majority Rule: No time limit or greatly extended a. Common law : death within a Year and a day required rule v. Time of Death a. Common law: heart stops b. Modern rule: brain death vi. Under the general rule, to be convicted of a homicide, the perpetrator must have killed a human being born alive. a. Fetus doesnt count vii. Causation a. Proximate and actual cause viii. Vicarious Liability Argument a. Accomplice Liability i. Co-conspirator ii. Accomplice b. Felony Murder Rule ix. Omission based Liability a. Generally no liability unless there is an affirmative duty imposed on defendant i. Special relationship ii. Def. Placed victim in Peril iii. Legal Relationship x. Murder, by itself is common law murder (requiring malice) and won't be able to use the 1. additional defenses for first degree murder (and for only specific intent crimes) -- lower the mental state to common law murder a. voluntary intoxication b. any mistake of fact reasonable or unreasonable 2. MALICE at common law, one of the following intents were necessary (look like specific intent) a. Intent to kill Transferred Intent Applies to Other Victims i. Deadly weapon doctrine 1. Infer def. acted with intent to kill

2. Negated ie if gun aimed at all and bullet ricocheted into victim inference now gone b. Intent to do serious bodily harm c. Depraved heart i. Intentional performance of an act detailing a substantial likelihood of an act causing death or serious bodily injury 1. Knew or should have known 2. More than simple or criminal negligence 1. 75 in a 65negliginece 2. 90 in a 65criminal negligience 3. 90 on a residential street-super reckless 3. It is super recklessness (wantonness) ii. I.e. play Russian Roulette iii. Split view on Mens Rea of Depraved Heart 1. In some jurisdictions, the defendant must be FMR subjectively aware of the Inherently Dangerous high risk of death his Life Threatening Violence conduct created among its elements 1. In these states, any Felony committed in a ignorance or mistake fashion which threatens the that negates that life of the victim of the crime awareness would be a Must be collateral Felony to valid defense (see Homicide mistake of fact) Homicide must be during 1. in essence it perpetration of felony make this Attempt to safety element an SI Must be a causal connection 2. other jurisdictions adopt the between crime and homicide view that depraved heart exists if a reasonable person would have realized the risk (regardless of whether this defendant did), then the defendant's unreasonable lack of awareness is no defense.

1. Must be a reasonable and honest mistake Vicarious Liability Attaches except for third party killer rule (someone on Right kills someone on left) except for gun battle initiated by Felons d. Felony Murder: causing death while you are committing a felony i. Inherently dangerous felony 1. ii. Course of perpetration 1. Starts when felon moves into zone of perpetration (usally point at which attempt can be substantiated)

Felons

Police Victim Bystander

2. Stops when felons reach a point of seeming safety iii. Vicarious Liability Third Party Killer Rule1. Felon B responsible for Felon Majority Rule A killing store clerk iv. Collateral Felony Rule 1. Homicide must be collateral Gun Battle rule if initiated to felony, cannot be the by Felons homicidal act ie. Assault with a deadly weapon can be sued as felony xi. First Degree Murder (Statutory) a. Premeditation i. Premeditation requires at least some time some time for reflection, ii. but many courts do not require much time. Some courts drastically defer to the jury to determine whether there was adequate time for reflection. Premed and delib iii. Only a few courts require proof of an appreciable period of time during which deliberation could have occurred. Thus, in most jurisdictions, it may only be a few seconds

b. Deliberation i. Means though and considered all options and then reached a cold decision to kill

c. FMR-killing in the course of an inherently dangerous felony d. Some jurisdictions-minority i. Bombings ii. Torture iii. ambush e. Must be intent to kill or FMR xii. Second degree malice murder that cannot be first degree a. No premed and delib b. No FMR c. felony murder i. if there is a defense to the underlying murder there is a defense to felony murder ii. felony in question must be something other than the felony that casued the death iii. deaths must be foreseeable iv. One of the requirements of felony murder is that the felony be independent of the killing. a. An assault by itself is not considered to be independent of the killing if death results. v. deaths caused while fleeing from a felony are felony murder 1. once the defendant reaches a point of temporary safety, deaths caused after this are not felony murder vi. Liability for Death of a Co-felon a. REDLINE view: i. defendant is not liable for the death of a co-felon as a result of resistance by the victim or the police 1. If the victim accidentally kills another (non-co-conspirator), it is a felony murder b. AGENCY VIEW (Majority): i. Under an agency analysis, one of the co-felons must have done the killing. ii. FMR Doesnt apply if victim or bystander or PO kills another whether co-felon or non actor iii. Rationale: killing was not in furtherance of the crime it was in resistance of the crime

vii.

viii.

ix.

c. Proximate Cause View i. Jurisdictions that use the proximate cause theory include any death, even if caused by a bystander or the police, provided that it meets one of several proximate cause tests to determine if the chain of events between the felony and the death was short enough to have legally caused the death. Vicarious Liability a. each felon is liable for those killings by his co-felons that are the natural and probable result of the felony. Deadly weapon doctrine a. a defendant who intentionally uses a deadly weapon may be presumed to have intended the killing, such a presumption may be rebutted. b. Jury may infer but not presume that use of a deadly weapon goes to intent First Degree Murder a. Not automatic b. Killings committed during the perpetration (or attempted perpetration) of certain felonies are often made first degree murder by statute. c. The relevant felonies(forcible) are listed in the statute, and typically include i. arson, ii. rape, iii. robbery, iv. burglary, v. kidnapping, vi. mayhem, and vii. sexual molestation of a child. d. Intoxication i. A voluntary intoxication defense may be used to show the absence of premeditation and deliberation.

Justification No Crime 1. Engaged in a commission of crime a. Crime prevention i. Engaged in commission of a dangerous felony

No Crime

Deadly force was reasonable necessary to prevent commission of felony b. Apprehension of a fleeing felon i. Engaged in commission of a dangerous felony ii. Deadly force needed to apprehend iii. Must pose a threat to police or public 2. Self Defense a. When reasonably necessary i. Respond ing to DF b. No privilege on part of victim c. Retreat i. Majority: non-aggressor need not retreat ii. Majority: Aggressor-must withdraw if reasonable and never from castle (home, office, car) 3. Defense of Others a. If reasonable appears necessary b. Minority rule-mistake not permitted-step into shoes 4. Reasonable and Good faith Mistake of Fact

ii.

Excuse 1. Can the def raise a legal excuse 2. Three Methods a. Infancy i. CL: <7 deemed to be incapable of committing a crime- non rebuttable presumption ii. CL: 7-14 deemed to be incapable of committing a crime- rebuttable presumption iii. CL:.>14 = adult iv. No uniformity in statutory law No Crime b. Mental illness i. Test of insanity 1. Majority: MGnaghten Test (Cognitive) a. Either not know or understand Nature and quality of his/her act or b. Either not know the wrongfulness of his/her act 2. MGnahten+ test (Irresistible impulse test) a. Either MNaghten or b. Because of mental illness the def the volition to control his act

No Crime

3. MPC a. Similar to MNaghten+test b. Difference No Crime i. ii. Under MGnaghten must be totally unaware Lacks substantial capacity to 1. know nature and quality 2. Wrongfulness 3. Control behavior

c. Intoxication i. Voluntary Intox 1. Not an excusemay mitigate premed ii. Invol intox 1. Acts as a legal excuse if it produces a mental impairment if its equal to insanity

Mitigation 1. Will lessen crimevoluntary Manslaughter 2. Killing in the course of Provocation a. Reasonable person would be provokedobjective sufficiency of provocation VM i. Same or similar circumstances

b. And this def. was provokedsubjective sufficiency c. No sufficient cooling off period i. Must be under heat of passion 3. Imperfect self defense rule a. Unreasonable Good Faith Mistake i. Growing modern trend ii. Not under CL 4. Coercion /necessityimperfect defense a. Mitigate to VM Attempted Murder i. ii. iii. Must have specific intent to kill Attempt is always a specific intent crime where murder is a general intent crime MUST HAVE INTENT TO KILL

b. Manslaughter -- Two kinds of manslaughter i. Voluntary manslaughter -- never use voluntary manslaughter unless there is some passion a. Killing from passion (provoked) -- no adequate time to cool off i. Not just words-prevent must be provoke 1. Finding spouse cheating ii. No REASONABLE cool off period 1. The cooling down period for voluntary manslaughter is measured objectively b. Generally, a killing that would otherwise be murder but that was committed in response to an adequate provocation is reduced from murder to voluntary manslaughter. i. To be adequate, the provocation must be of the kind that would cause a reasonable person to lose control, and ii. the interval between the provocation and the killing must not have been long enough for the passions of a reasonable person to cool off. iii. There is also a factual elementif the defendant was not in fact provoked by the situation or if the defendant actually cooled off, the crime is not reduced c. Fight i. A killing during mutual combat constitutes voluntary manslaughter HB 778 (2) ii. involuntary manslaughter a. killings from criminal negligence 2. Criminal negligence requires greater negligence than the ordinary negligence required for civil liability. In fact, some courts would require that the defendant be aware of the high and unreasonable risk of death. a. Falling asleep at the wheel of a car

iii.

b. Driving near people if you though they would move c. Leaving a gun on a table loaded 3. Attempted suicide which harms another a. Perp fails to kills self but kills another i. Majority: inv manslaughter misdemeanor manslaughter (involuntary manslaughter) 1. Really any malum in se crime that does not give rise to inherently dangerous felony-ie larceny 2. killing while you are committing a misdemeanor 3. or what is known as an unenunerated felony(not dangerous) 4. Misdemeanor manslaughter is an unintentional killing caused during the commission of an unlawful predicate act. A misdemeanor will suffice, but so will felonies that are not sufficiently serious to support a felony murder charge. Some jurisdictions require that the predicate act be not only unlawful, but also malum in se (i.e., wrong in itself) rather than simply malum prohibitum (i.e., prohibited for convenience). Hence, for example, many jurisdictions would hold that minor traffic offenses are not malum in se and are therefore not an adequate predicate act.

MURDER
11/18/2007

Killing of Another Human Being with out justification or excuse (Homicide) (Brain Death) 1.Motive 2.Planning 3.nature of Homicide(preconceived Design) NO Fetus YES Born Alive Look to Fetalicide

subjective fault-not objective-not that a reasonable person would know the conduct will result in a killing

felony-murder rule. The doctrine holding that any death resulting from the commission or attempted commission of a felony is murder. Most states restrict this rule to inherently dangerous felonies such as rape, arson, robbery, and burglary. (applied during duration of felony) on the way to commit until perpertrators reach a place of safety

YES

Premeditation=thinking about the act (not intent to kill (already establihsed)-turned over in Perps Mind Deliberation=cool mind or calmy thinking:Cold and calculating(not in heat of passion) Acquital Passage of time is a way to show deliberation but is not the only way YES Succesful Premeditation AND deliberation or statutory definition for felony murder

1.Rape 2. Robbery 3.Burglary 4.Arson

Implied Malice (can be inferred)

(1) the intention to kill a human being; (2) the intention to inflict grievous bodily injury on another; (3) an extremely reckless disregard for the value of human life (depraved heart); or (4) the intention to commit a felony during the commission or attempted commission of which a death results (res Gestae)

Common Law

Statutory Affirmative Duty to Act:by statute, contract, or relationship, one may have an affirmative duty to act to save someone from peril or to provide the necessities of life.(intent) Implied Malice-Use of a deadly weapon (Deadly weapon doctrine) express-malice-specific intent to kill another NO Malice of Forethought YES

FIRST DEGREE MURDER

Defense

NO

Excuse OR Mitigation

NO

Imperfect manslaughter

YES NO

SECOND DEGREE MURDER

Natural-Probable Consequneces rule Deadly Weapon Rule (Permissive Infereence) (rember not mandatory (Sandstrom)

Res Gestae: 1-Time Distance 2-Causation

NO

NO

NO

NO

Intentional Killing Done in Heat of Passion with Adequate Provocation

YES

acted in heat of passion at the moment of the homicide. "Passion" has been interpreted to include any violent or intense emotion such as fear, jealousy, and desperation

YES

Reasonable Person Standard Provacation

YES

No Reasonable Time to Cool Off

YES

a causal link between the provocation, the passion, and the homicide.

YES

Voluntary Manslaughter

No

words alone do not constitute adequate provocation

Speeding (toofast might be depraved heart) Fist Fight Larceny identity theft resulting in a suicide buglary without weapon. stealing a car? mail fraud.

Unintentional Killing resulting from lawful act in an unlawful manner 1. Intent to cause slight injury or 2. Reckless or grossly negligent conduct

YES

Involuntary Manslaughter (Criminally Negligient Homicide) Homicide committed in commission of a dnagerous felony

Agency Rule(Majority) was the felony a homicide, assault or battery--> Merger Was Homicide Independent of Felony Res gestae Satisfied: Time/ Distance and causation Non Perp

Felony Murder Does Not Apply (majority Rule) Some look to Prox cause)

YES

NO

Satisfied

Committed by (Non perp:PO, bystander Victim )or (Perp or Accomplice)

There are two schools of thought concerning whose actions can cause the defendant to be guilty of felony murder. Jurisdictions that hold to the agency theory admit only deaths caused by the agents of the crime. Jurisdictions that use the proximate cause theory include any death, even if caused by a bystander or the police, provided that it meets one of several proximate cause tests to determine if the chain of events between the felony and the death was short enough to have legally caused the death. REDLINE view: idefendant is not liable for the death of a co-felon as a result of resistance by the victim or the police If the victim accidentally kills another (non-coconspirator), it is a felony murder

NO
Unintentional Killing resulting from Unlawful Act (but not a dangerous felony)

Unlawful Act or Misdemeanor Manslaughter

Probably Second Degree / Manslaughteror Must prove P and D

Perp or Accomplice(agency)

Felony Murder Does Not Apply

Not Satisfied

c. Kidnapping (aggrevated form of False Imprisonemnet) i. Kidnapping generally is defined as the forcible movement of another person to another place ii. FI + Movement iii. Specific intent when the kidnapping is incidental to the commission of another crime such as rape, the modern trend requires that the risk to the victim have been increased beyond what is involved in the commission of the other crime. a. Rape b. Robbery

Rape

d. False Imprisonment i. False imprisonment is the intentional and unlawful confinement or restraint of another person. 1. Similar to tort ii. More or less, complete confinement is required, iii. it is not unlawful imprisonment to simply prevent someone from going where he wants to go, as long as alternative routes are available and known. e. Sex offences i. Rape -- slightest penetration completes the crime of rape CL: Husband cannot rape wife Modern Trend: Husband can Sexual Intercourse: any penetration however slight Consent o Reasonable and in good faith believes victim is consent mistake of fact o Unless Obtained by Immediate Threat of BI Uncon Fraud in Factum (nature of Act) Incapacity a. At common law, unlawful sexual intercourse committed by a man with a woman not his wife through force and against her will.(no consent) The common-law crime of rape required at least a slight penetration of the penis into the vagina. ii. Also at common law, a husband could not be convicted of raping his wife. iii. General Intent Crime b. Statutory: Unlawful sexual activity (esp. intercourse) with a person (usu. a female) without consent and usu. by force or threat of injury. i.

ii.

iii.

Mayhem Requisite Intent o Intend to injure dismember or disfigure (actual intent) o Split on Reckless Injury requires: o Perman ent removal o Perman at Disablement of a part of body o Permaa nt disfurgement of appearnece

Rape includes unlawful sexual intercourse without consent after the perpetrator has substantially impaired his victim by administering, without the victim's knowledge or consent, drugs or intoxicants for the purpose of preventing resistance. ii. It also includes unlawful sexual intercourse with a person who is unconscious. iii. Marital status is now usu. irrelevant, and sometimes so is the victim's gender Statutory rape (strict liability) a. <16 (14 to 18) b. delta of 4 or more years c. majority of jurisdictions hold mistake as to age is no defense Defenses: a. Consent i. Fraud in factum (the nature)-NO 1. dr uses penis instead of speculum for pelvic ii. Fraud in the inducement-YES 1. Dr says he can only cure the women byu having sex 2. John refuses to pay prostitute after sex iii. Inavlid Consent 1. Fraud in the Factum i. 2. Age of Vitim 3. Incapcity of Victim 1. Intoxication 2. Mental Disease 4. Consent or submission obtained by placing the victim in fear of great and immediate bodily harm is legally ineffective. 5. Extortion is valid consent Crimes against nature 1. Bestiality 2. Carnal knowledge

iv.

3. Fornication f. Mayhem i. Mayhem is the permanent disabling or disfigurement of a victim, with the intent to cause injury to the victim ii. Must be permananet cannot be temporary a. Scars that disappear g. Property offences i. Larceny 1. Always requires an unlawful taking 2. crime against the property a. a thief can not have possessory interest 3. Common law larceny required a carrying away (asportation) without his consent with the intent to deprive the owner permanently of his interest in the property 4. Larceny = (1) trespassory taking, (2) property of another, (3) intent to permanently deprive (not nec possession) 5. Inent to deprive or substantial risk of permanent depreivation a. Mistake of fact would apply as a defense 6. Slightest amount of movement 7. Spouse: Larceny requires the trespassory taking of anothers personal property. At common law, one spouse cannot commit larceny of the other spouses property because of the identity of husband and wifespouses are regarded as one. Hence, Husband is not guilty of common law larceny. Note: Some courts make an exception when the guilty spouse has separated from the other or is in the process of doing so at the time of the theft. 8. Lost or Mislaid Property: Property that is lost or mislaid is regarded as being still in the constructive possession of the owner. Therefore, if the finder takes possession of the property, he does so from the possession of the owner. However, in such situations, the defendant must have a clue to ownership of the property, and the intent to take the property must be formed at the time he finds the property. a. Realizes its anothers property b. And forms inent at that moment he finds the property

9. Delivery of Property by Mistake a. Larceny if discovered at the moment of delivery b. Initially Intends to return but and later steals-no larceny c. Doesnt ralize mistake No Larceny d. Delays opening package, then stealscourts split 10. Property Held for ransom: a. A defendant who takes another's property with the intent to hold it for ransom creates a substantial risk of permanent loss to the owner, because the owner might not be able to pay (or want to pay) the ransom, and such an act is a sufficient deprivation to establish larceny b. If they return it in hopes of reward, view would be different 11. Does not apply to base or wild animals or unharvested crops or vegiation at CL a. Harvested crops muts be in possession of victim 12. Livestock is property and larceny applies 13. A shoplifter can complete larceny without actually leaving the store with the merchandise. 14. MUST HAVE INTENT TO PERMANETLY DEPRIVE (STEAL) a. Not Joyriding i. Even if stolen item is destroyed b. Still larceny if actor later rethinks and returns item as long as intent was present before at time of act (concurrence) 15. Continuing trespass (statutory expansions of Larceny) a. Not returning something accidentally taken b. Legal Fiction that trespass continues till intent is formed c. If the defendants act of taking the property is wrongful (although not necessarily criminal) and later, while in possession of the property, the defendant forms the requisite intent, the

16.

17.

initial trespass is said to continue until the formation of the intent, at which point the necessary concurrence is established and the actions constitute larceny. Claim of Right a. Not Larceny if own property or to reclaim debt i. Must be done opensly and full explanation of why the goods are being taken ii. Act cannot be done furtively(stealth) iii. Rationale:negates mens rea, of intent Disposition of Property a. Disposition of Property after crime is immaterial b. You can donate it to charity its still larceny

ii.

iii.

Larceny by trick (statutory expansions of Larceny) 1. Larceny by Trick = Larceny, after obtaining possession via lies or false promises. 2. I.e. changing price tags 3. defendant gets possession not title 4. If trusted employee etc, takes possession after forming intent to steal not embezzlement, its larceny by trick a. Never gained lawful possession 5. Yeilds Possession 6. Reliance is measured subjectively, not on a reasonable person basis Embezzlement -- embezzlement has lawful possession 1. lawful possession followed by illegal conversion a. fraudulent conversion or misappropriation of the property of another by one who is already in lawful possession of it. i. Deal with property in a manner inconsitent with the arrangement under which the D. holds the property

iv.

v. vi.

b. example is trustee c. Embezzlement = Bailment Gone Bad! i. Watch being fixed in jewelry store 2. defendant gets possession not title 3. Decide to sell hertz rent a car, if intent formed after renting 4. Disposition of property is immaterial false pretences 1. False Pretenses = (1) false representation of a material fact, (2) causing victim to pass title, (3) defendant knows it to be false, (4) defendant intends to defraud the victim 2. defendant convinces the owner of property to convey title via false pretenses 3. must be a misrepresentation as to a present or future fact 4. Ordinarily, passive nondisclosure of facts is not enough for false pretenses (unless, the defendant was responsibleeven innocentlyfor creating the false impression). 5. Yields Title 6. Reliance is measured subjectively, not on a reasonable person basis Rember cash is Fungible 1. movement of cash=movement of title Robbery = Larceny + Assault 1. Larceny a. Always requires an unlawful taking b. Common law larceny required a carrying away (asportation) without his consent with the intent to deprive the owner permanently of his interest in the property 2. In order to be robbery the defendant must take from the person or his presence a. It is sufficient if the property was in the victim's presence; i.e., close to the victim and within his control in the sense that he could have prevented its taking had it not been for the defendants use of violence or threats. 3. Assualt a. Violence or Intimidation Gaints Person or Third Person b. Immediate Threat c. Take with any amount of violence

d.

e. f.

g.

h.

Picking a pocket is larceny Hypnotism is not considered ForceLarceny iii. Intoxicating victim-Robbery Putting in fear is robbery -- must be in immediate fear i. Can be immediate harm to someone else 1. does not need to be family member Threat of future harm i. general threat to harm at some time in the future will not suffice Impact of when Violence or Intimidatiopn Ocurs i. CL: V/Iat or before takingRobbery ii. CL: V/IPost Taking Larceny iii. SL: V/Iat or before or after takingRobbery Forms Inent after Violence/Initidation i. CL: V/IIntentRobbery ii. SL V/IIntentLarceny Aggravated Robbery i. SL: 1. with Dangerous or Deadly Weapon 2. Dangerous Instrumentality 3. Inflicted Serious BI 4. Worked with an Accomplice

i. ii.

4. Extortion a. Blackmail b. Differences between extortion and robbery i. One does not need to take anything from the person or his presence 1. can be threatned through mail ii. Threat of future harm 1. Not need to be immediate

2. general threat to harm at some time in the future will not suffice 3. Does not need to be physical harm 4. Threat can be factual or fictional c. Examples of threats i. Economic harm ii. Filing a crimincal complaint aginst victim iii. Revealing disgraceful secret

d. Elements: i. Malicious Threats ii. To either: 1. Get Money 2. Compel Vict to refrain form doing any act against his will e. Old CL: i. Corrupt collection of monies or fees from a public officer using the color his office f. Claim of right is not a defense i. Unlike Larceny, FP, Embezzlment g. In some states-inchoate-crime is completed at threat

vii.

Receiving Stolen property 1. Generally, for a conviction on a charge of receiving stolen property, the prosecution must prove that the defendant received stolen property knowing it to be stolen and with the intent to deprive the owner of the property. 2. Modern View is that def. had actual subjective knowledge 1. Includes Blieved the property was stolen

2. ie. Previous dealings with a fence 3. Very Low Price compared to FMV 3. Intent to deprive owner of propery 4. Once the true owner recovers the property, it is no longer stolen. 1. Police Intetcede-decactivates propert as stolen 1. attempt could be charged 2. If Police follow thief and then apprehend both thief and receiver charge can stand 1. Property nvr lost status 3. entrapment does not apply to this situation 5. If the defendant believed the property to be stolen, he may be convicted of an attempt to receive stolen property h. Offences against habitation i. Burglary a. Common Law: i. At common law, burglary is the breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony. 1. At common law, the intent to commit the felony must have been formed at the time of the entry b. for common law had to be a dwelling house at night for intent to commit a felony c. Requires a breaking i. Could be constructive breaking 1. Threats 2. fraud 1. False Police ID 3. Enter Through Chimmney 4. Co-conspirator opens portal ii. At common law any entry without breaking was not Burglary iii. Breaking means opening to gain access

ii. iii. iv. v.

vi. vii.

Application of force to enlarge an already existing opening is not be sufficient 1. if a door or window was partially opened further opening did not constitue breaking HB 1018 1 (a) d. Entering i. Whenever any part of the defendant's body crosses into the house or ii. Entry by an instrument or constructive entry is sufficient. 1. throwing a bomb through a closed window iii. Burglary does not require an entry into the structure itself by breaking. A breaking and entry of any closed part of the structure, such as a closet, is sufficient. 1. Must be physically part of the structure 1. not a trunk or furniture cabinet Intent to commit the felony must be present at the time of the burglary a. At or before B and E Occupany (dwelling house of another) rather than ownership Modern:house replaced with premise (store) and night is removed Abandonment of the plan once entry is obtained will not prevent conviction for burglary. The crime is complete at the moment entry is made with the requisite intent. No merger with intended Felony Defense a. Consent to enter

iv.

i. Arson i. Common Law a. arson is the malicious burning of the dwelling house of another i. unrelated crime would not typically fufill the malice requirement ii. At common law, arson had to be the dwelling house of another

a. Malice i. intended to burn the structure; ii. knew that it would burn; or iii. intentionally and without justification or excuse created an obvious fire hazard to the structure 1. Wantonness (intentional exposure to risk), at least, is required iv. NOT NEGLIGIENCE b. Someoe had to live there c. Some charring of Structure i. It is not necessary that the structure be destroyed or even seriously damaged; in fact, charring is sufficient. Embezzlement: 1. Fraudulent2. Conversion3. Property4. Of d. Tenant could not be convicted of burning another5. By one who already has lawful his own unit possession of it. iii. 40 Saters now include explosion without fire Larceny: 1. Trespassory2. Taking3. And carrying away of the4. Personal property5. Of another6. With the intent to permanently deprive. Larceny by Trick:1. Trespassory2. Taking3. And carrying away of the4. Personal property5. Of another6. With the intent to permanently deprive7. After obtaining possession by means of written or oral lies or false promises. False Pretenses: 1. A false representation of a material present or past fact2. Which causes the victim3. To pass title to4. His property to the wrongdoer5. Who knows the representation to be false5.A: And intends thereby to defraud the victim. Burglary: 1. Breaking2. Entering3. Dwelling of another4. At night5. With the intent to commit a felony therein. Robbery: 1. Taking (trespassory) 2. And carrying away3. Property4. Of another5. With intent to permanently deprive6. By means of violence or intimidation (force or threat of force). Arson - MPC, Section 220.1 (1), second degree felony: 1. Start fire2. With intent to either destroy the structure of another, or destroy or damage his own or anothers structure to collect the insurance. ames W. Dodge: A. Rule: Murder = Homicide + Malice Aforethought James W. Dodge: B. Homicide James W. Dodge: C. Malice Aforethought James W. Dodge: 1. Intent to Kill James W. Dodge: 2. Intent to do Serious Bodily Harm James W. Dodge: 3. Depraved Heart/Reckless Endangerment James W. Dodge: 4. Felony Murder James W. Dodge: D. Defenses James W. Dodge: E. Mitigation - a second chance for imperfect defenses James W. Dodge: If - and only if - you can establish common law/second degree murder, then James W. Dodge: II. First Degree Murder James W. Dodge: A. Premeditation

Battery

The use of force against another, resulting in harmful or offensive contact. Criminal law. The use of force against another, resulting in harmful or offensive contact. --

Intent General

Assault

Specific

Criminal law. The use of force against another, resulting in harmful or offensive contact. An attempt to commit battery, requiring the specific intent to cause physical injury.

Larceny

False Pretenses EMBEZZLEMENT

The unlawful taking and carrying away of someone else's personal property with the intent to deprive the possessor of it permanently Title The fraudulent taking of personal property with which one has been entrusted, esp. as a fiduciary. The criminal

Specific

Burglary

intent for embezzlement -- unlike larceny and false pretenses -- arises after taking possession (not before or during the taking). The commonSpecific law offense of breaking and entering another's dwelling at night with the intent to commit a felony.

2. The modern statutory offense of breaking and entering any building -- not just a dwelling, and not only at night -- with the intent to commit a felony. Some statutes make petit larceny an alternative to a felony for purposes of proving burglarious intent

Robbery

Arson

The illegal taking of property from the person of another, or in the person's presence, by violence or intimidation; aggravated larceny At common law, the malicious burning of

Specific

Malice

Under modern statutes, the intentional and wrongful

someone else's dwelling house or outhouse that is either appurtenant to the dwelling house or within the curtilage

burning of someone else's property (as to destroy a building) or one's own property (as to fraudulently collect insurance) Include reckless and indifferent burning Unlawful sexual activity (esp. intercourse) with a person (usu. a female) without consent and usu. by force or threat of injury. Most modern state statutes have broadened the definition along these lines. Rape includes unlawful sexual intercourse without consent after the perpetrator has substantially impaired his victim by administering,

Rape

At common law, unlawful sexual intercourse committed by a man with a woman not his wife through force and against her will. The common-law crime of rape required at least a slight penetration of the penis into the vagina. Also at common law, a husband could not be convicted of raping his wife.

RapeGeneral Statutory rape-Strict liability

without the victim's knowledge or consent, drugs or intoxicants for the purpose of preventing resistance. It also includes unlawful sexual intercourse with a person who is unconscious. Marital status is now usu. irrelevant, and sometimes so is the victim's gender. Kidnapping False Impisonment Murder General General The killing of a human being with malice aforethought. First DegreeSpecific Common aw MurderMalice

Stolen Property

Knowlingly recdieving stolen property