Term
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Definition
| Whether a reasonable person would believe a crime is taking place. Less than a preponderance of evidence, a qualitative, objective assessment. |
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Term
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Definition
| Facts from which legal conclusions can be drawn. |
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Term
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Definition
| Wrongfully causing the death of another person. |
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Term
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Definition
| Deadly force reasonably necessary to protect a person from death or serious physical harm |
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Term
| Proof Beyond a Reasonable Doubt |
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Definition
Qualitative standard. Need not be absolute certitude, but close.
Subjective to a group of regular laypeople. As a jury instruction, the more detailed, the less likely the instruction will be upheld on appeal. |
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Term
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Definition
Jury acquits the defendant even though the prosecution has met the burden of proof.
Ragland: The jury’s right to acquit despite overwhelming evidence of guilt is not a right of the accused but rather a power of the jury. |
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Term
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Definition
| Punishment is useful insofar as it can deter future crime. Punishment itself is not a good thing. Punishment is never an end in itself. Good for greatest number must be the end of punishment. Utilitarianism is a cost-benefit analysis→the good must outweigh the harm. |
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Term
| Four cases when punishment should not be applied |
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Definition
| groundless, ineffective, too expensive (is there a cheaper way to get the same benefit), needless |
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Term
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Definition
| incapacitation, deterrence (general and specific), reform |
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Term
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Definition
| Keeping individuals from ever committing the same crime (recidivism). Treats the perpetrator as a rational actor capable of adjusting their future actions. |
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Term
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Definition
| Sending a message to the community that committing the crime will bring such punishment. Assumes members of the community will act rationally and not commit the crime as result. |
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Term
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Definition
| The perp cannot commit the act again while incarcerated. Justified when the perpetrator cannot be deterred. |
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Term
| Criticisms of Utilitarianism |
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Definition
| Assumes all potential perpetrators are rational actors when some are temporarily irrational when committing a crime (heat of passion) or are incapable of rational decision making (mentally challenged) |
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Term
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Definition
| Punishment is inherently good when it is deserved (just deserts theory). Moral, ontological reasoning. Punishment is an end, a social good. |
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Term
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Definition
| Individuals should always be treated as ends unto themselves. |
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Term
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Definition
| An innocent person ought not be punished (more needed) |
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Term
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Definition
| We should hate criminals; therefore, criminals have the right to be punished. The state has a duty to punish criminals. Punishment is necessary. |
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Term
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Definition
No crime without law, no punishment without law. A statue with applicable punishment is required in order to try someone.
The basics of the principle of legality are that:
1)your average Joe should be able to understand the law,
2) that the law be clear enough that the policy decisions are not put in the hands of enforcement agencies and
3) that any interpretation should be biased in favor of the accused.
Mochan: Common law crimes continue to be punishable under the law, though nearly all states have abolished common law offenses. |
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Term
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Definition
| Statutes must be sufficiently definite in order to give an individual fair notice of the conduct prohibited so as to not violate the Due Process Clause of the Federal Constitution by reason of vagueness or uncertainty. |
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Term
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Definition
| In construing an ambiguous criminal statute, the court should resolve the ambiguity in favor of the defendant. |
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Term
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Definition
A person may not be punished for an offense unless the statute is sufficiently clear that a person of
ordinary intelligence can understand its meaning. |
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Term
| Nondiscriminatory Enforcement |
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Definition
| A criminal statute should not be so broadly worded that it is susceptible to discriminatory enforcement by law enforcement officers, thereby unduly expanding government power. |
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Term
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Definition
The physical, or external, component of a crime what society does not want to occur. The actus reus of a crime consists of two components, both of which must be proved by the prosecutor beyond a reasonable doubt: 1. voluntary act or legal omission 2. social harm
The MPC breaks down the Actus Reus into three types: 1. Acts 2. Results 3. Attendant Circumstances |
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Term
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Definition
| A “voluntary act” is a willed muscular contraction or bodily movement by the actor. An act is “willed” if the bodily movement was controlled by the mind of the actor. To be guilty of an offense, it is sufficient that the person’s conduct included a voluntary act. It is not necessary that all aspects of his conduct be voluntary. |
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Term
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Definition
Ordinarily, a person is not guilty of a crime for failing to act, even if such
failure permits harm to occur to another, and even if the person could act at no risk to personal safety.
There are five main exceptions to the rule: status, contract, voluntary assumption, risk creation.
Under the MPC, omissions without action can be punished where there is a duty to perform the omitted act imposed by law. Otherwise, the MPC does not explicitly recognize the five, common law exceptions. |
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Term
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Definition
This duty is limited to the scope of the actual agreement to those identified as being the object of care and time and place of where the agreed care should occur.
Some examples: Firefighters, Cops, Doctors, Babysitters, Security Guards, Hospice Workers |
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Term
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Definition
If you have a special relationship with another person where, through that relationship, you can be liable for failure to aid.
Some examples: Spouse to Spouse, Parent to (their own) Child, Legal Guardian
Tricky: If you volunteer to care for another due to age, infirmity, or illness you likely have a special relationship (though it may be a contractual duty of care) |
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Term
| Seclusion of Person in Need |
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Definition
| If you make it harder for a person to get help, you’ve created a duty. |
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Term
| By Creation of the Danger |
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Definition
| If one creates a dangerous situation they can be held responsible for it. |
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Term
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Definition
| Exercising a duty of care is about exercising reasonable duty. For example, if you can’t reasonably aid but run to get help you probably exercised your duty of care. |
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Term
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Definition
| “Social harm” may be defined as the destruction of, injury to, or endangerment of, some socially valuable interest. |
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Term
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Definition
| Some crimes prohibit a specific result, such as the death of another person. The question is whether the defendant’s conduct created a consequence or outcome. |
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Term
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Definition
| Some crimes prohibit specific conduct, whether or not tangible harm results thereby, such as offenses that prohibit drunk driving. |
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Term
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Definition
A “result” or “conduct” is not an offense unless certain “attendant
circumstances” exist. An “attendant circumstance” is a fact that exists at
the time of the actor’s conduct, or at the time of a particular result, and
which is required to be proven in the definition of the offense.
Generally a condition or place signals its an attendant circumstance e.g. “at night” |
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Term
| Incorporation by Reference |
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Definition
| So long as the legislature does not change the meaning of a legal term of art, the interpretation of that term in a statute according to common law does not change. |
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Term
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Definition
Broadly, a person has acted with “mens rea” in the broad sense of the term if she committed the actus reus of an offense with a “culpable” state of mind. “Mens rea” exists in the narrow sense of the term when a person commits the actus reus of an offense with the particular mental state set out expressly in the definition of that offense (elemental).
Mens rea elements at the beginning of a statute usually refer to the rest of the statute. If it’s not clear courts will consider legislative intent and similar statutes.
MPC provides when its not clear which element a mens rea applies to that you apply to it all whereas if a common law statute is silent you use recklessness. |
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Term
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Definition
| Generally all elements that are not SOL, Jx/Venue, Disconnected from the harm/evil, justification/excuse. See 1.13(10). All material elements require a mens rea. |
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Term
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Definition
At common law, person commits the social harm of an offense “intentionally” if: (1) it
was her conscious object to cause the result; or (2) if she knew that the
result was virtually certain to occur because of her conduct.
Under the MPC, there is no general or specific intent. |
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Term
| Transferred Intent Doctrine |
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Definition
A person acts “intentionally” if the result of her conduct differs from that which she desired only in respect to the identity of the victim.
At common law: intent follows the bullet
Under model penal code: can get around the absence of a transferred intent doctrine by treating the recipient as “a person” as opposed to “the” person. Causation is the link between an act and a result. |
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Term
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Definition
Some offenses require proof that the actor had knowledge of an attendant circumstance. At common law, a person acts “knowingly” regarding an existing fact (an “attendant circumstance”) if she either: (1) is aware of the fact; (2) correctly believes that the fact exists; or (3) suspects that the fact exists and purposely avoids learning if her suspicion is correct. The latter form of “knowledge” is sometimes called
“wilful blindness.” |
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Term
| “Specific Intent” Offenses |
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Definition
In most cases, a “specific intent” offense is one that explicitly contains one of the following mens rea elements in its definition: (1) the intent to
commit some act over and beyond the actus reus of the offense; (2) a
special motive for committing the actus reus of the offense; or (3)
awareness of a particular attendant circumstance. |
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Term
| “General Intent” Offenses |
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Definition
Any offense that requires proof of a culpable mental state, but which does not contain a specific intent, is a “general intent” offense. Sometimes,
such an offense will have no explicit mens rea term in the definition of the offense; it is enough that the defendant committed the actus reus
with any culpable state of mind. |
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Term
| MPC Section 2.02 General Requirements of Culpability |
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Definition
| In general, “a person is not guilty of an offense unless he acted purposely, knowingly, recklessly, or negligently, as the law may require, with respect to each material element of the offense.” |
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Term
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Definition
Act: A person acts “purposely” if it is her conscious object to engage in certain conduct.
Result: A person causes a result “purposely” if it is her conscious object to cause a certain conduct.
A/C: The person is aware of the existence of the A/C or believes or hopes that they exist. |
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Term
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Definition
Act: The person is aware of the conduct of that nature.
Result: A person “knowingly” causes a result if she is aware that the result
is “practically certain” to occur from her conduct.
Attendant Circumstances: A person acts “knowingly” as to an attendant circumstance if he is aware that the circumstance exists, or if he is aware “of a high probability of its existence, unless he actually believes that it does not exist.” |
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Term
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Definition
A person is said to have acted recklessly if “he consciously disregards
a substantial and unjustifiable risk that the material element exists or will result from his conduct.” This risk is of such nature that its disregard is a gross deviation from the standard of conduct for a law-abiding person.
Unjustifiable taking of a risk: A reasonable person in the actor's situation would not have taken the risk.
Reasonable person's actions--> 1. Examine the gravity of the harm likely to occur from the defendant's conduct 2. Look at the probability of that harm occurring.
Balanced against: the reason the person took the risk.
Substantial: completely unreasonable behavior
Consciously aware: Not mere blindness; awareness. |
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Term
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Definition
| The person should be aware of a substantial and unjustifiable risk or material element. The risk is of such nature and degree that the failure to perceive it is a gross deviation from the reasonable person standard of conduct. |
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Term
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Definition
At common law, a person acts “knowingly” regarding an attendant circumstance when she suspects that the fact exists and purposely avoids learning if her suspicion is correct.
Under the model penal code, a person acts “knowingly” as to an attendant circumstance if he is aware “of a high probability of its existence, unless he actually believes that it does not exist.” |
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Term
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Definition
An offense is “strict liability” in nature if commission of the actus reus of the offense, without proof of a mens rea, is sufficient to convict the actor.
Strict liability most often applies in relation to “public welfare” offenses. The penalty for violation of a public welfare offense is usually minor, such as a monetary fine or a very short jail sentence.
On rare occasion, non-public welfare offenses are considered strict liability in nature. Statutory rape is the most common example of such an offense.
There is a strong presumption against strict liability as to offenses that have significant criminal penalties. In such circumstances, a court will not assume (absent evidence to the contrary) that the legislature intended to abandon the common law mens rea requirement, even if the statute is silent regarding this element. |
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Term
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Definition
Common Law
Specific-Intent Offenses: A defendant is not guilty of a specific-intent crime if her mistake of fact negates the specific-intent element of the offense. Even an unreasonable mistake of fact—a mistake that a reasonable person would not make—may exculpate the actor, assuming the mistake negatives the mens rea required for the offense.
General-Intent Offenses: A defendant is not guilty of a general-intent offense if her mistake of fact was reasonable. An unreasonable mistake of fact does not exculpate.
Model Penal Code
A mistake of fact is a defense to a
crime if the mistake negates a mental state element required in the definition of the offense. There is no
distinction between “general intent” and “specific intent” offenses. |
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Term
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Definition
In general, knowledge of the law is not an element of an offense. Moreover, a mistake of law—even a reasonable one!—does not ordinarily relieve an actor of liability for the commission of a criminal offense.
Mistakes That Negate the Mens Rea: A defendant is not guilty of an offense if his mistake of law, whether reasonable or unreasonable, negates an element of the crime charged.
Authorized-Reliance Doctrine: A person is not guilty of a criminal offense if, at the time of the offense, he reasonably relied on an official statement of the law, later determined
to be erroneous, obtained from a person or public body with responsibility
for the interpretation, administration, or enforcement of the law defining the offense.
A defendant may reasonably rely on an
official statement of the law found in a statute, judicial opinion, administrative ruling, or an official interpretation of the law given by one who is responsible for the law’s enforcement or interpretation, such as the United States or State Attorney General. |
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Term
| Negating the Mens Rea Element (Mistake) |
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Definition
Purpose: Sincere mistake made in good faith
Knowledge: Sincere mistake made in good faith
Recklessness: Whether the mistake blinded the defendant to a substantial and unjustifiable risk
Negligence: Mistake was reasonable
Strict liability: none |
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Term
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Definition
| If one is solely or jointly the actual and proximate cause of a prohibited harmful result, they are guilty of the offense. |
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Term
| Actual Cause (Cause-in-Fact) |
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Definition
A person is not guilty of an offense unless she is an actual cause of the
ensuing harm. Conduct is the “actual cause” of the prohibited result if the result would not have occurred but for the actor’s conduct.
Something that causes a result but does not have to be the exclusive cause. Contribution can suffice as an actual cause. An action that accelerates the result can be an actual cause.
But for test: but for the prohibited act, the result would not have occurred. The act is a cause in fact. Sole (exclusive) factor is not the test, it can merely contribute to the outcome.
MPC calls this antecedent cause |
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Term
| Multiple Actual Causes (Aggregate cause) |
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Definition
| But for the contribution, the result would not have occurred. Both causes are actual causes. It can also be the case that two persons—two potential defendants—are the actual cause of a result. |
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Term
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Definition
Used where multiple causes could independently bring about the result. The question to be asked is: “Was D’s conduct a substantial factor in the resulting harm?”
The MPC does not apply the substantial factor test—it uses the “but for”
test in all cases. However, the Commentary to the Code explains that, in
deciding whether a defendant was a “but for” cause of a “result,” one would state the “result” with great specificity. |
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Term
| Proximate Cause (Legal Cause) |
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Definition
A person who is an actual cause of resulting harm is not responsible for
it unless she is also the proximate (or “legal”) cause of the harm. When the law states that a defendant was the proximate cause of a result, this is a shorthand way of saying that it is morally just to hold this person responsible for the harm.
This is a legal judgment about the attenuation between act and result. Is one of the causal links, an intervening cause, so dominant as to supersede other causes that contributed to the result.
The MPC just looks at actual cause. The inquiry is a culpability inquiry as to whether the defendant can be said to have purposely, knowingly, recklessly, or negligently (whichever is relevant in a particular case) caused “a particular result” if the “result” occurs in an odd or
unexpected manner. Was “the actual result . . . too remote or accidental
in its occurrence to have a [just] bearing on the actor’s liability or on the gravity of the offense.” |
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Term
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Definition
| The best way to argue something is not a proximate cause is if there are just too many intervening causes (these are other actual causes after yours) or if an intervening cause is just too significant and thus supersedes the ∆’s responsibility for the result. Or you argue it is a proximate cause but a de minimis contribution to the result. |
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Term
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Definition
A direct cause is a but-for cause, in which no other cause intervenes between
it and the resulting social harm. A voluntary act that is a direct cause of the social harm is also a proximate cause of it. This is because there is no other candidate for causal responsibility. |
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Term
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Definition
An “intervening cause” is an actual cause (a “but for” cause) of social
harm that arises after D’s causal contribution to the result. An intervening cause does not necessarily relieve a defendant of causal
responsibility for the resulting harm. At common law, various factors
come into play in proximate causation analysis. |
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Term
| Intended Consequences Doctrine |
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Definition
In general, a defendant is the proximate cause of a result, even if
there is an intervening cause, if the defendant intended the result that occurred. But, one should be very precise in stating what result
the defendant intended: a person may want someone dead in a particular manner, in which case this doctrine only applies if the result occurs in the desired manner. |
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Term
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Definition
In general, a defendant is not the proximate cause of a result if a free,
deliberate, and informed act of another human being intervenes. |
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Term
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Definition
| Even though the defendant has created a dangerous situation, she is not responsible for the ensuing result if it can be determined that the dangerous situation created by the defendant is over—that the victim, once at risk, has reached apparent safety. |
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Term
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Definition
Unlawful killing of a human being by another human being with malice aforethought.
4 theories of malice aforethought:
• Intent to kill.
• Intent to cause grievous bodily harm.
• “Depraved heart.”
• Felonious intent.
MPC 210.2
Purposefully, knowingly, or recklessly + extreme indifference to human life (this includes a semi-felony murder rule for robbery, rape, arson, burglary, kidnapping, escape,) |
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Term
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Definition
What’s Malice?
Intent to kill
Intent to inflict grievous bodily injury
Extreme disregard for human life (depraved heart)
Felony Murder Rule
What’s Aforethought?
The actor thought about what he/she was doing |
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Term
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Definition
Premeditation + deliberation = intent to kill
Intent can be inferred through a person’s actions
We presume a person intended the natural and possible consequences of his/her actions |
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Term
| Intent to Inflict Grievous Bodily Injury |
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Definition
| Intent to hurt the someone in a way that puts the life in danger. |
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Term
| Depraved Heart / Extreme Indifference |
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Definition
Used as a substitute for malice
A person is consciously taking a substantial and unjustifiable risk of causing human death
Remember, in CL you always look to Jx
For depraved heart:
Start an analysis with Knoller.
Rule: Conscious disregard for human life.
BUT: also mention the Thomas test and the Phillips test (engaged in an act, the natural consequences are dangerous to life, act deliberately done by the person, and the act is done with the conscious disregard for life) |
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Term
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Definition
Cause a death during commission of a felony, even accidentally, and you’ve just committed murder.
Felonious intent coupled with a homicide establishes malice aforethought. The rule raises an inference of intent to commit the homicide which can be either accepted or not accepted by the jury.
Inherently dangerous limitation
Look in the abstract
“high probability” or “substantial risk”
Independent Felony limitation (Merger)
Res Gestae (causally linked)
Under MPC 210.2 (felony murder looking rule)
There is a presumption looking thing without having a felony murder rule
This means the judge must allow the prosecutor to pursue this if need be. The prosecutor may argue to the jury that this creates a legally significant inference. Essentially, this rule means he can point to the underlying felony to indicate recklessness and indifference.
This means that the jury may infer based on the underlying felony, they may not just be ordered “hey he did this so he is now by law guilty.”
“Recklessness on its own is not murder, we must prove the extreme indifference and we submit that the fact that he caused death during an arson, the law permits you to consider that felony as sufficient proof beyond a reasonable doubt that there is sufficient proof of his/her recklessness beyond a reasonable doubt.” |
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Term
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Definition
No degrees of murder in the Common Law. Degrees of murder only applies to jurisdictions who have legislated them.
Generally deliberate and premeditated killing is 1° murder. |
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Term
|
Definition
Premeditated means to think about beforehand.
This is the QUANTITY of time. |
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Term
|
Definition
This is the QUALITY of time spent.
Requires a measurement and evaluation of the “major” facet.
It is possible to premeditate, without deliberating.
Deliberation must be in cold blood.
“Cold Blood” Factors (from State v. Forrest)
No provocation (hot blood)
Δ’s conduct & statements
Δ’s threats
ill-will between the parties
dealing of lethal blows after the victim has been felled or rendered helpless
evidence the killing was done in a brutal manner |
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Term
|
Definition
Unlawful killing of another human being without malice aforethought
Voluntary
Heat of passion homicide.
Imperfect self-defenses.
Involuntary
“Dangerous act” homicide
Misdemeanor Manslaughter
Criminal Negligence
MPC 210.3
• Recklessly
• Or murder but with extreme mental or emotional disturbance that would reasonably explain or excuse (e.g HOP)
Note the reasonableness is based on a person in the actor’s shoes under the circumstances as the actor believes them to be. |
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Term
|
Definition
| If adequate provocation is established, a murder charge may be reduced to manslaughter. Generally there are four conditions that must be fulfilled to warrant the reduction: (1) the provocation must cause rage or fear in a reasonable person; (2) the defendant must have been adequately provoked; (3) there should not be a time period between the provocation and the killing within which a reasonable person would cool off; and (4) the defendant should not have cooled off during that period. |
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Term
|
Definition
Reduces murder to manslaughter by removing malice.
How to Analyze Heat of Passion --> Gravity v. Loss of Control
Provocation: You look to all the facts that show it more or less likely that ∆ would lose control. (Subjective from the defendant's circumstances)
Loss of Control: You look only to the reasonable man standard (objective) and take only age and sex into account. Would a reasonable person of this age and sex have lost control?
Cooling off: ∆ must have also had no time to cool off (temporal analysis; think a time to kill) |
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Term
| Traditionally "Adequate" Provocations |
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Definition
• Adultery—caught in the act.
• Mutual combat.
• Assault and battery.
• Resisting an unlawful arrest.
• Injury or abuse of close relative.
WORDS ARE NEVER ADEQUATE PROVOCATION |
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Term
| Ireland and Heat of Passion |
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Definition
| Did the defendant lose control and was the loss of control subjectively reasonable. |
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Term
|
Definition
| A lesser version of felony murder, and covers a person who causes the death of another while committing a misdemeanour– that is, a violation of law which doesn't rise to the level of a felony. This may automatically lead to a conviction for the homicide, if the misdemeanor involved a law designed to protect human life. Many violations of safety laws are infractions, which means a person can be convicted regardless of mens rea. |
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Term
|
Definition
| Extreme indifference to human life. |
|
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Term
|
Definition
210.1 Criminal Homicide
Purposefully, knowingly, or negligently causes the death of another human being
Homicide is murder, manslaughter and negligent homicide |
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Term
|
Definition
| Malice inferred from a person's conduct. |
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Term
| Inherently Dangerous Felony |
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Definition
A homicide that is a direct causal result of the commission of a felony inherently dangerous to human life constitutes at least second degree murder. The exception is when the legislature determines that non-dangerous felonies are also inherently dangerous.
Felony murder is limited to felonies that are inherently life-threatening.
Grand theft is not inherently life
threatening (Howard). |
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Term
|
Definition
Most states recognize some form of “independent felony” or “collateral felony” limitation. That is, the felony-murder rule only applies if the predicate felony is independent of, or collateral to, the homicide. If the felony is not independent, then the felony merges with the homicide and cannot serve as the basis for a
felony-murder conviction.
e.g. most jurisdictions hold that felonious assault may not serve as the basis for felony-murder. |
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Term
|
Definition
Physical limitations to the felony murder rule. A requirement of the felony-murder rule is that the homicide must occur “within the res gestae [things done to commit] of the felony,” which requires both:
Temporal: Did the death occur during the felony? There must be a close proximity in terms of time and distance between the felony and the homicide. The res gestae period begins when the defendant has reached the point at which he could be prosecuted for an attempt to commit the felony, and it continues at least until all of the elements of the crime are completed. Most courts provide that the res gestae of a felony continues, even after commission of the crime, until the felon reaches a place of temporary safety.
Causal: Did the felony cause the death?
Relational: Who caused the death, and who was killed? |
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Term
|
Definition
Unlawful sexual intercourse with a woman without her consent by force, fear, or fraud.
The act: “Any penetration, however slight.”
Consent and Force: Traditionally, rape required proof of both: (1) lack of consent by the V; and (2) force by the ∆.
Marital rape exemption:
Complete defense now abandoned in all 50 states. But see MPC §§ 213.1(1); 213.6(2).
Some states, however, still treat spousal rape differently:
May be its own offense, with different sentencing schemes.
May include special “prompt report” requirements.
May require force in addition to lack of consent, even when the general definition of rape may not.
May not apply to sex offenses not involving sexual intercourse.
Cf. MPC § 213.1’s grading of rape offense.
Mens Rea: General intent
Defense: A good faith and reasonable belief that the V voluntarily consented is a defense to rape.
You can’t get the death penalty for committing rape. |
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Term
|
Definition
At the time of the act of sexual intercourse or sexual contact there are actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact.
Focus on consent from the ∆’s perspective.
Not whether V effectively communicated no consent to ∆, but whether ∆ obtained “affirmative and freely given permission of the V to the specific act of penetration.
“Green light” versus “red light” focus.
Intoxication: In some Jxs, rape in the 1st degree when V incapable of consent by reason of being physically helpless. |
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Term
|
Definition
Force and “earnest resistance”: At common law, to establish the requisite force for rape, the π was required to prove: (1) the use or threat of force likely to cause death or serious bodily injury; (2) a kidnapping; or (3) the V’s “earnest resistance” to ∆’s conduct.
Traditionally, if neither #1 or #2 present, “utmost” resistance by the V was required, “until exhausted or overpowered,” or else the force element was not established.
At common law, verbal resistance not sufficient—“no” by the V not enough to prove force by the ∆, only lack of consent. |
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Term
|
Definition
Active resistance the only way objectively to establish the crime independent of the V’s word.
Examples:
Brown (1906): ∆ tripped 16-year-old female to ground, held her down while she pulled at the grass and screamed, and covered her mouth until she “was almost strangled”—not enough to prove resistance and thus force.
Rusk (1979): Taking V’s car keys from her and “lightly choking” her, plus other facts, not sufficient to prove resistance and thus force.
Alston (1984): ∆ threatened to “fix” V’s face and grabbed her; “[a]lthough V’s general fear of ∆ may have been justified by his conduct on prior occasions,” no proof of force “absent evidence that ∆ used force or threats to overcome the will of the victim to resist.”
Several Jx’s have abandoned any resistance requirement, but some states still retain some form of it, often requiring “reasonable resistance.”
In Jx’s that have abandoned a resistance requirement, proof of the V’s actions, including a failure to resist, still admissible if it tends to prove consent. |
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Term
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Definition
If the defendant contends that the female consented to sexual intercourse with him on the occasion of the alleged rape, evidence of prior consensual sexual acts between the accused and the victim is admissible. However, today, most states bar evidence of the alleged victim’s prior consensual sexual activity with persons other than the accused and her reputation for lack of chastity under the so-called “rape-shield” laws. The Model Penal Code is silent regarding the admissibility of evidence of the alleged victim’s sexual history or reputation for chastity.
Common exceptions:
Bias or motive to fabricate.
Source of physical evidence.
Prior consensual sexual relationship.
Prostitution. |
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Term
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Definition
Lack of consent presumed due to V’s age.
Unlike like many modern rape laws, some age-based statutory rape laws still may be gender-specific to prohibit sexual intercourse by males with females.
Traditional justification: To protect young female chastity.
Modern justification: To prevent teen pregnancy?
Traditionally a strict liability crime as to V’s age: Even a reasonable mistake about the V’s age provides no defense to the crime. But cf. MPC § 210.6(1): Reasonable mistake of age defense available when V is 10 years of age or older |
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Term
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Definition
A ∆ is guilty of rape if D has intercourse with a female that is not his wife & compels by force or threat
The focus is on D's acts and not the V.’s lack of consent or resistance
However, the threat usually must be one that would prevent resistance by a woman of ordinary resolution.
Or some type of mental defect or illness that prevents her from knowing what she’s doing
Or fraud to induce the intercourse
Degrees of Rape:
Rape that the D inflicted serious bodily injury on the V. or another is a 1° degree felony.
Rape where V was not a voluntary social companion who had previously permitted the sexual liberties is a 1° degree felony.
All other rape is a felony of the 2°.
Marital immunity rule
extends to persons living together as man and wife (§213.6(2);
is not applied if there is a judicial decree of separation (§213.6(2)).
Fraud in the Factum is not rape, see gross sexual imposition (§ 213.1(2)).
Corroboration required and cautionary jury instruction given. |
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Term
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Definition
A defense is when a crime is committed and can be proven beyond a reasonable doubt BUT something separate from the crime negates the ∆’s culpability
When presenting a defense, the burden is on the ∆ to prove the defense beyond a reasonable doubt (burden shift)
Mistake is not a defense (it’s about mens rea)
Defenses relate back to punishment theory |
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Term
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Definition
A defense where we say the facts or circumstances of the incident negate the reason to punish the crime (so the crime that occurs becomes lawful) Where there is justification, there is no social harm.
3 types under CL & MPC
Self Defense
Defense of Third Parties
Defense of Property
Choice of Evils
∆ must prove the justification beyond a reasonable doubt. |
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Term
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Definition
A defense that raises an issue about the defendant that allows us to excuse the action. Due to circumstances unique to D and the D and the D’s situation we should not hold D blameworthy. There is still social harm, but the guy’s nuts; how can we punish him?
Must prove excuse by a preponderance of the evidence.
4 types under Common law and MPC:
Duress
Intoxication
Insanity
Entrapment |
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Term
| Justification (Common Law) |
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Definition
Deadly Aggressor: Defender can’t be the initial aggressor, the aggression has to be deadly force or the threat of deadly force and there must be proportionality
Reasonable Belief
Necessity: D can’t cause the necessity/Lesser of harms analysis/murder is never a necessity
Immediate: harm must be imminent. Is this a temporal? (Norman)
Retreat: Majority of Jx say you don’t have to retreat, minority is you do, if you know of a safe place to retreat, and can do in complete safety. An exception to this is the castle doctrine. |
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Term
| Self Defense Under MPC 3.04 |
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Definition
Can’t provoke
Imminency
Belief Requirement
Subjective under 3.09(2)(b) but can’t be reckless or negligent in having or acquiring the belief (objective)
Necessary to protect against unlawful force
On the present occasion &
The harm to be avoided is greater than the harm done (also no reckless or negligently causing the harm)
No excuse for resisting arrest (even unlawful)
No excuse to resist force used by taker or possessor of property unless the D is a public officer or the D was unlawfully dispossed of the property
or the D is protecting himself from death or harm
Gotta retreat if you can
Castle doctrine means you don’t retreat from home or work (but if work gotta run from coworker)
No Deadly force unless protecting from death, serious bodily harm, kidnapping, or compelled sexual intercourse. |
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Term
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Definition
Common Law:
Basically same as self defense
D needs a reasonable belief that the person needed protection
Minority Jx say self defense would need to be justified in fact
Under MPC 3.05:
If D were in the victim's shoes and under 3.04 could protect himself
Under the circumstances as the actor believes them to be
(but under 3.09, can’t be reckless or negligent in getting or having this belief) |
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Term
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Definition
Common Law:
D can use non-deadly force
Has to be at the time (or in pursuit) and the D must be in rightful possession of the property (this does not mean he has to have title just rightful possession)
Some states allow deadly force
MPC:
Not a fan of deadly force
Subjective belief
Fresh pursuit |
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Term
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Definition
Common Law Elements:
Law rewards better choice between two competing social harms
Jury decision
Choice between comparable harms insufficient
Imminence
Causation: D reasonably must believe greater harm will be averted by his or her actions
No Alternative
Blamelessness: D must not bear fault for the greater harm.
Under MPC 3.02:
D believes conduct necessary to avoid harm to D or another
Harm to be avoided is greater than the harm of D’s conduct
Harm need not be imminent
Defense is available in homicide case – Really tough sell
Defense not available to offense charging negligence or recklessness if D negligent or reckless either in creating the greater harm or in assessing necessity of the choice |
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Term
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Definition
Under CL
Unlawful threat of imminent death or grievous injury (non-deadly are not good enough)
Belief is reasonable person standard
D did not expose himself to this threat
Generally you can’t use duress to get out of murder
Under MPC 2.09
Use or threat of unlawful force against D (deadly force not essential)
A person of reasonable firmness could not have resisted
Is an excuse for any homicide (still hard to get for murder though though) |
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Term
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Definition
Common Law:
Voluntary intoxication: you won’t get out of it
Can try to get out of the mens rea in a specific intent crime by claiming D could not foresee the risk.
Involuntary: coercion, mistake, medication, pathological intoxication-->will get you involuntary excuse
MPC 2.08
MPC is all about the mens rea, so examine the mens rea requirement and make a good argument based on how and why they were intoxicated |
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Term
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Definition
Under both the common law and MPC insanity is the last defense you want to use
Not all states even allow insanity but may have "guilty but mentally ill (sentencing)"
Common Law Insanity
Didn’t know the nature and quality of the act.
Negates criminal liability/commits the crime civilly
Focuses on whether a the time of the crime the criminal was insane in a way that should not be held criminally responsible
M’Naghten test
D is insane if due to mental disease or defect
(1) did not know the nature or quality of his or her actions or
(2) D could not distinguish right from wrong
Irresistible impulse: an uncontrollable impulse destroyed D’s ability to choose right from wrong
MPC 4.01
If as a result of mental disease or defect D lacks the substantial capacity
Do not call this diminished capacity or a diminished capacity test
D need not be completely unable to appreciate the criminality of his actions, just needs to lack the substantial capacity to appreciate |
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Term
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Definition
The government or government actor INDUCES one, for the purpose of prosecuting them, to commit a crime the person would not otherwise have committed
BUT this is not about opportunity being created its about the inducement to do something you wouldn’t do.
Drawing an innocent person into criminality
Strict standard: not create an attractive opportunity to commit a crime (most good police stings do not apply).
MPC § 2.13
Not a defense to charges involving injury or threat of injury to a person other than the actor offering the inducement. |
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Term
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Definition
Only applies to specific intent crimes (no negligent or reckless attempt)
Two General Types
Complete: an unsuccessful but complete effort at the target offense.
ex: attempted assassination. Oswald Harvey shoots but misses. He is caught and charged for attempted assassination.
Incomplete: An incomplete effort to commit the substantive target offense.
ex: attempted assassination. Oswald Harvey gets his rifle up to the library and when he’s setting up a cop taps him on the shoulder and takes him in for attempted assassination.
Showing the Actus Reus under the common law
Completed Attempts – pretty evident… He Shot the Rifle.
Incomplete Attempt Tests
Where do “mere bad thoughts” turn into a crime?
Proximity Test: Close in space and time or set forces in motion with high probability of completion
Probable Desistance: “Law Abiding Citizen” would have broken it off.
Unequivocal Act: Clearly manifest criminal purpose
Last Act: Beyond D’s control… i.e. pulled the trigger.
Must have the same state of mind required for the conviction of the target offense
Dual Intent – Gentry (p 740-741)
Intent to commit the acts that constitute the actus reus of the attempt.
Must commit acts with the specific intent to commit the substantive crime
MPC 5.01
Acting with same state of mind for commission of target crime
Conduct – must purposely engage in all elements of conduct made criminal by the crime attempted §5.01(1)(a)
Permits conviction for attempt if the D acted with the purpose or belief that his act would cause a particular result
Complete Attempt:
Conduct offenses: 5.01(a)
Result Crimes: 5.01(b)
Incomplete Attempt §5.01(1)(c):
Mens rea: purposefully
Need to show Substantial Step
Examples of substantial step: §5.01(2) |
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Term
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Definition
If we find someone not guilty because of abandonment what we are saying is they are not guilty even if there was a substantial step taken because their conduct shows a complete renunciation of the attempt
This defense is not available under common law. |
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Term
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Definition
| Merger: although an attempt constitutes a discrete offense from the target offense, no separate prosecution for attempt if it is successfully completed. See also MPC § 1.07 |
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Term
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Definition
Holding one liable for the conduct of another.
Common Law
Actus Reus
1. Principle in the First Degree: person who actually committed the crime
2. Principle in the Second Degree: present at the scene and assisted in the commission
3. Accessory before the fact: provided assistance before the crime was committed
4. Accessory after the fact: provided assistance after the crime was committed.
Need both under the common law:
Accessory could be convicted only when the principal was previously convicted
This means if the guy is not available to be tried you can’t convict this fellow of being an accomplice
Accomplice in Felony
Mens Rea
Intends to aid, assist or encourage
& the intent that the principal actually commit the crime
This means you need to show two intents.
Just being present is not enough.
You can prove intent based on confession, admission, circumstantial evidence
Accomplice in Misdemeanor
Common law doesn’t use distinctions here, just treats all ∆’s as Principals.
Usually CL just goes after principles in the first or second.
Didn’t matter if one got off the other could still be convicted.
MPC
Major Differences
No Accomplice in Misdemeanor Distinction
MPC has no accessory before the fact distinction/no accessory before the fact/no principals in the first or second degree.
an accomplice can be convicted even if the principal wasn’t MPC § 2.06(7)
Mens Rea
CONDUCT CRIME
Looks away from the intent of the Common Law and towards “purpose of promoting or facilitating commission of the offense” 2.06(3) Note that this means knowledge alone is not sufficient to establish complicity (especially for a retailer) but is a factor to be considered. When looking at retailers charging inflated rates, getting a % of the profits from a criminal activity or the criminals providing a high portion of his business could be used to infer intent.
RESULT CRIME
When looking at this MPC asks whether the person had the culpability required for the commission of the offense 2.06(4) |
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Term
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Definition
Liability for a criminal agreement
It is a crime different from its object. You can be tried for conspiracy to commit murder and the actual murder
NO MERGER RULE
Actus reus
unlawful agreement between 2 or more people
Plurality Doctrine: can’t conspire with someone who isn’t actually agreeing to commit the crime
Some Jx require overt act to accomplish the goal
MPC doesn’t require plurality or overt act
Mens rea
Intent to partner
Intent to accomplish the unlawful objective
Pinkerton Rule: If you enter into a conspiracy you are liable for any foreseeable substantive crime that may occur due to the conspiracy |
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