Defenses: prosecution must disprove beyond a reasonable doubt

Affirmative defenses: defendant must prove by a preponderance of the evidence

-Legal Duty to Act (contract, statute, status relationship, voluntary assumption of care, creation of the peril)

-Knowledge of the facts giving rise to the duty

-Ability to help

SPECIFIC INTENT CRIMES

(not just desire to do the act, but the desire to achieve a specific result)

Defenses for specific intent ONLY

(only available for specific intent crimes)

1. voluntary intoxication

2. unreasonable mistake of fact

Malice Crimes

(defendant acts intentionally or with reckless disregard of an obvious or known risk)

General Intent Crimes

(generally aware of the factors constituting the crime)

Strict Liability Crimes

(simply doing the act, no mental state)

-Public Welfare

(transferring unregistered firearms, selling contaminated food, shipping adulterated drugs in interstate commerce)

-Statutory Rape

-Intentionally (MPC Purposefully: conscious desire to achieve results)

-Knowingly (aware or practically certain he will cause results)

-Recklessly (aware of substantial and unjustifiable risk + consciously disregards)

-Negligently (should have been aware of substantial + unjustifiable risk)

-Strict Liability

"But For"

bad result would not have happened but for defendant's conduct

Note: an accelerating cause is an actual cause

Bad result ia a natural and proximate consequence of the defendant's conduct (even if pre-existing weakness contributed to result)

**NOT proximate cause if an unforseeable event causes bad result

Unlawful application of force to another, resulting in:

bodily injury, or

an offensive touching

mental state: general intent

1. attempted battery (swing and a miss)

2. Intentional creation (other than by mere words) of a reasonable fear in the mind of a victim of imminent bodily harm (a fake punch)

mental state: specific intent

Intentionally causing physical injury to another person

1st deg: WEAPON

2nd: intentionally causing SERIOUS physical injury to person

3rd deg: intentionally causing non-serious physical injury

*no separate battery in NY

ATTEMPTED REQUIRES INTENT TO ASSAULT

weapons

injury

(physical: substantial pain)

(serious physical injury: permanent or life threatening)

quantity

YEAR AND A DAY RULE

(MURDER)

Common law: death must occur within a year-and-a-day of the homicidal act

NY: death may occur at any time

Causing the death of another person with malice aforethought

FOUR MENTAL STATES:

-intent to kill (can be inferred from use of deadly weapon)

-intent to inflict serious bodily harm

-extreme recklessness (reckless indifference to human life/depraved heart murder)

-intentional commission of an inherently dangerous felony

If a defendant intends to harm one victim but accidentally harms a different victim instead, the defndant's intent will transfer from the intended victim to the actual victim

*DOES NOT APPLY TO ATTEMPTS (only completed harms)

Any killing caused during the commission of or an attempt to commit a felony

Common limitations:

-D must be guilty of underlying felony 

-felony must be inherently dangerous

-felony must be independent of killing

-killing must take place during the felony or during immediate flight from felony (once felons reach temporary safety the felony ends)

-death must be forseeable

-victim must not be a co-felon

B: burglary

R: robbery

A: arson

K: kidnapping

E: escape

S:sexual assault

MAJORITY RULE: Proximate cause

-if one of the co-felons proximately causes the victim's death, ALL of the other co-felons will be guilty of felony murder, even if the actual killing is committed by a third party

MINORITY RULE: Agency Theory

-Felony murder doctrine applies only if killing is committed by one of the co-felons (NO 3rd PARTY!)

Limited affirmative defnese to felony murder if defendant can prove each of the following four things:

1. defendant did not kill the victim

2. defendant did not have a deadly weapon

3. defendant had no reason to bleive that his co-felons had deadly weapons

4. defendant had no reason to believe that his co-felons intended to do anything that was likely to result in death

COMMON LAW SECOND DEGREE MURDER

1. intent to kill

2. D is more than 18 years old

3. at least one aggravating factor

-victim is law enforcement officer engaged in officila duties at time of killing

-defendant committed a murder for hire

-felony murder where victim was intentionally killed

-killing for the purpose of victim intimidation

-there was more than one victim intentionally killed in same criminal transaction

1. Intentional killing that does not qualify for first degree

2. highly reckless killing demonstrating depraved indifference to human life by engaging in conduct that creates a grave risk of death (generally involving more than one victim)

*note: one victim usually requires torture

3. Felony murder where victim NOT co-felon and killed unintentionally

Intentional killing committed in the heat of passion upon adequate provocation

1. objectively adequate (arouse sudden intense passion in reasonable person)

-assult/battery/presently witnessing adultery

(words alone may count but didn't used to)

2. subjectively adequate (actually provoked)

3. Defendant did not have time to cool

4. Did not acutlaly cool off between provocation and killing

NEW YORK EED

(like common law voluntary manslaughter)

Intentional killing committed under the influence of a reasonable and extreme emotional disturbence

Acts as an affirmative defense to second degree murder, which means D must prove by preponderance of the evidence

-A killing committed with criminal negligence (higher standard - gross deviation)

-A killing committed during the commission of a crime to which felony murder doctrine does not apply

FIRST DEGREE: EED manslaughter (intent to cause serious physical injury)

SECOND DEGREE: recklessness (defendant is aware of and consciously disregards a substantial and unjustifiable risk of death)

When the victim of the homicide is a police officer killed in the line of duty

(adds aggravated to specific crime, i.e. aggravated criminally negligent homicide)

unlawful confinement of a person without his or her consent

general intent

SECOND DEG: unlawfully restraining someone without their consent

general intent

FIRST DEG: Second degree + risk of serious physical injury

SECOND DEG: abducting someone

FIRST DEG: abducting someone AND either:

1. ransom and restraint of the victim for more than 12 hours with intent to rape, injure, or rob the victim, OR

3. death of the victim

(note: victim killed accidentally --> 2nd degree felony murder

victim killed intentionally --> 1st degree felony murder)

1. sexual intercourse

2. without victim's consent

3. accomplished by EITHER:

a. force

b. threat of force, or

c. unconscious victim

Mental state: GENERAL INTENT

Sexual intercourse with someone under the age of consent

MAJ: strict liability

MIN: a reasonable mistake of age is a defense

17

-defendant must be at least 21 and the victim 16 or younger

Trespassory taking and carrying away the personal property of another with the intent to permanently retain the property

-wrongful or unlawful

-property must be moved

-cannot have lawful custody of the property

-can't be larceny if intends to give property back

If a defendant wrongfully takes property, but without the intent to steal, he will not be guilty of larceny BUT if he later forms the intent to steal, the initial trespassory taking is considered to have continued and he will be guilty of larceny

(exception to the concurrence rule)

Conversion of the personal property of another by a person already in lawful possession of that property, with the intent to defraud

SPECIFIC INTENT TO DEFRAUD

Difference from larceny: D must already have lawful possession of the property

POSSESSION is more than mere custody (requires discretion over property)

Obtaining title to the personal property of another by an intentional false statement, with the intent to defraud

Difference from larceny: defendant gets only custody of the property; in false pretenses defendant gets TITLE (ownership)

False statement: must be of present or past event (not future promise)

Larceny from another's person or presence (some location reasonably close to victim) by force (any amount of force to overcome resistance is sufficient) or threat of immediate injury

mental state: specific intent to steal

FIRST: a million

SECOND: 50,000

THIRD: 3,000

FOURTH: 1,000

Petit Larceny: less than 1000

FIRST: Forcible stealing and the victim is SERIOUSLY injured or defendant uses or displays a firearm

SECOND: forcible stealing and a defendnt is aided by another who is actually present OR victim is injured OR a car is stolen (carjacking)

THIRD: forcible stealing

1. Breaking (creating/enlarging an opening by minimal force)

-can even be opening a window BUT NOT climbing thorugh an open one

-can be constructive (gaining entry by fraud, threats, or intimidation)

2. Entry (some part of defendant's body must enter building)

3. Dwelling (structure where someone sleeps)

4. Of another (not your own house)

5. At Night

6. Intent to commit felony inside (specific intent - rob, rape, assult, etc.)

**NOTE: many states have eliminated technical requirements

FIRST DEG:

-D knows he is burglarizing a dwelling, PLUS

-non-participant is injured

-or WEAPON

SECOND DEG: third PLUS

-one building is a dwelling, or

-non-particpant is injured

-defendant carries a weapon

THIRD DEG:

-entering or remaining

-in a building

-unlawfully

-with the intent to commit a crime inside

(no breaking, dwelling, or nighttime requirement)

The malicious burning of a building.

State of mind: malice

Burning:

-requires material wasting AND must be building itself that burns

FIRST DEG: second degree arson + explosive or incendiary device

SECOND DEG: third degree arson when the defendant knows or should have known someone was in the building

THIRD DEG: intentional burning of a building

FOURTH DEG: reckless burning of a building

*traditionally, used to be a dwelling (not anymore)

*traditionally, could not commit arson on own property (not anymore)

possession: control for a period of time long enough to have an opportunity to terminate possession

*constructive possession: need not be in actual possession, so long as it is close enough for him to exercise dominion and control over it

mental state: knowledge (of the possession and of the character the item possessed)

Gun must be operable and loaded

presence of a gun in a vehicle creates a presumption that all occupants of the vehicle possessed the gun

Receiving possession and control of stolen personal property

MUST know that the property has been obtaned criminally by another party and with the intent to permanently deprive the owner of his interest in the property

Aids or encourages the principal with the intent that the crime be committed

NEW YORK: accomplice need not specifically intend that the crime be committed. Enough that accomplice specifically intends to aid the principal's conduct, and otherwise has the mental state required crime.

(can be accomplice to negligent or recklessness crime)

Things that don't count as accomplice liability: 

-Mere presence at the scene of the crime

-Mere knowledge of the crime does not make someone an accomplice (must INTEND to aid)

NEW YORK: without intention you can be held liable in New York (FACILITATION)

-victims of crime cannot be accomplices

An accomplice can avoid criminal liability by withdrawing before the crime is committed.

ENCOURAGER: may withdraw by repudiating the encouragement before crime committed

AIDER: An accomplice who actually helped the principal must either neutralize the assistance or otherwise prevent the crime from happening

1. Accomplice must make a substantial effort to prevent the commission of the crime

2. Renunciation is an affirmative defense (burden on D)

a) help a principal who has committed a felony

b) with knowledge that the crime has been committed, and

c) with the intent to help the principal avoid arrest or conviction

now commit statutory crimes - like obstruction of justice, harboring a fugitive

NEW YORK: hindering prosecution

Asking someone to commit a crime, with the intent that the crime be committed

specific intent

(completion unnecessary - crime is in the asking)

1. agreement to commit crime +

-can be proved by conduct (consert of action)

2. overt act in furtherance of crime

(any act, even if merely preparatory!)

specific intent to enter agreement and accomplish objectives of the conspiracy

Completion unnecessary

Common law: NO (no agreement)

-if all other parties are acquitted, defendant cannot be convicted

New York: YES (unilateral approach)

-defendant may be guilty of conspiracy even if the other parties are acquitted or were just pretending to agree

WHARTON RULE

(New York!)

In addition to conspiracy, defendant will be liable for other crimes committed by his co-conspirators, so long as those crimes

-were committed in furtherance of the conspiracy's objective

-were forseeable

General Rule: attempt requires an overt act beyond mere preparation

NY PROXIMITY: Conduct that gets dangerously close to commission of the crime

MPC/MAJORITY: conduct that constitutes a substantial step toward commission of crime (so long as it strongly corroborates the actor's criminal purpose)

Specific intent to commit underlying offense

You cannot attempt unintentional crimes

(no attempt versions of recklessness, negligence, or felony murder)

some physical or factual condition unknown to D that prevents the underlying crime from taking place

NEVER a defense to attempt!

some legal circumstance or status unknown to the D that prevents the successful completion of the underlying crime

COMMON LAW: is a defense to attempt

NEW YORK: NEVER defense to attempt

(intention + proximity (dangerously close) = attempt)

WITHDRAWAL/ABANDONMENT for Inchoate Offenses

(sonspiracy, solicitation, attempt)

COMMON LAW

 withdrawal is not a defense BUT no longer vicariously liable under Pinkerton

Guilty of conspiracy and all forseeable crimes committed by co-conspirators prior to withdrawal

WITHDRAWAL/ABANDONMENT for inchoate offenses

(conspiracy, solicitation, attempt)

NEW YORK

Renunciation is a defense to solicitation, conspiracy, and attempt if

1. D renounces criminal purpose prior to the commission of the substantive offense and makes a sincere and successful effort to prevent hte commision of the substantive offense, and

2. renunciation is complete and voluntary (genuine change of heart, not fear of failing/being caught)

Solicitation + Attempt merge with crime

NEW YORK: solicitation does not merge

CONSPIRACY NEVER MERGES

1. must have disease or defect

2. legal insanity tests:

a) M'Naughten: defendant either did not know that conduct was wrong or did not understand the nature of his conduct(cognitive)

b) Irresistable Impulse: unable to control actions or unable to conform conduct to the law (volitional)

c) MPC: lacked capacity to either appreciate criminality of his conduct or conform conduct to law (MPC)

D must prove he or she lacked substantial capacity to:

1. understand the nature/consequence of his act, or

2. appreciate the wrongfullness of his conduct

whether, at the time of trial, the D cannot either

1. understand the nature of the proceedings against him, or

2. assist his lawyer in the preparation of his defense

Voluntary Intoxication Defense

Common Law

Can be a defense to specific intent crimes only

requries such severe prostration of the faculties that the defendant cannot form the requisite specific intent

Voluntary Intoxication Defense

NEW YORK

Can be a defense to intent and knowledge crimes, if the intoxication prevents the defendant from forming the required state of mind

cannot be a defense to recklessness, negligence, or strict liability

Infancy Defense

Common Law

UNDER 7: prosecution not allowed

7-14: rebuttable presumption against prosecution

OVER 14: prosecution is allowed

Under 13: criminal prosecution as adult not allowed - only juvenile delinquincy hearing in family court

IS 13: criminal prosecution as an adult allowed for second degree murder

14 or 15: criminal prosecution as an adult allowed for serious crimes against person or property

16: criminal prosecution as an adult allowed for any crime

MISTAKE Defense

Common Law

Mistake of fact depends on the mental state for the crime and wehther the mistake is reasonable or unreasonable

specific intent: any mistake of fact (even unreasonable) is defense

Malice (gen. intent): only a reasonable mistake

Strict liability: never a defense

MISTAKE OF FACT DEFENSE

NEW YORK

Mistake of fact will be a defense if the mistake negates hte required mental state

Intent/Knowledge or recklessness: any mistake of fact (even unreasonable) is usually defense

Negligence: only reasonable mistake

Strict Liability: never

Generally not a defense

UNLESS statute specifically makes knowledge of law an element of the crime

A defendant may use nondeadly force if it is:

1. reasonably necessary

2. to protect against an immediate use

3. of unlawful force against himself

A defendant may not use deadly force if he is the initial aggressor (the person who started the fight) BUT he can regain the right to use deadly force if:

he withdraws from fight and communicates withdrawal

OR

victim suddenly escalates nondeadly fight into deadly one

Defendant is required to retreat beofre using deadly force in self-defense:

MAJORITY: retreat not required

NEW YORK: retreat is required unless

-D cannot retreat in complete safety, or

-D is in his house (castle exception)

Reasonable mistake: complete defense

Unreasonable mistake:

NEW YORK/MAJORITY: no defense

MINORITY/MPC: mitigate not exonerate

Imperfect self-defense: an unreasonable belief in the need to use deadly force will mitigate murder to voluntary manslaughter

Nondeadly force may be used, if reasonably necessary, to prevent any serious breach of the peace

Deadly force may only be used to prevent a felony risking human life

Deadly force may not be used to defend prop.

May use deadly force in dwelling when:

-intruder gained entry in tumultuous manner AND

-occupant reasonably believes use of deadly force is necessary to prevent a personal attack on herself or someone else in the dwelling

If D knows or reasonably should ahve known that hte person performing hte arrest is a police officer:

MAJ: if the arrest is unlawful, the  may use non-deadly force to resist the arresting officer

NEW YORK: force may not be used to resist arrest, even an unlawful one, unless officer used excessive force

An officer may use deadly force when doing so is reasonable under the circumstances

(ask whether suspect posed danger to human life)

It is a defense to criminal conduct if the defendant reasonably believes that hte conduct was necessary to prevent a greater harm

Unavailable if

-defendant causes death of another person to protect property, or

-defendant is at fault in creating the situation that creates choice of evils

It is a defense if the defendant was coerced to commit a crime beacause of a threat, from another person, of imminent death or serious bodily injury to himself or a close family member

(cannot be defense to homicide)

NEW YORK!!! CAN BE DEFENSE TO HOMICIDE!

If government unfairly tempted the defendant to commit the crime, he may claim entrapment IF

a) the criminal design originated with the government and

b) D was not predisposed to commit the crime