Term
| What is a voluntary act? Are there any exceptions? |
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Definition
| A voluntary act is a conscious exercise of will. An act that is not a conscious excercise of will (an epileptic having a siezure) can be voluntary if the actor begins something (like driving a car) without taking precautions (like medication), knowing that a siezure is possible. |
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Term
| When can the failure to act be considered sufficient actus reus? |
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Definition
(a) Legal duty to act.
(i) Special relationship
1. Parent/child
2. Spousal
3. Employer/employee
(ii) Contract
(iii) Someone voluntarily assumes the care.
(iv) Duty that stems from the statute.
(b) With the duty act, it must be reasonably possible to perform that duty or obtain assistance from someone else. |
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Term
| How do you determine if the mens rea is met for a crime? |
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Definition
| Determine what mens rea the statute requires, then determine if the facts show that the mens rea has been met. |
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Term
| What do you do if a statute does not state the mens rea? |
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Definition
| Purpose, knowledge, or recklessness will suffice. Negligence will not suffice. |
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Term
| What are the mens rea categories under the MPC? |
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Definition
1. Purposely 2. Knowingly 3. Recklessly 4. Negligence |
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Term
| Under the MPC, what does it mean to be acting purposely? |
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Definition
| It is the defendan'ts conscious object to engage in certain conduct or cause a certain result. |
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Term
| Under the MPC, what does it mean to be acting knowingly? |
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Definition
The defendant must be aware to a level of practical certainty that his actions will cause that result. With respect to knowing a fact, the defendant must have a high probability that the fact exists (this is to get around the ostrich problem). |
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Term
| Under the MPC, what does it mean to be acting Recklessly? |
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Definition
| The defendant must disregard a substantial and unjustifiable risk of which he is actually aware. The disregard must reflect a gross deviation from the conduct of law abiding people. |
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Term
| Under the MPC, what does it mean to be Negligent? |
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Definition
| The defendant should have been aware of a substantial and unjustifiable risk. His disregard reflects a gross deviation from the standard of care of a reasonable person. |
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Term
| What is the majority approach when dealing with the mistake of fact defense? |
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Definition
i) It is the same as the MPC approach, a mistake of fact is a defense if it negates the mens rea requirement. (1) An honest unreasonable mistake can make a person not guilty for purpose, or knowing.
(2) If the state of mind is negligence, any reasonable mistake will be a defense. |
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Term
| What are specific intent crimes? |
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Definition
Crimes that require intent to commit the crime plus another intent that is part of the crime. Examples of specific intent crimes: Solicitation Attempt Conspiracy Premeditated Murder Larceny Robbery Burglary False Pretenses Embezzlement |
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Term
| What are general intent crimes? |
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Definition
| Crimes that just require a general intention to commit the crime. |
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Term
| How do a minority of jurisdictions handle mistakes of fact in regards to specific/general intent crimes? |
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Definition
i) Specific intent crimes
(1) An unreasonable mistake can be a defense
ii) General intent crimes
(1) Only reasonable mistakes can be a defense |
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Term
| How is the mistake of law defense handled? |
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Definition
| Generally mistake of law is not a defense. An exception is when a person reasonably relies on a public official who is responsible for interpreting, enforcing or administering the law. |
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Term
| When can voluntary intoxication be a defense? |
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Definition
i) Can be a defense to specific intent crimes if the mens rea is negated.
ii) It is not a defense to general intent crimes.
iii) Under the MPC – can be a defense to crimes of purpose or knowledge if as a result of the state of mind, the person does not have requisite purpose or knowledge. (1) For reckless or negligent crimes, they will be found guilty it they would have been aware if they were not intoxicated. |
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Term
| When can involuntary intoxication be used as a defense? |
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Definition
i) If as a result the person does not have the state of mind requirement, they are not guilty.
ii) Even if the state of mind requirement is met, if the person otherwise meets the insanity defense, they will not be found guilty. |
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Term
| How are strict liability crimes handled? |
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Definition
| They are generally regulatory crimes, and the MPC is opposed to them. |
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Term
| What types of homicide are there under common law? |
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Definition
i) Murder – the killing of a human being by another human being with malice aforethought. i) Manslaughter – an unlawful killing that does not involve malice aforethought. This is broken into voluntary manslaughter and involuntary manslaughter. |
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Term
| What is required for malice aforethought? |
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Definition
(1) Malice aforethought can be shown by: (mens rea)
(a) Intent to kill (express malice) or knowledge that it is likely.
(b) Intent to inflict great bodily injury (knowledge) or knowledge that it can happen.
(c) Extreme recklessness - Reckless indifference to an unjustifiably high risk to human life (substantial and unjustifiable risk, gross deviation) (extreme recklessness) extreme indifference to human life or
(d) Intent to commit a felony |
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Term
| What is voluntary manslaughter under common law, and what does it require? |
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Definition
(1) Voluntary (intentional) – intentional with adequate provocation - heat of passion.
(a) Defendant was provoked – subjective.
(b) Reasonable person would have been provoked – objective.
(c) Defendant must not have cooled off – subjective.
(d) Reasonable person would not have cooled off – objective. |
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Term
| Under common law, what is involuntary manslaughter? |
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Definition
(1) Involuntary (unintentional)
(a) Criminal negligence – greater deviation from the reasonable person
(b) Misdemeanor-Manslaughter |
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Term
| How are the modern classifications for homicide different from common law? |
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Definition
a) Modern classification – only divides common law murder into first and second degree with “deliberate and premeditated” being the requirements for first degree. Premeditation requires thinking about the killing beforehand, even if for only a brief moment. |
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Term
| What factors distinguish plain intent to kill from actual premeditation? |
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Definition
(1) Lapse of time between formulation of intent to kill and the killing – longer time worse.
(2) Evidence of planning activity.
(3) Motive
(4) Method of killing. |
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Term
| What are the MPC classifications for homicide? |
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Definition
i) Murder
(1) Criminal homicide is murder when:
(a) Purpose
(b) Knowledge
(c) Extreme recklessness
ii) Manslaughter
(1) Criminal homicide is manslaughter when:
(a) Committed recklessly (involuntary) or
(b) Under the extreme mental or emotional disturbance with a reasonable explanation.
iii) Negligent Homicide
(1) Criminal homicide is negligent homicide when committed negligently. |
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Term
| What is the split on involuntary manslaughter? |
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Definition
| Recklessness v. gross negligence |
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Term
| What is the felony murder rule? |
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Definition
| a killing, even an accidental one that occurs during or shortly after a felony is murder. |
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Term
| What approach do you use when the felony murder rule is limited to felonies that are inherently dangerous? |
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Definition
(1) Use the following two approaches (a) Is this crime inherently dangerous?
(b) Look at the felony in that particular case. |
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Term
| What is the merger doctrine? |
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Definition
(1) The felony murder doctrine only applies if the death resulted from a felony that had an independent felonious purpose (one that did not intend injury to the other person). |
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Term
| How does the agency rule affect the felony murder doctrine? |
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Definition
| It limits it to murders that occur from the criminal or an accomplice. |
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Term
| What is required for statutory rape? |
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Definition
(1) Sexual intercourse
(2) Under age of consent (generally 16).
(3) Not a spouse. |
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Term
| How is mistake of fact handled for statutory rape? |
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Definition
Majority - not a defense. Minority - a reasonable mistake is a defense. |
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Term
| What are the requirements for forcible rape? |
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Definition
(1) Penetration of the vagina by the penis (no ejaculation required). (actus reas)
(a) Absent a marital relationship – at common law. Today most states have dropped if separated or estranged or abolished it completely.
(2) Lack of consent of the intercourse (what is the mens rea here – recklessness suffices, negligence has a split, but most say negligence is enough).
(a) What does it mean to act or think unreasonably? When does no mean no?
(3) Force or threat of force(words or actions calculated to create and did create a fear (reasonable fear, or exploited unreasonable fear) of serious bodily injury.) (most jurisdictions require) |
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Term
| For lack of consent in rape, what is the mens rea required? |
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Definition
There is a split in jurisdiction: recklessness v. negligence |
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Term
| What other requirement for rape do some jurisdictions require? |
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Definition
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Term
| What is the common law and modern law concerning marital rape? |
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Definition
i) Common law said a man couldn’t rape his wife.
ii) Most jurisdictions have removed this exceptions, but it is a lesser degree of rape. |
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Term
| What are the common law requirements for larceny? |
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Definition
i) Trespassory (wrongful)
ii) Taking (control of) (caption)
iii) And carrying away (asportation)
iv) Of the personal property
v) Of another
vi) With the intent to permanently deprive |
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Term
| How do the MPC or modern requirements of larceny differ from common law requirements? |
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Definition
a) Does not require carrying away. Property can be intangible (services). |
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Term
| What are the common law and MPC laws regarding larceny and lost or mislaid property? |
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Definition
i) At common law also requires
(1) At the time of taking must know or have reason to know that the person can be found.
(2) At the time of taking having the intent to permanently deprive.
ii) Common law, if no intent at taking, no crime.
iii) MPC, intent can develop later or change later. (this only applies to lost, mislaid or misdelivered property)
(1) And the failure to take reasonable measures to restore the property to the proper owner. |
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Term
| What is the continuous taking doctrine? |
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Definition
i) A fiction in the law. When the initial taking is unlawful, we treat this as a continual trespass. There is a new taking when intent has developed and it becomes larceny. |
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Term
| How is mistaken delivery handled for a larceny charge? |
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Definition
i) Also requires:
(1) At the time of taking, knowledge by the defendant that the victim made a mistake about nature or amount of property or to whom the victim delivered it.
(2) At the time of taking, the defendant had the intent to permanently deprive the owner of the property.
ii) MPC mistakenly delivered.
(1) Guilty of theft if he has purpose (intent) to deprive the owner thereof and;
(a) Can change mind later and be either way.
(b) Fails to take reasonable measures to restore the property to owner.
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Term
| What is larceny by trick? |
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Definition
i) Fraudulently acquiring unlawful possession to the property, not title, by a misrepresentation. |
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Term
| What are the requirements for embezzlement? |
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Definition
i) Fraudulent (intent to deprive, not necessarily permanent) ii) Appropriation (conversion) iii) Of property iv) Of another v) By a person entrusted with its possession. |
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Term
| What are the requirements for false pretenses under common and modern law? |
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Definition
a) Requires at common lawi) Misrepresentation
ii) Of a past or present material fact
iii) With the intent to defraud another (mens reas – know that the statement is false, and believe that it is not theirs)??on mens rea.
iv) Where the victim relies on the misrepresentation
v) And title to the property is transferred.
b) MPC view that misrepresentation can suffice in some circumstances.i) When people enter into commercial transactions, people intent to do what they said they would or
ii) Pay damages.
iii) If people don’t intend to do either of the above, that suffices for false pretences.
c) There is a division as to whether a misstatement of present intention suffices for present material fact. Majority is that it will not suffice. |
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Term
| What are the requirements for robbery? |
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Definition
1. Trespassory 2. Taking 3. And carrying away 4. of the personal property 5. of another 6. with the intent to permantently deprive. 7. taken by force or a threat of force. 8. taken from the immediate presence or control of the person. Armed or aggrevated robbery involves use of a deadly weapon. |
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Term
| What are the common law requirements for burglary? |
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Definition
1. Breaking and 2. Entering 3. The dwelling house 4. Of another 5. In the nighttime 6. With the intent to commit a felony. |
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Term
| What are the modern requirements for burglary? |
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Definition
1. The unauthorized entry 2. Of a building or structure 3. With the intent to commit any crime. |
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Term
| What are the common law requirements for attempt? |
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Definition
1. An intent to do an act or cause a result which constitutes a crime and 2. An act that goes beyond mere preparation. |
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Term
| What are the two tests to determine if an overt act meets the requirements for attempt? |
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Definition
1. Proximity Test - must come physically close to committing the crime. 2. MPC - Substantial Step Test - must do something that constitutes a substantial step to committing the crime. It has to be strongly corroborative of the criminal purpose. |
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Term
| What are the common law and MPC approach to abandonment of attempt? |
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Definition
Common law - you can't abandon. MPC - you can abandon if: 1. complete 2. voluntary |
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Term
| What are the MPC and common law approaches for dealing with impossibility as a defense to attempt? |
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Definition
MPC:
Defendant purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be. Common Law: Legal Impossibility is allowed as a defense. This is because even if the defendant did everything he wanted to do, no crime would be committed. Factual impossibility is not a defense. This is where it would have been a crime if the defendant did everything he wanted to do. |
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Term
| What are the requirements for solicitation? |
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Definition
1. Encourage or advise another person to commit a crime. 2. With the intent that the other person commits the acts constituting the crime. |
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Term
| What is the law regarding renunciation of solicitation? |
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Definition
Common law - no defense. MPC 1. Persuade the person solicited not to commit the crime or 2. otherwise prevent the crime's commission. |
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Term
| What are the requirements for accomplice liability? |
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Definition
1. Assistance or encouragement (speech alone or some affirmative participation)
2. Intent that the crime be committed (mens rea – knowledge will not suffice). |
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Term
| What is the natural and probable cause doctrine in relation to accomplice liability? |
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Definition
a) Natural and probable cause doctrine under common-law says that certain accomplices can be held liable for all crimes that result as a natural and probable cause. |
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Term
| What is the MPC approach to crimes that occur as a result of accomplice liability? |
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Definition
| MPC says that a person can be an accomplice if they want to engage in the conduct (crime) and has sufficient mens rea for that crime, and that crime results. |
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Term
| How can withdrawal be a defense under accomplice liability? |
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Definition
1. Have to remove all aid and encouragement (common law) 2. Give the police timely notice of the crime or otherwise make proper effort to prevent the crime. (MPC) |
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Term
| What is required for conspiracy under common law? |
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Definition
| An agreement between at least two people. |
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Term
| What are the modern requirements for conspiracy? |
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Definition
1. An agreement between at least two people 2. An overt act in furtherance of the agreement. a. It need not be criminal b. It does not have to be a substantial step. |
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Term
| What is the Wharton rule in dealing with conspiracy? |
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Definition
There is no crime of conspiracy unless more parties participate in the agreement than are necessary for the crime. MPC does not follow this. |
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Term
| What is the Pinkerton doctrine in relation to conspiracy? |
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Definition
i) The doctrine states that a conspirator is liable for all foreseeable crimes committed in furtherance of the conspiracy as long as they are a member of the conspiracy when the acts are committed.
(1) In furtherance of the conspiracy.
(2) Reasonably foreseeable. (can be difficult to determine) The MPC rejects this doctrine. |
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Term
| How is withdrawal from a conspiracy handled under common and MPC law? |
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Definition
Under common law, it is not a complete defense, but liability under the Pinkerton doctrine stops upon withdrawal. Common law requires affirmative acts to show. MPC requires the following: (1) informing fellow conspirators or.
(2) Inform the police about the conspiracy and state his participation in the conspiracy. |
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Term
| What is the law regarding renunciation of conspiracy? |
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Definition
Common law does not allow renunciation. MPC requires the following: (1) Voluntary and complete
(2) Prevent the crime from occurring/thwart its success. |
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Term
| How does the merger doctrine relate to conspiracy? |
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Definition
| Conspiracy does not merge with other crimes. |
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Term
| What causation is required for a case, which if a case lacks, causation can be used as a defense? |
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Definition
Causation requires: 1. but-for cause - cause in fact 2. Proximate cause – reasonably foreseeable and sufficiently direct link between the actions and the result. |
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Term
| When can a defendant claim self-defense under the majority rule? |
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Definition
(a) Reasonably (reasonable person) and actual (honest) believe - objective
(i) Deadly force is necessary
(ii) To protect himself from imminent infliction
(iii) Of deadly force. |
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Term
| What is the minority rule regarding self defense? |
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Definition
Only an honest fear is required. It can be unreasonable. Some jurisdictions say that only honest fear is: 1. A crime. 2. No crime. 3. Apply the doctrine of imperfect self-defense – some states where honest but unreasonable belief that defensive force is necessary result in voluntary manslaughter in some states, and involuntary manslaughter in other states. |
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Term
| What is the initial aggressor rule in self defense? |
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Definition
Generally when one begins a fight, they have no right to use force in their own defense unless they regain their right by: 1. Withdrawal from the fight by a. removal and b. communicating removal intent. 2. or by a sudden escalation of the fight to included deadly force, where that is not what the initial aggressor started. |
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Term
| What are the retreat rules in self defense? |
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Definition
(a) Majority, no duty to retreat for either deadly or non-deadly force.
(b) MPC - substantial minority (i) A defendant must retreat before resorting to self-defense only if
(ii) They are using deadly force and
(iii) They know that they can retreat with complete safety, without incurring even non-serious bodily injury. |
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Term
| What is the castle doctrine? |
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Definition
| If you are attacked in your own home, you don't have to retreat. |
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Term
| What is the majority rule concerning protection of personal property? |
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Definition
1. Majority prohibits deadly force solely to protect property.
(a) Life is more important than property.
2. Non deadly force can be used when a person reasonably believes that it is
(a) Necessary
(b) To prevent an imminent threat to property. |
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Term
| What are the laws concerning using deadly force to prevent unauthorized entry into the home? |
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Definition
(1) Common law allows the use of deadly force to prevent any unlawful entry into the home if
(a) Reasonable belief force is necessary to prevent unlawful entry.
(2) 2nd approach to allow deadly force requires reasonable belief that
(a) Force is necessary to prevent unlawful entry and
(b) The person is going to commit felony in house
(3) 3rd approach to allow deadly force requires reasonable belief that
(a) Force is necessary to prevent unlawful entry and
(b) The person is going to commit felony in house and
(c) The person is going to commit a forcible felony or otherwise poses a substantial risk of death or harm. |
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Term
| What is the common law of necessity? |
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Definition
| A person reasonably believes that a crime is necessary to avert a greater harm than the harm caused by the crime (some places also require imminent harm). |
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Term
| What is the legislative foreclosure exception within the law of necessity? |
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Definition
| the court doesn’t have to balance evils because the legislature has already balanced the evils. |
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Term
| What are the MPC rules for necessity? |
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Definition
(1) allows necessity where the defendant honestly believes that committing a crime is necessary to avoid a greater evil.
(a) Unavailable for a crime requiring a mens rea of recklessness or negligence if the defendant was reckless or negligent in bringing about the situation that required the choice of evils. |
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Term
| What is the at fault exception in necessity? |
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Definition
| (1) some jurisdictions do not allow the necessity defense to defendants who were at fault in bringing about the situation that required them to make a choice of evils. |
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Term
| What is the intentional homicide exception to necessity? |
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Definition
| A few states say necessity is not a defense in murder cases. |
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Term
| What are the requirements for duress? |
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Definition
i) Requires that the defendant reasonable believe (1) That the crime is necessary (2) To avert an imminent threat of (3) Death or serious bodily harm. (could be harm of family members). (a) This force has to come from another human being. |
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Term
| What is the at fault exception to duress? |
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Definition
| i) Most jurisdictions do not allow this defense if the defendant was at fault in bringing about the situation that required them to commit the crime, recklessly (must be aware) put themselves in a situation where coercion was likely. |
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Term
| What is the majority rule for the insanity defense? |
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Definition
i) M’Naghten Rule from class - Majority (1) Because of a mental disease or defect a person (a) Didn’t know the nature and quality of actions or (b) Didn’t know the actions were wrong. (i) Wrong is split to mean illegal in some jurisdictions, or immorality in other jurisdictions, does a person know whether society thinks It is immoral.
(ii) Didn’t know is the cognitive approach. |
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Term
| What is the minority rule for the insanity defense? |
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Definition
The MPC rule:
(1) Because of a mental disease or defect a person
(a) Lacked substantial capacity to
(i) Appreciate the wrongfulness (or criminality) of his conduct or
1. Cognitive component.
(ii) Conform his conduct to the requirements of the law.
1. Volitional component. (the main difference between M’Naghten and MPC approach) |
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Term
| What are all the theft related crimes we have studied? |
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Definition
1. Larceny 2. Larceny by lost, mislaid or misdelivered 3. Larceny by trick 4. Embezzlement 5. False Pretenses 6. Robbery 7. Burglary |
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Term
| What are the incohate crimes we have studied? |
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Definition
1. Attempt 2. Solicitation 3. Accomplice Liability 4. Conspiracy |
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Term
| What are the general defenses we have studied? |
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Definition
1. Intoxication (voluntary or involuntary) 2. Causation 3. Self-Defense 4. Defense of property 5. Necessity 6. Duress 7. Insanity 8. Mistake of fact 9. Mistake of law |
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Term
| What are the other defenses that apply to some crimes? |
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Definition
1. Withdrawal 2. Renunciation 3. Impossibility 4. Merger |
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