Term
| Can you be convicted of attempted reckless murder? |
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Definition
| NO! You cannot be convicted of a reckless result crime, only a reckless conduct crime (IE Reckless driving but not reckless manslaughter). |
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Term
| With an Attempt Crime, what is required in a "Last Act" jurisdiction? |
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Definition
| It is required that the defendant has done the last act necessary for him to commit the crime. Poisoning candy but not distributing it is not a "last act". |
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Term
| Would postponing or changing the intended victim of an offence give rise to an abandonment or renunciation defence? |
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Definition
| No. Under McCloskey and PL 40.10, postponement, renunciation where the crime has simply become too difficult to complete, or transferring intent to a new victim is not sufficient for a defence. |
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Term
| True or False: A defendant may not have a successful mistake of fact defense to the crime of Rape in the First Degree in New York? |
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Definition
| False, New York reads a mens rea term of intentionally into that crime. |
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Term
| Under Common Law rape, was it required that the victims testimony was corroborated in order to sustain a conviction? |
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Definition
| Yes. This was true in many jurisdictions. |
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Term
| Does New York allow the victims sexual history to be presented as evidence in a trial? |
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Definition
| No, New York considers this evidence inadmissible. |
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Term
| Have most states retained the common law/MPC marital rape exception? |
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Definition
| No, this was true at one time, but most states no longer have such an exception. |
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Term
| In New York, does the defendant have the burden of proof for necessity? |
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Definition
| NO, the prosecution has the burden of proof of necessity under P.L 25.00 & 35.15 |
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Term
| Is the burden of persuasion for self-defense on the prosecutor for self-defense in New York? |
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Definition
| Yes! But it would be constitutional for the legislature to rewrite the statute and place the burden on the defendant. |
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Term
| True or False: In New York, when the prosecution has the burden of persuasion for a defense, the prosecution must disprove the defense by a preponderance of the evidence. |
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Definition
| False. The prosecution must still prove the crime beyond a reasonable doubt, NOT a preponderance of evidence. Preponderance of evidence is only placed upon the defendant when he employs an affirmative defence. |
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Term
| What are the four Affirmative Defences in New York? |
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Definition
Duress, Insanity, Involuntary Intoxication, Extreme Emotional Disturbance.
D.I.I.E |
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Term
| Can you be convicted of conspiracy to commit a reckless result crime? |
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Definition
| No, because you cannot solicit or conspire to engage in something that is inherently accidental. |
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Term
| In evaluating the constitutionality of the death penalty under the Eighth Amendment of the United States which of the following factors are considered by the United States Supreme Court? a.Legislative enactments regarding the death penalty. b.History of the death penalty. c.Jurors’ use of the death penalty. d. Retribution and utilitarian goals of the punishment. e. All of the above. |
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Definition
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Term
| Can you be convicted of solicitation, even if the other person has no intention of committing the crime on your behalf? |
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Definition
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Term
| In New York, can you be convicted of conspiracy even if the other partner in the conspiracy has no bona fide intent to commit the crime? |
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Definition
| Yes, NY employs the unilateral conspiracy rule. This means that someone who conspires with an informant or undercover police officer is still guilty of conspiracy. THIS IS ALSO TRUE OF THE MPC, THE COMMON LAW HOWEVER APPLIES THE BILATERAL RULE |
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Term
| In New York, can you be convicted of Attempted murder, conspiracy, AND solicitation? |
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Definition
| Yes, absolutely. Merger doctrine does not eliminate any of these crimes. Merger only prevents you from being convicted of both Attempting to commit a crime (E.G. murder) and the completed crime. (So you can't get attempted murder AND murder) |
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Term
| Who is the burden of proof placed upon for a justification of self defence? |
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Definition
| The State. Self defence is a justification/ general defence and not an affirmative defence. Therefore, the burden of proof is placed upon the state to prove that the defendants actions were unreasonable. |
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Term
| What step is required under NY Penal Law in order to prove an attempt crime? |
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Definition
| New York applies the dangerous proximity test, which means that whenever a defendant has come dangerously close to completing a crime, the are guilty. |
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Term
| What do New York and the MPC apply in terms of conspiracy? Bilateral or Unilateral? |
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Definition
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Term
| Under what circumstances are mistake/ ignorance of law a defense in NY? |
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Definition
| Answer: when that mistake of law is based upon a statement of law by a court or official governmental body. BAD LEGAL ADVICE, OR UNOFFICIAL STATEMENTS OF THE LAW ARE NOT SUFFICIENT. A good faith belief that the law does not apply is only valid if the crime requires a mens rea of knowingly. |
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Term
Which of the following apply to services?
a.Larceny.
b. Larceny by Trick.
c. Embezzlement.
d. False Pretenses.
e. None of the above. |
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Definition
| E. None of the above. Larceny, Embezzlement, and False Pretenses all apply to theft of goods only. |
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Term
| What are the factors relevant in proving a conspiracy? |
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Definition
1) The defendant was at the scene of the crime.
2) The defendant was associating with the alleged conspirators.
3) The defendant was participating in the object of the conspiracy.
NOTE: It is not a factor that the defendant knew that the other conspirators have a criminal record. |
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Term
| Which of the following is a defense in Common Law in determining whether or not Heat of Passion applies? 1) Intoxication, 2) Physical disability/attribute 3) Sex 4) The Defendants subjective state of mind. |
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Definition
| Answer: 2 & 3. At Common Law, heat of passion takes into account the physical attributes/disabilities of a person as well as their sex. (E.G. The female, broken-armed, table tennis player). It does not take into account intoxication or the subjective state of mind. |
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Term
| When is voluntary intoxication a defense? |
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Definition
Intoxication can be a defense where it negates the
mens rea of the crime. It does apply to a crime such as Robbery. Because attempted robbery, like all attempt crimes, require the mens rea term of “intentionally,” intoxication may be a defense to that crime. Intoxication is not a defense to a "Negligent" mental state. It also does not apply to strict liability crimes. |
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Term
| When is wilfull blindness a defense under the MPC? |
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Definition
| Wilfull blindness applies when the statute requires "knowledge" of the attendant circumstances. Wilful Blindness is not applicable in NY. |
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Term
| What test does NY apply in determining Attempt (for attempt crimes)? |
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Definition
| The Dangerous Proximity Test- So being in a Starbucks with a gun, ready to commit a crime is dangerously close to committing the crime and is therefore an attempt. |
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Term
| Can you be convicted of solicitation if you haven't asked the other person to commit a crime? |
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Definition
| No, regardless of the jurisdiction UNLESS you otherwise cause them to commit the crime. This means that asking another person for assistance prior to the crime of which they have no knowledge (IE asking to borrow their car but not telling them that you plan on using it in a robbery) is not solicitation or conspiracy. |
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Term
| Can you be convicted of solicitation if the other person does not agree or does not receive the message? |
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Definition
| Yes. Unlike conspiracy, solicitation does not require the other person to know or accept in order for the first person to be guilty of the crime. |
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Term
| Common Law Larceny (Elements) |
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Definition
1) Trespassory Taking and
2) Carrying away
3) of personal property of another
4) with intent to permanently deprive possesor of the property |
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Term
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Definition
1) Fraudulent intent (intent formed after receipt of money/goods)
2) conversion of property of another (act to permanently deprive the owner)
3) Property received but the wrongdoer in a non-trespassory manner and 4) There is an element of entrustment (usually).
Note: The primary difference between Larceny and Embezzlement is that intent to deprive the owner is formed after receipt. |
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Term
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Definition
1) Defendant makes a false representation
2) with intent to defraud the owner of property and 3) the owner is defrauded by relying upon the representation so that defendant obtains the title.
Example: Paying for goods with counterfeit currency or using a credit card that the Defendant knows has been canceled. |
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Term
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Definition
| The Pinkerton rule states that each co-conspirator is responsible for 1) any reasonable forseeable crime committed by co-conspirator in furtherance of conspiracy. NY DOES NOT APPLY THE PINKERTON RULE |
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Term
| NYPL Accomplice liability |
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Definition
WHEN ONE PERSON ENGAGES IN CONDUCT WHICH CONSTITUTES AN OFFENSE, ANOTHER PERSON IS CRIMINALLY LIABLE FOR SUCH CONDUCT WHEN, ACTING WITH THE MENTAL CULPABILITY REQUIRED FOR THE COMMISSION THEREOF, HE SOLICITS, REQUESTS, COMMANDS IMPORTUNES, OR INTENTIONALLY AIDS SUCH PERSON TO ENGAGE IN SUCH CONDUCT.
Mens: if reckless then reckless
Actus: Solicts, requests, commands, importunes, or intentionally aids. |
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Term
| New York Penal Law Section 40.00 (Duress) |
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Definition
DURESS:
1. In any prosecution for an offense, it is an affirmative defense that the defendant engaged in the proscribed conduct because he was coerced to do so by the use or threatened imminent use of unlawful physical force upon him or a third person, which force or threatened force a person of reasonable firmness in his situation would have been unable to resist.
2. The defense of duress as defined in subdivision one of this section is not available when a person intentionally or recklessly places himself in a situation in which it is probable that he will be subjected to duress. |
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Term
| What type of Defense is Necessity? |
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Definition
| Necessity is a Justification Defense -the burden of persuasion is on the prosecution. The Common Law does not permit you to use necessity against murder, though the NYPL (and MPC) does. |
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Term
| What is the New York Penal Law for Negligent Homicide? |
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Definition
§ 125.10. A person is guilty of criminally negligent homicide when,
with criminal negligence, he causes the death of another person.
Criminally negligent homicide is a class E felony. 1-1.5 Years Sentence. |
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Term
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Definition
1) the act committed must have been done to prevent a significant evil
2) There was no adequate alternative and
3) the harm caused wasn't disproportionate to the harm avoided. |
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Term
| Necessity MPC limitations |
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Definition
1) the actor must believe the conduct is necessary
2) necessity arises from an attempt by the actor to avoid an evil or harm greater than the evil sought to be avoided by law
3) balancing of evils is an issue left to the jury/trial
4) Under MPC choice of evils defense can't succeed if the issue of competing vlaues has been previously foreclosed by deliberate legislative choice and
5) when actor has made a proper choice of values, his belief in necessity to serve higher value will exculpate, unless crime can be committed recklessley or negligently. |
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Term
| Insanity (Type of Defense and Definition) |
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Definition
| Insanity is an affirmative defense (burden on Def.). This is a legal term - unlike mental illness- not a medical term. This is different from incompentence- which means that you cannot be tried. |
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Term
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Definition
1) M'Naughten Test
2) Durham Test
3) Irresistible impulse
4) MPC 4.01
Under the MPC- Insanity only authorizes release when the committed person may be safely discharged. |
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Term
| Duress (Definition- common law) |
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Definition
| At common law a defendent will be acquitted of an offense if he pleads and proves that another person unlawfully threatened imminently to kill or greviously injure him or another person. Duress is considered to negate the mens rea element of a crime - it cannot be used for murder under common law. |
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Term
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Definition
Immediate threat of death or serious bodily injury
1) requires threat of injury present, immediate, or impending (a veiled threat of some future harm will not satisfy) 2) well grounded fear that the threat will be carried out and 3) no reasonable opportunity to escape the threatened harm (US v. Contento-panchon) Absent imminence, analysis is under necessity, not duress (people v. Unger). |
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Term
| Duress MPC 2.09 Objective Standard |
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Definition
| Generally requires an objective standard that: "a person of reasonable firmness" would consider this to be duress. |
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Term
| Intoxication (Definition) |
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Definition
| Intoxication is an excuse defense, it may negate the necessary mens rea. It is not applicable to general intent crimes. The majority of courst hold that intoxication can reduce a charge. Minority hold that it can reduce culpability. Graves held that voluntary intoxication is not a defense to premeditated murder, but may be a defense to other crimes. |
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Term
| Involuntary intoxication types |
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Definition
4 types
1) Coerced
2) pathological
3) intoxication by innocent mistake
4) Unexpected resulting from medically prescribed drug ingestion. Common law held that it resulted in temporary insanity. (no culpability) |
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Term
| Intoxication and MPC 2.08(1) |
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Definition
| Provides that intoxication is a defense if it negates an element of the offense. |
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Term
| General Defenses: Burden of Proof and Patterson Case |
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Definition
| Burden of Proof: The prosecution has the burden of proof with regard to elements of the crime. THe burden shifted to the defendent for the elements of the defense. Patters: the defendant saw his cheating wife and killed the lover, burden is on Def. to prove EED. |
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Term
| Self Defense (Def, et cet) |
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Definition
| Self Defense is a justification Defense. It is an affirmative defense to murder. |
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Term
| In New York what does EED in either 1st or 2nd Degree murder reduce the crime to? |
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Definition
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Term
What is the inherently dangerous felony limitation?
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Definition
| It is when the felony murder rule is limited only to those crimes that are inherently dangerous. Further, all elements of the crime must be inherently dangerous. If, for instance, a crime can be committed in a non-dangerous way (IE, imprisonment through fraud or deceit) A defendant cannot be convicted by the felony murder rule. |
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Term
| What are the first three things that you should answer on an exam question regarding a crime? |
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Definition
1) Was there an actus reus?
- What was the physical component of the crime and did the defendant accomplish it?
2) What is the correct mens rea? How is it defined? How do you know that the def. had it?
3) Is there causation?
A) Establish Actual Cause (but-for test)
B) State and apply the proximate causation rule. |
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Term
| How should you address "Sentencing" |
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Definition
| When addressing sentencing, you should look at the policy implications and the utilitarian and retributive conceptions of justice. |
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Term
| What type of defense is Voluntary intoxication? |
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Definition
| Voluntary intoxication is a failure of proof defense, therefore the burden is placed upon the prosecution to prove the elments of the crime. |
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Term
| What type of Defense is Necessity? |
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Definition
| Necessity is an affirmative defense, therefore the burden of proof is placed upon the defendant to prove that the elements of necessity are met. |
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Term
| New York Mental Disease or Defect |
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Definition
§ 40.15 Mental disease or defect. In any prosecution for an offense,
it is an affirmative defense that when the defendant engaged in the
proscribed conduct, he lacked criminal responsibility by reason of
mental disease or defect. Such lack of criminal responsibility means
that at the time of such conduct, as a result of mental disease or
defect, he lacked substantial capacity to know or appreciate either:
1. The nature and consequences of such conduct; or
2. That such conduct was wrong. |
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Term
In Gregg v. Georgia, which factors were considered imporant?
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Definition
a. Capital trials and sentencing in Georgia were divided in two stages.
b. A capital defendant had a right to an automatic appeal in Georgia.
c. A capital jury in Georgia was given standards to use in deciding whether or not to impose a death
sentence.
Whether or not A capital defendant in Georgia had a right to an appointed attorney during sentencing. |
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Term
| Is it possible to solicit a crime without directly asking that another person commit a crime? (new york) |
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Definition
| Yes, Under New York Law, For example: if Person A attempts to get Person B to kill Person C, Person A has "otherwise attempted" and is therefore guilty of solicitation. |
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Term
| Under what circumstances may a person be convicted of accomplice liability in New York? |
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Definition
a. A defendant may not be convicted of a negligent conduct crime as an accomplice.
b. A defendant may not be convicted of a negligent result crime as an accomplice.
c. A defendant may not be convicted of an intentional conduct crime as an accomplice.
d. A defendant may not be convicted of an intentional result crime as an accomplice. |
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Term
| When will a court apply the acceleration test? |
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Definition
A court will apply the acceleration test is where
there is already a lethal injury and the defendant then inflicts a non-lethal injury. See Oxendine |
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Term
| When does the acceleration test apply? |
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Definition
| If the first act is a lethal act and the second act is a nonlethal, then the second act is only a cause-in-fact if it accelerates the lethal act (the death). |
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Term
| Can second degree manslaughter be reckless? |
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Definition
| Yes, so- if you are aware that there is a risk that your actions might cause death and you disregard it, you might commit 2nd degree manslaughter. |
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Term
| If mistake of fact is not a defense, what type of liability does the crime have? |
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Definition
| If a reasonable mistake of fact is not a defense, then it is a strict liability statute. |
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Term
| Can you be convicted of solicitation, conspiracy and robbery at common law or the MPC? |
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Definition
| No, the merger doctrine precludes it. |
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Term
| Do the MPC defences of necessity or duress require "imminence"? |
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Definition
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Term
| In new york, does First Degree murder require intent? |
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Definition
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Term
| In new york, does 2nd Degree Reckless Manslaughter require intent? |
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Definition
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Term
| In new york, does Negligent Homicide require intent? |
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Definition
| No, it's negligent...brah |
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Term
In new york, does Attempted Second Degree Murder
require intent? |
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Definition
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Term
| In New York, does Conspiracy to Commit First Degree Rape require intent? |
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Definition
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Term
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Definition
| W/intent to kill, you kill A cop/judge/witness/corrections officer/probation officer/etc. (or another person while trying with intent to kill one). OR it's in the commission of an enumerated felony (Rape, murder burglary |
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Term
| Phillips test (knoller) Depraved indifference |
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Definition
| Depraved indifference exists when the actions are inherently dangerous to human life. (Two deadly dogs) |
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Term
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Definition
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Term
| When is mistake of fact a defense? |
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Definition
| When it negates the mens rea |
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Term
| When is mistake of Law a Defense? |
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Definition
| Only when it is based upon an official statement of law. Under the MPC it is a valid even if it is later determined to be erroneous |
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Term
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Definition
Used to find Actual Cause
1) But for test
2) Acceleration
3) Substantial Factor |
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Term
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Definition
| A person acts with CRIMNEG w/respect to a result or to a circumstance described by a stat. defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstances exist. The risk must be of such nature and degree that failure to perceive it constitutes a gross deviation from the standard that a reasonable person would observe in the situation. |
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Term
| New York Penal Law Conspiracy |
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Definition
Intent that conduct constituting a crime be performed, agrees with one or more persons to engage in or cause the performance of such conduct.
- Bilateral or Unilateral?
- Criticisms? - Permits incrimination without action. |
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Term
| Can you conspire to commit reckless murder? (Murder 2) |
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Definition
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Term
| Accomplice liability New York |
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Definition
| When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof (of the crime) he SOLICITS, REQUESTS, COMMANDS, IMPORTUNES OR INTENTIONALLY AIDS SUCH PERSON TO ENGAGE IN SUCH CONDUCT. |
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Term
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Definition
| One may be convicted as an accomplice to an unintended result crime. |
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Term
| Insanity Defense New York |
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Definition
| Affirmative defens that when the D engaged in the proscribed conduct, he lacked criminal responsibility by means of mental disease or defect at time of such conduct as a result of mental disease or defect, THE DEFENDANT LACKED SUBSTANTIAL CAPACITY TO KNOW OR APPRECIATE EITHER THE NATURE AND CONSEQUENCES OF SUCH CONDUCT OR THAT SUCH CONDUCT WAS WRONG. |
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Term
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Definition
125.25 Acting either alone or with one or more persons, he commits or attempts to commit BURGLARY, ROBBERY, ESCAPE, 1st and 2nd sexual abuse, 1st Ag. Sex. abuse, ARSON, Kidnapping, AND in the course of and furtherance of, he or any other participant causes the death of a person other than one of the participants.
- Fel murder is 2nd degree murder. Does not require to prove any mens rea with respect to the homicide.
- Supposed to DETER |
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Term
| 2nd degree reckless murder as an accomplice |
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Definition
| Under circumstances evincing a depraved indifference to human life he recklessly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person. |
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Term
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Definition
A person is guilty of attempt to commit a crime when with intent to commit a crime he engages in conduct which tends to effectual the commission of such crime.
- Apply the Dangerous PROXIMITY TEST. Did the person come dangerously close? |
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Term
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Definition
Test for attempt under MPC
- Are there things such as weapons that speak to intent? |
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Term
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Definition
With intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct.
- NY requires an OVER ACT to have been committed in furtherance of the conspiracy.
- Unilateral Debate |
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