Criminal Law

Abbi Van Hook
Flashcards by Abbi Van Hook, updated more than 1 year ago
Abbi Van Hook
Created by Abbi Van Hook almost 5 years ago
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Criminal Law flashcards. Mostly following the Dressler casebook.

Resource summary

Question Answer
What are the two theories of punishment? Utilitarian and Retributive.
Define the Utilitarian and the Retributive theories of punishment. Utilitarian is forward looking. The justification is in the benefits that punishment will bring. Retributive is backward looking. The justification is found in the prior wrongdoing.
True of False: No crime is without law. oTrue. The MPC says that "No conduct constitutes an offense unless it is described as an offense in this code or another statute of the State." Common Law then informs the statute.
What are the 7 points of analysis when interpreting a statute? 1. Goal of Stat: Legislative intent 2. What the statute says. NOT what the legislature thought but didn't say. 3. Policies: these come into play when there is ambiguity. 4. Source of terminology. Term or art or nah? 5. Enforceability. 6. Rule of lenity
What is the rule of lenity? Ambiguities in penal statutes must be resolved in the D's favor. Usually a principle of last resort.
What are the 3 policy goals we have for criminal statutes? 1. Understandable to reasonable law abiding persons 2. Crafted so that they don't "delegate basic policy matters to policemen, judges," etc. 3. Judicial interpretation of ambiguous statutes should "be biased in favor of the accused". (lentiy doctrine) .
True or False: Vagueness in a law is good because it allows for wholesale legislative delegation of lawmaking authority. FALSE. Vagueness in statute could mean the law is unconstitutional. B/C 1) may fail to provide sufficient notice of what action is criminal and 2) may encourage discriminatory enforcement.
What 3 questions do we ask to test vagueness? 1. Is there failure to provide notice? 2. Will it possibly lead to arbitrary and discriminatory enforcement? 3. Is there a 1st Amendment violation? Is there a violation of free speech?
When analyzing statutory intent, what do we look at? 1. Language: whole doc, terms of art, injust ingeneris (if there is a "catch all" at the end, you interpret it in the context of the previous words. 2. Prior state constructions of statute 3. That a mental state may be added
True or False: Criminal statutes are strictly construed. True. Interpretations of statutes must keep with the purpose. Courts must keep in mind the "evil it is intended to suppress" or the "mischief to be remedied".
Under statutory interpretation, what is the Constitutional Avoidance Rule? If a law is too vague, it will be unconstitutional. So you start with the presumption that it is constitutional. Always choose the interpretation that won't raise constitutional problems.
True or False: When interpreting a statute, the court must always choose to decrease, rather than enlarge the scope. True.
What is the difference between a rule and a standard? Rules require that the adjudicator merely apply facts. Standard require that you must analyze how the facts fit into the standard.
What are the two requirements for a crime? Actus Reus and Mens Rea.
Define Actus Reus. A voluntary act that causes social harm. Voluntary act means "volitional bodily movement".
True or False: Voluntariness in the actus reus is presumed. True. A defense has the burden of proof to show that an act was involuntary. It is an affirmative defense.
What are the 5 types of INVOLUNTARY bodily movements under actus reus? 1. Movements caused by an outside force (act of god). 2. Reflexive movements (hard to show). 3. Movements during sleep. 4. Actions performed during an automatistic state due to mental illness. 5. Actions performed during an automatistic state attributable to intoxication.
Under actus reus, for the affirmative defense of an involuntary act performed during an automatistic state due to mental illness, how are the courts split? D must show no control of bodily functions. Some jurisdictions recognize automatism as a separate defense. Others classify it as a species of the insantiy defense.
When showing actus reus, what time frame/act do we use? The act that is voluntary and is focused on the RELEVANT conduct and bears the REQUIRED CAUSAL connection.
In general, is there liability for crimes of omission? No, you are not liable to prevent harm to another.
What are the 5 CL exceptions to the general omission rule (that you are not liable)? 1. Status relationships: parent/child 2. Contractual duty of care: babysitter 3. Creation of risk 4. Voluntary assistance: Have a duty to continue if you start. Can't leave them worse off. 5. Statute creating a crime of omission: taxes.
What is the MPC exception for the general omission rule? A duty to perform an act is otherwise imposed by law.
Looking past from Mens Rea and Causation, what are the unique requirements to showing liability for omission crimes? 1. Knowledge of facts that triggered duty. 2. Physical ability to rescue the other person without placing yourself in great peril.
What is the difference between an act and an omission? You can think of this two ways: 1. Conceptually: boundaries of each. No omission without act. 2. Functionally (policy): Consequences of treating it as an act or omission.
Define Mens Rea. An act does not make a person guilty unless the mind be builty. Guilty mind: a guilty mind, wrongful purpose, criminal intent.
What are the two background sources for Mens Rea? Primary Rules: require ordinary citizens to do/abstain from certain actions. Secondary Rules: Tells judges and other officials how to ID, interpret, and alter primary rules. If there is no mention of mens rea in statute, then turn to secondary rules.
What are the 3 types of elements under mens rea? 1. Conduct Elements 2. Attendant Circumtance Elements 3. Result Elements
At a minimum, a mental state must attache to ___ of the elements of an offense. One. It must attach to at least one. (ignore SL)?????
What is the scale of culpability from highest to lowest. 1. Purposely (Intentionally) 2. Knowingly (Intentionally) 3. Recklessly 4. Criminal Negligence (note: some states add "maliciously")
What is the MPC 2.02(2)(a) definition of "Purposely"? A person act purposely with when: 1. If the element involves nature of conduct, it is his conscious object to engage in conduct or to cause the result. 2. If the element involves the attendant circumstance, he is aware of the existence of such circumstance or believes/hopes that they exist.
Differentiate between "Purposely" and "Knowingly". Purposely is a conscious objective to cause result. Knowingly is practically certain that conduct will cause result. Note: if person's conduct would remain the same regardless of harm, then it is knowingly.
Under MPC 1.13(12) what does "Intentionally" or "with intent" mean? Purposely.
Under CL, what is the TRADITIONAL definition of "Intentionally"? A person "intentionally" causes the social harm of an offense if: 1. it is his desire to cause the harm or 2. he acts with knowledge that the social harm is virtually certain to occur. (note: traditional view encompassed purposely and knowingly.)
Under CL, what is the CURRENT definition of "intentionally"? A person intends, or acts intentionally or with intent, to accomplish a result or engage in conduct described by the statute defining the offense, when his conscious objective or purpose is to accomplish that result or engage in that conduct. (note: intentionally is now similar to purposely.)
Under CL, when does the Doctrine of Transferred Intent apply? When D: 1. intends to injure one person but ends up injuring another person 2. intends to damage one piece of property but ends up damaging another 3. intends to cause more serious harm of the same kind that ends up occurring.
When DOESNT the CL Doctrine of Transferred Intent apply? When D intends to cause one kind of harm but ends up causing another.
How does the MPC address the Doctrine of Transferred Intent? 2.03 requires that you keep the causal connection. Will still meet intent requirements if 1) it is just a different person or 2) results in the same kind of injury or harm.
True of False: MPC 2.02(5) allows for the substitution of a more serious mental state required by the statute with respect to a particular element. True. However, it does not permit substitution of a mental state pertaining to a different fact/form of social harm.
What are the four things we look at when determining mens rea when the statute is silent about it for a particular element? 1. Grammar of provision 2. Provision's legislative history 3. Other statute 4. Public Policy
What are the two types of intent? General intent crimes and specific intent crimes.
What are general intent crimes? Crimes whose only culpable mental state pertain to conduct and attendant circumstance elements.
What are specific intent crimes? Intent to bring about the specific social harm that os the target of the statute.
True or False: There is a presumption against specific intent. True. Though it is not a strong presumption.
What does 2.02(4) of the MPC say about assigning a culpable state of mind? If the state mentions a specific mental state, it applies to all of the statute's material elements, unless a contrary purpose plainly appears.
What two things can determine a contrary purpose (in regards to assigning culpable states of mind)? Legislative intent and policy arguments.
True or False: Under 2.02(1), every material element has an associated mental state. True.
True or False: Under 2.02(3), if no mental state is listed, the default mental state is criminal negligence. False. The default mental state is recklessly.
True or False: The MPC and the CL definition of "Knowingly" are the same. True. MPC is found in 2.02(2)(b) and CL is, well, CL.
Define "knowingly". A person acts knowingly with respect to a material element of an offense when: 1. the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist 2. If the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.
Under the MPC 2.02(7), what is Willful Blindness? 1. It is a substitution of knowingly 2. Knowledge is established if the defendant was aware of a high probability of the fact's existence, unless he actually believed that it did not exist.
Under CL, how is Willful blindness treated? "Knowledge" is established if the defendant's ignorance was a product of a deliberate effort to avoid acquiring knowledge. Effort is usually them doing something. There are to parts SUBSTANTIAL PROBABILITY and DELIBERATE AVOIDANCE.
True or False: The MPC and CL are significantly different when it comes to the definitions of "recklessly" and "negligently". False. They are basically the same. Furthermore, the CL is almost gone in all states.
What are the two questions you ask to determine criminal negligence? 1. Was the risk D should have been aware of substantial and unjustifiable? 2. Was the disregard a gross deviation from the standard of conduct that a reasonable person would observe? (Under CL the question is whether D's "failure to perceive was blameworthy."
When determining whether the risk was "unjustifiable" under recklessness or negligence, what are the 3 things we look at? 1. Probability that harm will occur 2. Gravity of the potential harm 3. Social utility of conduct (hand formula)
What is the difference between negligence and recklessness? Recklessness is Negligence+. Negligence says you should have known . Recklessness says that you "consciously disregarded" the risk.
What is the Learned Hand Formula and to what does it apply? (P x G) > U. If the probability or harm occurring times the gravity of the potential harm is greater than the social utility of the conduct. Then the conduct is UNJUSTIFIABLE. It applies to situations when we are trying to determine whether something is justifiable.
What is the CL Presumption of Scienter Mens Rea Principle? Some culpable mental state must be assigned to every element that makes the conduct criminal unless: 1. it's a public welfare offense, or; 2. the legislature clearly meant to dispense with the mens rea.
Under the Presumption of Scienter, what is the analysis to identifying what elements the rule applies to? 1. ID the Elements. a) elements that make a crime more serious don't need mens rea. b) elements that make crime illegal need mens rea. (This is the reverse presumption of the CL.) 2. Offense Limitations. (This is something that not all courts agree upon.) Sayre: penalty is light (right def.). Staples: Something will qualify as public-welfare offense if the D knows that he is dealing with a potentially dangerous situation (narcotics) and therefore has been alerted to the possibility of strict regulation.
True or False: If an element of a crime does not make it criminal and the offense is not a public welfare offense, then the culpable state of mind must be assigned, regardless of legislature. False. Assigning a mental state is not done if the legislature plans otherwise.
What is the definition of Strict Liability? If any of the elements that make the conduct illegal lacks an associated mental state, it is a SL crime.
How does the MPC treat Strict Liability crimes? MPC says that a mental state must be assigned to every element UNLESS the offense is a violation. The rule only applies to "material" elements. MPC has, "Absolute Liability": an offense if any of its material elements lacks an associated mental state. MPC doesn't really like SL.
True or False: There is a presumption against SL. True. If Congress wants to impose it, it must be very clear.
What is the difference between Strict Liability and Absolute Liability? SL is a CL offense where any of the elements that make the conduct illegal lacks an associated mental state. AL is a MPC offense where ANY of the material elements lacks an associated mental state.
True or False: Mistake of Fact is always a defense. False. Mistake of Fact is only a defense when it negates a required element of the crime. Honestly, it's really not a rule. "The law could be equally stated well w/o reference to mistake" - Williams. POINT: Mistake of fact is no different than negating an element of the offense or an attached mental state.
What is the analysis for mens rea? 1. What are the elements of the offense? a) what are the objective or physical elements? b) what mental states are associated with those physical elements? 2. Are the mental states for the elements satisfied?
How does "Mistake in Fact" apply to general and specific intent? Specific Intent: mistake of fact negates mens rea. General intent: Negates mens rea if it was reasonable (not reckless according to MPC) .
True or False: There are no exceptions where mistake of fact takes the place of mens rea. False. If the law provides that a mistake of fact allows a defense, then it does.
What are the two types of crimes? 1. Malum in se: a crime or act that is inherently immoral (rape, murder). 2. Malum prohibitum: An act that is a crime just because the law says it is (jaywalking).
True or False: Mistake of Law is a defense. It depends. CL says that ignorance is no defense. The MPC allows an exception if knowledge of the law is a mental requirement. However, this is hardly ever the case.
What is Entrapment by Estoppel? Reasonable reliance on interpretation later deemed to be wrong by an official statement of law: 1. A statute or other enactment 2. Judicial decision, opinion, or judgment 3. Administrative order 4. An official interpretation of THE public officer charged by law with the responsibility for the interpretation, admin of the law defining offense.
What does Constitutionality have to do with Entrapment by Estoppel? In rare cases, it offends the Due Process clause to punish a crime which the person was unaware of at the time of their PASSIVE conduct. Requires: 1. Violation was a crime of omission 2. There aren't circumstances to inquire 3. Individuals are singled out based on status.
To what element of a crime does causation matter? Result elements.
What are the 2 folds of Causation? 1. Cause in Fact: Causal connection based on factual assertions. 2. Proximate cause: Policy question. Do we actually want to go through this even though there was a cause?
What is the test for Cause in Fact? The But for Test: The result either 1) would not have occurred at all or 2) would not have occurred as soon as it did. Part 2 is the acceleration rule. This is in place b/c everyone is going to die. Also to protect pre-empted causes.
What do you do if there are 3 assailants in a But For Test? There is a split. Ha! 1. Majority (IL): Contribution Test. Cause in fact requirement is satisfied by proof that the conduct "contributed" to the result. 2. Minority (Fed): Cause in fact requirement or the act needs to be independently sufficient.
What are the two things that you look for when establishing Proximate Cause? 1. Intervening Cause: A causal agent that comes into play b/t the D's wrongful act and the end. 2. Superseding cause: an intervening cause that relieves the D of liability.
What is the MPC approach to Proximate Cause? D's conduct will count as the cause of harm if: 1. Probable result: it came about in a way that was within the purpose/foresight of actor. 2. Actual Result: It was not "too remote/accidental to have a just bearing on the actor's ability or on the gravity of his offense."
What is the CL analysis to Proximate Cause? 1. Are there intervening events? 2. What was the foreseeability of the intervening events? If it's dependent, it must be freakish. If it's independent, it must be unforeseeable. (can't be preexisting). 3. Other factors? Act v. Omission, Perkins Rule, "forces coming to rest", Hart Analysis.
Under CL, for proximate cause, during the 3rd step of "Other Factors", what is each one? 1. Act v. Omission: some courts say that an act can break chain. An omission cannot. 2. Perkins Rule: Did the D intend to bring about result or was D just reckless? (not invoked that much. 3. Whether the forces set in motion by D "came to rest". 4. Hart Analysis: Whether the intervening cause was product of free, informed, deliberate human choice. Wasn't a response to danger D caused.
What does Concurrence of the Elements mean? The D must act with the requisite mens rea at the same moment that D's volunatary conduct/omission causes the social harm (actus reus). Note: any moment from the beginning of time to the end of the act that fulfills the mens rea and the actus reus.
True or False. Homicide is a crime. It is the same under CL as under MPC. False. There are many different laws regarding homicide. Every state is different. However, there are "terms of art" that are from to the CL.
Using the CL term of art, if you see the word "murder" in a statute, what does it mean? A killing with "malice aforethought".
What 4 types of mental states does "malice aforethought" encapsulate? 1. Intent to kill w/o adequate provocation (intentionally or knowingly). 2. Intent to cause serious bodily injury (intentionally or knowingly). 3. Depraved heart recklessness 4. Intent to commit a felony
What are the 3 types of homicide that fall under "manslaughter"? 1. Intentional homicide committed in heat of passion on adequate provocation "voluntary manslaughter". 2. Ordinary reckless or negligent homidicde. 3. Misdemeanor manslaughter.
True or False: First Degree murder is a term of art. False. States decide what this means. However, there is a requirement of premeditation.
Under the premeditation requirement for First Degree murder, what are the 3 different ways to analyze premeditation? 1. Schrader case: Requires only that the killing be intentional. (not very good, but still used) 2. Guthrie case: Requires that the killing be done "after a period of time for prior consideration". 3. Morrin case: Requires both 1) enough time for a 2nd look and 2) a thought process undisturbed by hot blood.
What are the 6 points of analysis for looking at evidence of premeditation under First Degree Murder? 1. Want of provocation on part of deceased 2. Conduct and statements of D before killing 3. Threats and declarations of D before/during course of action 4. Ill will/difficulties b/t parties 5. Dealing of lethal blows after the deceased has been felled and rendered helpless 6. Ev. that the killing was done in a brutal manner
True or False: Extreme Emotional Disturbance and Heat of Passion are defenses to homicide​. True.
What are the 3 components to EED and Heat of Passion defenses? 1. Subjective part: that the thing (EED or H/P) exists. 2. Causal part: H/P=event>passion>killing. EED=EED>killing. 3. Objective part: Majoirty: decide whether or not they fit into a class of provocation (statute). Minority: Decided by the fact-finder on a case by case basis.
For a Heat of Passion defense, to fulfill the objective part, what are the points of analysis? 1. Sufficient provocation: would a reasonable person get upset? (words are not enough.) 2. Cool off: was it before there was a reasonable opportunity to cool of?
For an Extreme Emotional Disturbance defense, under the objective part of the components, what are the 3 things to remember when analyzing? 1. EED doesn't have to be traceable to an external event. 2. Doesn't necessarily have to be sudden. 3. Reasonable person is someone WITH D's mental disposition.
Depraved Heart homicide is basically _______________. Extreme recklessness. There are many different terms meaning the same thing: abandoned and malignant heart, implied malice, extreme indifference, etc., etc.
What are the 3 elements of Depraved Heart homicide? 1. high probability of death: objectively judged by the circumstances known to D. 2. awareness of risk: doesn't have to be conscious. 3. Baseness-of-motive: motive served no redeeming social utility.
What is Depraved Heart homicide per se? This is when the legislature takes the determination of out of the juries hands. Certain things will be considered Depraved Heart under statute.
Define Criminal Negligence. Negligence is a gross deviation from the standard of care. Deserves condemnation.
What are the steps for determining criminal negligence? 1) Given circumstances known to them (subjective). These are facts that they believed AND were true. 2) was there a substantial and unjustifiable risk (objective)? Use hand formula to see if it deserves condemnation.
Reckless Homicide is like _________ plus. Negligence. The analysis is similar. There must be 1) substantial and unjustifiable risk. 2) using the hand formula, you must determine if the person deserves condemnation. (NOTE: only difference is whether the defendant knew of the risk.)
True or False: Felony Murder is a statutory crime. True. The statute will cover whether it is a crime if someone dies.
Under the CL, the what is the standard for Felony Murder? 1. Don't need a mental state towards the death. 2. Intent to commit a felony is required but no intent to cause death.
What does the MPC have to say about felony murder? Homicide while committing one of the listed felonies is a form of depraved-heart homicide. BARRK.
True or False: Prosecutors always have the option of foregoing the felony-murder rule and proving the mens rea for the homicide. True.
What are the 3 limitations on the felony-murder rule? 1. Inherently Dangerous Felony limitation 2. Independent Felony limitations 3. Independent Purpose exception
Under the Felony Murder Rule, what is the inherently dangerous felony limitation? The statute will identify felonies that can serve as predicate felonies in the Felony Murder Rule. BARRK.
Under the Felony Murder Rule, what is the Merger Doctrine? Independent felony limitations, the majority rule is that: - The felony murder rule only applies if the predicate felony is INDEPENDENT of the homicide. - The felony murder instruction is not proper when the predicate felony is an integral part of the homicide and when under the prosecution's ev., it is included in fact within the offense charged.
Under the Felony Murder Rule, what are the independent purpose exceptions? 1. Res gestae doctrine: The felony murder rule applies when a killing occurs during the commission or attempted commission of a felony. 2. Requirement of proximate cause. (minority rule). 3. Relationship of felony to death: agency rule, proximate causation approach, co-felon rule.
Under the Felony Murder rule, under independent purpose exception, what is the agency rule? Felony murder doctrine does not apply if the person who directly causes the death is a non-felon. This is based on accomplice liability.
Under the Felony Murder rule, under independent purpose exception, what is the proximate causation? Felon may be held responsible under the felony-murder rule for a killing committed by a non-felon if the felon set in motion the acts which resulted in the victims death.
Under the Felony Murder rule, under independent purpose exception, what is the co-felon rule? If the person who was killed is an accomplice than the felony-murder rule does not apply, but if an innocent victim is killed the rule is applied.
For Self-Defense, what are the 4 factors to consider? 1. Triggering condition 2. Necessity 3. Proportionality 4. Causing the conditions of one's defense
Define the Triggering Condition under the CL and the MPC. CL: There must have been a threat, actual or apparent, of the use of...force against the defender. MPC: The triggering condition for self-defense is "the use of unlawful force by [an] other person."
Under self-defense, for necessity, what are the general requirements under CL and MPC? CL: The law of SD is the law of necessity--the right of SD arises only when the necessity begins, and equally end with necessity. MPC: The use of force is justifiable when the actor believes such force is immediately necessary.
Under SD, for necessity, what are the refinements? 1. Immanence 2. Duty to retreat w/the Castle Doctrine included
Under SD and necessity, define immanence under CL and MPC? CL: D must have believed he was in IMMINENT peril. MPC: D must believe that such force is IMMEDIATELY NECESSARY for the purpose of protecting himself against the use of unlawful force by the other person ON THE PRESENT OCCASION.
Under SD and necessity, what is the Duty to Retreat? Majority: No duty to retreat. Minority: Actor is required to retreat before using deadly force if he knows or reasonably should know that he can retreat safely. (MPC).
What is the Castle Doctrine? CL: "one who through no fault of his own is attacked in his home is under no duty to retreat." MPC: Doesn't have to retreat from dwelling or place of work UNLESS 1) D is initial aggressor or 2) is assailed in his place of work by another person whose place of work.
True or False: Deadly force in self-defense is permitted always. Falst. I must be proportional to the threat of "death or serious bodily harm".
Under SD, explain the rules regarding Initial Aggressor and Provocation. Initial aggressor: an affirmative unlawful act nullifies the right of CL) homicidal SD or MPC) use of unlawful force. Provocation: SD may not be claimed by the one who deliberately places himself in a position where he has reason to believe his presence would provoke trouble.
Through what lens do we determine whether SD was justified? Looking at the time the person acted. You must consider: 1. Past experiences 2. Objective effects (doesn't matter about psychological effects)
True or False: In SD, sincere but unreasonable belief still allows you to use SD. False. SD is determined through an objective lens. Even if that was your belief, you will be negligent or reckless for believing it (MPC). Gets rid of defense entirely (non-MPC). NOTE: some non-MPC allow for a sincere belief to provide partial defense. (rarely recognized.)
What are the 3 elements of the Necessity defense? 1. Act done to prevent significant evil (subjective: MPC) 2. NO adequate alternative 3. Harm avoided was greater evil than harm caused (value judgment)
How is the Necessity defense judged? It must be objectively reasonable given D's reasonable assessment. Foresight, not hindsight.
True or False: When raising a Necessity Defense, it doesn't matter if the D was the one who caused the conditions of the defense. False. If D culpably caused the condition, then USUALLY there is no defense.
What are the 2 unrelated uses of diminished capacity? 1. Mens Rea Variant: diminished capacity refers to the use of psychiatric evidence to negate the required mens rea for the offense. 2. Partial Responsibility Variant: diminished capacity refers to the use of mental disease or defect short of legal insanity as an affirmative defense that reduces the gravity of the offense. (Think heat of passion).
True or False: Under diminished capacity, there is a partial responsibility defense. FALSE. however, there is a CL caveat that says they are less blameworthy. It is very, very small
What is the CL basic rule for Attempt Mens Rea? Intent is required with respect to the CONDUCT and RESULT elements. Gentry: to be guilty of any attempt, the defendant generally has to intent 1) to engage in the conduct 2) to bring about the prescribed result, if any. Bruce: There is an attempt version of any offense. (add purposefully to the result element).
What are the 2 types of Attempts under the MPC when determining attempt mens rea? 1. Completed attempts: actor does everything he planned to do, but result didn't occur. (Unleashed all forces). 2. Incomplete attempts: actor takes steps toward the commission of a crime, but stops, or is stopped by someone else before taking last step.
Under the MPC approach to attempt mens rea, what mens rea is required for Completed Attempts? D must act with purpose of causing the result OR w/o further conduct on his part. (like knowingly. Yet can be applied even if statute requires pursposefully).
Under the MPC approach to attempt mens rea, what mens rea is required for Incompleted Attempts? Just like CL, D must act purposefully. (majority interpretation of MPC)
How do we deal with attendant-circumstance elements when figuring out attempt mens rea? Simply require what the statute requires. Don't add purposefully.
True or False: You should always charge attempt crimes if you can. False. Many crimes might be attempt crime, but it's not always worth it.
What is the general rule for Actus Reus for attempt? The actus reus is usually satisfied when D does the "last act" or when D went "far enough". (NOTE: do not confuse with abandon. This is a defense.)
What are the 4 test for Attempt Actus Reus for determining whether D went far enough? 1. Dangerous Proximity Test 2. Probable Distance Test 3. Res Ipsa Liquitur or Unequivocally Test: the thing speaks for itself 4. The Substantial Step Test (MPC)
What is the Dangerous Proximity Test for attempt actus reus? 1. Present intent to accomplish the crime w/o much delay 2. D must be very close in time and space to the point where the crime is to occur 3. The proximity, combined with the actor's intent, must give rise to a danger of success. (consider real facts and facts as D thought them). NOTE: this test is rare these days
What is the Probable Distance Test for determining actus reus in an attempt crime? Requires that "the actor had reached a point where it was unlikely that he would have voluntarily desisted from his efforts to commit the crime.
What is the Res Ipsa/Unequivocally Test for determining actus reus in an attempt crime? D's conduct (as distinguished from his statements before, during, and after the crime) must unequivocally signal his specific criminal purpose. (very hard to satisfy).
What is the MPC's Substantial Step Test for determining actus reus in an attempt crime? 1. Focus on what the actor has done, not what remains. 2. Actual dangerousness of D's conduct isn't important. 3. Act must be "strongly corroborative of criminal purpose". Doesn't need to be unequivocal. 4. Doesn't matter if actor would have desisted prior to completing crime.
Under the MPC, how does the Affirmative Defense of Abandonment work? D must abandon his effort under circumstances manifesting a COMPLETE and VOLUNTARY renunciation of his behavior. Complete: doesn't intend ever to commit. Voluntary: can't be motivated by circumstances no present/apparent at the inception of the actor's course of conduct.
What are the differences between Mistake and Impossibility as Affirmative Defenses? Mistake: D believes his conduct is lawful when it isn't. Applies to mens rea. Impossibility: D believes conduct is unlawful when it's really harmless. No crime.
What are the 3 classifications of impossibility? 1. Pure Legal: D is mistaken about what LAW proscribes. Always a defense. 2. Factual: D is mistaken about some FACT that goes to the CAUSAL efficacy of his chosen means of bringing about the conduct/result. Never a defense. 3. Hybrid: D is mistaken about some FACT that goes to the existence of an attendant circumstance. MPC: no defense. CL: majority no. minority, might be.
Though hardly used, what are the CL categories of accomplice liability? 1. Principal in the first degree: actually commits the crime by his own hand. 2. Principal in the second degree: aids/abets commission of crime in his presence. 3. Accessory before the fact aids/abets commission of the crime, but isn't present. 4. Accessory after the fact: helps perpetrator avoid apprehension or punishment.
What is the majority approach that states employ for accomplice liability? 1. CL categories 1-3 are into one big principal. Principal in first degree. 2. Accessories after the fact: they will be convicted of a separate crime.
What are the components of intentional accomplice liability? 1. (Actus reus) D must aid/encourage with (mens rea) intent to aid/encourage. 2. (AR) Commission of offense by someone with (MR) intent to bring about the commission of the offense. 3. Attendant circumstances must be figured out individually. Majority: commission must be the same. Minority: enough that the person acted with knowledge.
For Unintentional Accomplice Liability, what is the general rule (as seen in Riley)? 1. (AR) aid/encourage by D with (MR) intent to aid/encourage. 2. (AR) Conduct causing result by other with (MR) Intent to promote or facilitate by D. (This is critical). 3. (AR) Result with (MR) mental state required by statute.
For Unintentional Accomplice Liability, what is the "Natural and Probable Consequence" Rule? 1. (AR) Aid/encouragement by D with (MR) intent to aid/encourage 2. (AR) Target offense by other with (MR) intent to promote/facilitate by D. 3. (AR) Secondary offense by other (this person must meet the mental state required by statute) paired with (MR) negligence by D.
Generally, how do excuses work? They center on the action of the specific actor. Excuses concede that all the elements of the crime are present and then argue that there is an excuse for it. Although actor has harmed society, he is not blameworthy.
What are the 5 elements of Duress under Common Law? 1. Threat of death or serious bodily injury 2. Well grounded fear 3. Immediacy of threat 4. No reasonable opportunity to escape 5. No fault in exposure to duress
True or False: Under the CL, duress is NOT a defense to homicide. True.
True or False: Under the MPC, duress is NOT a defense to murder. False. It is. However, there really would never be a case where this could actually work given the elements.
What are the 3 elements of a Duress Defense under the MPC? 1. Threat of physical force 2. Person of reasonable firmness would have been unable to resist 3. Actor cannot have recklessly placed himself in the situation
Explain the difference between Duress and Necessity. Duress usually negates Mens Rea. The threat was HUMAN rather than NATURAL. Most importantly, the person who threatened the D wanted him to commit the very crime he committed. Needs to be a separate defense because Necessity is tied to promotion of welfare.
What are the two types of intoxication defenses? Voluntary and involuntary.
Under CL, voluntary intoxication will only work as a defense if it negates ________. Specific intent. This is a failure of proof defense.
For an Involuntary Intoxication defense, what are the requirements? That D was either 1) coerced or 2) intoxication by innocent mistake. That led D to lack the capacity to either 1) appreciate its criminality or 2) to conform his conduct to the requirements of the law.
True or False: Under the MPC, voluntary intoxication cannot negate recklessness or negligence. True. It can negate purpose and knowledge, but not recklessness or negligence.
Name the 4 Test for Insanity. 1. M'naghten Rule (Majoirty rule) 2. Irresistible Impulse Test (suppliment of majority rule) 3. The Durham or Product Test (Only New Hampshire) 4. The MPC Test (Minority rule)
What are the 3 parts for the M'Naghten Rule? 1. D has mental disease/defect. 2. The person did not know the nature and quality of the act he was doing OR 3. If D did know the nature and quality of the act, he did not know what he was doing was wrong, legally or morally.
What is the irresistible Impulse Test for Insanity? D who knows what they are doing is wrong and knows that it carries society's condemnation, but suffers from an irresistible impulse.
What is the Durham or Product test? An accused is not criminally responsible if his unlawful act was the product of mental disease or defect. "Mental disease": any abnormal condition of the mind which substantially affects mental/emotional process and substantially impairs behavior controls.
What are the elements for an Insanity Defense under the MPC? At the time of conduct, D lacked substantial capacity due to mental disease/defect to 1) appreciate the criminality of his conduct OR 2) to conform his conduct to the requirements of the law.
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