daniel crim cards.txt

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  1. ´╗┐Modern statutes have a single consolidated crime for taking a property. It is called...
  2. Theft, under modern statutes, consolidates what traditional crimes?
    Larceny, embezzlement, false pretenses, and receiving stolen property.
  3. What are the elements of larceny?
    1. taking (exercising control), 2. asportation (some movement) 3. corporal personal property of another 4. from the possession of another 5. wrongfully 6. with intent to permanently deprive.
  4. What are the two ways to wrongfully commit larceny?
    1. Taking without permission, or 2. taking with permission obtained by deception (larceny by trick).
  5. Doug works in a store. He moves a TV to the loading dock with intent to take the TV. He is caught before he takes it off store property. Is his best defense that he hasn't asported the property or that he has not exercised actual control?
    Best defense is that he has not exercised actual control. Asportation requires very little movement. BUT you need not move property from premises to commit larceny - this is just the better defense.
  6. What is a taking in criminal law?
    Exercising control adverse to the owner.
  7. V repairs D's car. D doesn't pay. V has a mechanic's lien, which allows V to keep the car until D pays the repair bill. If D sneaks in and takes the car, is he guilty of larceny?
    Title does not control; possession does. V has a right of possession superior to D's car title, so the car was V's property. D is guilty of larceny.
  8. What two ways can a D show an intent to permanently deprive?
    1. Permanently keep the property himself, or 2. do something that creates a high risk that the owner will never get it back. Taking with intent to return is not larceny.
  9. D takes a car, intending only to use it and leave it in a parking lot. A truck hits the car and destroys it. Is D guilty of larceny?
    No, because D did not take the car intending to use it in a manner creating a sufficient risk of permanent loss. The risk of loss was very low, although the risk came true.
  10. D takes V's car, intending to use it in a robbery and then to abandon it in a desert. A truck hits the car on the way to the robbery. Is D guilty of larceny?
    Yes, because of D's intent. He took the car intending to use it in a manner creating a sufficient risk of permanent loss.
  11. What if the actus reus & the mens rea occur at different times?
    When a crime requires an act and an intent, D must have the intent at the time of the crime. But there is a continuing trespass rule exception for larceny.
  12. D borrow's V's ladder, with only an intent to borrow and with permission. Later, D forms the criminal intent to permanently deprive. Is D guilty of larceny?
    No, because he did not have the intent to permanently deprive at the time of the act (the taking).
  13. What is the continuing trespass rule for larceny?
    It is when someone wrongfully takes (without permission, or by deception) an object, with no intent to permanently deprive. But, after continuous possession of the property, the D forms the intent to permanently deprive. This is now larceny.
  14. When does an act of a taking, followed by a later formation of the intent to permanently deprive, qualify as larceny?
    Only if the taking is wrongful (without permission, or by deception). If the D took the property rightfully, a later formation of intent to permanently deprive will not qualify as larceny.
  15. What are the elements of embezzlement?
    1. Possession of property under a trust agreement, 2. conversion of the property (using it contrary to the trust agreement), 3. with the intent to defraud.
  16. If D has an intent to return money that D is charged with embezzling, does this function as a defense?
    No. Intent to return the property does not show the lack of the intent to defraud. This may disprove an intent to permanently deprive, but that is not an element for embezzlement. That is for larceny.
  17. 3 differences between larceny and embezzlement?
    1. A person with possession cannot commit larceny, only embezzlement. 2. A person only with custody, rather than possession, can commit larceny.
  18. What is the difference between possession and custody?
    Possession requires extensive and exclusive control.
  19. D works in a store. One night, he puts a widget in his bag, intending to keep it. Has he committed embezzlement or larceny?
    Larceny, because he only had custody, not possession. Possession requires exclusive control. Employees usually have only custody of company property.
  20. 3 elements of false pretenses:
    1. obtain title to property from another 2. by means of a misrepresentation of a A. past fact or B. present fact, and 3. with intent to defraud.
  21. D obtains furniture on credit by telling the seller that he will have a good business soon. Right now, his business is not good. Guilty of false pretenses?
    No, because he misrepresented a future, not a present or past, fact.
  22. D obtains furniture on credit by promising the seller that he will pay back the loan. Is he guilty of false pretenses?
    No, because an unkept promise is not a sufficient misrepresentation to be false pretenses.
  23. D obtains furniture by promising the seller that he will pay back the loan. And, at the time he promises, D did not intend to pay back the loan. Is he guilty of false pretenses?
    Yes, because in this situation he obtains the goods by misrepresenting his intention to keep his promise.
  24. Usually an affirmative misrepresentation is required for false pretenses. When is failure to correct a misunderstanding enough to subject D to a false pretenses prosecution?
    Failing to correct a misunderstanding is sufficient to subject D to prosecution if D created the misunderstanding.
  25. D agrees to guide V on a tour if V pays D 6 monthly payments of $100. After V pays the first two payments, D decides he will not guide V. D continues to accept the final four payments, totalling $400. Is D guilty of false pretenses?
    Yes, because D created the misunderstanding. D caused V to misunderstand, because V thinks the tour is still on, and V makes payments based on this D-created misunderstanding. However, only the four post-misunderstanding payments were illegally obtained.
  26. 4 elements of receiving stolen property?
    1. receiving (taking possession) of 2. property acquired by larceny or some other property crime 3. knowing that the property is stolen, and 4. with the intent to permanently deprive.
  27. Officer P brings a TV to D, claiming it is stolen. It is not actually stolen. Is D guilty of receiving stolen property?
    No, to be guilty of receiving stolen property, the property must actually be stolen.
  28. Officer P brings a TV to D, claiming it is stolen. The TV was V's property, and C stole it. The police recovered it, and with V's permission the police are using it to try to ensnare D. Is D guilty of receiving stolen property?
    No. The TV is "formerly stolen" property. D cannot be guilty of receiving property that is not actually stolen.
  29. 2 elements of robbery, beyond larceny elements:
    Robbery is larceny through 1. force (violence) or 2. threat of force (intimidation).
  30. Robbery by force means:
    force must be used to obtain property or prevent victim from immediately regaining it.
  31. Robbery by threats requires 3 things:
    1. threats must be of imminent physical harm, 2. the victim must be put in fear of harm, and 3. the threat must be such as would cause apprehension of immediate harm in a reasonable person.
  32. What is extortion (blackmail)?
    Obtaining property by other, nonphysical threats, such as threats to 1. do something other than physical harm, or 2. do physical but not imminent harm.
  33. D pickpockets V. V realizes that he has been pickpocketed, and he runs after D, but D gets away. Is D guilty of robbery by force?
    No, because there was not enough force. But D has committed larceny.
  34. V sees D, who earlier pickpocketed him. V confronts D, and D knocks V unconscious. D runs away. Is D guilty of robbery by force?
    No, because the force used was not immediate enough in time to count as force for robbery by force. Force must be closely related to the taking, and it was not here. But, D has committed battery.
  35. What types of force are insufficient to count as force for robbery by force?
    1. pickpocketing and 2. slipping items from the V's hand without resistance.
  36. D, with intent to rob a store with a gun and threats, enters the store. V, the nervous clerk, freaks out and throws the money on the floor, even though D did not act in a threatening way or say anything or show his weapon. Is D guilty of robbery?
    No, because D did not act in a way that would cause a reasonable person to be in apprehension of immediate harm.
  37. 5 elements of burglary:
    1. Entry 2. by breaking 3. of the dwelling of someone else 4. during the night 5. with the intent to commit a felony inside. Note: a "dwelling" is a place actually used for sleeping.
  38. Notes about burglary:
    1. entry can be by any part of the body, or by the weapon of choice. 2. breaking requires only some force to create an opening (opening a window counts). 3. D must have necessary intent at the time of entry, but 4. D need no carry out the felony to be guilty.
  39. Burglarly statutes often make more crimes burglaries than under the common law. Read the given statute!
    Modern statutes often: 1. expenad places covered, 2. eliminate the need for breaking, 3. eliminate requirement that entry be in nighttime, and 4. expand intent.
  40. V tells his guests not to go upstairs. D goes upstairs, opens a door, with intent to commit a felony theft upstairs. Is D guilty of burglary?
    Yes, if this occurred at night. Burglary can be committed by entering a part of a dwelling, that is, by going from one part of a dwelling to another.
  41. During V's party, D hears that V has an expensive coin collection downstairs, where everyone is. D reaches into the cabinet to steal the objects. Is D guilty of burglary?
    No, because D has not entered another part of the dwelling. Instead, D has entered a thing within the dwelling, and therefore has not committed a burglary. D had no intent to steal when entering the house, and did not break into the house.
  42. If the D thinks his actions within a dwelling constitutes a felony, but D is mistaken, then
    D is not guilty of a felony. Mistaken belief that one's intended conduct will be a felony is not "intent to commit a felony."
  43. How does P prove D's intent to commit a felony?
    1. Must prove D entered with intent to commit certain acts, and 2. those acts if committed would be a felony, but 3. need not prove D knew the law made these acts a felony.
  44. What are the elements of arson?
    1. malicious 2. burning 3. of another's dwelling. Burning requires a. some physical damage b. by fire (not smoke or heat) c. to a part of the structure itself.
  45. D starts a trash fire near his lot line. He knew the wind might carry the fire onto his neighbor's house, but he did not care. The fire spreads, the neighbor's house burns. Is D guilty of arson?
    Yes, because awareness of a high risk is enought to make burning "malicious." Malice does not require "intentional."
  46. D enter's V's house and sets fire to a chair. The fire destroyed a chair, but nothing else burns. The ceiling is damaged by soot. Is D guilty of arson?
    No, because no part of the structure was burned by fire. Soot, heat, or smoke are not enough.
  47. Three traditional homicide offenses:
    • 1. murder
    • 2. voluntary manslaughter
    • 3. involuntary manslaughter
  48. Analysis for homicide offenses:
    1. Did D "cause" the death of the victim? 2. Did D act with "malice aforethought"? (If so, murder, unless:) 3. If 1 and 2 are true, was there adequate provocation (this knocks murder down to voluntary manslaugther), 4. If 1 is yes, and 2 is no, did D act with criminal negligence (involuntary manslaughter) or cause the death while committing misdemeanor (involuntary manslaughter).
  49. Three kinds of causation issues:
    1. factual causation (but-for acts of defendant, victim would not have died AS and WHEN he actually did die). 2. Year-and-one-day rule: V must die within a year and one day from the infliction of the injury, and 3. proximate causation. If no causation, D is often guilty of attempted murder.
  50. Frequent proximate cause issue.
    1. D intends to cause V's death. 2. D factually causes V's death. 3. But death occurs in an unexpected manner.
  51. Rule for proximate causation.
    Proximate causation exists if the victim's death naturally results from the D's actions, even if this occurs in an unexpected manner, unless the events are extremely unusual.
  52. Superseding factors cut off proximate causation. They must be:
    1. independent of the D's actions, 2. unforeseeable, and 3. the sole and immediate cause of the victim's death.
  53. Sarah poisons her husband, V. V runs out of the house, and is hit by D, Sarah's lover. D intended to kill V. Is D guilty of attempted murder or of murder?
    D is guilty of murder, because he was both a but-for cause and THE proximate cause of V's death. Sarah's poisoning is a but-for cause of V's death, even if the poison was not strong enough or did not cause V's death, because it led V to run from the house to his death.
  54. Does a D who only speeds up the death of a dying victim factually cause (acts as a but-for cause) of the victim's death?
    Yes. Speeding up a death is factual causation of the death.
  55. Sarah poisons her husband, V. V runs out of the house, and is hit by D, Sarah's lover. D intended to kill V. What is Sarah guilty of?
    Attempted murder, because although Sarah's poisoning is a but-for cause of V running out of the house and dying, D's act was a superseding factor that broke the chain of proximate causation.
  56. Sarah poisons her husband, V. V runs out of the house, and is hit by D, Sarah's lover. But V dies both from the poison and from D's actions. What is Sarah guilty of?
    Murder, not attempted murder. D's actions, alone, would not have caused V's death. Both Sarah and D are liable for murder prosecution.
  57. Murder requires one of these four intents:
    1. Intent to kill. 2. Intent to commit serious bodily injury. 3. Awareness of extremely high risk that death will result (depraved mind or abandoned and malignant heart murder). 4. Intent to commit a felony.
  58. D knows that V suffers from a serious back condition. D weakens the leg of V's chair, wanting to disable V by causing an injury to his back. V sits in the chair, the chair collapses, and V dies. What intent did D exhibit that justifies murder?
    Intent to commit serious bodily injury. Although D did not exhibit an intent to kill, he did intend to cause serious injury. D may not have even acted with an awareness that there is a high risk for death to result, but this does not matter. Even if D thought the risk of death was zero, intent to cause serious bodily injury is enough.
  59. X and Y are chasing D down the road. D turns and fires above them, hoping to cause the crowded street to panic so that X and Y would lose him. The shot kills Z. What is D guilty of?
    D is guilty of murder, because he acted with awareness that his actions had a high risk of causing death, and a death resulted.
  60. Felony murder elements (4):
    1. Accidental deaths caused during the commission of a felony are murder. 2. If D has a defense to the predicate felony, the accidental death cannot be felony murder. 3. The death must have been foreseeable (aka the felony was dangerous as committed). 4. All cofelons are guilty of felony murder, if the death was foreseeable to them.
  61. A death during a felony must be foreseeable to the felon being charged in order to be felony murder.
    A death can be foreseeable to some felons but not other. Note: when a gun is used in a robbery, a death is foreseeable to any felon that knows about the gun.
  62. What is the "merger" rule for felony murder?
    Felony murder cannot be based on assault (or battery) causing death of a victim.
  63. C and D commit only felony assault, and a death results. Can C and D be charged with felony murder?
    No, because of the merger rule.
  64. Limits on felony murder based on the triggerman or victim's status.
    1. Under the "agency rule," the shot must have been fired by one of the felons to allow felony murder. 2. If the dying person is one of the felons, courts might not allow felony murder charges.
  65. Courts are least likely to allow felony murder charges when
    A guard or victim is the triggerperson (violating the agency rule) and the victim is one of the cofelons.
  66. What makes a murder second degree or first degree?
    Most killings with malice aforethought are second degree murder. First degree murders are limited to premeditated killings or some felony murders (robbery, burglary, kidnapping, arson, rape, etc.).
  67. What is premeditation?
    Some conscious consideration over whether or not to kill.
  68. D and V are arguing. D shoots V in anger. Guilty of first degree murder?
    No, because lack of premeditation. A provoking incident, even if not enough to reduce killing to voluntary manslaughter, may show absence of premeditation.
  69. Voluntary manslaughter elements:
    1. An intentional killing is voluntary manslaughter rather than murder if a) there was objectively reasonal provocation b) that actually caused the D to kill the V, and c) the D acted on that before an objectively sufficient cooling period elapsed. 2. Mere words are insufficient provocation as a matter of law.
  70. D comes home and finds V in bed with his wife. Later that day, D sees V on the street. D kills V at that point. What is he charged with?
    There was reasonable provocation (not just words) because he caught them in the act, and this provocation caused the death. However, a "cooling period" had elapsed, so D should be convicted of voluntary manslaughter.
  71. Involuntary manslaughter is when someone kills:
    1. in the course of committing a misdemeanor, or 2. with criminal negligence. Criminal negligence requires higher negligence than is necessary for civil liability.
  72. Criminal liability can rest on omissions only if:
    1. D has a legal duty to act (arising from tort, criminal, contract, or other law), 2. the D was aware of the facts giving rise tot he duty to act, 3. perfroming the duty is possible, and 4. D has the necessary intent.
  73. D, a swimmer, was present when V fell into a pool. Although D was present, D allowed V to drown. D was happy that V drowned. Is D guilty of murder?
    No, because D had no legal duty to V, so although he had a mens rea for murder, his omission cannot be held against him.
  74. D, a swimmer, was present with V, and they were horsing around near a pool. D accidentally bumps V into the pool. D does not help to save V, and V drowns. Is D guilty of murder?
    Yes, because his fault in placing V in danger created a duty, under tort law, to attempt to save V.
  75. D, a swimmer, was present with V, employed as V's parents to take care of V. V falls into the pool and drowns, and D does nothing. Is D guilty of murder?
    Yes, because contract law created a duty, under contract law, to attempt to save V.
  76. D, who cannot swim, has a legal duty towards V. V falls into the pool. Is D guilty of murder?
    No, because performing the duty to save must be possible.
  77. Rape definition:
    Sexual intercourse by a male with a woman, not his spouse, without the woman's effective consent and by force. Fraud will render the woman's consent ineffective only if the fraud goes to the nature of the act.
  78. D convinces V that, if they exchange vows, they are legally married. Based on this fraud, V consents to sex with D. Is D guilty of rape?
    No, even though D defrauded V. The fraud did not lead V to falsely conclude that what she consented to was not sexual intercourse.
  79. D convinces V that she is having a medical exam, but in reality he sexually penetrates her. Is this defraud enough to make her consent ineffective?
    Yes, because the fraud led V to falsely conclude that what she consented to was not sexual assault.
  80. Elements of kidnapping:
    1. Either confining/restraining a person or moving a person, 2. without authority of law.
  81. D goes into a restaurant to rob the place, and moves V to the back room to open the safe. D is charged with robbery and kidnapping. What result?
    D is guilty of robbery but not of kidnapping. The movement or confinement was only incidental to the robbery.
  82. When is confinement or movement of a victim not merely incidental to another crime (and therefore constitutes kidnapping)?
    When the confinement or movement 1. increases the risk to the victim, or 2. makes the completion of the crime more likely.
  83. Possession offenses
    do not constitute an act or an omission.
  84. What type of possession is not enough to be a crime?
    "Momentary" control will not constitute possession by actual physical control.
  85. Constructive possession requires:
    1. the ability to exedrcise actual physical control 2. with awareness of that ability 3. for a period sufficient to enable the person to terminate the possession.
  86. D is walking with C, and C collapses. D calls the ambulance, but he finds pot in C's pocket. D takes the pot and throws it in the bushes. Is D liable for possession of the pot?
    No, because his possession was only momentary.
  87. A friend puts pot in D's car with D's knowledge. D does not want the drugs nor intends to keep or use the drugs. D drives around for a few hours, and then a cop finds them. Is D guilty of possession?
    Yes, because he had the ability to exercise control for long enough to terminate that control, so he had constructive possession.
  88. Parties who are guilty include:
    1. primary actors who commit the act constituting the crime, 2. aiders/abettors/accomplices who participate either before or during the act, and 3. those who use an innocent agent to commit crimes.
  89. What if someone assists a primary actor after the crime?
    That person is not liable for the crime. Could be a different crime, like harboring a fugitive or obstructing justice.
  90. What effect does acquitting one party have on the liability of others?
    No effect.
  91. What makes you an aider and abettor?
    1. Paricipation (encouraging or assisting) 2. with the required intent (must know the primary actor is going to commit the act, and intend to encourage or assist him in doing so). Look for motive to help discover aider/abettor's intend. But mere presence is not enough.
  92. D is charged with aiding and abetting a battery. The actual batterers, A and B, are both acquitted. Can D be convicted?
    Yes. An aider and abettor can be convicted even if the primary actor is acquitted.
  93. D sells condoms to T, a prostitute, knowing that she was going to use them to break the law. Is D chargeable as an aider and abettor?
    No, because this is insufficient for participation.
  94. D sells condoms at a 300% markup to T, a prostitute, because he knows they are going to be used to break the law. Is D chargeable as an aider and abettor?
    Yes. D has actually assisted, with a motive to want the primary actor to succeed in the crime. The higher price makes D a sufficient participant.
  95. D gives J a bribe, and the State charges J with "accepting a bribe." Can D be charged as an accomplice?
    No. If a crime inherently involves several types of participants and makes only some of them liable, then the other participants are not under accomplice liability.
  96. D buys drugs from S, and the State charges S with "selling drugs." Can D be charged as an accomplice/aider/abettor?
    No. If a crime inherently involves several types of participants and makes only some of them liable, then the other participants are not under accomplice liablity.
  97. D has sex with T. T is charged with statutory rape. Is D an accomplice?
    No. If a participant is a member of the class of persons protected by the statute, that person is not liable under accomplice liability.
  98. Attempts have two elements:
    1. Take a substantial step towards committing the crime 2. with intent to commit the crime.
  99. Is abandonment of attempt a defense?
  100. What intent is required for an attempt?
    1. Intent to complete the conduct that constitutes the attempted crime, and 2. any intent necessary for the predicate crime.
  101. What defense of impossibility is available?
    Only for attempts, there is a defense of legal impossibility. If the attempted act is not in fact illegal, then you have a defense of legal impossibility.
  102. D sets out to commit a crime. It is impossible for her to commit the crime, but D incorrectly believes she can commit the crime, because she is mistaken about whether she can perform the illegal conduct. (For example, her accomplice has already been arrested before she can deliver the drugs). Is she guilty of attempt?
    Yes. Even though it turns out she could not commit the crime, she is guilty of attempt. This was just factual impossibility, which is not a defense.
  103. D sets out to commit a crime. It is impossible for her to commit the crime, but D incorrectly believes she can commit the crime, because she is mistaken about circumstances surrounding the situation. (For example, she thinks she's buying heroin but it's actually baking soda). Is she guilty of attempt?
    Yes. Even though it turns out she could not commit the crime, she is guilty of attempt. This is just factual impossibility, which is not a defense.
  104. D sets out to commit a crime. It is impossible for her to commit the crime, but D incorrectly believes that her conduct is illegal, because she is mistaken about the criminal law. (For example, she thinks the supplements she is selling are illegal, but they're not.) Is she guilty of attempt?
    No. This is legal impossibility, which is a valid defense.
  105. Solicitation elements:
    1. Asking someone to commit an offense 2. with intent that the person commit the offense.
  106. D asks C to go kill her neighbor, V. D immediately realizes she does not want to kill V, and calls C to tell him so. C had already called the police. Is D guilty of solicitation?
    Yes. Solicitation is a crime even if it's immediately rejected or rescinded.
  107. Conspiracy elements:
    1. entering into an agreement to commit a crime 2. with the intent that the crime be committed. Modern statutes require an overt act in furtherance by one member of the group.
  108. Defenses to conspiracy:
    1. withdrawal and 2. no "meeting of the minds." Impossibility is not a defense.
  109. What is the co-conspirator rule?
    All members of a conspiracy are guilty of any crimes committed by other members of the conspiracy, if those crimes are both 1. committed in furtherance of the scheme and 2. foreseeable as a result of the scheme.
  110. What is the defense of "withdrawal" from a conspiracy?
    Withdrawal is not a defense to the conspiracy charge. It is a defense to the predicate crime charge, so long as the withdrawal is 1. communicated to all member of the conspiracy 2. before the predicate crime is committed.
  111. A, B, and C agree to rob a store. C leaves their meeting. A has second thoughts, and A tells B he is leaving the conspiracy. Meanwhile, C steals a car. C returns, and B informs C that A has left the scheme. Then, B and C commit the robbery. What is A's liability?
    A is liable for the theft of the car, because C did not have information that A had withdrawn and the car theft was a foreseeable crime in furtherance of the conspiracy. A has no liability for the robbery, because by that time all other members (B and C) were informed ofthe withdrawal. Note: A is also liable for the CONSPIRACY.
  112. What is the "no meeting of the guilty minds" defense to a charge of conspiracy?
    This defense REQUIRES acquittal when one Defendant shows that all other conspiracy defendants were acquitted, or found not guilty by reason of insanity, or lacked the intent to go through with the crime (secret reservations, for example an undercover cop or a police informant).
  113. A, B, and C agree to rob a store. A and B are caught and charged with conspiracy. C was an undercover cop. A is acquitted at a trial. What should B argue at his trial?
    B should asser the "no meeting of the guilty minds defense," which would mandate acquittal. All other members of the conspiracy have acquittal or its equivalent. A was actually acquitted; C never had the intent to go through with the crime, because he was an undercover cop.
  114. A, B, and C agree to rob a store. A and B are caught and charged with conspiracy. C was an undercover cop. A is acquitted at trial. B's lawyer fails to introduce any evidence about C. What result?
    B cannot assert the "no meeting of the guilty minds" defense to the conspiracy charge, because he has not proved that every member has been acquitted or its equivalent (not guilty by reason of insanity or lack of intent to complete the predicate crime).
  115. What is the usual standard for mistake of fact (ignorance)?
    D must show that 1. he lacked the intent required for the crime and 2. the mistake was objectively reasonable.
  116. When is the standard for mistake of fact (ignorance) more lenient?
    With specific intent crimes. These include larceny (intent to permanently deprive), burglary (intent to commit offense), attempts (intent to complete the predicate offense), conspiracy (same), and any offense defined with the terms "with intent to..." in the statute. Arson and rape are not specific intent crimes.
  117. Under modern statutes, how does the mistake of fact (ignorance) defense work?
    If a defendant lacks the requisite mental state for the offense, he must be acquitted.
  118. D accidentally uses V's bike to go home. V's bike was identical to D's bike, and D did not realize he had taken the wrong bike. Is D liable for larceny?
    No, because larceny is a specific intent crime, and D lacked the intent to permanently deprive V of V's property.
  119. What is mens rea?
    Mens rea is the mental state. A Defendant does not have to know about the law that makes something illegal; he must only be aware of the facts that constitute the crime.
  120. What are strict liability offenses?
    These crimes do not require awareness of all the facts.
  121. List three strict liability offenses.
    1. statutory rape (no need to know age), 2. bigamy (no need to know that you are still married), 3. regulatory crimes (low penalty, traffic-type crimes).
  122. What is the modern mens rea framework?
    In order from most culpable to least culpable: 1. Purpose (a conscious desire), 2. Knowledge (awareness of practical certainty), 3. Recklessness (awareness of substantial risk), 4. Negligence (a substantial risk that a reasonable person would have been aware of, even if the D was not actually aware of it).
  123. What is the default mens rea for modern statutes' physical elements?
  124. What is transferred intent?
    If you intend to harm one person and actually harm another, your intent to harm your target constitutes the mens rea for the actual harm you committed.
  125. D commits statutory rape with V, who he honestly and reasonably believes is 20. V is actually 15. Can D raise a mistake of fact defense?
    No, because statutory rape is a strict liability offense.
  126. D sneaks into his neighbor V's car and takes it to see how it drives. While approaching a sharp turn at 55 mph, he thinks he can make it. The car is totaled. What mental state do his actions satisfy?
    He has acted recklessly, because he was aware that driving 55 mph around a corner subjected the property to risk. He did not know or desire for the car to be destroyed. He would also be liable for negligence (in the alternative).
  127. A modern statute says: "It is an offense to damage the property of another." What mens rea will a court insert?
  128. Mistake of law is a defense only under certain conditions. These are:
    If a Defendant did not believe that the criminal law prohibited her conduct, and 1. this belief is objectively reasonable and 2. the defendant relief on one of three sources: a. a statute (later held invalid) b. a later-overriden judicial decision, or c. an official interpretation of the law by a public official.
  129. D considers stopping paying child support payments based on counsel's advice. Counsel informs her that the confusing statute does not subject her to liability. She stops making payments and is charged. Should she be convicted?
    Yes, because although her belief is objectively reasonable, she relied on a lawyer's interpretation of the law. Because the lawyer was not a public official making an official interpretation, this cannot support a mistake of law defense.
  130. D considers stopping paying child support payments based on counsel's advice. The statute requires that anyone charged know of the obligation to pay. Is D guilty?
    No. Although the counsel's advice does not support a mistake of law defense, D's reliance on a legal opinion causes her to lack the mens rea to commit the crime (knowledge of the obligation to pay).
  131. D is charged under a statute that requires a willful failure to report income to the IRS. He testifies that he did not believe his wages were "income." If the jury believes him, can they acquit him?
    Yes, because if a crime requires willfulness, even an unreasonable ignorance or mistake that shows a lack of awareness eliminates the necessary mens rea.
  132. What is the M'Naughten rule?
    The jury must acquit the Defendant if 1. he had a serious mental disease/defect, 2. this caused a defect in his reasoning abilities, and 3. as a result, he did not understand either the nature or the wrongfulness of his actions.
  133. What is the analysis to see if a D's actions meet the insanity requirements of the M'Naughten rule?
    1. Assume the facts are as the insane D perceived them. 2. Under those facts, would it be legal to do what the D did? If so, then the D is not guilty.
  134. D believes that V is in a conspiracy against him. D thinks that V is working to destroy D's family and D's job. To stop V, D kills V. Should a jury acquit D under the M'Naughten rule?
    No, because even if the facts were as D believed them, sabotaging another's job and family are not justifications for a retaliatory killing.
  135. What more lenient version of the M'Naughten rule do some jurisdictions follow?
    They say that if you assume the facts as the insane D perceived them, you then ask if D's crime would be morally (instead of legally) permitted.
  136. D sees V on the street. D has delusions that V is trying to destroy D's life. D hallucinates that V is setting him on fire and shooting him. D kills V. Should a jury acquit D under the M'Naughten rule?
    Yes, because if the facts were as D perceived them, D would have a legal right to defend himself with deadly force.
  137. D sees V on the street. D has been fighting a compulsion to kill V for years. D finally gives in and kills V, because D cannot resist the compulsion any longer. Is D's M'Naughten insanity defense viable?
    No. Under the usual M'Naughten rule, an insanity defense cannot be based on a loss of control.
  138. How is the Model Penal Code insanity defense different from the M'Naughten rule?
    Beyond the normal M'Naughten rule, the MPC also includes a defense if the Defendant lacked the substantial capacity to conform his conduct to the law (e.g. because of a compulsion).
  139. Where is the loss of control a valid insanity defense?
    1. Modern insanity statutes based on the Model Penal Code, and 2. the "irrestible impulse" version of insanity used in some jurisdictions.
  140. Are unconscious acts sufficient to support an insanity defense?
    No. Unconscious acts eliminate the voluntary act, which is required for criminal liability.
  141. When is intoxication involuntary?
    1. When D did not know the substance was intoxicating, or 2. when D consumed the intoxicant under duress.
  142. Is involuntary intoxication treated like insanity?
    Yes. Apply the same test.
  143. When can voluntary intoxication eliminate criminal liability?
    1. When the crime requires a specific intent that the intoxication eliminated, 2. when the intoxication made premeditation impossible (it can disprove first degree murder). Voluntary intoxication cannot disprove malice aforethought, so it can't reduce murder to manslaughter.
  144. Modern statutes allow voluntary intoxication to eliminate criminal liability when...
    1. The statute requires an above-recklessness mental state and 2. intoxication shows a lack of this mental state.
  145. What is the minority modern approach to voluntary intoxication?
    Voluntary intoxication is completely irrelevant, so D cannot argue lack of intent at all. This is constitutional and not a deprivation of due process.
  146. D gets voluntarily intoxicated. He shoots flaming arrows at A and B's houses. He burns A's house to the ground; B's house is unburned. Can D assert voluntary intoxication to defeat the mens rea requirement?
    He cannot use it to defeat the arson charge for A's house, because arson does not require specific intent. Voluntary intoxication can only defeat specific intents. However, if he can convince the jury that his voluntary intoxication disproves the specific intent to commit arson, he can be acquitted on the attempt charge. Attempts are specific intent crimes.
  147. Under modern statutes, what mental states can voluntary intoxication defeat?
    It can defeat purposeful or knowing mental states, but it cannot defeat recklessness or negligent mental states. There is no voluntary intoxication defense if recklessness is sufficient for liability.
  148. Majority entrapment rule:
    Entrapment occurs if 1. the D was not predisposed to commit crimes of the sort charged, and 2. police officers created the intent to commit the offense in her mind.
  149. Minority (objective) entrapment rule:
    Entrapment occurs in police activity would cause a reasonable and unpredisposed person to form the intent to commit the crime.
  150. D has several convictions for jewel theft. Police officer Pete meets with D and asks her if she wants to help with a jewel heist. D says "No, I'm not into that now." Pete pressures her and she finally agrees. Can she assert an entrapment defense?
    Yes, because she was not predisposed and hte officer created the intent to commit the crime in her mind. If Pete had seen her casing the joint beforehand, she could not assert an entrapment defense in a majority jurisdiction, because she was particularly predisposed. But she could assert it in a minority objective jurisdiction, because Pete's actions were entrapment for a reasonable unpredisposed person.
  151. What is a necessity defense?
    It is when 1. D believed committing one crime would prevent an immediately threatened harm 2. that would be greater than the harm that would result from the crime and 3. those beliefs were objectively reasonable.
  152. When is necessity not a defense?
    If the D wrongfully created the situation necessitating the choice, or if the D killed another to avoid his own death.
  153. What must a D who escapes do to preserve his necessity defense?
    He must surrender to authorities as soon as the immediate threat is over.
  154. What is duress/coercion?
    Duress is a defense if the Defendant was forced to commit a crime when threatened with 1. imminent physical harm 2. to D or to a third person. Duress is not a defense to an intentional killing.
  155. D is forced to participate in a robbery. (The robbers threaten to kill D's family if he does not participate.) During the robbery, a clerk is accidentally killed. Can D raise duress as a defense?
    Yes. Although the threat was targetted at a third person (D's family), this still constitutes a threat sufficient for duress. Also, although duress is not a defense to an intentional killing, the death here was a felony murder, so duress is a valid defense.
  156. What is self-defense?
    When D has a 1. reasonable 2. belief that he was in imminent danger of physical harm 3. and the force D used was necessary to prevent the harm.
  157. When is deadly force allowed in self-defense?
    Only if the D is threatened with imminent death or serious bodily injury and deadly force was necessary to prevent that harm. Generally, the opportunity to retreat will be weighed as a factor when deciding if the D acted reasonably.
  158. What is the "need to retreat" minority rule for deadly force self-defense?
    Any opportunity to retreat must be taked before using deadly force. But it applies only if retreat can be undertaken safely, and you are never required to retreat from your own home. (The majority rule uses the opportunity to retreat as a factor in deciding reasonableness of the deadly force.)
  159. When can an aggressor use self-defense during the fight?
    Usually an aggressor cannot. He can only regain the right to use force in self-defense if he either 1. withdraws from the fight or 2. gives notice of the desire to withdraw.
  160. D starts a fist fight with V. V pulls a knife. D says "Forget this" and starts to run away. V chases after him and catches him. D uses a gun and shoots V. Does D have a valid self-defense defense?
    Yes, because the situation allowed it and D acted reasonably in using it. Although D was the initial aggressor, he at least gave notice to withdraw. This makes the defense possibly applicable. D believed he was facing death or serious bodily injury, and that his own use of force was necessary to prevent the harm.
  161. What is the "imperfect" self-defense defense?
    A D who is charged with murder but who unreasonably believed the killing was necessary in self-defense is not entitled to acquittal but should be convicted of manslaughter rather than murder.
  162. What is the defense of others defense?
    It allows the use of force to protect another when 1. it appears to D that a third party is threatening the other person with imminent unlawful physical harm, 2. the D believes that D's force is necessary to prevent the harm, and 3. both of these beliefs are reasonable.
  163. D sees an old man attacking a young man. The young man yells, "Pervert!." D pulls the old man off of the young man, committing battery. The young man runs off with the old man's wallet. Can D assert a defense of "defense of another"?
    Yes. It appeared to D that the old man was attacking the young man, and this was a reasonable interpretation of the facts. D also believed that the force he used was necessary to stop the harm, which is also reasonable in this situation.
  164. When can you use force to defend property (and how much force can you use)?
    You can use force if you reasonably believe that it is necessary to prevent unlawful interference with property. You can only use nondeadly force, and you cannot use the force to regain property. If you are not using the force in immediate pursuit, then you cannot use the force to get the property back.
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2013-06-24 01:20:32
daniel crim cards

daniel crim cards
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