Home > Flashcards > Print Preview
The flashcards below were created by user
on FreezingBlue Flashcards. What would you like to do?
National Stolen Property Act
- Farraj vs. Aleynikov
- Intangible = goods?
- Farraj- Yes! If hard copy, then e-version. 2314 doesn't distinguish. Congress added "transmits." Physical form secondary to information. Scope of statute too restricted. Easy to make physical.
- Aleynikov- No! Bottone- must be partly physical. Brown- IP not covered. Strafford- not goods, only information. "Transmits" doesn't show desire to cover all intangibles.
- Tresspassory taking from possession of owner when possession is lawful?
- Legal Fictions: (1) custody, not possession (2) broken bale- had possession of bale but not contents.
Larceny by Trick vs. False Pretenses
- Larceny by trick- causes v to pass possession only.
- False Pretenses- causes v to pass title.
- (Traster) Attempted Larceny by Trick
Receiving Stolen Property
- Receiving = possession
- Possession = dominion and control
- 4 factor test: (1) passenger's presence in the car (2) knew the driver (3) knew car was stolen (4) uses car for own benefit/enjoyment.
- Examples of convictions: (1) unloading beer from car, flees from police (2) riding around in car for 6 hours, gives false info to cops (3) witnesses theft and rides around making stops
Property is within v's reach, observation, or control that v could have retained possession of the car if not for violence or fear.
- Dissent: car was out of sight, too broad- block away not in presence of
- Remains = unlawfully remains
- Intent to steal must be present upon entering. This is what would make the entering unlawful. Not applicable when premises at the time are open to the public or when D is privileged to enter.
"Force, violence, fear of immediate and unlawful bodily injury"
- Frozen fear is still fear.
- Fear of bodily injury can be there even when no explicit threats of violence are made.
- Fraud cannot take the place of the force requirement. Rape by fraud in the inducement is not rape.
Offensive Touching Battery
Touching can include touching by intangible substances (laser light).
- Reasons: (1) breach of peace/personal security (2) physical consequences of corporeal hurt (3) natural and probably consequences of act.
Bodily Injury Battery
- Red mark/bruise enough to go to jury for them to decide.
- Bodily injury = physical pain, illness or any impairment of physical condition.
- Impairment = any deviation from normal health.
- Bruise/red mark could be evidence of possible bodily injury.
Attempted Battery Assault
- "But for the victim's actions, he would have completed"
- Violence begun to be executed "more than mere menace"
- Offer of violence
- Present intent to commit violence
- Present ability to commit violent inujury
- (doesn't matter if prevented: Yslas)
- (also, see Henson 'apparent ability')
Attempted Battery Assault
- Outward demonstration of ability (not secret intent/knowledge).
- Present ability = present apparent ability
- Mental state inferred from v's POV
- Some courts keep actual ability because they have the frightening assault crime (many states do not)
Stalking course of conduct examples
(1) appearing in close proximity or entering v's residence, job, school, or other place where the person might be found (2) causing damage to v's residence or property (3) any act of communication after being notified that v does not desire further communication.
Sudden heat = anger, rage, resentment, or terror sufficient to obscure reason of ordinary person, prevent D &P, exclude malice, and render a person incapable of cool reflection (no cooldown).
- Reasonable provocation- words alone not enough for sudden heat, especially when words aren't intentionally designed to provoke.
Extreme Recklessness elements: (1) extreme conscious disregard (2) extreme substantial risk (3) extreme gross deviation (4) extreme cold and uncaring
- Argue D's mental state resembled P or K
- Examples: bomb in train station, letting tiger out of zoo, Russian roulette, aiming and shooting gun near person
First Degree Murder
"premeditation & deliberation"
- D&P = planning evidence or lack of it
- Circumstantial evidence of D&P: (1) victim provocation (not enough for VM) (2) conduct and statements before and after (3) threats before and after (4) ill-will or previous difficulty between parties (5) lethal blows after v rendered helpless (6) brutal method of killing (7) bring a weapon, etc
Use of deadly force in dwelling
- Occupant includes visitors to home (babysitters, invited guests)
Travelling mental state
- Can be purposely, knowingly, or even recklessly. MPC says with intent = purposely.
- If the first element needs a knowingly mental state, it can travel to all the following elements
- Conscious object to engage in conduct.
- D is aware or hopes or believes the circumstance exists.
- It is D's conscious object to cause this result.
- D is aware his conduct is of this nature.
- D is aware the circumstance exists.
- D is aware that the result is practically certain.
- D consciously disregards a substantial and unjustifiable risk that he is engaging in this proscribed conduct.
- D consciously disregards substantial and unjustifiable risk that the proscribed circumstances exist.
- D consciously disregards a substantial and unjustifiable risk that the result will occur.
- D fails to recognize a substantial and unjustifiable risk he is engaging in this conduct.
- D fails to recognize a substantial and unjustifiable risk that the proscribed circumstance exists.
- D fails to recognize a substantial and unjustifiable risk that the result will occur.
- The failure to recognize the risk involves a gross deviation from the standard of care a reasonable person would observe.