bar crim law part III

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bar crim law part III
2014-07-13 19:43:03
crim law
crim law
crim law inchoate offenses- defenses
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  1. solicitation: MBE & NY: elements [5]
    • 1) enticing,
    • 2) encouraging, or
    • 3) advising of another person to
    • 4) to commit crime
    • 5) with the intent that the person commits the crime
    • 6) [AND in NY] an overt act in furtherance of the conspiracy.

    • - someone else's renunciation is no defense to solicitation
    • - no solicitation if in group exempted by statute (i.e. the 12 year old soliciting sex from someone older)

    in NY- can be charged with solicitation AND the underlying crime (they don't merge!)
  2. solicitation: NY: affirmative defense [2 elements]
    AD of renunciation if D can show:

    • 1) renunciation was voluntary and complete AND
    • 2) D successfully prevents commission of the crime
  3. conspiracy: MBE: elements and additional rules
    • 1) agreement
    • 2) between two or more persons
    • 3) to accomplish an unlawful purpose
    • 4) with the intent to accomplish that purpose

    - not conspiracy if other person doesn't agree or lacks capacity to consent (i.e. undercover cop); this is unilateral consent

    - if two conspirators are charged in the same proceeding and one is acquitted, the other must be too. If one pleads guilty or plea agreement, guilt or plea transfers to co-conspirator as well

    - no overt act requirement

    - crime is complete upon agreement and no affirmative defense of withdrawal
  4. conspiracy: MBE: scope
    conspirators are liable for additional unplanned crimes if they were in furtherance of the conspiracy and reasonably foreseeable
  5. conspiracy: NY: distinctions from MBE
    - includes agreements with those w/out capacity to consent (i.e. undercover cops)

    - consent requires overt act (majority rule)

    - withdrawal an affirmative defense
  6. conspiracy: NY: withdrawal requirements
    D must show he made a substantial effort to prevent the commission of the conspiracy.
  7. conspiracy: NY: scope
    conspirators not vicariously liable for unplanned crimes committed by co-conspirators; liabilty would have to meet requirements of accomplice liability
  8. conspiracy: NY: evidence necessary to convict
    • - testimony must be corroborated with evidence from an independent source other than accomplice.
    • ~can't convict someone for conspiracy based solely on the testimony of a co-conspirator accomplice.
  9. attempt: MBE: elements
    1) specific intent to commit the crime OR

    2) substantial step towards the commission of the crime
  10. attempt: MBE: mens rea required
    Because attempt is a specific intent crime, must show that D intended to commit the crime, even if the crime itself does not require specific intent
  11. attempt: MBE: mens rea: hypo: 

    Romeo, who is 22, meets Juliet, 14, at a party. Romeo honestly believes Juliet is 21 because she shows him an authentic-looking fake ID. Romeo asks Juliet if they can have intercourse, and she says yes. She undresses, and just as they are about to have intercourse, Juliet gets a phone call and leaves. In this jurisdiction, statutory rape is defined as having sexual intercourse with someone under the age of 16. Can Romeo be convicted of attempted statutory rape?
    No. did not specifically intend to have sex with someone under 16. but if he believed she was 14, would be charged.
  12. attempt: MBE: actus reus required
    -D must commit overt act or take substantial step

    - not sufficient if D has only talked about committing the crime
  13. attempt: NY: actus reus required
    D engages in conduct that is very near the accomplishment of the intended crime
  14. legal impossibility: definition
    if D attempts what he thinks is a crime, but is not in fact a crime, there is no criminal liability
  15. factual impossibility: definition
    If D fails to commit a crime because it was factually impossible, might still be criminally liable for attempt (i.e. death by known peanut allergy= attempted murder)
  16. merger: MBE: rule
    If crime is completed, cannot charge D with both underlying crime and solicitation or attempt, BUT can charge separate crime of conspiracy
  17. merger: NY: rule
    ~ could charge D with completed crime AND solicitation or conspiracy

    ~solicitation only merges if an element of underlying substantive crime
  18. accomplice liability: definition of accomplice
    one who assists or encourages the crime AND provides that assistance with the intent to aid or encourage the crime.
  19. accomplice liability: NY: effect of principal's acquittal on accomplice
    accomplice not also acquitted, may still be convicted
  20. accomplice liability: withdrawal requirements: MBE [3]
    • -repudiate prior aid
    • -do all that is possible to countermand prior assistance AND
    • - do so before the chain of events is set in motion
  21. accomplice liability: withdrawal requirements: NY [3]
    • -renunciation of criminal purpose
    • - withdrawal from participation prior to the commission of the crime; and
    • - substantial effort to prevent the commission of the crime
  22. obstruction rule: NY
    providing help after the crime has occurred.
  23. evidence necessary to convict: NY
    • - corroborated testimony only
    • ~ not solely uncorroborated testimony of an accomplice
  24. Insanity: M'Naghten Test
    [right from wrong test]

    • because of
    • 1) defect of reason due to mental disease
    • 2) D either did not know the nature and quality of the act OR the wrongfulness of the act
  25. Insanity: Irresistible Impulse Test
    • 1) mental disease or defect that 
    • 2) prevented D from being able toconform his conduct to the law
  26. Insanity: Durham Rule
    (but-for test)

    • unlawful act was product of a 
    • 1) mental disease or defect AND
    • 2) would not have committed the act

    If not, D not guilty
  27. Insanity: MPC test
    • 1) as a result of a mental disease or defect
    • 2) defendant did not have substantial capacity to appreciate the wrongfulness of the act OR to conform conduct to the law
  28. Insanity: NY: rule
    • 1) as a result of mental disease or defect 
    • 2) D lacked the substantial capacity to know or appreciate
    • 3) either the nature and consequences of such conduct OR that such conduct was wrong
  29. voluntary intoxication defense: MBE: rule
    May be a defense to specific intent crimes where it prevents D from forming the relevant intent

    NOT a defense to general intent crimes that require malice, recklessness, or negligence
  30. Involuntary intoxication defense: general rule and additional elements
    defense to any crime where the intoxication serves to negate an element of the crime

    • - must show intoxication occurred either:
    • 1)without knowledge of the intoxicating nature of the substance, OR 
    • 2) under durress
  31. infancy: MBE rule
    D not convicted of a crime unless at least 7 years old

    If 7-14 rebuttably presument to be incapable

    at least 14, could be tried as an adult
  32. infancy: NY: rule
    Person less than 16 not criminally responsible unless:

    • -13, 14, 15: can be charged with 2nd degree murder
    • - 14 and 15- can be charged with serious crimes: kidnapping, arson, assault, manslaughter, rape, aggravated sexual abuse, burglary, robbery, attempted murder
  33. Defenses: self-defense rule
    D may only use reasonable force to resist immediate or imminent unlawful harm to himself

    - D cannot be the initial, physical aggressor
  34. defenses: self-defense: MBE: rule of deadly force
    Only use deadly force if reasonably necessary to prevent death or serious injury or prevent the commission of a serious felony
  35. defenses: self-defense: duty to retreat rule: MBE vs. NY
    doesn't exist in common law

    • in NY:
    • Deadly force only if D reasonably believes deadly force is about to be used against him and he cannot retreat without complete safety as to himself and others, but not duty to retreat when in one's own home
  36. self-defense: defense of property: MBE vs. NY
    • MBE: only non-deadly force
    • NY: deadly force to prevent arson
  37. duress: MBE rule
    • Other than murder, D can claim duress if D performs a crime because of a:
    • 1) third party's unlawful threat which causes
    • 2) D to reasonably believe that the only way to avoid
    • 3) death or serious bodily injury to himself or another is to violate the law and causes D to do so
  38. duress: NY rule
    Duress can be a defense to murder
  39. necessity definition and distinction from durress
    If forces of nature cause the defendant to commit what would otherwise be a crime, D may be justified in doing so based upon necessity

    duress= human acts, necessity= from natural forces
  40. entrapment: majority/MBE rule
    • D must show that crime was induced by a government official or agent AND 
    • D was not predisposed to commit the crime
  41. entrapment: NY/minority rule and elements
    • government official or agent must induce or encourage the crime AND
    • employing methods or persuasion that create a substantial risk that the crime will be committed by persons other than those who are ready to commit it