crim law

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mjabali
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293045
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crim law
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2015-01-19 15:06:48
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crim law
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crim law
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  1. crime requires [2]
    • 1. act
    • 2. mens rea (guilty mind)
  2. act [2]
    • 1. voluntary physical act OR
    • 2. failure to act when there is a legal duty to act
  3. failing to act rule
    Liable for failing to act only when a duty to act exists. This duty formed by either a:

    • statute
    • - special relationship
    • - contract OR
    • - by placing someone in a detrimental undertaking (leaving person worse off than before assistance was rendered)
    • - causing the victim's peril, even if D had no intent to cause it

    • AND 
    • -  know of the facts that gave rise to the duty

    • AND
    • - reasonably possible to have acted
  4. MBE mental states
    • specific intent
    • malice
    • general intent
    • strict liability
  5. MBE mental states- malice
    reckless disregard of a substantial or high risk of harm
  6. MBE mental states- specific intent elements and its crimes
    - Requires D to intend a specific result

    • - Specific intent crimes [FIAT]:
    • ~ First degree murder
    • ~ Inchoate offenses (attempt, solicitation, conspiracy)
    • ~ Assault with intent to commit a battery
    • ~ Theft crimes
  7. NY mental states:
    • 1.purposely: D acts with the conscious object to
    • cause certain result

    • 2.knowingly or willfully: D knows or is aware
    • of the circumstances required by the crime OR that a particular result is certain to occur

    • 3. recklessly: D acts with conscious disregard of
    • a substantial and unjustifiable risk

    4. negligently: D should be aware of substantial and unjustifiable risk
  8. If statute is silent about mental state in NY, liability is established if the defendant acted either purposes, knowingly, or recklessly.
  9. mistake of fact: does the defendant’s mistake negate the required mens rea? if so, not guilty, even if unreasonable
  10. mistake about the law isgenerally not a valid defense to criminal liability.
  11. homicide= the killing of another human being
  12. homicide: D must be the but for cause of the victim's death AND the proximate cause (foreseeable from D's conduct) of the victim's death
  13. NY: causation: if two Ds both fire shots, one of which kills a victim and it is impossible to determine which shot was fatal, both Ds can be charged as long as they both have the requisite mens rea and are aiding and abetting each other in the shooting
  14. MBE homicide:
    murder: intent to kill, intent to inflict serious bodily harm, depraved heart killing (reckless indifference to human life), felony murder (BARRK)
  15. felony murder: BARRK
    • burglary
    • arson
    • rape
    • robbery OR
    • kidnapping +
    • kills someone (even accidentally)=
    • felony murder
  16. homicide: voluntary manslaughter= an intentional killing in response to adequate provocation (i.e. heat of passion)
  17. adequate provocation=
    • -threat of serious battery or deadly force OR
    • - discovery of spouse in act of adultery +
    • - no time to cool off (Was D still acting in heat of passion when he/she committed the killing?)
  18. words are not enough to count as "Adequate provocation"
  19. voluntary manslaughter: imperfect self-defense=
    a D who cannot claim self-defense because he made an honest but unreasonable mistake or because he was the initial aggressor. This mitigates murder to voluntary manslaughter
  20. homicide: involuntary manslaughter=
    - an unintentional homicide commited with criminal negligence (i.e. gross negligence) OR when the killing occurs during the commisison of a crime that does not qualify as felony murder (i.e. misdemeanor or non-BARRK felony).

    -Often drunk driving that falls short of depraved heart standard for murder
  21. NY: homicide: two types of murder
    • 1st degree
    • 2nd degree
  22. NY: homicide: 1st degree murder=
    • - intentional killing of a police, peace, or corrections officer, or a judge, or a witness
    • - murder for hire
    • -defendant personally and intentionally kills someone other than a co-felon (BRAKERS): burglary, robbery, arson, kidnapping, escape, rape, and sexual abuse
    • - intentional killing of multiple victims
    • - intentional killing of someone while the D is engaged in torture or terrorism
  23. NY: homicide: 2nd degree murder=
    • -intentionally killing someone
    • - depraved indifference with specific intent to kill
    • - unintentional felony murder
  24. NY: homicide: 2nd degree felony murder: affirmative defense if D can show:
    • 1. did not commit the homicidal act
    • 2. was unarmed
    • 3. had reasonable grounds to believe other participants were unarmed AND
    • 4. had no reason to believe that other participants intended to engage in conduct likely to cause death
  25. NY: homicide: manslaughter: first degree=
    • -death caused with intent to inflict serious bodily injury OR
    • - intentional killing under extreme emotional disturbance (i.e. MBE "heat of passion")
    • - abortion after 24 weeks
    • - recklessly placing a child under grave risk of serious physical injury, resulting in the death of the child
  26. NY: homicide: manslaughter: 2nd degree
    • -recklessly causing the death of another OR
    • - intentionally assisting a suicide OR an abortion where the mother dies
  27. NY: homicide: vehicular manslaugther: 2nd degree=
    criminally negligent homicide that is caused by operating a motor vehicle under the influence of alcohol or drugs
  28. NY: homicide: vehicular manslaugther: 1st degree=
    one of the following 6 factors: 

    • 1. Driving with BAC of .18 or more;
    • 2. D's driver license is suspended or revoked b/c of having driven under the influence
    • 3. Driving after a prior DUI conviction within the past 10 years;
    • 4. causing the death of 2 or more people
    • 5. driving after a prior conviction of vehicular assualt; OR
    • 6. causing the death of a child passenger 15 years of age or younger
  29. NY: homicide: aggravated vehicular homicide (the worst one)=
    vehicular manslaughter in the second degree + show driver was driving recklessly AND

    • -D caused the death of one person and serious bodily injury to at least one other person OR
    • - an aggravating factor for first-degree vehicular manslaughter is present
  30. NY: homicide: criminally negligent homicide=
    (catch-all)

    the D, with criminal negligence, causes the death of another person.

    this is a gross deviation from the standard of care of a reasonable person.
  31. theft crimes: larceny=
    the trespassery taking and carrying away of the personal property of another with the intent to permanently deprive [at the time of the taking] that person of the property
  32. larceny: if a mistaken belief (e.g. think the property is yours), even if unreasonable, may not be guilty of larceny
  33. embezzlement=
    fraudulent conversion of the property of another by a person who is in lawful possession of the property
  34. embezzlement: conversion=
    a significant interference with an owner's rights to the property (e.g. selling, damaging, or unreasonably withholding possession of propery)
  35. embezzlement: unlike larceny, no requirement to carry away
  36. embezzlement: make sure D has intent to deprive owner of the property at the time D converts the property
  37. false pretenses=
    obtaining title to property of another person through reliance on a known false representation of a material past or present fact made with the intent to defraud
  38. larceny by trick= obtain possession by lying
  39. false pretenses: obtain title by lying
  40. NY: larceny: 5 degrees
    1st degree= property > $1 mil

    2nd degree= stealing property >$50k OR extortion (get property by threateninig physical injury) OR D abusses position as a public servant

    3rd degree= stealing property> $3,000

    4th degree= > $1,000 OR taking certain records OR theft from a victim's body OR extortion 

    petit larceny= $1,000 or less
  41. theft offense: robbery=
    • - ALL the larceny elements + 
    • - force or intimidation (thus victim is aware) AND
    • - taking of property must be from the person or presence of the victim
  42. NY: first degree robbery=
    One of these:

    • -non-participanti s seriously injured
    • - D armed with a deadly weapon
    • - D threatens use of a dangerous instrument
    • - D displays what appears to be a firearm
  43. NY: second degree robbery=
    one of these:

    • - D aided by another
    • - non participant is injured
    • - D display what appears to be a firearm
    • - Property taken is a motor vehicle
  44. NY: third degree robbery is everything else
  45. burglary=
    breaking and entering of the dwelling of another at night with the specific intent to commit a felony therein
  46. breaking: can be opening a door or window. But NOT going through a wide-open door or entering with owner's consent
  47. D can be charged with both burglary and the felony ultimately committed; these do not merge
  48. NY: burglary=
    knowingly entering or remaining in a building with the intent to commit a crime

    NOTE: no night or breaking requirement
  49. NY: second degree burglary=
    • burglary of a building and one of these: 
    • - D or another person armed with an explosive or deadly weapon
    • -using or threatening to use a dangerous weapon
    • -injure a non-participant
    • -display what appears to be a firearm
  50. NY: 3rd degree burglary=
    burglary of a building without any 2nd degree factor
  51. NY: 2nd degree burglary=
    burglary of a dwelling
  52. NY: 1st degree burglary=
    burglary of a dwelling + one of these:

    • armed
    • threatens to use a dangerous instrument
    • injures a non-participant
    • displays what appears to be a firearm
  53. receipt of stolen property=
    • D must receive control of stolen property with 
    • knowledge that the property is stolen when he receives it and
    • with intent to permanently deprive the owner of that property
  54. common law battery=
    unlawful application of force to another person that causes bodily harm to that person or constitutes an offensive touching
  55. common law assault: either attempted battery or intentionally placing another in apprehension of imminent bodily harm
  56. common law assault: requires intent, recklessness is not enough
  57. common law assault: victim is not touched
  58. NY: assault= common law battery
  59. NY: 1st degree assault requires:
    • 1) intent to cause serious injury by means of a deadly weapon or dangerous instrument or 
    • 2) cause serious injury with depraved indifference to human life or during the course of committing or attempting to commit a felony.

    --2nd and 3rd degree assaults are everything else
  60. NY: menacing= common law assault
  61. reckless endangerment: 1st degree:
    D acts with depraved indifference to human life, recklessly engaging in conduct that creates a grave risk of death to another person.
  62. reckless endangerment: 2nd degree:
    D recklessly engages in conduct that creates a substantial risk of serious physical injury to another person.
  63. rape: common law:
    • 1) unlawful
    • 2) sexual intercourse
    • 3) with a female who is not one's wife
    • 4) against her will by force or threat of immediate force

    Most modern statutes do not require force. Rather define rape as unlawful sexual intercourse without consent.
  64. rape: NY:first degree=
    • -sexual intercourse by force or with an individual who is incapable of consent because of being physically helpless;
    • - sexual intercourse with an individual under 11 
    • - sexual intercourse with an individual under 13 if D is 18 or older
  65. rape: NY: 2nd degree=
    • -sexual intercourse with an individual who is less that 15 and D is 18 or older
    • - sexual intercourse with an individual incapable of consent due to mental disability or incapacity
  66. rape: NY: 3rd degree=
    • - sexual intercourse with an individual 17 or older and incapable of consent
    • - sexual intercourse without consent by reason other than incapacity to consent and
    • - sexual intercourse with an individual less than 17 if D is over 21
  67. kidnapping: common law=
    • 1) unlawful
    • 2) confinement of a person
    • 3) against that person's will
    • 4) coupled with either the movement or hiding of that person

    * movement must be more than a change of location that is incidental to another crime (e.g. pulling someone into alley to rob them)
  68. kidnapping: NY: 2nd degree= common law kidnapping
  69. kidnappeng: NY:first degree needs either
    • intent to compel the payment of ransom
    • to compel a person to engage or refrain from particular conduct OR
    • restratin of abducted person for more than 12 hours with intent to inflict physical injury, torture, advance commission of felony, or interfere with a government or political function
  70. false imprisonment: common law- elements:
    • 1) unlawful
    • 2) confinement of a person
    • 3) without consent
  71. false imprisonment: NY: 2nd degree unlawful imprisonment= common law; if 1st degree, must:
    expose victim to the risk of serious physical injury
  72. arson: common law=
    malicious, burning of the dwelling of another

    NOTE: sometimes a non-dwelling and still arson on the MBE
  73. arson: common law: malice does not require specific intent. If D creates a substantial risk of burning that's enough for arson
  74. arson: NY: includes individual property, all buildings, motor vehicles and watercraft, not just dwellings
  75. arson: NY: fourth-degree: reckless damage by intentional starting of a fire
  76. It is an affirmative defense to 4th degree arson that the D had a proprietary interest in the property
  77. 3rd degree arson= intentional damage by intentional starting of a fire
  78. affirmative defense to 3rd degree arson when:
    • -all persons with possessory or proprietary interest consented
    • - D's sole intent was to destroy the property for a lawful and proper purpose; AND
    • - no reasonable ground for D to believe conduct would endanger the person or property of another
  79. 2nd degree arson= intentional damage by intentional starting of a fire when another person other than the participant in the crime is present and the D knows or has reason to know of the presence of another person
  80. 1st degree arson= 2nd degree (intentional damage by intentional starting of a fire when another person other than the participant in the crime is present and the D knows or has reason to know of the presence of another person) PLUS use of an incendiary device (e.g. bomb) to start a fire.
  81. common law solicitation=
    • enticing 
    • encouraging OR
    • advising of another person to
    • commit crime
    • with the intent that the person commits the crime
  82. common law solicitation: renunciation is no defense
  83. if person soliciting is part of a group meant to be exempted by the criminal statute, the person cannot be guilty of solicitation for that crime (e.g. 12 yr. old not guilty of solicitation of another to commit statutory rape)
  84. solicitation: NY: renunciation is an affirmative defense IF D can show renunciation was:
    • - voluntary and complete AND
    • - D successfully prevents commission of the crime
  85. conspiracy: common law=
    • an agreement 
    • between two or more persons
    • to accomplish an unlawful purpose
    • with the intent to accomplish that purpose

    -NO need to perform an overt act in furtherance of the agreement
  86. conspiracy: common law: "two or more persons" means parties all have the capacity to consent. An undercover officer pretending to be part of the conspiracy is not sufficient for common law conspiracy
  87. conspiracy: common law: if the 2 conspirators are charged in the same proceeding and one is acquitted, the other must be too
  88. conspiracy: NY/MPC: D may be charged as long as D agrees with the other person, regardless of whether the other person is feigning agreement as an undercover officer or lacks the ability to consent
  89. conspiracy: NY/majority rule: requires an overt act. [NOTE: examiner will say whether majority or common law rule]
  90. conspiracy: common law: crime is complete upon agreement and withdrawal not a defense
  91. conspiracy: NY withdrawal is an affirmative defense if D can show he made a substantial effort to prevent the commission of the conspiratorial plan
  92. scope of conspiracy: MBE:  assume conspirators are liable for additional unplanned crimes if they were in furtherance of the conspiracy and those crimes are reasonably foreseeable
  93. scope of conspiracy: NY: co-conspirators are not vicariously liable for unplanned crimes committed by co-conspirators. To be liable, D would have to meet the requirements of accomplice liability
  94. conspiracy: In NY, cannot convict someone for conspiracy based solely on the testimony of a co-conspirator accomplice. That testimony must be corroborated with evidence from an independent source other than the accomplice.
  95. attempt=
    • specific intent to commit a crime and a 
    • substantial step towards the commission of the crime
  96. common law: substantial step= overt act. Talk is not enough
  97. NY: substantial step= very near the accomplishment of the intended crime
  98. legal impossibility: If D attempts what he thinks is a crime, but is not in fact a crime, no criminal liability
  99. factual impossibility: If D fails to commit a crime because it was factually impossible, can still be criminally liable for attempt
  100. a person who does not complete a crime may only be charged with attempt. If crime is completed, person can be charged with either attempt or the completed crime
  101. merger: common law: if a crime is completed, cannot charge D with underlying crime and with solicitation or attempt. Can charge for conspiracy
  102. merger: NY: solicitation is a separate crime that does not merge into the conviction unless solicitation is a requisite element of the underlying substantive crime
  103. accomplice=
    one who assists or encourages a crime AND provides that assistance with the intention of aiding or encouraging hte crime
  104. In NY, accomplice can still be convicted even if principal is not
  105. accomplice: common law: to withdraw, accomplice must:
    • -repudiate the prior aid;
    • - do all that is possible to countermand prior assistance; AND
    • - do so before the chain of events is set in motion
  106. accomplice: NY: to withdraw:
    • -renunciate criminal purpose
    • -withdraw from participation prior to the commission of the crime AND
    • -make substantial effort to prevent the commission of the crime
  107. accomplice: NYL if help is provided after the crime has occurred, individual cannot be liable for that crime, but may be charged with a separate offense of obstruction
  108. In NY, D may not be convicted solely upon the uncorroborated testimony of an accomplice
  109. insanity: M'Naghten Test (i.e. right from wrong)=
    • 1) defect of reason due to mental disease and D
    • 2) either did not know the nature and quality of the act OR the wrongfulness of the act
  110. insanity: irresistible impulse test=
    • 1) mental disease or defect that
    • 2) prevented D from being able to conform his conduct to law
  111. insanity: Durham rule ( but-for)= unlawful act a product of a  mental disease or defect and
    but for that disease would not have commited the act
  112. insanity: MPC=
    • 1) no substantial capacity to
    • 2) appreciate wrongfulness OR
    • conform conduct to the law
  113. insanity: NY: as a result of a mental disease or defect, D:
    lacked the substantial capacity to know or appreciate either the nature and consequences of such conduct OR that such conduct was wrong
  114. voluntary intoxication may be a defense to specific intent crimes where it prevents D from forming relevant intent
  115. voluntary intoxication is not a defense to general intent crimes that require malice, recklessness, or negligence
  116. involuntary intoxication is a defense to any crime where the intoxication serves to negate an element of the crime. MUST SHOW intoxication occurred either:
    • without knowledge of the intoxicating nature of the substance OR
    • under duress
  117. infancy: common law: D could not be convicted unless at least 7. if 7-14 rebuttably presumed to be incapable. 14 or over, could be tried as adult
  118. infancy: NY: person less than 16 is not criminally responsible unless: 13-15 and charged with 2nd degree murder or 14-15 an commit serious crime (kidnapping, arson, assault, manslaughter, rape, aggravated sexual abuse, burglary, robbery, attempted murder)
  119. self-defense: D must be resisting immediate or imminent unlawful harm to himself
  120. self defense: D may only use reasonable force (i.e. no more than necessary to repel the attack)
  121. self defense: D cannot be the initial aggressor
  122. self-defense: D can use deadly force in self-defense only if it is reasonbly necessary to prevent death or serious injury or prevent hte commission of a serious felony
  123. self defense: common law: no duty to retreat
  124. duty to retreat: NY: can use 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
  125. duty to retreat: NY requires retreat where possible but no duty when you're in your home
  126. self-defense: in NY, can use deadly force to prevent arson
  127. defenses: duress: common law: D can claim if
    • third party's unlawful threat causes
    • D to reasonably believe that the only way to avoid
    • death or serious bodily injury to himself or another is to violate the law and causes D to do so
  128. defenses: under the common law, duress never defense to murder
  129. defenses: In NY, duress is an affirmative defense to murder
  130. if forces of nature cause the D to commit what would otherwise be a crime, D may be justified in doing so based upon necessity
  131. duress results from human acts, necessity is the result of natural forces
  132. entrapment= law enforcement induces someone to commit a crime
  133. entrapment (majority): to use as defense D must show that crime was induced by a government official or agent and D was not predisposed to commit the crime
  134. entrapment:NY/MPC= gov't official or agent induces or encourages the crime and employs 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

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