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What are the three different kinds of appeals in Criminal Law?
Legal insufficency appeal: Judge shouldn't have allowed a jury to consider the charge because there was so little evidence.
Theory of Defense appeal: Judge refused to instruct on defense that there was sufficent evidence for.
Lesser included offense appeal: Judge refused to instruct on lesser included offenses.
What's the difference between a felony and a misdemeanor?
Felony has a penalty of 1 year or more in Prison
Misdemeanor has a penalty of 1 year or less in jail.
What's the difference between Malum Prohibitum and Malum Inse?
Malum prohibitum are crimes that society has decided should be forbidden, and malum inse are crimes that are so bad that no civil society can ever allow them.
Why do we punish people who commit criminal acts?
To deter criminal acts, prevent criminals from committing other crimes (incapacitation) , control retribution (prevent lynch mobs) and to rehabilitate.
What is the difference between Utilitarianism (Bentham) and Retribution (Kant)?
Utilitarianism: Punish people to make the world a better place, for good of society.
Retribution: Look at the character of the person themselves, and decide whether they've done something worthy of punishment. Based on the individual, no outside things.
What happens when the statute doesn't mention mens rea?
If it clearly a codification of a common law crime, then the mens rea is assumed. Otherwise, no mens rea needed.
What is common law rape?
Common law rape is Vaginal penetration, however slight, by a man against a woman that isn't his wife by actual physical force or threat against her will, and must have been resisted.
What is statutory rape?
Rape of a minor child incapable of consenting to intercourse. Neither consent nor reasonable mistakes of age are a defense.
What are the division of a standard CSC statute?
- Penetration, aggravated is 1st
- Touching, aggravated is 2nd
- Penetration, not aggravated is 3rd
- touching, not aggravated is 4th
What are the four most common aggrevators of CSC?
Armed with a weapon, aided by others, during commission of another felony, caused serious injury (pregnancy, STD included)
What is the definition of common law burgulary?
Breaking and entering into the dwelling of another at night.
What is the curtlidge?
It is the area surrounding the dwelling, unattached garages, lawn, etc.
What is constructive breaking?
Gaining entry through deceit, threat, violence, fraud.
What is a dwelling?
Anything you spend any of your time living in is a dwelling, no matter how much (e.g. vacation home)
What is the rule with tools in breaking and entering?
The tool is an extention of your body, so if any part of the tool enters, then you have entered. However, the tool can't simply be the means of breaking, it must also be part of the crime "e.g. wire hanger to snatch a purse, not merely bad to break window"
What is the homcide rule with regards to use of a deadly weapon?
Deadly weapon means you can assume intent to kill.
What does abandoned mean?
Abandoned means given up for no one, and you absolutely don't care what happens to it. Property put in a donation box isn't abandoned.
What is battery?
A general intent crime, whereby you intentional do a harmful or offensive touching to another, using a reasonable person standard.
What is the difference between general and specific intent?
General intent merely means that the act you're doing must be an intentional one, e.g., you can't be unconcious or unable to control your actions. Specific intent means that you intend not only the physical act, but a goal beyond the act itself. E.g. in murder, you intend not only for the weapon to pierce their body, but for them to die.
What are the two kinds of assault?
Attempted battery: A failed attempt at battery that had a specific intent to commit a battery. No awareness is needed.
Tort style: intentionally creating an apprehension of imminent harm and immediate battery. Reasonable person standard, awareness needed.
What is the consent rule to batteries?
You can consent to minor batteries, e.g. kissing, punching, but you can't consent to major batteries, e.g. getting shot, getting arm cut off.
What do all assaults include?
A battery. The battery is the specific intent for the assault.
What is kidnapping?
A vague crime, it means carrying away or confining or imprisoning another person.
What is the merely inciental rule of kidnapping?
If the movement of the victim was incidental to the completion of an equally serious offense, e.g. rape, murder, then no kidnapping occured.
What is arson?
The intentional or malicious burning of the dwelling of another. Requires malice, which in this case means either intent to burn or concious creation or disregard of a high likelyhood of burning.
What element does modern arson law remove?
The reqirement that the burning be a dwelling. It is a crime to burn even your own house now.
What must occur for it to be an arson?
Must be an actual burning of the permant part of the structure. Smoke damage or explosive damage not enough.
What is the rule about acts?
Crime just be a concious and voluntary act. We don't punish bad thoughts, and we don't punish involuntary acts.
What is failure to act?
A crime that occurs when you have a legal requirement to act, and you fail to do so. e.g., don't feed your baby. Breach of some duty.
Where does duty come from?
Statutes (e.g. can't hit and run) Status relationships (parent/child) Contractual (Agreement to take care, e.g. daycare.) Voluntary assumption: (Going to save someone by choice creates a duty) Creation of dangerous situation (You dig the pit, you've got to help people who fall in)
What duty do you have towards your employees?
Have a duty to prevent them from commiting crimes uner your watch and control (e.g. limo driver case) Not responsible for anything they do without your knowledge (Prison guard case)
What are the three ways to steal someone things?
- Larceny by stealth (Sneak and take)
- Larceny by Trick (con man)
- Robbery (Force)
What are the elements of larceny?
- intent to permantly deprive the owner
- Tresspassory taking: taking without informed consent
- Asportation: Moving of the property, however little.
Is stealing from the dead ok?
No, someone owns the property, abandoned, therefore, permanently depriving heirs, so larceny.
What happens when you use an innocent agent to commit your crime?
They act as an inanimate object or tool, you are still guity of the crime.
Explain larceny by trick
A tresspasory taking by deceipt where you are given possession of the property.
Explain false pretenses
A tresspassory taking where you are given ownership of the property by someone who has the right to give it.
The conversion of something that you were given substnatial discrestion and control of to your own use with permanent intention to deprive.
Explain the difference between getting owners consent by fraud and converting, and getting legitimate consent and converting
If you took possession of the property by fraud, then you've committed larceny by trick. If you were given possession honestly and then decided to keep, that's conversion.
Explain continuing tresspass
If you took something by fraud, and then later decide to keep it, the tresspass of the intial fraud continues to your taking, making it a larceny rather than an embezzlement.
What about taking by mistake then keeping?
The taking by mistake is a trespassory taking, even with no intent. By keeping it, the continuing tresspassory taking converts to larceny.
What's the rule regarding larceny and money?
When you take the money, you must know that you were given too much for the taking to be a trespassory one. if you didn't know, then there was no tresspassory taking and there can be no larceny from it.
What happens when you buy a trunk and find clothes in it?
You only agreed to buy a trunk, not the clothes, so any clothes that you decide to keep were tresspassorily taken.
What's the difference between robbery and armed robbery?
Both are taking by force, but armed is either with a weapon or with an item that your victim is meant to believe is a weapon.
What are incohate crimes, what is the mens rea, and what is the overt act rule?
Crimes of attempt that require a mens rea of a specific intent to commit the crime, and you must commit an overt act beyond mere preperation.
Why require an overt act?
To allow the criminal to abort the crime and master their criminal impluse, not punish too soon.
What does attempted murder require?
A specific intent to kill. That's the only way to get attempted murder.
What's the dangerously close standard of attempt?
You must get dangerously close to completing the crime. Merely looking for a victim isn't enough, you need to find one.
What about making an appointment with an intended victim?
Not enough for attempt, if they do not actually show up.
Explain the difference between factual impossibility and legal impossibilty
Factual: CAn't actually do the thing that you intend to do.
Legal: What you intend to do isn't a crime.
What is the policy analysis for incohate crimes?
- Did they intend to commit a crime?
- Did they engage in a sufficent overt act?
- What then made it impossible to commit the crime?
- If unforseen circumstance stopped them, does that make them less dangerous? If yes, then no crime, if no, than crime.
What is the rule of abandonment?
Common law says no defense, MPC says it's a defense if you abandone because of a change of heart, but not if some threat of getting caught made you do it.
What is soliciation?
Asking seriously for another person to commit your crime.
Can you be guilty of both solicitation and conspiracy?
No, the solicitation becomes conspiracy when the other person seriously agrees.
Explain involuntary intoxication
A complete defense, it's when you're made intoxicated against your will,e.g. date rape drugs.
A complete defense to all mens rea crimes, it has two different standards, M'Naughton or ALI.
It means you are unable to tell the difference between right and wrong.
Explain ALI MPC insanity test
It means that you lack substantial capacity to conrol your conduct and reform it to the standards of the law.
Explain diminshed capacity
Mental illness so sever that you are unable to formulate specific intent, requires an expert witness, prevents conviction of specific intent crimes.
Explain the rules of voluntary intoxication.
If so drunk you can't forumuate specific intent, you can't be charged with specific intent crimes. Reduces the crimes to general intent ones.
What is incompetency?
A bar to trial, it means that you don't understand the proceedings and can't help your lawyer. Not the best defense because it isn't one.
What is the general rule to transferred intent and what are the exceptions?
The general rule is that you can't mix the mens rea of one crime with the actus reus of another. The exceptions are felony murder and burgulary.
What is the rule of unintended victims?
If you miss A and kill B, even though you intended to Kill A, you are guilty of murder of B. Itent to commit a crime against one person transfers when you commit against another instead.
What are the rules about mistakes of law?
You can make mistakes of non-penal laws, such as contract law, and that is a defence of specific intent. Also, if you're relying on a legitimate legal interpretation of a law by a court, and the interpretation changes, you aren't guilty of the crime as long as it was within the previous interperation.
What is the rule of mistake of fact?
Mistake of fact is a defense if it negates the mens rea, e.g., thought it was your coat, no intent to deprive if you take it. Doesn't have to be reasonable, only actual and honest in specific intent crimes. For general intent, must be both honest and reasonable. Exception: Never a defense to statutory rape.
Explain the diffference between duress and necessity
Duress is the threat of another human being, while necessity is the threat of nature.
What is the lesser of two evils rule?
For any crime but homicide, duress and necessity, if the threat is immediate, is the lesser of two evils and a defense to the crime.
What must be threatened in duress and necessity?
Your physical well being or life. Job being threatned, for example, isn't enough.
When is consent a defense?
Only when lack of consent is an element, e.g. Rape, Robbery, Burgulary. You can never consent to homicide, though.
It is the agreement of the victim to not pursue the crime. it is not a defense, crimes are against society, not a person.
What felonies allow defense with deadly force?
Atrocious and dangerous ones, homicide, rape, murder, etc. Mere defense of property not enough.
What are the four prongs of self defense?
- Can't be intial aggressor
- Force must be proportional
- Force must be reasoable (must be in honest and reasonable danger)
- Danger must be imminent (threat is right now)
What do you need to beleive to use deadly force?
You must believe that you are being honestly and imminently threatened with great bodily harm.
What is the defense of public authority?
When acting under the orders of a police officer, you are't responsible for the crimes that you are directed to commit. You can't be a free agent, though, you must actually be operating under direct orders.
What is duty to retreat?
Duty to retreat that when threatned, before using deadly force, you must use all reasonable means to escape to safety. You don't have to put yourself in danger, and you usually don't have to retreat in your own home or place of business.
What is pinkerton liability?
If you are part of a conspiracy, then you are responsible for any and all crimes committed by your co-conspirators that were forseeable.
What is a conspiracy to commit a crime?
An honest agreement between two or more people to commit a crime. Approximately the same punishment as actually committing the crime.
What is defense of others
using deadly force to protect someone else from great bodily harm. No limit on who you can protect, but it used to be only family members and employees.
What is battered women's syndrome and what does it mean?
It's a mental state of a spose that has been abused continually, and it is a defense to the murder of their abusive spouse under the theory that they presented a danger to them. Requires both an imminance of harm and evidence that they'v ebeen battered. Also can create a reduction to voluntary manslaughter if no imminence is found.
What is imperfect privledge?
Self defense minus one of the four prongs, usually initial aggressor doctrine. Reduces murder to voluntary manslaughter.
What are the three ways to voluntary manslaughter?
Provocation, Duress, Imperfect self defense
What is entrapment?
When a government agent induces a person to commit a crime they otherwise would not have.
What are the three different entrapment tests?
Objective test: Would the behavior induce an otherwise law abiding person to commit a criminal activity?
Subjective test: Was the person predisposed to commit the crime, and would the police behavior induce an otherwise lawful person to commit the crime?
Due process test: Punishes police for outrageous conduct.
What is the felony murder rule?
Any murder commited in the commission of a felony is automatically a first degree murder.
What are the three kinds of common law (2nd degree) murder?
- Intent to kill
- Intent to cause Great Bodily harm
- Willful/wanton disregard
What is first degree murder?
willful, deliberate, premeditated murder.
What are the four prongs of involuntary manslaughter?
- Event enough to induce a reasonable person to lose control
- Control is lost
- No cooling off period
- Person didn't cool off.
What in voluntary manslaughter?
Grossly negligent but unintenional manslaughter.
What is the misdemeanor manslaughter rule?
Any killing that occurs in the commission of an inherently dangeous misdemeanor is voluntary manslaughter.
What crimes can you never attempt?
Solicitation and conspiracy
What does respondeat superior mean?
You are criminally responsible for the acts of people in your control that you know about.
Explain accomplice liability
Before or during the fact: Guilty of the crime committed. Must help or encourage the the crime in some way.
Accomplice after the fact: Guilty of seperate crime, only if they knew that the crime has occured and they were protecting them.
When is a crime over?
When you have reached a temporary safe harbor, point of safety.
What does the word knowingly in a statute mean?
That the crime requires intent, and isn't strict liability.
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