Criminal Law Test 2

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Criminal Law Test 2

What is the defense of intoxication about?

It relates to a persons actions being attributable to a condition of the mind...irresistible impulse test

what is irresistible impulse test?

You couldn't help it, but you committed the act even though you knew it was wrong because you were in a different state of mind..Your mind was altered or affected by the intoxication.

The intoxication defense relates to mens rea or acts rea?

mens rea element of the crime. The intent.

When can intoxication be used ?

Intoxication may be used to negate intent

When can't intoxication be used ?

Think of DUI....CANT be used when intoxication is an element of the crime itself...You cant blame driving drunk on the fact that you were drunk.

define social control in terms of criminal law?

Criminal Law is the code which governs how people are supposed to act within one another.

Kansas law on intoxication. What does this statute say intoxication may be used to defend?General intent or Specific intent?

Specific Intent.

Kansas law on intoxication reads what?

An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a PARTICULAR intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind.... meaning intoxication can be used establish specific intent.

What is domestic authority?

relates to instances when people may discipline other people

What is traditionally domestic authority?

husbands to wives and parents to children

Who has traditionally domestic authority stretch to?

Teachers may exert domestic authority over their students (discipline), People in charge of trains, theaters, boats, and airplanes may exert domestic authority to ensure safety and order.

What is the key word associated with Domestic Authority?

REASONABLENESS

In regards of domestic authority The law is very clear on not allowing people to ?

The law is very clear on not allowing people to take that "one step too many"

What happens if the person takes "one step too many" or "one step too far" (in their disciplining of others) thus using unreasonable force?

The force will constitute assault, battery, or other crimes.

What is Consent?

Consent is essentially the permission to do something before it happens. It refers to the approval to engage in certain acts.

What is the most common crime we talk about consent?

Forcible rape/sexual battery

In terms of time, when does consent occur?

Before the commission of the act/crime. If the timeline read 1PM, 2PM, and 3PM, with the crime occurring at 2PM, consent would occur at 1PM, or sometime/anytime before 2PM. If there was no consent, there was not permission/authority to carry out the act carried out at 2PM.

What does it mean to condone something?

Condone means to pardon or forgive the act. The defense we talk about is called condonation, and in terms of the timeline, it occurs at 3PM. It is an "after the fact" occurrence.

What is the crime most commonly associated with Condonation?

Domestic violence. Spousal abuse

Often times the battered spouse will condone the attack to avoid

separation, divorce

Often times the battered spouse will condone the attack to avoid separation, divorce, etc which could mean a cut off of

monetary support

Often times the battered spouse will condone the attack to avoid separation, divorce, etc which could mean a cut off of monetary support which could lead to

more violence

because a crime of Domestic violence is an offense against the STATE, rather than against the victim, the state may and sometimes must, by statute

o forward with arrest and charges even though the victim condones the act.

What is the battered person syndrome?

. It is a defense used when a spouse, after enduring a series of violence in repeated cycles, lashes out violently on the abuser

What is the difference between battered person syndrome and self defense?

Imminent danger.

is imminent danger required for self defense?

Yes...When a person lawfully defends themselves, the danger proposed must be imminent danger

Is imminent danger required for self defense?

with the battered person syndrome, the element of imminent danger may not be present

What is the idea of battered person syndrome?

The idea is that the person has suffered so much abuse that they believe they are constantly in danger when they are in the area where the abuse normally occurs, which is the house.

What two ways can you commit an assault?

Unlawful ATTEMPT to inflict immediate harm or death. OR 2. THREAT to inflict immediate harm or death

Can you do either Unlawful ATTEMPT to inflict immediate harm or death. OR 2. THREAT to inflict immediate harm or death?

Notice the OR. Its not an AND. As in, you can do either of these in order to be charged with an assault.

What is another way we describe assault?

ATTEMPTED BATTERY... If you recall, I described attempt as the crime of failure. It is a failed battery. You wanted to commit the battery, you tried to commit the battery, but because you have terrible aim or the person is NEO from the movie "The Matrix" and moved out of the way of the battery, you failed to complete the battery, thus only completing an ASSAULT.

What is a very important component of ASSAULT that is listed in the definition?

IMMEDIATE. Attempt or threat to inflict IMMEDIATE harm.

IMMEDIATE harm means

As in, you must have the apparent ability to commit the harm and must be able to carry it out within a short period of time. I cant call someone on the phone in Japan and assault them. They are too far away, I don't have the ability to complete the harm immediately

which statue could warrant someone calling you miles away and threatening you?

harassment

At what point does an assault become a battery?

When it connects. The TOUCHING is the anchor of a battery

Does battery have to be a devastating blow to the other person?

NO..Think of Battery on a Law Enforcement Officer. All you have to do is put your hands on them, and not even necessarily grab or push, and you may be charged with a Battery on a Law Enforcement Officer.

If you go in to a massage parlor for a massage, and get one, did the parlor or employee commit a battery?

It depends. A battery is an unauthorized harmful or offensive touching. If the touching is within the realm of the authorized, by YOU, massage, then no battery is committed. If the masseuse does something unauthorized, then it is a battery.

If you go in for surgery on your ankle and the doctor notices you have a problem with your toe and decides out of the kindness of his heart he will operate on your toe, did he just commit a battery?

YES because it was unauthorized. He must get your consent before he operates outside of what was previously agreed upon.

What if the battery is to the point that it cuts off a limb or takes out an eye? What do we call that?

Mayhem. It is a very old school law that still exists in some jurisdictions, but its evidence of the law taking into consideration that there are some batteries which go beyond that of simple (misdemeanor) battery or aggravated (felony) battery.

What were the keywords in the definition of Mayhem?

Disable and Disfigure.

What was the rationale behind Mayhem?

leaving a person less able to fight.

What is the back in the day rationale behind Mayhem?

Back in the day there were no cell phones, law enforcement wasn't as high tech as it is today. There was no 911. You were by yourself, left to fend for yourself, for the most part, at all times. The law recognized how important it was to remain able to fight, to protect yourself. There was no disability coverage or ramps or seeing eye dogs back then. The law recognized this and imposed the law of Mayhem, probably to deter people from doing this much damage to one another. The law recognized how devastating that type of injury could be in those days.

Lets say I decide I want to lead a life of crime. So, I put on a clown costume and I wait, at night, in dark corners of the parking garage of Dadeland Mall. What I do is, I wait for you to get close to your car, and just as you're about to get in, I jump out and I yell "I am the Mall Monster!!!!" Frightened, you drop your bags from the Mall and run away. I take your stuff. What crime did I commit?

Robbery

Q. Lets say I decide I want to lead a life of crime. So, I put on a clown costume and I wait, at night, in dark corners of the parking garage of Dadeland Mall. What I do is, I wait for you to get close to your car, and just as you're about to get in, I jump out and I yell "I am the Mall Monster!!!!" Frightened, you drop your bags from the Mall and run away. I take your stuff. What crime did I commit?

A. Robbery. Did I hurt you? No. Did I swing at you? No. Did I point a gun at you? No. What did I do?

I put you in fear

How does one commit a robbery?

aking or attempting to take anything of value from the care, custody, or control of a person or persons by force or threat of foce or violence OR BY PUTTING THE VICTIM IN FEAR.

How does one commit a robbery?

A. Taking or attempting to take anything of value from the care, custody, or control of a person or persons by force or threat of foce or violence OR BY

PUTTING THE VICTIM IN FEAR.

What if you borrow your friends jacket, and as you're walking into your house, I pop out, with a gun, and say, Hey, that's a nice jacket, all the while pointing the gun at you. You give me the jacket. What crime did I commit?

Robbery

What if you borrow your friends jacket, and as you're walking into your house, I pop out, with a gun, and say, Hey, that's a nice jacket, all the while pointing the gun at you. You give me the jacket. What crime did I commit?

A. Robbery. Why

it wasn't your jacket

What if you borrow your friends jacket, and as you're walking into your house, I pop out, with a gun, and say, Hey, that's a nice jacket, all the while pointing the gun at you. You give me the jacket. What crime did I commit?

A. Robbery. Why, it wasn't your jacket. Does it have to be your jacket?

NO..All you have to be is in control of the thing of value.

If you find $5 on the street and I see it too and decide to pull out a knife and say, give me the $5 or else. What crime did I commit?

Robbery.

What did I call the crime of robbery last time?

The crime of ultimatum.

What is the ultimatum associated with a robbery?

Give me your property or else I will hurt you physically.

What if while you were sleeping, I held a gun to your head and said, give me your wallet. Then, I took your wallet. Did I commit a robbery?

NO. You were asleep. You were not in fear, nor did I use force. The ultimatum has to be real. The taking was not trespassory. In a robbery, the type of taking needed in order to effect the robbery is a trespassory taking

What is asportation?

It is the act of moving things OR people from one place to another.

What crimes do we find asportation in?

Larceny, Robbery, Kidnapping. In those crimes, either you move the property or you move a person.

What about False Imprisonement?

NO. In a false imprisonment, there is no asportation. In False imprisonment, you intentionally confine someone where they are and restrict their ability to move, but you do not remove them.

What is the common law definition of rape?

The unlawful carnal knowledge of a female without her consent.

Why those terms? Why carnal knowledge? First, why carnal?

Carnal means of and relating to the FLESH, thus implying rape could only be committed by the sexual organs.

Why those terms? Why carnal knowledge? First, why carnal?

A. Carnal means of and relating to the FLESH, thus implying rape could only be committed by the sexual organs.

Q. Why knowledge?

Not really sure. I know we get it from the bible. "Adam knew Eve, his wife, and she conceived and bare Cain." Thus meaning sexual intercourse.

Q. Why those terms? Why carnal knowledge? First, why carnal?

A. Carnal means of and relating to the FLESH, thus implying rape could only be committed by the sexual organs.

Q. Why knowledge?

A. Not really sure. I know we get it from the bible. "Adam knew Eve, his wife, and she conceived and bare Cain." Thus meaning sexual intercourse.

Q. Why of a female?

Old school social roles

Q. Why those terms? Why carnal knowledge? First, why carnal?

A. Carnal means of and relating to the FLESH, thus implying rape could only be committed by the sexual organs.

Q. Why knowledge?

A. Not really sure. I know we get it from the bible. "Adam knew Eve, his wife, and she conceived and bare Cain." Thus meaning sexual intercourse.

Q. Why of a female?

A. Old school social roles.

Q. Why without consent.

That is the focus of rape. Nonconsenting. Unauthorized. Unwanted. A man cant just have his way with a woman. They must agree on equal terms to the act. The agreement must be a mirror image on both sides.

Is groping or inappropriate touching considered rape under the common law?

No. Rape is carnal knowledge, sexual intercourse. There must be penetration.

How much penetration?

Not a lot. The minimum is considered rape.

How much penetration?

A. Not a lot. The minimum is considered rape.

Q. Does the act have to be concluded in any sense of the word?

No. Emission does not have to occur for the crime to be complete.

Emission

Discharge

What was the term we talked about having to do with unorthodox private and consenting sexual acts?

Sodomy. It is an American common law offense and included the ecclesiastical offenses and anal intercourse.

ecclesiastical

of or relating to the church

What were the ecclesiastical offenses?

Bestiality (sex with animals), Buggery (which back then meant sexual intercourse per anus and later included oral sex.)

Bestiality

sexual activity between a person and an animal

Buggery

any of various forms of sexual intercourse held to be unnatural or abnormal, especially anal intercourse or bestiality (also called sodomy)

Bestiality (sex with animals), Buggery (which back then meant sexual intercourse per anus and later included oral sex.)

Q. Why would these acts be considered criminal even if they were done consenting? What was the rationale back then?

hey were deemed unnatural, hence deemed inappropriate, socially unacceptable

Why is criminal law important?

Its all about social control. THAT'S what they didn't like back then, so that's what was criminal. The government telling you want is acceptable and what is unacceptable. As time goes on, there has been a slow realization that people should be allowed to do whatever they want behind closed doors as long it is what they want, ie as long as it is consenting.

What is a rape shield statute?

A statute limiting the admissibility of evidence pertaining to prior sexual experiences.

What is a rape shield statute?

A. A statute limiting the admissibility of evidence pertaining to prior sexual experiences.

Q. What type of history are we talking about?

Promiscuity.

What is promiscuity?

As per google: indulging in casual and indiscriminate sexual experiences. Therefore, the rape shield statute, if applicable in that jurisdiction, will not allow the defense to say that because she typically engages in casual sex, then there is evidence that this particular episode in question will most likely have been consensual.

What is promiscuity?

A. As per google: indulging in casual and indiscriminate sexual experiences. Therefore, the rape shield statute, if applicable in that jurisdiction, will not allow the defense to say that because she typically engages in casual sex, then there is evidence that this particular episode in question will most likely have been consensual.

Q. What does it declare that past history?

Irrelevant.

What type of liability is associated with statutory rape?

Strict Liability

What does strict liability ultimately say we don't care about? What element of crime?

The mens rea. Strict liability says the law doesn't care what you knew or what you are claiming to know or what the "victim" said just before the act occurred. You are held responsible if it happens. The law wants to make absolutely sure you go above and beyond to take precaution when engaging in sexual activity with young people.

what does Kidnapping vs False Imprisonment involve

They both involve the deprivation of freedom of another. If you take away a persons ability to move, chances are you are committing the crime of kidnapping or false imprisonment.

what distinguishescKidnapping vs False Imprisonment

Asportation

Kidnapping vs False Imprisonment whats the difference?

the moving from one place to another

false imprisonment is

If you trap someone where they are, where you find them, the crime is false imprisonment

what is kidnapping

The moving from one place to another.

What if you just make it unreasonable for them to move or leave? Like if you take someone out on a boat and refuse to take them back to shore?

False imprisonment

What if you just make it unreasonable for them to move or leave? Like if you take someone out on a boat and refuse to take them back to shore? False imprisonment. If you intentionally move the boat to move the person, then it

transforms into kidnapping.

What is a Hate Crime?

Crime motivated by the victims characteristic.

What is a Hate Crime?

A. Crime motivated by the victims characteristic.

Q. What characteristics are we talking about? Age?

NO

What is a Hate Crime?

A. Crime motivated by the victims characteristic.

Q. What characteristics are we talking about? Age? NO. Wealth?

NO.

What is a Hate Crime?

A. Crime motivated by the victims characteristic.

Q. What characteristics are we talking about? Age? NO. Wealth? NO. Height?

NO.

What is a Hate Crime?

A. Crime motivated by the victims characteristic.

Q. What characteristics are we talking about? Age? NO. Wealth? NO. Height? NO. Weight?

NO.

What is a Hate Crime?

A. Crime motivated by the victims characteristic.

Q. What characteristics are we talking about? Age? NO. Wealth? NO. Height? NO. Weight? NO. Where you live? NO. Political views?

NO.

What characteristics are we talking about? Age? NO. Wealth? NO. Height? NO. Weight? NO. Where you live? NO. Political views? NO.

Race, Religion, Disability, sexual orientation, or ethnicity. That is the master list.

What is the key word to stalking?

Repeatedly. Harassment in the form of following, watching, etc repeatedly over a period of time.

If you follow someone around and watch them, is it stalking?

. NO. At least not for the purposes of the law. It has to be repeated. There has to be more than one instance of following, harassing, etc.

what has to occur for stalking?

It has to be repeated

What is the difference between stalking and cyberstalking?

Using electronic means to carry out the repeated harassing.

Can you physically follow someone online?

Probably not. You can visit the same websites they visit.

Lets say my girlfriend breaks up with me and I decide it would be awesome to turn into a psycho ex boyfriend and stalk her on facebook, if everytime she commented on a picture or status, I then left a comment immediately after, could that constitute harrasment?

Yes

Lets say my girlfriend breaks up with me and I decide it would be awesome to turn into a psycho ex boyfriend and stalk her on facebook, if everytime she commented on a picture or status, I then left a comment immediately after, could that constitute harrasment? How easy is it to prove?

hat might be considered "following" or harassing, but it is tough to prove in court because this is a relatively new concept and there isn't a lot of case law, not to mention the judges are typically older and don't even know how Facebook works or how younger people view facebook.

Is homicide the same thing as murder?

NO. Murder is a type of homicide....

What is a topic included within the discussion of homicide

murder

what is the broad definition we use when we talk about homicide?

All cases in which a human being kills another human being by his or her own act, omission, or procurement.

procurement

obtaining

What do we mean by act?

Actus reus. Conduct.We engage in conduct which directly results in the death of another.

What do we mean by omission?

Failure to act where there existed a legal duty to act.

What do we mean by omission? In terms of criminal law

Essentially, you didn't act, and not acting caused the death of another

Can you be held liable for a failure to act?

Yes, Failure to act where there existed a legal duty to act. Essentially, you didn't act, and not acting caused the death of another. Think of preventing someone from ingesting poison, or walking into oncoming traffic. Typically, we have no duty to do these things, but if some relationship existed where legally you must do it, you will be liable for not acting.

What do we mean by procurement?

We hire someone to kill or you derail a train you know someone else is on. Shoot the tires out of a moving car. You aren't shooting the person, but you set in motion a chain of events in which something else kills the person.

If you kill a woman who was 8 months pregnant, how many murder charges will you incur?

TWO.

If you kill a woman who conceived a child the very night before, how many murder charges will you incur?

Probably one. Why? Too soon

conceived

Formed or imagined

The law tells you when a fetus becomes a person is based on?

jurisdiction

What requirement of homicide statutes are we talking about, which is the first of two conceptual issues we said homicide statutes have been 'struggling with' since the beginning of time?

Another Human Being.

Can you commit homicide on a zombie?

No. Because A zombie isn't a human being.

Can you commit homicide on a dog?

NO. A dog isn't a human being.

Can you commit homicide on a fetus?

Yes

Commit homicide on a fetus depends on what?

Depends on the age of the fetus and the jurisdiction you are in.

What was the other difficult conceptual issue homicide law struggles with?

DEATH.

What are we talking about when we say DEATH?

Causation

Why is DEATH and CAUSATION a difficult conceptual issue for homicide statutes?

Because of science. Because of hospitals finding new ways to keep people alive.

Where are the lowest murder rates always located?

Close to hospitals.

Why are the lowest death rates next to hospitals?

Because of the availability of transplants and all the machines available which prolong life.

how do we define murder?

The unlawful and unjustified killing of another human being with malice aforethought.

What element of the criminal statute are we talking about when we say MALICE AFORETHOUGHT. The actus reus? The causation? The concurrence element? The mens rea?

The mens rea.

How do we define MALICE AFORETHOUGHT?

predetermined and intentional without legal justification or excuse.

how serious is predetermined and intentional without legal justification or excuse?

It is the most serious mental state.

how serious is predetermined and intentional without legal justification or excuse? why?

It is the most evil because we are talking about contemplating and then causing the permanent death of another human being..We are talking about affecting the person's life forever by ending it, as well as affecting all the lives around that person permanently

Where do we find MALICE AFORETHOUGHT?

The brain.

Can we lift up grey matter and point to MALICE AFORETHOUGHT??

NO

What must we examine to see malice aforethought?

Examining those circumstances allows other people to determine the intent was beyond merely scratching the door, or placing a dent in the door.

So, how does the law say we can find MALICE AFORETHOUGHT?

Malice aforethought is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.

when is malice aforethought implied?

It is implied when no considerable provocation appears or when the circumstances attending the killing show an abandoned and malignant heart.

So, what does it mean when we say Malice aforethought can be express?

We actually find statements or video or recording or other direct evidence showing the deliberate intention.

What does it mean when we say Malice Aforethought can be implied?

Think of the sledgehammer hypothetical. We look to the surrounding circumstances.

Spinning off of the concept of implied malice aforethought, what are we saying we are making with the surrounding circumstances? Think of circumstantial evidence.

We are making inference. Just like the run, the sledgehammer, the apache war cry, a DEADLY WEAPON may be introduced as evidence from which an inference of intent to kill may be made.

What are deadly weapons?

Historically, guns, knives, swords. Items of war. These are deadly weapons.

If the thing isn't historically a deadly weapon, what do we look at to determine whether legally it is, or was, a deadly weapon?

How it was used.

Is a pocket knife a deadly weapon in florida?

Not under FL law.. If you carry a pocket knife with you and a cop finds it, can you be charged with concealed carry of a deadly weapon? Not under FL law

Who ultimately decide whether a pocket knife is a deadly weapon?

Not under FL law. Other states look to the length of the blade. FL states pocket knife, but ultimately lets a jury decide how DEADLY your knife is. The idea is we infer this thing might be a deadly weapon.

Can we charge and convict of murder even though there was no intent to kill?

Yes, and in several ways.

What is the most serious way we can charge and convict murder even though there was no intent to kill?

Intent to inflict great bodily harm or Intent to inflict serious bodily injury. These are still considered intentional murders.

What about extremely reckless behavior? What was term we used to describe engaging in extremely reckless behavior which you know death is a likely result? What is the complete polar opposite to "having a heart?"

Depraved Heart

hat were some situations which involve depraved heart?

Russian roulette. Throwing a tree trunk off the empire state building unto the sidewalk below. Firing an arrow into a crowd.

What was another way we find murder without necessarily an intent to kill that involves committing another crime?

FELONY MURDER.

What is the correct definition of Felony Murder?

An unintended death resulting from the commission of a felony.

Does the person who is committing the felony have to be the person who kills?

NO.

Does the person who is committing the felony have to be the person who kills? why?

NO. One of his partners can do it, a police officer can do it, someone can die in a car accident as a result of you fleeing from robbing a bank.

What type of murder were we talking about when we discussed that case where the police set up a crime scene to make a woman believe her husband had been murdered when the entire time she knew about it?

Murder for hire. The employing of another person to commit homicide is known as murder for hire.

Does it have to be for money?

No. That is why the definition uses the word "remuneration." It basically means payment in any form. You can do it for drugs or property or favors.

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