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Text is Criminal Law - Joel Samaha Ch 5 and 6; Includes Defenses; inchoate crime

affirmative defense

A defense which must be "raised"; a reason given of why a person should not be help respnsible.

rebut-table preseumption

An assumption that is taken to be true, such as innocence, freewill, sanity.

conclusive presumption

An assumption that cannot be argued against, such as age of the defendant.

Preponderance of the evidence

a standard that is less than "beyond a reasonable doubt; more than 50% of the evidence shows a justification or excuse.


a person admits that they are responsible for a crime, but gives a reason why they committed the act; the law approves.


a person admits that they committed a crime, but not responsible; the law does not approve.

perfect defense

removes all criminal liability; found "not guilty"

imperfect defense

reduces responsibility; defendant found guilty of a lesser crime. i.e. not murder but manslaughter

defense of sanity

found "guilty, but mentally ill" and will be treated for mental illness while serving time in prison

defense of duress

excuse of being forced to commit a crime against their will, a legal claim by a defendant that he or she acted involuntarily under the threat of immediate and serious harm by another

defense of public duty

law enforcement/ public officials can use reasonable force (against persons or property) under a court order; ie search and seizure

defense of domestic authority

persons responsible for dependents; ie. nurses, teachers, parents, etc


(law) an inference of the truth of a fact from other facts proved or admitted or judicially noticed

Reasonable force

Just enough force to stop an attack.

Defense of Property

The right to use reasonable force to defend lawful property; must be a specific intent to protect property.

Defense of Necessity/ Choice of Evils

Choosing a crime to avoid harm; imminent danger/ no other option; the defense is "not responsible"; does not include economic necessity.

Defense of Consent

a justification defense that says if mentally competent adults want to be crime victims, no paternalistic government should get in their way

Objective Reasonable force

a reasonable person would believe the force is "reasonable"

Subjective Reasonable force

the defendant's state of mind when applying reasonable force

Guilty but Mentally Ill

a verdict stating that defendants are guilty of committing a crime but are also suffering from a mental illness that should be treated during their imprisonment

Defense of Diminished Capacity

The D is unable to form the required (specific intent) mens rea due to mental disorder. Intoxication may also preclude the mens rea.

Defense of Entrapment

A person may not be convicted of a crime if a law enforcement officer (or an agent of an officer) solicited, induced or encouraged the person to commit the crime and if the person would not otherwise have committed it.

Defense of Age

Age 7 is the age of reason, 7-14 rebut-table incapacity, and 14+ have the same capacity as adults.

Defense of intoxication

When it comes to intoxication defenses in criminal law, even "voluntary intoxication" (the knowing and voluntary consumption of alcohol or drugs is a defense to a "specific intent" crime, whereas only "involuntary intoxication" (My drink was spiked!) is a defense to a general intent crime.

Defense of Syndrome

This defense states that a "cluster of symptoms" that have been medically recognized and documented (that the defendants suffers from) reduces capacity and eliminates mens rea; cannot be inferred

The Subjective Test of Entrapment

-majority of state and all federal courts have adopted this
-focuses on the predisposition of defendants to commit crimes
-the defense has to prove the gov't pressured the defendants to commit crimes they would not have committed without the pressure
-crucial question: "where did the criminal intent originate?" If it originated with the defendant then the gov't did not entrap them, if it originated with the gov't then the gov't did entrap them
-the government can prove disposition to commit the crimes in the following ways:
1. defendants' prior convictions for similar offenses
2. defendants' willingness to commit similar offenses
3. defendants' display of criminal expertise in carrying out the offense
4. defendants' readiness to commit the crime
-consensual crimes, especially drug offenses, are the usual target of law enforcement inducement tactics

The Objective Test of Entrapment

-minority of courts follow this
-this test does not focus on the predisposition of defendants but instead on the actions that gov't agents take to induce individuals to commit crimes
-if the intent originates with the gov't and their actions would tempt an "ordinarily law-abiding" person to commit the crime, the court should dismiss the case even if the defendant was predisposed to commit the crime
-it if aimed to deter "unsavory police methods"

The 4 tests of criminal insanity

1) right-and-wrong test (M'Naughten Rule) 2) Irresistible Impulse Test 3) Substantial Capacity Test (MPC Test) and 4) the Product Test (Durham Rule)

M'Naughten Rule (Right-and-wrong test)

standard for judging legal insanity that requires that offenders not know what they were doing, or if they did, that they not know it was wrong.

Durham Rule (aka product test)

an accused is not criminally responsible if his unlawful act was the product of mental disease or defect

Irresistible Impulse test

compulsion; these defendants don't know the act is wrong OR couldn't control their action due to a mental disease/defect

The Substantial Capacity Test

The Substantial Capacity Tests or Model Penal Code Test holds that a defendant is entitled to the defense of insanity if at the time of such conduct, as a result of a mental disease or defect, he lacks substantial capacity to appreciate the wrongfulness of his conduct or the capacity to conform his conduct to the requirements of the law.

principle in the first degree

parties who actually take part in a criminal act; those who possess the mens rea but convince another to perfom the actual physical conduct. i.e ciercment, threat, and trickery, or that involve trained aniamls.

principle in the second degree

One who helped the perpetrator at the time of the crime in his presence.

Accessory Before the Fact

someone who encourages, orders, or helps plan a crime

Accessory After the Fact

a person who gives assistance or comfort to someone known to be a felon or known to be sought in connection with the commission of a felony


a person who knowingly helps another in a crime or wrongdoing, often as a subordinate.

vicarious liability

legal doctrine under which a party can be held liable for the wrongful actions of another party


guilt as an accomplice in a crime or offense

alter ego doctrine

Used by the courts to "pierce the corporate veil" hold a shareholde personally liable for a corporate obligation

respondeat superior

"Let the master answer" an employer is vicariously liable for the behavior of an employee working within his or her scope of employment

superior officer rule

The highest office, or management, is help criminally liable

accessory after the fact punishment

Of all parties to a crime, this party is considered the least responsible for a crime.

inchoate crime

An act, criminal in and of itself, committed with the specific intent to accomplish a second criminal purpose

The rationale behind inchoate crimes

2 notions: to give the ability to intervene before the crime is actually committed, and to stop dangerous people.

3 major inchoate crimes

attempt, conspiracy, solicitation


the INTENT that another person commit a crime and the ACT of requesting that other person to commit the crime


the INTENT to commit a crime/ bring about forbidden consequences; and the ACT of going beyond mere preparation


Agreement between two or more persons to commit a crime

Wharton Rule

for conspiracy, there must me one party more involved than necessary to commit the crime.

unilateral rule

only one person must meet the requirements for conspiracy to be convicted of conspiracy; not all accomplices must be shown.

voluntary abandonment (renunciation)

Affirmative defense; Was going to commit the crime, had all intentions to do so, got here and got everything together, then backed out

transferred intent

Situation in which the offender intends to injure one person and by mistake or accidental injures another


The Defense of Duress does not extend to homicide.

dangerous act rationale

looking at how closely a defendant came to completing a crime; aims to prevent dangerous conduct

dangerous person rationale

Looking at how fully a defendant developed a criminal purpose to commit a crime; aims to neutralize a dangerous person

last proximate act rule

your acts brought you as close as possible to completing the crime, and how close you were determines your sentences; all but the last act.

proximity test

focuses on dangerous conduct; looks at what conduct remains to complete the act

dangerous proximity test

A test that determines that an attempt has occurred when the perpetrates conduct is in dangerous proximity to success, or when an act is so near to the result that the danger of its success is very great

indispensible element test

asks whether defendants have gotten control of everything they need to complete the crime
ex: does drug dealer have extascy to sell to a waiting customer

equivocality test

A test that determines that an attempt has occurred when a person's conduct, standing alone, unambiguously manifests his or her criminal intent; a reasonable person would recognize the intent; face value

probable distance test

focuses on how the defendant has gone in preparation, not what is left to do; asks if the defendant is "past the point of now return"

legal impossibility defense

This is when the act being attempted is actually not a crime. Even if everything is actually the way the actor believes it to be, her conduct is not criminal.
This is a defense under both MPC and common law.

factual impossibility defense

This is when the actor cannot successfully complete the crime because he is wrong about some circumstance that makes the crime impossible. If everything was as the actor believes it to be, her conduct is criminal.
This is not a defense under both MPC and common law.

Florida's Castle Law accomplished what 5 things?

1) abolished the duty to retreat, 2)shifted the burden of proof to the prosecution, 3) extended the use of force outside the home, to "any place you have a right to be", 4) broadened the circumstances where deadly force applies, including threats to property that are not imminent, and 5) created blanket criminal and civil immunity to anyone using force; this immunity s broader than law enforcement immunity.

substantial steps

1) Significant activity undertaken in furtherance of some goal. 2) An act or omission that is a significant part of a series of acts or omissions, constituting a course of conduct planned to culminate in the commission of a crime. 3) An important or essential step toward the commission of a crime that is considered sufficient to constitute the crime of criminal attempt - Conduct that is strongly corroborative of the actor's criminal purpose. "Behavior of such a nature that a reasonable observer, viewing it in context, could conclude beyond a reasonable doubt that it was undertaken in accordance with a design to violate the statute."

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