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Criminal Law - Cali Bar Exam
Based on Professor Hull's lecture for Feb 2012 bar exam.
Terms in this set (86)
Murder, common law
A homicide (physical act) committed with malice (mental state).
"Killing is caused by defendant if..."
Four scenarios in which killing is "caused by defendant":
1) D acted alone to cause death
2) D's omission caused death and D had a duty to act by statute, relationship, or voluntary undertaking.
3) Act of a 3rd party contributed to cause death.
Vicarious liability if D:
- solicits the crime
- conspires with one who commits crime
- acts as an accomplice
- under felony murder rule
Was 3rd party act foreseeable?
4) Death was foreseeable result of D's act or omission.
Need one of four to have malice:
1) Intent to kill (words, evidence, or deadly weapon doctrine)
2) Intent to inflict great bodily harm/serious bodily injury
3) Depraved heart: reckless indifference to a known risk of death or serious bodily injury.
4) Felony Murder Rule: Homicide committed during the perpetration of an inherently dangerous crime.
Felony Murder Rule:
Homicide committed during the perpetration of an inherently dangerous felony.
Inherently dangerous felonies, BARRK
Burglary, Arson, Rape, Robbery, Kidnapping
A homicide committed without malice under one of the 3 following circumstances:
- Intent to inflict slight bodily injury (non-aggravated, no weapon battery or assault that leads to death)
- criminal negligence
- "misdemeanor manslaughter rule"
D's conduct is gross deviation from standard of care an RP would observe. More than ordinary negligence, which leads only to tort liability but falling short of depraved heart.
D kills while committing a non-inherently dangerous felony, insufficient for FMR, or malum in se, inherently wrongful, crimes.
Applies to murder, involuntary manslaughter, and all other homicide crimes. If homicide crime is justified criminal liability will not attach.
D may use deadly force to protect against an imminent deadly attack. Deadly force must be
to repel attacker.
Self-Defense, Justification - Majority Rule
Majority - D need not retreat before using deadly force, unless D is the initial aggressor and safe retreat is available.
Self-Defense, Justification - Minority Rule
Minority - D must retreat before using deadly force if safe retreat is available, unless D is in his/her home, a police officer, or is a victim of a violent felony.
Self-Defense, Justification - If D is aggressor
If D is initial aggressor, D cannot assert self-defense as justification unless one of 3 exceptions exists:
1) D is initial aggressor BUT withdraws by clearly communicating to victim that they intend to stop fighting.
2) D initially used non-deadly force and is now faced with attacker suddenly using deadly force
3) If safe retreat is available, the initial aggressor must retreat before using deadly force.
Defense of Others, Justification
D can use deadly force if
to defend another.
Defense of Others, Justification - D mistaken about "victim"
If D used deadly force to defend a criminal or initial aggressor who had no right to use self-defense?
Majority -- D may claim defense of others if the victim reasonably appears to have the right to use deadly force, even if "other" does not actually have that right.
Minority -- D can use no more force than the person they are defending. D "steps into shoes of person defended."
Crime Prevention, Justification
A police officer or private person may use deadly force before a crime has been committed if reasonably necessary to prevent the commission of a dangerous felony.
Apprehension/Arrest of Criminal, Justification
A police officer or private person may use deadly force if reasonably necessary after a crime has been committed to prevent apprehend/arrest a dangerous felon.
NOTE: Private citizen can only use deadly force if the person apprehended with deadly force is actually guilty of the dangerous felony. No reasonable mistake.
Reasonable mistake, Justification
D may use deadly force based on a reasonable mistake as to self-defense, defense of others (majority only), and crime prevention.
Only a police officer can use deadly force to apprehend or arrest based on reasonable mistake.
Defense of Habitation/Property, Justification
As a general rule, a D cannot use deadly force to protect home or other property.
Exception: Deadly force can be used to protect occupants of home from violent intruder or if intruder intends to commit a felony inside.
If a homicide (or another crime) is excused, the D is not criminally liable for the crime. Categories:
- Youth and infancy
- M'Naghten or Right/Wrong test
- Irresistible Impulse Test
- ALI/MPC Test
- Durham Test
M'Naghten or Right/Wrong Test, Insanity, Excuse
M'Naghten or Right/Wrong test:
Defendant, as a result of mental defect,
did not know the wrongfulness of his act or
could not understand the nature and quality of his acts. (cognitive)
Irresistible Impulse Test, Insanity, Excuse
D, as a result of mental defect, was unable to control his conduct or conform his conduct to the law. (volitional)
ALI/MPC Test, Insanity, Excuse
D lacked the substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law (volitional + cognitive)
D is not guilty if the crime was the product of a mental disease or defect.
If D is intoxicated at the time of the crime, the intoxication may excuse criminal liability. Intoxication can be voluntary or involuntary.
Voluntary Intoxication, Excuse
Exists when D voluntarily and knowingly consumes an intoxicating substance. Voluntary intoxication is NO DEFENSE to crimes requiring no intent (strict liability), or general intent crimes or malice.
Voluntary intoxication CAN NEGATE specific intent crimes but only if the D is so intoxicated that he cannot form specific intent required for the crime.
Involuntary Intoxication, Excuse
Exists when D involuntarily (forced to consume) or unknowingly consumes (didn't know substance was intoxicating) an intoxicating substance.
Involuntary intoxication is a defense to all crimes if intoxication renders the defendant "insane" under the applicable test.
Minority - recognizes a diminished defense where evidence of D's mental defect while insufficient for insanity, is admissible to prove that D did not have or could not have formed the intent required for the crime.
A partial defense. An intentional killing that would otherwise be murder will be mitigated to voluntary manslaughter under both of the following situations:
- Good faith mistake
An intentional killing will be mitigated to voluntary manslaughter if the D experiences an adequate provocation. The provocative act must be one that would cause
subjective and objective passion and no "cooling off."
Subjective Passion: The specific D must have been
losing self-control and did not "cool off" before killing the victim.
Objective Passion: The provocation must be one that would have caused an RP to lose self control and a RP would not have cooled off in the time lapse between provocation and killing.
Good Faith Mistake, Mitigation
A D who intentionally kills victim under good faith, but unreasonable mistaken belief as to self-defense, defense of others, or crime prevention can successfully argue their homicide crime should be mitigated to voluntary manslaughter.
First Degree Murder, Degrees of Murder
There are two common types of first degree murder (two ways to establish First Degree murder):
1. Premeditated and Deliberate Intent to Kill
- Premeditated: D had time (even brief) to think about killing the victim before doing so.
- Deliberate: D acted in a calm and cool frame of mind.
2. Felony Murder Rule: A murder that satisfies the FMR AND is based on one of the specified felonies in the state's first degree murder statute (BAARK).
Attempt, Preliminary Crimes
D is guilty of attempt if D commits an act of perpetration with the intent to commit the intended (target) crime.
- Defenses: Merger and Impossibility
Act of perpetration: D must do more than merely prepare. D must take a substantial step towards commission or come dangerously close to completion of crime.
With the intent to commit the crime: D must have specific intent to commit target crime.
Merger, Attempt, Preliminary Crimes
Attempt merges into the target crime so a D who actually commits the target crime cannot be convicted and punished for both attempt and the intended crime.
Impossibility, Attempt, Preliminary Crimes
Legal and Factual. If D does not succeed in committing the target crime, it may be because the target was either legally or factually impossible.
Legal impossibility is a good defense. Exists when acts D intends to commit are not a crime in the jurisdiction.
Factual impossibility is NOT a good defense. Exists when the acts D intended to commit would be a crime, if the facts were as D believed them to be. (attempt still attaches)
Solicitation, Preliminary Crimes
D is guilty of solicitation if D asks or requests another to commit a crime with the intent that the person asked commits the crime.
Vicarious liability - if person asked commits the crime the solicitor will also be liable for it.
Conspiracy, Preliminary Crimes
D is guilty of conspiracy if D enters into an agreement with another party for an unlawful objective and some overt act is performed in furtherance of that unlawful objective.
Majority Rule, Conspiracy, Preliminary Crimes
Majority requires all conspirators to actively agree to commit an unlawful objective. An agreement with an undercover police officer only feigns agreement and is not a conspiracy. You need two guilty minds.
Minority Rule "MPC", Conspiracy, Preliminary Crimes
Minority follows the unilateral conspiracy rule and provides that "one guilty mind" is enough if that guilty mind believed the other party was actually agreeing to commit an unlawful purpose.
Wharton's Rule, Conspiracy, Preliminary Crimes
If the target crime requires two parties (dueling) then there is no conspiracy unless there are three or more parties. (Always need one more party than is required for crime to have conspiracy)
Vicarious Liability, Conspiracy, Preliminary Crimes
All conspirators are liable for any crime committed by any other conspirator so long as the crime was both: 1) reasonably foreseeable, and 2) in reasonable furtherance of the conspiracy (criminal act committed in effort to complete target crime).
Defenses to Conspiracy, Preliminary Crimes
Withdrawal and Impossibility
1) Withdrawal: a) D must communicate to all other co-conspirators that D is no longer a participant in the conspiracy and b) D must communicate intent to withdraw before the target crime occurs.
Defenses to Conspiracy Impossibility
Impossibility: Legal and Factual. Same as attempt.
- No merger for conspiracy and committed crime
Defenses to Conspiracy - Effect of withdrawal
Effect: In majority jurisdictions D will still be liable for conspiracy, but not for target crime. In minority jurisdictions (MPC) if the withdrawing party goes to the police in time to permit police to stop the target crime, the conspirator will not be held liable for conspiracy or the target crime.
Accomplice Liability, Parties to a Crime
Majority rule, a party to a crime may be a principal, accomplice, or an accessory after the fact.
Principal, Accomplice Liability
One who, with the intent to commit the crime, causes the crime to occur.
Accomplice, Accomplice Liability
One who, with the intent the crime be committed aids, counsels, or encourages the principal. Silent approval NOT sufficient
Accessory after the fact, Accomplice Liability
One who, with the intent to help a felon escape or avoid arrest or trial, receives, relieves, or assists a known felon after the felony has been completed.
Liability, Principal and Accomplices
All accomplices and the principle are liable for the crimes the principal committed as long as the crimes were foreseeable.
Accessory after the fact, Accomplice Liability
Majority Rule, an accessory after the fact is not liable for the crimes committed by the principal, but instead for a separate crime of "obstructing justice" which usually carries a lesser punishment (up to 5 year sentence)
Exception, Some jurisdictions excuse spouses and close family members from liability.
Larceny, Theft Crimes
Tres-pass-ory taking and carrying away of the personal property of another with the intent to permanently deprive.
- tres-pass-ory: without consent of the victim
- taking and carrying away: slight movement enough
- crime against possession not ownership
- intent to permanently deprive: specific intent to keep property must exist at taking
Larceny by trick, Theft Crimes
Same as larceny, but with "apparent consent" of the victim. Consent is negated because it is acquired through the D's misrepresentation, "trick".
Embezzlement, Theft Crimes
The fraudulent conversion of the property of another by one who is already in rightful possession.
Fraudulent conversion: D treats property in manner inconsistent with victim's grant of possession.
By one in rightful possession: Victim must have first voluntarily given the D rightful possession of the property that D fraudulently converted.
False Pretenses, Theft Crimes
The acquisition of TITLE to D's property by a false representation with the intent to defraud.
Robbery, Theft Crimes
Is an aggravated larceny. Same elements as larceny but committed from the victim's person or presence (immediate vicinity) by force or threat of force or immediate bodily harm.
Extortion, Theft Crimes
Same as robbery but the threats are of future bodily harm, or immediate or later non-bodily harm.
Arson, Structure Crimes
The burning of a protected structure of another with malice.
- Burning: must be some charring of some part of the structure.
-Protected structure: All structures (residential, industrial, commercial)
- Of another: Must be in rightful possession of another when burned.
- Malice: D is guilty of arson if committed with 1) intent to burn structure, 2) knowledge of the extremely high risk of the structure burning.
Burglary, Structure Crimes
The trespassory breaking and entering of the protected structure of another at nighttime with the intent to commit a felony therein. (Specific intent crime)
- Breaking: D's entry must involve some movement of door or window, or constructive breaking through fraud.
- Entering - part of D's body or object with which to steal like stick
- Of another: must be in rightful possession of another when burned.
- With intent to commit a felony therein: The intent to commit a felony must exist at the time of entry. A later formed intent to steal does not qualify.
Assault, Attempted Battery, Other Person Crimes
Attempted Battery: D attempts (but is unsuccessful) to cause imminent harmful contact with the victim. There is no apprehension, as D did not know it was coming. Specific intent crime.
Assault Type Two
Intentional creation of a reasonable apprehension of contact: D attempt to cause victim to reasonably apprehend imminent harmful contact. General Intent crime.
Battery, Other Person Crimes
The unlawful application of force to another person causing bodily injury or offensive contact.
Kidnapping, Other Person Crimes
The confinement of another person involving either movement or concealment of the victim. (no ransom required.
Reasonable Mistake of Fact
If D makes a reasonable mistake of fact or is ignorant of a fact that negates the required mental state for that crime, D is NOT guilty of that crime.
Unreasonable Mistake of Fact
D is mistaken or ignorant of a fact, but mistake is unreasonable under circumstances, then mistake is defense only if the crime is a specific intent crime.
Unreasonable Mistake of Fact more rules
Note, factual impossibility applies only to Attempt and Conspiracy crimes. Mistake of fact applies to all other crimes, except strict liability, no mental state
Mistake of law
D's criminal liability, except an intentional homicide, is excused if the crime is committed under the threat of imminent death or great bodily harm.
A D will have no liability for a crime if it is committed because D was entrapped by government officials.
General Intent, Mental States
Very few crimes are general intent crimes. Battery, rape, assault
Key defense: Reasonable mistake of fact.
Specific criminal intent, Mental States
Assault when based on attempted battery, all of the theft crimes, burglary, all preliminary crimes, first degree murder based on intent to kill or felony murder where underlying felony requires specific intent, and all statutory crimes with words like knowingly or with intent to as part of their elements.
Rare on exam. Must be crime with no mental state required. ONLY DEFENSE: D performed no voluntary act. All crimes require voluntary act.
Vicarious Liability, Felony Murder
Vicarious liability: At common law, all felons are liable for death caused by co felon.
Unlawful carnal knowledge of a woman by a man, not her husband, without her effective consent.
6th Amendment - Right to Confront Witnesses - Multiple Defendants
Introduction of a co-defendant's confession is prohibited at joint trial unless confessing defendant testifies. If one D's statement implicates another D it must be excluded unless all portions of D's statement implicating second D may be excised.
Majority, Vicarious Liability, Felony Murder
Majority - no felony murder if non-felon kills a felon.
Minority, Vicarious Liability, Felony Murder
Minority - excuses felons from felony murder liability if a non-felon kills another non-felon while resisting felony.
Defenses to Specific Intent Crimes
Good faith mistake is enough! Unreasonable or reasonable mistake of fact is enough! Even voluntary intoxication if person is extremely intoxicated.
Felony murder term definitions
- During the perpetration.
- Majority: Inherently dangerous felony.
- Minority: includes non-dangerous felonies committed in dangerous manner.
Felony murder term definitions
- Felony must be independent from act that caused death.
- Defense to underlying felony is defense to FM charge.
Felony murder more term definitions
- Vicarious liability: At common law, all felons are liable for death caused by co felon.
- Majority - no felony murder if non-felon kills a felon.
Felony murder term definitions
- Minority - excuses felons form felony murder liability if a non-felon kills another non-felon while resisting felony.
Felony Murder term definitions
- Proximate cause: the felony must be the proximate cause of the homicide i.e., the homicide must be a foreseeable result of the felony
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