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guaranteed to have an essay o Multistate Crimes (MBE) Tests Common Law of crimes 33 questions (out of 200) 20/33 are about crimes 13/33 are about criminal procedure Jurisdiction: o Territorial o Crime can be prosecuted wherever the crime took place (situs) o State can prosecute a crime if any act that was the crime took place in that state, OR if the result took place in that state o More than one state can prosecute a crime Essential Elements of Criminal Responsibility: o Physical Act: Voluntary bodily movement No act, no crime Voluntary means that you brain tells your muscles to move (willed muscular contraction) Involuntariness: • When the act is not a product of your own volition • When the actor is unconscious (sleep walking) • Epileptic seizure or reflex Omissions: • Limited circumstances • Omission to act can be basis for responsibility • 3 requirements: o Legal Duty to Act Ordinarily no duty 5 situations where there is a duty to act: • When there is a statute (i.e. duty to report abuse, duty to pay taxes, etc.) • Special relationship (parent-child, spouse-spouse, etc.) • Contract (lifeguard, babysitter, doctor, etc.)
Voluntary assumption of care (starting to help someone) • Creation of peril o Knowledge of the facts giving rise to the duty o Ability to help (law does not require you to put your own life at risk if you can’t help) o Mental State: New York • Organized along Model Penal Code (versus Common Law) • 5 categories: o Intentionally Aka purposely Defendant meant to do something (conscious object) o Knowingly Aka wilfully Defendant was aware of what he was doing o Recklessly Knows about a substantial and unjustifiable risk and consciously disregards that risk Knowing of the risk, but not caring o Negligently Defendant should have known about a substantial and unjustifiable risk Aka being stupid o Strict Liability Statutory Rape Drug crimes as to the quantity of the narcotics Common law: • 4 general categories: o Specific Intent: When the crime requires not just doing the act, but doing the act with a specific objective or specific intent Intent includes not just the intent to do the act, but the intent to cause a particular result Specific Intent crimes: • Assault • 1st degree premeditated murder
e. the defendant will not be guilty 2 defenses to specific intent crimes: • Voluntary intoxication • Unreasonable mistake of fact o General Intent: Defendant need only be generally aware of the factors constituting the crime Defendant has to know what they are doing.) o Small penalty • Statutory rape o Large penalty Mistake of fact is no defense . etc. and the circumstances.• Larceny • Embezzlement • False Pretenses • Robbery • Forgery • Burglary • Solicitation • Conspiracy • Attempt If the defendant lacks the specific intent. selling liquor to a minor. but the defendant does not have to intend any specific result Can infer from the mere doing of the act General intent crimes: • Battery • Rape • Kidnapping • False imprisonment o Malice: To act intentionally or with reckless disregard of an obvious or known risk Malice Crimes: • Common law murder • Arson o Strict Liability: Defendant’s state of mind is irrelevant Two types: • Public welfare offenses o Regulatory or morality offenses (i.
intervening event. would the victim have died? o An accelerating cause is an actual cause • Proximate: o Is the bad result the natural and probable consequence of the defendant’s conduct? o If the incidence is caused by an unforeseeable. Crimes: o Crimes Against the Person: New York: • Murder o Divide into intentional and non-intentional killings o Intentional Killing: Generally. there will not be proximate causation o But. continuing trespass: wrongful taking followed up by intent to deprive. no distinction for premeditation 1st degree murder is murder with “special circumstances” • Usually how and who • 4 major ones: . no continuing trespass. 2nd degree murder Unlike common law. If initial taking was not wrongful. a homicide could not be prosecuted unless the death occurred a year and a day after the homicidal act • NY has abandoned this rule o Concurrence: Must have required mental state when you engage in the unlawful act But.- o Causation: Applies to all result crimes 2 types: • Actual: o Cause-in-fact o But for the defendant’s conduct. guns going off accidentally is foreseeable o Victims getting infected at the hospital are foreseeable o Eggshell rule in effect Year and a day rule • At common law.
e. intent to cause grievous bodily harm) . “nonaffirmative” defenses must be disproved BRD by the prosecution) o Unintentional Killings 4 kinds: • Depraved indifference (extreme recklessness) o 2nd degree murder o Utter disregard for human life: Expose multiple people to the risk of death To kill in a particularly brutal way (i. accidental death after torture) • First degree manslaughter o Intent to cause serious physical injury (i.o Police officer in the line of duty o Part of witness intimidation o Murder for hire o Killing during a serious felony (but not felonymurder) Making it less serious • Extreme emotional disturbance (2nd degree to 1st degree manslaughter) o Intentional killing committed under the influence of a reasonable extreme emotional disturbance (i.e. provocation) o This is an affirmative defense in New York (defense has the burden on a preponderance of evidence standard) (all other defenses.e.
first degree First offense. regular vehicular homicide o Felony-Murder Rule 2nd degree murder 2 key differences from the common law: • NY limits felony-murder to 6 specific crimes: o Burglary o Robbery o Arson o Kidnapping o Forcible Rape o Escape from Confinement • Non-Slayer defense o Ordinarily all the co-felons are responsible for the actions of their co-felons.Second degree manslaughter o Basic Recklessness • Criminal Negligent homicide o Should have been aware of substantial and unjustifiable risk o Aggravated Murders Killing a cop Can be “aggravated manslaughter” or “aggravated homicide” and you get extra jail time o Vehicular Homicide Drunk driving statutes If defendant has prior DUI. but NY allows for a limited defense to someone who didn’t do the killing o Defendant must prove 4 things to get this affirmative defense: Did not participate in the homicidal act Defendant did not have a deadly weapon Defendant had no reason to believe that his co-felons • .
try to memorize at least one degree (usually 2nd degree) o 2nd degree assault: intentionally causing serious physical injury 1st: add a weapon 3rd: reduce harm to physical injury o Unlike common law. you must have an injury (no offensive touching) o Attempted assault requires the specific intent to assault Mere threatening without intent to do anything = “menacing” False Imprisonment o Unlawful confinement of a person without their consent o Kidnapping Abducting someone 2 degrees: • Basic = 2nd .• • had a deadly weapon Defendant had no reason to believe that his co-felons would do anything likely to result in death Assault (covers both battery and assault): o Intentionally injuring another person o Different degrees: 3 factors that determine degrees: • Weapon? • Injury? o Two forms: Physical injury (something that really hurts) Serious physical injury (permanent or life threatening) • Quantity? o Money or drugs o For each crime.
• • 1st = one of three of: ransom. restraint with intent to injure or the victim dies Sex Offenses o 3 elements: Sex Without the victim’s consent (consent is a defense here) Accomplished by force or threat of force or when the victim is unconscious o Note that there is no marital immunity. there will be intent to kill and murder CL definition of murder does not . and someone dies. and this crime is gender neutral now o Statutory Rape Having sex with a person under the age of consent Age is irrelevant Strict liability Consent is not a defense Age of consent is 17 Common Law: • Homicide: o 3 different types: Murder • Causing the death of another person with malice aforethought o Mental state = malice o Malice: Intent to kill Intent to inflict great bodily injury Extreme recklessness (depraved indifference) Felony-Murder o Notes about intentional murders: If you see a weapon.
felony must be . and the person will be guilty of murder. shooting into a crowd.e. but 2nd degree is malice (general intent) Transferred intent applies to all crimes. the intent will be transferred. If a person intends to kill one victim. o Notes about extreme recklessness: I. but 1st degree is planned and deliberate (specific intent). o Notes about felonymurder: Any death caused during the commission of or the attempt to commit a felony is felony-murder If the maximum punishment for a crime is more than a year is prison. speeding on a narrow road. it’s a felony Provides for vicarious liability (kind of like an agency theory) 6 limitations on this rule: defendant must in fact be guilty of the underlying felony. etc.have degrees. but accidentally kills someone else.
security guard shoots someone at the scene. “inherently dangerous.” felony must be separate from the killing itself (independent felonious purpose rule – i. battery cannot be the basis of murder).e. NOTE: the felon need not necessarily be the cause of the murder (i. death must be foreseeable. and the dead person cannot be one of the felons. killing must be during the felony or during immediate flight from the felony.e. but not one of the felons) Voluntary manslaughter: • Intentional killing committed after “adequate provocation” • Provocation here is a partial defense o 4 elements (subjective + objective): Provocation would arouse a sudden and intense passion in the mind of an ordinary person (usually adultery or assault on defendant) Defendant must actually be provoked Defendant must not have time to cool off .
000 = 1st .Defendant must not have actually cooled off Involuntary manslaughter • Killing committed with criminal negligence or a killing committed during a crime (felony-murder is an exception) • Sometimes referred to as misdemeanor manslaughter • Battery (different from Torts): o Common Law: unlawful application of force to another resulting in either bodily injury or an offensive touching o General intent required only • Assault (different from Torts): o Attempt to commit a battery o Intentional creation. of a reasonable apprehension in the mind of the victim of imminent bodily harm o Specific intent crime • False Imprisonment o Unlawful confinement of a person without their consent o Kidnapping A false imprisonment that involves moving the victim or concealing the victim in a secret place o Property Crimes New York: • Larceny (not a felony) o Anything that would be theft at common law is larceny in New York o Favorite form in New York is passing a bad check o Degrees of larceny will depend on value of goods stolen o 5 degrees: $0 = Petit larceny $1.000 = 3rd $50.000 = 2nd $1.000. other than by mere words.000 = 4th $3.
think felony-murder and 1st degree murder (if intentional). then 1st degree murder) o Forcibly stealing property o 3 degrees: 3rd = basic crime 2nd = add one of the following: • Defendant is aided by another actually present • If the victim is injured • If property stolen is a car 1st = victim is also seriously injured or the defendant uses a firearm. think murder Common Law • Theft (Larceny. • Burglary: o 3rd = entering or remaining unlawfully in a building with the intent to commit a crime inside Do not need to break Doesn’t need to be at night Doesn’t need to be a dwelling Can be any crime (not just a felony) Remaining addresses the concurrence problem o 2nd = someone gets injured. False Pretenses) o Larceny • . Robbery (any degree will be sufficient for felonymurder. Embezzlement. or if it is a dwelling (strict liability) o 1st = defendant must know they are burglarizing a dwelling and someone gets injured or the defendant is carrying a weapon o If someone dies. and for 1st or 2nd. or a weapon is used. then it goes to 2nd degree. However. or 2nd degree (if unintentional) • Arson o 4th = reckless burning of a structure o 3rd = intentional burning of a structure o 2nd = intentional burning when the defendant knew or should have known that someone was inside o 1st = 2nd degree plus an explosive or incendiary device o If someone dies. if the defendant can prove that the gun was unloaded or inoperable.
snatching a chain is robbery Must have a threat of immediate injury (not future injury) . no intent to defraud.• Trespassory taking and carrying away of the personal property of another with the intent to permanently deprive the owner of the property • Trespassory: technical term. So. Violent Theft (Robbery and Extortion) o Robbery: Larceny from another’s person or presence by force or threat of immediate injury Also a crime against the person Picking a pocket is larceny. means without permission • Carrying away: must move away • Personal property: lawful possession • Intent to permanently deprive: if you intend to give it back. not a future event Thing to focus on here is title. o False Pretenses: Obtaining title to the personal property of another by an intentional false statement with the intent to defraud False statement must be of a past or present event. if you intend to deprive. of if you make a mistake. then you only have larceny by trick. Title passes (not just possession). If all you get is possession. it’s not larceny. it’s not larceny A taking under a claim of right will not be larceny o Embezzlement Fraudulent conversion of the personal property of another by a person already in lawful possession of that property Lawful possession = control and discretion (usually excludes low level employees) Mental state (specific intent) = intent to defraud.
not a store or barn) Specific intent: intent to commit a felony at the time of the entry (i. o Possession of Stolen Property You have to know that you possess it. robbery. and know that it’s stolen o Forgery Making a false writing or altering an existing writing with the intent to defraud o Uttering Crime of offering a forged instrument with the intent to defraud Crimes Against Habitation (Burglary and Arson) o Burglary: Important Breaking and entering the dwelling of another at night with the intent to commit a felony inside • Breaking: creating or enlarging an opening by at least minimal force (includes opening a door.• • o Extortion Future injury o Blackmail Threat of embarrassment Other Theft Crimes o Receipt of Stolen Property Mental state is knowledge. but not climbing through an open window) • Entry: Some part of your body or a tool must cross the plane of the structure • Dwelling: somewhere someone lives (other than your own house) (i. You have to know that the property is stolen. assault. must be the purpose rape.e.e. etc.) Not burglary to take something under a claim of right o Arson: The malicious burning of the dwelling of another • Burning = material wasting of the structure .
or call the police) • New York: o Make a substantial effort to stop the crime from happening Accomplice witness rule: • In New York. stop them. then you have to make an affirmative effort to prevent the crime from happening (i.- Dwelling = extends to any structure • Of another = can’t burn your own house Must have malice (acts intentionally or with reckless disregard) Vicarious Liability & Inchoate Crimes: o Vicarious Liability: Someone who doesn’t commit the act can still be liable Accomplice liability Accomplice = someone who aids or encourages another person (the principal) who commits a crime with the intent to encourage the crime People who are not accomplices: • Mere presence • Mere knowledge (person selling an ordinary good at an ordinary price) • Victim/Members of a protected class You are guilty as if you committed the crime itself Accomplice’s liability does not depend on the principal’s liability Unprosecuted principal is a favorite of the bar examiners Withdrawal: • Common Law: o If all you did was encourage. even when it doesn’t happen Solicitation: • Asking someone to commit a crime with the intent that they do it • Specific intent crime • Solicitation is a separate crime (it is the asking) • .e. a defendant cannot be convicted of a crime based upon the uncorroborated testimony of an accomplice o Inchoate (Incomplete): When you can be guilty of a crime. then all you need to do is renounce o If you help.
• Impossibility: o Factual . You must specifically intend to commit the crime. intend to achieve the object of the conspiracy) • Separate offense • Agreement: o Can have an implied agreement o Common Law Actual meeting of two guilty minds You can’t agree with someone who is just pretending or with someone who is an undercover police officer If all the co-conspirators are acquitted of the crime. plus an overt act in furtherance of the crime • Overt act is a minimal requirement • Specific intent (intend to agree. then the last conspirator can’t be convicted Can be vicariously liable for other crimes committed in the furtherance of the conspiracy if the crimes were foreseeable o New York Follows the unilateral approach – can be guilty even if the other person is just pretending Can be prosecuted of conspiracy even if co-conspirators acquitted No vicarious liability for co-conspirators Attempt • Model Penal Code o Act: substantial step towards the commission of the crime • New York o Act: conduct that gets dangerously close to the commission of the crime (“dangerous proximity”) o Mental: specific intent to commit the crime Note: can’t attempt a reckless or negligent crime. Conspiracy: • Agreement between 2 or more people to commit a crime.
o Legal This is a defense When what the defendant thought he was doing was not even illegal Withdrawal: • Common Law: o No withdrawal o But. and not multiple crimes • Common Law: o Inchoate offenses: Solicitation and attempt merge together. and with the completed crime Conspiracy does not merge • New York: o Lesser included offenses: Lesser included offense will merge with the greater offense If every element of the lesser offense is also an element of the greater offense o Inchoate offenses: Attempt merges. if you do withdraw. but solicitation and conspiracy do not When it is impossible to commit the crime because of some circumstances beyond the defendant’s control Not a defense - Defenses: o Capacity: Insanity: • Must suffer from a mental defect or disease . no vicarious liability • New York: o Allows withdrawal (renunciation) o Must: Voluntarily and completely renounces • Must be motivated by a guilty conscience • Can’t be motivated by a fear of failure or a fear of detection Prevents the crime from happening o Affirmative defense Merger: • When certain crimes will merge together so the defendant will only be liable for one crime.
o New York Rule: Can be a defense to crimes of intent or knowledge if the intoxication negates the required intent or knowledge • . Intoxication: • Involuntary Intoxication: o It is a defense to all crimes (treated like insanity) o Intoxicated against your will or without your knowledge o Addiction and peer pressure are excluded • Voluntary Intoxication: o Can be a defense to specific intent crimes if the intoxication prevents the defendant from forming the specific intent o No defense to general intent crimes o Doesn’t work for arson. the defendant did not know the act was wrong or did not understand the nature and quality of his actions • Irresistible Impulse Test: o If defendant is unable to conform his conduct to law. M’Naughten Rule: o Defendant not responsible if as a result of a mental disease or defect. etc. as a result of a mental disease/defect • Durham Test/Product Test: o Criminal act is the product of a mental disease or defect o Not the law anywhere o Usually a wrong answer • Model Penal Code: o Defendant lacked the substantial capacity to either appreciate the criminality of his conduct or conform his conduct to the requirements of law • New York: o Defendant must lack the substantial capacity to know or appreciate either the nature and consequences of his conduct or that his conduct was wrong (no irresistible impulse prong) o Insanity is an affirmative defense • Note: Insanity is different than incompetence. but does work for larceny. burglary. Incompetence is a criminal procedure issue.
“true man” rule).e. anything o Justification: Self-defense: • Usually homicide • 3 things to focus on: o Degree of force used by the defendant (i.e. no criminal responsibility o If the defendant is under the age of 14. there is a rebuttable presumption against criminal prosecution • New York: o 13 year olds can be prosecuted for 2nd degree murder (18 for 1st degree) o 14 and 15 year olds for serious crimes against persons or property o 16 year olds. deadly or non-deadly) Non-deadly if reasonably necessary to protect against an immediate use of unlawful force Deadly force: • Imminent threat must be a threat of death or serious injury • Defendant must be without fault (i. you must attempt a retreat if safe or if your own home and are not the initial aggressor (New York) o Immediacy of the threat o Defendant’s status as an aggressor • Mistake of threat . can’t start the fight) o Will have to withdraw first and communicate that withdrawal to the other side • Defendant not required to retreat (common law. Cannot be a defense to crimes of negligence or recklessness Infancy: • Too young • Common Law Rule: o If the defendant is under the age of 7. although if you are going to use deadly force.
o Depends on whether the belief of the threat was reasonable • Deadly force to prevent a crime: o Common law: Non-deadly force can be used to prevent a felony Deadly force can only be used to prevent a felony dangerous to human life o New York: Deadly force can be used to prevent a kidnapping. rape.e. selling a gun to a known felon) • Usually ignorance of the law is no excuse Mistake of Fact: • Can sometimes be a defense • Lacked mental capacity • Common Law: o Whether mistake was reasonable or not o A reasonable mistake will be a defense to any crime except a crime of strict liability o An unreasonable mistake will be a defense only to a specific intent crime • New York: o It is a defense if it negates the required mental state . burglary or robbery (even the least serious of those) Burden of proof: regular defense Duress: • Defendant forced to commit a crime under a threat of imminent death or serious bodily injury • New York: o Affirmative defense o Duress can be used as a defense to homicide (not at common law) Entrapment: • Defense to unfair temptation • Only works if the criminal design originated with the police. and if the defendant was not predisposed to commit the crime Mistake of Law: • Not a defense unless the statute explicitly makes knowledge of the law an element of the offense (i.
or recklessness o Unreasonable mistake will not be a defense to negligence . or knowledge.o Mistakes reasonable and unreasonable will be a defense to crimes of intent.