Criminal Law (Barbri Conviser)

Felonies

punishable by death or imprisonment for more than 1 year

Misdemeanors

Any crime that is not punishable by death or imprisonment for more than 1 year

States has Jurisdiction for a crime if

(1) any act constituting an element of the offense was committed in the state,

(2) an act outside the state caused a result in the state,

(3) the crime involved the neglect of a duty imposed by the law of the state,

(4) there was an attempt or conspiracy outside the state plus an act inside the state OR

(5) there was an attempt or conspiracy inside the state to commit an offense outside the state

Sources of Crim law

statutory--no federal common law

Theories of punishment

incapacitation of the criminal, special deterrence of the criminal, general deterrence of others, retribution, rehab, and education of the public

Due process requires that a criminal statute not be vague. There must be (2)

1-fair warning (a person of ordinary intelligence must be able to discern what is prohibited) and 2-no arbitrary and discriminatory enforcement

Criminal statutes are construed in favor of...

defendants

Merger (common law)

if a person engaged in conduct constituting both a felony and a misdemeanor, she could be convicted ONLY of the felony. The misdemeanor merged into the felony

Merger (modern)

No longer any merger EXCEPT that 1 who solicits another to commit a crime may not be convicted of both the solicitation and the completed crime. Also, a person who completes a crime after attempting it may not be convicted of both the attempt & the completed crime

Note: conspiracy does not merge w/completed offense

A court can impose multiple punishments at a single trial where...

the punishments are for 2 or more statutorily defined offenses specifically intended by the legislature to carry separate punishments, even though the offenses arise from the same transaction & constitute the same crime.

Elements of a crime

Physical act (acts reuse) & a mental state (mens era), & concurrence of the act and mental state. May also require proof of result and causation

Physical act

An act is a bodily movement.

Defendant must have either performed a VOLUNTARY physical act or failed to act under circumstances imposing a legal duty to act.

Failure to Act gives rise to liability only if (3)

1-there is a specific duty to act imposed by the law

2-the defendant has knowledge of the facts giving rise to the duty to act; AND

3-it is reasonably possible to perform the duty

A legal duty to act can arise from a...

statute, K, relationship between the defendant and the victim, voluntary assumption of care by the defendant for the victim OR the creation of peril for the victim by the defendant.

Possession as an Act

Defendant has control of the item for a long enough period to have an opportunity to terminate the possession.

Possession need not be exclusive to 1 person.

Can be "constructive" meaning actual physical control need not be proved when the contraband is located in an area within the defendant's "dominion and control"

If no state of mind requirement, defendant must be...

aware of his possession of the contraband BUT need not be aware of its illegality.

If state of mind requirement, defendant must

know the identity or nature of the item

Specific Intent

Cannot be conclusively imputed from the mere doing of the act, but the manner in which the crime was committed may provide circumstantial evidence of Intent

Specific Intent Crimes

Soliciation: intent to have the person solicited commit the crime

Attempt: intent to complete the crime

Conspiracy: intent to have the crime completed

1st Degree premeditated murder: premeditation

Assault: intent to commit a battery

Larceny & robbery: intent to permanently deprive the other of his interest in property taken

Burglary: intent to commit a felony in the dwelling

forgery: intent to defraud

false pretenses: intent to defraud

Embezzlement: intent to defraud

Malice Crimes

Ex: common law murder & arson

Require only a reckless disregard of an obvious or high risk that the particular harmful result will occur.

Defenses to specific intent crimes don't apply here (voluntary intoxication)

General Intent

DF is aware of all factors constituted the crime, that they are acting in the proscribed way

Inference of Intent from act

jury may infer the required general intent merely from the doing of the act

Transferred intent

Defendant intends the harm that is actually caused, but to a different victim or object.

Applies to homicide, battery and arson--NOT to attempt

Strict Liability

Does not require awareness of all the factors constitute the crime

Ex: selling liquor to minors, statutory rape

Certain defenses, such as mistake of fact, are not available

Model Penal Code Analysis of Fault

2 major categories: purposefully knowingly or recklessly AND negligence

Purposely

A person acts purposely when his conscious object is to engage in certain conduct or cause a certain result

Knowingly

A person acts knowingly when he is aware that his conduct is of a particular nature or knows that his conduct will necessarily or very likely cause a particular result.

Satisfies a statute requiring willful conduct

Recklessly

A person acts recklessly when he knows of a substantial unjustifiable risk and consciously disregards it.

Mere realization of the risk is not enough

Objective (unjustifiable risk) and subjective (awareness)

Negligence

A person acts negligently when he fails to be aware of a substantial and unjustifiable risk, where such failure is a substantial deviation from the standard of care.

OBJECTIVE

Vicarious liability

one in which a person w/out personal fault may nevertheless be held liable for the criminal conduct of another (usually an employee)

Enterprise liability

Corporations may be held liable for an act performed by (1) an agent of the corp acting w/in scope of his office or employment OR (2) a corporate agent high enough in hierarchy to presume his acts reflect corporate policy

Concurrence of mental fault w/physical act

D must have had the intent necessary for the crime at the time he committed the act, constituting the crime, and the intent must have actuated the act

Accomplice Liability

Parties--common law

Parties to a crime included the principal in the 1st degree, principal in the second degree, accessory before the fact, accessory after the fact

Principal in the first degree

person who actually engaged in the act or omission that constitutes the offense or who caused an innocent agent to do so

Principal in the second degree

Person who aided, commanded, or encouraged the principal and was present at the crime

Accessory before the fact

person who assisted or encouraged but was not present

Accessory after the fact

person who with knowledge that the other committed a felony, assisted him to escape arrest or punishment

Conviction of the principal--common law

Was required for conviction of an accessory and the charge must have indicated the correct theory of liability.

Modern Statutes

abolished distinctions between principals 1st/2nd & accessory before. Accessory after fact still treated separately

Accomplice liability--mental state

Person gave aid, counsel or encouragement to the principal with the intent to encourage the crime.

In Jdx w/out statute: mere knowledge that a crime will result is not enough, at least where the aid given is in the form of the sale of ordinary goods at ordinary prices.

Procuring an illegal item or selling at higher price because of buyer's purpose may constitute sufficient state in the venture to constitute intent

Scope of Liability

Accomplice is responsible for...

the crimes he did or counseled AND for any other crimes committed in the course of committing the crime contemplated at the same extent as the principal, as long as the other crimes were probable or foreseeable.

Inability to be principal

one who may not be convicted of being a principal MAY be convicted of being an accomplice.

Members of a protected class

If class is protected by a statute, then excluded from liability

Necessary parties not provided for

A party necessary to the commission of a crime, by statutory definition who is not provided for in the statute is excluded from accomplice liability

Withdrawal

A person who effectively withdraws from a crime before it is committed cannot be held guilty as an accomplice.

Must occur BEFORE the crime becomes unstoppable.

Repudiation is sufficient withdrawal for mere encouragement

Attempt to neutralize assistance is required if participation went beyond mere encouragement; notifying police or taking action to prevent crime is also sufficient

Solicitation Elements

-Inciting, counseling, advising, urging or commanding another to commit a crime

-with the intent that the person solicited commit the crime

-not necessary that the person solicited respond affirmatively

Solicitation Defenses

-MPC recognizes renunicaiton as a defense if the defendant prevents the commission of the crime, such as by persuading the person solicited not to commit the crime.

-Is a defense that the solicitor could not be found guilty of the completed crime because of a legislative intent to exempt her.

No defense: person not convicted, offense attempted was not successful, nor solicitor renunciation or withdrawal

Solicitation-Merger

If a person solicited commits the crime solicited, both that person and the solicitor can be held liable for that crime.

If person solicited commits acts sufficient to be liable for attempt, both parties are liable for attempt.

If person solicited agrees to commit the crime, but does not even commit acts sufficient for attempt, both parties can be held liable for conspiracy

Solicitor cannot be punished for BOTH the solicitation and these other offenses

Conspiracy--Definition & Elements

An agreement between 2 or more parties to commit a crime

-an agreement between 2 or more parties

-an intent to enter into the agreement AND

-intent by at least 2 persons to achieve the objective of the agreement

Majority of states require an overt act, but an act of mere prep will suffice

Agreement

parties must agree to accomplish the same objective by mutual action

Common law conspiracy

must involve a meeting of minds between at least 2 independent persons

-Hus/wife can't conspire together

-no conspiracy between a corp & 1 agent acting on its behalf

Wharton Rule

Where 2 or more people are necessary for the commission of the substantive offense, there is not crime of conspiracy unless more parties participate in the agreement than are necessary for the crime

-ex adultery, dueling

-does not apply to agreements with necessary parties not provided for by the substantive offense

Agreement with person in protected class

In members of a conspiracy agree to commit a crime designed to protect persons within a given class, persons with that class cannot be guilty of the crime itself or of conspiracy to commit that crime

Effect of Acquittal of some conspirators

Traditional: acquittal of all persons with whom a defendant is alleged to have conspired precludes conviction of the remaining defendant.

Some jdx: a conviction for conspiracy against 1 defendant is allowed to stand when the alleged co-conspirator is acquitted in a separate trial

MPC Unilateral Approach

Defendant can be convicted of conspiracy regardless of whether the other parties have all been acquitted or were only feigning agreement

Conspiracy--Mental State

Specific intent crime

Parties must have: (i) the intent to agree and (ii) the intent to achieve the objective of the conspiracy

Conspiracy--Over Act

Most states require that an act in furtherance of the conspiracy be performed. AN act of mere preparation is usually sufficient

Liability for Co-conspirators' crimes

A conspirator may be held liable for crimes committed by other conspirators if the crimes

(i) were committed in furtherance of the objectives of the conspiracy and

(ii) were foreseeable

Termination of Conspiracy

Terminates upon completion of the wrongful objective

Unless agreed to in advance, acts of concealment are NOT part of the conspiracy

Conspiracy Defenses

NO--factual impossibility

NOT USUALLY: withdrawal--it may be a defense to crimes committed in furtherance of the conspiracy

Conspiracy--Withdrawal

To withdraw, a conspirator must perform an affirmative act that notifies all members of the conspiracy of her withdrawal. Notice must be given in time for members to abandon their plans. If she has provided help as an accomplice, must try to neutralize assistance

Conspiracy--Merger

DOES NOT MERGE

conspiracy & completed crime are distinct offenses

SubConspiracies--Chain relationship

single large conspiracy in which all parties to sub agreements are interested in the single large scheme--all members are liable for the acts of the others in furtherance of the conspiracy

Subconspiracies--hub and spoke relationship

a number of independent conspiracies are linked by a common member. Although the common member will be liable for all of the conspiracies, members of the individual conspiracies are not liable for the acts of the other conspirators.

Attempt--elements

-act

-done with intent to commit a crime

-that falls short of completing the crime

Attempt--mental state

Specific intent

-D must intend to perform an act and obtain a result that, if achieved, would constitute a crime

Attempt--overt act

D must commit an act beyond mere preparation for the offense

Proximity test: requires that the act be dangerously close to successful completion of the crime

Today: require an act or omission constitute a substantial step in a course of conduct planned to culminate in the commission of the crime that strongly corroborates the actor's criminal purpose

Attempt--Defense

Legal impossibility--Defense

Factual impossibility--NOT a defense

Abandonment--NOT a defense--CL

Fully voluntary and complete abandonment is a defense under MPC

Attempt-Merger

MERGES

Defendant cannot be found guilty of both attempt and complete crime

Insanity--M'Naghten Rule

Defendant is entiteld to acquittal only if he had a mental disease or defect that cause him to either:

(i) not know that his act would be wrong or

(ii) not understand the nature and quality of his actions

-loss of control because of mental illness is NOT defense

Irresistible Impulse Test

Defendant is entitled to acquittal only if, because of a mental illness, he was unable to control his actions or conform his conduct to the law

Durham/NH test

Defendant is entitled to acquittal if the crime was the product of his mental illness

-broader than M'Nagten or irresistible test

ALI or MPC Test

A defendant is entitled to acquittal if he had a mental disease or defect, AND, as a result, he lacked the substantial capacity to either:

(i) appreciate the criminality of his conduct or

(ii) conform his conduct to the requirements of the law