MBE Criminal Law & Criminal Procedure - Barbri

Under common law, the elements of conspiracy include

an agreement between two or more persons, an intent to enter into an agreement, and an intent to achieve the objective of the agreement.

In most states, a defendant may be convicted of the principal offense and _______.

A conspiracy to commit that offense. The doctrine of merger has been abandoned in many jurisdictions in cases involving a conspiracy, allowing an accused to be convicted of both conspiracy and the principal offense. However, an accused cannot be convicted of either attempt or solicitation and the principal offense.

A conspirator can be convicted of a crime committed by another conspirator if:

A conspirator can be convicted of a crime committed by another conspirator if the crimes were committed in furtherance of the objectives of the conspiracy AND the crimes were foreseeable.

A husband who believed that his wife was having an affair with his brother hired an arsonist to burn down the brother's house. They planned for the husband to take his brother to a ballgame so that the arsonist would be able to set the house on fire without detection. After the husband and brother left for the ballgame, however, the arsonist decided to abandon the plan and immediately left town without doing anything further. When the husband returned from the ballgame with the brother, he saw the house still standing and blurted out what was supposed to have happened. The husband and the arsonist were arrested and charged with conspiracy to commit arson. At the arsonist's trial, his attorney argued that he was innocent of the conspiracy because he decided not to go ahead with the plan, and nothing criminal had in fact occurred.

At common law, how should a jury find the arsonist?

The arsonist should be found guilty. A conspiracy is a combination or agreement between two or more persons to accomplish some criminal or unlawful purpose, or to accomplish a lawful act by unlawful means. The mens rea required for conspiracy is specific intent, in that both parties must intend to agree to accomplish some criminal or unlawful purpose. Thus, once the arsonist was hired by the husband and they came up with a plan to burn down the brother's house, the crime of conspiracy was completed.

The fact that the defendant committed a particular act is sufficient for the jury to infer that he acted with:

general intent

Federal criminal law is governed entirely by _______

statute-- no federal common law crimes

MERGER

if a person engaged in conduct constituting both a felony and a misdemeanor, she could be convicted only of the felony. The misdemeanor was regarded as merged into the felony. Same for solicitation (if accepted) and attempt if successfully completed. But not conspiracy-- can be convicted of both conspiracy and completed crime

What constitutes possession?

Criminal statutes that penalize the possession of contraband generally require only that the

defendant have control of the item for a long enough period to have an opportunity to terminate

the possession. Possession need not be exclusive to one person, and possession also may

be "constructive," meaning that actual physical control need not be proved when the contraband

is located in an area within the defendant's "dominion and control."

Absent a state of mind requirement in the statute, the defendant must be aware of his

possession of the contraband, but he need not be aware of its illegality or true nature.

However, many statutes and the M.P.C. add a "knowingly" state of mind element to

possession crimes

If the definition of a crime requires not only the doing of an act, but the doing of it with a

specific intent or objective, the crime is a __________________ crime.

specific intent

List of specific intent crimes

solicitation

conspiracy

first degree premeditated murder

attempt

larceny

embezzlement

false pretenses

robbery

burglary

forgery

"Students can fake a laugh even for ridiculous bar facts"

malice crimes

common law murder and arson

malice defined

defendant recklessly disregarded

an obvious or high risk that the particular harmful result would occur

general intent defined

defendant must be aware that she is acting in the proscribed way

and that any attendant circumstances required by the crime are present

strict liability defined

does not require awareness of all of the factors constituting

the crime. defenses that would negate state of mind,

such as mistake of fact, are not available. he mere fact

that a statute is silent on the question of mental state does not necessarily mean that the offense is a strict liability offense

Purpose

A person acts purposely with respect to his conduct when it is his conscious object

to engage in certain conduct or cause a certain result, e.g., burglary.

Knowledge

A person acts knowingly with respect to the nature of his conduct when he is aware that his conduct is of that nature or that certain circumstances exist.

recklessly

A person acts recklessly when he consciously disregards a substantial and unjustifiable

risk that circumstances exist or that a prohibited result will follow, and this

disregard constitutes a gross deviation from the standard of care that a reasonable

person would exercise in the situation.

negligence

A person acts negligently when he fails to be aware of a substantial and unjustifiable

risk that circumstances exist or a result will follow, and such failure constitutes

a substantial deviation from the standard of care that a reasonable person would

exercise under the circumstances.

transferred intent does not apply to ____________

attempt

principal

one who, with the requisite mental state, actually engages in the act or

omission that causes the criminal result

accomplice

one who (i) with the intent to assist the principal and the intent that

the principal commit the crime (ii) actually aids, counsels, or encourages the principal before or during the commission of the crime

Accessory After the Fact

one who receives, relieves, comforts, or assists another,

knowing that he has committed a felony, in order to help the felon escape arrest, trial, or conviction; crime committed by the principal must be a felony and it must be completed at the time the aid is rendered

mental estate required for accomplices

accomplice must have (i) the intent to assist the principal in the commission of a crime; and (ii) the intent that the principal

commit the substantive offense.

An accomplice is responsible for the crimes he did or counseled and for any other crimes committed in the course of committing the crime contemplated, as long as the other crimes were probable or foreseeable. UNLESS effective withdrawal

effective withdrawal for accomplice liability

must voluntarily withdraw before chain of events leading to the crime is unstoppable by (i) repudiating if encouraged (ii) neutralizing any assistance provided

The inchoate offenses are ________________________________, ________________________________, and ________________________________.

solicitation, attempt, and conspiracy.

solicitation elements

- Solicitation consists of inciting, counseling, advising, inducing, urging, or commanding another to commit a crime with the specific intent that the person solicited commit the crime

- offense is complete at the time the solicitation is made

- not necessary that the person solicited agree to commit the crime

or do anything in response

- If the person solicited committed the crime, the solicitor would

be liable for the crime as a party; if the person solicited proceeded far enough to be liable for attempt, the solicitor would be a party to that attempt

Is factual impossibility a defense to solicitation?

No

Is withdrawal or renunciation a defense to solicitation?

Once the solicitation has been made, it is generally no defense that the solicitor changed her mind or countermanded her advice or urging.

Is exemption from intended crime a defense to solicitation?

If the solicitor could not be guilty of the intended crime because of a legislative intent to

exempt her, she would have a defense. For example, a minor female could not be found

guilty of solicitation of statutory rape by urging an adult male to have intercourse with

her, because she could not be guilty of the completed crime.

Elements of conspiracy

The elements of conspiracy at common law are as follows:

(i) An agreement between two or more persons;

(ii) An intent to enter into an agreement; and

(iii) An intent to achieve the objective of the agreement.

*Most states now require an overt act in furtherance of the conspiracy, but mere preparation will usually suffice.

Common Law Bilateral Approach to Conspiracy

At common law, a conspiracy requires at least two "guilty minds," i.e.,

persons who are actually committed to the illicit plan. Under this "bilateral" approach, if one person in a two-party agreement is only feigning agreement, the other party cannot be convicted of conspiracy.

Wharton rule for conspiracy

Where two or more people are necessary for the commission of the

substantive offense (e.g., adultery, dueling, sale of contraband), the

"Wharton rule" (named after its author) states that there is no crime

of conspiracy unless more parties participate in the agreement than

are necessary for the crime.

Conspiracy is a specific intent crime. There are two different intents that are necessary:

intent to agree and intent to achieve the objective of the conspiracy

When is a conspirator liable for crimes committed by other conspirators?

Even if the conspirator did not have the sufficient

mental state for accomplice liability, a separate doctrine provides that each conspirator may

be liable for the crimes of all other conspirators if two requirements are met:

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

(ii) The crimes were "a natural and probable consequence" of the conspiracy, i.e., foreseeable.

UNLESS effective withdrawal

Factual impossibility is/is not a defense to conspiracy

is not

Effective withdrawal from conspiracy

To withdraw, he must perform an affirmative act that notifies all

members of the conspiracy, and such notice must be given in time for them to have

the opportunity to abandon their plans.

8 search and seizure rules

1. D has a right to be free from unreasonable search in all areas where has REOP. D has a REOP in his home, place of biz, car, and personal effects. No REOP in someone else's home/car, open field, garbage, any area held open to public

2. If D has no REOP, cannot complain about the search no matter how unreasonable it was. If D has REOP, then can complain

3. A search is reasonable and therefore constitutional if police had search warrant based on probable cause or falls in one of the exceptions to the probable cause requirement.

4. SIX EXCEPTIONS to search warrant: search incident to a lawful arrest, consent, automobile exception (but still need probable cause), plain view (police has legal right to be there & observes contraband), lesser intrusion not a full-scale search (stop and frisk- no probable cause but reasonable suspicion), true emergency

5. When the police make an valid arrest of a driver of the car, can search the area within the immediate control of the driver (everywhere but the trunk). But once driver is in squad car, then need reason to believe item connected to arrest is in the car.

6. Can't search trunk as part of incident to arrest exception

7. If conducting a legitimate search for item X, can seize all items they encounter whether they were searching for them or not

8. If search is unreasonable, it's unconstitutional under the fourth amendment & evidence should be suppressed UNLESS

- police in GF believed the warrant was valid

- evidence is used at a proceeding other than one on the merits

- evidence used to impeach the witness who testified

Miranda-violating confessions [may/may not] be used in prosecution case in chief, but [may/may not] be used to impeach the defendant.

may not; may as prior inconsistent

same rule for violation of right to counsel

Involuntary confessions [may/may not] be used in prosecution case in chief, and [may/may not] be used to impeach the defendant.

may not; may not

State must prove each element of the crime caused _____________________________

If defense is one of the elements of the crime have not been established, D must raise only reasonable doubt. For all other defenses, state MAY require defense to prove by ______________________

beyond a reasonable doubt

preponderance of the evidence

When does double jeopardy attach?

At the first proceeding

In a jury trial- when the jury is sworn

In a bench trial- when the first W on the issue of GUILT is sworn

Exception to allow another trial after jeop has attached

- 1st trial ended in a hung jury

- D convicted; appeals; request for new trial

- Mistrial for manifest necessity (not a result of prosecutorial misconduct)

Two crimes are not the same offense for purposes of double jeopardy if

each one requires proof of a fact that the other does not

An offense is serious, and thus D has a right to a jury trial if

max sentence is over 6 months

If state uses jury of 6...

must be a unanimous decision

MR murder

malice aforethought

(1. intent to kill 2. intent to cause bodily injury 3. depraved heart 4. felony murder)

MR manslaughter

usually recklessness; sometimes heat of passion

MR Battery

recklessness (FOR CRIM)

MR assault

specific intent

MR larceny

specific intent

MR robbery

specific intent

MR burglary

specific

MR arson

malice

MR rape

recklessness

(eg. voluntary intoxication is not a defense & only a reasonable mistake is a defense)

MR conspiracy

specific intent

MR solicitation

specific intent

MR attempt

specific intent

3 most important defenses

1. self defense

2. mistake of fact

3. voluntary intoxication

crim pro important areas

- search and seizure

- confessions