Crim Law Test Outline: Part 2


Sexual Offenses
  	Mens Rea
		1) D's S/M not Victims (V's) S/M
			1. Can look @ totality of the circs 4 intent & force
			2. Maj. in US--neg/reckless stand.
		2) Defense of Mistake
			1. Maj. in US--rsbl mistake 4 defense by cases
			2. Maj. in UK--rsbl mistake 4 defense by statute
			3. Min. in NE states--strict liability on consent 
			so no defense of mistake
  	Actus Reus
		1) "Old" / C/L
			1. Unlawful carnal knowledge of a woman w/o 
			consent by force, fear, / fraud
			2. Existence of force/nonconsent meased by Vs 
			resistance of "utmost"
			3. Force used must B more than the act of rape itself
			4. Unrsbl mistake about consent defense allowed (subj.)
			5. Burden of proof on govt/V
			6. Prob's b/c analyze consent & force/fear 
			elements by looking @ same behavs
		2) "Middle"/ Maj. Position
			1. Person upon person
			2. Force/fear is still a separate element from consent
			3. V must resist 2 express nonconsent by rsbl 
			means / V doesn't resist b/c of fear
			4. V's fear must B obj'ly rsbl
			5. Rsbl mistake about consent defense allowed 
			(obj.); consent must B proved
			6. Burden of proof shifted 2 D
			7. S/M must B neg./reckless stand.
		3) "New" Position
			1. Statutes collapsed force & consent into 1 element
			2. Only need force nec. 4 penetration
			3. D must assume nonconsent w/o affirmative 
			(aff.) permission; 
			V doesn't need 2 show nonconsent by resistance
			4. Burden of proof shifted 2 D
			5. Rsbl mistake about permission defense (not 
			consent) allowed (obj.)
		4) Strict Liability / Min. (3 states:  Mass., Maine, Penn.)
			1. Consent is not an element 2 prove
			2. No defense of mistake / mistake about consent allowed

Homicide
  	Intentional Killing
		1) C/L Def. of Murder
			1. Man of sound men/age--any person
			2. Unlawfully kills--lawful may B war, execution, 
			police, self defense, choice btwn lives
			3. Any rsbl creature in being--no fetus
			4. Under Kings peace--jxn'al issue; implied modernly
			5. W/malice aforethought express/implied--mens 
			rea of intent 2 kill; sets apart from manslaughter
			6. W/in yr. & day
		2) Modern Gradations of Intentional Killings
			(1) First degree Murder
				1. Delib., premeditated, wilful
				2. Poison, lying in wait
				3. CA added torture & use of weapon
				4. Narrow class; planning involved 
				5. Felony murder--death in course of 
				committing specified felonies
			(2) Second degree Murder
				1. Any murder that's not 1st degree
				2. Intentional killing w/malice 
				aforethought (MA) but can have MA rt. before killing
			(3) Maj. Rule on dif. btwn 1st & 2nd degree Murder
				1. Need pre-existing reflection
				2. Mere formation of specif. intent 2 
				kill isn't suff. 4 premed. of 1st degree murder
				3. Nonexclusionary factors of premed. 
				incl. [1] rel. of V & D est'ing motive [2] planning [3] manner 
				of killing
			(4) Min. View on 1st degree Murder--X doesn't 
			matter in premed. only specif. intent 2 kill
		3) Provocation/Heat of Passion Defense on Murder
			(1) If successful, then lowered 2 vol. 
			manslaughter of adeq. & rsbl
				1. Vol. so intentional 
				2. There's no malice
			(2) C/L categories (maj.)
				1. Extreme physical assault/battery
				2. Mutual combat
				3. D's illegal arrest
				4. Injury/serious abuse of a close 
				relative of D's
				5. Sudden discovery of spouses adultery 
				(not words)
				6. Common denominator--physical contact 
				btwn D & deceased
			(3) C/L approach of factors
				1. Cooling X makes provocation defense 
				inadeq.; there should B no X btwn provocation & killing (maj.)
				2. Words R not enough 4 provocation
				3. Sense that V must B wrong so that D 	
				was o.k. 2 fight back
			(4) MPC Elements (min.)
				1. D acted under influence of extreme 
				emotional disturbance (EED); subj. 
				2. Rsbl explanation/excuse 4 EED
				3. Rsblness det'ed from viewpt. of a 
				person in D's sit. 
				under circ's as D believed them 2 B (obj.?)
			(5) MPC approach of factors
				1. X'ing does not matter
				2. Words alone can B provocation
				3. Rsbl circ. incl's characteristics; 
				problematic in det'ing scope & objectivity
  	Unintentional Killings
		1) Invol. Manslaughter (mansl.)
			1. Maj. View--need crim. reckless (mens rea) 
			w/unintended killing (actus reus)
			2. Min. View--can have tort. neg.
			3. Although crim. recklessness & crim. neg. have 
			same risk, crim. neg. doesn't req. consciousness 
			4. Contrib. neg. is NOT a defense
		2) 2nd Degree Murder
			1. Implied malice aforethought
			2. Depraved heart killing
			3. Min. stand. of crim. recklessness
			4. MPC --crim. recklessness + conscious disregard 
			manifested / shown by extreme indif. 2 human life
		3) Felony Murder (F-M) Rule
			(1) C/L
				1. If there's an intent 2 commit a crime & 
				greater harm, death, occurs then in C/L can substitute 
				that intent 2 murder
				2. Killing in course & / furtherance of 
				felony is murder
				3. Foreseeability irrelev.
				4. Prob's b/c no warning/fairness 2 D 
				specif'ly/gen'ly & disproportionate punish.
			(2) Limitations of F-M Rule
				1. Abolish F-M rule (min.); want indep. 
				proof of intent
				2. Strict causation req./not in 
				furtherance--dirness req'ed 
				& @ the same X buy into trad. rule
				3. Leg. Grading--must B 
				specified/designated felony in 
				the statute (arson, rape, carjack, 
				robbery, burglary, 
				etc.); doesn't allow prosecutors 2 use F-M 
				as alt./safety net
				4. Felony inherently dang. 2 human life 
				(FIDHL)--If statutory element of underlying felony R 
				FIDHL, then 2nd Murder (drunk driving, child abuse, 
				assault); obj. not specif. 2 fact sit.
				5. Merger Doc/Indep. of the Homicide
					[1] If eligible felony 
					(designated / FIDHL )
					[2] Is an integral part 
					/incorporated in fact of the 
					homicide
					[3] Is dir'ly rel'ed / foreseeably 
					rel'ed 2 homicide 
					[4] Then there's merger & CANNOT 
					apply F-M
			(3) In Furtherance Theory
				1. Agency Theory (maj.)--either D / 
				co-felon did the 
				criminal acts w/common purose of felon 
				dir'ly killed
				2. Proximate Cause Theory (min.)--If the 
				death is 
				foreseeable by D, then doesn't matter who kills

Death Penalty
  	US Constitutional Rules
		1) Furman Case--Arb. & capricious so UnConst.
		2) Gregg v. Georgia
			(1) Arg's 4 death penalty
				1. Pub. opinion
				2. Leg. opinion
				3. Const. text of 5th amend. supports
				4. No change in history until Furman
			(2) Arg's against death penalty
				1. Doesn't deter / serve retribution
				2. Selective application/racial discrimination
				3. Dif. b/c of finality going 2 human 
				dignity issue
			(3) Holding
				1. Death penalty is Const. if Furman req't 
				of no arbitrary & capricious met
				2. Bifurcate dec'ing guilt (evid.) & 
				punish. (mitigating circ's) in jury trial
				3. Define capital offenses (now only murder 
				except treason)
				4. Automatic appeal 4 high stand. of procedural 
				fairness; looks 4 trial errors
				5. Statute 4 guided discretion
					[1] Aggravating circ's in statute where 
					jury should find @ least 1 for death penalty
					[2] Any/all mitigating evid. must B 
					presented 2 jury
		3) 8th Amend. of Cruel & Unusual Punish.
			1. Must B both not OR
			2. Assume leg. is Const. unless proven otherwise by 
			challenger
			3. Imply respect 4 life & dignity so less weight than 
			if express
  	Concerns w/Gregg Approach
		1) Evolving stand. of decency w/respect 2
			1. Pub. opinion which is in favor of capital punish.
			2. Precedents / history
			3. Leg. Acts after Furman
		2) Prob's w/Guided Discretion
			1. Evid. of discrimination by sex, race, $
			2. Deter. & retribution quest.s
			3. Inherent tension b/c unpredictable when mitigating 
			circ's weighed

Causation
  	Third Element of Crime
		1) Crime = Mens Rea + Actus Reus + Causation
		2) Cause is links of chain btwn actor & result; act / omission
  	Proximate Cause / Legal Cause
		1) Actual Cause
			1. But 4 test
			2. Suff'ly dir.
			3. Can B an omission where actor had a duty
			4. There can B more than 1 dir. cause/but 4 causes; 
			subst. factor tests
		2) Foreseeable
			1. Imply rsbly foreseeable
			2. If the result is not highly extraord., then it's 
			foreseeable
		3) Dif. Policies Dep'ing on Industries
			1. Pro mfgr'ing so duty only 2 train employees & show 
			actual cause 4 accidents
			2. Service ind's have more duty so allow less than actual 
			cause 4 accidents
		4) Intervening, supervening, superceding act
			1. Factors that break the chain of cause btwn D's axn 
			& result
			2. If the intervening act was foreseeable, then not 
			a supervening factor
			3. Law assume it's foreseeable that Dr.'s will mess up 
			hence no supervening/breaking the chain of event
  	Liability & Defenses
		1) Recklessness by V does not excuse D b/c policy 2 prevent 
		reckless cond.
		2) D is liable 4 natural & probable conseq's of irresponsible 
		axn
		3) D is not liable 4 Vs interven'ing act which was by choice/free 
		will b/c unforeseeable

Attempt
  	Def. of Attempted Crime
		1) Attempted Crime = Intent 2 commit crime + Act/subst. step 
		2 commission of the crime
		2) Once the crime is compl., it's no longer attempt
		3) Inchoate (imperfect) crime that gen'ly leads 2 another crime
		4) Ex's--conspiracy, assault, burglary
  	Mens Rea
		1) S/M of Attempt
			1. Purposeful / Specific; highest level of intent
			2. Even if the compl.ed crime is lwr level of intent, 
			the attempt of the crime must B specif.
			3. If strict liab. 4 compl.'ed crime, then the same 
			element is strict liab. 4 attempted crime
			4. Ideally, give the jury instr. only 4 attempted crime 
			not combined w/compl'ed crime b/c would confuse the level 
			of intent
			5. Almost always have 2 infer intent from circ's
  	Actus Reus / Preparation
		1) Reluctance 2 impose crim. liab.
			1. Harm 2 soc. minimal; it's only harm 2 plot / influence 
			others
			2. Guilty thought doesn't translate 2 axns
			3. D may abandon the idea & want 2 give the opp. 2 
			repent
		2) Statute--no specif. attempt statutes; implied in indictment 
		law
		3) C/L Trad. Proximity Approach
			1. Last Act Approach--D did everything nec. 2 do intended 
			crime
			2. Dang.'ly Near--More than mere prep. of the crime
		4) Alts 2 Proximity Approach
			(1) Equivocal Behav./Ambiguous Test
				1. Looks @ the evid. of intent 2 define as 
				equivocal act as criminal
				2. Expands subst. crimes
			(2) No Equivocality/Res Ipsa Loquitur
				1. Acts speak 4 themselves
				2. Act should B clear proof of crim. intent 
				so can't use evid. of intent
				3. Harder 2 convict
		5) MPC / Modern Approach
			1. D must have nec. crim. intent +
			2. Subst. step 2 the crime corroborating the firmness 
			of D's crim. intent
			3. Mere prep. isn't enough but doesn't go as far as dang.ly 
			near
			4. Unequivocal test b/c doesn't allow evid. of intent 
			4 act but act must corroborate w/intent
  	Legal Impossibility Defense
		1) Legally impossible when D can't commit crime as stated in 
		statute so couldn't B guilty of compl'ed crime
		2) MPC Approach (maj.)
			1. Throws out the legal impossibility defense
			2. Target the class of people 2 put away b/c of guilty 
			mind w/attempted acts
			3. Want 2 deter people from crimes
		3) Trad. C/L Approach (min.)
			1. Legal impossibility is a defense
			2. Can't B guilty of attempted crime if can't B guilty 	
			of compl'ed crime
			3. Use this approach in undercover agent sits b/c of 
			artificiality
 
Conspiracy
  	Earlier Criminal Liability in Group
		1) 1 Person
			1. Limited in abilities
			2. Crim. liab. @ the stage of attempt
			3. Punish less readily than group
		2) More than 1 person/group
			1. Greater potential harm
			2. Crim. liab. @ conspiracy
		3. Punish. more readily than if 1 person
  	Elements of Conspiracy
		1) Mens Rea
			1. Purpose / specif. intent 2 jointly commit crime 
			/ participate in a crim. enterprise + 
			2. Knowledge of existence of crim. enterprise of more 
			than 1 person; don't need 2 know the scope / who
		2) Actus Reus
			1. Agmt is the act itself
			2. More in head than active behav. so prob. w/agmt
			3. Express agmt--speak through words but seldom found 
			practically
			4. Implied/Tacit agmt
				(1) Although not said, everybody knows
				(2) Act in a way as if agreed
				(3) No dir. evid. but only act in furtherance 
				/ coop.
			5.   Overt Act may/not B req'ed by statute
				(1) Manifest reality of agmt not just in D's 
				mind
				(2) Can B lawful act, but must evince some 
				purpose of furtherance agmt (but not subst. step)
				(3) By any D & others need not actually know 
				it occurred
  	Evidence Reqt 4 Actus Reus
		1) Direct Evid.
			1. This would suffice but hard 2 get
			2. Do not usually have express agmt but tacit so no 
			dir. evid.
		2) Circ. Evid. 
			1. Leads 2 infer agmt
			2. Totality of circ. & not nec. that all factors need 
			2 B there
			3. Factors
				(1) More than 1 person
				(2) W/same obj./purpose in mind 
				(3) Employing same/similar / complementary 
				means 2 achieve purpose
				(4) Strong motive 4 joint axn
				(5) Common knowledge of plan
				(6) Radical departure from stand. operating 
				proced.
		3) Defenses 2 Circ. Evid.
			1. No same purpose in mind
			2. A coincidence / concurrent acts were accidental 
			so not in furtherance of common purpose
  	Evidence Reqt of Mens Rea
		1) Purpose / specif. intent 2 jointly commit crime + knowledge 
		of conspiracy by
			(1) Dir. Evid. suffices but rare 
			(2) Circ. Evid.
				1. D's special int.
				2. Stake in venture
				3. No legit. use 4 D's goods & services
				4. High volume of illegal busi.
			(3) Supplier Cases
				1. Must prove that the supplier knew  AND
				2. Supplier was benefiting
				3. Supplier has active participation, promotion, 
				encouragement in crim. enterprise
  	Vicarious Liability
		1) Vicarious Liab. / Pinkerton Rule
			1. Law will hold U liab. 4 subst. crime even if weren't 
			there
			2. Once agmt, then the conspiracy is ongoing until 
			somebody gives up / when crime is compl'ed
			3. Anything 1 conspirator does in furtherance / 2 pursue 
			of agmt, all conspirators R liab.
 	Defenses 2 Conspiracy Charge
		1) Concurrent acts were accidental so not in furtherance of 
		common purpose --no specif. intent, acts, common purpose
		2) Abandonment, W/drawl / Renunciation 
			1. Must B affirmative w/drawl
			2. Affirmative axn--some axn inconsistent w/compl. 
			of the crime +
			3. Communicated 2 co-D w/rsbl calculation 2 reach co-
			conspirators
		3) Defenses 2 Pinkerton Rule
			1. Subst. offense by D1 didn't occur in furtherance 
			of D's agmt
			2. Subst. offense not w/in scope of unlawful obj./purpose 
			of agmt
			3. Subst. offense not rsbly foreseeable conseq. of 
			agmt
			4. No retroactivity; subst. offense occurred before 
			D joined conspiracy

Exculpation
  	Self Defense:  Defense of Justification
		1) Nec. key word
			1. Attack only when nec.
			2. Only 2 the degree nec.
		2) Elements of Perfect Self Defense
			(1) Aggressor / Assailants Threat
				1. Wrongful / unlawful
				2. Actual / apparent
				3. Imm.
				4. Deadly force 2 B used
			(2) D's response based on belief
				1. Honest (subj.)
				2. Obj'ly rsbl
				3. Nec.
				4. Imm. dang. of death / great bodily injury
			(3) Result if successful, D is exonerated from murder
		3) Elements of Imperfect Self Defense
			(1) Focus on D's S/M
			(2) D's response based on belief
				1. Honest (subj.) BUT
				2. Not obj'ly rsbl, unrsbl /
				3. Not nec. 2 use deadly force /
				4. Not imm. dang.
			(3) Result if successful, D's charge reduced 2 vol. 
			mansl.
		4) Perfect v. Imperfect Self Defense
			1. Both req. subj. honest belief
			2. Obj. rsbl belief v. subj. belief
			3. Law makes killing legal/justifiable v. law makes 
			killing crime but excuses
			4. Compl. D acquittal v. Incompl. defense of vol. mansl.
		5) Battered Woman Syndrome (BWS):  kind of cultural defense
			(1) Syndrome --combination of symptoms / signs indicating 
			disease, disorder, etc.
			(2) Symptoms/signs--3 repeated cycles
				1. Tension building stage--fear but not violent
				2. Acute battering incident--more serious, 
				violent
				3. Loving / contrition--req. foregiveness
			(3) Must support / undermine, prove / disprove an element 
			of self defense 2 apply
				1. Tends 2 prove obj. rsbl b/c explain why 
				people stay in the rel.
				2. B/C the cycle repeats, can predict like 
				an expert on 
				how violent the behav. proving subj. honest 
				nec. & imm. of D's belief
			(4) Min. culture so need 2 explain 2 the jury
			(5) 30 states recoged BWS as relev. element
			(6) Retaliation from prosecutors--no such syndrome 
			& D not suffer from it
		6) Actual Provoker/Aggressor:  Relev. 2 Obj. rsbl factor
			1. Verbal insult isn't provocation
			2. First aggressor is 1 who 1st threatened / used force 
			not words
			3. Initial aggressor cannot defend from the prob. s/he 
			created 
			unless w/drew in good faith by doing something affirmatively
			4. Can only use nec. force 2 combat aggressors force
		7) Duty 2 Retreat:  Relev. 2 Obj. rsbl factor
			1. Arises only 4 person attacked +
			2. Person attacked used DEADLY FORCE instead of escaping 
			+
			3. Person attacked KNEW he can retreat 2 COMPL. SAFETY 
			where the other person can't come
			4. Does NOT arise when person attacked @ home b/c it's 
			sanctuary
			5. Restrictive rule enforced in 1/2 of the states
		8) Law Enforcement
			(1) Misdemeanor
				1. Rsbly nec. force
				2. No lethal force just 2 arrest
				3. Lethal force is o.k. if nec.--if physical 
				resistance 2 a 
				degree that seriously threatens the physical 
				safety of officer / 3rd party
				4. No duty 2 retreat
			(2) Felony C/L
				1. Deadly force o.k. 
				2. By any means nec. 2 stop the escape & 2 
				effect arrest
				3. Felonies were inherently dang. & cap. punish. 
				so only speed justice
			(3) Felony Modernly
				1. Rsbl seizure of 4th Amend.
				2. Probable cause 2 arrest &
				3. It's nec. 2 prevent escape &
				4. Probable cause 2 believe there's threat of 
				injury 2 officer (death/serious injury)
				5. MPC --also adds no subst. risk 2 innocent 
				people when using force
  	Insanity:  Defense of Excuse
		1) Defense of Excuse
			1. Person excused & not responsible b/c not a crime
			2. In insanity, mens rea missing
			3. D must prove insanity
			4. Not guilty of insanity then go 2 state institution
		2) M'Naghten Rule
			1. Presumes all D's R sane--exercise rsn & follow stand. 
			of normality
			2. Unless @ the X of the act is committed
			3. acting under such defective rsn from disease of 
			the mind, that
			4. D either [1] didn't know nat. & quality of act OR 
			[2] didn't know it was wrong
			5. Drunk, stupid, impulse R not diseases; must B something 
			psych. will say disease b/c of symptoms, delusions, etc.
		3) Irresistable Impulse Test
			1. D @ the X of the act
			2. Acted under such defective rsn from disease of the 
			mind, that 
			3. D was acting under irresistable impulse depriving 
			compl. choice
			4. Incl's fakers & harder 2 prove
		4) MPC Test
			1. D isn't responsible 4 crim. cond. if 
			2. At X of cond.
			3. As result of mental disease / defect,
			4. D lacks substl capacity either: [1] 2 appreciate 
			criminality/wrongfulness of cond. OR [2] 2 conform 
			cond. 2 the reqt's of law
			5. Incl's those w/o free will, self will of behav. in 
			insanity; expressly in conform behav. & implicit in appreciate
			6. Allows gradation by subst'l capacity element
		5) Insanity abolished as Aff. Defense
			1. Comes back through mens rea req't
			2. Puts it @ where its relev. 
		6) Most return 2 M'Naghten Rule


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