Criminal Law (Bar Exam) Correct!!

4. Under DPC, cannot be convicted, tried, or sentenced if unable to (i) understand the nature of the proceedings; or (iii) unable to assist his lawyer in preparation of the defense. Intoxication Defense - ANSWER A defense that may be raised whenever intoxication negated one of the elements of the crime. If formed intent to commit crime before getting drunk, this defense won't work. Voluntary: internationally taking w/o duress of a substance known to be intoxicating. It's a defense to specific intent crimes if intoxication prevented D from formulating purpose or obtaining knowledge. Involuntary: Taking of an intoxicating substance without knowledge, under direct duress, or pursuant to medical advice while unaware of the substance's intoxicating effect Exculpation Defense - ANSWER Although defendant has committed a proscribed act, she should not be punished because the circumstances justify the action. Often defends on the immediacy of the act. Nondeadly force is justified where it appears necessary to avoid imminent injury, deadly force is justified only to prevent death or serious bodily injury. Self-Defense: Nondeadly force may be used when the person reasonably believes it is necessary to protect herself from the imminent use of unlawful force upon herself; no duty to retreat. Deadly force may only be used when party is (i) without fault, (ii) confronted with unlawful force; (iii) and reasonably believes she is threatened with imminent death or great bodily harm. Note that the aggressor (fault) may only use defense if (i) withdraws from the confrontation and communicates that desire; or (iii) victim suddenly escalates w/o opportunity to withdraw. Defense of others: if reasonable believes that person has the right to use force in his own defense Defense of property: Nondeadly force to prevent or terminate unlawful entry or attack on dwelling. Deadly force only when there is violent entry and the person reasonably believes that the use of force is necessary to prevent person attack or entry to commit a felony. May use force to regain possession in hot pursuit. Duress Defense - ANSWER D reasonably believed that another person would imminently inflict death or great bodily harm upon him or a member of his family if her did not commit the crime; MPC extends this to high value property. This defense does not apply to intentional homicide. Mistake/Ignorance Defense - ANSWER Mistake/ignorance of fact is a defense only if it showed D lacked the state of mind required to commit the crime. Mistake of specific intent does not need to be reasonable; mistake of general intent malice needs to be reasonable. Mistake/ignorance of law is no defense, though on a collateral legal matter it could negate intent. Consent Defense - ANSWER Consent is usually not a defense, but when it is, must establish that consent was (i) freely and voluntarily given, (ii) party was legally capable of consenting; and (iii) no fraud was involved in obtaining the consent. Entrapment Defense - ANSWER The elements of entrapment are (i) criminal design originated with law enforcement; and (ii) D was not predisposed to commit crime prior to gov't contact. Cannot be entrapped by a private citizen. Assault and Battery - ANSWER Battery: Unlawful application of force to the person of another resulting in either bodily injury or an offensive touching. Aggravated battery rises to the level of a felony: (i) battery with a deadly weapon; (ii) battery resulting in serious bodily harm; (iii) battery of a child, woman, or police officer. Battery is a general intent crime. Assault is either an attempt to commit battery or the intentional creation of a reasonable apprehension in the mind of the victim of imminent bodily harm. When it is an attempt, it is a specific intent crime. Police can use even deadly force to apprehend or prevent the escape of a felon who poses a threat of serious bodily harm to the officers or others. Common Law Criminal Homicide - ANSWER 1. Murder 2. Voluntary Manslaughter 3. Involuntary Manslaughter Murder - ANSWER Unlawful killing of a human with malice aforethought. Malice aforethought requires: (i) intent to kill; (ii) intent to inflict great bodily injury; (iii) reckless indifference to an unjustifiably high risk to human life; or (iv) intent to commit a felony (felony murder). Voluntary Manslaughter - ANSWER A killing that would be murder but for adequate provocation. Provocation requires: (i) provocation would arouse a sudden and intense passion in a reasonable person causing him to lose control; (ii) D was provoked; (iii) there was not sufficient time between provocation and killing for a reasonable person to cool off; and (iv) the D did not cool off between provocation and killing. Note that there are objective and subjective elements. Heat of passion is not a defense, just reduces from murder to manslaughter. Involuntary Manslaughter - ANSWER A killing committed with criminal negligence (or MPC recklessness), or during the commission f an unlawful act. Criminal negligence requires a substantial risk. First Degree Murder (statute) - ANSWER 1. Deliberate and Premeditated (made the decision to kill, reflected on the idea of killing). Requires specific intent, so may be negated by voluntary intoxication if unable to premeditate. 2. Felony Murder: Killing committed during the commission of an enumerated felony. Second Degree Murder (statute) - ANSWER A killing committed with a reckless indifference to human life (so voluntary intoxication is not a defense). Felony Murder - ANSWER Any death caused in the commission of, or in an attempt to commit, a felony is murder. Malice is implied from the intent to commit the underlying felony. 1. D must have committed or attempted to commit. A defense that negates the underlying felony, will also be a defense to the murder. 2. Felony must be distinct from killing (i.e. not aggravated battery). 3. Death must have been a foreseeable result of the felony 4. Death must have been caused before D's "immediate flight" from the felony; cannot be in a place of temporary safety 5. Usually not liable for felony murder if a co-felon is killed 6. Liable for deaths of innocent victims caused by someone other than co-felony = proximate cause theory; under agency theory, must be committed by felon or his agent Homicide Causation - ANSWER D must be cause in face and proximate cause of victim's death. Proximate Cause: if the result is a natural and probably consequence of the conduct even if the precise manner was not anticipated. Simultaneous acts of 2+ people may be independently sufficient causes of a single result. Sex Offenses - ANSWER Rape: Sexual assault; slightest penetration is sufficient; under traditional rule and MPC husband cannot rape wife. Requires lack of effective consent: (i) intercourse through force; (ii) intercourse through threats of great and immediate bodily harm; (iii) victim cannot consent because of unconsciousness, intoxication, or mental condition, or (iv) victim is fraudulently caused to believe the act is not intercourse Statutory Rape: Carnal knowledge of a person under the age of consent; consent is irrelevant. Larceny - ANSWER The elements of larceny are: (i) a taking; and (ii) carrying away (asportation); (iii) of tangible personal property; (iv) of another with possession; (v) by trespass; and (vi) with intent to permanently deprive that person of her interest in property. Note that if D has possession of property at the time of the taking, it cannot be larceny, but may be embezzlement. The intent to permanently deprive must be at the time of taking; would not be sufficient if D believes it is her property or intends to only borrow it or keep it to repay a debt. Larceny can be committed against lost or mislaid, but not abandoned property. In a "continuing trespass" situation, if the D wrongfully takes it and then later develops intent to deprive, it can be larceny (but must take wrongfully from the start) Embezzlement - ANSWER The elements of embezzlement are: (i) fraudulent; (ii) conversion; (iii) of personal property; (iv) of another; (v) by a person with lawful possession of that property. If D intends to restore the exact property taken, it is no embezzlement; money initially taken replaced with different money of identical value is embezzlement. False Pretenses - ANSWER The elements of false pretenses are: (i) obtaining title; (ii) to the personal property of another; (iii) by an intentional false statement of a past or existing fact; (iv) with the intent to defraud the other. Misrepresentation must be a major factor of the victim passing title to the D, MPC and modern view allow false promises to perform in the future to be sufficient as well. Knowledge is satisfied if D deliberately avoided learning the truth. Larceny by Trick - ANSWER Victim is tricked by a misrepresentation of fact into giving up mere custody of the property (whereas for false pretenses they must give up title) Robbery - ANSWER The elements of robbery are: (i) a taking; (ii) of the personal property of another; (iii) from the other's person or presence; (iv) by force or threats of immediate death of physical injury to the victim, member of his family, or other person in the victim's presence; and (v) with the intent to permanently deprive him of it. Robbery requires force or threats, larceny does not. Extortion - ANSWER Common law: Corrupt collection of an unlawful fee by an officer under color of office Modern: obtaining property by means of threats to do harm or expose information. May include threats of future harm and the taking does not need to be in the presence of the victim, in contrast to robbery.