study guide test 2 criminal law

Flashcard maker : Trina Garrison
insanity defense
The _____ attracts a lot of public and scholarly attention, but the public badly misunderstands the way the defense actually works
Insanity
_____ is a legal concept, not a medical term.
criminal liability
Insanity excuses _____only when it seriously damages the person’s capacity to act and/or reason and understand.
true
Few defendants plead the insanity defense, and those that do hardly ever succeed.
civil commitment,
The few who \”succeed\” with the insanity plea, don’t go free. In a noncriminal proceeding, called a_____ courts have to decide if defendants who were insane when they committed their crimes are still insane.
The right-wrong test (M’Naghten rule)
a.The right-wrong test focuses exclusively on reason – the capacity to tell right from wrong.

b.)The test consists of two elements:
(1)The defendant had a mental disease or defect at the time of the crime, and

(2)The disease or defect caused the defendant not to know either

(a)the nature and the quality of his or her actions, or
(b)that what he or she was doing was wrong.

Substantial capacity test (MPC):
a.)In the substantial capacity test, defendants have to lack substantial, not complete, mental capacity.
b.)The substantial capacity test emphasizes both of the qualities in insanity that affect culpability—reason and will.
c.)The MPC’s definition of mental disease or defect excludes psychopathic personalities, habitual criminals, and antisocial personalities from the insanity defense
Volitional incapacity test (irresistible impulse):
________ we can’t blame or deter people who because of a mental disease or defect lose their self-control and can’t bring their actions into line with what the law requires.
Product test (Durham rule):
According to the Durham rule, acts that are the \”products\” of mental disease or defect excuse criminal liability.
Burden of proof
with _____ States vary as to who has to prove insanity and how convincingly they have to do so.
There are four tests of insanity:
The right-wrong test (M’Naghten rule)
Volitional incapacity test (irresistible impulse): Substantial capacity test (MPC)
Product test (Durham rule)
Burden of proof
_________In 1984, the federal Comprehensive Crime Control Act (Federal Criminal Code and Rules 1988, § 17[b]) shifted the burden of proof from the government having to prove sanity beyond a reasonable doubt to defendants having to prove they were insane by clear and convincing evidence.
Burden of proof
_______: Most states don’t follow the federal standard; they call insanity an affirmative defense. As an affirmative defense, sanity and, therefore, responsibility are presumed.
Defense of Diminished Capacity
A.)Diminished capacity is not an affirmative defense, it’s a failure-of-proof defense, arguing the defendant lacks the ability required for the requisite intent of the crime charged but may be guilty of a lesser crime.

B.) Diminished capacity isn’t the same as diminished responsibility.

C.)Most states reject diminished capacity of both types.

D.)In practice, diminished capacity and diminished responsibility only apply to homicide.

The Excuse of Age
A. The common law divided children into three categories for the purpose of determining their capacity to commit crimes:
1. Under 7: Children had no criminal capacity.
2. Ages 7-14: Children were presumed to have no criminal capacity, but the presumption could be overcome.
3. Over 14: Children had the same capacity as adults.
The Excuse of Age
A. Today, statutes decide when young people can be convicted of crimes.
1. One type of statute identifies a specific age, usually 14, but sometimes as young as 10 and as old as 18.
2. Another type of statute grants exclusive jurisdiction to juvenile courts up to a certain age but makes exceptions for a list of serious crimes.
3. A third type of statute simply states that juvenile court jurisdiction isn’t exclusive.
The Excuse of Age
A. Waivers from a juvenile court to adult criminal court come in three varieties:
1. Judicial
2. Prosecutorial
3. Legislative
1. Judicial
2. Prosecutorial
3. Legislative
Waivers from a juvenile court to adult criminal court come in three varieties:
The Problem of the Defense of Duress
a. It’s hard to blame someone who’s forced to commit a crime, but should we excuse people who harm innocent people to save themselves?
The Elements of the Defense of Duress
There are four elements in the defense of duress. The definitions of the elements vary from state to state:
a.)Threats amounting to duress

b.)Immediacy of the threats

c.)Crimes the defense applies to (duress is usually not a defense to murder)

d.)Degree of belief regarding the threat

The Defense of Intoxication
A. The defense of intoxication is stuck between two conflicting principles:
1. Accountability—Those who get drunk should take the consequences of their actions.
2. Culpability—Criminal liability and punishment depend on blameworthiness.
B. Involuntary intoxication is an excuse to criminal liability in all states.
C. Alcohol is not the only intoxicant covered by the defense of intoxication; it includes all \”substances\” that disturb mental and physical capacities.
The defense of intoxication is stuck between two conflicting principles:
Accountability—Those who get drunk should take the consequences of their actions.
2. Culpability—Criminal liability and punishment depend on blameworthiness.
Entrapment
A. All societies rely on entrapment, even though it violates a basic purpose of government in free societies.
B. The modern practice of entrapment arose because of the difficulty in enforcing laws against drug offenses, pornography, official wrongdoing, and prostitution.
C. Entrapment is an affirmative defense, and defendants have to show that they were entrapped.
The Subjective Test of Entrapment
A. The subjective test of entrapment focuses on the predisposition of defendants to commit crimes.
B. According to the test, the defense has to prove the government pressured the defendants to commit crimes they wouldn’t have committed without the pressure.
The Objective Test of Entrapment
A. The objective test focuses not on the predisposition of defendants but instead on the actions that government agents take to induce individuals to commit crimes.
B. According to the objective test, if the intent originates with the government and their actions would tempt an \”ordinarily law-abiding\” person to commit the crime, the court should dismiss the case even if the defendant was predisposed to commit the crime.
The Syndromes Defense
Some syndromes are and should be taken seriously.
B. Syndromes include:
1. Battered woman syndrome
2. Premenstrual syndrome
3. Post-traumatic stress syndrome
Two types of liability for someone else’s crimes
1.Complicity establishes when a person can be held liable for anothers’ crimes.
2.Vicarious liability establishes which types of relationships can create criminal liability.
Four types of parties to crime at common law:
1.Principals in the first degree actually commit the crime.
2.Principles in the second degree are present when the crimes are committed.
a.Accessories-before-the-fact aren’t present when the crime is committed but held before the crime is committed.
Accessories after the fact help after the crime is committed.
A. Today, there are two parties to crime:
1.Accomplices Participants before and during the commission of crimes.
2.Accessories Participants after crimes are committed.
Today, there are two parties to crime:
1.Accomplices Participants before and during the commission of crimes.
2.Accessories Participants after crimes are committed.
Participation after the commission of a crime (accessory)
1.Conspiracy is an agreement to commit some other crime.
2.The rule that the crime of conspiracy and the crime the conspirators agree to commit are separate offenses is called the Pinkerton rule.
Accomplice Actus Reus
1.The actor took \”some positive act in aid of the commission of the offense.\”
2.Mere presence at the scene of a crime isn’t enough to satisfy the accomplice actus reus requirement.
Vicarious liability
_____ transfers the actus reus and the mens rea from one person to another or from one or more persons to an enterprise because of their relationship.
Corporate liability
1. History
a. Edward Sutherland
b. Shingle theory of corporate governance
2. Let the Master Answer (Respondeat superior)
a. Legal fiction allowing a corporation to be an \”artificial being\”
b. Corporate employees’ acts are imputed to the corporation
Individual vicarious liability
1.Most common are cases of employees’ crimes, committed within the scope of their employment but without the approval or knowledge of their employers.
2.Virtually all vicarious liability statutes involve the employer-employee relationship.
a. Other areas include: vehicles, children
b. Parent responsibility laws
(1) Not the same as vicarious liability
(2) Based on parents’ acts and omissions
(3) Liability based on parent-child relationship
Inchoate crimes
A.The law of inchoate crimes resolves the dilemma by three means:
1.Requiring a specific intent or purpose to commit the crime or cause a harm
2.Requiring some action to carry out the purpose
3.Punishing inchoate crimes less severely than completed crimes
Inchoate crimes
Incomplete criminal conduct poses a dilemma: whether to punish someone who’s done no harm or to set free someone who’s determined to commit a crime.
Inchoate crimes
The Model Penal Code calls inchoate offense \”offenses of general application\” because they fall partly in general intent and partly in specific intent.
Inchoate crimes
Each inchoate offense has some of its own elements, but they all share two elements: the mens rea of purpose or specific intent and the actus reus of taking some steps toward accomplishing the criminal purpose—but not enough steps to complete the intended crime.
Inchoate crimes
Criminal attempts, criminal conspiracy, and criminal solicitation.
The law of inchoate crimes resolves the dilemma by three means:
1.Requiring a specific intent or purpose to commit the crime or cause a harm
2.Requiring some action to carry out the purpose
3.Punishing inchoate crimes less severely than completed crimes
Attempt
A. History
1.Star Chamber
2.1700s, English common-law courts created a law of attempt.
Attempt
Attempt is the crime of trying but failing to commit a crime.
Rationales for attempt law:
1.Dangerous act rationale looks at how closely defendants came to completing their crimes.
2.Dangerous person rational concentrates on how fully defendants have developed their criminal purpose.
3.Both rationales measure dangerous according to actions, but for different reasons.
Elements of attempt law
1.intent or purpose to commit a specific crime and
2.an act, or acts, to carry out the intent.
3.General attempt statutes
4.Specific attempt statutes
Attempt Mens Rea
1.All attempt crimes require purpose to engage in criminal conduct or cause a criminal result.
Attempt Actus Reus
1. Preparing to commit a crime doesn’t qualify as attempt actus reus.
2. Last proximate act rule
3. Proximity tests
a. Were the defendant’s acts close enough to the intended crime to count as the criminal act in the attempt?
b. Dangerous proximity to success test
c. Indispensable element test
d. Unequivocality test
e. Probable desistance test
f Preparation offenses
Conspiracy
Agreeing to commit crimes (criminal conspiracy) is further removed from completed crimes than trying to commit them (criminal attempt).
Justifications for the conspiracy law
1. It works hand in hand with attempts to nip in the bud criminal purpose.
2. It strikes at the special danger of group criminal activity.
Conspiracy actus reus
1. An agreement to commit a crime is the heart of the crime of conspiracy.
a. It doesn’t have to be in writing.
b. An unspoken understanding inferred from facts and circumstances is good enough to prove agreement.
2. Half the states require an \”overt act\” in addition to the act of agreement.
a. The purpose is to verify the firmness of the agreement.
b. The act doesn’t have to amount to much; it can be of \”very small significance.\”
Conspiracy mens rea
1.It’s a crime of purpose (specific intent).
2.This can mean intent to make the agreement or intent to achieve the criminal objective.
Parties to conspiracy
1.Traditional—Two or more individuals agree to commit crimes.
2.Unilateral approach—Not all the conspirators had to agree to commit a crime as long as the defendant believes they did.
Traditional—
_____Two or more individuals agree to commit crimes.
Unilateral approach
____—Not all the conspirators had to agree to commit a crime as long as the defendant believes they did.
Large-scale conspiracies are of two types: wheel and chain.
1. Wheel conspiracies—These break down into two types:
a. Hub—Conspirators who participate in all transactions
b. Spokes—Conspirators who only participate in one transaction
2. Chain conspiracies—Participants at one end of the chain don’t know anything of participants at the other end, but they all handle the same illegal commodity at different points (manufacture, distribution, and sale).
Chain conspiracies
________—Participants at one end of the chain don’t know anything of participants at the other end, but they all handle the same illegal commodity at different points (manufacture, distribution, and sale).
Spokes—
_____Conspirators who only participate in one transaction
Hub—
____Conspirators who participate in all transactions
Wheel conspiracies—These break down into two types:
Spokes—
Hub—
The criminal objective of conspiracy
Traditionally, it included everything from treason to disturbing the peace.

States have made some effort to limit the reach of conspiracy.

It requires an overt act in addition to an act of agreement.

This applies to criminal objectives only.

Impossibility: \”Stroke of Luck\”
A. A legal impossibility occurs when actors intend to commit crimes, and do everything they can to carry out their criminal intent, but the criminal law doesn’t ban what they did.
B. Factual Impossibility
Voluntary Abandonment
A little more than half the states and the U.S. government accept the affirmative defense of voluntary abandonment to attempt liability.
Conspiracy
The crime of agreeing with one or more people to commit a crime.

Conspiracy works hand in hand with attempts to nip criminal purpose in the bud.

Conspiracy strikes at the special danger of group criminal activity.

Conspiracy actus reus
An agreement to commit a crime (in all states)

An overt act in furtherance of the agreement (in about half the states)

Conspiracy mens rea
Wasn’t defined clearly at common law, and most modern legislatures haven’t made it any clearer. This leaves the courts to define it.
2. Criminal objective
3. Parties
a. Unilateral approach
Large-Scale Conspiracies
1. Wheel conspiracies
2. Chain conspiracies
Solicitation
The crime of trying to get someone else to commit a crime
Arguments against criminal solicitation law:
1.)Solicitation isn’t dangerous enough conduct because an independent moral agent (the person solicited) stands between solicitors and their criminal objectives
2.)Solicitors aren’t dangerous enough people
Arguments for criminal solicitation law
1.)Solicitation is another form of the danger of group criminality
2.)Solicitors are smart masters at manipulating others to do their dirty work
Solicitation actus reus
Inducement
Solicitation mens rea
Words that convey that their purpose is to get someone to commit a specific crime
Criminal objective
Felonies, violent felonies, any crime
Killing is different
A. It’s the most serious of all crimes.
B. Criminal homicides are very rare events.
Criminal homicide in context
Homicides are very rare events

Reasons why we study criminal homicide
1.)Much of criminal law grew out of the law of criminal homicide
2.)The three-step analysis of criminal liability – criminal conduct, without justification, and excuses – grew of the law of criminal homicide in the Model Penal Code.

The meaning of \”person\” or \”human being\”
Killing another person is central to criminal homicide liability, because it defines who is a victim.

The definition of person for purposes of criminal homicide presents problems at both ends of the life cycle—when life begins and when it ends.

When Does Life Begin?
Born-alive rule followed for most of the history of homicide law

Feticide

When Does Life End?
Determining when life ends has become increasingly complex as organ transplants and sophisticated artificial life support mechanisms make it possible to maintain vital life signs.

Uniform Brain Death Act

Doctor-Assisted Suicide
Euthanasia
1. Passive
2. Active
Arguments against Doctor-assisted suicide
1. Intrinsically immoral and wrong
2. Unacceptable consequences will follow from it
Arguments for Doctor-assisted suicide (against pain)
1. There is a constitutional right to assisted suicide
2. Presumption of bodily integrity
Doctor-assisted suicide and the criminal law
Difficult to distinguish between doctor-assisted suicide and first degree murder
Doctor-Assisted Suicide
Public opinion and Doctor assisted suicide
Murder
Common law and modern criminal codes divide homicide into two kinds:
1. Murder
2. Manslaughter
The history of murder law
By 1700, the English law of homicide recognized three kinds of homicide:
1. Justifiable homicide
2. Excusable homicide
3. Criminal homicide
Eventually, divided into murder and manslaughter.
1. Killing with malice aforethought
2. Depraved heart murder
3. Intent-to-cause-serious-bodily-injury murder
\”Express\” vs. \”implied\” malice aforethought
1.)\”Express\” malice aforethought was reserved for killings that fit the original meaning of murder—intentional killings planned in advance.
2.)\”Implied\” malice aforethought referred to four additional kinds of murder:
a. Intentional killings without premeditation or reasonable provocation
b. Unintentional killings during the commission of felonies
c. Depraved heart killings
d. Intent to inflict grievous bodily harm killings
\”Implied\” malice aforethought referred to four additional kinds of murder:
\”Implied\” malice aforethought referred to four additional kinds of murder:
Intentional killings without premeditation or reasonable provocation

Unintentional killings during the commission of felonies

Depraved heart killings

Intent to inflict grievous bodily harm killings

Elements of murder
Murder is a result crime
1.)Proving murder requires proof beyond a reasonable doubt of these elements:
a. Actus reus
b. Mens rea
c. Causation
d. Death
e. Attendant circumstance
Kinds and Degrees of Murder
Dividing murder into degrees was a continuation of the idea that not all murderers should be executed.
First-degree murder
A.)Two kinds of first-degree murder:
1. Premeditated, deliberate, intent-to-kill murders
2. Felony murders
B.)First-degree murder is the only crime today in which the death penalty can be imposed.
The Death Penalty
Bifurcation mandates that the death penalty decision be made in two phases:
1. Guilt
2. Sentencing
The Death Penalty
A. Most states have adopted the MPC’s two recommended procedures—bifurcation and the criteria for guiding the decision to impose the death sentence in capital cases.
The Death Penalty
Since the 1970s, several limits have been placed on the death penalty:
1. Mandatory death sentences are banned.
2. Unguided discretionary death penalty decisions are banned.
3. Mitigating factors are required.
1. Additional aggravating factors are allowed.
The Death Penalty
The death penalty is discretionary in all states where the penalty is authorized.
Bifurcation mandates that the death penalty decision be made in two phases:
1. Guilt
2. Sentencing
First-degree murder Mens Rea
A. Specific-intent-plus-real-premeditation-deliberation definition
B. Equivalent-of-specific-intent definition
First-degree murder Actus Reus
A. Critical when it comes to deciding whether to sentence a person convicted of first-degree murder to death—or to prison for life without parole in states
Second-degree murder
1. Felony murder
a. Felony murder mens reaRationales for felony murder
Corporation murder
A. Most criminal codes apply to corporate criminal homicide in the same way that they apply to other crimes committed for the corporation’s benefit.
Manslaughter
Manslaughter is the unlawful killing of another, which may be either
1.Voluntary upon a sudden heat
2.Involuntary where one had no intent to do another any personal mischief
Voluntary manslaughter
The common law and many states today recognize four reasonable provocations:
1. Mutual combat
2. Assault and battery
3. Trespass
4. Adultery
Voluntary manslaughter
Adequate provocation has to be both subjective and objective.
Voluntary manslaughter
Voluntary manslaughter has one element not present in murder, adequate provocation, which is the trigger that sets off the sudden killing of another person.
Voluntary manslaughter
Voluntary manslaughter consists of the elements of actus reus, mens rea, causation, and death.
The common law and many states today recognize four reasonable provocations:
1. Mutual combat
2. Assault and battery
3. Trespass
4. Adultery
Voluntary manslaughter
Voluntary manslaughter requires killing in the \”sudden heat of passion\” with no \”cooling off\” period.
Voluntary manslaughter
To prove voluntary manslaughter, the prosecution has to prove that the provocation caused the passion and the killing.
Voluntary manslaughter
Provocation by words.
Voluntary manslaughter
According to the common-law paramour rule, a husband who caught his wife in the act of adultery had adequate provocation to kill.
1. Today applies to both
2. Many states: voluntary manslaughter
According to the common-law paramour rule, a husband who caught his wife in the act of adultery had adequate provocation to kill
Today applies to both
Many states: voluntary manslaughter
Involuntary manslaughter
There are two kinds of involuntary manslaughter:

Criminal negligence manslaughter
Unlawful act manslaughter

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