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167 Cards in this Set
- Front
- Back
crim v civil
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crim=punishment=condemnation + consequences
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why punish
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retribution, utilitarian, expressive, mixed
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retribution
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moral blameworthiness; desert; proportional
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types of utilitarian
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deterrence, rehab, incapacitation
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deterrence
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specific: prevent individual from doing it again or general: prevent society as a whole from doing it again
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rehab
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educate and reinsert into society
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incapacitation
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keep offenders away from innocents
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expressive theory
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punishment is authoritatively expressing moral condemnation for the offense and thus affirming commitment to moral rule; provides social cohesion; proportional
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mixed-theory
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set a range based on retributive principles and then pick in that range based on util
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sources of crim law
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common law, statutes, mpc
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principle of legality
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legislativity, prospectivity, clarity, lenity
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prospectivity
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notice that what you are doing is a crime; must be a crime when committed
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legislativity
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no crime w/o law; needs to be legislatively intended to be law
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clarity
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statute must be clear as to what is/isn't prohibited; give chance for people to conform behavior; vague in major way
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lenity
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if ambiguous, rule in favor of def; vague in minor way
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rule of fair import
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opposite of lenity; give words their fair import w/o biasing for def or pros; just read it
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year and a day rule
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widely viewed as outdated so court can abolish and still not violate notice reqs
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jury nullification
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jury can acquit w/o regard to law or ev; but no requirement to instruct jury specifically of this power
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void for vagueness
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if too vague, invalid bc 1) fails to give notice to enable ordinary people to conform to law; 2) encourages arbitrary enforcement/app of law; too much discretion
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thought crimes
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can't punish just for thoughts; need an act to demonstrate harm
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status crimes
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can't be convicted for being something, only doing something; can be convicted for doing drugs, but not being a drug addict
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voluntary v coerced
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about mens rea; voluntary is freely chosen vs coerced like gun to head
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voluntary v ungoverned
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goes to actus reus; ungoverned is like a sneeze; unable to control, even when have a choice
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act
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muscular convulsion or bodily movement
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involuntary act exception
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when act involuntary but reason it is involuntary is bc of a voluntary act that has the foreseeable effect of causing involuntary acts, then can be voluntary; i.e. if when get drunk, have seizures, and get voluntarily drunk, can be responsible for seizure movements
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MPC Act Req 2.01
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not guilty of offense unless liability based on conduct which includes voluntary act/omission of which physically capable
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2 kinds possession criminalized
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of contraband (porn); or criminalized instrumentalities (guns)
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actual possession
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immediate physical custody of the property
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constructive possession
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control over property w/o immediate physical custody; can be bc of distance or through another
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joint possession
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possession w/ another; can occur even if one person has veto power
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3 things need for possession=act
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authority to control, power to control, intent to use that power
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possession general rules
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mere proximity is not enough; duration of control important in deciding if had authority/power to control
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MPC 2.01 Possession
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possession is act if possessor knowingly procured/received thing possessed or was aware of his control thereof for sufficient period to have been able to terminate possession
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3 positions on harm
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individual harm required, individual harm not required, harm required but it is broad
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what is harm
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traceable; loss of value; actual or potential; direct, concrete, directed against individs, not psychic; can't crim what is merely offensive; can be against society
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omission generally
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not usually an act; people have no crim law duty to prevent harm to another
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when omission is an act
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duty exists, capable of acting, has mens rea
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where do duties arise (scrapo)
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statute, contractual, relationship (parent to child, police to people), assume care voluntarily (and prevent others from helping), peril made by person, omission following act
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MPC omission
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not guilty of offense unless conduct includes a voluntary act or the omission to perform an act of which physically capable and 1)if law defining offense provides for it or 2) duty to act provided for
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2 parts of causation
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actual/factual cause (but-for) and proximate/legal cause
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actual/factual cause
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but-for test; but-for def's act, harm would not have occurred when it did; don't have to be only but-for cause; many can be necessary while none are sufficient; necessary=but-for
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simultaneous killings but-for exception
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if 2 people shoot simultaneously, both are sufficient but neither is necessary (but-for), so make exception to allow both to be guilty
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proximate/legal cause
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sufficient cause; morally relevant cause; do factor analysis
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factors for determining prox cause
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foreseeability; intervening causes; direct/indirect causes; fairness; common sense; culpability
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MPC causation
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conduct is cause when but for it, result wouldn't have occurred; and relationship bt conduct and result satisfies any code reqs;
if knowingly causing result is element, not met if actual result not contemplated by actor; if reckless/neg is part of offense, no offense if not risk of which actor was aware/should've been aware; if causing result is SL element, no offense unless actual result is probable consequence of conduct |
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CL Mens Rea
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intent (gen and spec) and wrongful disregard (reckless/neg)
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general intent
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intending the act regardless of intending the harm
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specific intent
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intending the resulting harm of actions
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gen intent +
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still gen intent crime; something like malice; put in statute that required along w/ the gen intent
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3 aspects of crimes
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conduct, result, attendant circs; must have MR for all 3
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MPC purposely
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conscious object to engage in conduct or cause a result AND aware of circs or hopes they exist
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MPC knowingly
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aware that conduct is of a nature or that circs exists AND practically certain conduct will cause a result
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MPC recklessly
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consciously disregards a substantial and unjustifiable risk that the material element exists, along w/ a gross deviation from the standard of conduct of law-abiding person
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MPC negligence
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should be aware of substantial and unjustifiable risk and has gross deviation from standard of care of reasonable person
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MPC MR rules
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if no MR stated, reckless is default; if MR stated for one element but not others, then apply enumerated to all; can meet the MR by proving a higher level of MR (P>K>R>N); can transfer intent from one crime to another
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pure SL
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no MR for whole offense
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impure SL
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no MR for one element of AR
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welfare offenses
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malum prohibitum; ok to have no MR; came about post IR;
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MPC SL
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only allowed for violations; still have to have some level of awareness of all elements
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How to find if should read in MR
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presume not unless clear Cong intent; if analogous to a CL crime, read in the CL MR; immediate instead of probable injury; reading in term hurts leg intent; lower level of punishment;
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When does SL not violate DPC
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small penalty, no harm to character, cong purpose supports, about a standard of reasonable care, no crime in CL
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Strict Liability
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person doing something at his peril; no MR needed
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Mistake of Fact: CL spec intent
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must be honest, but can be unreasonable; must be relevant to MR in order to negate MR
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Mistake of Fact: CL gen intent
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must be honest and reasonable (unless moral wrong doctrine); must negate culpability; can't just be falling below duty of care
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Mistake of Fact: MPC
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must be honest; must relate to MR in order to negate MR; for purpose/knowledge, can be unreasonable; for reckless/neg, must be reasonable;
if mistake is thinking committing one crime but instead are doing another, doesn't negate MR bc MR transfers; punished for lesser offense no impact on SL crimes |
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moral wrong doctrine
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can be guilty even if mistake of fact is honest and reasonable if act is malum in se and person does it; kind of like SL
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mistake of law
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mistake about legal circs in offense; usually not exculpatory; ignorance of law is not excuse
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times when mistake of law exculpates
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reasonable reliance on official statement from someone in authority to give it; knowledge is part of law and mistake negates that knowledge (tax laws)(but can't just be disagree w/ laws); statute defining not known to actor and wasn't made available to public (notice issues)
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affirmative defenses
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elements of crime already proved but some consideration makes there be no condemnation for acts
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justification v excuse
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justification: conduct not morally blameworthy; permitted (self-defense)
excuse: conduct not right but def isn't blameworthy for it bc of circs (insanity) |
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self-defense
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def must show he reasonably believed and in fact believed that he was in imminent danger of unlawful, bodily harm, that force is necessary, that he is using only as much as necessary, and that he cannot retreat
if unreasonable but sincere, can help reduce sentence |
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MPC self-defense
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unreasonable but sincere can negate crime of purpose/knowledge but not reckless/neg
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defense of others
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if justified to use self-defense, justified to use same force to protect others
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defense of property
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can't use deadly force unless there is also threat to life (i.e. if it is also self-defense); can otherwise use necessary force to get property back
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law enforcement defensive force
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can use deadly if have probable cause to believe suspect poses threat of serious harm; dangerousness test; must be objectively reasonable
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what is the reasonableness standard for self-defense
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Leidholm says it is subjective; view from standpoint of person whose characteristics are like accused's and who knows/sees what accused does
Goetz says objective notion but that objective still takes into account circs of def either one means that more is required than just a genuine belief by def; must be reasonable, but can look at the circs |
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CL necessity
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clear and imminent danger; D reasonably believes violation will prevent harm; no lawful alternative; harm avoided>harm done; no leg intent to contrary; clean hands; no homicide
all objective standard |
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MPC lesser evils 3.02
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D believes violation necessary to prevent harm (subjective); no lawful alternative; harm avoided>harm done (objective); no leg intent to contrary; can commit homicide
if unreasonably believes necessary, defense for purposely/knowingly but not recklessly/neg |
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Duress CL
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imminent threat of death or serious bodily injury to D or D's close family; D reasonably believes threat; D has no reasonable escape; clean hands; no homicide
Excuse |
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M'Naghten Test
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at time of act D had a mental illness because of which he did not know nature and quality of his act OR could not distinguish right from wrong
cognitive |
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MPC Insanity Test
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at time of act D had a mental disease or defect because of which he lacked substantial capacity to appreciate criminality/wrongfulness of act OR conform his conduct to law
cognitive and volitional |
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Irresistible Impulse Test
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incorporates losing power to choose into M'Nagthen; lack ability to control actions
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Product Test
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excuse if unlawful act was product of mental disease or defect; but-for causation
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Federal Test
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at time of offense, as result of severe mental disease/defect, unable to appreciate the nature/quality of conduct OR the wrongfulness of conduct
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Insanity moral wrong
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it is inability to distinguish bt moral right/wrong, not legal right/wrong; can know illegal but think is moral; it is objective societal standard of moral right
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deific decree
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if delusionally think God told you to do it, can be considered insane bc delusion destroys right/wrong distinction
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diminished capacity
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acquittal or mitigation bc of mental illness even if can't win on NGI
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MPC Intoxication
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intox not a defense unless it negatives an element of offense; intox ev admissible to disprove P/K but not R/N
when recklessness establishes element, if unaware of risk when would've been aware when sober, unawareness immaterial if intox not self-induced or is pathological, is AD if by reason of intox, actor lacks substantial capacity to appreciate criminality or conform conduct |
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pathological
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intox grossly excessive in degree given amt of intoxicant, and which actor doesn't know susceptible
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Voluntary Traditional CL Intox
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no defense
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Voluntary Revised CL Intox
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has to negate spec intent; can't be used for gen intent;
not an AD; used to negate an element |
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Involuntary Intox
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can get defense for both gen or spec; some treat as insanity; some treat as negating MR
intoxicant must cause the intent to form in order to negate MR; drugged intent is still intent |
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homicide definition
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purpose to cause death or intent to inflict serious bodily harm or extreme recklessness w/ respect to serious risk of harm showing indifference to life or felony-murder
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first-degree murder
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malice plus; intentional and premeditated; or during major felony
need 2 pauses; one for premed, one for deliberation |
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malice
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intention to cause or a willingness to undertake a serious risk of causing death, when intent is based on immoral aim
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reckless murder
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gross deviation from standard behavior; extreme indifference to risk of harm; awareness of substantial risk that isn't justifiable
mischievous or depraved heart |
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voluntary manslaughter CL
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intentional killing w/o malice; heat of passion after provocation OR honest but unreasonable belief was self-defense
not sufficient cooling time; words not enough |
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MPC Manslaughter 210.3
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under influence of extreme emotional disturbance for which there is reasonable explanation or excuse
reasonableness determined from viewpoint of person in actor's situation under circs as he believes them to be reasonableness encompasses whether words enough or if cooling time enough |
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Involuntary Manslaughter CL
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no intent; conscious disregard of substantial and unjustifiable risk causing death in course of crim neg accident; gross deviation from standard of care
gross crim neg |
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MPC Neg Homicide
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lesser category; when negligence isn't gross enough to make it to manslaughter
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Felony-Murder
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AR is underlying felony + causing death
MR is that of underlying felony; recklessness for death presumed or unnecessary felony must be but-for and prox cause of the death; foreseeable enough link bt felony and death |
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MPC Felony Murder
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murder when committed recklessly w/ extreme disregard of life; reckless includes engaging in dangerous felonies
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Dangerous Felony
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felony inherently dangerous to life when high probability its commission will result in death
debate over whether to look at felonies in abstract or case-by-case to determine dangerousness and whether death was foreseeable |
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affirmative defenses to felony-murder
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didn't commit homicidal act in any way; not armed w/ deadly weapon not normally carried in public; no reasonable ground to believe other participants armed; no reason to believe other participants intended to engage in conduct likely to cause death
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misdemeanor manslaughter
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unlawful act doctrine; like felony-murder but instead w/ misdemeanors
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death-aggravated felonies
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increase punishment for felony if it caused death; when F-M can't be proven
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MPC Attempt 5.01
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guilty of attempt if, acting w/ kind of culpability needed for crime, he :
1) purposely engages in conduct that would be crime if circs as he believes 2) does or omits to do anything w/ purpose of causing result that is element of crime 3) purposely does anything that, under circs as he believes them, is substantial step in course of conduct planned to end in crime |
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MPC Attempt MR
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for conduct, need purpose; for results, need purpose and maybe knowledge; for circs, reckless/neg may be sufficient if sufficient for crime attempting
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things that corroborate a substantial step
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lying in wait; enticing vic to go to place where crime will be committed; reconnoitering the place; unlawful entry into the place; possession of materials for crime that are specially designed for it and serve no lawful use; possession of material near crime place; soliciting agent to help
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2 exceptions to MPC purpose for attempt
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if def believes others will die, can be charged w/ intent for them dying (blowing up plane example); don't have to have purpose for attendant circs
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CL Attempt
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MR: spec intent; can't attempt recklessness
AR: mere prep isn't enough; physical proximity test; act proximate to complete crime or commencement of consumption |
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dangerous proximity test
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greater gravity and probability of offense; nearer the act to crime, better case for saying attempt
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MPC renunciation of attempt
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AD if abandoned effort if complete and voluntary renunciation of crim purpose
not voluntary if motivated by finding out more likely to get caught; not complete if just postponing |
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Old CL impossibility
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just legal and factual; factual isn't defense but legal is
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Modern CL impossibility
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pure legal still exculpates; hybrid and factual are both not enough and distinction bt the two basically gone
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MPC impossibility
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just ask whether would be a crime if circs were as def believed them; put self in mind of def and see if they are guilty of attempt
can still have pure legal bc must be a crime to be guilty |
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pure legal impossibility
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if crim law doesn't prohibit the conduct or result, can't be a crime, even if def has guilty conscience bc thinks committing crime
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factual impossibility
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def's intended end is crime but fails bc of factual circ unknown to him or beyond his control
empty pocket for pickpocketing |
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hybird legal impossibility
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goal illegal but commission imposible due to factual mistake regarding legal status of some factor relevant to conduct
shooting a corpse; not a "human being" which is legal status in homicide statute |
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Complicity CL Doctrine
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not own crime, have to be complicit in another completed crime; aid and abet in commission of crime
charged w/ the crime done by principal; can't be charged for complicity dual MR: must intend to aid/abet and share MR for the aided crime |
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aid and abet
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aid= assistance; abet=encouragement
must actually aid/abet; mere presence insufficient; doesn't have to be a lot of aid, but has to be actual aid/abet doesn't have to be the cause of the crime, just help to it |
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MPC 2.06 Complicity
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guilty if committed by person for whom legally accountable; legally accountable if are accomplice of person
accomplice if w/ purpose of promoting offense D solicits person, aids or attempts to aid in committing it OR has legal duty to prevent commission and fails if result crime, have to share in culp and has to purposely give aid to bring about crime |
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Complicity termination
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defense if terminated prior to commission and deprive it of effectiveness or gives warning to police or tries to stop it
need affirmative act to let others know abandoned |
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MR for complicity
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same MR as crime and intent to bring about crime
usually can infer MR for crime from intent to aid CL requires true purpose or willful ignorance jur split on whether can be accomplice to reckless |
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Conspiracy doctrine
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inchoate; agreement itself is the crime; sometimes need overt act to show agreement; overt act can be done by anyone in conspiracy
can be merged (but not in fed); can punish both for conspiracy and substantive crime |
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Formation of conspiracy agreement
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can infer if actions show concert of action or coordinated effort
can be tacit so long as people understand and respond to it |
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Identical Elements Test
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if all elements of one crime can be encompassed into all elements of another, then one is lesser offense of the other
take away all ev necessary to support one charge and remaining ev must be sufficient to support other |
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MR for conspiracy
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CL: gen intent to enter agreement; spec intent to bring about goal of conspiracy
MPC: conscious design to bring about conspiracy no conspiracy for reckless or neg crime |
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MPC termination of agreement
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AD if actor thwarted success of conspiracy under circs showing complete and voluntary renunciation
have to advise others abandoning or tell police |
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Conspiracy abandonment
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if abandon crim enterprise and inform all others, no longer liable for future acts of the conspiracy, but still liable for the prior acts and the agreement
MPC allows complete AD to conspiracy if thwart |
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Pinkerton Liability
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every conspirator is liable for every act done by other conspirators in furtherance of conspiracy, provided that acts are reasonably foreseeable as necessary/natural consequences
diff jurs have diff levels of this; MPC rejects |
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Shopkeeper Liability
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some jurs just have knowledge; others say must intend the goal of conspiracy but can infer from knowledge if
1) stake in venture; 2) no legit use for goods; 3) volume disproportionate for any legit need; 4) serious enough crime and didn't report |
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MPC 5.03 Conspiracy
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act purposely and agree w/ other that one will engage in crim conduct; if know person conspiring w/ is conspiring w/ 3rd party, guilty of conspiring w/ 3rd; need overt act except for 1st/2nd degree felony
if guilty of conspiring to commit multiple crimes, only one conspiracy so long as all in same agreement; |
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RICO 4 provisions
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can't use income from racketeering to invest in enterprise (laundering); can't use racketeering to acquire/control any interest in enterprise (direct involvement in biz); employee in enterprise can't have conduct through racketeering; can't conspire to do any of the above 3
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Racketeering activity
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engaging in various serious crimes under state/fed law
pattern=2+ acts of racketeering within 10 yr period def doesn't have to do the 2 acts personally; just has to agree to them being done by enterprise; can infer from knowledge |
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enterprise
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can be one person; can be partnership; informal or formal; just has to be involved in interstate commerce
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Solicitation Doctrine
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get someone else to do crime for you; hide behind hireling; inchoate
merges into other crimes unless person says no |
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CL Solicitation
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same AR as MPC
MR is spec intent to bring about goal of solicitation w/ gen intent to do the soliciting joke never enough; uncommunicated is attempt to solicit |
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MPC Solicitation
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if, with purpose of promoting crime commission, command, encourage or request other to engage in specific conduct that would be the crime or attempt to commit crime
immaterial if fails to communicate AD if persuades other not to do conduct if it is complete and voluntary renunciation |
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Corporate Agent Liability
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person legally accountable for any conduct he performs in name of corp to same extent as if done in his own name
when duty to act, agent responsible for it is accountable for reckless omission No vicarious individual liability for corporate agents |
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CL Corporate Entity Liability
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respondeat superior; acting within scope of employment with intent to benefit corp; traditionally must be authorized/tolerated by corp (infer)
spec intent of agent can be imputed to corp can be liable for prohibited crimes |
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MPC Corporate Entity Liability
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corp liable when commission of offense authorized or recklessly tolerated by high managerial agent; offense must be violation in statute in which leg purpose is to impose liability AND agent acted in scope of employment
Corp can defend if supervisor showed due diligence to prevent |
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compliance programs
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can be used to defend against liability by showing no authorization
can be imposed by pros instead of sanctions to avoid collateral consequences |
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responsible corporate officer doctrine
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officer w/ no MR can be convicted of misdemeanor if:
1) public welfare offense 2) responsible relation to violation; responsible share 3) failed to prevent/correct violation 4) had power to prevent violation combination of responsibility and authority; knowledge of wrongdoing not required (except if felony) |
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CL Larceny
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trespassory taking and carrying away of personal property of another with intent to permanently deprive owner
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Trespassory taking
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nonconsensually taking possession
if have custody but not possession, then still is a taking when take possession as well person must have occupation and right to property before it can be trespassorily taken |
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Intent to permanently deprive
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flexible, but intent must be there at time take (except w/ continuous trespass rule)
can be guilty if indifferent to returning property; have to know property isn't yours |
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3 ways to be guilty w/o intent to deprive perm
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1) intend to sell back to owner
2) intend to claim reward for finding property 3) intend to return property for refund in all, there is substantial risk owner won't get property back; taking econ ownership for a time was enough; took some econ value |
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actual v constructive possession
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actual=have in hands=custody
constructive=right to it=possession if only have actual but owner retains constructive, taking=trespass |
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Embezzlement
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no element of trespassory taking
unlawful appropriation where other person had right to the property that was temporarily entrusted to def |
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False pretenses
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false representation with intent to defraud owner of property (title and possession) where owner surrendered property in reliance on misrepresentation
diff from larceny by trick which leads only to surrender of possession must be induced at least in part on the fraud; can be verbal or conduct |
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larceny by trick
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fraud vitiates consent, but only if fraud happens at time of consent
relinquish possession (but not title) based on fraud |
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False pretenses reliance lacking when:
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1) complainant knew representation false or didn't believe it
2) didn't rely and instead investigated for self or relied on other advice (even if believed) 3) although some misreps proved, vic parted w/ property for other reasons or in reliance on other reps not false |
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MPC Theft- consolidation
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no distinction bt larceny by trick and false pretenses; nothing said about possession, it is all about right to property; no distinction bt taking title and property
theft=unlawful taking and invasion of right to property; manner of taking irrelevant still have to have purpose to deprive |
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CL rape
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carnal knowledge of a woman, forcible and against her will
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IL Rape statute
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commit act of sexual penetration and uses force or threat of force
is a defense if victim consented to the force lack of verbal/physical resistance is not consent after withdraw consent, anything that happens after is nonconsensual |
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Traditional rape elements
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vaginal penetration; exception for wife; against will (consent); forcibly (enough to cause harm); utmost resistance; must communicate nonconsent
gen intent crime w/ no MR |
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Modern rape elements
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more about nonconsensual sex; force largely removed
no resistance or earnest resistance (which can be no resistance) force=act of penetration sometimes consent has to be affirmative; can be implied; others just ask if reasonable person thinks has consent |
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MR of rape
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dual MR; gen intent to have sex; morally blameworthy state of mind w/ regard to consent (neg or maybe SL)
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mistake of fact for rape
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if negates the moral blameworthiness bc honestly and reasonably believed there was consent, then not guilty
not all allow mistake of fact defense |
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types of sentencing structures
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determinate= length fixed; indeterminate= chance of parole
discretionary=allows judge to pick from range; nondiscretionary=leg specifies exact sentence unguided=judge can choose any sentence in range; guided= leg provides guidelines on what to choose voluntary= guidelines are just advice to judge; presumptive= judge is bound by guidelines unless gives strong reason to deviate |
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apprendi rule
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other than criminal history, any fact that increases punishment past statutory max must be decided by jury
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blakely rule
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statutory max is anything judge can impose based solely on facts reflected by jury verdict
can't set max much higher than what presumptive guidelines suggest for a crime and let judge choose the higher one w/o jury proving those facts |
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booker rule
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guidelines are only advisory and can't be binding
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categorical sentencing test
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look for natl consensus; look at whether makes sense against USC: does it serve goals of penal system based on culp of offender and harm of crime
typically was used for cap punish |
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proportionality of term-sentences test
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does it cross threshold of seeming grossly disproportionate to crime? if yes, compare to other criminals within jur and to same crime in other jurs
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Graham v Ewing
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Graham allows the categorical sentence test for a non-cap punishment but Ewing didn't
seems like only juveniles and cap punish will get the stricter Graham test |