Essential Elements of Crimes
A Physical Act (Actus Reus)
Can be any bodily movement.
Bodily movements that do not qualify for criminal liability:
conduct that is not the product of own volition
a reflexive or convulsive act (e.g., epileptic seizure)
act performed while unconscious or asleep (e.g., sleep walking).
Act can be an omission if there was a duty to act. Generally, there is no duty to rescue, but there a legal duty to act in 5 circumstances:
By statute (e.g., filing tax return)
By contract (e.g., lifeguard or nurse’s duties)
Relationship of the parties (e.g., parents’ duties; spouses’ duties)
Voluntarily assuming duty of care (e.g., jumping into lake to save drowning)
Where conduct created the peril (e.g., you push someone into pool)
Having the mental state to commit the crime. Applies to Specific Intent, General Intent, Malice and Strict Liability.
Intent to engage in proscribed crime.
Inchoate offenses (“incomplete offenses”) of solicitation, conspiracy, and attempt
1st degree murder
Assault as attempted battery (thus, not intending to do it is a defense)
Common Law Felonies Against Property: Larceny, Embezzlement, False Pretenses, Robbery, Burglary, Forgery
Reckless disregard of a known risk
Awareness of acting in proscribed manner
Transferred Intent: if ∆ intended to harm victim 1 but harmed victim 2, her intent is transferred. Never merge different crimes that have different victims (shoot at 1, hit 2= attempt and murder)
Applies to Battery, Rape, Kidnapping, False Imprisonment.
Strict Liability crimes
(no intent required, and thus no defense that negates intention)
Conscious commission of proscribed act
Applies to Statutory Rape, Bigamy and administrative laws, selling liquor to minors.
Applies to involuntary manslaughter. More than mere negligence.
Offenses Against the Person
Battery: application of force to the person of another resulting in harmful or offensive touching
Indirect application of force: sufficient
Aggravated Battery: deadly weapon used, serious bodily injury, OR victim is child/woman/police
An attempt to commit a battery (specific intent) OR intentional creation of a reasonable apprehension of imminent bodily harm (general intent)
The malicious maiming or disfiguring of another.
Unlawful detention or confinement of a person without his valid consent
The intentional and unlawful movement of another against their will
Killing of human being by another human being
Causation – Must be the actual and proximate cause, But for and foreseeable injury. Look for intervening act. If numerous parties substantial factor test.
CL – Requires cessation of heartbeat and respiration
ML – Requires permanent cessation of brain activity
Unlawful killing of a human being with malice aforethought
Must show 1 of 4 intents
Intent to Kill or
Intent to Inflict Serious Bodily Injury
Wanton/Reckless Indifference to An Unjustifiably high risk to human life; malignant heart
Felony Murder – Burglary, arson, rape, robbery, mayhem kidnapping, BARRKM
Second Degree Murder
All murder starts at second degree and then elevates to first or felony
First Degree Murder
Specific Intent to kill plus premeditation/deliberation
Premeditation – Thought of Killing
Deliberation – requires that the act be cold blooded, not impulsive
Also can be first degree by felony murder
Lying in wait, torture, poison.
Any homicide committed in the perpetration of an inherently dangerous felony.
Burglary, arson, rape, robbery, mayhem kidnapping, sodomy, and sexual molestation. BARRKM (any attempt to these will suffice)
Felony must be something other than killing
If D has a defense to underlying felony, he has a defense to felony murder
Deaths caused while fleeing felony are felony murder BUT once D reaches some point of temporary safety, deaths caused thereafter are not felony murders.
Co felons liable for killing victims (Conspiracy Pinkerton Rule)
Killing of Innocent parties
CL – Foreseeable
Modern – co felon not liable unless it is a co felon doing the killing
Killing of co felon by victims of felonies or pursuing police officer
CL – Co felon liable
Majority – not liable
Minority – not liable
They are charged with murder and then can mitigate down to voluntary manslaughter if you can find one of these elements.
(“heat of passion”): Adequate provocation
Adequate Provocation: would arise sudden and intense passion in an reasonable person;
A must in fact have been provoked;
Must not have been sufficient time to cool off, did he cool down;
Loss of mental equilibrium
Criminal Negligence: killing is caused by A’s negligence (tougher standard than for tort liability). Can be recklessness.
“Misdemeanor Manslaughter” rule: killing in course of commission of a misdemeanor or any felony not listed in the Felony Murder Statute
Imperfect Self Defense will mitigate it to involuntary manslaughter. D was at fault, honest but unreasonable belief to use deadly force.
Rape – sexual penetration of women without consent. Modern can be wife.
Statutory Rape – sexual intercourse with person below the age of consent (strict liability- consent and mistake of fact are not defenses)
Bigamy – marrying someone else while you are married.
A wrongful taking
and carrying away of (asportation – any movement of property is sufficient)
personal property of another
without consent of victim
with specific intent to permanently deprive owner of property at time of taking.
Note: taking property in the belief that it’s yours or that you have a right to it is not common law larceny.
Under larceny you are in custody and embezzlement is possession.
Larceny by trick is when consent is granted through misrepresentation.
Larceny by conversion – had lawful acquisition and then intended to steal it.
Abandoned property no larceny, loss or mislaid property look for clues.
Wrongful conversion of property of another, by a person in lawful possession. Entrustment and look at the relationship. Employee/Employer lower level will be larceny. Manager would be possession.
Obtaining title to the property of another by an intentional false statement made with the intent to defraud.
The trespassory taking and carrying away of personal property of another from the person or presence by force of threats, with specific intent to permanently deprive.
Blackmail – Obtaining property from another with consent by means of intimidation which is of a lesser degree that that required of robbery
Receipt of Stolen Goods
Must receive possession and control of stolen property AND have knowledge that property was criminally obtained. If it is no longer stolen meaning the police had it then it is not considered stolen.
Making or altering of a false writing with intent to defraud
Malicious destruction of or damage to the property of another
Offenses Against the Habitation
Common Law – Requires a breaking and entering of the dwelling house of another in the nighttime with the specific intent to commit a felony therein.
Breaking (either actual (involving force) or constructive (threat or fraud))
Entering (any part of body crosses into dwelling, can be tool)
Dwelling house of another – Can be barn, garage called curtilage, immediately surrounding house
Specific Intent to commit felony (not borrow items inside, at that time)
Modern Law – Trespassory/unlawful entrance in any structure with the intent to commit a crime required by majority of the jurisdictions
Common law arson is: the malicious burning and charring of the dwelling house of another.
Each part must be satisfied:
Burnings – Charring required not just blackening
Malice – Reckless/Wanton Conduct not specific intent
Dwelling – Someone else’s dwelling house – not your own
Modern Law – Insurance fraud and any structure.
Duress is a defense.
Person who aids or encourages before, during a crime. Mental State – Intent to aid or encourage. Knowledge assist, intent. Common Law – Liable for all crimes Modern – No
Common Law – Person that are not actually present when crime is committed.
Accessory before the fact – person who aids or encourages but is not present. Knowledge assist, intent. Common Law – Liable for all crimes Modern – No
Accessory after the fact – person who aids after the crime. Knowledge assist, intent. Common Law – Liable for all crimes Modern – No
Modernly- Person who aids another knowing that he has committed a felony for the purpose of escaping arrest, trail or punishment. Knowledge assist, intent. Common Law – Liable for all crimes Modern – No
Common Law: Communicated to all effectively and timely.
Modern Notify authorities or crime is preventable.
Factual impossibility – no defense. No – legal impossibility – valid defense.
A substantial act towards preparation of an intended crime
S – Specific Intent
L – Legal (no attempt) v factual impossibility
A – Apparent Liability
P – Preparation v perpetration – substantial step towards the crime
Defenses for Attempt
Majority – no effect if the zone of preparation entered. MPC – allowed if voluntarily and successful.
Never a defense. D starts to commit the crime but it is factually impossible to complete the crime. Unknown factors make result impossible (go to steal wine not there)
Always a defense. D’s conduct even if carried out would not constitute a crime. Thought it was a crime but was not a crime.
Intent to induce another to commit a crime
Commits when D asks.
Will merge with attempt, conspiracy or target offense.
Solicitor can be held liable for crime solicited if solicitee actually commits the target offense
Cannot be punished for both solicitation and the crime, if merge than the crime only
No merger if solicitee takes no step in furtherance of solicitation
Defenses for Solicitation
Withdrawal – once solicit cant withdraw but limits the accomplice liability. MPC – it must be complete and voluntary abandonment of criminal purpose.
Conspiracy is an agreement between two or more persons to commit a crime with the specific intent to commit that crime. Also by conduct.
Overt Act (Majority Rule – any little act will do) (Minority and Common Law Rule – you only need an agreement)
Pinkertons Rule – Each conspirator is liable for crimes committed by other conspirators if 1) the crimes are in furtherance of the conspiracy; and 2) they are foreseeable.
Wharton Rule – When a crime by its nature requires more than one party, a conspiracy can only be accomplished when at least one additional party is participating in the agreement. (i.e. Adultery, dueling, bribery, drug dealing).
Feigned Agreement – Only one guilty mind no conspiracy. Unilateral Theory – Under the modern penal code defendant is guilty of conspiracy if he believes he entered into a conspiracy.
Impossibility is no defense to conspiracy
Withdrawal- CL – Not a defense, MPC – Communicate to all conspirators, timely and effective, or anything to avert the crime.
Allowed to use amount of force reasonably necessary (reasonably neccessary) to prevent attack.
Majority – No requirement that defendant retreat before using deadly force
CL and Minority – Required D retreats before using deadly force in self defense
Only reasonable force not deadly force
Defense of Others
Deadly Attack, special relationship – wife, child ect
Majority – No relationship required
Minority – Step in the shoes and can use same force
Relationship and no deadly force and step into the shoes of the victim
Defense of Property
Limited to home , must be have reasonable belief of that a felony or harm intended
Non deadly force
Request to desist required unless futile
CL – Deadly force to prevent perpetration of felony
Modern – Deadly force limited to present public danger, Police can use it.
Non deadly force to prevent crime/felony
M’Naghten Test: Right/Wrong Test – did not know what he was doing wrong
Irresistible Impulse Test: Inability to control conduct
Model Penal Code: Lacks the substantial capicity to confirm his conduct to the law or appreciate the wrongfulness of his conduct
Durham Rule: Conduct was due to mental illness
As a result of mental defect. Limited to specific Intent crimes
Voluntary intoxication: only a defense to specific intent crimes
Involuntary intoxication: form of insanity and is defense to all crimes
Mistake of Fact
Did D lack the mens rea for the crime
Malice/General Intent Crime – mistake must be reasonable (RP test)
Specific Intent Crimes – Mistake be reasonable. (RP Test)
Strict Liability Crimes – Mistake no defense
Mistake of Law
Generally, it is not a defense that the defendant believed that her activity would not be a crime, even if that belief was reasonable and based on the advice of an attorney.
Exceptions: the statue proscribing her conduct was not published or made reasonably available prior to the conduct, there was reasonable reliance upon a statue or judicial decision, or in some jurisdictions, there was reasonable reliance upon official interpretation or advice.
Mistake of Law May Negate Intent – if defendant is mistaken as to a collateral law, usually civil.
D reasonably believed that another would imminently harm him or a family member if he did not commit the crime. Duress will not excuse a homicide, but does excuse arson.
Defense if negates some element of the crime
Never a defense to felony unless minor assault or battery
Majority – Predisposed to commit the crime.
Minority – Look to police activity, did they induce the crime that they were not going to commit.
Police – Non Deadly force – If reasonably necessary to arrest. Deadly Force – Only to prevent escape of felon who threatens human life.
Private Person – Non Deadly force – if crime in fact committed and reasonable belief that this person committed it. Deadly Force – Only to prevent escape of person who actually committed felony and who threatens human life.