CRIMINAL LAW LANGDELL CHART- MOSES

TOPIC MPC CL TPCMens Rea § 2.02:

- purposely- knowingly- recklessly- negligently

-Specific Intent- General Intent- Criminal Negligence- Malice-Knowledge- Willfulness-Strict Liability- Vicarious Liability- Motive- Transferred Intent

§6.02a:-intentional-knowing-reckless-criminal negligence

Intoxication and Mens Rea

§2.08:- any form of intoxication is a defense if it negates an element of the offenseBUT: if reckless is the charge, intoxication is not a defense if D would have known the consequences of his actions when sober

Generally is not a defense regardless of intent required.-BUT: may be a defense against the specific intent element of a crime

§8.04:- is not a defense- may be used for mitigation

Mistake of Fact §2.04: - mistake is a defense if it negates the mental state required to establish any element of the offense

Specific intent crime: is exculpatory if it negates the specific intent req’tGeneral intent crime: is exculpatory if it negates the actor’s moral culpability and actor honestly and reasonably believed the mistake

§8.02:- mistake must be reasonable (use the Reasonable Ordinary Prudent Person standard)

Moral Wrong doctrine §2.04:- doesn’t follow the moral wrong doctrine

Follows the moral wrong doctrine

§8.02:- doesn’t follow the moral wrong doctrine

Legal Wrong doctrine §2.04:- follows the legal wrong doctrine, and actor is guilty of the lesser crime

Follows the legal wrong doctrine, and the actor is guilty of the higher offense

§8.02:- follows the legal wrong doctrine, and the actor is guilty of the lesser offense

Mistake of Law §2.04:- Is a defense if it negates the mental element required

Not a defense- everyone is presumed to know the law

§8.03:- generally is no defense- affirmative defense: reasonable mistake of law based on reasonable reliance of an official statement or interpretation of law

Strict Liability §2.05: Follows for both jail and §6.02b:

-Only for non-jail offenses

non-jail offenses -Penal code recognizes that the legislature may define crimes in a way the dispenses with any mental element

Legality Doctrine (this is definitional- no difference between MPC, CL, and TPC)

In order for an act to be criminal, it must be stated as such in the law (just because an act is immoral doesn’t mean its criminal)

3 prongs:1. criminal statutes should be understandable to ROPP2. criminal statutes should be crafted as to not delegate basic policy matters to cops, judges and juries for resolution on an ad hoc basis3. judicial interpretation of ambiguous statutes should be biased in favor of the accused (rule of lenity)

- bill of attainder (this is definitional- no difference between MPC, CL, and TPC)

- special legislation declaring a specific person to be guilty of a crime and subject to punishment w/o either a trial or conviction

- ex post facto law (this is definitional- no difference between MPC, CL, and TPC)

- Criminalizes behavior/action that has already occurred

ACTUS REUS“Voluntary” requirement”

2.01: requires a voluntary act, omission, or criminal conduct2.011: for violations punishable by fine or civil penalty, a judge must first determine that the act is consistent with law defining the offense

Must be a voluntary act 6.01: person commits an offense only if he voluntarily engages in conduct (including an act, omission or possession)knowledge = 1. knowledge of the mere thing itself, not the actual properties of it, or 2. knowledge of the actual nature of the thing

Omission to Act: always must have a legal duty before can have an omission to act

- neither CL, MPC, or

to result in criminal liability it must be proved that: 1. the conduct of the accused in failing to act was accompanied by

Only time omission to act is a crime is when you create the risk- then you may have a duty to rescue

to result in criminal liability it must be proved that: 1. the conduct of the accused in failing to act was accompanied by the

TPC impose a criminal duty to rescue in a situation to which you are a stranger

the requisite mens rea 2. that the accused was aware of the facts giving rise to the duty to act 3. that the accused owed a legal duty to the victim 4. a causal relationship between the omission and the result 5. that performing the duty was possible

Legal duty:1. the status relationship of the parties2. the particular fact situation3. by statute or law4. by contract

requisite mens rea 2. that the accused was aware of the facts giving rise to the duty to act 3. that the accused owed a legal duty to the victim 4. a causal relationship between the omission and the result 5. that performing the duty was possible

Legal duty:1. the status relationship of the parties2. the particular fact situation3. by statute or law4. by contract

Possession 2.01(4): one is liable for the voluntary act of acquiring possession and for the failure to dispossess oneself of the property

Possession: to have a voluntary act, one must have knowledge/awareness of the position or control

6.01b: possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate control

Punishment Capital offenses= death penaltyFelonies & misdemeanors established by: 1. type of incarcerating institution 2. length of sentence imposed

Treason: (a felony; only comes up during war times) - determined by nature of wrongFelony: determined by the penalty providedMisdemeanor: determined by the penalty provided

Ch. 12:Capital offenses: death penalty (or life in prison without parole)Felonies & misdemeanors established by: 1. type of incarcerating institution 2. length of sentence imposed

Misprision of a Felony Requires a positive act of concealment of info from the authorities rather than imposing a duty to volunteer info

If you witness a felony and don’t try to stop it (or at least report it if getting involved were unsafe), this is a crime

Doesn’t existArt. 6701d: can punish for failure to stop and render assistance when one is driving and injures someone- also failure to report

child abuse when have knowledge abuse is occurring

OFFENSESCriminal Homicide 1. Murder

2. manslaughter:1. Murder: the killing of a human being w/malice aforethought2. Manslaughter: adequate provocation/criminal neglicence

1. murder2. manslaughter3. criminally negligent homicide

- murder 210.2(1): murder: person is guilty of murder if he unjustifiably and inexcusably takes the life of another person purposely, knowingly, recklessly or negligent210.2(1)(b): felony murder: extreme recklessness is npresumed if the homicide occurs while the actor is engaged in one of felonies specified in the statute - must be done in manner that manifests an extreme indifference to the value of human life

Intent to kill murder: have to prove:1. natural and probable consequences rule: you intend the natural and probable consequences of your actions2. deadly weapons rule: can infer intent to kill when X intentionally points a deadly weapon at YWillful, deliberate, premeditated killings: intentionally, purposefully, and planned actsDepraved heart murder: occurs when a person’s conduct shows an extreme indifference to the value of human lifeFelony murder: person is guilty of murder if she kills another person during the commission or attempted commission of any felony 2 requirements: 1. must be a close proximity in terms of time and distance between the felony and the homicide 2. causation requirement: but for the felony, the homicide wouldn’t have happened

19.02: murder: intentionally or knowingly causing the death of another19.02b3: felony murder: if one commits/attempts a felony and in furtherance of the felony commits an act clearly dangerous to human life that causes the death of an individual19.03: capital murder: 1. cop/firefighter will involved in official duty 2. killing someone while committing a kidnapping, aggravated sexual assault, burglary, etc. 3. 4.killing someone while escaping from jail 5.killing someone while in jail 6. killing more than 1 person either during the same crime or in a series of similar, repeated crimes 7. killing a child under the age of 6

- manslaughter 210.3(1): An intentional homicide 19.04: a person commits

1.recklessly kills another, or2. kills another under circumstances that would ordinarily constitute murder, but which homicide is committed as the result of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse(much broader than heat of passion requirement)

committed in sudden heat of passion as the result of adequate provocation mitigates an offense to manslaughterElements:1. heat of passion2. adequate provocation- ROPP standard3. inadequate cooling time (and D didn’t cool off)4. causal connection

an offense if he recklessly causes the death of an individual

- negligent homicide 210.4: 3d degree felony A form of manslaughter (similar to involuntary manslaughter)

19.05: a person commits an offense if he causes the death of an individual by criminal negligence

(Human being) A fetus must be born alive

A fetus must be born alive

A fetus must be born alive

(Year and a Day rule) Doesn’t follow this rule For the D to be liable for criminal homicide, victim must die within a year a day of the act inflicting injury

For the D to be liable for criminal homicide, victim must die within a year a day of the act inflicting injury

Theft 223.1: consolidates all common law offenses into 1: Theft:223.2(1): theft occurs if a person “unlawfully takes” another’s property - doesn’t require the carrying away of the property- if the value of the property stolen is >$500, it is a felony, otherwise it’s a misdemeanor-MPC has different sections of theft: ie theft by unlawful taking, theft by deception, theft by extortion - but these are consolidated under theft definition

-Includes 3 offenses: Larceny, Embezzlement, False Pretenses-Larceny: a trespassory taking and carrying away of the personal property of another with the intent to permanently deprive the possessor of the property - is a conduct crime: once have taken something with this intent, the crime is completed - property must have been taken from the possession of another- doesn’t involve ownership or title - property that is mislaid is given more favorable treatment than

31.03: a person commits theft if he unlawfully appropriates property with intent to deprive the owner of the property- the offenses of false pretenses, conversion, embezzlement, and extortion, receiving or concealing stolen or embezzled property are consolidated under this statute- appropriation means w/o the owner’s effective consent-stolen property does not lose its character as stolen when recovered by any law enforcement agency- is the value of the property is >$500, it is a

- prop. Of another = property in which any person other than the actor has an interest: 223.0(7)- no difference in treatment of property mislaid or lost- Re: False promises: MPC prohibits deception regarding a person’s “intention or other state of mind”- 223.3(1) - however, can’t infer deception merely from the fact that the promisor didn’t deliver

property that is merely lost - CL: husband and wife couldn’t steal from each other- were 1 person - intent to deprive must be formed at time of taking- can’t take with intent to return, then later decide to keep and still be larceny - possession: sufficient control over property to use it in a reasonably unrestricted manner - the person stolen from must have had possession and not just custody - Bailor/bailee dilemma: ie a trucking company delivering goods for another company- the trucking co. is given possession of the crates, but the contents of the crate are only in the custody of the trucking company- once the truck driver opens the crates and steals the contents, he has committed larceny

-Embezzlement: the fraudulent conversion of personal property of another by a person in lawful possession - the D is entrusted with the property but intends to defraud - intent must be formed after lawful possession - if D intends to restore exact property taken, then no embezzlement

-False pretenses: obtaining title to personal property of another by an

felony, else it is a misdemeanor

intentional false statement of past or existing fact with intent to defraud the other - if victim is tricked into giving up title = false pretenses - if victim is tricked into giving up mere possession = larceny by trick - misrepresentation must be major factor in victim passing title to D - false promise (future) does not equal false pretenses

-Rape 213.1(1): a male is guilty of rape if acting purposely, knowingly, or recklessly, he has sexual intercourse with a female under any of the following situations: 1. the female is under 10 years of age 2. the female is unconscious, 3. he compels the female to submit by force or by threatening her or another person with imminent death, grievous bodily harm, extreme pain, or kidnapping, 4. or he administers or employs drugs or intoxicants in a manner that substantially impairs the female’s ability to appraise or control her conduct-a wife can’t be raped by her husband unless the parties are living apart under a formal separation decree-is a 1st degree felony-can’t prosecute a rape

-carnal knowledge of a woman forcibly and against her will- wife can’t be raped by husband- at CL, is a general intent crime- requires resistance by the victim and force by the assailant-fraud in the inducement is not an offense: doesn’t matter that victim was tricked into having sex- consent is consent-fraud in fact is an offense: vitiates consent b/c victim doesn’t know what’s going on-if the D entertained a genuine and reasonable belief that the female voluntarily consented to intercourse, then this is a defense-at trial, testimony of the victim was sufficient to uphold a conviction- no need for corroboration

22.011: a person commits sexual assault if the person intentionally or knowingly causes penetration of the anus, or female sexual organ, or mouth of another person by any means without that person’s consent- occurs by force, by threatened use of force, the D knows the victim has a mental defect and can’t consent, victim is unconscious, D has administered drugs or intoxicants etc-fraud in fact is an offensestatutory rape: 22.011(a)(2): is a sexual assault if the actor intentionally or knowingly causes the penetration of the anus, mouth, or female sexual organ of a child under the age of 17 by any means

22.021: aggravated sexual assault: this is an offense if the person intentionally or

case if the victim didn’t notify the authorities within 3 months following the rape

knowingly causes a sexual assault and if the person causes serious bodily injury or death to the victim in the course of the same criminal episode, or puts the victim in fear of death or serious bodily injury, or kidnapping - also a sexual assault will be an aggravated sexual assault without severe injury, death, or threats, if the victim is under the age of 14 or over the age of 65

-Assault -an attempt to commit a battery, or the intentional creation of reasonable apprehension of imminent bodily harm-also an attempted battery

22.01: a person commits an assault if he intentionally, knowingly, or recklessly causes bodily injury to another, threatens another person, or just causes physical contact to another person whom the D knows will find the contact offensive. -this includes spousal abuse-combines assault and battery22.02: aggravated assault: a person commits this offense if the person commits assault and causes serious bodily injury to another, or uses or exhibits a deadly weapon during the assault.-a mere threat of use of a deadly weapon is an aggravated assault

-Battery -an offensive or harmful touching with mental state (intent to injure or criminal negligence)

-same as assault

-Burglary BrEADNIFe:Breaking and

30.02: a person commits burglary if, without the

Entering Another’sDwelling atNight withIntent to commit aFelony

effective consent of the owner, the D enters a habitation or building not open to the public, with intent to commit a felony, theft or an assault-entering means with any part of the body or any physical object connected with the body

-Robbery -is a taking of personal property of another from the other’s person or presence by force or threats of immediate death or physical injury with the intent to permanently deprive

robbery = larceny + assault- the theft need not be completed

29.02: a person commits robbery if, in the course of committing a theft and with intent to obtain or maintain control of the property, he intentionally, knowingly, or recklessly causes bodily injury to another, or intentionally threatens or places another in fear of imminent bodily injury or death29.03: aggravated robbery-robbery + serious bodily injury or death, or use or exhibition of a deadly weapon

DEFENSES- [affirmative defense: an outside reason why the D, even though the Prosecution has proved its case, shouldn’t be held criminally liable for the crime… ie insanity- must be pled in D’s original answer or will be forever waived- For TX, defenses which are affirmative defenses are specifically stated in the TPC]-failure of proof defenses: one that the D introduces at his trial showing the Prosecution has failed to prove an

essential element of the offense-justification defense: deals with conduct which otherwise would be criminal, but under current circumstances is socially acceptable and undeserving of criminal liability… ie self-defense- excuse defense: despite the fact that the D has committed an illegal act, he shouldn’t be blamed for it…ie insanity, involuntary intoxication-specialized defenses: crime- specific (are specified in the statute after the crime)-extrinsic defenses: reason external to the D’s crime, for which the D shouldn’t be convictedie statute of limitations, diplomatic immunityINSANITY - Substantial capacity

test: 4.01- D is not criminally responsible if, as a result of mental disease or defects, he lacks substantial capacity to either: 1. appreciate the wrongfulness of his conduct 2. or conform his conduct to the requirements of the law

-only required proving that D had a mental disease or defect which caused him to commit a crime

8.01: is an affirmative defense if the defendant, as a result of severe mental disease or defect, did not know his conduct was wrong

-Other tests currently in use in US: 1. Durham Rule (product test): the unlawful act was the a. product (D would not have commited the act but/for the disease or defect) b. of mental disease

or defect

2. Federal Test: D lacks appreciation of: a. nature and quality of her conduct, or b. wrongfulness of her conduct

3. Irresistible Impulse: D wouldn’t control his conduct even though he knew what he was doing was wrongDiminished Capacity: usually for mitigation- person not legally insane but still mental dysfunction

4.02(1): if, due to a mental impairment beyond his conscious control, the D lacked the capacity to entertain the very culpability which is indispensable to his criminal responsibility in the 1st instance, he can’t be declared guilty

No diminished capacity 8.04: used in the case of intoxication leading to temporary insanity - only used for mitigation

Duress: an excuse defense- used when the threat is human

2.09: is an affirmative defense to unlawful conduct by D if: 1. she was compelled to commit the offense by the use or threatened use of unlawful force by the coercer or another, AND 2. a person of reasonable firmness in her situation would have been unable to resist the coercion

- not available if the D recklessly placed herself in a situation in which it was likely she would be subjected to coercion

No one is privileged to cause the death of an innocent person in order to save their own life- Otherwise, elements: 1. another person threatened to kill or grievously injure the D or 3d party unless he committed the offense 2. actor reasonably believed the threat was genuine 3. threat was present, imminent, and impending at time of criminal act 4. no reasonable escape from threat except through compliance 5. not D’s fault for exposing himself to the threat

8.05: is an affirmative defense- for felonies: if actor did the act b/c he was compelled to do so by threat of imminent death or serious bodily injury to himself or another- for misdemeanors: if D did act b/c he was compelled to do so by force or threat of force

Necessity: a justification defense- typically used with

3.02: - a person’s conduct is justified if:

-not in England, but in US-elements

9.22: same as MPC:- a person’s conduct is justified if:

natural or physical threat

-a.k.a.: choice of 2 evils: person must reasonable believe that the commission of the crime was necessary to avoid an imminent and greater injury to society than that involved in the crime

1. he believes his conduct is necessary to avoid harm to himself or another 2. harm to be avoided is greater than that sought to be avoided by the law prohibiting his conduct, AND 3. no legislative intent to exclude the conduct in such circumstances plainly exists

-for MPC, this defense is not limited to natural threats

1. D must be faced with a clear and imminent danger 2. D must expect, as a reasonable person, that his action will be effective in abating the danger that he seeks to avoid 3. must be no effective legal way to avert the harm 4. harm D will cause must be less serious than the harm he seeks to avoid 5. D must have clean hands

1. he believes his conduct is necessary to avoid harm to himself or another 2. harm to be avoided is greater than that sought to be avoided by the law prohibiting his conduct, AND 3. no legislative intent to exclude the conduct in such circumstances plainly exists

Self-defense 3.04: a person is justified in using force upon another if he believes such force is immediately necessary to protect himself against the exercise of unlawful force by the other on the present occasiondeadly force: only can be used when in fear of death, serious bodily injury, forcible rape or kidnappingRetreat: can’t use deadly force if he knows he can avoid using it by retreating

-nonaggressor is justified in using force upon another if he reasonably believes that such force is necessary to protect himself from imminent use of unlawful force by the other persondeadly force: can only use deadly force in cases when the D reasonably believe force would be used-Generally no retreat required - BUT, MODERN TREND: must retreat if you know you can - exception: Castle Doctrine: don’t have to retreat, if attacked in your dwelling or business, even if you could have safely done so

9.31: follows the common law:- nonaggressor is justified in using force upon another if he reasonably believes that such force is necessary to protect himself from imminent use of unlawful force by the other person- not justified: 1. in response to verbal provocation alone 2. to resist an arrest or search by a peace officer 3. if D consented to the force 4. if D provoked the force 5. if D sought a discussion with another person about their differences and the D was illegally carrying a weapon

Defense of others 3.05: justified if:1. D uses no more force than that which D would use for self-defense2. step into the intended

Had to have a special relationship with the other person

9.33: justified if1. justified under self-defense and 2. D reasonably believes his intervention is necessary for the third

victim’s shoes - what D reasonably believes the intended victim would do3. D believes her intervention is necessary for the intended victim’s protection

party’s protection

Defense of property: right to protect your property from disposition

Defense of habitation:

Combines defense of property and defense of habitation: - 3.06(1)(a): person may use non-deadly force to prevent a trespass upon land, or to prevent the carrying away of personal property if he believes: 1. the other person’s interference with the property is unlawful 2. the intrusion affects property in the actor’s possession, AND 3. nondeadly force is immediately necessary

-3.06(3)(d)(i): deadly force prohibited except in 2 ways:A. Dispossession of a dwelling: a person may use deadly force on an intruder if he believes that… 1. the intruder is seeking to dispossess him of the dwelling 2. the intruder has no claim of right to possession of the dwelling, and 3. such force is immediately necessary to prevent dispossession

B. Prevention of Serious property

Defense of property: Nondeadly force may be used to defend property in one’s possession from unlawful interference, only if request to desist or refrain from activity would not suffice

Defense of habitation: may use deadly force if he reasonably believes such force is necessary to prevent an imminent and unlawful entry of his dwelling - no deadly force if its known there is no threat of bodily harm

Combines defense of property and defense of habitation: 9.41:a. if in lawful possession, person is justified in using force the D reasonably believes is immediately necessary to prevent or terminate the other’s trespass on the land or unlawful interference with the propertyb. if unlawfully dispossessed of land or property D is justified in using force against the other when D reasonably believes the force is immediately necessary to re-enter the land and recover the property if the D uses the force immediately or in fresh pursuit after the dispossession, AND 1. D reasonably believed the other had no claim of right, AND 2. the other accomplished the dispossession by using force, threat or fraud against the D

9.42: deadly force:- person is justified in using deadly force in protection of property to the degree he reasonably believes the deadly force

crimes: A person may use deadly force upon another, inside a dwelling or anywhere else, if he believes that: 1. the other person is attempting to commit arson, burglary, robbery, or felonious theft or property destruction 2. such force is immediately necessary to prevent commission of the offense, and either 3a. the other person previously used or threatened to use deadly force against him or another person in his presence, or 3b. use of nondeadly force to prevent commission of the offense would expose him or another innocent person to substantial danger of serious bodily injury

is immediately necessary to prevent the other from committing or fleeing after committing arson, burglary, robbery, aggravated robbery, theft during nighttime, and he reasonable believes it can’t be protected by any other means or not using deadly force would put D at risk of death or serious bodily injury

- Spring Guns (Mechanical devices)

3.06(5)(a): prohibits the use of a mechanical device to protect property if it is intended to cause, or is known by the user to create a substantial risk of causing death or serious bodily injury

May be used where the intrusion is, in fact, such that the person, where he present would be justified in talking the life or inflicting the bodily harm with his own hands

9.44: may use a device to protect land or property if 1. it’s not designed to cause, or known by the actor to create a substantial risk of causing death or serious bodily injury, and 2. use of the device is reasonable under circumstances

BURDENS OF PROOF- Burden of production: Can shift from Plaintiff to Defendant depending on point in trial- Prosecution has burden of proving beyond a reasonable doubt each element of the crime

charged- Defendant has burden of producing any evidence regarding affirmative defenses- Burden of Persuasion: the party who has this burden bears the risk of failing to convince the jury that her factual claim is trueINCHOATE CRIMES -all inchoate crimes are specific intent crimes- those which are not completed or carried through- Attempt:

-7 Attempt tests:1. Last proximate act: nothing else to do but final act2. Physical proximity: geographical closeness3. Dangerous proximity: geographic or time4. Indispensable element: that keeps D from doing the act, something that D needs to do but doesn’t have control over it yet5. Probable desistance: probability that D would stop or that D would change his mind6. Equivocality/res ipsa: the act speaks for itself7. Substanital step: substantial step in committing the crime

-Defenses: (factual impossibility is not a defense)1. Legal impossibility: D did everything he needed to do to complete the crime, but he couldn’t

5.01: Substantial step testD is guilty of attempt if1.D’s purpose is to commit the target offense and2. conduct constituting a substantial step toward the commission of the offense

- must have mens rea to complete the crime or cause the result

-only recognizes the defense of abandonment5.01(4): abandonment: person is not guilty of an attempt if1. she abandons her effort to commit the crime or prevents it from being committed and2. her conduct manifests a complete and voluntary renunciation of her criminal purpose

- An overt act performed with intent to commit a crime that falls short of completing the crime(must have committed an act beyond mere preparation)

- is a misdemeanor regardless of nature of offense sought to be committed

15.01:-definition: a person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation but fails to effect the commission of the offense intended

-punishment: 15.01(d): 1 category lower than the offense attempted

-defense:15.04(a): renunciation defense:- it is an affirmative defense that with a 1. complete and voluntary renunciation of his criminal objective, the actor 2. abandoned his criminal conduct or took action to prevent the commission of the offense

complete the crime for a legal reason, this is a defense - ie trying to murder a dead person

2. abandonment (or renunciation): most modern courts allow exculpation if actor voluntarily abandons criminal intent before any harm is done

-Solicitation 5.02(1): a person is guilty of solicitation if1. actor’s purpose is to promote or facilitate the commission of a substantive offense, and2. with this purpose, he commands, (etc) another person to engage in conduct that would constitute a crime

-applies to all crimes-can have an attempted solicitation

-defense: 5.02(3): “renunciation of criminal purpose” occurs if1. the actor completely and voluntarily renounces his criminal intent, and2. persuades other party not to commit the crime or prevents them from doing so

-Occurs when a person invites, requests, commands, hires, or encourages another to commit a crime (only applies to felonies and serious misdemeanors)

-solicitation is a misdemeanor-don’t have to actually do anything towards the crime and other person doesn’t have to agree-no solicitation occurs if solicitor intends to commit the crime himself only

15.03: a person commits an offense if, with intent that a capital felony or felony of the first degree be committed, he requests, commands, or attempts to induce another to engage in conduct that would constitute a felony

-punishment: 1 degree lower than crime that would have been committed

-defense: 15.04b: renunciation defense: it is an affirmative defense that 1.under circumstances manifesting a voluntary and complete renunciation of his criminal objective, 2. the actor countermanded his solicitation before the commission of the offense and 3. took further affirmative action that prevented the commission of the offense

NOTE: TX has a separate section for criminal solicitation of a minor: 15.031

- Conspiracy 5.03(1): D is guilty if he1. agrees with other people that they or one of them will engage in conduct that constitutes a crime or an attempt or solicitation of such crime, or2. agrees to aid another person in planning or commission of such crime

-punishment: same degree as the actual crime

-1.07(1)(b): person can’t be convicted and punished for both conspiracy and the object of the conspiracy

- must have an actual act

defenses- 5.03(1): no defense b/c all need is an agreement and an attempt

MULTIPLE PARTY SITUATIONS:5.03(2): if a person guilty of conspiracy knows a person with whom he conspires to commit a crime has conspired with others to commit same crime, he is guilty of conspiring with all of these even if he doesn’t

-an agreement by 2 or more people to commit a criminal act or series of criminal acts

- is a misdemeanor- only needed an agreement to convict (no act required)- doesn’t merge into the offense (can have 2 separate charges)

-defenses: factual and legal impossibility

MULTIPLE PARTY SITUATIONS: 2 typesChain relationship: a single, large conspiracy in which all parties are interest in a single large scheme, all members are liable for the acts of othersHub and spoke: (think of a wheel): if a number of independent conspiracies are linked by a common member, the hub is liable for all the spokes but each spoke is not liable for the other spokes

15.02: 1. D agrees with 1 or more people that they or one of them will engage in conduct constituting an offense, and2. D or another party performs an overt act

-can infer an agreement constituting a conspiracy from the acts of the parties-this offense is 1 degree lower than the actual crime to be committed

-defense: 15.04b: renunciation defense: it is an affirmative defense that 1.under circumstances manifesting a voluntary and complete renunciation of his criminal objective, 2. the actor withdrew from the conspiracy before the commission of the offense and 3. took further affirmative action that prevented the commission of the offense

-5 things not defenses: 15.02c:1.1 or more of the co-conspirators is not criminally responsible for the object offense2. one or more of the co-conspirators has been acquitted, so long as 2 or more co-conspirators

know their identity have not been acquitted3. 1 or more of the co-conspirators has not been convicted of a different offence, or is immune to prosecution4. the actor belongs to a class of persons that by definition of the object offense is legally incapable of committing the object offense in an individually capacity, or5. the object offense was actually committed

-TPC is silent re: Multiple Party situations

-- Wharton’s Rule re: Conspiracy:

-doesn’t recognize - CL created Wharton’s rule- RULE: if a crime takes 2 to do, then there is no conspiracy2 EXCEPTIONS:1. 3d party: if more than the minimum number of people necessary to commit an offense agree to commit the crime, can still charge all with conspiracy2. 2 person rule: if the 2 people who conspire are not the same 2 who commit the crime, can still charge all with conspiracy

ex. Adultery, dueling

Silent

PARTIES 2.06:-all such parties to the crime can be found guilty of the principal offenseAccessory at the fact = principal in the second degreeAccomplice 2.06(3)(a): person is an accomplice in the commission of

Principal: perpetratorAccessory:- accessory b/f the fact: one who did not do the act, but counseled or commanded it, or assisted with guilty knowledge. Was not present at the crime- Accessory at the fact: same as above except

7.01: parties to offenses:a. a person is criminally responsible as a party to an offense if the offense is committed by his own conduct or by the conduct of another for which he is criminally responsible- each party to an offense may be charged with

an offense, if with requisite mens rea, he1. solicits the principal to commit the offense2. aids, agrees, or attempts to aid principal in the planning or commission of the offense, or3. has a legal duty to prevent the commission of the offense-includes all principals and accessories b/f the fact but excludes accessories after the fact- a person could be charged with being an accessory without the principal being convicted of the crime

-accessory after the face: is still treated separately; punishment for this crime usually bears no relationship to principal offense- could even be higher

- 2.06(1): a person is guilty of an offense if he commits it by his own conduct or by the conduct of another person for which he is legally accountable - 2.06(2)(a): a person is legally accountable for the conduct of an innocent or irresponsible person if he1. has the mens rea sufficient for commission of the offense, and2. causes the innocent or irresponsible person

was present at the crime- Accessory after the fact: aided perpetrator to hinder apprehension, trial, conviction, punishment, etc. - aka protector

- principal had to be convicted b/f any accessories could be charged-rule of mandatory consistency: an accessory cannot be found guilty if the principal is found innocent

commission of the offense- NO DISTINCTIONS B/W ACCOMPLICES AND PRINCIPALS- EACH PARTY TO AN OFFENSE MAY BE CHARGED AND CONVICTED W/O ALLEGING THAT HE ACTED AS A PRINCIPAL OR ACCOMPLICE-7.02: criminal responsibility for conduct of another: a person is criminally responsible for an offense committed by the conduct of another if:1. acting w/mens rea required for the offense, he causes or aids an innocent person to engage in the offense2. acting w/intent to promote or assist the commission of the offense, he solicits (etc) the other person to commit the offense, or3. he has a legal duty to prevent commission of the offense, he fails to make a reasonable effort to prevent commission of the offense7.03: no defense that:1. the actor is legally incapable of committing the offense in an individual capacity2. or that the person for whose conduct the actor is criminally responsible has been acquitted

to engage in the criminal conduct-2.06(2)(c): a person is legally accountable for the conduct of another person if he is an accomplice of the other in the commission of the criminal offense

CAUSATION:a. “But/for” testb. Is act the proximate cause of the injury? i. cause in fact, and ii. legal causec. if so, then criminally liable

-if intervening cause is dependent or foreseeable, D is still liable-if an independent cause, harm must not be intended and the act must not be substantial contributing cause

Tests for exclusion (ways of saying not proximate cause)1. tests for exclusion (de minimus rule): the law doesn’t look at trivial things. If something is only a very small factor, it won’t be the proximate cause2. test for isolation: can D’s acts be isolated from the harm? If D has reached a place of apparent safety, the law won’t follow

Tests for inclusion:1. test of probability: How foreseeable was the result? Even though remote, if it is foreseeable, then it is proximate - an intended consequence is never

remote2. dependent intervening cause: if something is the natural occurrence of what the D sets in motion, the D’s liability won’t be cut off

-there is no contributory negligence in criminal cases-negative acts of victim are not superseding-positive acts of victim may cut off liability-medical malpractice will break chain of causation and become the proximate cause ONLY if it constitutes the sole cause-a series of natural consequences will not cut off liability-the law will not follow a cause after it reaches a point of apparent safety

REQUISITE INTENT FOR MAJOR CRIMES

SPECIFIC INTENT GENERAL INTENT MALICE STRICT LIABILITY-1st degree murder- solicitation- attempt- conspiracy- assault (attempted battery)- larceny-robbery-burglary- forgery- false pretenses- embezzlement

- battery- rape- kidnapping

- murder- arson- malicious mischief

- statutory rape

Specific intent: requires not only the doing of an act, but also the doing of it with a specific intent or objective

- cannot be inferred from doing the act- proof of specific intent is necessaryGeneral intent: a general awareness of all factors constituting the crimeMalice: intent to do actus reus of a crime without justification

- the intent necessary for malice crimes requires only a wanton and willful disregard of a strong likelihood of harm

VOLUNTARY V. INVOLUNTARY INTOXICATION

VOLUNTARY INTOXICATION INVOLUNTARY INTOXICATION- self-induced intoxicating substance w/o duress- only temporary episode of incapacity, but not mental illness

- taking substance (intoxicating) - w/o knowledge of its nature - under duress or fraud by another - b/c of medical advice while unaware of effect- may reach level of legal insanity

SAMPLE EXAM QUESTIONS

Essay questions:1. Billy Bob was concerned about a rash of thefts occurring around his neighborhood. “I’ll get anyone who tries to break in to my house,” he said. He set up a spring gun, connected to his back door.

To support his drug habit, Bubba has been stealing from homes that his drug dealer tells him to. Bubba goes to Billy Bob’s back door and sticks his head through the doggie door. He sees the spring gun and decides to leave. As he is backing out of the doggie door, Billy Bob comes out and points a gun at Bubba. After a heated argument, Billy Bob shot Bubba. However, the shot was deflected by Bubba’s lunch box, hitting Billy Bob’s son, Bobby Lou, killing him. Analyze this under the MPC, CL, and TPC.

Multiple-choice questions: 1. After escaping from Happy Acres, Carlton shot the cashier at his local Starbucks. He said he didn’t understand what the fuss was all about- “Starbucks multiply like rabbits- so slowing this couldn’t be wrong. My favorite maple tree told me to send a message to corporate America.” Carlton should use which insanity defense?

a. Durham Testb. M’Naughten Testc. Diminished Capacity Testd. Substantial Step Test

2. Insanity isa. an excuse defenseb. a justification defensec. an extrinsic defensed. an affirmative defensee. a and df. b and dg. a and ch. none of the abovei. a, b, c, and d

3. Drag-racing which results in 1 party’s death would be what crime at common law?a. reckless homicideb. criminally negligent homicidec. involuntary manslaughterd. manslaughter

4. Someone who helps a perpetrator hide stolen goods after the crime is an (under Texas law),a. accompliceb. accessory after the factc. principald. none of the above

5. While driving his Hummer drunk, Tito slams into Ike’s Miata, sending him to the hospital. While at the hospital, Ike’s doctor, Jiggity Jen accidentally spilled her slurpee on Ike’s paper cut he got earlier that day at work. This causes a severe infection, and Ike dies. Tito is liable under:

a. but/for causationb. proximate causationc. dependent intervening causation

d. no liability

6. Homer and Apu decided to steal parakeets from Mr. McConnaghey’s Naked Bongo Bar. They show up at dusk, throw a brick through the window, and wait for the parakeets to fly out, catching them as they come out. At common law, what are Homer and Apu guilty of?

a. burglaryb. larcenyc. false pretensesd. vandalism

7. Jay and Silent Bob conspire to kill Ben Affleck. They create an elaborate scheme involving rope, a wok, and a cow (Bessie). They get all their needed supplies, and show up outside Affleck’s apartment, waiting for him to come out. After a few minutes, Silent Bob decides he can’t go through with this. Silent Bob demonstrates to Jay that he can’t go through with the plan, grabs the rope and the wok, hops on Bessie, and slowly saunters away from Affleck’s apartment. Which jurisdiction should Silent Bob hope he lives in?

a. Texasb. Model Penal Codec. Common Law Jurisdictiond. Canada

8. Barney Fife was in the hospital for eating too many of Aunt Bea’s sweet potato pies in 1 sitting. His doctors put him on Vicadin after they pumped his stomach. Thinking he was flying, he hopped on a gurney and rode it to the end of the hall, crashing into Opie. Under the common law, what result for Barney?

a. guiltyb. guilty, but mitigated to a lesser sentence/crimec. not guilty d. not guilty by diminished capacity

9. Lucy convinced Ethyl to help her hide the jewelry she stole from Neiman Marcus. However, the cops found the hidden jewels anyway. Thanks to Lucy’s fabulous defense attorney, Lucy is acquitted. The prosecution is ready to go ahead with their case against Ethyl. Under common law, what result?

a. guilty, accessory after the factb. guilty, accessory at the factc. guilty, accompliced. not guilty

10. Kate was a roadie for Marilyn Manson. Her job was to cart around his stage makeup. Instead, one day she decided to sell it on Ebay. Under Texas Law, what is Kate guilty of?

a. embezzlementb. larcenyc. false pretensesd. theft

11. Jack sets up a spring gun attached to his front door designed to shoot spitballs at anyone who tries to break in. Under which jurisdictions is this allowable?

a. MPCb. CLc. Texasd. a and ce. none of the abovef. Canada

12. Bob the attorney lost his case- the jury didn’t believe his argument that his client was de-worming orphans in Somalia instead of robbing the local Piggly Wiggly in Sugarland. What burden did Bob fail to meet?

a. Burden of proofb. Burden of productionc. Burden of persuasiond. Burden of justification

13. On March 1, 2001, Elle shot Darcy. Darcy remained in a coma until March 1, 2002, when she dies. What can Elle be found guilty of under common law? (Pick the best one.)

a. murderb. attempted murderc. aggravated assaultd. manslaughter

14. Captain Von Trapp kidnaps a few nuns from the local Convent. Driving to his secret house in the mountains 6 hours away from the Convent, he runs over a singing woman dancing on a hilltop. Where would he be guilty of felony murder?

a. MPCb. CLc. Texasd. a and ce. a,b, and c

15. Curly is a valet for Sullivan’s. Mr. Gates, a customer, hands Curly the keys to his Porsche 911. Curly, taking the keys decides this valet job is for toadstools, and drives the car to his friend’s house in El Paso, where Curly decides to start a new life as a masseuse. For what is Curly guilty under common law?

a. theftb. larcenyc. larceny by trickd. embezzlement

16. Faith witnesses Garth pointing a gun at Tim and swearing to pull the trigger. She knows Garth well and he values her opinion. She does nothing. Is she guilty of a crime?

a. MPC= yes, CL= yes, TPC= yesb. MPC= yes, CL= yes, TPC= noc. MPC= yes, CL= no, TPC = nod. MPC= no, CL = yes, TPC = noe. MPC = no, CL = yes, TPC = yes

17. Congress is sick of Texans taking the law into their own hands. So, congress passes a law that declares that any Texan who carries a gun on his person or in his car will be guilty of murder and immediately put in jail for 40 years. Is this allowable?

a. Yes, Police powersb. No, bill of attainderc. No, ex post facto lawd. Yes, legality doctrine

18. Sydney is 5 months pregnant when Tully fell asleep at the wheel and accidentally crashes into her car, sending Sydney spinning into a ditch. Both Sydney and her baby are dead. For what is Tully guilty at common law?

a. Sydney’s deathb. Sydney’s baby’s deathc. bothd. neither

19. Bobby and Robby have a long history of hatred towards each other. Bobby finally decides he can’t take any more of Robby’s crap, so he decides to strangle Robby and dump his body in the river. He goes over to Robby’s house with some twine and a burlap sack. However, when he gets there, Bobby finds Robby already dead. He decides to strangle the body anyway. He is prosecuted for attempted murder. What defense(s) are available to Bobby under the MPC?

a. legal impossibilityb. factual impossibilityc. hybrid impossibilityd. all of the abovee. none of the above

20. Mario and Alberto are opposing mob bosses. They decide they need to have a duel. Each sends his “right-hand man” to the duel. What conspiracy result under MPC?

a. guiltyb. not guilty based on Wharton’s Rulec. not guilty under hub and spoked. guilty under chain relationship

True/False questions:1. The prosecution has the burden of negating a claim of an affirmative defense.2. Under the Model Penal Code, a man can rape a man.3. Texas considers the sexual assault of a child under 14 to an aggravated sexual assault.4. Under common law, if John comes to Jane’s rescue by killing someone, and John and Jane are strangers, John is not liable under the common law.5. MPC recognizes the Castle Doctrine.6. Someone can attempt to solicit.7. It is possible to physically hold something and still not have legal possession of it.8. If a statute is ambiguous, it should always be construed in favor of the plaintiff9. Neither the common law, the MPC, or the TPC impose a criminal duty to rescue in a situation to which you are a stranger.10.Duress is an affirmative defense in Texas