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(1) Plain meaning
(2) Rule of lenity: Courts will interpret a criminal statute in the light most favorable to the defendant
(3) Legislative history
A crime, whether common law or statutory, cannot be “void for vagueness.” A crime’s definition must give fair & adequate notice of what is a crime and must provide limits on police discretion to avoid arbitrary enforcement.
A voluntary act is required to constitute a crime. Bad thoughts or involuntary acts do not prove a crime.
a.Involuntary acts: include a convulsion or a reflex action
b. Omission: A failure to act is NOT sufficient UNLESS a legal duty to act is imposed. Legal duty to act imposed by:
3) Special relationship (i.e. Parent/child)
4) Creation of the peril
5) Voluntary assumption of a duty to act
c. Omission & awareness: For a duty to result from an omission, defendant must be aware of the fats giving rise to the duty.
d. Status Crimes: Bc of the voluntary act requirement, a statute making it a crime to be a drug addict is not valid. Status cannot give rise to a crime.
Each crime involves not only a voluntary act but also a certain mental state. MD uses both common law and model penal code mens rea requirements
- If a crime requires a lower mens rea, proof of a higher mens rea proves it
1. Specific intent: intent to commit the act and intent to commit the crime
2. Malice: Intentional or reckless disregard of an obvious or known risk. Used in murder & arson.
3. General Intent: The intent to commit the act but not necessarily the intent to commit any crime.
4. Strict liability: No mens rea required
1. Purpose: Actual desire or with intent
a. Willful blindness: A defendant who is willfully blind to the situation may be seen as satisfying the mens rea of knowledge
3. Recklessly:Conscious disregard of a substantial and unjustifiable risk; or wantonly.
4. Negligently:Gross negligence; failure to be aware of a substantial & unjustifiable risk
If the defendant had the required mens rea as to one victim, this mens rea is proven as to any other victim.
1.Exception: No transferred intent for attempts
2. MD Concurrent Intent: Very narrow exception in MD for attempts. If defendant shoots multiple bullets at one victim who defendant intends to kill, defendant may be guilty of attempted murder of another person inside the “kill zone”
Inducing, urging, commanding another to commit a felony with the purpose/specific intent that the other person commit the felony, and the other person does not commit the felony.
a. Actus reus: inducing, urging, commanding another to commit a felony
b. Mens rea: Purpose -->actual desire that the other purpose commit the felony. Specific intent.
c. Felony is NOT committed by the other person
- Rationale: If the other person commits the crime, D is guilty as a party to the crime
d. D's change of mind: Not a defense. Crime is complete once the solicitation is made
e. Impossibility of the other committing the crime is NOT a defense
f. Protected Class Exception: A person who is part of the class protected by the criminal statute (the victim) cannot be guilty of solicitation
g. Merger: Solicitation merges w/ the completed crime & w/ conspiracy
a. Actus reus: an agreement between two or more persons to accomplish a criminal or unlawful purpose, or to accomplish a lawful purpose by unlawful means (i.e. obtain mortgage by falsifying records)
1. Agreement:Need not be express. If two persons jointly commit a crime, an agreement can be inferred.
2. Common law & Maryland: NO overt act is required --> the agreement is the crime.
b. Mens rea: Specific intent. The purpose of the agreement is to achieve the objective of the agreement.
c. Strict liability crimes: requires specific intent
d. No Merger: D can be guilty of both conspiracy and the substantive crime
e. No need for one conspirator to know all the conspirators
f. Liability for crimes committed by co-conspirators: All conspirators are guilty of the substantive crimes committed by the other conspirators if such crimes were committed in furtherance of the objectives of the conspiracy and were foreseeable.
g. Withdrawal from the conspiracy: Requires an affirmative act that notifies all members in time for them to abandon their plans
- Effect: D not responsible for acts after withdrawal
h. Protected class exception: A person who is part of the class protected by the criminal statute (the victim) cannot be guilty of conspiracy.
i. Wharton Rule: If by definition, the substantive crime requires two persons, there is no crime of conspiracy to commit the crime unless additional persons agree.
j. Impossibility: (factual impossibility) is not a defense
a. Actus reus: an act beyond mere preparation -->two views on how much beyond:
(1) Traditional common law proximity test: Whether D came dangerously close to completing the crime.
(2) MPC Substantial Step: Whether D made a substantial step to completing the crime. MD uses substantial step test.
b.Mens rea: Specific intent/purpose to commit the substantive crime.
1. It is logically impossible to be guilty of an attempt to commit a crime that has the mens reas of negligence or recklessness
2. Strict Liability crimes: Specific intent required
c. Impossibility: Factual impossibility is NOT a defense
d. Abandonment: Not a defense. Once D with the required mens reas commits an act beyond mere preparation, abandonment is no defense.
1. MPC: Accepts abandonment as a defense to attempt if the abandonment is voluntary and not because of any difficulty in completing the crime
2. MD: Abandonment is NOT a defense
a. Actus reus: Unlawful application of force resulting in bodily injury or offensive touching.
b. Mens rea: General intent --> D just must intend the touching
c. Consent: valid defense (i.e.boxing, medical procedures)
a. MBE: Two definitions
(1)attempted battery; or
(2) intentional creation of reasonable apprehension of imminent bodily harm other than by mere words
b.MD: Assault includes common law battery -->harmful or offensive contact
c. Mens rea: Specific intent
Dismemberment or disablement of a body part
1. Death: either irreversible cessation of circulation & respiration or irreversible cessation of all brain functions
2. “Born alive”: The victim must be born alive in order for it to be a homicide.
a. If victim is born alive, but dies from a prenatal injury, it is homicide.
b. If victim is never born alive, crime is feticide
c. MD Rule: Exception to born alive rule. It is homicide if D attacks a pregnant woman with intent to kill unborn baby IF baby is viable at the time of the attack.
2. Mens rea: Depends on whether homicide is murder or manslaughter
Homicide with mens rea of malice aforethought
1. Malice: Can be proven four ways:
1. Intent to kill;
2. Intent to inflict great bodily harm;
3. Reckless indifference to an unjustifiably high risk to human life (abandoned, malignant,depraved heart);
4. Homicide during commission of a felony (felony murder doctrine)
A homicide that occurs during commission of certain felonies is murder.
a. The felony must be inherently dangerous (e.g. rape,kidnapping, robbery)
b. MD Statute lists felonies eligible for felony murder: MRS. BAKER
c. Felony must be independent of the killing
1. MBE: Assault cannot be the basis of felony murder
2. Maryland:Aggravated assault can lead to felony murder (rock case) (2nd degree felony murder)
d. Homicide must occur during commission of the felony
1. Escape: Is part of the felony. Commission of the felony is considered complete if felon reaches a place of safety
- Objective test: Whether a reasonable person would find he had reached a place of safety
e. NOT felony murder if the felony occurs AFTER the homicide.
a. MD/Majority Rule: If the homicide victim is killed during D’s commission of a felony by the police or the victim of the felony, D is not guilty of felony murder.
1. MD Hostage/Human Shield Exception: Dis guilty of felony murder if D’s act was the direct lethal act by using the victim as a “human shield” or placing the victim in a position of danger.
2. Killing by co-felon: Felon on the hook
3. Death of co-felon: If two persons commit a felony, and one of the felons is killed, co-felon is not guilty of felony murder bc the victim of the homicide must be an innocent person.
b. Proximate cause theory (minority rule): Felons liable for the deaths of innocent victims caused by someone other than the co-felon
c. Ds must be guilty of the felony to be guilty of felony murder
a. MBE: Most statutes cover murder by torture,poison, lying in wait, felony-murder, or if murder was premeditated &deliberate.
b. Premeditation:The decision to kill was made in a cool & dispassionate manner.
1. Deliberation:Requires the defendant to reflect on the decision to kill for “some appreciable period.”
c. MD Statute
2. Lying in wait
3. Premeditated & deliberate
4. MRS. BAKER felony murder
Any murder that is not 1st degree murder
a. MD: Also includes felony murder based on a felony other than MRS BAKER as long as the felony is “dangerous to human life”(assault case)
1. Involuntary manslaughter
a. Homicide by criminal negligence (gross negligence)
b. Misdemeanor manslaughter: A homicide committed during the commission of certain misdemeanors
c. MD: Unlawful act involuntary manslaughter (rather than misdemeanor-manslaughter):Junior varsity felony murder & unclear what it covers
2. Voluntary Manslaughter: Adequate provocation + heat of passion
a. The homicide was intentional, but D was provoked to kill by an event that would arouse a sudden & intense passion in a reasonable person.
1. Subjective AND Objective Test: D must actually be provoked, and a reasonable person would have been provoked.
2. MBE adequate provocation: Discovering spouse having sex with another person. MARYLAND: This is NOT adequate provocation, this is murder.
3. Inadequate provocation: Mere words is not enough.
b. No cooling off period
c. Imperfect self-defense: If D kills victim with an honest but unreasonable belief that victim was going to kill D, D guilty of voluntary manslaughter, not murder
D’s conduct must have caused the death
1. Year and a Day Rule: Causation not proven if victim does not die w/in one year and one day
a. MD REJECTS this rule, as do most states
2. Life support termination: Causation still proven
RULE: Causation is proven where victim’s death was the natural and probable consequence of the D’s act.
a. Sexual intercourse by force or threat of force and no consent
1. Sexual intercourse: any penetration by a penis into a vagina
2. Resistance not required
b. Threat must involve immediate, serious, bodily harm
c. Sex induced by fraud: Rape where the fraud involves the nature of the act rather than a collateral matter
d. Consent: Victim must be capable of giving consent in order to consent
- Mentally incompetent or drugged victims are incapable of giving consent
- Sex with an unconscious person is rape
e. Withdrawal of consent post-penetration: If V asks D to stop and he does not, guilty of rape
f. Husband and Wife
1. Common law view: said rape was legally impossible
2. Today: Most statutes change this for separated couples
3. MD Statute: Husband can be guilty of rape in 3 situations: separated for at least 3 months without a separation agreement, partial divorce decree, or separation agreement
Sexual intercourse with underage female
a.Consent is not a defense
b. Strict liability: D’s rx, honest belief that female is above age of consent is not a defense in most states, including MD.
Being married to more than 1 person at the same time
a. Strict liability: Honest, rx belief that1st spouse is dead or that divorce was valid is NOT a defense
Maryland statute covers larceny, embezzlement &false pretenses under the crime of theft
a. Covers services and improper use of another’s personal property, defined as anything of value.
b. Intent to deprive for any period of time(instead of permanently deprive)
a. Taking: Possession & control inconsistent with the rights of the true ownerb. Personal property
1. Services CANNOT be the subject of larceny
2. Real property cannot be the subject of larceny
3. Intangible: Not personal property
c. Of another
- Abandoned property cannot be the subject of larceny
- Stealing from someone who stole from another is larceny
- You can steal your own property if someone else has lawful possession of it
- Jointly owned property: Cannot be the subject of larceny by one of the joint owners
d. Asportation: Movement as part of the carrying away process
e. By trespass
f. Mens Rea: Specific intent to permanently deprive
- Joyriding not larceny bc no intent to keep the car permanently
- General Rule: Intent must exist at the time of the taking
- Exception: Continuing Trespass Doctrine: A wrongful taking w/ no intent to steal can be larceny if the intent is formed later
- D's subjective belief that the property belongs to him negates intent
- Taking of property to hold as security for a legitimate debt is not larceny
Fraudulent conversion of another’s personal property by a person in lawful possession of that property
a. Conversion means dealing w/ the property in a manner inconsistent with the trust arrangement by which D has been given lawful possession
1. No personal gain to D required (i.e.police officer still converts if he dumps confiscated bike in dumpster)
b. Fraudulent intent is equal to larceny's intent to deprive
c. Another's personal property: Same as larceny
d. Lawful possession: Unlike larceny, defendant has not trespassed. D has lawful possession of the property, usually as a result of employment
1) When you are dealing with theft by an employee, the answer choice will either be embezzlement or larceny2) If a low level employee who has control over the property for a limited period of time, it is larceny.
Obtaining title to another’s property by making a false statement of past or present fact with specific intent to defraud the other person, and reliance by the other person.
a. Obtaining title: If D only obtains possession, the crime is larceny. It D obtains title, it is false pretenses.
1. Payment of cash = transfer of title
b. False statement of past or present facts: An opinion or prediction of what will happen in the future does NOT prove false pretenses
c. Reliance: Need not be reasonable
d. Specific Intent: D's purpose in making the false statement was to defraud the other person. D must know that the statement was false.
Larceny by force or threat of force
a. Force or threat of force must be the reason why victim handed over his property
1.Pickpocketing & purse snatching are not robbery
b. Threat: If robbery is based on a threat, it must be immediate death or serious injury to the victim, the victim’s family member, or a person in victim’s presence.
1. A threat to damage victim’s property is NOT sufficient except if it is a threat to destroy the victim's house.
2. Fear must be reasonable.
c. Force or threat of force to achieve escape will prove robbery
d. Merger: D cannot be guilty of both larceny and robbery
Obtaining property of another by threat of violence or threat of economic harm to victim or another.Threat need not be of immediate harm.
a. A threat to file a civil lawsuit, even if frivolous, is not extortion.
b. A threat to bring a criminal charge unless money is paid is extortion.
a. Breaking:requires the use of force to gain entry. Ex: knocking down a door, opening a window
1. Constructive Breaking: gaining entry through fraud
2. Must be to gain entry, not escape
(1) by any body part of D;or
(2) by an instrument, but only if the instrument is used to commit the felony.
c. Dwelling: Common law only applied burglary to places used regularly for sleeping. Most states includes other buildings.
- MD: In addition to places used for sleeping, schools, churches, public buildings, unoccupied apartments
d. Of another: No burglary of a jointly owned dwelling by one joint owner
e. Nighttime: Common law applied burglary only if all events occurred at night. This has been changed in most states, including MD.
f. Mens rea: Specific intent/purpose. The reason why defendant broke and entered was to commit a felony.
- Felony need not actually be committed.
- Intent must exist at the time of entry. If no intent to commit a felony, crime is breaking and entering
- MD: Intent to commit ANY crime, not just a felony, is burglary.
(2) Burning requires a fire, not merely an explosion
3) Mere blackening of walls is not sufficient -> some charring is required.
a.Smoke, or water damage not sufficient
(4) Another’s dwelling: Same as burglary.
a. Burning one’s own home: Not arson but “houseburning” usually related to insurance fraud
b. Burning items inside the home: Not arson
(5) Mens Rea: Malice
a. MPC: Intent can be proven by purpose, knowledge, recklessness, but negligence is NOT sufficient
(6) MD: Setting fire to any building, vehicle, boat, or personal property. Of another is NOT required --> can burn own dwelling.
ONLY MD Day
a. MD criminal invasion of privacy, e.g. viewing or photographing person in private place or wiretapping
b. Two-Party Consent State: ALL parties must consent to recording of conversations
All are guilty of the same crime
a. Principal in the 1st degree: Person who commits the actus reus
b. Principal in the 2d degree: Person who aids or encourages and is present at the scene
c. Accessory before the fact: Person who aids and abets the crime but is not present at the scene;
d. Accessory after the fact: Person who helps the felon escape
a. Principal is a person who commits the actus reus.
b. Accomplice (aider & abettor) is a person who aids, encourages, or plans the crime whether at the scene or not
c. Accomplice & Principal: guilty of the same crime
d. Accessory after the fact: Person who helps the felon escape -->NOT guilty of the same crime, but of obstruction of justice or harboring a fugitive.
Specific intent/purpose. Accomplice must aid or encourage with intent that the principal commit the crime.
a. Mere presence or mere knowledge that the crime is to be committed does NOT prove accomplice liability.
1. Accomplice is guilty not only of the intended crime, but also additional crimes that were reasonably foreseeable.
2. Protected Class Exception: Member of protected class under the statute cannot be guilty as an accomplice.
3. Withdrawal: Possible defense, but hard to prove. To avoid conviction,accomplice must neutralize his earlier assistance, e.g. take back gun, notify police, or provide warning to potential victim
4. Accomplice can be guilty even if principal is not convicted.
D not guilty if D has a disease of the mind that caused defendant to lack the ability at the time of the crime to know that what he did was wrong or to understand the nature of his act.
Mental illness caused a sudden urge to commit crime that could not be resisted.
D not guilty if D as result of mental disease lacks substantial capacity to appreciate that what he did was wrong or conform his conduct to the requirements of the law.
Maryland requires D to prove insanity by a preponderance of the evidence
D not guilty if unlawful act was the product of a mental disease or defect
a. Defendant cannot be put on trial if D is unable to understand the nature of the proceedings against him, or is unable to assist his lawyer in preparation of a defense.
b. D can be tried at a later date if D becomes competent.
c. Focus is time of trial, NOT time of crime
a. Involuntary intoxication: When D was forced to use an intoxicating substance by duress, or w/o knowledge of intoxicating influence.
1. Complete defense to crime if the intoxication results in D satisfying the insanity test in that jurisdiction.
b. Voluntary intoxication: May negate the mens rea of specific intent crimes
1. DOES not negate mens rea for general intent, malice, or strict liability crimes
2. MPC: Negates purpose or knowledge, but not recklessness or negligence
a. Common law: if at time of crime, D was younger than 7 years old, not guilty. If between 7 and 14, rebuttable presumption that D not capable of knowing wrongfulness of conduct. Over 14 --> treated as an adult.
b. MD:Over age of 18 is considered adult for all crimes. Between 14-18, subject to transfer to juvenile court.
a. Rule: A person who is not at fault is entitled to use rx force to protect himself or a third person (need not be a family member) from the imminent use of unlawful force.
b. Deadly force: Rx force can include deadly force if the person rx believes imminent death or great bodily harm will result if she does not respond with deadly force.
c. Retreat: There is no duty to retreat even if deadly force is going to be used in self-defense.
- MD: There is a duty to retreat, unless the victim is in their own home or the victim of a robbery
d. Not at fault: Means person using force was not the original aggressor
- Original aggressor: can regain the right of self-defense if (1) he removes himself from the fight and communicates to the other person his desire to end the dispute; or (2) victim of original aggressor suddenly escalates a minor fight into one involving deadly force w/o giving the aggressor the chance to withdraw
e. MD: A person can protect a third person if there is an honest & reasonable belief of right of third person to use self-defense, even if mistaken
a. Non-deadly force: can be used to protect dwelling if person rx believes such force is necessary to prevent or terminate another’s unlawful entry.
b. Deadly force: can be used to prevent entry into dwelling if rx belief that intruder intends to commit a felony in the dwelling which would result in loss of life or great bodily harm, and such deadly force is unavoidable and not excessive.
D is not guilty of crime if D committed the crime under duress.
a. Requires imminent threat of infliction of death or serious bodily harm to D or a third person.
b. DOES NOT apply to homicide.
c. MD: Duress can mitigate murder to manslaughter
1. MD Case: Duress not available to a gang member who as part of a gang initiation committed crimes.
2. MD Case: Duress is a valid defense to felony murder if the predicate felony was committed under duress.
Choice of evils defense
a. D committed a crime to avoid greater immediate harm.
b. Prison escape: only applicable if D turns himself in immediately after escaping
c. Does not apply to future harm, or as apolitical or moral protest
d. Mistake: An honest, rx belief of need to act out of necessity is a valid defense,even if mistaken (recent MD case)
a. Government conduct only: does not apply to private citizens, i.e. Dateline NBC
b. Intent to commit crime was created by gov’t action
c. Entrapment defense not available if D was predisposed to commit the crime.
1. MD follows this principle
d. Minority view: rejects predisposition test, and instead asks whether government conduct would reasonable be likely to cause an innocent person to commit the crime.
e. Cannot deny the crime and also argue entrapment
For a state to have jx to prosecute the crime, the conduct by D must have been committed w/in that state, or the harm to the victim must have been in that state.
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