crim law: exam review

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adequate provocation v. EED-- essay question type analysis material. 

point of extreme emo disturbance is to put the provocation on the defendant's thought processes. eed is easier than heat of passion.

state v. gerard -- gerard loses in MD. but as in cassasa, in NYS, gerard would have gotten to the jury and could have made an EED claim.

specific intent describes a category of crimes, and there's many different SI.
malice -- sometimes see in CL definitions. malice aforethought is a term of art. malice is a historical evolution, and usually constructive meaning is "intentionally/recklessly". you see "willfully" in statutes and often it means "intentionally/knowingly" but for example in tax statutes (cheeks v. us) we know that willfully means something different still.... there's many categories. which is part of why MPC is so helpful.

MPC 2-2o6 conditional intent: an example would be carjacking -- "gimme your car or i'll bash your head in," you can't defend 'i woudln't bash his head in if he gave me the car'.


sample Q: A pushes B, B stumbles and bumps into C, C falls in the pool and drowns.
B says "i didn't do anything"
creation of peril of the problem,
A is responsible (don't put fault on). A has a duty to save C. but if A doesn't know that B bumped into C, then wherewithal: A has a good argument that he failed to act b/c didn't know that he created the peril. no voluntary acts. such attenuated circumstances, that you can't link C to A. or negligence: if A turns around and says "cool, C fell" -- omission of act could be reckless or negligent, depending on the *mental state* BUT remember that mental state is separate from the omission!!

rape is an actus reus crime. in NYS, the mental state is intent to engage in forcible compulsion. so that intent would be a defense even if completely unreasonable. but if a case like regina v. morgan ever got to court, would mistake fly? simons says "not plausible: as a political matter, just wouldn't happen" what if there's a plausible argument that she wanted force? there's nothign in the statute to suggest that reasonableness is a standard for reasonable compulsion. however, there is an affirmative defense to rape that "D was not aware of the factors that rendered the D incapable of consent (besides age)"

NYS - need force. how much force is not clear. no means no: if the legis went out of its way to say that a reasonable person should have understood the rape -- the mere force required for regular sex, plus a "no" is likely going to be rape in the *third*

don't need MPC rape definitions, but do know stat rape under MPC.

NYPL 130 is the rape definitions.

defendant's usually don't proceed on a mistake platform: "i didn't mean to force, etc" so if the question of mistake never goes before the jury, it doesn't go to appellate.

3.04 + 3.09 interpretation: if you make a mistake and you're negligent, you're still "up"

what happens when you have an omission that creates the duty? not likely -- even if you have a legal duty to act

kennedy v. LA -- not a bright line
coker v. GA -- leaves open the window for death penalty for rape of children, but kennedy struck down as unC. however, immediately after, the court issued a revised opinion limiting kennedy to its own facts because they courts didn't want to change the application of death penalty in the military system.

if you thought you were doing something illegal, you can't claim mistake: the problem with this is that...

example: burglary, breaking and entry, and trespass. the actor's AR is burglary. but the mens rea is mistaken: he thinks
was he mistaken?
was the mistake reasonable?

imagine a state where mistake is a defense to stat rape: actor thought that she was of age. OK. BUT -- did you never the less think you were doing something illegal (let's say "fornication" is illegal). legal wrong doctrine says that even if you think you're doing something wrong for a different crime, you can't say that you're not guilty, and we'll convict you of the crime you actually did. the wrong is that it doesn't assign culpability to actors based on their choices. for example, actor possessses a package that he believes contains diamonds, but it's actually heroin -- he won't be convicted of the drug crime under MPC unless he knew it was drugs. but under CL legal wrong, he would be convicted of heroin smuggling/possession.