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Crim Law Flashcards

1
Q

What are two policies for criminal punishment

A

(1) Retributive

(2) Consequentialist - rehabilitation; deterrence

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2
Q

What are 3 things the Coker Factors consider in determining the proportionality of sentences?

A

(1) History and Precedent
(2) Legislative Attitudes
(3) Response of Juries

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3
Q

What are the 3 things the Solem Factors consider in determining the proportionality of sentences?

A

(1) gravity of the offenses and the harshness of the penalty;
(2) the sentences imposed on other criminals in the same jurisdiction; and
(3) sentences imposed for the commission of the same crime in other jurisdiction.

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4
Q

What is the Actus Reus Requirement of a Crime

A

A person is not guilty of an offense unless his liability is based on conduct which includes (a) voluntary act (speech) or (b) the omission to perform an act of which he is physically capable.

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5
Q

American Bystander Rule

A

Liability for the commission of an offense may not be based on an omission of action unless a duty to perform the omitted act is imposed by law.

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6
Q

What are 4 situations where one has the duty to act?

A

personal relationship; contractual relationship; voluntary assistance; creating of the risk

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7
Q

What are 4 considerations to decide the undefined mens rea in common law?

A

legislative intent; history; textual interpretation; common sense

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8
Q

What is the general rule for undefined mens rea?

A

General rule is that there is a mens rea even without signifiers, especially if the punishment is severe.

However, if the harm is wide-spread or exceptionally dangerous, the absence of signifiers may indicate strict liability.

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9
Q

How do you prove Intent for Attendant Circumstances and in Common Law?

A

Intent is satisfied by Knowledge (belief or hope) for attendant circumstances.

Intent can also be determined by evaluating the natural and probable consequences of the action.

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10
Q

What is Willful Blindness?

A

When knowledge of the existence of a particular fact is an element of the offense, such knowledge is established if a person is (1) aware of a HIGH probability of its existence, (2) unless he ACTUALLY BELIEVED that it does not exist.

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11
Q

What are the 5 elements of Recklessness?

A

A (1) gross deviation from the standard of care that a (2) reasonable person would engage in by (3) consciously disregarding a (4) substantial and (5) unjustifiable risk.

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12
Q

What are the 3 considerations for substantial and unjustifiable risk? What are we asking?

A

probability of the harm
severity of the harm
social utility of the act

Was the risk justified?

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13
Q

What are the 5 elements of Negligence?

A

A (1) gross deviation from the standard of care that (2) reasonable person would engage in by (3) failing to perceive a (4) substantial and (5) unjustifiable risk.

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14
Q

How is the mistake of fact a defense in the common law?

A

Mistake of fact is a defense with general intent crimes if the defendant had an (1) honest and (2) reasonable belief that negates the mens rea.

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15
Q

What is the Lesser Legal Wrong Doctrine? 2 approaches

A

MPC: D is liable for the intended act, rather than the mistakenly committed act.

CL: D is liable for the committed act, even if it is more severe than the intended act.

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16
Q

What are 4 exceptions to the mistake of law is no defense doctrine?

A
  • Notice: lack of adequate (publication) notice of law
  • Reasonable Reliance: official body misinterpreted the law (not your lawyer.
  • Express Exception: statute accounts for a possible mistake of law as a defense (tax)
  • Sudden change of law
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17
Q

What is the Eggshell-Skull Rule?

A

The injurer takes his victim as he finds him (physical and psychological) without speculation about what may have happened if the victim did not have a condition that predisposed him to a more severe injury.

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18
Q

What are 2 elements of satisfying causation?

A

But-For Cause and Proximate Cause

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19
Q

What are three major considerations for Proximate Cause?

A

Is the act linked closely enough to the death for the conviction to be fair?

Did the act make the intervening/superseding cause more likely?

Was it a coincidence or a response?

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20
Q

What is a superseding cause?

A

an unforeseeable or improbable intervening cause that allows a defendant to escape liability

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21
Q

What are the 2 elements of Accomplice Liability? (MPC) and (CL)

A

MPC: a person is an accomplice of another if (1) with the intent for the crime to take place he (2) ATTEMPTS to aid the other person in the commission of an offense.

CL General: a person is an accomplice if he (1) provides ACTUAL-SUCCESSFUL aid . . .

CL Specific: a person is an accomplice if he (1) with the intent for the crime to take place he (2) provides ACTUAL-SUCCESSFUL aid . . .

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22
Q

What are the 2 elements of Innocent Instrumentality?

A

A person is legally accountable for the conduct of another person when (1) acting with the requisite mens rea, (2) he causes an innocent or irresponsible person to engage in an offense.

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23
Q

What is the relationship between American Bystander and Accomplice Liability?

A

If one has a duty to act (daughter-child), one can be an accomplice liability if he has the intent for the crime to take place and didn’t act.

So this doesn’t need even an attempt to aid. The omission is sufficient when there is a duty to act.

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24
Q

What are 2 defenses to Accomplice Liability?

A

Withdrawal and Victim

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25
Q

What are the 3 elements of Withdrawal defense and a minority rule in some jurisdictions? For accomplice liability

A

(1) terminates his complicity prior to the commission of the offense and (2) deprives it of effectiveness (proportional) in the commission of the offense OR (3) gives timely warning to the law authorities.

Minority Rule: Renunciation must be voluntary - as opposed to doing it out of fear of being caught.

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26
Q

What is the scope of responsibility for accomplice liability in MPC and Common Law?

A

MPC: the accomplice is liable only for what he intended.

CL: the accomplice is liable for reasonably foreseeable consequences of the first action.

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27
Q

What are the 2 elements of Criminal Facilitation?

A

A person is guilty of criminal facilitation when, (1) believing it probable that he is rendering aid to a person who intends to commit a class A felony, (2) he provides “actual-successful” aid to the person in the commission of an offense.

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28
Q

What are the 2 elements of Criminal Facilitation?

A

A person is guilty of criminal facilitation when, (1) believing it probable that he is rendering aid to a person who intends to commit a class A felony, (2) he provides “actual-successful” aid to the person in the commission of an offense.

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29
Q

What are the 4 elements of Accessory After the Fact?

A

Every person who, (1) after a felony has been committed, (2) harbors, conceals or aids a principal in such felony, (3) with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, (4) having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony.

Some jurisdictions require only a reasonable belief that principal committed crime.

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30
Q

What is Year and a Day Rule?

A

Common law rule that a person cannot be convicted of homicide for a death that occurs more than a year and a day after his act that allegedly caused it.

Some have different time limits.

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31
Q

What is Rule of Lenity?

A

When a state is not clear, the statute should be construed favorable to the defendant

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32
Q

What are the 3 elements of Murder? What are the 4 different Malice?

A

The (1) unlawful (2) killing of another human being (3) with malice aforethought.

intent to kill; intent to cause serious bodily injury; extreme recklessness; felony murder

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33
Q

What are the 3 elements for Extreme Recklessness Murder (Depraved Heart Murder)?

A

(1) conscious disregard of a (2) substantial and unjustifiable risk manifesting (3) extreme indifference to the value of human life.

Was the risk justified?

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34
Q

What are the 3 elements of Felony Murder?

A

(1) killing of another human being (2) during the course of a felony, which the defendant (3) had the intent to commit.

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35
Q

What are 3 considerations for determining whether the Defendant reached a Place of Temporary Safety?

A
  • temporal proximity to crime
  • geographic proximity to crime
  • causation
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36
Q

What are 3 different treatments for homicides during the course of a felony?

A

(1) D or Accomplice must kill for Felony Murder
(2) Anyone can kill for D to be liable for Felony Murder
(3) General rule is (1). But when the felon does additional malicious act beyond the felony, then (2).

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37
Q

What are 3 different limitations on felony murder in some jurisdictions?

A
  • Inherently dangerous felonies
  • Merger doctrine
  • Stricter causation
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38
Q

What are 2 ways to determine inherently dangerous felonies?

A

(1) Felony in the abstract
- Could someone commit this felony in a non-dangerous way?

(2) Felony as it was carried out
- Was the felony as it was carried out pose a foreseeable risk to human life?

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39
Q

What is the merger doctrine?

A

The murder charge must have a different prohibited conduct from the felony charge.

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40
Q

What are the 4 elements of Voluntary Manslaughter in Common Law?

A

A homicide that would otherwise be murder, but (1) done in sudden heat of passion (2) caused by adequate provocation that would excite the passion of a reasonable person (3) before there has been reasonable opportunity to cool off. There must be a (4) causal connection between the provocation, passion, and homicide.

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41
Q

What are the 2 elements of Voluntary Manslaughter in MPC?

A

A homicide that would otherwise be murder, but committed under influence of (1) extreme mental or emotional disturbance for which there is a (2) reasonable explanation or excuse.

The reasonableness of such explanation or excuse shall be determined from the view point of a person in the actor’s situation under the circumstances as he believes them to be.

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42
Q

What are 4 traditional adequate provocations?

What is an adequate provocation these days?

A

Traditionally: physical observation of adultery; aggravated battery of D or close relative; mutual combat; illegal arrest.

Modern: Would the provocation inflame passions of a reasonable person? (Jury)

43
Q

What is an exception to adequate provocation for Voluntary Manslaughter in CL?

What are 2 exceptions to that exception?

A

Words alone are not enough, unless (1) coupled with threat of violence or (2) informational words that would provide adequate provocation had the defendant witnessed it.

44
Q

What does it mean to be in a sudden heat of passion for the purpose of voluntary manslaughter in CL? Traditional and Modern?

A

Traditional: had to be very sudden

Modern: would a reasonable person have cooled off? (Jury)

45
Q

What is Rekindling in Voluntary Manslaughter in Common Law? What are the 4 elements?

A

When Defendant (1) does not respond immediately (2) to an adequate provocation, but (3) later commits murder (4) in response to inadequate provocation but enough to rekindle the past experience and feeling.

46
Q

What is manslaughter by imperfect self-defense?

A

A homicide that would otherwise be murder is mitigated by imperfect self-defense to voluntary manslaughter when one of the elements of a perfect self-defense is not proven.

Some states designate what should be missing.

47
Q

What are the 4 elements of Perfect Self-Defense?

A

(1) D is not the initial aggressor
(2) D uses reasonable (proportionate) amount of force
(3) D has reasonable belief of immediate danger of unlawful bodily harm from the victim
(4) D has reasonable belief that the use of force was necessary to avoid danger

48
Q

What are the 3 levels of mens rea used for involuntary manslaughter in different jurisdictions?

A

Recklessness

Criminal Negligence
- Was it a substantial and unjustifiable risk a reasonable person should have foreseen?
for a reasonable person

Tort Negligence
- Was it an unjustifiable risk a reasonable person should have foreseen?

49
Q

What are the 3 elements for vehicular manslaughter?

A

(1) Negligent or reckless behavior (2) while driving (3) that results in death.

50
Q

What are the 3 elements of misdemeanor manslaughter?

A

(1) a homicide that occurs (2) during a course of a misdemeanor, which the D had the (3) intent to commit.

51
Q

What are 3 limitations some jurisdictions use for misdemeanor manslaughter?

A

(1) causation
(2) misdemeanor must be malum in se
(3) misdemeanor has to be dangerous to life

52
Q

What are the 6 felonies that can be charged with Felony Murder under the MPC?

A

robbery, rape, arson, burglary, kidnapping or felonious escape.

53
Q

What are 3 considerations for “substantial and unjustifiable” risk?

A

probability of the harm; severity of the harm; social utility of the conduct

54
Q

What are the 4 elements of Rape?

A

(1) Sexual Intercourse
(2) Effected by Force
(3) Without the consent of the victim
(4) That occurred after the victim resisted.

55
Q

What are 3 different ways jurisdictions satisfy “force” in Rape?

A

(a) penetration plus non-consent; non-consensual penetration satisfies the physical force requirement.
(b) force addition to penetration
(c) fear of force satisfies the force requirement

56
Q

What are the 2 elements to satisfy fear of force?

A

(1) subjective: victim actually feared immediate and unlawful bodily injury;
(2) objective: victim’s fear of force was reasonable, or the rapist knew and took advantage of victim’s unreasonable fear of force.

57
Q

What are 2 most obvious non-consent in rape?

A

explicit refusal and consent made under threat

58
Q

What are 2 ways silence is treated for consent in rape?

A

some: require explicit verbal consent
some: look at circumstantial evidence to determine consent

59
Q

What are 2 categories of deception for consent in rape?

A

fraud in fact;

fraud in inducement;

60
Q

What are the characteristics of fraud in fact and inducement?

A

fact: conducted act is different from what was communicated; vitiates consent.
inducement: conducted act is same but was done for an ulterior motive; does not vitiate consent, some does.

inducement between some professional relationships are vitiated

61
Q

what are 2 different ways to satisfy resistance? do you need it?

A

issue of resistance underlies the issue of force and on-consent.

some: was there reasonable amount of resistance?
some: was there sufficient amount of resistance to prove non-consent?

62
Q

What are 3 levels of Mens Rea for the D’s belief about the victim’s consent? And what does each need to prove?

A

Strict Liability: P only needs to prove victim didn’t consent.

Negligence: was D’s belief honest and reasonable? P needs to prove non-consent and that D’s belief was not reasonable.

Recklessness: was D’s belief honest? P needs to prove non-consent and D’s conscious disregard of non-consent

63
Q

What are the 2 elements of Solicitation?

A

A person is guilty of solicitation to commit a crime if (1) with the intent for the target crime to take place, (2) he commands, encourages, or requests another person to commit the target crime.

64
Q

What are 2 different approaches to complicity? In solicitation

A

CL: solicitation only if you ask them to commit the crime themselves

MPC: solicitation ALSO includes asking them to help you commit the crime

65
Q

What are 2 different scopes of Solicitation?

A

CL: solicitation only if you ask them to commit a felony.

MPC: solicitation if you ask them to commit any crime. (attempt can also be a crime)

by definition, to solicit a solicitation is not a crime.

66
Q

What are 2 different ways of treating uncommunicated solicitations?

A

CL: solicitations must be received and understood (communicated)

MPC: solicitation does not need to be communicated.

67
Q

What are 2 different approaches to withdrawal for Solicitation?

A

CL: withdrawal is not a defense

MPC: it is an affirmative defense if the actor (1) persuades or prevents solicitee from committing the crime (2) under circumstances manifesting complete and voluntary renunciation of criminal purpose.

68
Q

When does solicitation merge? when does it not?

A

solicitation: solicited + refused or (some) pretended
conspiracy: solicited + accepted

69
Q

What are 2 elements of Attempt?

A

A person is guilty of attempt to commit a crime if: (1) with the intent for the target crime to take place (2) performs an overt act past mere preparation.

70
Q

What are 2 tests to determine overt act for attempt?

A

dangerous proximity test;

substantial step test

71
Q

What is dangerous proximity test for attempt? what are 4 considerations?

A

how dangerously close was the defendant to completing the crime?

(a) temporal proximity
(b) geographical proximity
(c) actual ability to commit the crime
(d) contingencies: lesser means closer to completing

72
Q

What is a substantial step test?

A

how many steps have D taken to complete the crime?

does the steps taken strongly corroborate the crime?

73
Q

What are 2 murders that can be “attempted”?

A

intent to kill murder;

voluntary manslaughter depending on the murder.

74
Q

What are the 4 elements of abandonment for attempt? How can you use this evidence in jurisdictions that don’t allow it?

A

it is an affirmative defense that (1) he abandoned or prevented its commission under circumstances manifesting a (2) complete and (3) voluntary and (4) permanent renunciation of his criminal purpose.

“voluntary” is difficult to satisfy in most cases. It shouldn’t have been due to unexpected difficulties.

In jurisdictions without this defense, you can use it as evidence for the absence of “intent for the target crime to take place.”

75
Q

What are the 4 impossibilities?

A

factual impossibility
hybrid legal impossibility
pure legal impossibility
inherent impossibility

76
Q

What is a factual impossibility for attempt?

A

D seeks a goal that is illegal, but the commission of the offense is impossible because D is mistaken about a fact that is relevant to his ABILITY to commit the crime.

factual impossibility is never a defense

77
Q

What is pure legal impossibility for attempt?

A

D seeks a goal that is not illegal, although the actor may believe it to be so.

pure legal impossibility is always a defense

78
Q

What is hybrid legal impossibility for attempt?

A

D seeks a goal that is illegal, but the commission of the offense is impossible because of D’s mistake about a legal status of some attendant circumstance.

He has the ability to commit the crime, but its commission does not amount to a crime due to a mistake about an element of the crime.

traditionally a defense, but less so in modern times.

79
Q

What is inherent impossibility for attempt?

A

D seeks a goal that is illegal, but the act is entirely incapable of completing the crime.

80
Q

What are the 3 elements of conspiracy?

A

a person is guilty of conspiracy if: (1) with the intent for the target crime to take place; (2) enters an agreement between two or more people to commit the target crime; (3) most jurisdictions require an overt act toward furthering the agreement.

81
Q

What is an overt act for conspiracy? does it have to be done by everybody involved?

A

‘overt’ act for conspiracy requires much less than for attempt.

it can be done by any ONE member of the conspiracy and it will be satisfied for all.

82
Q

What are 2 different plurality requirement for conspiracy?

A

unilateral (MPC): permits conspiracy conviction when D conspires with someone who is pretending to be in agreement.

bilateral: requires at least two people to be in agreement.

83
Q

What are 3 different approaches to merger with completed crimes for conspiracy?

A

fed: no merger with substantive offenses
state: some have merger, some don’t

MPC: merges when the conspiracy is narrower or the same as the completed crime

84
Q

What are the 4 elements of Pinkerton Liability? which jurisdictions apply them?

A

D can be held vicariously liable for substantive offenses committed by another member of a conspiracy if:

(1) D was a party to the conspiracy;
(2) offense was “within the scope of the unlawful project”;
(3) the offense was committed in furtherance of the conspiracy; and
(4) D could have reasonably foreseen the offense was a “necessary or natural consequence of the unlawful agreement.”

Fed: yes pinkerton
State: some/some
MPC: no pinkerton

85
Q

What are 2 different methods of defining conspiracy?

A

Chain and Wheel

86
Q

What is a Chain conspiracy? what are 2 considerations?

A

not necessary for D to know the identities of all of the co-conspirators, but must be aware (foreseeable) of them.

(1) number of overlapping personnel and overt acts during the time period and location where events took place;
(2) interdependence between groups and activities for operation to succeed.

87
Q

What is a Wheel conspiracy?

A

Spokes can be held to be conspiring with one another so long as their contacts with the hub are part of the plan broader than any individual spoke’s relationship with the hub.

Must have a shared, single criminal object, not just similar parallel objectives between similarly situated people.

88
Q

What is the traditional approach to counting the number of conspiracies?

A

Count the number of agreements.

89
Q

What is the MPC approach to counting the number of conspiracies?

A

If a person conspires to commit a number of crimes, he is guilty of only ONE conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship.

90
Q

What are 2 elements for defense against conspiracies?

A

It is an affirmative defense that the actor (1) thwarted the success of the conspiracy, under circumstances manifesting a (2) complete and voluntary renunciation of his criminal purpose.

91
Q

What are the 3 elements of traditional self-defense?

A

(1) D is not the initial aggressor
(2) D uses reasonable (proportionate) amount of force
(3) D has reasonable belief: (i) of immediate danger of unlawful bodily harm from the victim; (ii) that the use of force was necessary to avoid danger.

92
Q

What is NOT an initial aggression? What are 2 ways the initial aggressor can be privileged to use self-defense again?

A

Words alone is not enough.

the initial aggressor may be privileged if (1) he withdrew from the initial conflict; or (2) the conflict unjustifiably escalated to a lethal conflict.

93
Q

What are 2 considerations for reasonableness? What is 1 that some jurisdictions consider? (self-defense and duress)

A

physical attributes of D and P (age, disability, size, number of assailants).

D’s knowledge of assailant. (battered woman syndrome)

some: D’s past experiences.

94
Q

What are 2 differences of MPC’s self-defense? When and for what can’t it be used?

A

(1) reasonable belief is replaced with honest belief;
(2) immediate danger is replaced with immediate necessity of use of force.

However, if D was unreasonable in forming his belief, self-defense cannot be used for crimes that have a recklessness or negligence Mens Rea.

95
Q

What are the 3 elements for Duty to Retreat?

A

(1) only when force is deadly;
(2) only when you can with complete safety;
(3) subjective awareness of the ability (possibility) to retreat

96
Q

What is the Castle Doctrine exception to duty to retreat?

A

no duty to retreat in one’s own “home” (problematic), unless the assailant is a co-habitant.

97
Q

What are 2 different approaches to Defense of Others?

A

Alter Ego Rule: the intervenor has only as much actual right as the defended individual.

Objective Rule: the intervenor is not liable if he had reasonable belief for intervening.

98
Q

What are 3 elements of Defense of Property? What does it merge into?

A

A possessor of personal property is justified in using

(1) non-deadly force against someone seeking to dispossess him of his property;
(2) if he reasonably believes that such force is necessary to prevent imminent unlawful dispossession.
(3) some J require one must first ask to desist, unless obviously useless.

It may merge into Defense of Habitation or Defense of Prevention of Crime.

99
Q

What are the 2 different approaches to Defense of Prevention of Crime?

A

Trad: one can use deadly force to prevent any felony.

Modern: one can only use deadly force to prevent a forcible and atrocious felony.

100
Q

What are 3 different approaches to Defense of Habitation?

A

broad: one can use deadly force, when he has a reasonable belief that it is necessary to prevent another from making an illegal entry
inter: one can use deadly force to prevent another from committing a felony
narrow: one can use deadly force to prevent another from committing a forcible and atrocious felony.

101
Q

What are the 6 elements of Necessity?

A

(1) immediate and dire need/emergency
(2) some: must be the result of natural forces
(3) avoided harm must be greater than the harm from violation of law
(4) no lawful alternative to prevent the harm
(5) D is not at fault in causing the emergency
(6) no legislative determination to the contrary

102
Q

What are the 5 elements of Duress?

A

(1) immediate threat of SBI or death
(2) reasonable fear that threat will be executed
(3) no reasonable opportunity to avoid harm otherwise
(4) D did not recklessly place himself under threat
(5) this defense does not apply to intent to kill murders.

103
Q

When is involuntary intoxication a defense?

A

when the actor at the time of his conduct lacks substantial capacity either to appreciate its criminality (wrongfulness) or to conform to his conduct to the requirements of law.

104
Q

What are 4 different approaches to voluntary intoxication as a defense?

A

some: never a defense
some: may be used to negate premeditation and deliberation
some: may be used to negate specific intent
MPC: may be used to negate intent and knowledge Mens Rea

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