BAR FLASHCARDS - Crim L 2- Ess el's of crime

Question 1

ELEMENTS OF A CRIME - A crime almost always requires proof of:

Answer 1

A crime almost always requires proof of:
• A physical act (actus reus)
• A mental state (mens rea), and
• A concurrence of the act and mental state

A crime may also require proof of a result and causation (meaning the act caused the harmful result).

Question 2

PHYSICAL ACT

Answer 2

A defendant must have either performed a voluntary physical act or failed to act under circumstances imposing a legal duty to act.
An act is ANY bodily movement.
Examples of bodily movements that do not qualify for criminal liability include:
• Conduct that is not the product of the person’s own volition
• A reflexive or convulsive act
• An act performed while unconscious or asleep

Question 3

Examples of bodily movements that do not qualify for criminal liability include:

Answer 3

Examples of bodily movements that do not qualify for criminal liability include:
• Conduct that is not the product of the person’s own volition
• A reflexive or convulsive act
• An act performed while unconscious or asleep

Question 4

the act must be voluntary .

Answer 4

.

Question 5

if the facts tell you that the defendant was unconscious….

Exception:

Answer 5

if the facts tell you that the defendant was unconscious, the act was not voluntary, and thus the defendant cannot be convicted of a crime based on this act.

(The only exception to this rule would be if the defendant knew they were likely to become unconscious and commit the act, but this situation would have to be presented in the facts.)

Question 6

Omission as an Act: The failure to act gives rise to liability if:

Answer 6

The failure to act gives rise to liability only if:
- There is a LEGAL DUTY TO ACT.
- The D has knowledge of the facts giving rise to the duty; and
- It is reasnonably possible to perform the duty.

Question 7

Legal duty to act (4)

Answer 7

• By statute
• By contract
• By relatoinship btwn parties
• Volunatry assumption of care

Question 8

A legal duty to act can arise from one of five circumstances:

Answer 8

A legal duty to act can arise from one of five circumstances:
(1) By statute (for example, the requirement to file a tax return)
(2) By contract (for example, a lifeguard or nurse has a legal duty to act)
(3) The relationship between the parties (for example, a parent/ spouse has a duty to protect a child/spouse from harm)
(4) The voluntary assumption of care by the defendant for the victim: D voluntarily assumed a duty of care and then failed to adequately perform it.
(5) The defendant created the peril for the victim (and didnot do something reasnable to alleviate the harm)

Question 9

Possession as an “Act”.

Criminal statutes that penalize the possession require….

a. State of Mind Requirement:

Answer 9

Criminal statutes that penalize the possession of contraband generally require only that the D have control of the item for a long enough period to have an opportunity to terminate the possession.

Possession does not need to be exclusive to one person, and possession also may be “constructive,” meaning that actual physical control does not need to be proved when the contraband is located in an area within the defendant’s “dominion and control.”

a. State of Mind Requirement: Absent a state of mind requirement in the statute, the defendant must be aware of their possession of the contraband, but they need not be aware of its illegality. However, many statutes add a state of mind element (for example, “knowingly”) to possession crimes. Under such statutes, the defendant ordinarily must know the identity or nature of the item possessed. On the other hand, a defendant may not consciously avoid learning the true nature of the item possessed; knowledge may be inferred from a combination of suspicion and indifference to the truth.

Question 10

MENTAL STATE

Answer 10

.

Question 11

Specific intent.

What r the specific intent crimes?

Answer 11

A crime may require not only the doing of an act, but also the doing of it with a specific intent or objective.

The existence of a specific intent cannot be conclusively imputed from the mere doing of the act, but the manner in which the crime was committed may provide circumstantial evidence of intent.

The importance of specific intent crimes is that they will qualify for additional defenses not available for other types of crimes.

The major specific intent crimes and the intents they require are as follows:
• Soliciation: Intent to have the person solicited commit the crime
• Conspiracy: Intent to have the crime completed
• Attempt: Intent to complete the crime
• First degree premeditated murder: Premeditated intent to kill
• Assault: Intent to commit a battery
• Larceny: Intent to permanently deprive the other of their interest
in the property taken
• Embezzlement: Intent to defraud
• False pretenses: Intent to defraud
• Robbery: Intent to permanently deprive the other of their interest in the property taken
• Burglary: Intent to commit a felony in the dwelling
• Forgery: Intent to defraud

Question 12

The major specific intent crimes and the intents they require are as follows:

Answer 12

The major specific intent crimes and the intents they require are as follows:
• Soliciation: Intent to have the person solicited commit the crime
• Conspiracy: Intent to have the crime completed
• Attempt: Intent to complete the crime
• First degree premeditated murder: Premeditated intent to kill
• Assault: Intent to commit a battery
• Larceny: Intent to permanently deprive the other of their interest in the property taken
• Embezzlement: Intent to defraud
• False pretenses: Intent to defraud
• Robbery: Intent to permanently deprive the other of their interest in the property taken
• Burglary: Intent to commit a felony in the dwelling
• Forgery: Intent to defraud

Question 13

Specific intent Cimres mnemonic:

Answer 13

Students can always take a laugh, even for ridiculous bar facts

• Soliciation: Intent to have the person solicited commit the crime

• Conspiracy: Intent to have the crime completed

• Attempt: Intent to complete the crime

• First degree premeditated murder: Premeditated intent to kill

• Assault: Intent to commit a battery

• Larceny: Intent to permanently deprive the other of their interest
in the property taken

• Embezzlement: Intent to defraud

• False pretenses: Intent to defraud

• Robbery: Intent to permanently deprive the other of their interest in the property taken

• Burglary: Intent to commit a felony in the dwelling

• Forgery: Intent to defraud

Question 14

Defenses to specific intent crimes ONLY:

Answer 14

The importance of specific intent crimes is that they will qualify for additional defenses not available for other types of crimes.
TWO defenses:
- Voluntary intoxication
- Unreasonable mistake of facts

Question 15

Specific intent crimes mnemonic: Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts.

Answer 15

• Soliciation: Intent to have the person solicited commit the crime

• Conspiracy: Intent to have the crime completed

• Attempt: Intent to complete the crime. attempt is a specific intent crime—even when the crime attempted is not.

• First degree premeditated murder: Premeditated intent to kill

• Assault: Intent to commit a battery

• Larceny: Intent to permanently deprive the other of their interest
in the property taken

• Embezzlement: Intent to defraud

• False pretenses: Intent to defraud

Question 16

Specific intent for attempt

Answer 16

attempt is a specific intent crime—even when the crime attempted is not.

Need Specific intent to commit the attempted crime

Question 17

Malice

Answer 17

RECKLESS disregard of obvious or high risk that particular harmful result will occur.
MURDER and ARSON.

Question 18

Malice - common law murder and arson

Answer 18

The intent necessary for malice crimes (common law murder and arson) requires a reckless disregard of an obvious or high risk that the particular harmful result will occur.

Defenses to specific intent crimes (such as voluntary intoxication) do not apply to malice crimes.

Question 19

General Intent—Awareness of Factors Constituting Crime

Answer 19

General intent is the big catch-all category.
All crimes not so far mentioned are general intent crimes unless they qualify for strict liability.
[EVERYTHING THATS NOT SPECIFIC INTENT OR STRICT LIABILITY ARE GENERAL INTENT]

General intent means the defendant has an awareness of all factors constituting the crime; in other words, the defendant must be aware that they are acting in the proscribed way and that any required attendant circumstances exist.

The defendant does not have to be certain that all the circumstances exist; it is sufficient that they are aware of a high likelihood that they will occur.

Inference of Intent from Act: A jury may infer the required general intent merely from the doing of the act.

Question 20

General intent crimes do NOT get the two defneses for specific intent crimes:

Answer 20

• Voluntary intoxication
• Unreasonable mistake of facts

Question 21

Strict Liability

Answer 21

• NO mens rea requirement
• D guilty from committing act

Question 22

Strict Liability Offenses

Answer 22

A strict liability or public welfare offense is one that does not require awareness of all of the factors constituting the crime; that is, the defendant can be found guilty from the mere fact that they committed the act.

Common strict liability offenses are selling liquor to minors and statutory rape.

The importance of strict liability on the bar exam is that defenses that negate state of mind, such as mistake of fact, are not available.

Question 23

Strict liability - what defenses are NOT available?

Answer 23

The importance of strict liability on the bar exam is that defenses that negate state of mind, such as mistake of fact, are not available.

Question 24

If the crime is in the administrative, regulatory, or morality area and there are no adverbs in the statute such as “knowingly,” “willfully,” or “intentionally,” then….

Answer 24

If the crime is in the administrative, regulatory, or morality area and there are no adverbs in the statute such as “knowingly,” “willfully,” or “intentionally,” then the statute is meant to be a no intent crime of strict liability.

Question 25

Strict liability for statute in which areas?
Which adverbs?

Answer 25

IF:
- administrative, regulatory, or morality area, AND
- no adverbs in the statute such as “knowingly,” “willfully,” or “intentionally,”
Then SL crime.

Question 26

Crimes for Specific intent:

Answer 26

Soliciation
Conspircay
Attempt
First degree premediated murder
Assault (attempted battery)
Larceny, robbery
Embezzlement
False pretenses
Robbery
Burglary
Forgery

Question 27

Crimes for general intent (4)

Answer 27

1. Battery
2. Rape
3. Kidnapping
4. False imprisonment

Question 28

Malice crimes

Answer 28

Common law murder
Arson

Question 29

Strict Liability

Answer 29

1. Staturoy rape
2. Selling liquor to minors
3. Bigamy (some js)

Question 30

COMMON LAW Mens rea and the state of mind required for each:

Answer 30

Specific Intent: intent to engage in proscribed conduct (subjective)
General intent: Awareness of acting in proscribed matter (subjective)
Malice: Reckless disregard of a known risk. (subjective)
Strict Liability: Conscious commission of proscribed act

Question 31

MPC mental states

Answer 31

M.P.C. eliminates the common law distinctions between general and specific intent and adopts the following categories of intent:

Purposely: Conscious object to engage in certain conduct or cause certain result.

Knowingly: Aware conduct is of particular nature or certain circumstances exist, or will cause a particular result. (subjective)

Recklessly: Consciously disregarding a substantial and unjustifiable risk. Gross deviation from standard of care. (subjective and objective)

Negligently (objective standard): Fail to be aware of substantial and unjustifiable risk.

Question 32

MPC: Purposely, Knowingly, or Recklessly

Answer 32

When a statute requires that the defendant act purposely, knowingly, or recklessly, a subjective standard is used.
Purposely: A person acts purposely when their CONSCIOUS OBJECT is to engage in certain conduct or cause a certain result.

Knowingly: A person acts knowingly with respect to the nature of their conduct when they are aware that their conduct is of a particular nature or that certain circumstances exist.
Also, the person is deemed to be aware of these circumstances when they are aware of a high probability that they exist and deliberately avoid learning the truth.
The person acts knowingly with respect to the result of their conduct when they know that their conduct will necessarily or very likely cause a particular result.

Recklessly: A person acts recklessly when they consciously disregard a substantial and unjustifiable risk that circumstances exist or that a prohibited result will follow, and this disregard constitutes a gross deviation from the standard of care that a reasonable person would exercise in that situation. Recklessness involves both objective (“unjustifiable risk”) and subjective (“awareness”) elements.

Question 33

When a statute requires that the defendant act purposely, knowingly, or recklessly, a(n) ____ standard is used.

Answer 33

When a statute requires that the defendant act purposely, knowingly, or recklessly, a subjective standard is used.

Question 34

Negligence

Answer 34

A person acts negligently when they fail to be aware of a substantial and unjustifiable risk, where such failure is a substantial deviation from the standard of care.

To determine whether a person acted negligently, an objective standard is used.

However, it is not just the reasonable person standard that is used in torts. The defendant must have taken a very unreasonable risk.

Question 35

Difference between RECKLESS and NEGLIGENT

Answer 35

One Difference is negligence is objetive standard
RECKLESS person consciously disregards a substantial and unjustifiable risk.
NEGLIGENT person FAILS to be aware of substnatial and unjustifiable risk.

Are they CONSICOUSLY DISREGARDING THE RISK???

Question 36

Vicarious Liability Offenses

Answer 36

A vicarious liability offense is one in which a person without personal fault may nevertheless be held liable for the criminal conduct of another (usually an employee).
The trend is to limit vicarious liability to regulatory crimes and to limit punishment to fines.

Question 37

Enterprise Liability—Liability of Corporations and Associations

Answer 37

At common law, a corporation does not have capacity to commit crimes.

Under modern statutes, corporations may be held liable for an act performed by:
(1) an agent of the corporation acting within the scope of their office or employment; or
(2) a corporate agent high enough in hierarchy to presume their acts reflect corporate policy.

Question 38

Transferred Intent

Answer 38

• Defednanted intended harm to DIFFERENT victim or object
• Applies to homicide, battery, and arson. Does NOT apply to attempt.

The defendant can be liable under the doctrine of transferred intent when they intend the harm that is actually caused, but to a different victim or object.

Defenses and mitigating circumstances may also usually be transferred.

The doctrine of transferred intent applies to homicide, battery, and arson. It does not apply to attempt.

Question 39

CONCURRENCE OF MENTAL FAULT WITH PHYSICAL ACT

Answer 39

The defendant must have had the intent necessary for the crime at the time they committed the act constituting the crime, and the intent must have prompted the act.

For example, if D is driving to V’s house to kill him, D will lack the necessary concurrence for murder if D accidentally runs V over before reaching the house.

Question 40

CAUSATION

Answer 40

Some crimes (such as homicide) require result and causation.

Thus, when a crime is defined to require not merely conduct but also a specified result (such as death), the defendant’s conduct must be both the cause-in-fact and the proximate cause of the specified result.