Crim Law Flashcards
(238 cards)
1
Q
What mental state must an accessory after the fact possess?
A
An accessory after the fact must know that the person he is aiding has committed a felony
2
Q
What is an accessory after the fact?
A
An accessory after the fact receives, relieves, comforts, or assists another, knowing that he has committed a felony, in order to help the felon escape arrest, trial, or conviction.
2
Q
At common law, murder was _______, which is established by_______.
A
the killing of a human being with malice aforethought. The mental state of malice aforethought could be established with any one of the following states of mind: (i) intent to kill; (ii) intent to cause serious bodily harm; (iii) reckless indifference to an unjustifiably high risk to human life (“depraved heart”); or (iv) the intent to commit a dangerous felony (“felony murder”).
3
Q
What is required for an accomplice to withdraw?
A
Withdrawal
One who has rendered encouragement or aid to another may avoid liability as an accomplice if he withdraws from the crime before it is actually committed by the principal. What is necessary for an effective withdrawal depends upon what the person initially did.
(i) If the person merely encouraged the commission of the crime, withdrawal requires that he repudiate this encouragement.
(ii) If the person assisted by providing some material to the principal, withdrawal requires at least that the person attempt to neutralize this assistance, e.g., by doing everything possible to retrieve the material provided.
If it is impossible to withdraw by these methods, an alternative means of withdrawing is to notify authorities or take some other action to prevent the commission of the offense. In any case, the withdrawal must occur before the chain of events leading to the commission of the crime becomes unstoppable.
3
Q
Adequate provocation will reduce a killing to voluntary manslaughter if the defendant was . . .
A
both reasonably provoked and actually provoked.
4
Q
B expresses a desire to kill C. A encourages him to do so, and provides him with a gun. Later, A changes his mind. He seeks B out, and tells B that his earlier position was wrong and that B should not kill C. He also gets his gun back. Nevertheless, B obtains another gun and kills C. Is A liable as an accomplice?
A
Held: No, since he did all that was possible to render his encouragement and assistance ineffective before B’s plan to kill C became unstoppable.
Withdrawal
One who has rendered encouragement or aid to another may avoid liability as an accomplice if he withdraws from the crime before it is actually committed by the principal. What is necessary for an effective withdrawal depends upon what the person initially did.
(i) If the person merely encouraged the commission of the crime, withdrawal requires that he repudiate this encouragement.
(ii) If the person assisted by providing some material to the principal, withdrawal requires at least that the person attempt to neutralize this assistance, e.g., by doing everything possible to retrieve the material provided.
If it is impossible to withdraw by these methods, an alternative means of withdrawing is to notify authorities or take some other action to prevent the commission of the offense. In any case, the withdrawal must occur before the chain of events leading to the commission of the crime becomes unstoppable.
4
Q
Under conspiracy and accomplice liability law, all participants in the felony will be liable for murder if . . .
A
the killing was foreseeable. Resistance by the store clerk was foreseeable and neither the accomplice nor the defendant had any right of self-defense under the circumstances.
5
Q
The M.P.C. advocates the elimination of the ambiguous common law distinction between general and specific intent. Instead, the M.P.C. proposes four categories into which the mental component of a criminal offense (i.e., the element of fault) can be characterized. Because consistent use of these categories leads to analytical clarity, they have been incorporated into several state criminal codes. They likewise provide a convenient way of analyzing problems on the exam that incorporate statutes.
What are the 4 standards and their definitions? Are they subjective or objective standards?
A
Purposely, Knowingly, or Recklessly
When a statute requires that the defendant act purposely (“intentionally”), knowingly, or recklessly, a subjective standard is being used, i.e., the question is what was actually going on in the defendant’s mind.
1) Purposely
A person acts purposely with respect to his conduct when it is his conscious object to engage in certain conduct or cause a certain result, e.g., burglary.
2) Knowingly
A person acts knowingly with respect to the NATURE of his conduct when he is aware that his conduct is of that nature or that certain circumstances exist. He acts knowingly with respect to the RESULT of his conduct when he knows that his conduct will necessarily or very likely cause such a result. Conduct performed knowingly also satisfies the mental state of a statute that requires willful conduct.
3) Recklessly
A person acts recklessly when he consciously disregards 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 the situation. An act performed recklessly is also performed wantonly. Recklessness requires that the actor take an unjustifiable risk and that he know of and consciously disregard the risk. Mere realization of the risk is not enough. He must know that injury might result (if he knows that it is certain to result, he acts knowingly). Thus, recklessness involves both objective (“unjustifiable risk”) and subjective (“awareness”) elements.
b. Negligence
A person acts negligently when he fails to be aware of a substantial and unjustifiable risk that circumstances exist or a result will follow, and such failure constitutes a substantial deviation from the standard of care that a reasonable person would exercise under the circumstances. To determine whether a person acted negligently, an objective standard is used. However, it is not merely the reasonable person standard that is used in torts; the defendant must have taken a very unreasonable risk in light of the usefulness of his conduct, his knowledge of the facts, and the nature and extent of the harm that may be caused.
5
Q
Under the M’Naghten rule, a defendant is entitled to an acquittal if . . .
A
the proof establishes that a disease of the mind caused a defect of reason, such that the defendant lacked the ability at the time of his actions to either know the wrongfulness of his actions or understand the nature and quality of his actions.
6
Q
T/F. For an individual to be convicted as an accessory after the fact under modern statutes, the crime committed by the principal must be a felony, but it doesn’t have to have been completed at the time the accessory renders aid
A
F
must have been completed.
6
Q
under the M’Naghten rule, _______ is not a defense.
A
loss of control because of mental illness
7
Q
T/F. Typically the punishment for the crime of accessory after the fact bears no relationship to the principal offense.
A
T
7
Q
Criminal negligence is . . .
A
Criminal negligence, a form of involuntary manslaughter, is an unintended killing caused by the negligence of another. Criminal negligence requires a greater deviationfrom the reasonable person standard than is required for civil liability, but less negligence thanthe reckless disregard for human life required for malice. Certainly a parent’s failure to provide medical treatment for a critically ill child is criminal negligence. Note that intent is not an element of involuntary manslaughter.
8
Q
Unless the _______, citizenship is generally irrelevant for purposes of state criminal jurisdiction.
A
the statutory punishment depends on citizenship
8
Q
An accomplice is one who . . .
A
- with the intent that the crime be committed, 2. aids, counsels, or encouragesthe principal3. before or during the commission of the crime.
9
Q
T/F. Jurisdiction means the authority of a sovereign to create substantive criminal law. The authority of a court to enforce criminal law is an aspect of jurisdiction.
A
T
9
Q
Difference b/w larceny by trick and obtaining property by false pretenses . . .
A
In the crime of false pretenses, the defen- dant obtains title to the property by means of a false representation of a material present or past fact that causes the victim to pass title to his property to the defendant, who knows his representa- tions to be false and intends thereby to defraud the victim. (Vase at the flea market) vs. arceny by trick occurs when the defendant obtains possession of another’s property by lying or trickery. Here, the bystander obtained title to, rather than mere possession of, the money, and is therefore not guilty of larceny by trick (wine bottle)
10
Q
Generally, a state has jurisdiction over a crime if:
A
- any act constituting an element of the offense was committed in the state
- an act outside the state caused a result in the state
FL: An out-of-state conspiracy to commit an in-state crim must be accompanied by an act in the state of FL in furtherance of the conspiracy. There is no such requirement for attempt.
FL: In homicide cases, if a body is discovered in FL, the death (i.e. the result) is presumed to have occurred in FL.
- crime involved neglect of a duty imposed by the law of the state
10
Q
To convict a person for an attempted crime, the prosecution must establish that . . .
A
the defendant had an actual specific intent to cause the harm prohibited by the statute and committed an act beyond mere preparation in furtherance of that intent. Those elements—specific intent and act— are required regardless of the mental state required by the target offense. A person who tooka substantial step towards commission of the crime but was only reckless with respect to the target offense could not be found guilty of attempt. The homeowner did not intend to burn the neighbor’s home. Therefore, he cannot be guilty of attempted arson of the neighbor’s home.
11
Q
FL: In homicide cases, if a body is discovered in FL, _____.
A
the death (i.e. the result) is presumed to have occurred in FL (for purposes of jurisdiction)
11
Q
At common law, each person who took part in the planning of a crime was criminally liable for ______. However, if one of the conspirators “withdrew” from the criminal effort ______, he was not liable for _____. To successfully withdraw, the actor must _____; this must be done _____.
A
a. the crime of conspiracy and for each offense committed in furtherance of the conspiracyb. before the substantive crimes occurredc. the subsequent crimesd. notify all members of the conspiracy that he has withdrawne. in time for them to have an opportunity to abandon the planned crimes
12
Q
An out-of-state conspiracy to commit an in-state crim must be accompanied by _____. There is no such requirement for _____.
A
an act in the state of FL in furtherance of the conspiracy
attempt
12
Q
A school search will be held reasonable if . . .
A
(i) it offers a moderate chance of finding evidence of wrongdoing; (ii) the measures adopted to carry out the search are reasonably related to the objectives of the search; and (iii) the search is not excessively intru- sive in light of the age and sex of the student and the nature of the infraction. Here, even though the principal did not have probable cause to believe that the drugs were in the student’s purse, the principal did have sufficient reasonable grounds to search her purse.
13
Q
T/F. FL is in the majority; it has always had a “retention statute” retaining the common law crimes.
A
T
13
With regard to the use of immunity to compel testimony, a state cannot use immunity to compel testimony unless
the immunity also applies in a federal prosecution.Therefore, federal prosecutors may not use evidence obtained as a result of a state grant of immunity, and vice versa.Testimony obtained by a promise of immunity MAY be used in a prosecution for perjury committed during the immunized testimony.A grant of use and derivative use immunity does NOT guarantee immunity from prosecution for any crimes. Transactional immunity guarantees immunity from prosecution for any crimes related to the transaction about which the witness testifies.Transactional immunity does NOT allow the witness to be prosecuted from evidence derived from an independent source. Use and derivative use immunity allows the witness to be prosecuted if the prosecutor can show evidence was derived from a source independent of the immunized testimony.
14
Pursuant to FL's sentencing guidelines, the primary purpose of sentencing is _____.
punishment
other traditional purposes are goals, but are subordinated.
14
The Blockburger test generally prohibits . . .
multiple punishments for the same offense.
15
FL has a constitutional saving provision which means that:
Repeal or amendment of a criminal statute does not affect the criminality of any offense committed prior to the repeal or amendment. Prosecution and punishment of such crimes is proper and is governed by the former statute as it existed at the time of the offense.
15
The Blockburger test generally prohibits multiple punishments for the same offense. The exception to this rule is . . .
where the offenses are intended to carry separate punishments and are imposed at a single trial. This is true even though the offenses constitute the same crime under the Blockburger test. This rule requires imposing the punishments at a single trial, not at different trials.
16
FL has abolished the distinction b/w a principal and an _____.
accessory before the fact
16
The doctrine of collateral estoppel prohibits a defendant from being tried or convicted of a crime if:
A prior prosecution resulted in a factual determination inconsistent with one required for conviction. For example, if a defendant was charged with robbing an individual poker player and acquitted for insufficient evidence as to identity, the defendant cannot afterward be charged with robbery of a different poker player at the same table.If a prior prosecution resulted in a mistrial because of a hung jury or because a conviction was reversed on appeal, the Double Jeopardy Clause (not collateral estoppel) is at issue.
17
FL exempts _____ from being accessories after the fact unless _____. Any person who assists another, knowing that the other person has committed an offense ____ , regardless of ______, is an accessory after the fact unless ______.
close relatives
the crime that the offender committed was a capital, life, first-degree, or second degree felony.
against a child and with the intent that the other person avoid apprehension or punishment, regardless of the relationship to the other person, is an accessory after the fact unless the court finds that the person is a victim of domestic violence.
17
Under the Double Jeopardy Clause, a defendant cannot be retried for the same offense. The Court in Blockburger v. United States stated a test to determine what is “the same offense.”What is the best explanation of the Blockburger test?
Two crimes do not constitute the same offense if each crime requires proof of an element that the other crime does not require
18
The common law distinguished four types of parties to a felony: principals in the first degree (persons who _____); principals in the second degree (persons who _____); accessories before the fact (_____); and accessories after the fact (persons who _____).
At common law, the distinctions between the parties had a great deal of _____ significance. For example, an accessory could not be convicted unless the principal had already been convicted, although both could be convicted in a joint trial if the jury determined the principal’s guilt first. Most modern jurisdictions have abandoned this requirement, and an accessory can be convicted even if _____.
Under the modern approach, all “parties to the crime” can be found guilty of _____.
actually engage in the act or omission that constitutes the criminal offense
aid, command, or encourage the principal and are present at the crime
persons who aid, abet, or encourage the principal but are not present at the crime
assist the principal after the crime
procedural
the principal has evaded apprehension or has been tried and acquitted
the criminal offense
18
Defendant signed a confession to a crime at the police station shortly after his arrest.Is this confession sufficient in and of itself to convict Defendant?
No, a criminal conviction cannot rest entirely on an uncorroborated extrajudicial confession. If the defendant does not admit guilt in court, the prosecution must introduce extrinsic evidence that, at the least, tends to establish the trustworthiness of the admission.
19
Prevailing common law rule with respect to intent requirement for accomplice liability:
To be convicted as an accomplice under the prevailing common law rule, a person must have given aid, counsel, or encouragement with the intent to aid or encourage the principal in the commission of the crime charged. In the absence of a statute, most courts would hold that mere knowledge that a crime would result from the aid provided is insufficient for accomplice liability, at least where the aid involves the sale of ordinary goods at ordinary prices. However, procuring an illegal item or selling at a higher price because of the buyer’s purpose may constitute a sufficient “stake in the venture” for a court to find intent to aid.
Example: A tells B that he wants to buy a can of gasoline from B to burn a house down. B sells A the gasoline and A burns down the house. B is not liable as an accomplice to arson (unless it was illegal to sell gasoline in cans or B charged A twice his usual price because of what A was using the gasoline for).
19
Prior to accepting the guilty plea, the judge must . . .
The judge must determine that the plea is voluntary and intelligent. The judge must also ensure that the defendant knows and understands the nature of the charge and the crucial elements of the crime, along with the maximum penalty and any mandatory minimum penalty. The judge also must ensure that the defendant understands his right to plead not guilty and that he waives the right to trial if he does plead guilty.
20
T/F. A person who has notified the authorities after the crime has taken place would be subject to conviction if found liable as an accomplice.
T
must notify before commission becomes unstoppable.
20
If more than _______ months imprisonment is authorized, the offense is considered “serious” for determining whether a defendant has a constitutional right to a jury trial.
6An offense is considered serious, making a jury trial a constitutional right, when more than six months imprisonment is authorized.
21
T/F. Under the MPC, a person acts negligently when he consciously disregards a substantial or 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 the situation
F
He fails to be aware of a substantial and unjustifiable risk that circumstances exist or a result will follow, and such failure constitutes a substantial deviation from the standard of care that a reasonable person would exercise under the circumstances.
21
When does a penalty constitute cruel and unusual punishment in violation of the Eighth Amendment?
When it is grossly disproportionate to the offense committed
22
What is required for an individual to be convicted as an accessory after the fact under modern statutes? FL distinction?
The crime committed by the principal must be a felony, and it must be completed at the time the accessory renders aid.
FL:
FL exempts close relatives from being accessories after the fact unless the crime that the offender committed was a capital, life, first degree, or second degree felony. Any person who assists another, knowing that the other person has committed an offense against a child and with the intent that the other person avoid apprehension or punishment , regardless of the relationship to the other person, is an accessory after the fact unless the court finds that the person is a victim of domestic violence.
22
The constitutional right to a jury trial in criminal cases applies __________ offenses.
Only to serious
23
In a majority of states, criminal attempt requires a specific intent to commit the crime and _____
An act that constitutes a substantial step in commission of the crime; mere preparation is not enough.
23
If a defendant successfully appeals his conviction and is retried by the same judge and again convicted, under what circumstances (if any) may a judge impose a sentence harsher than the original sentence?
Only if the sentence is based on conduct on the part of the defendant occurring after the original sentencing proceedings.The purpose of this rule is to ensure that the judge des not impose a harsher sentence out of vindictiveness. (Note that the rule does not apply if the second trial is de novo by a different judge or the sentence is imposed by a jury who were not told of the first sentence.)
24
T/F. Mere preparation is enough, in a majority of states, to satisfy criminal attempt.
F
criminal attempt requires a specific intent to commit the crime and an act that constitutes a substantial step in commission of the crime; mere preparation is not enough.
24
Miranda warnings may need to be given, depending on whether the suspect knows this person is employed by the police. Miranda generally applies only to interrogation by the publicly paid police. It does not apply where . . .
interrogation is by an informant who the defendant does not know is working for the police. The rationale is that the warnings are intended to offset the coercive nature of police-dominated interrogation, and if the defendant does not know that he is being interrogated by the police, there is no coercive atmosphere to offset.
25
A person standing in Florida near the state line with Georgia fires a gun at and shoots and kills a person in Georgia. Both states have jurisdiction because _____.
the criminal conduct occurred in Florida and the result, death of a human being, occurred in Georgia
25
What will a grand jury issue if it determines that the evidence provides probable cause to prosecute?
A true bill
26
T/F. A state will have jurisdiction where an act should have been performed.
T
26
A Gerstein hearing is . . .
a hearing to determine probable cause to hold a detainee who was arrested without a prior finding of probable cause (e.g., if the arrest was not pursuant to an arrest warrant or grand jury indictment).
27
Difference between CL merger and current American Rule
At common law, if a person engaged in conduct
constituting both a felony and a misdemeanor, she could be convicted only of the felony. The misdemeanor merged into the felony.
Current American Rule: There is generally no merger in American law, with the following limited exceptions:
1. One who solicits another to commit a crime may not be convicted of both the solicitation and the completed crime. Solicitation merges into the completed crime; and
2. A person who completes a crime after attempting it may not be convicted of both the attempt and the completed crime. Attempt merges into the completed crime
C. Conspiracy does not merge with the completed offense. One may be convicted of conspiracy and the completed crime.
Example: Persons may be convicted of conspiracy to commit robbery and robbery.
27
A witness subpoenaed to testify before a grand jury has no right to:
Counsel in the courtroom, Miranda warnings, or warnings that she is a potential defendant.
28
Exceptions to Current American Rule to merger rule:
Current American Rule: There is generally no merger in American law, with the following limited exceptions:
1. One who solicits another to commit a crime may not be convicted of both the solicitation and the completed crime. Solicitation merges into the completed crime; and
2. A person who completes a crime after attempting it may not be convicted of both the attempt and the completed crime. Attempt merges into the completed crime
FL distinction: A D may be convicted of both felony murder and the underlying felony.
28
5th vs. 6th Amendment . . .
A defendant’s right to counsel at trial is provided for by the Sixth Amendment. The Supreme Court has read a right to counsel into the Fifth Amendment, but the right applies at custodial interrogations by the police; it does not apply at trial.
29
T/F. A D may not be convicted of both felony murder and the underlying felony.
F. may be convicted
29
The primary purpose of a preliminary hearing is to:
Determine whether probable cause for detention existsA defendant has a Fourth Amendment right to be released from detention if there is no probable cause to hold him. The purpose of a preliminary hearing is to determine whether probable cause for detention exists.A defendant does not have the right to cross-examine witnesses at a preliminary hearing. A preliminary hearing is an informal, ex parte, nonadversarial proceeding.
30
Our laws generally do not impose on ordinary citizens a duty to rescue others in harm's way. This is called the American bystander rule. Omission as an "Act": Failure to act gives rise to liability only if:
Five Situations Where There May Be a Duty, Omission of Which Is a Breach of Duty are _____
1. specific duty to act imposed by law
2. D has knowledge of the facts giving rise to the duty to act
3. reasonably possible to perform the duty
_________
1. statute demands you do it (ex. file taxes every year)
2. a contract obligating D to act (ex. nursing home)
3. relationships b/w D and V (spouses; parent)
4. voluntarily assume care
5. create a peril (ex. hit them with you car)
30
__________ determine(s) whether a dwelling is “of another.” (Crim Law)
OccupancyThe requirement is that the structure be used as a dwelling by someone other than the defendant. Ownership is not relevant. An owner can commit burglary of his own structure if he offers it for rent and it is used as a dwelling by others.
31
The reason that mens rea is normally required is to distinguish between ______.
inadvertent or accidental acts and acts performed by one with a "guilty
mind."
31
Common law arson is a __________ crime.
At common law, arson consisted of the malicious burning of the dwelling of another. Malice crimes require that the defendant recklessly disregarded an obvious or high risk that the particular harmful result would occur. The intent requirement for arson is satisfied if the defendant acted with knowledge or reckless disregard that the structure would burn. A specific intent crime requires the doing of the criminal act with a specific intent or objective. A general intent crime requires the performance of the act with awareness of all factors constituting the crime; i.e., the defendant must be aware that she is acting in the proscribed way and that any attendant circumstances required by the crime are present. Strict liability offenses do not require awareness of all of the factors constituting the crime and are generally “regulatory” offenses, i.e., offenses that are part of a regulatory scheme.
32
The four (4) important mental states for criminal liability are:
1. specific intent
2. malice
3. general intent
4. SL
32
Modern statutory changes have expanded upon the common law definition of burglary. Under most modern statutes, burglary can be committed _______.
At any time of day and in structures other than a dwelling
33
1. If the definition of a crime requires not only the doing of an act, but the doing of it with _____, it is a "specific intent" crime. ·
2. The existence of specific intent cannot_____. The prosecution must produce evidence _____.
3. Some defenses such as _____ and ______ apply to specific intent crimes.
a specific intent or objective
be inferred from the doing of the act
tending to prove the existence of the specific intent
voluntary intoxication
unreasonable mistake of fact
33
At common law, burglary was defined as . . .
the breaking and entering of the dwelling of another at nighttime with the intent of committing a felony therein. The breaking may be actual or constructive. Actual breaking requires at least a minimal use of force (e.g., opening a door that is a ajar). Constructive breaking consists of gaining entry by means of fraud, threat, or intimidation, or by use of the dwelling’s chimney.
34
Malice is a state of mind that requires ______.
It is a state of mind that requires a reckless disregard of an obvious or high risk that a particular bad result will occur.
34
At common law, arson consists of:
(i) the malicious; (ii) burning; (iii) of the dwelling; (iv) of another. The offense need not occur at night.
35
There are two malice crimes on the MBE. They are _____ and _____.
murder
| arson
35
Although variously defined in different jurisdictions, embezzlement generally requires:
(i) The fraudulent;(ii) Conversion;(iii) Of property;(iv) Of another;(v) By a person in lawful possession of that property. Conversion requires only that the defendant deal with the property in a manner inconsistent with the trust arrangement pursuant to which he holds it.The passing of title is not an element of embezzlement. Title does not pass when property is embezzled.
36
T/F. Defenses to specific intent crimes, such as, voluntary intoxication apply to malice crimes.
F.
They do not.
36
The crime of larceny by false pretenses is committed when . . .
the defendant obtains title to the property of another by an intentional (or, in some states, a knowing) false statement with the intent to defraud another. Under the common law, the false statement had to be a false statement of past or existing fact; under the Model Penal Code, the false statement need not be of a past or existing fact. (A future false promise to perform suffices.)
37
General intent crimes require _____.
1. It is a catchall category - almost all crimes require at least a "general intent."
2. It is an awareness of all factors constituting the crime, that is, the defendant must be aware she is acting in the .proscribed way and that any required circumstances exist.
3. A jury may infer the required general intent merely from doing the act.
4. Two examples of such general intent crimes:
a. rape
b. battery
37
Larceny by trick is distinguished from false pretenses by the fact that . . .
larceny by trick does not involve passing of title, only possession. In false pretenses, title is intended to pass.
38
Two examples of general intent crimes:
rape, battery
38
The elements of the crime of receipt of stolen property are:
(i) receiving possession and control; (ii) of “stolen” personal property; (iii) known to have been obtained in a manner constituting a criminal offense; (iv) by another person; (v) with the intent to permanently deprive the owner of his interest in the property. Most jurisdictions define “stolen” property broadly to include property obtained by commission of any of the property offenses. The property must have “stolen” status at the time it is received by the defendant. If police have recovered the property and used it with the owner’s permission, the property is not stolen and the defendant cannot be guilty of this crime. Because of the elements requires that the property be obtained by another person, a defendant cannot be convicted of receipt of stolen property if he stole the property himself. Similarly, receipt of stolen property is not a strict liability offense; the defendant must have known it was obtained in a criminal manner.
39
Under the doctrine of transferred intent a D may be liable where she intends ______.
_____ may also usually be transferred.
the harm that is actually caused, by the victim or object
Defenses and mitigating circumstance
39
Larceny is a crime against ______.
possession. The person from whom the property is taken needs only to have some possessory interest superior to that of the defendant. Thus, property is taken from a thief may be the subject of larceny because the thief has a possessory interest superior to the person who took the property from him. Likewise, a bailee has a possessory interest superior to someone who took the property from her.
40
The doctrine of transferred intent applies to which offenses?
homicides
battery
arson
It does not apply to attempt.
40
An inchoate offense is committed . . . . Give examples.
prior to and in preparation for what may be a more serious offense. It is a complete offense in itself, even though the act to be done may not have been completed.Solicitation is an inchoate offense. Solicitation consists of inciting, counseling, advising, inducing, urging, or commanding another to commit a felony with the specific intent that the person solicited commit the crime. The offense is complete at the time the solicitation is made. Attempt is an inchoate offense. An attempt consists of two elements: (i) a specific intent to commit the crime, and (ii) an overt act in furtherance of that intent. Conspiracy is an inchoate offense. The elements of conspiracy at common law include an agreement between two or more persons, an intent to enter into an agreement, and an intent to achieve the objective of the agreement. Although under the traditional definition of conspiracy, the agreement itself was the culpable act, today a majority of states require an overt act in furtherance of the conspiracy, but mere preparation will usually suffice.
41
T/F. The doctrine of transferred intent applies to attempt.
F
only:
homicides
battery
arson
41
Forgery consists of . . .
the making or altering of a false writing with the intent to defraud. A writing that has apparent legal significance may be the subject of common law forgery. The writing need not have monetary value; any legal significance suffices. Writings that derive their value from the mere fact of their existence—historical or artistic value—cannot be the subject of common law forgery.
42
A person found guilty of a crime on the basis of transferred intent is usually guilty of two crimes - _____.
the actual, completed crime and an attempt against the intended victim of the crime
42
For an individual to be convicted as an accessory after the fact under modern statutes, what must be true of the underlying crime . . .
The crime committed by the principal must be a felony, and it must have been completed at the time the accessory renders aid
43
Shooting at one person but missing. The bullet hits an unintended victim. What doctrine is implicated?
doctrine of transfered intent
REMEMBER: the intent follows the bullet
43
Elements of accessory after the fact . . .
1. receives, relieves, comforts, or assists another2. knowing that he has committed a felony3. in order to help the felon escape arrest, trial, or conviction. NOTE: The crime committed by the principal must be a felony, and it must be completed at the time the aid is rendered. It is not enough that the principal has taken a substantial step toward completion of the crime; the crime must have been completed at the time the accessory renders aid.
44
What mental state is required for SL crimes?
None.
RULE: These are crimes with no required mental states. It is a crime that does not require awareness of all the factors constituting a crime.
1. Often such crimes concern regulatory matters or crimes dealing with morality. 1
2. Selling liquor to minors and statutory rape are examples.
3. Any defense that negates intent is not available as a defense to a strict liability crime.
44
How can a person avoid accomplice liability . . .
One who has rendered encouragement or aid to another may avoid liability as an accomplice if he voluntarily withdraws from the crime before it is actually committed by the principal. Withdrawal must come before the chain of events leading to the commission of the offense becomes unstoppable. An individual may voluntarily withdraw from a crime before it is actually committed and avoid liability. What is necessary for effective withdrawal depends on what the person initially did. If the person merely encouraged the commission of the crime, withdrawal requires that he repudiate this encouragement prior to the chain of events leading to the commission of the crime becoming unstoppable. If the person assisted by providing some material to the principal, withdrawal requires at least an attempt to retrieve the material or to neutralize the aid given. Note that an alternative means of withdrawing is to notify authorities or take some other action to prevent the commission of the offense.
45
SL crimes often involve _____. (topic)
Some examples are _____.
What defenses are NOT available?
regulatory matters or crimes dealing with morality
Selling liquor to minors and statutory rape are examples.
Any defense that negates intent is not available as a defense to a strict liability crime.
45
2 versions of assault and elements (and is it a general intent or specific intent crime?)
Assault is a specific intent crime; the attempted battery version of assault requires the intent to commit a battery. There are two types of assault: One is defined as the intentional creation—other than by mere words—of a reasonable apprehension in the mind of the victim of imminent bodily harm, and the other is defined as the intent to commit a battery. The latter version (the attempted battery version) requires not only the doing of an act, but the doing of it with a specific intent or objective.
46
What are the specific intent crimes and their corresponding intent requirement?
1. solicitation - to have the person solicited commit the crime
2. attempt - to complete the crime
3. conspiracy - to have the crime committed
4. first degree premeditated murder - premeditation
5. assault - to commit a battery
6. larceny and robbery - to steal
7. burglary - to commit a felony in the dwelling of another
8. forgery - to defraud
9. false pretenses - to defraud
10. embezzlement - to defraud
46
Battery is defined as . . . (intent?)
an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching.generalThese crimes require only that the defendant be aware that she is acting in the proscribed way and that any attendant circumstances required by the crime are present.
47
On the MBE the word "murder" means _____ - The unlawful killing of a human being with _____. Today, we call it _____. It is not a _____ intent crime. The mental state for "murder" is _____. There are _____ defenses for malice crimes such as _____, which are available for ______ murder, which requires _____ intent.
common law murder
malice aforethought
second degree murder
specific
malice
no special
voluntary intoxication and unreasonable mistake
first degree murder
specific
47
Common law false imprisonment is defined as . . . (intent?)
the unlawful confinement of a person without his valid consent.general intentThese crimes require only that the defendant be aware that she is acting in the proscribed way and that any attendant circumstances required by the crime are present.
48
Two malice crimes on the MBE
CL murder (aka murder for purposes of the bar; aka second degree murder) and arson
48
Kidnapping is generally defined as . . . (intent?)
some movement (i.e., “asportation”) of the victim or concealment of the victim in a “secret” place. general intentThese crimes require only that the defendant be aware that she is acting in the proscribed way and that any attendant circumstances required by the crime are present.
49
Two crimes that can always be charged with transfered intent:
murder
| attempted murder
49
Under the Model Penal Code, consciously disregarding a substantial and unjustifiable risk indicates a person acted __________.
recklessly
50
We never have merger of crimes where there are _____.
two (2) victims
50
A person acts recklessly when he _____ a _____ and_____ risk that circumstances exist or _____, and this disregard constitutes a _____ from the standard of care that a reasonable person would exercise in the situation. Recklessness is one of the four categories into which the Model Penal Code classifies _____.
consciously disregardssubstantialunjustifiablethat a prohibited result will followgross deviationthe mental component of a criminal offense (i.e., the element of fault)
51
T/F. Any defense that negates intent can be used to avoid strict liability.
F.
Any defense that negates intent cannot be used to avoid
strict liability.
51
A person acts recklessly when he . . .
consciously disregards 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 the situation. Recklessness is one of the four categories into which the Model Penal Code classifies the mental component of a criminal offense (i.e., the element of fault).
52
Formula for recognizing strict liability crimes. A crime will be a strict liability crime if:
a. the crime is in the admin, regulatory, or morality AND
b. the statute contains know adverbs like knowingly,
intentionally, or willfully.
52
Four categories into which the Model Penal Code classifies the mental component of a criminal offense (i.e., the element of fault).
recklesslypurposefullyknowinglynegligently
53
Linda was 15 years old, but she appeared and acted much older. When asked, she always said she was 22, and she carried false identification saying that she was that old.
She frequented taverns and drank heavily. One evening in a bar she became acquainted with Duke. He believed her when she told him her claimed age. They had several drinks and became inebriated. Later, they drove in Duke's car to a secluded spot. After they necked for a while, Duke propositioned Linda and she consented. Before Duke achieved penetration, Linda changed her mind, saying, "Stop! Don't touch me! I don't want to do it." When Duke did not desist, Linda started to cry and said, "I am only 15." Duke immediately jumped from the car and ran away. Duke was indicted for attempted rape, contributing to the delinquency of a minor, and attempted statutory rape. The age of consent in the jurisdiction is 16.
If the contributing charge were based on a statute reading, "Whoever shall commit an act affecting the morals of a minor under 16 years of age shall be deemed guilty of contributing to the delinquency of a minor and shall be punished by imprisonment in the state penitentiary for a period not to exceed 5 years, Duke's best legal defense would be that:
(A) The statute is unconstitutionally vague.
(8) Linda consented to his actions. (C) He was entrapped by Linda's
appearance.
(D) He did not intend to conlribule lo
her delinquency.
With respect to the contributing charge under the statute set out in the question above, proof by Duke that he was so inebriated that he could not have formed a criminal intent would be a:
(A) Good defense, because the charge requires specific intent.
(8) Good defense, because at least a general intent is required for every offense.
(C) Poor defense, because contributing to the delinquency of a minor is an offense against a child.
(D) Poor defense, because the state of mind of the defendant is irrelevant to this offense, so long as he was legally sane.
A
D
53
A person acts purposefully when . . .
when it is his conscious object to engage in certain conduct or cause a certain result.
54
The modern rule of accomplice L states that _____.
All "parties to the crime" can be found guilty
of the principal offense. We often speak of the one that actually engages in the act, either personally, or through and innocent agent as the principal and the other parties as accomplices.
An accomplice can be one who aids or encourages the principal to commit the crime.
C. Accomplices are liable for the crime itself and all other foreseeable crimes involved.
D. Do not charge accomplice liability just because a party is present when the crime was committed.
54
A person acts purposefully when it is his _____ to engage in certain conduct or cause a certain result.
conscious object
55
Accomplices are liable for _____.
the crime itself and all other foreseeable crimes involved
55
A person acts knowingly when . . .
he is aware that his conduct is of that nature or that certain circumstances exist.
56
T/F. There is no accomplice liability for a person just standing around. An accomplice must be actively in on the crime as something she wants to see carried out.
T
56
A person acts negligently when he fails to be aware of a _____ and _____ risk that _____ exist or a result will follow, and such failure constitutes a _____ deviation from the standard of care that a _____.
substantial unjustifiablecircumstancessubstantialreasonable person would exercise under the circumstances
57
The word inchoate means _____.
incomplete
57
A person acts negligently when . . .
he fails to be aware of a substantial and unjustifiable risk that circumstances exist or a result will follow, and such failure constitutes a substantial deviation from the standard of care that a reasonable person would exercise under the circumstances.
58
There are three inchoate crimes tested on the MBE. They are:
solicitation
conspiracy
attempt
58
A defendant charged as an accomplice is responsible for _____, as long as _____.
the crimes he did or counseled and any other crimes committed in the course of committing the crime contemplatedthe other crimes were probable or foreseeable.Note that one who may not be convicted of being a principal may be convicted of being an accomplice.
59
Solicitation consists of _____.
inciting, counseling, advising, urging, or commanding another to commit a crime with the intent that the person solicited commits the crime
a. It is not necessary that the person solicited agree.
b. It is not a defense that the person solicited is not guilty.
c. Solicitation merges into the completed crime.
59
What mental state must an accessory after the fact possess?
An accessory after the fact must know that the person he is aiding has committed a felony
60
Solicitation consists of inciting, counseling, advising, urging, or commanding another to commit a crime with _____.
the intent that the person solicited commits the crime
60
The intent necessary to be convicted of conspiracy is:
The intent to agree and the intent to achieve the objective of the conspiracy
61
T/F. It is not necessary that the person solicited agree.
T
61
What are the two requirements for a criminal attempt?
The specific intent to perform an act and obtain a result, that, if achieved, would constitute a crime; and an overt act in furtherance of the crimeThe overt act requirement means that the defendant must have committed an act beyond mere preparation for the crime.
62
T/F. It is a defense that the person solicited is not guilty.
F
| not a defense
62
Intent as applied to the crime of attempt?
No matter what the intent required for the substantive crime being attempted (a general or specific intent crime, or a strict liability crime), the defendant must have the specific intent to perform an act and obtain a result that, if achieved, would constitute a crime.
63
T/F. Solicitation merges into the completed crime.
T
| so if solicit someone to commit armed robbery and they do, then you're guilty of armed robbery
63
The overt act requirement (criminal attempt) means that . . .
the defendant must have committed an act beyond mere preparation for the crime.
64
Conspiracy is an agreement between _____ to commit a crime. There must be:
two or more persons
a. an agreement b/w 2 or more
b. intent to enter into the agreement
c. intent by at least 2 people to commit a crime
Also . . .
Need for an OVERT ACT - The MAJORITY RULE in the U.S. is that there must be some overt done in furtherance of the conspiracy before conspiracy can be charged.
a. Any little act will do.
b. Examples include:
i. Making a telephone call to recruit other co-conspirators
ii. Buying a gun to commit robbery
iii. Driving to the bank you plan to rob
MINORITY RULE: There is no need for an overt act. The agreement itself is enough to be liable for conspiracy.
a. Impossibility is no defense to conspiracy.
FL uses the minority rule.
64
What is a “hub and spoke” conspiracy and how are they treated?
If the agreements have one common member and it is established that any subagreements are reasonably independent of each other, the series of crimes committed will be considered separate conspiracies.
65
Merger rule with respect to conspiracy:
Conspiracy does not merge with the substantive crime committed.
65
What is a chain relationship (criminal)?
If there is a series of agreements, all of which are regarded as part of a single large scheme in which all of the parties to the subagreements are interested, then there is only one conspiracy. This is known as a “chain” relationship. If there is an agreement to commit a preparatory crime followed by substantive crime, there is only one conspiracy. This is another example of a “chain” relationship.
66
Merger rule with respect to solicitation and conspiracy?
Solicitation merges into the completed crime.
Conspiracy does not merge with the substantive crime committed.
Liability: each co-conspirator is liable for all the crimes of the other co-conspirators if done in furtherance of the conspiracy and that were foreseeable.
66
Describe the possible relationship b/w conspirators and how they are treated . . .
If the agreements have one common member and it is established that any subagreements are reasonably independent of each other, the series of crimes committed will be considered separate conspiracies. This is known as a “hub and spoke” relationship. If there is an initial agreement among the parties to engage in a course of criminal conduct constituting all the crimes, then there is only one conspiracy. If there is a series of agreements, all of which are regarded as part of a single large scheme in which all of the parties to the subagreements are interested, then there is only one conspiracy. This is known as a “chain” relationship. If there is an agreement to commit a preparatory crime followed by substantive crime, there is only one conspiracy. This is another example of a “chain” relationship.
67
Each co-conspirator is liable for _____ of the _____ if _____.
all the crimes
other co-conspirators
done in furtherance of the conspiracy and that were foreseeable
67
The crime of solicitation is completed when _____. It is not necessary that the person solicited _____ or _____.
when the solicitation is madeagree to commit the crime or do anything in response
68
The agreement between the parties to a conspiracy may be _____.
express or implied
68
For criminal liability for solicitation to attach, there is no requirement that the person solicited _____ or that the person solicited _____.
actually agree to commit the crimeactually commit or attempt to commit the crime
69
T/F. The agreement between the parties to a conspiracy must be express.
F
they may also be implied
69
If the evidence is sufficient, a defendant charged with an attempt to commit a crime can be found guilty of:
Attempt to commit the crime onlyA defendant charged only with an attempt to commit a crime can be convicted only of the attempted crime and may not be convicted of the completed crime, regardless of whether the evidence shows that he completed it.
70
T/F. Various people can be part of a conspiracy but only if they know other people in the conspiracy.
F
Various people can be part of a conspiracy even if they do not know other people in the conspiracy.
70
Describe the necessary intent for the crime of conspiracy . . .
A defendant must possess both the intent to agree AND the intent to achieve the objective of the conspiracy to be convicted of conspiracy.
71
Withdraw and co-conspiracy . . .
Withdrawal - A co-conspirator can never truly withdraw from his role in the conspiracy but a co-conspirator may attempt do some act to withdraw that will allow him not be liable for the other co-conspirators subsequent crimes.
71
What two requirements are necessary for a conspirator to be liable for crimes committed by a co-conspirator?
The crimes were committed in furtherance of the conspiracy’s objectives and were foreseeable
72
An attempted crime is the ____ intent to commit a certain crime coupled with _____.
specific
a substantial step beyond mere preparation in the direction of completion of the crime
72
A conspirator is liable for the crimes committed by a co-conspirator only if _____ and _____. There is no requirement that the crimes were part of _____ between the conspirators; all that is required is that they be foreseeable.
the crimes were committed in furtherance of the conspiracy’s objectiveswere foreseeablethe original agreement
73
T/F. Mere preparation for a crime is not enough for attempt.
T
73
Mistake of fact is __________ as a defense for __________. The defense is also available for _____, and, unlike _____, the mistake need not be reasonable.
Available; general intent crimes, but the mistake must be reasonablespecific intent crimesgeneral intent crimes
74
Insanity is a _____ term and not a _____ term.
legal
| medical
74
Mistake of fact as it relates to specific and general intent crimes . . .
The defense is available for general intent crimes; however, the mistake must be reasonable. The defense is also available for specific intent crimes, and, unlike general intent crimes, the mistake need not be reasonable.
75
Tests for insanity and trigger words:
FL TEST: M'Naghten Rule: At the time of the conduct the defendant did not KNOW his act
would be wrong or he did not understand the nature and quality of his actions.
Irresistible Impulse Test: Defendant was unable to control his actions or conform his conduct to the law.
Durham or The Product Test: the crime was the product of her mental illness.
MAJORITY TEST: ALI or MPC Test: At the time of the crime she lacked the substantial capacity to
either:
1. APPRECIATE the criminality of his conduct;
2!
ii. conform her conduct to the requirement of the law.
75
The defense of necessity may be available when The test is _____; _____ is insufficient.
a defendant reasonably believes that he must commit otherwise criminal conduct to avoid some harm to society that would exceed the harm caused by his conduct.objectivea good faith belief in the necessity of one’s conduct
76
Two types of intoxication and difference . . .
Two types of intoxication:
a. voluntary - could be for addicts or alcoholics.
b. involuntary -They hold you down and get you drunk or doped up, or
someone slips something in your drink. This is somewhat like insanity.
76
Self-defense is available when a defendant _____ he is justified in using force against another.
reasonably believes
77
T/F. Addicts and alcoholics can not be voluntarily intoxicated because it is involuntary.
F
voluntary - could be for addicts or alcoholics
77
The defense of duress always involves a _____ threat.
human
78
Insanity and involuntary intoxication is a defense to _____.
Voluntary intoxication is only a defense to _____.
all crimes including strict liability crimes
specific intent crimes and to no other types of crime
78
Entrapment is an affirmative defense to situations where . . . .
law enforcement initiated the criminal scheme, and the defendant would not have engaged in the criminal behavior had it not been for the solicitation of law enforcement.
79
Voluntary intoxication is only a defense to _____.
specific intent crimes and to no other types of crime
79
For an entrapment defense to succeed, the criminal design must _______; and the defendant must _______.
Originate with law enforcement officers; not have been predisposed to commit the crime
80
Rules for infancy question on MBE.
Children under 7 = no L
| B/w 7-14 = rebuttable presumption of no L
80
At common law, duress is available if the defendant commits a crime to _____. A defendant may commit an otherwise criminal act (other than _____), provided that he believes that _____.At common law, duress is not available as a defense if the defendant commits a crime to prevent harm to _____.
prevent imminent death or great bodily harm to himself or a third personhomicidedeath or great bodily harm will be inflicted if he does not commit the crimea dwelling
81
Rules of self defense:
D. Self Defense
1. We divide self defense into two parts: non-deadly force and deadly force.
2. RULE: force) A victim may use non-deadly force any time the victim reasonably believes that force is about to be used against him.
3. RULE: {deadly force) A victim may use deadly force any time the victim reasonably believes deadly force is about to be used against him.
4. MINORITYRULE:DutytoRetreat. Insomejurisdictions a victim is required to retreat to the wall before using deadly force.
5. Exceptions to Duty to Retreat:
a. No need to retreat from one's home.
b. No need to retreat if one is a victim of rape or
robbery.
c. Police officers have no duty to retreat.
= no
Do not give the right of self defense to an original
aggressor.
7. To regain a right to self defense an original aggressor must:
a. effectively withdraw AND
b. must verbally communicate that he is doing so OR
b. the victim of the initial aggression suddenly escalates the minor fight into a deadly altercation and the initial aggressor has no chance to withdraw.
81
Difference b/w necessity and duress . . .
When a defendant commits a crime to prevent a greater harm than that caused by committing a crime, the available defense is necessity. Duress excuses a crime committed under threats by a person.
82
Do not give the right of self defense to _____.
Do not give the right of self defense to an original
aggressor.
To regain a right to self defense an original aggressor must:
a. effectively withdraw AND
b. must verbally communicate that he is doing so OR
the victim of the initial aggression suddenly escalates the minor fight into a deadly altercation and the initial aggressor has no chance to withdraw.
82
In most states, who has the burden of persuasion to prove or disprove insanity as a defense to criminal liability, and by what standard?
The defendant, by standard of either clear and convincing evidence or a preponderance of the evidence
83
To regain a right to self defense an original aggressor must:
To regain a right to self defense an original aggressor must:
a. effectively withdraw AND
b. must verbally communicate that he is doing so OR
the victim of the initial aggression suddenly escalates the minor fight into a deadly altercation and the initial aggressor has no chance to withdraw.
83
The M’Naghten Rule requires proof that the defendant:
(i) Have a disease of the mind,(ii) That caused a defect of reason,(iii) Such that he lacked the ability at the time of his actions to either know the wrongfulness of his actions or understand the nature and quality of his actions.The defendant suffering from delusions, believing his actions are morally right, or being unable to control himself are not elements of the M’Naghten test.
84
Exceptions to Minority Duty to Retreat:
5. Exceptions to Duty to Retreat:
a. No need to retreat from one's home.
b. No need to retreat if one is a victim of rape or
robbery.
c. Police officers have no duty to retreat.
= no
84
Statutory rape is a _____ liability crime.
strict
85
Ted frequently visited Janet, his next-door neighbor. Janet was separated from her husband, Howard. Howard resided with his mother but jointly owned the house in which Janet resided. late one night, Ted and Janet were sitting on the bed in Janet's bedroom drinking when Howard burst through the door and told Ted, "Get out!" When Ted refused, Howard challenged him to outside and "fight it out." Ted again refused. Howard then pulled a knife from his pocket and lunged at Ted. Ted grabbed a lamp, struck Howard on the head, and killed him. Ted is charged with murder.
On a charge of murder, Ted should be found:
(A) Not guilty, because Ted had as much right as Howard to be in the house.
(B) Not guilty, because Howard attacked Ted with a deadly weapon.
(C) Guilty, because Ted's presence in Janet's bedroom prompted Howard's attack.
(D) Guilty, because Ted's failure to obey Howard's order to leave the house made him a trespasser.
B
85
In order to commit robbery, one must use force or intimidation to _____. The force used must be _____.
take or retain the itemsufficient to overcome the victim’s resistance
86
Rules on defense of dwelling:
RULE:
1. Deadly force may never be used solely to defend your property.
2. You cannot use spring guns to protect your home when you are away.
3. If you are in your home you can protect yourself and family from an intruder with deadly force if necessary.
86
T/F. For robbery, if force is used, it must be sufficient to overcome the victim’s resistance.
True.
87
Rules on Duress:
RULE: Duress is a defense to a crime other than a homicide that the defendant reasonably believed that another person would imminently inflict death or great bodily harm upon him or a member of his family if he did not commit the crime.
87
For robbery, if force is used, it must be _____. If a threat is used, it must be of _____ to _____, _____, _____, _____. A threat to _____ is not sufficient, except _____. The force or intimidation must be used either to _____ or to _____.
sufficient to overcome the victim’s resistanceimmediate death or serious physical injurythe victima member of her familya relativea person in her presence at the timedamage propertyfor a threat to destroy the victim’s dwellinggain possession of the propertyretain possession immediately after such possession has been accomplished
88
Duress is a defense to a crime other than _____.
a homicide
88
Which of the following batteries is usually treated as an aggravated battery?
A battery of a police officer
89
Mistake of Fact
1. Mistake of fact is relevant if _____.
2. This defense is irrelevant if _____.
3. Mistake of fact is only a defense to a crime when it _____. To be a valid defense the mistake must _____.
4. Any mistake whether _____ is a valid defense to a _____.
it shows defendant lacked the state of mind required for the crime
the crime is strict liability
negates intent
be reasonable
reasonable or unreasonable
specific intent crime
89
Most statutes define certain acts as aggravated batteries and punish them as felonies. The most common aggravated batteries are batteries in which:
(i) a deadly weapon is used; (ii) A serious bodily injury is inflicted; and (iii) the victim is a child, woman, or police officer.
90
CHART:
MENTAL STATE OF CRIME CHARGED
Specific Intent
Malice and General Intent
Strict Liability
APPLICATION OF DEFENSE
Specific intent = any mistake (reasonable or unreasonable can be used to negate specific intent)
Malice and General Intent = reasonable mistake only
Strict Liability = never; no mistake of fact will negate
90
T/F. With respect to robbery, the force or threats of force may be used to retain possession immediately after such possession has been accomplished.
True.
91
Unless the crime requires _____, consent is usually not a defense.
the lack of consent of the victim (e.g. rape)
91
Fraud as to _______, _______, and _______ are insufficient to establish the “without consent” requirement for rape.
Whether the defendant is the victim’s husband; the defendant’s intent to marry the victim; the defendant’s profession or identity
92
_____ negates entrapment.
predisposition
Entrapment
1. A very narrow defense
2. It is almost never available because predisposition
negates entrapment.
92
T/F. Consent obtained by fraud as to the nature of the act (i.e., that the act constitutes sexual intercourse) will generally be sufficient to satisfy the “without consent” element of rape.
True.
93
CL Crimes:
Battery is a _____ intent crime. It is the _____.
A battery need not be _____, and the force need not be applied directly.
general
unlawful application of force to the person of another resulting either in bodily injury or offensive touching.
intentional
93
T/F. When the fraud is as to whether the defendant is the victim’s husband, the “without consent” element ordinarily will not be satisfied.
True.
94
T/F. Causing a dog to attack the victim is a battery.
T
94
T/F. Forms of fraud such as the defendant’s false promise to marry the victim or the defendant’s misrepresentation of his profession or identity generally will satisfy the “without consent” requirement.
False.
95
There are two theories of assault:
a. Assault as an attempted battery. This is a
specific intent crime.
b. Assault as a threat to commit a battery or to intentionally create (other than mere words) a reasonable apprehension in the mind of the victim of imminent bodily harm. This is a general intent crime.
95
T/F. The fact that the victim is held for a long period of time generally is not considered in determining whether a kidnapping is “aggravated.”
True.
96
Statutes in the jurisdiction define criminal assault as "an attempt to commit a criminal battery" and criminal battery as "causing an offensive touching." As Edward was walking down the street, a gust of wind blew his hat off. Edward reached out, trying to grab his hat, and narrowly missed striking Margaret in the face with his hand. Margaret, fearful of being struck by Edward, pushed Edward away.
If charged with criminal assault, Edward should be found:
(A) Guilty, because he caused Margaret to be in apprehension of an offensive touching.
(8) Guilty, because he should have realized he might strike someone by reaching out.
(C) Not guilty, because he did not intend to hit Margaret.
(D) Not guilty, because he did not hit Margaret.
If charged with criminal battery, Margaret should be found:
(A) Guilty, because she intentionally pushed Edward.
(B) Guilty, because she caused the touching of Edward whether she meant to do so or not.
(C) Not guilty, because a push is not an offensive touching.
(D) Not guilty, because she was justified in pushing Edward.
C
D
96
Most states elevate the crime of kidnapping to aggravated kidnapping when _____.
the kidnapping was committed for ransom, when the kidnapping was committed for the purpose of another crime, and when the victim was a child.
97
Homicide is the _____. The victim must be _____.
unlawful killing of a human being
a human
98
When you see the word "murder" it means
| _____ or what we call _____. It _____ a specific intent crime. Murder is the _____. It is a _____ crime.
common law murder
murder in the second degree
is not
unlawful killing of a human being with malice aforethought
malice
99
If MBE question says that it is first degree premeditated murder this would be a _____ intent crime.
specific
100
Murder has four (4) intents:
a. kill
b. inflict great bodily injury
c. reckless indifference/depraved heart
d. intent to commit a felony and someone dies in the process
101
Manslaughter is _____.
There are two types of manslaughter:
the unlawful killing of a
human being without malice
i. voluntary
(An unlawful killing that would be murder but for the
existence of adequate provocation giving rise to some sudden and intense passion. There must not be enough time between the provocation and killing for a reasonable person to cool. Finally, the defendant must not have cooled off between the provocation and the killing.)
ii. involuntary
_ _ _ _ _ (A killing committed with criminal negligence or during the commission of an unlawful act - usually a misdemeanor or an unenumerated felony.) felony murder
102
Statutory Modification of Common Law Classification
1. In some jurisdictions, murder is divided into degrees by statute.
2. A murder will be second degree unless it comes under the following circumstances:
a. deliberate and premeditated killing
b. a felony murder
c. bar examiners will label first degree murder for
you
d. often bar examiners will give you a set of
homicide statues to interpret.
103
Most modern statutes have limited felony murder. Felony murder is usually limited to _____
inherently dangerous felonies, such as rape, robbery, burglary, arson, etc.
104
There are five (5) defenses to felony murder:
1. The defendant Is not guilty of the underlying felony.
2. The felony must be something other than the killing.
3. Death must have been a foreseeable result of the felony.
4. A death caused while fleeing is felony murder, but not
felony murder after the felon has reached a place of temporary safety.
5. The "redline view" or "agency theory" of felony murder holds that felon is not liable for the death of a co-felon as a result of resistance or police killing.
(FL distinction: ANYONE killed is L for felony murder)
105
Rape is ______.
the unlawful carnal knowledge of a
woman by a man, not her husband, without her consent
The slightest penetration is sufficient.
106
Statutory rape is _____.
The carnal knowledge of a female under the age
of consent.
2. It is not necessary to show lack of consent.
3. Statutory rape is a strict liability crime, so a showing of a reasonable mistake as to age or a showing of voluntary consent is irrelevant.
107
Larceny is _____.
Discuss intent and title.
Larceny: trespassory taking and caring away the personal property of another
with the intent to permanently deprive
time of the taking.
i. An intent to create a substantial risk of loss, or an intent to sell or pledge the goods to the owner, is sufficient for larceny.
ii. Where there is an intent to only borrow the property or to keep it as repayment of a debt there is no larceny.
c. Taking something that you think is yours is not larceny. This would be what is called "claim of right."
d. The thief obtains possession of the property but not title.
108
In which of the following situations is Defendant most likely to be guilty of larceny?
(A) Defendant took Sue's television set, with the intention of returning it the next day. However, he dropped it and damaged it beyond repair.
(B) Defendant went into T om's house and took $100 in the belief that Tom had damaged Defendant's car to that amount.
(C) Mistakenly believing that larceny does not include the taking of a dog. Defendanttookhis neighbor's dog and sold it.
(D) Unreasonably mistaking George's car for his own, Defendant got into George's car in a parking lot and drove it home.
C
109
Embezzlement is _____.
Discuss intent and title.
fraudulent conversion of personal prop of another by a person in lawful possession
of the property. (ex. bank teller)
2. There must be fraudulent intent in the taking.
3. Claim of right can be a defense to embezzlement.
4. Embezzlement allows defendant to misappropriate property in her rightful possession, while in larceny the defendant misappropriates property not in his possession.
5. Embezzler obtains possession of the property but not title.
110
T/F. Where there is an intent to only borrow the property or to keep it as repayment of a debt there is no larceny.
T
111
Taking something that you think is yours is not larceny. This would be what is called "_____." It also applies to _____.
claim of right
embezzlement
112
Difference beween embezzlement and larceny.
Embezzlement allows defendant to misappropriate property in her rightful possession, while in larceny the defendant misappropriates property not in his possession.
113
False pretenses is _____.
obtaining of title to the personal property of another by intentional false statement of past or existing fact with intent to defraud.
The defendant gets possession and title to the property.
The victim must actually be deceived by or act in reliance on, the misrepresentation.
A misrepresentation as to what will occur in the future not false pretenses.
114
A misrepresentation as to _____ is not false pretenses.
what will occur in the future
115
Robbery is _____.
Robbery is the taking of the personal property of another from the other's person or presence by force or threats of death or physical injury with the intent to permanently deprive the victim of the property.
2. Robbery is a combination of larceny and assault.
3. Picking a pocket is not robbery because it is done with stealth.
4. Picking a pocket is larceny.
116
Robbery is a combination of _____ and _____.
larceny
| assault
117
Picking a pocket is not robbery because _____. Picking a pocket is a _____.
it is done with stealth
| larceny
118
Extortion consists of _____.
obtaining property by means of threats to do harm or to expose information. Extortion is what is sometimes called blackmail.
2. Extortion requires threats of future harm.
3. Robbery requires threats of immediate harm.
4. Extortion does not require a taking from the person or presence of the victim.
119
_____ is what is sometimes called blackmail.
Extortion
120
Difference b/w extortion and robbery.
2. Extortion requires threats of future harm.
| 3. Robbery requires threats of immediate harm.
121
T/F. Extortion requires a taking from the person or presence of the victim.
F
Extortion does not require a taking from the person or presence of the victim.
122
The defenses against habitation are:
burglary and arson
123
Burglary is the _____.
breaking and entering dwelling of another at night with intent to commit a felony therein
The felony need not be carried out to constitute burglary.
3. The intent to commit a felony inside must exist at the time of the breaking and entry.
4. Entry through an open door to a dwelling with no breaking may not be burglary but opening an interior door once inside would make it burglary.
5. Any part of the body that crosses into the dwelling constitutes entry.
124
T/F. The felony need not be carried out to constitute burglary.
T
125
For burglary, the intent to commit a felony inside must exist _____.
at the time of the breaking and entry.
126
T/F. Entry through an open door to a dwelling with no breaking may not be burglary but opening an interior door once inside would make it burglary.
T
127
For burglary, _____ constitutes entry.
Any part of the body that crosses into the dwelling constitutes entry.
128
Arson is the _____.
malicious burning of the dwelling house of another
Arson is a malice crime (meaning with intent or reckless · disregard of an obvious risk.)
3. There must have been some burning (meaning caused by afire). Charringissufficient.
4. Water damage, smoke damage, or an explosion without a resulting fire that burns a dwelling is not arson.
129
T/F. Charing is not sufficient for arson.
T
There must have been some burning (meaning caused by afire). Charringissufficient.
4. Water damage, smoke damage, or an explosion without a resulting fire that burns a dwelling is not arson.
130
T/F. An explosion is sufficient for arson.
F
Water damage, smoke damage, or an explosion without a resulting fire that burns a dwelling is not arson.
131
In FL, D has burden of proving the defense of insanity by _____.
clear and convincing evidence
132
FL requires the D to give notice of his intent to rely on the _____ defense.
insanity
the defense may be raised after arraignment
133
FL allows introduction of ______ evidence of a D's sanity.
nonexpert.
134
_____ is not a defense to any offense in FL.
Voluntary intoxication.
135
FL accepts the crime of solicitation to _____.
both misdemeanors and felonies.
136
FL provides a defense to the charge of criminal solicitation if the accused _____.
after having solicited another person to commit an offense, persuades the other person not to commit the offense or otherwise prevents its commission. The circumstances must manifest a complete and voluntary renunciation of criminal purpose by the accused.
137
FL provides a defense to conspiracy if _____.
the accused, after having engaged in criminal conspiracy, persuades all co-conspirators not to commit the target offense or otherwise prevents its commission. The circumstances must manifest a complete and voluntary renunciation of criminal purpose by the accused.
138
FL provides a defense to the charge of criminal attempt if the accused ______.
after having engaged in a criminal attempt, abandons his attempt to commit the offense, or otherwise prevents its commission. The circumstances must manifest a complete and voluntary renunciation of criminal purpose by the accused.
139
In FL, generally, a defendant convicted of ______ is punished pursuant to the penalties provided for the next lower degree of the substantive offense.
solicitation, conspiracy, or attempt
140
FL permits the use of deadly force in _____.
Self-defense, defense of others, to prevent commission of a felony in a dwelling, and in defense of property other than a dwelling to prevent imminent commission of a forcible felony (treason, murder, manslaughter, sexual battery, robbery, burglary, arson, kidnapping, aggravated assault, aggravated battery, aircraft piracy, bombing, and any other felony involving use or threat of physical violence against any person.
141
T/F. No duty to retreat in FL.
T
142
Although the SC found deadly force to be reasonable under the 4th only where it is necessary to prevent escape and where the felon threatens death or serious bodily harm, in FL _____
an officer may also use dead where the "officer reasonably believes that the fleeing felon has committed a crime involving the infliction or threatened infliction of serious physical harm to another person."
143
In FL, the striking of a vehicle may constitute a _____ on its occupant when _____.
battery
| there is a sufficiently close connection between the vehicle and the occupant to be a "touching."
