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Bar Exam > Criminal > Flashcards

Criminal Flashcards

1
Q

Accomplice Liability

A

one aids, abets, encourages or facilitates the commission of a crime with the intent that the crime be committed

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2
Q

Accessory After the Fact

A

someone who shields, shelters or assists another knowing that this person has committed a felony in order to help the felon escape arrest, trial or conviction

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3
Q

Merger

A

solicitation or attempt merge into the target crime if it is completed; one cannot be convicted of both solicitation or attempt and the complete crime

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4
Q

Solicitation

A

inciting, urging, counseling, or commanding another to commit a crime with the specific intent that the person solicited commit the crime

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5
Q

Attempt

A

Specific intent to commit a crime + substantial step beyond mere preparation

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6
Q

Conspiracy

A

(1) Agreement between two or more persons
(2) intent to achieve a unlawful purpose
(3) Overt act in furtherance

Defense: withdrawal if before overt act; if after, can avoid liability for crime not conspiracy

liability: for all foreseeable crimes committed in furtherance of the conspiracy

chain or hub-spoke

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7
Q

Homicide

A

The unlawful killing of another person. The two principal types are murder and manslaughter

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8
Q

First-Degree Murder

A

intentionaly, deliberate and premeditated killing

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9
Q

Second-Degree Murder

A

the intentional killing of a person with malice aforethought
- intentional killing
- intent to commit great bodily harm
- depraved heart killing: wanton and willing disregard of human life
- felony murder

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10
Q

Voluntary Manslaughter

A

intentional killing that would be murder, but for the existence (1) adequate provocation, (2) imperfect defense, or (3) diminished capacity

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11
Q

Involuntary Manslaughter

A

an unintentional killing that results either from (1) criminal negligence or (2) misdeameanor- murder

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12
Q

Battery

A

the intentional, reckless or criminally negligent application of unlawful force to another resulting in either bodily injury or offensive touching

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13
Q

Assault

A

(1) an attemot to commit battery or (2) the intentional creation of reasonable apprehension of imminent harm

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14
Q

False Imprisonment

A

unlawful confinement of a person

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15
Q

Kidnapping

A

false imprisonment that involves movement of the person or concealment of a person in a secret

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16
Q

Larceny

A

(1) wrongful taking and (2) carrying away (3) of another’s tangible personal property (4) with the intent to permanently deprive

merges w/ robbery

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17
Q

Robbery

A

larceny plus force or threat of immediate harm

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18
Q

Burglary

A
  1. tresspassory breaking & entering
  2. dwelling of another
  3. at night time
  4. specific intent to commit felony inside
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19
Q

Embezzlement

A

(1) fraudulent (2) conversion (3) of another’s personal property (4) by a person in lawful possession

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20
Q

False Pretenses

A

(1) obtained title (2) to another’s personal property (3) by an intentional false statement of fact (4) with the specific intent

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21
Q

Larceny by Trick

A

larceny by fraud or deception resulting in the conversion of another’s property (possession of, but not title to)

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22
Q

Forgery

A

making of false writing with apparent legal significance and with intent to defraud

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23
Q

Arson

A

malicious burning of another’s dwelling
modern: any structure

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24
Q

Perjury

A

willfully making a false statement of a material matter after promise to tell the truth

25
Q

Receiving Stolen Goods

A

receiving control of stolen property, knowing it is stolen, and with intent to permanently deprive; must show goods are stolen upon receipt

26
Q

Defenses

A
  • mistake of fact
    -mistake of law
  • Insanity
  • Intoxication
  • self defense
  • defense of others
  • defense of property
  • duress
  • necessity
  • entrapment
27
Q

Homicide

A

Common law murder is the unlawful killing of a human being committed with malice
aforethought. Malice aforethought will be found if the killing is committed with any of the
following mental states

  • intent to kill
  • intent to inflict great bodily injury
  • reckless indifference to unjustifiably high risk to human like (depraved heart)
  • Felony murder
28
Q

Intent to Kill

A

To be found guilty, D conduct must be the actual and proximate cause of V’s death, and D must have intended to kill V

29
Q

California Evidence

A

Under Proposition 8 of the California Constitution (hereafter Prop. 8), any evidence that is relevant may be admitted in a criminal case. However, Prop. 8 makes an exception for balancing under California Evidence Code (hereafter CEC) 352, which gives a court discretion in excluding relevant evidence if its probative value is substantially outweighed by a risk of unfair prejudice, confusion of issues, or misleading the jury

This case is civil, so Prop 8 will not be applied to the evidence

30
Q

Reckless indifference

A

To be found guilty, D must demonstrate reckless indifference to an unjustifiably high risk to human life

31
Q

Felony Murder

A

Under the FMR, D can be found guilty for a unintended and foreseeable killing that is proximately caused by or during the commission or attempted commission
of an inherently dangerous felony

(1) Felony

(2) Foreseeable

(3) Proximate cause

(4) Limitation: Death of Bystander, Death of a Co-felon, point of safety

32
Q

First Degree Murder

A

A killing that is premeditated and deliberate

(1) premeditated:
D had enough time to reflect on the idea, or plan the killing

(2) Deliberate:
made the decision to kill in a cool and dispassionate manner

(3)Felony murder

33
Q

Second Degree Murder

A

Second Degree is the statutory version of common law murder

34
Q

Voluntary Murder

A

(1) must be provocation that would arouse a sudden/intense passion in the mind of an ordinary reasonable person
(2) D must have actually been provoked
(3) There must not have been sufficient time for an ordinary reasonable person to cool off
(4) D did not actually cool off

OR

If D’s use of deadly force was inappropriate, but D believed such force was appropriate,
imperfect self-defense might mitigate a murder charge down to voluntary manslaughter

35
Q

Involuntary Murder

A

To be found guilty of involuntary manslaughter, D must have been grossly negligent

36
Q

Defenses to Murder

A

Insanity
Intoxication
Self-Defense
Duress
Entrapment: crime is induced by the government official or agent and D was not predisposed to commit a crime already

37
Q

Insanity

A

Due to the mental disease or defect

M’Naghten Rule: didnt know the nature and quality of the act or wrongfulness of the act

Irresistible Impulse Test: lacked the capacity for self-control and free choice

Durham Rule: would not have been committed but for the disease or defect

Model Penal Code Test: did not have substantial capacity to appreciate the wrongfulness of the act or to conform his conduct to the law

38
Q

Form of Question

A

Leading: direct

Assumes facts not in evidence

Calls for Narrative

39
Q

Relevance

A

Logical: evidence has a tendency to prove or disprove a disputed fact

Legal: excludes evidence is the probative value is substantially outweighed by the danger of
- unfair prejudice
-confusing the issues
- waste of time
- misleading the jury

40
Q

Policy Exclusion

A

Subsequent Remedial Measures
Insurance Liability
Offer to pay Medical Expenses
Plea Deals
Sexual Misconduct
compromise offers or negotiations

41
Q

Character Evidence

A

inadmissible to prove conduct in conformity with that character trait

42
Q

Character Evidence: Criminal Exceptions

A
  • D may introduce O, R of good character
    - P may rebut character evidence of same trait
  • D may introduce V’s character: O,R (CA: S)
    - P can rebut with R, O, S
  • MIMIC
  • sexual misconduct to prove someone else did it, or consent
43
Q

Character Evidence: Civil Exceptions

A
  • essential element to a claim
  • past sexual assault in a sexual assault case (FRE)
  • Specific bad act: MIMIC
44
Q

MIMIC

A

Motive
Intent
absence of Mistake
Identity
Common Plan

45
Q

Habit

A

admissible to prove conforming conduct with a particular habit. must be consistently repeated

46
Q

Tangible Evidence

A

Authentication
Best Evidence Rule
Parol Evidence

47
Q

Authentication

A

Physical objects: testimony, distinctive characteristics, chain custody

Documents
- self authenticating: certified, public, official records, periodicals

-Verifying handwritten: expert comparing another or lay witness

Oral statements- authenticate identity of the speaker by testimony

48
Q

Best Evidence Rule (Secondary Evidence Rule)

A

when attempting to prove a writing, recording, or photograph

exception: unobtainable

49
Q

Witnesses

A

Competence: personal knowledge and take an oath

Impeaching:
- character of truthfulness
-criminal conviction
- Prior inconsistent statements
- Bias
- sensory deficiency
- hearsay declarant
-collateral matter
- rehabilitation

50
Q

Witness Competence

A

Witness: personal knowledge + oath

Lay witness: based on the perception of the witness and it is helpful to understand the testimony or determine a fact in issue

Expert Testimony:allowed if scientific, technical, or specialized testimony will help the trier of fact

51
Q

Spousal Privilege

A

Immunity: spouses may not be required to testify against each other in criminal case
- witness spouse is holder
- applies to events before and during marriage

Marital Communication: during marriage protected in civil or criminal
- both spouses hold privilege
- does not expire

exception: crime against spouse, child, or bigamy

52
Q

Attorney-Client

A

protects communications made during or when seeking professional services

exception: crime/fraud or if client dispute with attorney

53
Q

Physical Patient

A

protects statements made for the purpose of obtaining medical treatment

exceptions:
- information revealed does not relate to treatment
patients physical condition is at issue
made as part of crime or tort

54
Q

Psychotherapist Patient

A

protects statements made to psychotherapist/ licensed social worker

55
Q

Hearsay

A

an out of court statement made for the truth of the matter asserted

56
Q

Nonhearsay

A

prior statements of declarants (consistent, inconsistent, or identification)

Opposing party admission (judicial, adoptive, vicarious, or co-conspirator

57
Q

Hearsay Exceptions (unavailable declarant)

A
  1. Former testimony under oath w/ opportunity to cross
  2. Dying Declarant about cause or circumstance, believing death is imminent
  3. Statement against interest: at the time it was made and usually not made unless true
  4. Statement of personal or family history
  5. Forfeiture against wrongdoing- intentional wrongdoing with intent to prevent testimony
58
Q

Hearsay Exception: Unavailable Declarant

A
  1. Exciting Utterance
  2. Present sense of Impression
  3. Statement of present mental/physical condition
  4. Statement made for purpose of medical treatment or diagnosis
  5. Recorded recollection
  6. Business Records (medical, police)
  7. Public records
  8. Catch-all
59
Q
A

Bar Exam (16 decks)

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