Criminal Law Flashcards
(79 cards)
1
Q
Jurisdiction
A
- Any act constituting an element of an offense occurred in the state.
- Act outside the state caused a result in the state.
- The crime involved neglect of a duty imposed by the law of the state.
- Attempt or conspiracy occurred in the state.
2
Q
Merger (Common Law)
A
- If person engages in conduct constituting a felony and misdemeanor, they could be convicted only of the felony.
3
Q
Merger (Modern Law) + Exceptions to Rule
A
- Modern Law there is no merger of crimes.
- Exceptions: Soliciting to commit and Crime and Attempted Crimes that are carried out. These merge.
- Conspiracy does not merge however.
4
Q
Felony vs. Misdemeanor
A
- Felonies: Punishable by death or imprisonment for more than one year.
- other crimes are misdemeanors.
5
Q
General Elements of a Crime
A
- A physical act. (actus reus)
- A mental state (mens rea)
- A concurrence of the act and mental state
- A crime MAY also require proof of a result and causation (act caused harmful event(
6
Q
Physical Act (What counts)?
A
D must:
- perform voluntary act or;
- fail to act under circumstances that impose a legal duty.
7
Q
Omission as an “Act”. When can there be liability?
A
- There is a legal duty to act.
- The D has knowledge of the facts giving rise to the duty to act. and;
- It is reasonably possible to perform the duty.
8
Q
Legal Duty to Act (Where Omission Could be a Crime). Five Circumstances:
A
- By Statue (Must File Tax Return)
- By Contract (for example, an employment contract but must be on the job)
- Relationship (Parent has duty to protect child)
- Voluntary Assumption (Think Rock and Vin Diesel Hypo)
- When D created the peril
9
Q
Possession as an Act (What are the elements)?
A
- Must possess long enough to have ability to reject possession.
- Possession does not need to be exclusive
- Possession can be constructive or within Ds dominion and control.
10
Q
Specific Intent (Crimes) 11 types
A
- Solicitation
- Conspiracy
- Attempt
- First Degree premeditated murder
- Assault
- Larceny
- Embezzlement
- False pretenses
- Robbery
- Burglary
- Forgery
11
Q
Specific intent crime defenses (two)
A
- Voluntary intoxication
2. Unreasonable mistake of fact
12
Q
Malicious Intent Crimes Under Common Law (Murder and Arson)
A
- Requires reckless disregard of an obvious or high risk that the particular harmful result will occur. NO SPECIFIC INTENT DEFENSES.
13
Q
General Intent (Catch All)
A
D has an awareness of all factors constituting the crime and are acting in the proscribed way. A juror may infer general intent merely from D committing the crime.
14
Q
Strict liability (Elements and defenses)
A
D can be found guilty strictly by committing the crime. Defenses that negate state of mind not available.
15
Q
MPC Intent 3 types and definitions.
A
- Purposely - conscious object is to engage in certain conduct or cause certain result.
- Knowingly - A person acts knowingly to the nature of their conduct when they are aware of their conduct
- Recklessly - conscious disregard to substantial risk/gross deviation from standard of care.
16
Q
MPC Negligence ( Standard)
A
Failure to be aware of a substantial risk (Objective Standard)
17
Q
Transferred Intent
A
- D can be liable when they intent harm but it is actually caused to different victim.
- Crimes: Homicide, Battery, Arson
- Can still be charged with attempt of the other crime.
18
Q
Concurrence of mental fault with physical act
A
D must have the required intent at the time they committed the act constituting the crime. (Think going to kill someone but accidentally running them over on the way there)
19
Q
Causation Requirement for Certain Crimes (Homicide)
A
Result and causation required.
- Ds conduct must be both cause in fact and the proximate cause of the specified result
20
Q
Common Law Parties to a Crime (4 types)
A
- Principal in first degree - person who engaged in act or omission that is the crime or caused innocent to do so
- Principal in second degree - Person who aided/advised/encouraged principal and were present
- Accessories before the fact - Persons who assisted or encouraged but were not present
- Accessories after the fact - Persons who know crime occurred and helped them escape punishment
Most jdxs no longer distinguishes between first and second degree or before or after the fact…
21
Q
Accomplice dual intent requirement + scope of their liability
A
- Intent to assist the principal in the commission of crime
- The intent that the principal commit the offense.
Note also that accomplices will also be liable for crimes that happen doing course of crime their assisted plus any foreseeable crimes.
22
Q
Withdrawal (Three requirements)
A
- Person must repudiate encouragement.
- Person must do everything possible to neutralize assistance if they already assisted.
- Notify police or take action to prevent the crime
All before crime occurs.
23
Q
Conspiracy (elements)
A
- an agreement between two or more persons;
- an intent to enter into the agreement;
- an intent by at least two people to achieve the objective of the agreement.
Common law: act of mere preparation will suffice
Some states require overt act.
24
Q
Conspiracy Agreement Requirement: MPC and Common Law
A
MPC: Requires “Unilateral” Only one party needs genuine criminal intent, For example… A undercover cop can induce here.
Common Law: Requires two guilty minds.
25
Wharton Rule (Conspiracy)
When two or more people are needed to commit a crime - such as adultery - there is no crime of conspiracy unless more people than are necessary participate.
26
Conspiracy (Mental State)
Conspiracy is a specific intent crime requiring: (1) the intent to agree and (2) the intent to achieve the objective of the conspiracy.
27
Conspiracy (Overt Act) Common Law vs. MPC
Common Law: Crime Complete when proper intent is shown
MPC: There must be an overt act even if the act is mere preparation
28
Termination of Conspiracy (What is the process)
Usually terminates upon completion of the wrongful objective. Unless agreed to in advance, acts of concealment are not apart of the conspiracy.
29
Liability for co-conspirators
co- conspirators may be held liable for other crimes if they were (1) were committed in furtherance of the objective of the conspiracy and (2) were foreseeable.
30
Conspiracy Defenses (or lack of) (2)
1. Factual Impossibility Factual impossibility not a defense!
2. Withdrawal: Cannot withdraw - might be defense for crimes committed in furtherance. To withdraw affirmative act notifying all members must occur - must happen in time for them to abandon plan.
31
Solicitation (Elements)
1. Asking, inciting, advising another to commit a crime with the intent that the person actually commits the crime. THEY DO NOT ACTUALLY NEED TO COMMIT THE CRIME.
32
Solicitation Defenses
MPC: Allows renunciation as a defense if after, the D prevents the crime.
Legislative intent is a defense: Girl cannot solicit grown man to commit statutory rape.
33
Attempt (Elements)
1. Act done with intent to commit a crime that falls short of completing the crime. It requires:
1. Specific intent and:
2. An Overt ACT in furtherance.
34
Attempt (Intent Requirement)
D must intent to perform act and obtain result that would be a crime. (Specific Intent)
35
Attempt Overt Act
D must go beyond an act that is in the mere preparation -
Common Law: require a proximity test that the act comes very close to completion of the crime.
MPC: Only Substantial step.
36
Attempt Defenses (3)
1. Abandonment - Common Law - not a defense. MPC - fully voluntarily and complete abandonment is a defense.
2. Legal Impossibility: Rare but is a defense
3. Factual Impossibility - not a defense
37
Attempt prosecution (what can D be found guilty of)
D charged with only completed crime can be found guilty of crime orrrr attempt. Charged with attempt - can only be guilty of attempt.
38
Common Law Murder (Need Malice Afterthought) (What are Elements) 4
1. Intent to Kill
2. Intent to inflict great bodily injury
3. Reckless indifference to high risk to human life
4. Intent to commit a felony.
39
First Degree Murder
1. Deliberate and Premeditated
2. Also lookout for Felony Murder when other crimes occur. (common law they are Burglary, Arson, Rape, Robbery, Kidnapping) Defenses that negate OG crime will also negate felony murder.
40
Limitations on Liability for Felony Murder (5)
1. D must have commited or attempt to commit underlying felony
2. Felony must be distinct from killing itself - cant be battery that causes victims death.
3. Death must be foreseeable result of the felony .
4. Death must be caused before Ds immediate flight
5. Usually not liable for co-D death tho.
41
Agency vs Proximate Cause Theory of Felony Murder
Agency: D liable if killing committed by felon or their agent
PC: D liable for innocent victims caused by anyone other than co-D.
42
Voluntary Manslaughter (murder but with provocation) Elements:
1. Provocation aroused sudden and intense passion in mind of ordinary person - like threat of deadly force - spouse in bed with another.
2. D was in fact provoked
3. Not sufficient time between provocation and killing.
4. D in fact did not cool off in time.
43
Involuntary Manslaughter (When is it IM?)
1. Common Law: Criminal Negligence or Recklessness under MPC
44
Homicide Causation Requirements
1. Cause in fact: death was but for cause of death
2. Proximate Causation: Ds conduct is PC if result is natural and probable consequence of the conduct.
Act that hastens inevitable result is still the "cause" and acts of two or more persons can independently suffice as the cause.
45
Battery Elements + Intent
1. unlawful application of force to another resulting in bodily harm or offensive touching.
1. Battery need NOT be intentional nor direct - like sicking your dog on someone.
Battery is general intent crime.
46
Aggravated Battery (3) types
1. Battery with deadly weapon
2. Battery resulting serious bodily harm
3. battery of a child woman or police officer.
47
Assault Elements (2) can be either or.
1. An attempt to commit battery or:
2. intentional creation - other than mere words - or reasonable apprehension in the mind of the victim of imminent bodily harm.
48
Aggravated assault Def.
An assault plus one of the following:
1. the use of a dangerous weapon or;
2. with intent to rape, maim. or murder.
49
False Imprisonment Elements
1. Unlawful confinement of a person without valid consent.
MPC: Requires that confinement "interfere substantially" with victims liberty.
Consent is invalidated by coercion deception or incapacity.
50
Kidnapping
MPC: Unlawful confinement that involves either
1. Some movement of the victim or;
2. concealment of the victim in a secret place.
51
Aggravated Kidnapping
Kidnapping for ransom/Kidnapping for the purpose of committing another crime/kidnapping for offensive purposes or of a child.
52
Rape
Modern: slightest penetration is sufficient.
Common Law and MPC: Husband cannot rape wife but most states not reject this rule.
53
Lack of effective consent (Elements) 4
1. Intercourse is accomplished by actual force.
2. Intercourse is accomplished by threats of great and immediate bodily harm.
3. The victim is incapable of consenting due to unconsciousness, drunk, mental condition or;
4. The victim is fraudulently caused to believe act is not intercourse.
54
Statutory Rape
Carnal knowledge of a person under the age of consent. Strict liability so P does not need to show lack of consent.
55
Larceny Elements (6)
1. A taking (obtaining control)
2. And carrying away (asportation) - even in the slightest movement
3. Of tangible personal property
4. Of another with possession. - Must be taken from custody of another.
5. By trespass (without consent or induced by fraud)
6. With intent to permanently deprave that person of their interest. - at the time of taking.
56
Larceny intent
Sufficient: intent to create substantial risk of loss or an intent to sell or pledge the goods to the owner.
Insufficient: D believes what they are taking is theirs or where they intent to borrow or take as a debt payment.
57
Embezzlement Elements
The Fraudulent (Intent to defraud required)
- Conversion (dealing with property inconsistent with the arrangement)
- Of personal property of another
- By a person in lawful possession of that porperty
58
Fraudulent intent to restore and claim of right
a. if D intents to restore exact embezzled property - no embezzlement. If not exact property then - still embezzlement even with $.
b. If conversion occurred pursuant to claim of property then not embezzlement (open taking is considered)
Watch out for trustees on the bar exam.
59
False pretenses elements
1. Obtaining title
2. To personal property of another
3. By an intentional false statement of past or existing fact
4. With intent to defraud the other
60
False pretenses - Which misrepresentation suffices?
Intent level - what standard?
Victim must actually be deceived by statements common law past or present statement.
MPC: any false promise suffices.
Intent - either knew or were on notice and deliberately avoided telling the truth about something
61
Robbery Elements
1. A taking
2. of personal property of another
3. From the other's person or presence (even in vicinity)
4. By force or threats of immediate death or injury to V or someone around them
5. With intent to permanently deprive
62
Extortion elements (common law and MPC)
Common Law: collection of unlawful fee by an officer under color of office
MPC: obtaining property by means of threats to do harm or expose information.
63
Receipt of stolen property
Receiving possession and control of stolen property known to be obtained through a criminal act by another person with intent to permanently deprive
64
Forgery
1. Making or altering
2. A writing with apparent legal significance
3. So that it is false, not merely containing a misrepresentation (think fake warehouse receipt not inaccurate real one)
4. With intent to defraud (no one needs to actually be defrauded)
65
Burglary (Common Law)
1. Breaking (through at least minimal force)
2. And entry (any portion of body into the structure)
3. Of a dwelling of another at nighttime
4. With intent to commit a felony in the structure (doesn't need to be carried out but be careful)
66
Burglary (MPC)
Eliminates common law technicalities like requirement of "breaking" into a dwelling and that it occurs at night
67
Arson (common law elements)
1. The malicious (intentional disregard of risk)
2. Burning (requiring some damage to the structure)
3. Of a dwelling (for exam this may not be necessary) of another.
68
INSANITY DEFENSES - M'Naghten Rule - D entitled to acquittal when (3 elements)
1. Disease of the mind
2. caused a defect of reason
3. such that the D lacked the ability at the time to know the wrongfulness or understand nature and quality of their actions.
69
Irresistible impulse test:
D acquitted when: because of mental illness, D unable to control their actions or conform their conduct to law.
70
A.L.I or MPC Test (Most important)
D acquitted when they lacked the substantial capacity to either (1) appreciate the criminality of their conduct or (2) conform their conduct to the law.
71
Insanity procedures - burden of proof and when can defense be raised?
Common law: D presumed sane and must raise issue and prove it (preponderance of evidence)
MPC : P must prove D sane (Beyond a reasonable doubt)
72
Intoxication - Voluntary as a Defense
May be offered as defense by D if
1. crime requires purpose (intent) or knowledge
2. the intoxication prevented the defendant from formulating the purpose required.
(Best for Specific intent crimes)
73
Involuntary intoxication (elements)
Involuntary if -
1. taking of intoxicating substance without knowledge of its nature
2. under duress imposed by another
3. or pursuant to medical advice while unaware of the effects of substance
(can be treated as mental illness and insanity defense if requirements of jurisdiction are met) Can be defense to all crimes.
74
Self-defense (non-deadly force)
A person without fault may use such force as the person reasonably believes is necessary to protect the themselves from imminent unlawful force.
(In dwelling you can use non-deadly force to extent necessary to prevent unlawful entry)
75
Self-defense deadly force
Person may use deadly force if the person is:
1. is without fault
2. is confronted with "unlawful force"
3. Reasonably believes that they are threatened wit. imminent death or great bodily harm
76
Self Defense - Retreat
Generally no duty to retreat before using deadly force.
Minority view: Retreat before using deadly force unless:
1. Attack occurs in the victims own home
2. Attack occurs while the victim is making a lawful arrests
3. Assailant is in process of robbing the victim
77
Right of aggressor to use self defense
Aggressor may use force only when:
1. The effectively withdraw from the confrontation and communicate to the other the desire to do so OR:
2. The initial V suddenly escalates the minor fight into a deadly altercation and there is no chance to withdraw.
78
Defense of property (including regaining)
Deadly force never allowed.
Reasonable non-deadly force to defend property in current possession if interference imminent.
May also use force to regain possession only if in immediate pursuit.
79
Use of force to effectuate Arrest
1. Cops can use non deadly force if it is reasonable to make an arrest
2. Deadly force if it is necessary to prevent felons escape and officer believes felon threatens death.
(Bystander summoned by officer to help has same rigths)
(If Private Person making Arrest - crime must have actually occurred and person believes person arrest committed it to use non deadly) (Deadly force person much know D committed the crime.)
