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CA Bar Prep 2022 > Criminal Law > Flashcards

Criminal Law Flashcards

1
Q

When does a state have jusrisdiction over a crime?

A

(1) Committed in the state, (2) act outside that affects the state.

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2
Q

When a crime occurs in multiple states, which state has jurisdiction?

A

All states affected have jurisdiction simultaneously.

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3
Q

What is the effect of committing a crime that can be convicted as both a felony and misdemeanor?

A

The two are merged into the more serious form of crime.

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4
Q

What types of crime merge?

A

Solicitation and attempt merge. Conspiracy does not merge into other crime.

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5
Q

How many incohate crimes can somone be convicted?

A

Only one inchoate, except for conspiracy.

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6
Q

What is the distinction between solicitation and conspiracy?

A

Asking someone to commit a crime is solicitation. If someone agrees to commit the crime then it becomes conspiracy.

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7
Q

What is a felony?

A

Any crime that can be punished by death or more than one year in prison.

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8
Q

What are the elements of all crimes?

A

(1) Act, (2) intent, (3) concurrence, and (4) effect.

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9
Q

What is concurrence?

A

For a defendant to be liable the criminal act and requisite intent must occur simultaneously.

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10
Q

What are the kinds of an act for a crime?

A

(1) Physical, (2) voluntary, and (3) either (a) affirmative or (b) ommission from duty.

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11
Q

When is a failure to act criminal?

A

When there is a legal affirmative duty act in the circumstances and is reasonably able to act.

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12
Q

What are the five principal sources of a legal duty to act?

A

(1) Statute, (2) Contract, (3) Status relationship, (4) voluntary assumption of care, or (5) in creating peril.

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13
Q

What are the three elements for a failure in assumption of care?

A

(1) A person voluntarily, (2) assumes a duty of care, and (3) fails to perform accordingly.

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14
Q

What duties arise upon voluntarily creating peril?

A

To act reasonably

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15
Q

What defenses are available for specific intent crimes only?

A

(1) Voluntary intoxication and (2) Unreasonable mistake of fact

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16
Q

What is attempt?

A

(1) Over act that is (2) a substantial step, (3) towards the commission of a crime, (4) with the requisite intent.

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17
Q

What are the specific intent crimes?

A

(1) Solicitation (2) Conspiracy (3) Attempt (4) False Pretenses (5) Assault (6) Larceny (7) Embezzlement (8) Forgery (9) Robbery (10) Burglary and (11) First Degree Premeditated Murder

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18
Q

Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts

A

Solicitation Conspiracy Attempt First-degree murder Assault Larceny Embezzlement Forgery Robbery Burglary and False pretenses

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19
Q

What are the malicious intent crimes?

A

(1) Murder and (2) Arson

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20
Q

When is there vicarious liability?

A

An employer may be held criminally liable for the criminal conduct of their subordinates when acting within the scope of their duty or under their supervision and seleciton.

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21
Q

What are the three elements of malice?

A

(1) Reckless disregard for (2) an obvious high risk that (3) a particular harm will happen.

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22
Q

Are specific intent defenses available for malicious or general intent crimes?

A

No. Voluntary intoxication and unreasonable mistake of fact are unavailable as defenses.

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23
Q

What are the general intent crimes?

A

(1) Battery, (2) rape, (3) kidnapping, and (4) false imprisonment.

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24
Q

What is mens rea?

A

The mental element required at the time of a crime committed.

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25
Q

What are the forms of mens rea?

A

(1) specific intent, (2) general intent, and (3) malice.

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26
Q

What is criminal strict liability?

A

No mens rea required and a defendant guilty simply from committing the act.

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27
Q

What is “merger” in crimes?

A

Two or more offenses merge prohibiting separate prosecution if there are (1) inchoate offenses and (2) lesser included offenses.

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28
Q

When is there merger for incohate offenses?

A

(1) Solicitation and (2) attempt. NOT conspiracy.

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29
Q

When do lesser included offenses merge?

A

A lesser offense merges if the crime consists of the same but not all the elements as the greater crime. E.g. if someone dies as a consequence of a robbery, they will be charged with felony murder.

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30
Q

What creates a strict liability crime?

A

(1) Statutory rape, (2) administrative crimes, (3) regulatory crimes, or (4) morality area.

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31
Q

What are examples of morality crimes?

A

Bigamy and polygamy.

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32
Q

What are the four Common Law & model penal code mental states?

A

(1) Purposefully, (2) knowingly, (3) recklessly, and (4) negligently.

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33
Q

When is there “purposely”?

A

Conscious object to engage in the conduct or cause the result.

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34
Q

What is “knowingly”?

A

Aware conduct is of a particular nature or certain circumstances exist.

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35
Q

What is “recklessly”?

A

Consciously disregard substantial and unjustifiable risk.

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36
Q

What is “negligent”?

A

Fail to be aware of substantial and unjustifiable risk.

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37
Q

What is the distinction between reckless and negligent?

A

Recklessness is a subjective standard whereas negligence is an objective standard.

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38
Q

When is there transferred intent?

A

Defendant intended harm to a different victim or object and caused harm to a different victim.

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39
Q

What crimes can be convicted with transferred intent?

A

(1) Homicide, (2) battery, and (3) arson.

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40
Q

What crimes can be brought for transferred intent?

A

(1) Transferred attempt crime to actual victim AND (2) attempted crime for intended victim.

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41
Q

What are the subjects of accomplice liability under common law?

A

(1) A principal in the first degree [person who does it], (2) Principals in the second degree, (3) Accessories before the fact (4) Accessories after the fact.

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42
Q

When is someone an accomplice?

A

If they (1) Aid, (2) advise or counsel, and (3) encourage a crime.

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43
Q

What is aid?

A

Providing material assistance.

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44
Q

What is advise or counsel?

A

Providing information to commit the crime.

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45
Q

What is encourage?

A

Explicitly giving verbal encouragement to the crime.

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46
Q

What is a second degree principal?

A

(a) aid, advise, and encourage AND (b) were present for the crime.

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47
Q

When is there accessory before the fact?

A

Provides assistance, but not present during the crime.

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48
Q

What is accessory after the fact?

A

(1) Knowledge, (2) not present for the crime, and (3) provides assistance.

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49
Q

What is a necessary, but not sufficient condition for accomplice liability?

A

Knowledge alone is insufficient.

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50
Q

What is a withdraw?

A

Before the crime occurs, repudiate, neutralize any assistance, notify law enforcement and act to prevent any crime.

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51
Q

What are the elements of withdrawal?

A

(1) Repudiate prior or encouragement, (2) counteract prior aid to the extent possible, (3) before the chain of events is in motion.

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52
Q

What is conspiracy?

A

(1) Agreement, (2) intent to agree, (3) intent to achieve the unlawful objective, (4) overt act required in majority jurisdictions.

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53
Q

What is sufficient for agreement?

A

Any conduct that gives rise to the reasonable inference of agreement.

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54
Q

What is the modern unilateral approach for conspiracy?

A

Only one party must have a criminal attempt.

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55
Q

What is the traditional common law or bilateral view of conspiracy?

A

At least two guilty minds. One may expressly agree, but it is a feint.

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56
Q

When all other participants in a conspiracy are acquitted what happens?

A

(1) Unilateral or modern jurisdiction: may be convicted. (2) Common law jurisdiction: automatically acquitted.

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57
Q

What is the effect of crimes on co-conspirators?

A

If (1) foreseeable (2) the co-conspirator will be held liable for the crimes of the other conspirators if it (3) was within the scheme of the conspiracy.

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58
Q

What defense is unavailable to conspiracy?

A

Impossibility of fact.

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59
Q

How can one withdrawal from conspiracy?

A

Must perform affirmative act that notifies co-conspirators of intent to withdraw.

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60
Q

What is an overt act?

A

Any act beyond mere preperation.

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61
Q

What is proximity test?

A

“Dangerously close” to the completion. E.g. pointing a gun.

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62
Q

What is the modern or majority test?

A

A substantial test in course of conduct.

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63
Q

When is abandonment of attempt a defense?

A

Defense under MPC if (1) fully voluntary and (2) complete renunciation. Not available at common law.

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64
Q

When is there legal impossibility?

A

Committing an act they think is a crime, but is not actually a crime.

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65
Q

What is the factual impossibility defense?

A

The defendant is incapable of completing the substantive crime.

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66
Q

What are the types of murder?

A

(1) 1st degree, (2) 2nd degree, (3) voluntary manslaughter, and (4) involuntary manslaughter.

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67
Q

What is common law murder?

A

Unlawful killing of a human being with malice aforethought.

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68
Q

What is malice aforethought

A

Intent to (1) kill, (2) inflict serious bodily harm or (3) reckless indifference to an unreasonable degree of human life (4) intent to commit a felony.

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69
Q

What provides a valid inference of malice aforethought?

A

Use of deadly weapons.

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70
Q

When is there premeditated murder?

A

(1) Coolly and (2) dispassionately (3) actually reflected on killing (4) even for a moment.

71
Q

What felonies often give rise to an enumerated felony murder?

A

Arson, burglary, assault, and battery.

72
Q

What is the majority rule for killing police?

A

(1) Knowingly (2) killing a cop gives rise to automatic first-degree murder.

73
Q

What is a depraved heart killing?

A

(1) reckless indifference (2) to an unjustified degree of human life.

74
Q

What is the felony murder rule?

A

Any death, caused in the completion of a felony.

75
Q

What common law crimes give rise to felony murder?

A

Burglary, Arson, Robbery, Rape, and Kidnapping. [BARRK]

76
Q

What are limitations on liability for felony murder?

A

(1) Defendant must have a defense to committed or attempted to commit underlying felony. (2) Felony must be distinct from the killing itself, (3) death must have been foreseeable, (4) must have caused death before immediate flight from felony ended.

77
Q

When does flight end?

A

Reaching a point of temporary safety.

78
Q

What is the proximate cause theory?

A

Felon is liable for innocent victims caused by someone other than co-felon.

79
Q

What is the agency view in homicide?

A

Liability for a killing necessarily requires action by a felon or their agent.

80
Q

What is the liability for the death for co-felons?

A

Felons are not generally liable for the death of co-felons.

81
Q

What is adequate provocation?

A

(1)A sudden, or (2) intense passion, (3) in the mind of an reasonable person, (4) causing them to lose control where (5) they were actually provoked, (6) insufficient time to cool down, and (7) did not cool off prior to the murder.

82
Q

What is the effect of adequate provocation?

A

It is only a partial defense bringing it down to potentially involuntary manslaughter.

83
Q

What is an imperfect self-defense?

A

(1) Defendant used lethal force and (2) honestly, but (3) unreasonably believed the use of force was necessary.

84
Q

What is the effect of imperfect self-defense?

A

It may reduce liability to manslaughter.

85
Q

What is involuntary manslaughter?

A

(1) Killing committed with criminal negligence or recklessness under the MPC. (2) Killing committed during an unenumerated felony or misdemeanor.

86
Q

What is the cause in fact for muder?

A

“But for” the conduct of the defendant the person would not have been killed.

87
Q

What is the effect of hastening an inevitable result?

A

Creates proximate legal causation.

88
Q

Does unforeseeability break the chain of causation?

A

No.

89
Q

What is the time-scope?

A

Death must be within one year. Most have abolished this rule.

90
Q

What is the effect of a victim refusing or seeking negligent medical care?

A

The defendant may still be liable if the cause of the injuries.

91
Q

What is battery?

A

An unlawful application of force to the person of another resulting in either bodily injury or offensive touching?

92
Q

What type of crime is battery?

A

A general intent crime. No intoxication or mistake defense.

93
Q

What are the types of battery?

A

(1) weapon, (2) serious injury, (3) special person such as woman, child, or law enforcement.

94
Q

What is assault?

A

(1) Attempt to commit battery or (2) intentional creation of reasonable apprehension of bodily harm or offense. Words are not enough.

95
Q

What is deadly assault?

A

An assault with the intent to rape, maim, or murder.

96
Q

What is false imprisonment?

A

Unlawful confinement of a person without their consent.

97
Q

What is confinement?

A

Confinement must interfere substantially. Preventing someone from going somewhere is not confinement if there are reasonable atlernative routes.

98
Q

What is kidnapping?

A

The unlawful (1) concealment of a victim (2) in a secret place or (3) by movement.

99
Q

What is aggregative kidnapping?

A

Committing other crimes, other purposes, child taking.

100
Q

What is rape?

A

The slightest sexual penetration without consent

101
Q

What is statutory rape?

A

A strict liability crime for having sex with a minor under age.

102
Q

What is larceny?

A

(1) Taking and caring away (2) of tangible property of another (3) by trespass [no consent] (4) with intent to permanently deprive.

103
Q

What is asportation?

A

The slightest movement of property is enough for larceny.

104
Q

What is possession?

A

Exercising dominion. A greater scope of authority with high level of discretion.

105
Q

What is custody?

A

Limited scope of authority with a low level of discretion.

106
Q

When time is sufficient for larceny?

A

It must be a permanent deprivation.

107
Q

What are the defenses of larceny?🔼

A

(1) Intent to borrow or (2) mistake of ownership or (3) mistake of possessory interests.

108
Q

What intent is necessary for common law larceny?

A

Must have the intent to permanently deprive at the time of the taking.

109
Q

What is continuing trespass?

A

Wrongful taking of property without permanent intent to deprive and later decides to keep the property.

110
Q

What is embesslement?

A

(1) Fraudulent (2) conversion of personal property of another person, (3) by a person in lawful possession of that property.

111
Q

What is the effect of intentending to return similar property on embezzlement?

A

It is not a valid defense.

112
Q

What are the most common scenario for embesslement?

A

A trustee, employee, or other agent.

113
Q

What are false pretenses?

A

Obtaining title to property of another by intentional false statement or misrepresentation with intent to deprive.

114
Q

What is the modern prevailing view/MPC for false representation?

A

Any false representation including the representation to perform in the future.

115
Q

How is larceny by trick different from false pretenses?

A

Victim gives up custody or possession of property in larceny, false pretenses results in a transfer of title.

116
Q

What is robbery?

A

(1) Taking personal property of another (2) in their presence (3) with force or threats of imminent harm (4) with intent to permanently deprive.

117
Q

What can give rise to armed robbery?

A

Any robbery where there is the simulation of a deadly weapon.

118
Q

What is extortion?

A

Obtaining property by means of threats to do harm or expose information.

119
Q

What is receipt of stolen property?

A

Accepting chattles known to have been obtained in a criminal act.

120
Q

What is theft?

A

A general crime of depriving property through unlawful means.

121
Q

What is forgery?

A

(1) Making or altering (2) a writing (3) with apparent legal significance (4) so that it is false (5) with intent to defraud.

122
Q

What is common law burglary?

A

(1) Breaking and (2) entering dwelling of another, (3) with an intent to commit a felony in the structure (4) at the time of entering.

123
Q

What is sufficient for entering?

A

Any part of the body entering the structure.

124
Q

What is a dwelling in common law?

A

A structure used for sleeping.

125
Q

What is a dwelling in modern?

A

Any structure, such as a office.

126
Q

What is breaking?

A

Actual is the use of force or constructive through fraud.

127
Q

What is the common law rule for breaking?

A

Only actual breaking, opening a door is enough.

128
Q

What is fraud and breaking under the common law?

A

The use of property to enter a dwelling for an unauthorized purpose.

129
Q

What is arson?

A

The malicious burning of another’s dwelling under common law. Under modern any structure, including one’s own.

130
Q

What intent is required for arson?

A

Malice. No specific intent, reckless disregard is sufficient. No intoxication or mistake defense allowed.

131
Q

What is not required for arson?

A

Scorching [blackening by smoke or discoloration by heat] is not sufficient, charring is sufficient.

132
Q

What are the insanity defenses?

A

(1) M’Noughten or right/wrong test, (2) irresistible impulse or self-control test, (3) modern test.

133
Q

What is the M’Naghten Rule?

A

(1) Disease of mind, (2) caused a defect of reason, (3) such that they lacked the ability at the time, (4) to know the wrongfulness of their actions or nature and quality of their actions.

134
Q

What is the Irrisitable impulse test?

A

(1) unable to control, (2) their action, and (3) confirm conduct to law

135
Q

What is the product insanity test?

A

Defendant entitled to acquittal if crime was a product of mental illness - only New Hampshire

136
Q

What is the modern trend or MPC test for insanity defense?

A

Lacked substantial capacity to (1) appreciate the criminality or (2) conform conduct to law.

137
Q

What are the burdens of proof for insanity?

A

All are presumed sane and defendants must prove insanity by a preponderance of evidence.

138
Q

When may the insanity defense be raised?

A

Failure to raise at arraignment does not waive.

139
Q

What is the Durham test?

A

Defendants conduct would not have occurred but for their mental illness.

140
Q

What is the voluntary intoxication crime?

A

Intentional taking without duress of a substance known to be intoxicating and can be a defense for specific intent crimes.

141
Q

What is the effect of intending to reduce liability for a crime by getting intoxicated?

A

The intent prior to intoxication will transfer and at best will merely reduce culpability.

142
Q

What is the effect of alcoholism?

A

No effect and all intoxication is still voluntary.

143
Q

What is involuntary intoxication?

A

Substance without knowledge of its nature, under duress, or pursuant to medical advice and unaware of intoxicating effect.

144
Q

What crimes may involuntary intoxication be a defense?

A

A defense to ALL crimes and equivalent to insanity.

145
Q

What is the effect of age on criminal liability?

A

Under 7, no criminal liability. 7-14 rebuttable presumption child unable to understand wrongfulness of act, 14+ adult.

146
Q

What is a non-lethal self-defense?

A

(1) Non-deadly force, (2) defendant reasonably believes (3) is necessary to protect themselves from (4) imminent use of unlawful force. (5) No duty to retreat.

147
Q

What is a lethal self-defense?

A

(1) Use of lethal force, (2) reasonably believed to be necessary, (3) to protect themselves or others, (4) from imminent use of unlawful force. (5) Variance of duty to retreat, but majority have no duty.

148
Q

How does the duty to retreat apply?

A

(1) Effectively withdraw and (2) communicate withdraw or (3) victim escalates altercation eliminating chance to defend.

149
Q

What is the defense of others defense?

A

Defendant may not have culpability if (1) defendant reasonably believed (3) the victim would have the right to use force in the victims own case. Minority required special relationship.

150
Q

What is the defense of dwelling?

A

Deadly force can only be used when reasonably believed to stop a violent entry into a dwelling.

151
Q

When level of force may be used to defend property?

A

(1) Reasonable and (2) non-deadly force for (3) imminent unlawful interference.

152
Q

What force may be applied to recover property?

A

(1) immediate, (2) reasonable use of force, for (3) recovery of property unlawfully possed.

153
Q

What is duress?

A

Defendant reasonably believed another person would imminently inflict death or great bodily harm if defendant did not commit the crime.

154
Q

What is the limit on duress defense?

A

Does not apply to homicide.

155
Q

What is necessity?

A

A defense where defendant reasonably believed [objective] commission of crime was necessary to avoid imminent and greater injury to society.

156
Q

How does common law necessity differ from modern?

A

Only natural forces are sufficient to give rise to a necessity defense.

157
Q

How is duress different from necessity?

A

Duress necessarily requires a human actor.

158
Q

What is the mistake or ignorance of fact defense?

A

(1) Defendant lacked the state of mind (2) required for a crime.

159
Q

How does mistake of fact apply to the different types of crime?

A

(1) For specific crimes, mistake can be unreasonable. (2) For general crimes, mistake must be reasonable. (3) For strict liability crimes, no mistake defense.

160
Q

What is the entrapment defense?

A

(1) Criminal design originated with law enforcement and (2) defendant not predisposed to commit the crime otherwise.

161
Q

What is the effect of providing an opportunity for entrapment?

A

Providing the opportunity is neither necessary nor sufficient for an entrapment defense.

162
Q

What is perjury?

A

(1) Intentional false oath, (2) in a material matter, (3) during a judicial proceeding.

163
Q

What is a bribe?

A

(1) Taking of funds, (2) by a public official, for (3) an unlawful purpose.

164
Q

What are trigger words?

A

Specific words giving rise to specific crimes. E.g. “trapped” or “confined” = False imprisonment, “touch” = Battery, “fear” = assault, “breaking into” = burglary.

165
Q

What is actus reus?

A

The act required to commit a given crime.

166
Q

What is necessary for actus reus?

A

A voluntary physical act.

167
Q

When is ommission an actus reus?

A

(1) Specific legal duty, (2) knowledge of facts giving rise to duty, and (3) reasonably possible to fulfill.

168
Q

What is broader “intent” or “malice aforethought”?

A

Malice aforethought includes more and applies even if someone did not intend to kill another.

169
Q

If someone steals something then later decides to return it, but it is destroyed what can they be found guilty of?

A

Larceny

170
Q

What is the majority rule for self-defense and ability to retreat?

A

A person does not need to retreat.

171
Q

What is the scope of “at fault” for self-defense?

A

A criminal may use self-defense if the crime they are committing is not inherently dangerous and is met with excessive force in response.

172
Q

If a suspect invokes their miranda rights, may they be questioned for a separate crime?

A

No. If the accused invokes this right, all questioning must cease until the accused is provided with an attorney or initiates further questioning.

173
Q

Does double jeopardy attach upon trial or judgment?

A

Upon trial,however one of the exceptions permitting retrial even if jeopardy has attached is when a mistrial is granted in the first trial at the request of the defendant on any ground not constituting an acquittal on the merits.

CA Bar Prep 2022 (14 decks)

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