Criminal Law Flashcards
(291 cards)
1
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
- The crime involved the neglect of a duty imposed by the law of the state
- There was an attempt or conspiracy outside the state plus an act inside the state, or
- There was an attempt or conspiracy inside the state to commit an
offense outside the state
2
Q
Can multiple states have jurisdiction over the same crime?
A
Yes!
3
Q
At common law (TRADITIONAL = not modern rule), if a person engaged in conduct constituting both a felony and a misdemeanor, they could be convicted of ____
A
only the felony. (The misdemeanor merged into the felony)
4
Q
Generally, there is ____ merger of crimes in modern American law.
A
no
5
Q
A person who solicits another to commit a crime may be convicted of ____
A
Only the completed crime (if the person
solicited does complete it).
6
Q
A person who completes a crime after attempting it may be convicted of ___
A
only the completed crime.
7
Q
Conspiracy, ___ merge with the completed offense.
A
does not
8
Q
Under the M.P.C., a defendant may not be convicted ____ inchoate crime when their conduct was designed to culminate in the commission of the same offense.
A
of more than one (that is, attempt, conspiracy, or solicitation)
9
Q
Once the person solicited agrees tot commit the crime they may only be convicted of ___.
A
conspiracy, solicitation merges into the crime of conspiracy.
10
Q
A court can impose multiple punishments at a single trial where the punishments are for two or more statutorily defined offenses specifically intended by the legislature to carry ____, even though the offenses arise from the same transaction and constitute the same crime.
A
separate punishments
11
Q
Felonies are generally punishable by ____; other crimes are misdemeanors.
A
death or imprisonment for more than one year
12
Q
A crime almost always requires proof of:
A
- A physical act (actus reus)
- A mental state (mens rea), and
- A concurrence of the act and mental state
13
Q
To satisfy the physical act requirement: A defendant must have ___
A
either performed a voluntary physical act or failed to act under circumstances imposing a legal duty to act.
14
Q
An act is a ____
A
bodily movement.
15
Q
Bodily movements that do not qualify for criminal liability include:
A
- Conduct that is not the product of the person’s own volition
- A reflexive or convulsive act
- An act performed while unconscious or asleep
16
Q
The failure to act gives rise to liability only if:
A
- There is a legal duty to act
- The defendant has knowledge of the facts giving rise to the duty to act; and
- It is reasonably possible to perform the duty
17
Q
A legal duty to act can arise from one of five circumstances:
A
(1) By statute (for example, the requirement to file a tax return)
(2) By contract (for example, a lifeguard or nurse has a legal duty to act)
(3) Status relationship between the parties (for example, a parent/ spouse has a duty to protect a child/spouse from harm)
(4) The voluntary assumption of care by the defendant for the victim
-> Note, there is no general Good Samaritan law requiring
people to help others in trouble.
(5) The defendant created the peril for the victim
18
Q
Criminal statutes that penalize the possession of contraband generally require ____
A
only that the defendant have control of the item for a long enough period to have an opportunity to terminate the possession
19
Q
Possession ____ to be exclusive to one person, and possession also may be ____ meaning that actual physical control does not need to be proved when the contraband is located in an area within the defendant’s “dominion and control.”
A
does not need; “constructive,”
20
Q
For possession absent a state of mind requirement in the statute, the defendant must be ____. However, many statutes add a state of mind element (for example, “knowingly”) to possession crimes. Under such statutes, the defendant ordinarily must know ____
A
aware of their possession of the contraband, but they need not be aware of its illegality; the identity or nature of the item possessed.
21
Q
For possession crimes that require the person know of the nature of the goods, a defendant may not ____
A
consciously avoid learning the true nature of the item possessed; knowledge may be inferred from a combination of suspicion and indifference to the truth.
22
Q
The existence of a specific intent cannot be conclusively imputed from the mere ___, but the ____ may provide
circumstantial evidence of intent.
A
doing of the act; manner in which the crime was committed
23
Q
Mnemonic for specific intent crimes
A
Students can always fake a laugh even for ridiculous bar facts
24
Q
The specific intent crimes
A
- Solicitation
- Conspiracy
- Attempt
- First degree pre-meditated murder
- Assault
- Larceny
- Embezzlement
- False pretenses
- Robbery
- Burglary
- Forgery
25
Attempt is a specific intent crime—even
when ____
the crime attempted is not.
26
The importance of specific intent crimes is that they will qualify for additional defenses not available for other types of crimes:
- Voluntary intoxication
- Unreasonable mistake of fact
27
The intent necessary for malice crimes requires ____
a reckless disregard of an obvious or high risk that the particular harmful result will occur.
28
Malice crimes
common law murder and arson
29
Defenses to specific intent crimes (such as voluntary intoxication) do not apply to ___
malice or general intent crimes
30
General intent is the ___
catch-all category.
31
General intent means the defendant has _____;
an awareness of all factors constituting the crime; in other words, the defendant must be aware that they are acting in the proscribed way and that any required attendant circumstances exist (or at least that they are aware of a high likelihood that they will occur).
32
A strict liability or public welfare offense is one that ____
does not require awareness of all of the factors constituting the crime; that is, the defendant can be found guilty from the mere fact that they
committed the act.
33
Common strict liability offenses are ____
selling liquor to minors and statutory rape.
34
For strict liability defenses that negate state of mind, such as mistake of fact, are ____
not available.
35
If the crime is in the ____ area and there are no adverbs in the statute such as “knowingly,” “willfully,” or “intentionally,” then the statute is meant to be a no intent crime of strict liability.
administrative, regulatory, or morality
36
General Intent Crimes
- Battery
- Rape
- Kidnapping
- False Imprisonment
37
The M.P.C. eliminates the common law distinctions between general and specific intent and adopts the following categories of intent:
Purposely, Knowingly, Recklessly, Negligence
38
When a statute requires that the defendant act purposely, knowingly,
or recklessly, a ____ standard is used.
subjective
39
A person acts purposely under the MPC when their conscious object is to ____
engage in certain conduct or cause a certain result.
40
Under the MPC a person acts knowingly with respect to the nature of their conduct when they are____. Also, the person is deemed to be aware of these circumstances when they are ____
- aware that their conduct is of a particular nature or that certain circumstances exist
- aware of a high probability that they exist and deliberately avoid learning the truth.
41
Under the MPC A person acts knowingly with respect to the result of their conduct when they _____
know that their conduct will necessarily or very likely cause a particular result.
42
Under the MPC a person acts recklessly when they ____, and this disregard constitutes a ____ from the standard of care that a reasonable person would exercise in that situation.
consciously disregard a substantial and unjustifiable risk that circumstances exist or that a prohibited result will follow
- gross deviation
43
Recklessness under the MPC involves both ____
objective (“unjustifiable risk”) and subjective (“awareness”) elements.
44
Under the MPC a person acts negligently when they ____, where such failure is a ____ from the standard of care.
fail to be aware of a substantial and unjustifiable risk; substantial deviation
45
Under the MPC to determine whether a person acted negligently, an ____standard is used. However, it is not just the reasonable person standard that is used in torts. The defendant must
have taken a ____
objective; very unreasonable risk.
46
Under the MPC distinctions between reckless and negligent:
1 - Objective vs. subjective
--> negligence does not consider subjectiveness, recklessness consider both
2 - Fail to be aware (Negligence) of v. consciously disregard (recklessness)
3 - Deviation from the standard of care
--> Gross deviation (Recklessness) v. substantial deviation (negligence)
47
A vicarious liability offense is one in which a person without personal fault may nevertheless be held liable for ____
the criminal conduct of another (usually an employee).
48
The trend is to limit vicarious liability to ____
regulatory crimes and to limit punishment to fines.
48
Under modern statutes, corporations may be held liable for an act performed by: ____
(1) an agent of the corporation acting within the scope of their office or employment; or
(2) a corporate agent high enough in hierarchy to presume their acts reflect corporate policy.
49
At common law, a corporation ____ capacity to commit crimes.
does not have (but see modern trend)
50
The defendant can be liable under the doctrine of ____ when they intend the harm that is actually caused, but to a different victim or object.
- Defenses and mitigating circumstances may also usually be transferred.
transferred intent
51
The doctrine of transferred intent applies to homicide, battery, and arson. It does not apply to ____
attempt.
52
A person found guilty of a crime on the basis of transferred intent is usually guilty of two crimes:
the completed crime against the actual victim and attempt against the intended victim.
53
CONCURRENCE OF MENTAL FAULT WITH PHYSICAL ACT
The defendant must have had the intent necessary for the crime a the time they committed the act constituting the crime, and the intent must have prompted the act.
54
For a result crime, the defendant’s conduct must be both the ____ of the specified result.
cause-in-fact and the proximate cause
55
At common law, parties to a crime included:
- Principals in the first degree
- Principals in the second degree
- Accessories before the fact
- Accessories after the fact
56
At CL the persons who actually engaged in the act or omission that constitutes the offense or who caused an innocent agent to do so
Principals in the first degree
57
At CL persons who aided, advised, or encouraged the principal and were present at the crime
Principals in the second degree
58
At CL persons who assisted or encouraged but were not present
Accessories before the fact
59
At CL persons who, with knowledge that
the other committed a felony, assisted them to escape arrest or punishment
Accessories after the fact
60
At common law, ____ was required for conviction of an accessory, but most jurisdictions have abandoned this requirement.
conviction of the principal
61
Most jurisdictions have abolished the distinctions between principals in the first degree and principals in the second degree or accessories before the fact. All such “parties to the crime” can be _____
found guilty of the principal offense.
62
Under modern statutes the principal is one who, with the requisite mental state, ____
actually engages in the act or omission that causes the criminal result.
63
Under modern statutes an accomplice is one who ____ the principal in the commission of the crime charged.
aids, advises, or encourages
64
Under modern statutes an ____ is still treated separately. Punishment for this crime usually bears no relationship to the principal offense.
accessory after the fact
65
In order to be convicted of a substantive crime as an accomplice, the accomplice must have the following intents:
(1) the intent to assist the principal in the
commission of a crime; and
(2) the intent that the principal commit the substantive offense.
66
When the substantive offense forming the basis for accomplice liability has recklessness or negligence as its mens rea, most jurisdictions would hold that the intent element is satisfied if the accomplice:
(1) intended to facilitate the commission of the crime; and
(2) acted with recklessness or negligence (whichever is required by the particular crime).
67
In the absence of a statute, most courts would hold that ____ that a crime will result is not enough for accomplice liability, at least where the aid given is in the form of ____
mere knowledge; the sale of ordinary goods at ordinary prices (for example, a gas station attendant will not be liable for arson for knowingly selling a gallon of gasoline to an arsonist)
68
Even though selling orindary goods at oridnary prices with the knoedlge they will be used in a crime isn't enough for accomplice liability, procuring ___ or selling at ____ may constitute a sufficient “stake in the venture” to constitute intent.
an illegal item; a higher price because of the buyer’s purpose
69
An accomplice is responsible for the crimes they did or counseled and for any other crimes committed in the course of committing the crime contemplated to the ____, as long as the other crimes were ____
same extent as the principal; probable or foreseeable.
70
Members of the class protected by ___ are excluded from accomplice liability.
a statute
e.g., A woman transported across state lines cannot be an accomplice to the crime of transporting women across state lines for immoral purposes, since she is within the class protected.
71
A party necessary to the commission of a crime, by statutory definition, who is ____ liability.
not provided for in the statute
e.g., If a statute makes the sale of heroin illegal, but does not provide for punishment of the purchaser, the purchaser cannot be found guilty under the statute as an accomplice to the seller.
72
A person who effectively ___ from a crime before it is committed cannot be held guilty as an accomplice
withdraws
73
To avoid accomplice liability withdrawal must occur before the crime ____
becomes unstoppable.
74
For effective withdrawal if the person encouraged the crime, the person must ___
repudiate the encouragement.
75
For effective withdrawal of the person aided by providing assistance to the principal (such as giving materials), the person must do ____
everything possible to attempt to neutralize the assistance (such as attempting to retrieve the materials).
76
For effective withdrawal of accomplice liability notifying the police or taking other action to prevent the crime is ____. A mere withdrawal from involvement without taking any additional action is ____.
sufficient; not sufficient.
77
Inchoate means ____
incomplete.
78
Three inchoate offenses
- Conspiracy
- Attempt
- Solicitation
79
Elements of conspiracy (at CL)
(1) an agreement between two or more persons;
(2) an intent to enter into the agreement; and
(3) an intent by at least two persons to achieve the objective of the agreement.
80
The object of the conspiracy must be ____
criminal or the achievement of the lawful object by criminal means.
81
Unlike the common law of conspiracy, a majority of states require ____, but ____ will suffice.
an overt act; an act of mere preparation
82
Two approaches to the two party intent requirement of conspiracy:
1 - Modern Rule = unilateral approach
-> Requires that only one party have genuine criminal intent.
2 - Traditional Rule = bilateral approach
-> A conspiracy requires at least two “guilty minds,” that is, persons who are actually committed to the illicit plan.
83
The parties in a conspiracy must agree to ___. However, the agreement need not be express; it may be ____
accomplish the same objective by mutual action; inferred from joint activity
84
Under the unilateral approach to conspiracy intent, a defendant can be convicted of conspiracy if they conspire with ____
one person only and that person is a police officer working undercover
85
Under this “bilateral” approach to conspiracy intent, if one person in a two party agreement is only feigning agreement, the other party ___ convicted of conspiracy.
cannot be
86
Common Law Wharton Rule
Where two or more people are necessary
for the commission of the substantive offense (for example, adultery, dueling), there is no crime of conspiracy unless more parties participate in the agreement than are necessary for the crime (for example,
because it takes two people to commit adultery, it takes three people
to conspire to commit adultery).
87
The Wharton Rule does not apply to agreements with ____; both parties may be guilty of conspiracy even though both are necessary for commission of the substantive offense.
“necessary parties not provided for” by the substantive offense
For example, if a state statute prohibits the sale of narcotics and imposes criminal liability on the seller only, both the buyer and seller can be guilty of conspiracy to sell narcotics—even though both parties are necessary for commis-
sion of the substantive offense
88
If members of a conspiracy agree to commit a crime designed to protect persons within a given class, persons within that class ___ of the crime itself or of conspiracy to commit that crime. Likewise, the nonprotected person cannot be guilty of conspiracy if the agreement was with ___
cannot be guilty; the protected person only.
89
Under the traditional view, the acquittal of all persons with whom a defendant is alleged to have conspired ____ of the remaining defendant. In some jurisdictions following the traditional view, a conviction for conspiracy against one defendant is allowed to stand when the alleged co-conspirator is ____
precludes conviction; acquitted in a separate trial.
-> Acquittal is the key here. If the defendant and others allegedly conspired and only the defendant is charged and tried (for example, the other parties are not apprehended or not prosecuted), the defendant can be convicted.
90
Conspiracy is a specific intent crime. Parties must have:
(1) the intent to agree and
(2) the intent to achieve the objective of the conspiracy.
91
The point at which a conspiracy terminates is important because acts and statements of co-conspirators are admissible against a conspirator only if they were ____
done or made in furtherance of the conspiracy.
92
A conspiracy usually terminates upon _____. Unless agreed to in advance, acts of ____ are not part of the conspiracy.
completion of the wrongful objective; concealment
93
Note also that the government’s defeat of the conspiracy’s objective ____ automatically terminate the conspiracy
does not
94
A conspirator may be held liable for crimes committed by other conspirators if the crimes ____
(1) were committed in furtherance of the objectives of the conspiracy and (2) were foreseeable.
95
____ impossibility is not a defense to conspiracy.
Factual
96
Generally, withdrawal from the conspiracy is not a defense to the conspiracy, because the conspiracy is complete ____. Withdrawal may be a defense to ___
as soon as the agreement is made and an act in furtherance is performed; crimes committed in furtherance of the conspiracy, including the substantive target crime of the conspiracy.
97
To withdraw from a conspiracy, a conspirator must ___
perform an affirmative act that notifies all members of the conspiracy of their withdrawal.
-> Notice must be given in time for the members to abandon their plans
98
Conspiracy and the completed crime are ____; there is no merger.
distinct offenses
99
Solicitation Elements
Asking, inciting, counseling, advising, urging, or commanding another to commit a crime, with the intent that the person solicited commit the crime.
+ It is not necessary that the person solicited agree to commit the crime.
100
It is ___ defense that the person solicited is not convicted, nor that the offense solicited could not in fact have been successful (factual impossibility).
not a
101
In most jurisdictions, it is not a defense that the solicitor ____ the solicitation. The M.P.C. recognizes this as a defense if the defendant ____, such as by persuading the person solicited not to
renounces or withdraws; prevents the commission of the crime commit the crime.
102
It is a defense that the solicitor could not be found guilty of the completed crime because of a ____ to exempt them
legislative intent
103
If the person solicited commits the crime solicited, ____ can be held liable for that crime. If the person solicited commits acts sufficient to be liable for attempt, ____ can be liable for attempt. If the person solicited agrees to commit the crime, but does not even commit acts sufficient for attempt, ____ can be held liable for conspiracy. However, under the doctrine of merger, the solicitor cannot be punished for ____.
both that person and the solicitor; both parties; both parties
-> both the solicitation and these other offenses
104
Attempt Elements
- An act, done with intent to commit a crime, that falls short of completing the crime.
- Attempt requires (1) specific intent plus (2) an overt act in furtherance of the crime.
105
Regardless of the intent necessary for the completed offense, an attempt always requires ____
a specific intent (that is, the intent to commit the crime).
106
Attempt to commit a crime defined as the negligent production of a result (such as negligent homicide) is ____. The same holds true for crimes that require recklessness.
logically impossible because a person cannot intend to be negligent.
107
For attempt the defendant must commit an act beyond ____ for the offense.
mere preparation
108
Traditionally, in evaluating the overt requirement of attempt most courts followed the ____, which requires that the act be ____
“proximity” test; “dangerously close” to successful completion of the crime (for example, pointing a loaded gun at an intended victim and pulling the trigger, only to have the gun not fire or the bullet miss its mark is sufficient)
109
In evaluating the overt requirement of attempt today most state
criminal codes (and the Model Penal Code) require that the act or omission constitute a ____
“substantial step in a course of conduct planned to culminate in the commission of the crime” that strongly corroborates the actor’s criminal purpose.
110
The overt act required for ___ is much more substantial than the overt act required for ____.
attempt; conspiracy
111
____ is not a defense to inchoate crimes at common law.
Abandonment
112
The M.P.C., followed in a number of jurisdictions, provides that a ____ abandonment is a defense to inchoate crimes.
fully voluntary and complete
113
If the defendant, having completed all acts that they had intended, would have committed no crime, they ___ of an attempt to do the same if they fail to complete all intended acts.
cannot be guilty (legal impossibility is a defense)
114
A defendant charged only with a completed crime may be found
guilty of ____, but a defendant charged only with attempt may not be convicted of ____
the completed crime or an attempt; the completed crime.
115
Murder is the ___
unlawful killing of a human being with malice afore- thought.
116
Malice aforethought exists if there are no facts reducing the killing to voluntary manslaughter or excusing it (that is, giving rise to a defense) and it was committed with one of the following states of mind:
- Intent to kill
- Intent to inflict great bodily injury
- Reckless indifference to an unjustifiably high risk to human life (“abandoned and malignant heart” or “depraved heart”); or
- Intent to commit a felony (felony murder)
117
Intentional use of a deadly weapon authorizes a permissive inference of ____
intent to kill.
118
A murder will be second degree murder (similar to common law murder) unless it comes under the following circumstances, which would make it first degree murder:
- Deliberate and Premeditated First Degree Murder
- First Degree Felony Murder
- Others set by statute
119
If the defendant made the decision to kill in a cool and dispassionate manner and actually reflected on the idea of killing, even if only for a very brief period, it is ____
first degree murder.
120
First degree murder based on premeditation requires a specific intent, which may be negated by the defense of ____
voluntary intoxication (If the defendant was so intoxicated that they were unable to premeditate)
121
In many states, a killing committed during the commission of an ____ is felony murder and called first degree murder. Another statute (or case) may provide that a killing during any felony is felony murder, but the killing will typically be classified as _____
enumerated felony; second degree felony murder.
122
Some states require that the felony be ____ or the felony ____ as committed.
inherently dangerous to human life; be dangerous to human life
123
If the jurisdiction divides murder into degrees, second degree murder is usually classified as a ___ or any
murder that is ____
depraved heart killing; not classified as a first degree murder.
124
Depraved heart killing
A killing done with a reckless indifference to an unjustifiably high risk to human life
125
Any death—even an accidental death caused ____ is murder. Malice is implied from the intent to commit the underlying felony.
in the commission of, or in an attempt to commit, a felony
126
Limitations on Felony Murder Liability
(1) The defendant must have committed or attempted to commit the underlying felony; a defense that negates an element of the underlying offense will also be a defense to felony murder.
(2) The felony must be distinct from the killing itself
(3) Death must have been a foreseeable result of the felony (a minority of courts require only that the felony be malum in se).
(4) The death must have been caused before the defendant’s “immediate flight” from the felony ended; once the felon has reached a place of “temporary safety,” subsequent deaths are not
felony murder.
(5) In most jurisdictions, the defendant is not liable for felony murder when a co-felon is killed as a result of resistance from the felony victim or the police.
127
Theories of killing by non-felons under felony murder
- Minority rule: Under the “proximate cause” theory, felons are liable for the deaths of innocent victims caused by someone other than a co-felon.
- Majority Rule: Under the alternative “agency” theory of felony murder, the killing must be committed by a felon or their “agent” (that is, an accomplice) with
limited exceptions in cases in which the victim was used as a shield or otherwise forced by the felon to occupy a dangerous place.
128
If a bystander is accidentally killed by a police officer during a shootout at the crime scene, the felons will be guilty of felony murder under the ____ theory. However, there would be no felony murder liability under the ___ theory.
proximate cause (because they put into operation a series of events that caused the death of the innocent party)
agency (because a police officer caused the bystander’s death)
129
In most jurisdictions, the defendant is ___ for felony murder when a co-felon is killed as a result of resistance from the felony victim or the police.
not liable
130
Voluntary manslaughter is a killing that would be murder but for the existence of ____
adequate provocation.
131
Provocation is adequate (to charge voluntary manslaughter) only if:
- It was a provocation that would arouse sudden and intense passion in the mind of an ordinary person, causing them to lose self-control (objective)
- The defendant was in fact provoked (subjective)
- There was not sufficient time between provocation and the killing for passions of a reasonable person to cool; (objective)
and
- The defendant in fact did not cool off between the provocationand the killing (subjective)
132
Remember that “heat of passion” is not a defense to a killing, although it may ____
reduce the killing from murder to manslaughter.
133
Some states recognize an “imperfect self-defense” doctrine under which murder may be reduced to manslaughter even though ___
(1) the defendant was at fault in starting the altercation; or (2) the defendant unreasonably but honestly believed in the necessity of responding
with deadly force
134
A killing is involuntary manslaughter if it was committed:
- With criminal negligence (or by “recklessness” under the M.P.C.)
or
- In some states, during the commission of an unlawful act (misde-meanor or felony not included within felony murder rule). + Foreseeability of death also may be a requirement.
135
Abandoned and malignant heart murder at common law involves ____ while involuntary manslaughter based on recklessness requires only ___
a high risk of death; a substantial risk.
136
The defendant’s conduct must be both ____ of the victim’s death.
the cause-in-fact and the proximate cause
137
A defendant’s conduct is the cause-in-fact of the result if the result would not have occurred ___ the defendant’s conduct.
“but for”
138
A defendant’s conduct is the proximate cause of the result if the result is a ____ of the conduct, even if the defendant did not anticipate the precise manner in which the result occurred. ____ break the chain of proximate
causation.
natural and probable consequence; Superseding factors
139
An act that hastens an ____ is still the legal cause of that result. Also, simultaneous acts of two or more persons may be ___ of a single result.
inevitable result; independently sufficient causes
140
A murder victim’s preexisting weakness or fragility, even if unforeseeable, ____ the chain of causation.
does not break
141
Traditionally, for a defendant to be liable for homicide, the death of the victim must occur within ____ from infliction of the injury or wound. Most states that have reviewed this rule have ____ it.
one year and one day; abolished
142
Generally, an intervening act shields the defendant from liability if the act is ____
a coincidence or is outside the foreseeable sphere of risk created by the defendant.
143
Note that a third party’s negligent medical care and the victim’s refusal of medical treatment for religious reasons are both ___, so the defendant would be liable.
foreseeable risks
144
Battery is ____
an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching.
145
A battery can be, but need not be, ____, and the force need not be applied ____.
intentional; directly
146
Most jurisdictions treat the following as aggravated batteries and punish them as felonies:
(1) battery with a deadly weapon; (2) battery resulting in serious bodily harm; and (3) battery of a child, woman, or police officer
147
Assault is either:
(1) An attempt to commit a battery or
(2) The intentional creation—other than by mere words—of a reason-
able apprehension in the mind of the victim of imminent bodily harm.
148
If there has been an actual touching of the victim, the crime can only be ___, not ____.
battery; assault
149
False imprisonment consists of _____
the unlawful confinement of a person without the person’s valid consent.
150
For false imprisonment the M.P.C. requires that the confinement must _____.
“interfere substantially” with the victim’s liberty
151
It is not confinement to simply prevent a person from going where they desire to go, as long as ____
alternative routes are available to them.
152
Modern statutes often define kidnapping as unlawful confinement of a person that involves either ____
(1) some movement of the victim, or (2) concealment of the victim in a “secret” place.
153
Aggravated kidnapping includes kidnapping for ____
ransom, kidnapping for the purpose of committing other crimes, kidnapping for offensive purposes, and child stealing
154
Consent to false imprisonment is invalidated by ____
coercion, threats, deception, or incapacity due to mental illness, substantial cognitive impairment, or youth.
155
Traditionally, rape was the _____
unlawful carnal knowledge of a woman by a man, not her husband, without her effective consent.
156
For rape the ___ is sufficient.
slightest penetration
157
Under the traditional rule and the M.P.C., a husband ____ his
wife, but most states today either reject this rule entirely or reject it where the parties are estranged or separated.
cannot rape
158
To be rape, the intercourse must be without effective consent. Lack of effective consent exists where:
- Intercourse is accomplished by actual force
- Intercourse is accomplished by threats of great and immediate bodily harm
- The victim is incapable of consenting due to unconsciousness,
intoxication, or mental condition; or
- The victim is fraudulently caused to believe that the act is not intercourse
159
Consent due to other types of fraud (for example, the perpetrator persuading the victim that the perpetrator is the victim’s
spouse or that they will get married) is ____
effective.
160
Statutory rape is carnal knowledge of a person ____
under the age of consent.
161
Statutory rape is a strict liability crime, and, therefore, it is not necessary to show ____
lack of consent.
162
Will a defendant’s reasonable mistake as to the victim’s age prevent liability for statutory rape? For purposes of the examination, the best answer is ___
no
163
PROPERTY OFFENSES
- Larceny
- Embezzlement
- False pretenses
- Robbery
- Extortion
- Receipt of stolen property
- Theft
- Forgery
- Burglary
- Arson
164
Larceny consists of:
- A taking (obtaining control)
- And carrying away (asportation)
- Of tangible personal property (including written instruments embodying intangible rights such as stock certificates)
- Of another with possession
- By trespass (without consent or by consent induced by fraud)
- With intent to permanently deprive that person of their interest in the property
165
For the taking away element of larceny the ___ of the property is enough
slightest movement (asportation)
166
If the defendant had possession of the property at the time of the taking, the crime is not ____, but may be ____
larceny; embezzlement.
167
Possession involves a greater scope of authority to deal with the property than does ____.
custody
168
Generally, the defendant has possession if they were given ____ over the property and has custody if they were given only ____ over the property.
discretionary authority; limited authority
169
Ordinarily, low level employees have only custody of an employer’s property and so are guilty of ____ for taking it.
larceny
170
Generally, a bailee has possession and thus may be guilty of ____ if they take the property. However, if the bailee opens closed containers in which the property has been placed by the bailor (that is, the bailee “breaks bulk”), the possession is regarded, by use of a fiction, as returning to the bailor, and thus the bailee may then be guilty of ____ if they take that property.
embezzlement; larceny
171
Generally, larceny requires that at the time of ___ the defendant intended to ____ a person of their property.
the taking; permanently deprive
172
An intent to ____, is sufficient for larceny.
create a substantial risk of loss, or an intent to sell or pledge the goods to the owner
173
Where the defendant believes that the property they are taking is theirs or where they intend only to borrow the property or to keep it as repayment of a debt, there is ____
no larceny
174
There may be larceny where the defendant intends to pay for the
goods (if the goods were ____) or intends to collect a reward from the owner (if ____).
not for sale; there is no intent to return the goods absent a reward
175
Larceny can be committed with ___ property or property that has been delivered by mistake, but not with ___ property.
lost or mislaid; abandoned
176
“Continuing Trespass” Situation in Larceny
If the defendant wrongfully takes property without the intent to
permanently deprive, and later decides to keep the property, the defendant is guilty of larceny when they decide to keep it. However, if the original taking was not wrongful (for example, the defendant took the
umbrella thinking it was theirs) and later decides to keep it, it is not larceny.
177
The trespass element of larceny only requires that the property was taken
without consent or with consent induced by fraud
178
Embezzlement is:
- The fraudulent
- Conversion
- Of personal property
- Of another
- By a person in lawful possession of that property
179
The conversion element of embezzlement means
dealing with the property in a manner inconsistent with the arrangement by which defendant has possession
180
Embezzlement differs from larceny because in embezzlement the defendant misappropriates property while it is ____, while in larceny the defendant misappropriates property ____.
in their rightful possession; not in their possession
181
For embezzlement the defendant must intend to ___
defraud (specific intent)
182
If the defendant intends to restore the ____, it is not embezzlement. However, if the defendant intends to restore ____, it is embezzlement, even if it was ___ that was initially taken and ____—of identical value— that they intended to return.
exact property taken; similar or substantially identical property
money; other money
183
As in larceny, embezzlement is not committed if the conversion is pursuant to a ____ to the property.
claim of right
184
A person does not have to ____ to be an embezzler—just the possession of the property is required.
carry away
185
The embezzler does not have to get the ____.
benefit
186
The offense of false pretenses is:
- Obtaining title
- To personal property of another
- By an intentional false statement of a past or existing fact
- With intent to defraud the other
187
For false pretenses the victim must ____, the misrepresentation, and this must be a major factor (or the sole cause) of the victim passing title to the defendant
actually be deceived by, or act in reliance on
188
For false pretenses traditionally, the defendant’s misrepresentation must have related to a ___ fact, and false promises to do something in the future, even without the present intent to perform, were not sufficient. However, under the M.P.C. and the modern prevailing view, ____ suffices, including a false promise to perform in the future
past or present; any false representation
189
For false pretenses depending on the statute involved, the defendant must either have ___ or have ____
known the statement to be false; intended that the victim rely on the misrepresentation
190
For false pretenses most states will find that the defendant “knew” of the falsity of any statements when, _____
after being put on notice of the high probability of the statement’s falsity, they deliberately avoided learning the truth.
191
If the victim is tricked—by a misrepresentation of fact—into giving up mere custody or possession of property, the crime is ____. If the victim is tricked into giving up title to property, the crime is ____
larceny by trick; false
pretenses.
192
Robbery consists of:
- A taking
- Of personal property of another
- From the other’s person or presence (including anywhere in their vicinity)
- By force or threats of immediate death or physical injury to the victim, a family member, or some person in the victim’s presence
- With the intent to permanently deprive them of it
193
For a defendant to be guilty of robbery, the victim must give up their property because ___
they feel threatened
-> If the victim gives up their property for another reason (for example, they feel sorry for the defendant, or they want the defendant to go away), the defendant will not be guilty of robbery.
194
Robbery differs from larceny because robbery requires that the defendant use ____ to obtain or retain the victim’s property.
force or threats
195
Pickpocketing generally would be ____, but if the victim notices the attempt and resists, the taking would be ____.
larceny; robbery
196
The presence requirement of robbery is ____ and would even cover a farmer tied up in his barn while the robber took things from his house.
very broadly drawn
197
For robbery the threat must be a threat of ____
imminent harm.
198
Common law extortion consists of
the corrupt collection of an unlawful fee by an officer under color of office
199
Under modern statutes, extortion (blackmail) often consists of ____. Under some statutes, the crime is complete when ____; meaning, the property need not be obtained.
obtaining property by means of threats to do harm or to expose information; threats are made with the intent to obtain property
200
Extortion differs from robbery because in extortion the threats may be of ___ and the taking _____.
future harm; does not have to be in the presence of the victim
201
Receipt of stolen property consists of:
- Receiving possession and control
- Of “stolen” personal property
- Known to have been obtained in a manner constituting a criminal offense
- By another person
- With the intent to permanently deprive the owner of their interest
in it
202
For receipt of stolen property manual possession is ____. The defendant possesses the property when _____
not necessary; it is put in a location designated by them or they arrange a sale for the thief to a third person (that is, “fencing”).
203
For receipt of stolen property the property must be stolen property at the time ____
the defendant receives it.
204
The defendant can be convicted of ____ if they intended to receive the property while believing it to be stolen (even if it isn't).
attempted receipt of stolen property
205
Forgery consists of the following:
- Making or altering (by drafting, adding, or deleting)
- A writing with apparent legal significance (for example, a contract,
not a painting)
- So that it is false; that is, representing that it is something that it is not, not merely containing a misrepresentation (for example, a
fake warehouse receipt, but not an inaccurate real warehouse
receipt)
- With intent to defraud (although no one need actually have been
defrauded)
206
If the defendant fraudulently causes a third person to sign a document that the third person ____, forgery has been committed. But if the third person ____, forgery has not been committed even if the third person was induced by fraud to sign it.
does not realize they are signing; realizes they are signing the document
207
Uttering a forged instrument consists of
(1) offering as genuine; (2) an instrument that may be the subject of forgery and is false; (3) with
intent to defraud.
208
Common law burglary consists of:
- A breaking
- And entry
- Of a dwelling
- Of another
- At nighttime
- With the intent to commit a felony in the structure (felony need
not be carried out to constitute burglary)
209
For burglary a breaking is defined as
Creating or enlarging an opening by at least minimal force, fraud, or intimidation; if defendant had the resident’s consent to enter, the entry is not a breaking
210
For burglary an entry is defined as
placing any portion of the body or any instrument used to commit the crime into the structure
211
For burglary a dwelling is defined as
a structure used with regularity for sleeping purposes, even if used for other purposes such as conducting a
business
212
For burglary the "of another" element ____ is irrelevant; occupancy by ____ is all that is required
ownership; someone other than the defendant
213
Modern statutes often eliminate many of the “technicalities” of common law burglary, including _____
the requirements of a breaking, that the structure be a dwelling, that the act occur at nighttime, and that the intent be to commit a felony (that is, intent to commit misdemeanor theft is often enough)
214
The breaking in burglary can be ___ or ____.
actual; constructive
215
It is not an actual breaking for a person to come uninvited through
a _____ (there is no breaking).
But if a person pushes open an _____, then a breaking exists
wide open door or window; interior door to another room
216
A constructive breaking is a breaking by _____
fraud or threat.
217
For burglary the dwelling cannot be a ____
barn or a commercial structure.
218
For burglary the intent to commit the felony must exist at the time of ____
the breaking and entering.
219
Arson at common law consists of:
- The malicious (that is, intentional or with reckless disregard of an
obvious risk)
- Burning (requiring some damage to the structure caused by fire)
- Of the dwelling
- Of another
220
The malicious element of arson is met by:
intentional or with reckless disregard of an obvious risk
221
Like statutory changes for burglary, modern arson statutes (including the M.P.C.) have modified the common law rules, usually to expand potential criminal liability. Most states have expanded the definition of arson to include _____
damage caused by explosion, and expanded the types of property that may be destroyed to include
commercial structures, cars, trains, etc.
222
Destruction of the structure, or even significant damage to it, is not required to complete the crime of arson. ____ is not sufficient, but mere
____ is sufficient.
Mere blackening by smoke or discoloration by heat (scorching); charring
223
At common law for arson, the building had to be the house of another; one could not be guilty of arson of ____.
one’s own house (has CL crime of houseburning to cover that)
224
The common law misdemeanor of houseburning consisted of:
(1) a malicious; (2) burning; (3) of one’s own dwelling; (4) if the structure is situated either in a city or town, or so near to other houses as to create a danger to them.
225
Insanity Tests
- M'Naghten Rule
- Irresistible Impulse Test
- Durham (or New Hampshire) Test
- A.L.I. or Model Penal Code Test
226
Under M'Naghten Rule, a defendant is entitled to acquittal if:
(1) a disease of the mind;
(2) caused a defect of reason;
(3) such that the defendant lacked the ability at the time of their actions to either know the wrongfulness of their actions or understand the nature and quality of their actions.
-> Delusions, belief that one’s actions are morally right, or loss of control because of mental illness are not defenses unless this test is met.
227
Under Irresistible Impulse test, a defendant is entitled to acquittal only if, ____
because of a mental illness, they were unable to control their actions or conform their conduct to the law.
228
Under Durham (or New Hampshire) Test, a defendant is entitled to acquittal if ___
the crime was the product of their mental illness (that is, the crime would not have been committed but for the disease).
->. The Durham test is broader than either the M’Naghten test or the irresistible impulse test. It is
followed only in New Hampshire.
229
Under the M.P.C. test (which represents the “modern trend”), a defendant is entitled to acquittal if ___
they had a mental disease or defect,
and, as a result, they lacked the substantial capacity to either: (1) appreciate the criminality of their conduct; or (2) conform their conduct to the requirements of law.
230
All defendants are presumed sane; the ____ must raise the insanity issue.
In most states, once the issue is raised, the defendant must prove their insanity, generally by a ____. Other states (and the M.P.C.) require the prosecution to prove the defendant was sane ____.
Federal courts require the defendant to prove insanity by ____
defendant; preponderance of the evidence
beyond a reasonable doubt
clear and convincing evidence.
231
A simple “not guilty” at that time of arraignment ____ the right to raise the defense at some future time.
does not waive
232
If the defendant does not raise the insanity issue, they ____ refuse a
court-ordered psychiatric examination to determine their competency to stand trial.
If the defendant raises the insanity issue, they ___ refuse to be examined by a psychiatrist appointed to aid the court in the resolution of his insanity plea.
may; may not
233
In most jurisdictions, a defendant acquitted by reason of insanity may
be committed to a mental institution until cured. Confinement ___ exceed the maximum period of incarceration for the offense charged.
may
234
Under the Due Process Clause of the United States Constitution, a defendant may not be tried, convicted, or sentenced if, as a result
of a mental disease or defect, they are unable _____.
(1) to understand the nature of the proceedings being brought against them; or
(2) to assist their lawyer in the preparation of their defense
235
A defendant may not be executed if they are ____
incapable of understanding the nature and purpose of the punishment.
236
Some states recognize the defense of “diminished capacity” under which the defendant may assert that as a result of a mental defect short of insanity, they did not have ____ for the crime charged.
the mental state required (Most states allowing the diminished capacity defense limit it to specific intent crimes, but a few states allow it for general intent crimes as well).
237
Intoxication may be caused by any substance (for example, drugs, alcohol, medicine). It may be raised ____.
whenever intoxication negates
one of the elements of the crime
238
Intoxication is voluntary if it is the result of ______.
the intentional taking without duress of a substance known to be intoxicating
239
Voluntary intoxication may be a good
defense to ____ crimes, but not to ___ crimes
specific intent; general intent, malice, or strict liability
240
For crimes that require recklessness (that is, conscious disregard of a substantial and unjustifiable risk), a person who ____ acts recklessly with regard to the risk. Additionally, the
defense is not available if the defendant ____ in order to establish the defense.
would have been aware of the risk had he not been intoxicated; purposely becomes intoxicated
241
Addicts and alcoholics who are intoxicated when they commit a crime are considered to be ____.
voluntarily intoxicated
242
Intoxication is involuntary only if it results from the taking of an intoxicating substance ___
without knowledge of its nature, under direct duress imposed by another, or pursuant to medical advice while unaware of the substance’s intoxicating effect.
243
Involuntary intoxication may be treated as a ___, and the defendant is entitled to acquittal if they meet the jurisdiction’s ____. Thus, involuntary intoxication can be a defense to ___ crimes.
mental illness; insanity test; all
244
Continuous, excessive drinking or drug use may bring on ___ and thus a defendant may be able to claim both an ____
actual insanity; intoxication defense and an insanity defense.
245
At common law, there could be no liability for an act committed by a
child under age ___
seven.
246
At CL for acts committed by a child between ages ____, there was a rebuttable presumption that the child was unable to understand the wrongfulness of their acts.
seven and 14
247
At CL children age ____ were treated as adults.
14 or older
248
Modern statutes often provide that no child can be convicted of a crime until a stated age is reached, usually ____. However, children can be found to be ____ in special juvenile or family courts.
13 or 14; delinquent
249
The right to self-defense or other justification defenses depends on the ___ of the threat; a threat of ____ is not sufficient.
immediacy; future harm
250
Faced with nondeadly force a person without fault may use such force as the person ____ to protect themself from the imminent use of unlawful force upon themself. There is ___ duty to retreat.
reasonably believes is necessary; no
251
A person may use deadly force in self-defense if the person is:
(1) is without fault;
(2) is confronted with “unlawful force”; and
(3) reasonably believes that they are threatened with imminent death or great bodily harm
252
If the defendant kills in self-defense but not all three of the requirements for the use of deadly force are met,
some states would find the defendant guilty of ____ under the “imperfect self-defense” doctrine.
manslaughter rather than murder
253
Generally, there is ___ to retreat before using deadly force.
no duty
254
The minority view requires retreat before using deadly force if the victim can safely do so, unless:
- The attack occurs in the victim’s own home
- The attack occurs while the victim is making a lawful arrest; or
- The assailant is in the process of robbing the victim
255
If one is the aggressor in the confrontation, they may use force in defense of themself only if:
- They effectively withdraw from the confrontation and communicate to the other their desire to do 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
256
A defendant has the right to defend others if they ____ that the person assisted has the legal right to use force in their own defense. All that is necessary is the _____ of the right to use force. Generally, there need be ____ between the defendant and the person in whose defense they acted.
reasonably believe; reasonable appearance; no special relationship
257
A person may use nondeadly force in defense of their dwelling when,
and to the extent that, they ____
reasonably believe that such conduct is necessary to prevent or terminate another’s unlawful entry into or
attack upon their dwelling.
258
Deadly force in defense of a dwelling may be used only to prevent a ____ and when the person reasonably believes that the use of force is necessary to prevent ____.
violent entry; a personal attack on themself or another in the dwelling, or to prevent an entry to commit a felony in the dwelling
259
Deadly force may never be used in ____. Reasonable, nondeadly force may be used to defend property in one’s possession from what they ____. Force may not be used if a ____ from the activity would suffice.
defense of property; reasonably believe is an imminent, unlawful interference; request to desist or refrain
260
A person may use force to regain possession of property that they reasonably believe was wrongfully taken only if they are in ____
immediate pursuit of the taker.
261
Nondeadly force may be used by police officers if ____. Deadly force is reasonable only if it is _____.
reasonably necessary to effectuate an arrest; necessary to prevent a felon’s escape and the police officer reasonably believes that the felon threatens death or serious bodily harm
262
A bystander summoned by a police officer to assist them in making an arrest has ____, and the bystander’s ____ is justified even if it turns out that the officer was exceeding their authority.
the same authority to use force as the officer; good faith assistance
263
A private person has the same right to arrest as a police officer with the following exceptions:
- A private person has a privilege to use nondeadly force to make an arrest if a crime was in fact committed and the private person has reasonable grounds to believe the person arrested has in fact committed the crime.
- A private person may use deadly force only if the person harmed was actually guilty of the offense for which the arrest was made.
264
Under the majority rule, nondeadly force may be used to resist an improper arrest even if ____.
a known officer is making that arrest
-> A minority of courts and the M.P.C. do not allow one to resist a known
police officer.
265
Deadly force in resisting an arrest may be used, only if the person ____
does not know that the person arresting them is a police officer.
266
It is a defense to a crime other than intentional homicide that the defendant reasonably believed that another person would imminently
inflict _____
death or great bodily harm upon them or a member of their
family if the defendant did not commit the crime.
-> Threats to harm a third person may also suffice to establish the defense of duress.
267
Duress is not a defense to
intentional homicide
268
For a duress defense traditionally, threats to property were ___; however, a number of states, consistent with the M.P.C., do allow for threats to property to give rise to a duress defense, assuming that ____
not sufficient; the value of the property outweighs the harm done to society by commission of the crime.
269
Necessity
It is a defense to a crime that the person reasonably believed that
commission of the crime was necessary to avoid an imminent and
greater injury to society than that involved in the crime.
270
For necessity the test is ____
objective; a good faith belief is not sufficient.
271
Under the traditional common law view, the pressure producing the choice of evils had to come from ____; modern cases have abandoned this requirement.
natural forces
272
Causing the death of another person to protect property is ____.
never justified
273
The defense of necessity is not available if _____ the situation requiring that they choose between two evils.
the defendant is at fault in creating
274
Unlike necessity, duress ____ involves a threat by a human.
always
275
Mistake or ignorance of fact is relevant to criminal liability only if it shows that the defendant ____
lacked the state of mind required for the crime; thus, it is irrelevant if the crime imposes “strict” liability.
276
If mistake is offered to “disprove” a specific intent, the mistake need not be ____; however, if it is offered to disprove any other state
of mind, it must have been a ____ mistake or ignorance.
reasonable; reasonable
277
Mistake is usually raised as a defense to a crime that has been completed; mistake of fact may ____.
Impossibility by comparison arises only when the defendant has failed to complete the crime because of their mistaken belief about the facts, and is being charged with an attempt to commit the crime; factual impossibility is ____ to attempt.
negate the intent required for the crime; not a defense
278
Generally, it is not a defense that the defendant believed that their activity would not be a crime, even if ____. However, if that reliance negates a necessary mental state element, such reliance ____.
that belief was reasonable and
based on the advice of an attorney; can demonstrate that the government has not proved its case beyond a reasonable doubt
279
Exceptions to the rule that mistake of law isn't a defense
(1) the statute proscribing their conduct was not published or made reasonably available prior to the
conduct;
(2) there was reasonable reliance on a statute or judicial decision; or
(3) in some jurisdictions, there was reasonable reliance on official interpretation or advice.
280
If the defendant’s mistake or ignorance as to a collateral legal matter proves that the defendant lacked the state of mind required for the crime, they are entitled to acquittal. The ignorance or mistake must involve ____
the elements of the crime, not the existence of a statute making the act criminal.
281
Entrapment occurs if the intent to commit the crime originated ____
not with the defendant but with law enforcement officers.
282
Entrapment exists only if:
(1) The criminal design originated with law enforcement officers, and
(2) The defendant was not predisposed to commit the crime prior to contact by the government. (Merely providing the opportunity for a predisposed person to commit a crime is not entrapment.)
283
A person cannot be entrapped by a ____
private citizen.
284
Under federal law, an entrapment defense cannot be based solely on the fact that a government agent ____
provided an ingredient for commission of the crime (for example, ingredients for drugs), even if the material provided was contraband
285
Perjury is the ____
intentional taking of a false oath (lying) in regard to a material matter (that is, one that might affect the outcome of the
proceeding) in a judicial proceeding.
286
Subornation of perjury consists of ____
procuring or inducing another to commit perjury.
287
Under modern statutes bribery may be extended to ____
nonpublic officials, and either the offering of a bribe or
the taking of a bribe may constitute the crime.
288
Bribery at common law was the ____
corrupt payment or receipt of anything of value for official action.
289
Compounding consists of ____
agreeing, for valuable consideration, not to prosecute another for a felony or to conceal the commission of a felony or the whereabouts of a felon.
290
At common law, misprision of a felony consisted of ____. Under modern statutes, misprision is ____, or it requires some ___
the failure to disclose knowledge of the commission of a felony or to prevent the commission of a felony;
no longer a crime; affirmative action in aid of the felon
