Criminal Law Flashcards

Question

Termination of Conspiracy

Answer 1

conspiracy ends upon completion of the target crime

Answer 2

impossibility is not a defense to conspiracy Withdrawal is generally not a defense to conspiracy but may be a defense to liability for co-conspirators’ subsequent crimes

Answer 3

each conspirator is liable for co-conspirators’ crimes that are: 1) Foreseeable; and 2) Committed in furtherance of the conspiracy

Answer 4

Under common law, one cannot withdraw from the conspiracy itself --MPC allows withdrawal if the withdrawing party thwarts the conspiracy (e.g., by stopping it or notifying police) Subsequent crimes — one can withdraw from co-conspirators’ subsequent crimes, including the target offense of the conspiracy 1) Affirmative act required — withdrawal is effective when the withdrawing party makes an affirmative act that notifies his co-conspirators he is withdrawing 2) Must be timely — withdrawal must give enough time for co-conspirators to abandon plans for the target offense 3) The withdrawing party must attempt to neutralize the effect of any assistance he provided to the original conspiracy

Answer 5

Specific intent inchoate offense that does merge with principal offense An act, done with the specific intent to commit a crime, that constitutes an overt or substantial step towards committing the crime but falls short of completing the crime. Elements: 1) Overt act — D must commit an act beyond mere preparation --D must take a substantial step towards committing the target crime ---Under common law standard, attempt requires an act that is dangerously close to success 2) Intent — D must specifically intend to commit a particular crime

Answer 6

legal impossibility is a defense to attempt --Factual impossibility is not a defense --Abandonment is not a defense — under majority rule, liability for attempt arises once D commits an overt act concurrently with the specific intent to commit a crime (i.e., D is liable for attempt before he can abandon the crime)

Answer 7

Rule: Inciting, urging, or otherwise asking another to commit a crime with the intent that they commit the crime --No affirmative response from the solicited party is required Specific intent inchoate offense that does merge with principal offense --solicitation is complete when D asks solicitee to commit the felony If solicitee agrees, it gives rise to conspiracy and the solicitation merges with the conspiracy (i.e., the only crime remaining is conspiracy)

Answer 8

Refusal by the solicitee is not a defense Impossibility and withdrawal are not defenses MPC allows renunciation as a defense, but common law does not Most jurisdictions follow the common law approach

Answer 9

The unlawful killing of another human with malice aforethought

Answer 10

arises when no mitigating facts reduce the killing to a lesser crime and D commits the killing with one of the following mental states: a) Intent to kill--includes mercy killings b) Intent to inflict great bodily injury c) Depraved/malignant heart — a killing committed with reckless indifference to an unjustifiable risk of human life d) Felony murder — killing caused during the attempt or commission of an inherently dangerous or statutorily enumerated felony --Intent required = the intent necessary to commit the underlying felony --Statutorily enumerated felony = statute dictates that a killing resulting from the crime constitutes felony murder Causation — D’s act must be both the actual and proximate cause of the victim’s death Any act by D hastening the victim’s death, even if already inevitable, is considered a cause

Answer 11

Most jurisdictions classify murder crimes into various “degrees” by statute

Answer 12

arises if a killing is either: a) Deliberate & premeditated — D must have killed in a dispassionate manner and must have considered or reflected on his killing, even if only momentarily; or --Specific intent crime — voluntary intoxication and mistake of fact are valid defenses b) Felony murder — killing during an enumerated felony --States list felonies that may serve as the basis for felony murder

Answer 13

a homicide not arising to first-degree murder Note — if first-degree murder is not mentioned as a possibility in MBE question or answer choices, assume the question involves second-degree murder, which is often the “default murder” on the MBE

Answer 14

A killing that occurs during the attempt or commission of certain enumerated felonies Intent to commit felony murder = the intent necessary to commit the underlying felony Common felonies include burglary, arson, rape, robbery, and kidnapping Felonies allowing for felony murder: 1) Inherently dangerous felonies 2) Statutorily enumerated felonies I.e., a criminal statute states that a killing occurring during its commission constitutes felony murder

Answer 15

1) D must be guilty of the underlying felony --Valid defenses to the underlying felony are also defenses to felony murder 2) The underlying felony itself must be independent of a killing --E.g., involuntary manslaughter cannot be felony murder 3) Victim’s death must be a foreseeable result (i.e., proximate cause) of the felony 4) Victim’s death must be caused before D reaches a place of temporary safety 5) D is not liable for the death of a co-felon killed by police or the original victim in majority of states

Answer 16

Murder + Adequate Provocation

Answer 17

Provocation is adequate 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 (for example, exposure to a threat of deadly force, finding your spouse in bed with another, or being a victim of a serious battery) *The defendant was in fact provoked *There was not sufficient time between provocation (or provocations) and the killing for passions of a reasonable person to cool; and *The defendant in fact did not cool off between the provocation and the killing

Answer 18

A killing committed with criminal negligence or during the commission of an unlawful act not constituting felony murder (or by “recklessness” under the M.P.C.)

Answer 19

arises if D is grossly negligent

Answer 20

a killing caused by an unlawful act may give rise to involuntary manslaughter --Misdemeanors — a killing resulting from a misdemeanor will give rise to involuntary manslaughter if either: a) Act was inherently wrongful (i.e., malum in se), or b) Death was a foreseeable or natural consequence of the misdemeanor act (i.e., malum prohibitum) --Felonies — any killing caused during the commission of a felony not giving rise to felony murder will be at least involuntary manslaughter Note — if MBE questions simply state “manslaughter” without distinguishing between voluntary and involuntary manslaughter, both types must be considered

Answer 21

A defendant’s conduct is the cause-in-fact of the result if the result would not have occurred “but for” the defendant’s conduct.

Answer 22

A defendant’s conduct is the proximate cause of the result if the result is a natural and probable consequence of the conduct, even if the defendant did not anticipate the precise manner in which the result occurred. Superseding factors break the chain of proximate causation. --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. Note that a third party’s negligent medical care and the victim’s refusal of medical treatment for religious reasons are both foreseeable risks, so the defendant would be liable

Answer 23

An act that hastens an inevitable result is still the legal cause of that result. Also, simultaneous acts of two or more persons may be independently sufficient causes of a single result. A victim’s preexisting weakness or fragility, even if unforeseeable, does not break the chain of causation.

Answer 24

Battery — 1) an unlawful application of force 2) to the person of another 3) resulting in bodily injury OR offensive touching I.e., a completed assault General intent crime

Answer 25

two theories of assault at common law: a) Assault as a threat — general intent crime Intentional creation of victim’s reasonable apprehension of imminent bodily harm. Words alone are usually insufficient b) Assault as an attempted battery — specific intent crime --Specific intent crime b/c it involves attempt

Answer 26

under modern statutes, both assault and battery have “aggravated” counterparts, which usually arise when the assault or battery is carried out with the use of a weapon

Answer 27

False imprisonment The unlawful confinement of a person without their consent Consent cannot be obtained through coercion, threat, or deception MPC - Confinement must substantially interferes with victim's liberty

Answer 28

The unlawful confinement of a person that involves either: a) Some movement of the victim (a.k.a. “asportation”), or b) Concealment of the victim in an unknown, hidden, or secret location Note — false imprisonment can become kidnapping if the victim is moved and/or concealed

Answer 29

When ransom is demanded or kidnapping of a child.

Answer 30

Fraudulent conversion of another’s personal property by one in lawful possession Required elements: 1) Fraudulent conversion — D uses another’s property beyond the scope of, or inconsistent with, D’s possessory rights 2) By one in lawful possession — D must have lawful possession at the time of conversion Embezzlement = conversion of property in D’s rightful possession Larceny = taking property not in D’s possession

Answer 31

obtaining property through threats of future harm or exposing information Extortion vs. robbery — extortion does not require a taking from the victim’s person or presence Extortion involves threats of future, rather than immediate, harm

Answer 32

obtaining title to another’s property using false statements of past or existing fact, with intent to defraud Required elements: 1) Obtaining title — obtaining ownership, not mere possession 2) By false statements — must be an intentional false statement 3) Of past or existing fact — misrepresentation regarding a future event is not sufficient 4) Intent to defraud — i.e., intent to steal --Victim must be deceived or act in reliance on the false statement in passing title to D

Answer 33

The taking and carrying away of another’s tangible personal property without consent (i.e., trespassory) and with the intent to permanently deprive the person of the property Required elements: 1) Taking — obtaining control or possession --If D already has possession at the time of the taking, it is not larceny (but may give rise to embezzlement) 2) Carrying away — the slightest movement will suffice 3) Without consent — against victim’s free will (i.e., by trespass) --The use of fraud or duress negates consent --Note — this element distinguishes larceny from larceny by trick 4) Intent to permanently deprive — must exist during taking --Specific intent crime — not larceny if D takes property as security for a debt owed or believing it belongs to D --Permanently = for an unreasonable period of time --Continuing trespass — when one borrows property with the intent to return it, but later keeps it; larceny arises at the moment D decides not to return the property *Finding a lost item — larceny can arise if the true owner is known or ascertainable and D decides to keep the property (must be lost or misplaced; larceny cannot arise for abandoned property)

Answer 34

obtaining possession of another’s personal property using false statements of past or existing fact Possession vs. ownership is the distinguishing factor: Larceny by trick — D acquires possession False pretenses — D acquires title

Answer 35

Receiving possession and control of personal property known to have been illegally obtained, with the intent to permanently deprive the owner of her interest in it Required elements: 1) Receipt of possession and control --Physical possession not required — D can have possession or control by designating the property’s location or arranging to sell it for the original thief 2) Of stolen personal property --Property must have been stolen when D receives it 3) Known to have been illegally obtained by another --D must know or have reason to know property is stolen 4) With intent to permanently deprive the owner of his interest Note — beware of “sting” situations: if police and the true property owner know of or arranged D’s receipt of property, it is not truly stolen D can be convicted of attempted receipt of stolen property if she intended to receive property, believing it to be stolen

Answer 36

The malicious burning of the dwelling house of another Required elements: 1) Malicious — with intent or extreme recklessness 2) Burning — requires some damage to structure caused by fire --Damage from smoke, water, or explosions is not sufficient at common law (charring works; scorching does not) 3) Dwelling house — structure where someone lives --Common law requirement; modern allows non-residential Note — On MBE it can be a non-residential structure 4) Of another — another person’s house --At common law, there can be no arson if you own the dwelling but do not reside there; modern statutes allow it 5) Damages required — must be charring or something more Discoloration, blackening, or other lesser damage is insufficient

Answer 37

Trespassory breaking and entering into the dwelling house of another at nighttime with the intent to commit a felony therein Required elements: 1) Breaking — can be actual or constructive; must be trespassory --Actual — opening or enlarging (e.g., opening an unlocked door) --Constructive — entry by threat, force, fraud, or duress ---Fraud negates any consent victim may have given --Trespass required — entering with consent or through a wide open door is not a breaking --Breaking not required under many modern statutes 2) Entering — placing any portion of the body or the instrument used for the breaking inside the dwelling --Dwelling = structure used for sleeping purposes --Modern statutes expand to include non-dwelling structures 3) Of another — ownership is irrelevant; occupancy will suffice 4) At nighttime — common law requirement --Not a required element under modern statutes 5) With the intent to commit a felony therein Modern statutes include misdemeanor thefts Felony need not be completed; D must merely intend to commit a crime at the time of the breaking and entering Intent acquired after entering is insufficient Note — on the MBE, apply modern rules unless otherwise instructed

Answer 38

Creating or altering a written document with purported legal significance to be false, with the intent to defraud Required elements: 1) Creating or altering E.g., drafting, adding, or deleting from a document’s contents Also includes offering a forged document as genuine even if D did not create the forged document 2) A document with purported legal significance A document that carries legal value (e.g., a check or contract, but not a painting) 3) To be false --Modifying the document into something it is not; changing its legal significance, not just changing it to be inaccurate 4) With intent to defraud Specific intent crime Note — actually defrauding somebody is not required; the mere intent to defraud is sufficient

Answer 39

1) Intent to restore — if D takes property with the intent to restore the exact property, no embezzlement has occurred --Must be the exact same property; not even different monetary bills of equal value will suffice 2) Claim of right — like larceny, embezzlement will not arise if the misappropriation is made under a claim of right to the property (i.e., D believes the property belongs to him)

Answer 40

Legal insanity is a defense to all crimes, regardless of the intent requirement Depending on jurisdiction, one of four tests is used to determine whether D was so mentally ill when he committed a crime that he should be entitled to acquittal: Four legal insanity tests: 1) M’Naghten — D doesn’t know right from wrong --Due to a mental disease or defect, at the time of the offense D lacked the ability to know the wrongfulness of his conduct or understand the nature and quality of his act 2) Irresistible Impulse — D acted due to an irresistible impulse Due to a mental illness, D was unable to control his actions or conform his conduct to the law 3) MPC — combination of M’Naghten & Irresistible Impulse As a result of D’s mental disease, D lacked the capacity to either appreciate the criminality of his conduct or conform his conduct to the requirements of the law --can be applied for involuntary intoxication 4) Durham — but for his mental illness, D would not have acted D’s conduct was the product of a mental illness Note — MBE questions will indicate which test applies

Answer 41

a defense to criminal liability for minors Under 7 years old — no criminal liability 7-14 years old — rebuttable presumption against criminal liability

Answer 42

a defense to specific intent crimes Voluntary intoxication = D chose to consume an intoxicant --Alcoholics and addicts are voluntarily intoxicated Not available if D becomes intoxicated in order to commit the crime (i.e., “liquid courage”) Only a defense to specific intent crimes

Answer 43

a defense to all crimes Arises when D was given an intoxicant without her knowledge or forced to consume an intoxicant Requirements — an intoxicant is taken involuntarily if taken: 1) Without knowledge of its nature, 2) Under direct duress imposed by another person, or 3) Pursuant to medical advice without notice of its intoxicating effect May be treated as a mental illness if, b/c of the intoxication, D satisfies the relevant jurisdiction’s insanity test

Answer 44

a defense based on D’s mental defect Available if D can show that he has some mental defect short of insanity that prevented him from forming the mental state required for the crime Usually limited to specific intent crimes

Answer 45

Due Process Clause forbids D from being tried, convicted, or sentenced if, as a result of his mental disease or defect, D is unable to either: 1) Understand the nature of the proceeding, or 2) Assist his lawyer in the preparation of his defense

Answer 46

D cannot be executed if he is incapable of understanding the nature and purpose of the punishment at the time of execution

Answer 47

Non-deadly force — may be used if D: 1) No fault — D is not at fault (i.e., not the initial aggressor); and 2) Reasonable belief of unlawful force — D reasonably believes it necessary to protect himself from imminent unlawful force --No duty to retreat Allowable force — the amount of force permitted depends on the nature of the provoking offense; generally, it must be proportionate

Answer 48

Deadly force — may be used if D: 1) No fault — D is not at fault (i.e., not the initial aggressor); 2) Confronted with unlawful force —attacker must use unlawful force; and 3) Reasonable belief of death or great bodily harm — D reasonably believes he is confronted with unlawful force that threatens imminent death or great bodily harm No duty to retreat under majority rule

Answer 49

available if either: 1) Initial aggressor effectively withdraws before the need for self-defense arises and communicates his desire to do so, or 2) Victim of the initial aggression suddenly escalates a minor dispute into a deadly altercation

Answer 50

same rules apply as for self-defense D can defend another if D reasonably believes the person he is protecting could have legally defended himself

Answer 51

allowed to prevent or terminate an unlawful entry or attack on one’s dwelling

Answer 52

may be used if one reasonably believes: 1) Force is necessary to prevent attack on oneself or others by a person who made or attempted violent entry, or 2) Force is necessary to prevent entry by a person who intends to commit a felony in the dwelling

Answer 53

deadly force not allowed 1) Non-deadly force may be used if reasonably necessary to defend against unlawful interference with possessions or trespass on property 2) Need to use force must reasonably appear imminent I.e., force not permitted if request to desist is sufficient

Answer 54

force is not allowed to regain property wrongfully taken, unless one is in immediate pursuit of the taker E.g., D steals A’s purse; A can only use reasonable force to recover purse if she is immediately pursuing D

Answer 55

Police use of force to effectuate arrest: NDF — permissible to reasonably effectuate arrest DF — permissible to: 1) Prevent the escape of a fleeing felon; and 2) Fleeing felon poses a threat of death or serious bodily harm

Answer 56

NDF — permissible if: 1) Crime was actually committed; and 2) Reasonable belief the person to be arrested committed it DF — permissible only if the person to be arrested was actually guilty of the offense for which the arrest was made and the DF was used to: 1) Prevent the escape of the fleeing felon; and 2) Fleeing felon poses a threat of death or serious bodily harm

Answer 57

using force to prevent a crime from occurring NDF — permissible to prevent a serious breach of the peace DF — common law and modern rules differ: Common law — permissible to prevent commission of felony Modern — permissible to: 1) Terminate or prevent a dangerous felony; and 2) Felony threatens a serious risk to human life

Answer 58

almost never a defense Lacking awareness or knowledge that an act constitutes a crime, even if reasonable, is not a defense to that crime Exceptions — very rare, but can arise where either: 1) Reasonable reliance on an invalid statute 2) Mistake or ignorance negates an element of a crime requiring knowledge of the law

Answer 59

available as a defense only if it negates a requisite intent element (i.e., mens rea) for the crime — see table below -Permissible for specific intent - Only a reasonable mistake of fact is a defense for malice & general intent - Not allowed for strict liability

Answer 60

valid defense if D believed his conduct was reasonably necessary to avoid an imminent and greater injury to society Objective standard — D’s commission of the crime must be reasonably necessary; good faith alone is insufficient Exceptions — necessity is not available if either: a) Crime committed results in the death of another, or b) D caused the events giving rise to the necessity

Answer 61

a valid defense to a crime D committed under reasonable belief that the crime was necessary to prevent death or serious bodily harm to D or a member of D’s family E.g., someone points a gun at D and threatens to kill him if he does not rob a bank Exception — duress is not a defense to any intentional homicide crimes

Answer 62

consent of victim is generally not a defense, but may be available if it negates an element of the offense Never available for certain offenses (e.g., statutory rape) Requirements — must be established that: 1) Consent was voluntarily and freely given; 2) Party was legally capable of consenting; and 3) No fraud was involved in obtaining consent

Answer 63

unlawful carnal knowledge of a woman by a man other than her husband, without effective consent

Answer 64

The slightest penetration is sufficient to complete the crime Marital status insignificant Most states have abolished element of marital status Lack of consent — consent will not be found if: 1) Penetration is accomplished by force or threat of immediate bodily harm, 2) Victim is incapable of consenting due to lack of capacity (e.g., unconsciousness, intoxication, etc.), or 3) Victim is fraudulently caused to believe the act is not intercourse

Criminal Law Flashcards

(88 cards)