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Flashcards in Criminal Law Deck (85)

Vagueness of Criminal Statute is...



Criminal statute must have these elements to be constitutional

(1) Fair warning
(2) no arbitrary and discriminatory enforcement
(3) No ex post facto laws or bills of attainder


Interpretations of conflicting criminal statutes

(1) prefer more specific to general
(2) prefer more recently enacted to older
(3) crimes committed before effective date of new code are subject to prosecution under the old code


Modern Law - Merger

(1) Cannot be convicted of both solicitation and completed crime.
(2) Cannot be convicted of both attempt and completed crime.


Does Conspiracy Merge?

No - one can be convicted of both conspiracy and the criminal act.


Double jeopardy

Cannot be convicted of a lesser offense if he's been put on trial for the greater offense.

DOES NOT APPLY to two or more statutorily defined offenses arising from same transaction.


Elements of a Crime

(1) Physical act (actus reus)
(2) Mental state (mens rea)
(3) concurrence of physical and mental.

Some crimes also require harmful result


Physical Act requirements

It's a bodily movement.

(1) voluntary physical act, or
(2) failed to act under a legal duty


Failed to act raises to liablity when these elements satisfied

(1) Legal duty to act
(2) D has knowledge of facts giving rise to act, and
(3) reasonably possible to perform the act


How are legal duty's to act imposed?

(1) Statute
(2) Contract
(3) D/V relationship
(4) Creation of peril
(5) Voluntary assumption of care
(6) Possession


How is possession an Act?

Only need control over it for a long enough period to have enough time to terminate the possession.

Possession need only be within "dominion and control"

Must be aware of possession, but no need to be aware of its illegality


What are the different mental states?

(1) Specific intent
(2) Malice
(3) General intent


What are the crimes that require specific intent?

(1) Solicitation
(2) Attempt
(3) Conspiracy
(4) First degree murder
(5) Assault
(6) Larceny and robbery
(7) Burglary
(8) Forgery
(9) False pretenses
(10) Embezzlement


What are the malice crimes?

Reckless disregard of an obvious or high risk that the particular harmful result will occur.
(1) murder
(2) arson


What are the general intent crimes?

Almost all crimes require general intent - awareness he is acting in a proscribed way and that attendant circumstances exist. General intent found by merely doing the act.


What are the strict liability crimes?

Intent doesn't matter.
(1) Rape
(2) Liquor to minors
(3) Bigamy


Mens rea state of mind differences between common law and MPC

common law - it's about specific or general intent
MPC - it's about fault (purposely, knowingly, recklessly, negligently).


What are the four mental states under MPC?

(1) Purposely
(2) Knowingly
(3) Recklessly
(4) Negligence


MPC Mental State - Purposely

Conscious object to engage in conduct


MPC Mental State - Knowingly

Awareness that conduct is of a nature that will cause a particular result


MPC Mental State - Recklessly

Conscious disregard and unjustifiable risk


MPC Mental State - Negligence

Failure to be aware of a substantial and unjustifiable risk


Vicarious Liability definition

Hold third party liable for crimes of another. Limited to regulatory crimes and fines


Transferred intent applies to

(1) Homicide
(2) Battery
(3) Arson
If transferred attempt applies, most likely liable for actual crime and attempt of the crime on the other person


Is motive relevant?

NO - ignore it


Parties to a crime - Common law

(1) principal in first degree (committed crime)
(2) principal in second degree (aided and was present)
(3) accessory before the fact (encouraged but not present)
(4) accessory after the fact (knowledge of felony and assisted in escape of arrest)

REQUIRES First principle conviction before any of the others can be convicted - this rule has been abandoned by most jurisdictions.


Parties to a crime - MPC

(1) Principal - liable for principal crime
(2) Accomplice - liable for principal crime if accomplice intended to aide in crime and all foreseeable results
(3) Accessory After the Fact - liable for separate, less serious crime of being an accessory after the fact.

Accompliance can be liable even if P is not!!!!!!!


Mental state for an accomplice

(1) intent principal commit the offense - mere knowledge not enough

Can be reckless or negligence if statute calls for it


Withdrawing as an accomplice limits

Withdraw must occur before crime committed
(1) Repudiate plan, or
(2) Neutralize assistance


What are the Inchaote offenses?

(1) Solicitation
(2) Conspiracy
(3) Attempt


Solicitation definition

Enticing another to commit a crime, with the intent that the solicited person commit the crime.

Withdraw NOT a defense
Merges with substantive defense


Conspiracy definition

(1) Agreement between two or more persons
(2) With intent to enter into an agreement
(3) Intent of two or more persons to achieve the objective of agreement

MPC (unilateral): Only one person needs a guilty mind (ex. undercover police officer).
Common law (bilateral): Two people need guilty mind

Withdraw NOT a defense (except further crimes)
Does NOT merge with substantive offense


Attempt definition

Act done with intent to commit a crime that falls short of the crime.

MPC: act is substantial step
Common law: act is dangerously close to completion of crime

Withdraw NOT a defense
Merges with substantive offense


Insanity Defense - M'Naghten Rule

"M' N I don't know right from wrong or understand my actions!"

D does not know right from wrong or understand his actions


Insanity Defense - Irresistible Impulse

Impulse that D cannot resist or cannot conform to the law


Insanity Defense - Durham

Product of mental disease


Insanity Defense - MPC (Modern)

I can't appreciate or conform!


Mental Condition - Constitutional Limits

Cannot be tried or convicted if (1) unable to understand nature of proceedings or (2) unable to assist lawyer in preparation of defense


Diminished Capacity

Allowed to argue - short of a mental defect but limited to specific intent crimes


Voluntary Intoxication

Intentional taking of substance. Intoxication defense allowed to specific intent crimes ONLY. No defense to:

(1) General intent crimes
(2) strict liability, or malice, recklessness or negligent crimes
(3) Second degree murder (depraved heart)


Involuntary Intoxication

Taking substance without knowledge or pursuant to medical advice. Treated as mental illness - may be a defense to alllllllll crimes



Common law: Under 7 - defense to all crime
Common law: Under 14 - Rebuttable presumption of defense
MPC: Defense to adult crimes but may still be delinquent


Force allowed: Self Defense

Nondeadly: reasonably believes force necessary to protect himself
Deadly: without fault, reasonably believes death or great bodily harm


Force allowed: Defense of Others

Same as self defense


Force allowed: Defense of Dwelling

Nondeadly: Reasonably believes necessary to prevent or end unlawful entry
Deadly: Reasonably believes he is threatened or prevent felony inside


Force allowed: Defense of Other Property

Nondeadly: Reasonably believes necessary to defense property in his possession (only after requesting desist)
Deadly: NEVER


Force allowed: Crime Prevention

Nondeadly: Reasonably believes necessary to PREVENT felony or serious breach of peace
Deadly: Reasonably believes necessary PREVENT felony involving SERIOUS BODILY HARM


Force allowed: Arrest by Police Officer

Nondeadly: Reasonably APPEARED guilty and force necessary for arrest
Deadly: Prevent escape AND SERIOUS BODILY HARM


Force allowed: Arrest by private citizen

Nondeadly: Crime WAS committed and reasonable belief that is the person who committed it
Deadly: ONLY IF person person actually guilty and serious bodily harm


Force allowed: Necessity

Nondeadly: Reasonably necessary to avoid greater harm
Deadly: Never


Defense of Duress allowed...

as a defense to any crime EXCEPT HOMICIDE where he reasonably believed D would inflict great bodily harm on him, member of family, property if he did not commit the crime.

Necessity can be threat by anyone, Duress must be threat by a human


Is Mistake of Fact defense allowed?

Yes - available for all crimes except strict liability.
Specific intent: any mistake that negates intent
All other crimes: only reasonable mistakes


Is Mistake of law allowed?

NO - unless issue with the law itself (not published, reliance on interpretation in jurisdiction, etc.)


Is consent an allowable defense?

NO, unless part of law like rape


Is criminality of victim an allowable defense?



Entrapment elements

(1) Criminal design originated with law enforcement officers
(2) D was not predisposed to commit the crime prior
(3) Only government actors (not private)


Aggravated battery definition

Battery resulting in serious bodily harm


Aggravated assault

Assault with a deadly weapon


Common Law: Murder

Killing of a human with malice aforethought. Malice aforethought is:
(1) Intent to kill
(2) Intent to inflict great bodily injury
(3) Reckless indifference to an unjustifiable high risk to human life
(4) Intent to commit a felony


Common Law: Voluntary Manslaughter

Would be murder but for adequate provocation. Provocation only if
(1) sudden and intense passion in the mind of an ordinary person
(2) D was in fact provoked
(3) Not sufficient time between provocation
(4) D did not cool off


Common Law: Involuntary manslaughter

Committed with criminal negligence. That is, was there a crime and they were acting recklessly?


Statutory defined murder: First Degree Murder

(1) D made decision to kill in cool and dispassionate matter and reflected on the idea of killing (premeditated).


Statutory defined murder: Felony Murder

Murder committed during felony, with
(1) D committed or attempt to commit felony
(2) Felony must be distinct
(3) Death foreseeable
(4) Death caused before D's flight
(5) P was not a co-felon


Felony murder - Agency theory

Felons only repsonsible for killings by felon and agent


Felony murder - Proximate cause theory

Felons responsible for all forseeable killings and innocent victims, including killings by others that are not the accomplices.


To be guilty of murder, the Defendant's conduct must be....

(1) cause in fact of the result and
(2) proximate cause.

Intervening causes like negligent medical care or victim's refusal of medical treatment considered FORESEEABLE


Kidnapping definition

Unlawful confinement that involves movement or concealment of victim


Rape definition

No effective consent and slightest penetration


Statutory Rape

Strict liability crime - reasonable mistake does not prevent liability.

Second best answer - reasonable mistake as to age will prevent conviction if D reasonably believed victim was old enough to give consent


Larceny definition

(2) and Carrying away
(3) personal property
(4) of another
(5) by trespass
(6) with intent to permanently (or for unreasonable time) deprive
- Ask if took when D had possession vs. custody. If had possession, not larceny, if only had custody, it is larceny.
-Cannot commit larceny against abandoned property, but can against mislaid or lost property
-INtent to borrow or repay debt - no larceny


Larceny vs. Embezzlment

If D already had possession when he took it, then its embezzlement


Embezzlment definition

(1) Fraudulent
(2) Conversion
(3) of personal property
(4) of another
(5) by a person in lawful possession


Larceny by False Pretenses

(1) Obtain title
(2) to personal property of another
(3) intentional false statements
(4) intent to defraud

Show that D had notice of high probability that P's statements were false.


Robbery Definition

(1) A taking
(2) of personal property
(3) From the other's person or presence
(4) by force or immediate threats
(5) intent to permanently deprive


Larceny vs. Robbery

Larceny - no force (pickpocketing)
Robbery - force required


Extortion Definition

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


Receipt of stolen property definition

(1) Receiving possession and control
(2) Of "stolen" property
(3) Known to be obtained through crime
(4) by another person
(5) intent to permanently deprive owner of his interest
(6) at time D receives it


Forgery definition

(1) Making or altering
(2) A writing with apparent legal significance
(3) So that it is false
(4) Intent to defraud

If P knew he was signing doc - not forgery. If P doesn't know he's signing doc - forgery


Malicious Mischief definition

(1) malicious
(2) Destruction
(3) property of another


Common law: Burglary

(1) Breaking
(2) and entry
(3) of a dwelling
(4) of another
(5) at nighttime
(6) with intent to commit a felony AT THE TIME OF ENTRY


Common law: Arson

(1) Malicious
(2) Burning
(3) of the dwelling
(4) of another


Factual or legal impossibility defense in Attempt Charge

Factual - not a defense
Legal - only possible if the act wasn't illegal


Attempted murder elements

REQUIRES specific intent to kill - even though regular murder does not


How to analyze a murder question

(1) Any state of mind present to constitute malice aforethought?
(2) If yes to (1), anything raise it to first degree murder? (premeditated)?
(3) If yes to (1), anything to lower it to vountary manslaughter due to adequate provocation?
(4) If no to (1), anything that would make it involuntary manslaughter? Criminal negligence or misdemeanor manslaughter


Larceny by trick vs. Larceny by false pretenses

Larceny by trick - does not involve title
Larceny by false pretenses - does involve title.