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Criminal Law Flashcards

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1
Q

Which state has jurisdiction over a crime?

A

A state where either the conduct occurred or the result happened.

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2
Q

Generally, is there merger of crimes in American criminal law?

A

No.

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3
Q

Which crimes merge into the substantive offense?

A

Solicitation and attempt

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4
Q

What are the essential elements of a crime, generally?

A
  1. Act (actus reus)
  2. Mental state (mens rea)
  3. Concurrence: the physical and mental act existed at the same time; and
  4. Harmful result and causation: a harmful result caused by the defendant’s act.
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5
Q

What is a physical act?

A

Any voluntary bodily movement.

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6
Q

What does not constitute a physical act?

A
  1. Conduct that is not the product of your own volition (reflexive or convulsive acts), or
  2. An act performed while you are unconscious or asleep (I.e., sleep walking)
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7
Q

When is an omission to act qualify as an “act”?

A

When there is a legal duty to act.

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8
Q

What are the five circumstances where one has a legal duty to act?

A
  1. By statute,
  2. By contract (e.g., lifeguard or a nurse),
  3. Because of the relationship between the parties (parent/child, spouse/spouse),
  4. Because you voluntarily assume a duty of care and fail to adequately perform it, or
  5. Where your conduct created the peril.
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9
Q

What are the four common law mental states?

A
  1. specific intent crimes,
  2. malice crimes,
  3. general intent crimes,
  4. strict liability crimes.
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10
Q

What are the specific intent crimes?

A

Students Can Always Fake A Laugh Even For Ridiculous Bar Facts

  1. Solicitation
  2. Conspiracy
  3. Attempt
  4. First-degree murder
  5. Assault
  6. Larceny
  7. Embezzlement
  8. False Pretenses
  9. Robbery
  10. Burglary
  11. Forgery
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11
Q

Which additional defenses are available to defendants charged with specific intent crimes?

A
  1. Voluntary Intoxication and

2. Unreasonable mistake of fact.

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12
Q

Which two malice crimes must we know for the bar?

A
  1. Murder

2. Arson

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13
Q

What are general intent crimes?

A

“catch-all category” - Crimes that are not specific intent or malice crimes, and do not qualify as strict liability.

MOST COMMONLY TESTED: Battery and rape

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14
Q

Does the concept of transferred intent apply to crimes?

A

Yes.

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15
Q

What intent is required for strict liability?

A

None. They are no intent crimes.

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16
Q

What are the four mental states in MPC jurisdictions?

A
  1. Purposely
  2. Knowingly
  3. Recklessly
  4. Negligently
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17
Q

What does “purposely” mean in an MPC jurisdiction?

A

When the person has a conscious objective to engage in certain conduct or cause a certain result.

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18
Q

What does “knowingly” mean in an MPC jurisdiction?

A

Where one is aware that his conduct will very likely cause the result.

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19
Q

What does “recklessly” mean in an MPC jurisdiction?

A

Where one consciously disregards a substantial and unjustifiable risk.

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20
Q

What does “negligently” mean in an MPC jurisdiction?

A

When one fails to be aware of a substantial and unjustifiable risk.

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21
Q

What does “concurrence” mean?

A

The defendant must have had the intent necessary for the crime at the time he committed the act constituting the crime.

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22
Q

Must a defendant’s conduct be both the proximate cause and the cause-in-fact of the result?

A

Yes.

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23
Q

Who is a principal in the first degree at common law?

A

Persons who actually engage in the act that constitutes the criminal offenses.

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24
Q

Who are principals in the second degree at common law?

A

Persons who aid, advise, or encourage the principal and are present at the crime.

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25
Q

Who are accessories before the fact at common law?

A

Persons who aid, advise, or encourage the principal but are not present at the crime.

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26
Q

Who are accessories after the fact at common law?

A

Persons who assist the principal after the crime.

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27
Q

In modern statutes, who is a principal?

A

One who, with the requisite mental state, actually engages in the act or omission that causes the criminal result.

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28
Q

In modern statutes, who is an accomplice?

A

One who aids, advises, or encourages the principal in the commission of the crime charged.

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29
Q

In modern statutes, who is an accessory after the fact?

A

One who receives, comforts, or assists another knowing that he has committed a felony, in order to help the felon escape arrest, trial, or conviction.

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30
Q

What is the mental state required for accomplice liability?

A

The accomplice must have (1) the intent to assist the principal in the commission of the crime, and (2) the intent that the principal commit the crime.

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31
Q

What is the scope of liability for an accomplice?

A

An accomplice is responsible for the crimes she committed or aided/advised/encouraged and for any other crimes committed in the course of committing the crime contemplated, as long as the other crimes were probable and foreseeable.

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32
Q

How may an accomplice withdraw if they encouraged the crime itself?

A

The person must repudiate the encouragement, or call the police.

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33
Q

How may an accomplice withdraw if they aided by providing assistance to the principal?

A

He must do everything possible to neutralize this assistance (such as attempting to retrieve materials provided), or call the police.

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34
Q

What is conspiracy?

A

Conspiracy is an agreement, with an intent to agree, and an intent to pursue an unlawful objective.

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35
Q

Does conspiracy merge with the substantive offense?

A

No, a defendant may be convicted of conspiracy and the underlying substantive crime.

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36
Q

In a conspiracy, must an agreement be express?

A

No, the intent to agree may be inferred from conduct.

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37
Q

Under a bilateral approach to conspiracy, what is required?

A

Two guilty parties, meaning if one person is merely feigning agreement, the other person cannot be guilty of conspiracy.

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38
Q

Under a bilateral approach to conspiracy, if all alleged co-conspirators have been acquitted, may the defendant be convicted of conspiracy?

A

No

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39
Q

Under a unilateral approach to conspiracy, how many guilty parties are required for conviction?

A

One.

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40
Q

What is the common law rule regarding the overt act requirement for conspiracies?

A

No overt act is required. Liability is grounded in the agreement itself.

THIS IS THE MINORITY RULE.

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41
Q

What is the majority rule regarding the overt act requirement for conspiracies?

A

In order to ground liability for conspiracy, there must be an agreement PLUS some overt act in furtherance of the conspiracy - mere preparation is enough.

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42
Q

Is factual impossibility a defense to conspiracy?

A

No.

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43
Q

Can a defendant withdraw from a conspiracy?

A

No. Withdrawal can never relieve the defendant from liability for the conspiracy itself.

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44
Q

To what extent can a criminal defendant withdraw from a conspiracy?

A

The defendant can only withdraw from liability for the other conspirator’s subsequent crimes.

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45
Q

What is solicitation?

A

Asking someone to commit a crime.

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46
Q

When is the crime of solicitation complete?

A

When the question is asked.

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47
Q

Under common law, is it necessary for the solicitee agree to commit the crime for a defendant to be guilty of solicitation?

A

No.

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48
Q

What happens if after soliciting someone to commit a crime, the solicitee agrees?

A

The solicitation becomes a conspiracy. (Solicitation merges)

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49
Q

Is factual impossibility a defense to solicitation?

A

No.

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50
Q

What is attempt?

A

A substantial step in furtherance of a crime. Mere preparation is not enough.

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51
Q

Under common law, is abandonment a defense to attempt?

A

Never.

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52
Q

In an MPC jurisdiction, is abandonment a defense to attempt?

A

Yes, IF it is fully voluntary and a there is a complete renunciation of criminal purpose.

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53
Q

Is legal impossibility a defense to attempt?

A

Yes.

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54
Q

Is factual impossibility a defense to attempt?

A

No.

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55
Q

What is murder?

A

The unlawful killing of another human being with malice aforethought.

56
Q

For murder, what intent must be shown? (four)

A
  1. Intent to kill,
  2. Intent to commit a felony,
  3. Intent to inflict great bodily harm, or
  4. Reckless indifference to an unjustifiably high risk to human life.
57
Q

What are the three flavors of first degree murder?

A
  1. Premeditated killing,
  2. Felony murder,
  3. Homicide of a police officer.
58
Q

What is required to be convicted of first degree murder in a premeditated killing?

A
  1. The victim must be human,
  2. The victim must be dead, and
  3. The defendant must have acted with intent or knowledge that his conduct would cause death.
59
Q

What is required to be convicted of first degree murder in the homicide of a police officer?

A
  1. The defendant must know the victim is law enforcement, and
  2. The victim must be acting in the line of duty (even if she was off-duty)
60
Q

What is second degree murder?

A

A “depraved heart” killing, or a killing done with reckless indifference to an unjustifiably high risk to human life, or murders that are not classified as first-degree murders.

61
Q

What is felony murder?

A

Any killing, even an accidental killing, committed during the course of a felony.

62
Q

What are the enumerated inherently dangerous felonies for the purposes of felony murder?

A

BARRK

  1. Burglary,
  2. Arson,
  3. Rape,
  4. Robbery, and
  5. Kidnapping
63
Q

What are the five defenses to felony murder?

A
  1. The defendant has a defense to the underlying felony,
  2. The felony they committed was the killing itself,
  3. The death was not foreseeable
  4. The death was caused after the defendant reached a point of temporary safety, and
  5. The victim was a co-felon
64
Q

To be convicted of felony murder, must the death have been foreseeable?

A

Yes

65
Q

Is a person liable for felony murder for deaths caused while fleeing from a felony?

A

Yes.

66
Q

Is a defendant liable for felony murder for the death of a co-felon as a result of resistance by the police or victim?

A

Yes.

67
Q

What is required for voluntary manslaughter?

A
  1. Killing in the heat of passion resulting from adequate provocation by the victim,
  2. The provocation must be one that the would arouse sudden and intense passion in the mind of an ordinary person such to cause him to lose self-control,
  3. There must not have been sufficient time between the provocation and the killing for the passions of a reasonable person to cool, and
  4. The defendant did not cool off between the provocation and the killing.
68
Q

In states that recognize imperfect self-defense, what happens if a defendant successfully raises it?

A

Murder charge will be reduced to manslaughter.

69
Q

What is imperfect self-defense?

A

A defendant has an honest but Unreasonable belief that his life was in imminent danger.

70
Q

What is involuntary manslaughter?

A

A killing of criminal negligence.

71
Q

What is misdemeanor manslaughter?

A

killing someone while committing a misdemeanor or an un-enumerated felony.

72
Q

What is required for the defendant’s conduct to be the cause-in-fact of the victim’s death?

A

The death would not have occurred but for the defendant’s conduct.

73
Q

What is required for the defendant’s conduct to be the proximate cause of the victim’s death?

A

The results were a natural and probable consequence of his conduct, even if he did not anticipate the exact manner in which they would occur.

74
Q

What is battery?

A

Unlawful application of force to the person resulting in either bodily injury or offensive touching.

75
Q

Must a battery be intentional?

A

No.

76
Q

Must force be applied directly in a battery?

A

No

Note: Watch out for “poisoning” hypo

77
Q

What is an assault?

A

An attempt to commit a battery or the intentional creation of a reasonable apprehension of imminent bodily harm.

78
Q

Mere words alone are ___ enough to be assault

A

not

79
Q

What is aggravated assault?

A
  1. The use of a deadly or dangerous weapon; or

2. With the intent to rape, maim, or murder.

80
Q

What is false imprisonment?

A

The unlawful confinement of a person without his valid consent.

81
Q

The confinement element of false imprisonment will not be met if a ________ ___________ ________ is available.

A

“known alternate route”

82
Q

What is kidnapping?

A

Confinement of a person that involves either (1) some movement or (2) concealment in a secret place.

83
Q

The ___________ penetration completes the crime of rape.

A

“slightest”

84
Q

Is consent of a victim a defense to statutory rape?

A

No.

85
Q

Mistake of fact is ___ defense to statutory rape.

A

No

86
Q

What is larceny?

A

A wrongful taking, a carrying away of the property of another by trespass (without permission) with intent to permanently deprive.

87
Q

Is the slightest movement of property enough to be criminally liable for larceny?

A

Yes.

88
Q

Intent to deprive the owner permanently of their property must exist at ___ ____ __ ___ __________ to be convicted of larceny.

A

“the time of the taking”

89
Q

If a person takes property not intending to steal it, but then later decides to keep the property, she _______ be found guilty of larceny.

A

“CAN”

theory of continuing trespass

90
Q

What is embezzlement?

A

The fraudulent conversion of property of another.

LAWFUL possession followed by an ILLEGAL conversion.

91
Q

What is the Wharton Rule?

A

In crimes requiring acts of two or more people, at least three people must be involved in an agreement to be guilty of conspiracy for that crime.

(examples: adultery and dueling)

92
Q

Must an embezzler receive the benefit of the conversion to be guilty of embezzlement?

A

No.

93
Q

What is the crime of false pretenses?

A

The defendant persuades the owner of property to convey title by false pretense or false representation.

94
Q

What is the difference between false pretenses and larceny by trick?

A

False pretenses: Defendant takes title

Larceny by trick: Defendant takes possession.

95
Q

What is robbery?

A

The taking of personal property of another from the person’s presence, by force or threat, with the intent to permanently deprive him of it.

96
Q

For robbery, must the treat be of imminent harm?

A

Yes.

97
Q

If a defendant takes the property of another at “plastic gun point” can he be convicted of robbery?

A

Yes - simulated deadly weapon.

98
Q

What is extortion?

A

Knowingly seeking to obtain property or services by means of future threat.

99
Q

What is the difference between extortion and robbery?

A

Extortion is under the threat of future (not imminent) harm, and the defendant need not take anything from the victim or his presence.

100
Q

What is forgery?

A

The making or altering of a false writing with intent to defraud.

101
Q

What writing is subject to forgery?

A

Any writing with apparent legal significance (e.g., insurance policy, will, check)

102
Q

What is burglary?

A
  1. Breaking and entering
  2. the dwelling of another
  3. at night
  4. with the intent to commit a felony therein.
103
Q

For burglary, the “breaking” may be actual or _____________.

A

constructive.

104
Q

Can a defendant be convicted of burglary if they enter the dwelling of another through an open window?

A

No.

105
Q

What is a constructive breaking for the crime of burglary?

A

A breaking by fraud or threat.

106
Q

What is arson?

A

The malicious burning of the dwelling of another.

107
Q

What is required for the “malice” requirement of arson?

A

Acting with a reckless disregard of an obvious risk that the structure would burn - no specific intent required.

108
Q

Arson only applies to burning. Which of the following is sufficient to be convicted of arson?
A. Charring
B. Scorching

A

Charring.

109
Q

What are the four tests for the defense of insanity?

A
  1. M’Naughten Rule
  2. Irresistible Impulse
  3. Durham Rule
  4. Model Penal Code
110
Q

What is the M’Naughten Rule?

A

At the time of his conduct, Defendant lacked the ability to know the wrongfulness of his actions or understand the nature and quality of his actions.

The “right-wrong” test.

111
Q

What is the irresistible impulse insanity test?

A

Defendant lacked the capacity for self-control and free choice.

The “self control” test

112
Q

What is the Durham Rule?

A

The defendant’s conduct was the product of mental illness.

NOTE: This is RARE

113
Q

What is the MPC test for the insanity defense?

A

Defendant lacked the ability to conform his conduct to the requirements of law.

114
Q

When is voluntary intoxication a defense to a crime?

A

When the underlying crime is one of specific intent.

115
Q

Addicts and alcoholics __________ considered voluntarily intoxicated.

A

are always

They can never claim involuntary intoxication.

116
Q

Involuntary intoxication can occur when:

A
  1. A person is unknowingly being intoxicated, or

2. becoming intoxicated under duress.

117
Q

When may a person use non-deadly force in self-defense?

A

When the person reasonably believes that force is about to be used on him.

118
Q

What is the majority rule of when may a person use deadly force in self-defense?

A

Any time the person reasonably believes that deadly force is about to be used on him.

119
Q

What is the minority rule of when may a person use deadly force in self-defense?

A

A person is required to retreat if safe to do so, but you have no duty to retreat:

  1. from your home,
  2. if you are the victim of a rape or robbery, and
  3. If you are a police officer.
120
Q

When may an original aggressor get back the defense of self-defense?

A

When he

  1. Withdraws and
  2. communicates that withdrawal.
121
Q

If the victim of an initial aggressor suddenly escalates a minor fight into one involving deadly force without giving the aggressor opportunity to withdraw, the original aggressor…

A

may use force in his own self-defense, including the use of deadly force if reasonable.

122
Q

When may a defendant raise the defense of others as a defense?

A

When he reasonably believes that the person assisted would have had the right to use force in his own defense.

123
Q

Duress is a defense to a criminal act if:

A
  1. The person The person acts under threat of imminent infliction of death or great bodily harm, and
  2. that belief is reasonable.
124
Q

For the defense of necessity, conduct that would otherwise be criminal is justifiable if, as a result of pressure from _________ forces, the defendant reasonably believes that his conduct was necessary to avoid a greater _________ harm.

A

natural; social.

125
Q

May deadly force be used to defend solely your property?

A

No - never.

126
Q

When is mistake of fact a defense?

A

Only when the mistake negates intention.

127
Q

Is mistake of fact ever a defense to a strict liability crime?

A

Never.

128
Q

True or false: a mistake may be unreasonable to be a defense to a malice or general intent crime.

A

False.

129
Q

True or false: a mistake may be unreasonable to be a defense to a specific intent crime.

A

True.

130
Q

Ignorance of the law ______ a defense to a crime.

A

is not.

131
Q

Entrapment is a valid defense if:

A
  1. The criminal design originated with law enforcement officers, and
  2. The defendant must not have been predisposed to commit the crime.
132
Q

What is the required mental state for accomplice liability whne the underlying crime requires a mental state of recklessness or criminal negligence?

A

Must have (1) intent to facilitate the commission of the crime and (2) and acted with recklessness or negligence whichever is required by the crime.

133
Q

Is mere knowlege that a crime will result enough for an accomplice to be liable for the provision for materials?

A

No. They must have a stake In The venture

134
Q

Define criminal negligence.

A

(1) failure to be aware of a substantial and unjustifiable risk and (2) this failure constitutes a gross deviation from a reasonable persons standard of care in the situation.

135
Q

Unlike an accomplice, an accessory after the fact has committed a separate crime with a punishment _____________ `to the felony committed.

A

unrelated

136
Q

Under the Eighth Amendment, the death penalty may not be imposed for felony murder where the defendant, as an accomplice…

A

did not take or attempt or intend to take life, or intend that lethal force be employed.

Bar Exam (14 decks)

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