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Flashcards in Criminal Law Deck (108):

Essential elements of crimes

(1) Actus reus
(2) Mens rea
(3) causation
(4) concurrence principal



(1) Insanity
(2) voluntary intoxication
(3) infancy
(4) mistake
(5) self defense
(6) necessity
(7) duress
(8) entrapment


Where is there jurisdiction?

(1) where the act took place
(2) where the result took place


Classification of crimes

(1) Felony - death or more than 1 year
(2) Misdemeanor - fine or less than 1 year


Act by omission: sources of duty

(1) statute
(2) Contract
(3) status relationship: parent/child; spouse/spouse
(4) voluntary assumption of care
(5) creation of peril


Act by omission: requirements

(1) Legal duty to act
(2) Knowledge of facts giving rise to duty
(3) ability to help


Mental states MBE: specific intent (11 crimes)

(1) when the crime requires not just the desire to do the act but also the desire to achieve a specific result
(2) crimes against the person: (i) Assault; (ii) 1st degree premediated murder
(3) property crimes: (i) larceny; (ii) embezzlement; (iii) false pretenses; (iv) robbery; (v) forgery; (vi) burglery
(4) inchoate crimes: (i) solicitation; (ii) conspiracy; (iii) attempt


Defenses: only specific intent

(1) voluntary intoxication
(2) unreasonable mistake of fact


Mental states MBE: malice

(1) acts intentionally or with reckless disregard of an obvious or known risk
(2) Crimes: murder, arson


Mental states MBE: General intent

(1) defendant need only be generally aware of the factors constituting the crime; need not intend a specific result
(2) crimes: (i) battery; (ii) forcible rape; (iii) false imprisonment; (iv) kidnapping


Mental states MBE: strict liability

(1) crime requires just doing the act; no mental state needed
(2) crimes: public welfare offenses (regulatory offenses that implicate public health or safety and typically carry small penalties); statutory rape


NY mental states: Intent

When it is the defendant's conscious desire to achieve a particular results


NY mental states: knowledge

When defendant is aware of what he is doing. with respect to a result when the defendant is particularly certain that his conduct will cause the result


NY mental states: recklessness

When defendant is aware of a substantial and unjustifiable risk and consciously disregards that risk


NY mental states: negligence

When defendant should have been aware of a substantial and unjustifiable risk


Causation: accelerating cause

an accelerating cause is an actual cause


Concurrence principle

(1) defendant must have the required mental state at the same time as he engages in the culpable act
(2) Larceny and burglary are where it arises


Common law battery

(1) unlawful
(2) application of force
(3) resulting in either: (i) bodily injury; (ii) offensive touching
(4) general intent


Common law assault (2 versions)

Version 1: attempted battery
Version 2: (1) the intentional creation; (2) other than by mere words; (3) of a reasonable apprehension; (4) of imminent bodily harm
Requires specific intent


New York Assault (no battery)

(1) Intentionally
(2) causing physical injury
(3) to another person


NY three typical factors that affect degree

(1) weapons)
(2) injury: (i) physical injury; (ii) serious physical injury (permanent or life threatening)
(3) quantity (money, drugs)


NY Assault degrees

(1) first degree is second degree plus a weapon
(2) second degree is intentionally causing serious injury
(3) third degree is intentionally causing nonserious injury


NY Menacing

Merely creating a reasonable apprehension without intent to injury


Common law Murder

(1) causing death
(2) of another person
(3) with malice aforethought
(4) requires intent to kill, intent to inflict serious bodily harm, extreme reckless indifference to human life, intentional commission of an inherently dangerous felony


Intent to kill: special rules

(1) deadly weapon rule: intentional use of deadly weapon creates an inference of an intent to kill
(2) Transferred intent: If defendant intends to harm one victim but accidentally harms a different victim instead, the defendant's intent will transfer from the intended victim to the actual victim (also applies in arson and battery)


NY felony murder crimes (BRAKES)

(1) burglary
(2) robbery
(3) arson
(4) kidnapping
(5) escape
(6) sexual assault


Felony murder:merger rule

Felony must be independent of the killing


Felony murder: when must killing take place

during the felony or during immediate flight from the felony; once felon reaches place of temporary safety the felony ends


Felony murder: vicarious liability

(1) in most states if one co-felon proximately causes death, all co-felons are guilty of felony murder even if killing is committed by a 3rd party
(2) in some states, felony murder applies only if the killing is committed by one of the co-felons (agency theory)


NY Felony murder: non-slayer defense (affirmative defense)

(1) defendant did not kill the victim
(2) defendant did not have a deadly weapon
(3) defendant had no reason to believe that his co-felons had deadly weapons
(4) defendant had no reason to believe his co-felons intended to do anything that was likely to result in death


Statutory first degree murder

(1) premediation
(2) deliberation


Second degree murder

All non first degree murders


NY first degree murder

(1) intent to kill
(2) defendant is more than 18
(3) at least one aggravating factor: (i) victim is a law enforcement officer engaged in official duties at the time of the killing; (ii) defendant committed a murder for hire; (iii) felony murder where the victim was intentionally killed; (iv) killing for the purpose of witness intimidation; (v) there was more than one victim intentionally killed in the same criminal transaction


NY second degree murder

(1) intentional killing that does not qualify for first degree
(2) highly reckless killing demonstrating depraved indifference to human life by engaging in conduct that creates a grave risk of death generally involving more than one victim (torture if only one victim)
(3) felony murder, where the victim is not a co-felon and is killed unintentionally


Common law voluntary manslaughter: elements

(1) intentional killing
(2) committed in the heat of passion
(3) upon adequate provocation


Common law voluntary manslaughter: requirements

(1) provocation was objectively adequate: (i) serious assault or battery; (ii) presently witnessed adultery
(2) defendant was actually provoked
(3) no time to cool off
(4) defendant did not actually cool off



(1) intentional killing committed under the influence of a reasonable and extreme emotional disturbance
(2) affirmative defense


Common law involuntary manslaughter

(1) a killing committed with criminal negligence; or recklessness
(2) A killing committed during the commission of a crime to which the felony murder doctrine does not apply


NY manslaugter

(1) first degree: (i) EED; (ii) an intent to cause serious physical injury
(2) second degree manslaughter: (i) mental state of recklessness; (ii) defendant was aware of and consciously disregarded a substantial and unjustifiable risk of death


NY Criminally negligent homicide

(1) Mens rea: criminal negligence


NY Aggravated homicide

(1) victim is a police officer in the line of duty
(2) defendant is over 18 and causes the death of a child under 14 in an especially cruel and wanton manner


Common law false imprisonment

(1) unlawful
(2) confinement of a person
(3) without his or her consent
(4) general intent


NY unlawful imprsionment

(1) second degree: (i) unlawfully; (ii) restraining someone; (iii) without their consent; (iv) with knowledge that the restriction is unlawful
(2) first degree adds risk of serious physical injury


Common law kidnapping

(1) false imprisonment
(2) that involves either moving the victim or concealing the victim in a secret place
(3) general intent


NY kidnapping

(1) second degree: abducting someone
(2) first degree: second plus one of the following: (i) ransom; (ii) restraint of victim for more than 12 hours with intent to rape, injure, or rob the victim; (iii) death of the victim


Forcible rape

(1) sexual intercourse
(2) without the victim's consent
(3) accomplished by: (i) force; (ii) threat of force; (iii) when victim is unconscious
(4) general intent


Statutory rape

(1) sexual intercourse
(2) with someone under the age of consent (17 in NY)
(3) Strict liability (reasonable mistake is a defense in minority of jurisdictions)


Common law larceny (TTCPAIP)

(1) Trespassory (wrongful or unlawful)
(2) Taking (asportation)
(3) carrying away
(4) personal property (who had lawful custody)
(5) of another with
(6) intent
(7) to permanently retain the property


Common law larceny: erroneous taking rule

A taking under claim of right is never larceny even if defendant erroneously believes the property is his


Common law larceny: continuing trespass

If wrongfully too property but without the intent to steal, may be guilty if forms the intent to steal (exception to concurrence principle)


Common law embezzlement

(1) conversion of the personal property of another by a person already in lawful possession of that property with the intent to defraud
(2) specific intent to defraud
(3) must have lawful possession of property before a taking can be considered embezzlement
(4) must have authority to exercise some discretion over the property


Common law false pretenses

(1) obtaining title to the personal property of another by an intentional false statement, with the intent to defraud
(2) defendant gets title, not custody
(3) must be a present or past event (false statement)


Common law larceny by trick

If defendant obtains only custody, but not title as a result of the intentional false statement


Common law robbery

(1) a larceny
(2) from another's person or presence
(3) by force or threat of immediate injury
(4) specific intent to steal


Common law forgery

(1) making or altering a writing
(2) so that it is false
(3) with the intent to defraud


NY Larceny

(1) any crime that would be larceny, embezzlement, false pretenses, or larceny by trick at common law
(1) first degree: more than 1,000,000; second degree: more than 50,000; third degree; more than 3,000; fourth degree: more than 1,000: petit if less


NY robbery

(1) third degree: forcible stealing
(2) second degree: forcible stealing plus one of: aided by another who is present; victim is injured; a car is stolen
(3) first degree: forcible stealing plus one of following: (i) victim is seriously injured; (ii) defendant uses or displays a firearm (may prove unloaded as affirmative defense to reduce to 2nd)


Common law burglary

(1) breaking and entering the dwelling of another at night with intent to commit a felony inside
(2) specific intent to commit felony inside


Burglary modern statutory changes

Many states have eliminated the requirements of breaking, at night, and dwelling


NY burglary

(1) third degree: (i) entering or remaining; (ii) in a building; (iii) unlawfully; (iv) with intent to commit a crime inside
(2) second degree add one of the following: (i) building is a dwelling; (ii) a non-participant is injured; (iii) defendant carries a weapon
(3) First degree: defendant knows that he is burglarizing a dwelling plus one of: (i) a non-participant is injured; (ii) defendant carries a weapon


Common law arson

(1) malicious burning of a building
(2) requires malice
(3) burning must be material wasting and must be the building itself


NY arson

(1) fourth degree: reckless burning of a building
(2) third degree: intentional burning of a building
(3) second degree: defendant knows or should have known that someone was inside the building
(4) first degree: plus explosive or incendiary device


Common law possession of contraband

(1) Possession means dominion and control for a period of time long enough to terminate possession
(2) constructive possession: don't need actual possession so long as close enough to exercise dominion and control
(3) mental state of knowledge (of possession and character of item possessed)


Common law receipt of stolen property

(1) receiving possession and control
(2) of stolen personal property
(3) knowing that the property has been obtained by another criminal party and
(4) with intent to permanently deprive the owner of his interest in the property


NY criminal possession of stolen property

(1) property must really be stolen


Accomplice liability

(1) Accomplice is guilty of all crimes that he aid or encourages and all other foreseeable crimes committed along with the aided crime


Accomplice liability: when not an accomplice

(1) mere presence at the scene of the crime; must actively aid or encourage the principal
(2) mere knowledge of the crime does not make someone an accomplice; must intend to aid or encourage the principal; In NY can still be guilty of lesser crime facilitation
(3) victims of crime cannot be accomplices since they are the protected class


Accomplice liability: withdrawal

(1) encourager can withdraw by repudiating the encouragement
(2) Aider must neutralize assistance or otherwise prevent the crime from happening


Accomplice liability: NY withdrawal

(1) accomplice must make a substantial effort to prevent the commission of the crime
(2) renunciation is an affirmative defense


Accomplice liability: common law accessory after the fact

(1) help a principal who has committed a felony
(2) with knowledge that the crime has been committed
(3) with the intent to help the principal avoid arrest or conviction


Accomplice liability: modern statutory approach to accessory after the fact (NY)

(1) obstruction of justice; harboring a fugitive; hindering prosecution



(1) asking someone to commit a crime with the intent that the crime be committed
(2) specific intent
(3) completion of crime is unnecessary



(1) an agreement between two or more people to commit a crime, plus an overt act in furtherance of the crime
(2) overt act can be any act performed by any co-conspirator (even prepatory)
(3) mental state: specific intent to enter an agreement (concert of action) and to accomplish the objectives of the conspiracy
(4) impossibility is never a defense


Conspiracy: NY unilateral approach

(1) can have one-person conspiracy


Conspiracy: wharton rule

When two or more people are necessary for the commission of the substantive offense, there is no conspiracy unless more parties participate in the agreement than are necessary for the crime


Conspiracy: common law vicarious (pinkerton) liability

(1) defendant will be liable for other crimes committed by his co-conspirators, so long as those crimes: (i) were committed in furtherance of the conspiracy's objective; (ii) were foreseeable


Conspiracy: NY vicarious liability

No vicarious liability for one who merely conspires and does not participate in a crime committed by a co-conspirator


Common law attempt (general)

Overt act beyond mere preparation


NY/Common law Attempt (proximity)

Conduct that gets dangerously close to the commission of the crime


MPC/Majority attempt (substantial step)

Conduct that constitutes a substantial step towards the commission of the crime, provided that the conduct strongly corroborates the actor's criminal purpose


Attempt: mental state

(1) specific intent to commit the underlying crime


Attempt: impossibility

(1) factual impossibility is not a defense
(2) Under common law legal impossibility is a defense under common law, not under NY


Defense to inchoate NY

(1) renunciation is an affirmative defense to solicitation, conspiracy and attempt but only if: (i) defendant renounces criminal purpose prior to the commission and makes a sincere and successful effort to prevent the commission of the substantive offense; (ii) the renunciation is complete and voluntary (based on genuine change of heart)


Inchoate crimes: merger rule MBE

(1) solicitation and attempt merge with complete crime
(2) conspiracy never merges


Inchoate crime: merger rule NY

(1) solicitation does not merger


Insanity defense MBE

(1) must have a mental disease
(2) Majority test (m'naghten): (i) did not know that conduct was wrong; (ii) did not understand the nature of conduct
(3) Irresistible impulse test: (i) was unable to control his actions; was unable to conform his conduct to the law
(4) MPC test: lacked substantial capacity to either (i) appreciate the criminality of conduct; (ii) conform his conduct to the requirements of law


Insanity defense NY

(1) must prove lacked substantial capacity to know or appreciate: (i) the nature and consequences of his conduct; (ii) that his conduct was wrong


Incompetency (unfit to stand trial)

(1) defendant cannot either (i) understand the nature of the proceedings against him; (ii) or assist his lawyer in the preparation of his defense


Voluntary intoxication: MBE

(1) defense to specific crimes only
(2) requires such severe prostration of the faculties that the defendant cannot form the requisite specific intent


Voluntary intoxication: NY

(1) can be a defense to intent crimes and knowledge crimes, if the intoxication prevents the defendant from forming the required state of mind


Infancy (common wrong answer): common law

(1) if defendant, at time of crime, is under 7 no prosecution is allowed
(2) if defendant, at time of crime, is under 14 there is a rebuttable presumption against prosecution
(3) if defendant, at the time of crime, is greater than or equal to 14, prosecution is allowed


Infancy (common wrong answer): NY

(1) if defendant is under 13 only juvenile delinquency proceedings
(2) If 13, criminal prosecution for second degree murder
(3) if 14 or 14, criminal prosecution as adult for serious crimes against persons or property
(4) 16 or older, criminal prosecution for any crime


Mistake: common law mistake of fact

(1) specific intent: any mistake of fact is a defense
(2) malice or general intent, only a reasonable mistake of fact
(3) never a defense for strict liability


Mistake: NY mistake of fact

(1) defense if mistake negates required mental state
(2) For crimes of intent, knowledge or recklessness, any mistake of fact is usually a defense
(3) for negligence, only a reasonable mistake of fact
(4) never for strict liability


Mistake: mistake of law

(1) generally not a defense
(2) except when knowledge of the law is an element of the crime


Self defense: non-deadly force

(1) reasonably necessary
(2) to protect against an immediate use
(3) of unlawful force against himself


Self defense: deadly force

(1) may use deadly force in self-defense if facing an imminent threat of death or serious bodily injury


Self defense: initial aggressor rule

(1) defendant may not use deadly force if the initial aggressor, but can regain right if: (i) withdraws from fight and communicates the withdrawal; (ii) victim escalates a nondeadly fight into a deadly one
(2) in NY the initial aggressor must withdraw before using deadly force even if the other party escalates


Self defense: retreat rule

(1) majority rule: retreat is not required
(2) NY/minority: retreat is required unless: (i) D cannot retreat in complete safety; (ii) D is in his home


Self defense: mistake

(1) reasonable mistake is complete defense
(2) unreasonable mistake: (i) NY/Majority, no defense; (ii) minority/MPC mitigates but does not exonerate


use of force to prevent a crime

(1) non deadly force may be used, if reasonably necessary, to prevent serious breach of the peace
(2) deadly force may only be used to prevent a felony risking human life


defense of others

May use force and deadly force to protect others just as he could use it to defend himself


defense of property

(1) deadly force may not be used to defend property
(2) may use deadly force inside dwelling when: (i) intruder gained entry in a tumultuous manner and; (ii) occupant reasonably believes that the use of deadly force is necessary to prevent a personal attack on herself or someone in the dwelling


resisting arrest

(1) majority: defendant may use non-deadly force to resist unlawful arrest
(2) NY: force may not be used to resist an arrest unless the officer is using excessive force


Use of deadly force by law enforcement

officer may use deadly force only when doing so is reasonable under the circumstances



(1) It is a defense to criminal conduct if the defendant reasonably believes that the conduct was necessary to prevent a greater harm
(2) unavailable if: (i) defendant causes the death of another person to protect property; (ii) defendant is at fault in creating a situation that creates a choice of evils



(1) defense if the defendant was coerced to commit a crime because of a threat from another person of imminent death or serious bodily injury to himself or a close family member
(2) cannot be a defense to homicide except in NY



(1) criminal design originated with the government
(2) defendant was not predisposed to commit the crime