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MBE: Final Review > Criminal Law and Procedure > Flashcards

Flashcards in Criminal Law and Procedure Deck (107):

Specific Intent:
• How to Identify (2)
• Key Rules (3)

Key Characteristics: actual intent to do the act or cause the harm prohibited by the crime's definition
• CL crime requires specific intent
• "Intent" appears in statutory language

1. Prosecution must prove an actual intent
• super recklessness insufficient

2. If D made a mistake about a critical fact found in the definition of the crime, and so didn't have the necessary intent, a reasonable and unreasonable mistake is a defense

3. Voluntary intoxication is a defense, but D must have been extremely drunk that he didn't know what he was doing


• How to Identify (2)
• Key Rules (3)

Key Characteristics:
• CL crime requires malice (murder; arson)
• "malice" or "maliciously" appears in statutory language

1. May establish by showing intent or extreme recklessness

2. If D made a mistake about a critical fact found in the crime, the mistake must be reasonable

3. Voluntary intoxication isn't a defense


General Intent (Recklessness):
• How to Identify (2)
• Key Rules (3)

Key Characteristics:
• CL crime that has a mental state of recklessness
• "Reckless" or "recklessly" appears in statutory language

1. Prosecutor must establish intent or an extreme deviation from normal behavior

2. Voluntary intoxication isn't a recognized defense

3. If D made a mistake about a critical fact found in the crime, it must be a reasonable mistake


CL: Murder (3)

1. Unlawful killing
2. Of a human being
3. WITH malice aforethought


Malice Aforethought: Four Sufficient Mental States

1. Intent to kill

2. Intent to cause serious bodily harm

3. Extreme indifference to the value of human life ("depraved heart killing"/super reckless behavior) OR

4. Intent to commit a felony


CL: Manslaughter (3)

1. Unlawful killing
2. Of a human being
3. WITHOUT malice aforethought


Manslaughter: Common Fact Patterns (3)

1. Recklessly causing death of a person (involuntary)
2. Killing during the heat of passion, provocation (voluntary)
3. Misdemeanor manslaughter rule


Provocation/Heat of Passion: Examples (2)

1. Spouse having sex w/ another
2. Physically assaulted by another


Felony Murder
• Elements (2)
• Basic Rules (5)

A. Killing
B. Committed or attempted to commit a felony

1. Felony must be independent of the killing
2. VL for co-felon's crimes
3. Co-felon cannot be a victim (Redline, majority view)
4. D must be at least factually guilty of the felony
5. Ends when D has reached a place of temporary safety


Attempt (2)

1. Specific intent to commit crime [name] AND
2. Behavior that got the defendant in close proximity to the completed crime ("substantial step")

Note- a person who took a substantial step towards committing the crime, but lacked the specific intent to the target offense is NOT guilty of attempt


MPC: Knowingly

Knows, believes, or substantially certain that that fact exists


Mistake of Law - defense?

No - ignorance of the law (even if reasonable) is no excuse


Accomplice Liability
• Rule
• Types (2)
• Scope of Liability

A person is guilty if he:
1. Helps another person commit a crime
2. With the intent to have that crime committed
3. Actually aids, counsels, or encourages before or during the commission of the crime

• words of encouragement ("shoot the fucker")
• conduct (hand over a gun)

Scope: Liability extends to any foreseeable crimes committed during the course of committing the crime contemplated


Victim Rule

Can't convict someone if she is a member of the very group the criminal statute was designed to protect

Ex: 15 yr old Lolita has consensual sex with an adult. Prosecutor can't charge Lolita as an accomplice.


Conspiracy: Basic Rules (6) + Mens Rea

Specific Intent

1. Definitions:
• CL: An agreement between two or more people to commit an unlawful act
USA: An agreement between two or more people to commit an unlawful act AND some overt act in furtherance of the agreement

2. Co-conspirators are liable for the crime of conspiracy and all substantive offenses that are (i) foreseeable and (ii) committed in furtherance of the conspiracy

3. Withdrawal gets the defendant off the hook for all substantive offenses that occur AFTER the withdrawal, but it doesn't negate liability for conspiracy

4. To withdrawal, a person must (i) voluntary give it up and (ii) communicate that to all other participants in time for them to change their plans

5. May be convicted of conspiracy and the substantive offense

6. Even for conspiracy to commit a strict liability offense, you must still show an intent to achieve the objective of the agreement


CL: Burglary (4) + Mens Rea

Specific Intent

1. Intentional breaking and entering (even through fraud)
2. Of another's dwelling house (including hotels)
3. At night time
4. With intent to commit a felony OR any degree of larceny inside the dwelling


CL: Petit Larceny

Stole something worth less than $35
• Misdemeanor


CL: Robbery (5) + Mens Rea

Specific Intent

1. Taking and carrying away
2. Another's personal property
3. By force or intimidation
4. From the other's person or presence
5. With the intent to permanently deprive


Does burglary merge with the crime committed inside the structure?

No - D could be convicted of burglary and the other crime committed once the D is inside the dwelling.


Crime Against the Person: Self-Defense (2)

1. Reasonably believed under an unlawful attack AND
2. Reasonable amount of force to protect himself


CL: Arson (2)

1. Malicious burning
• Intent or extremely reckless
• Slight charring is sufficient

2. Of another's dwelling house


At common law, could someone be guilty of arson for burning their own home?



Transferred Intent
• Rule
• Applies to what?
• Inapplicable to what? (2)

If a D intended to injure one person, and in trying to accomplish that, causes SIMILAR injury to another, his intent is transferred from the intended person to the harmed
• any mitigating circumstances that the D could have asserted (i.e., provocation) against the intended victim also usually transferred

Applies only when the original intent was to commit a very similar crime

1. The original intent was to do something that wasn't illegal in the first place OR
2. Attempt crimes


CL: Larceny (4) + Mens Reas

Crime against possession

Specific intent

1. Intentional taking and carrying away of
2. Another person's personal property while in their possession
3. Without their consent
4. With the intent to permanently deprive the other of the property
• satisfied even if for just an unreasonable time, or if D plans to use the property in a manner that creates a substantial risk of loss

• note - after the D gains control of the property, the slightest movement of the property is sufficient to satisfy the taking and carrying away req't


• Definition
• Classic Examples (2)

Fraudulent conversion of another's property by someone in lawful possession of that property

Classic Examples:
1. Theft by a high-level employee from the employer OR
2. Theft by a person in a position of trust (attorney, accountant, bank manager)


Theft by Employee: Larceny v. Embezzlement

High-level employee w/ control over property for a long period of time --> embezzlement

Low-level employee w/ control over property for a limited period of time --> larceny


4A: What makes a search reasonable?

Search is reasonable if the police had a search warrant based on probable cause, or there's an exception to the warrant req't


Reasonable Expectation of Privacy: Areas that Are NOT Protected (8)

"Phil And Arnold Golf Valiantly On Home Opens"

Paint Scrapings
Account Records
Voice Exemplars
Open Fields (even if they're fenced in)


Exceptions to the Warrant Req't (8)


Exigent Circumstances
Search Incident to Lawful Arrest
Plain View
Special Needs
Terry Stop and Frisk


Exception to Warrant Req't: Automobile: Scope

Still must have probable cause to search


Exception to Warrant Req't: Plain View

If the police are at a place where they have a legal right to be (under any legal theory), and they observe an illegal item, they can seize it


Exception to Warrant Req't: Terry Stop and Frisk
• Standard
• Rule

Standard: Reasonable Suspicion
• supported by articulable facts of criminal activity or involvement in a completed crime
- a mere anonymous tip is insufficient

Rule: If the stop and frisk is valid, then anything observed (including observation through touch) is OK


Exception to Warrant Req't: Exigent Circumstances (2)

1. Evanescent evidence OR
2. Hot pursuit


Home Searches: Two Most Common Exceptions to Warrant Req't

1. Consent
2. Exigent Circumstances


Reasonable Expectation of Privacy: Examples

Home, persons, place of biz, personal effects, automobile


Valid Arrest of Driver of Car: Ramifications (2)

Cops may search the area w/in the driver's immediate control as they search incident to the arrest
• doesn't matter what the arrest is for
• ex: entire passenger area - front seat, back seat, unlocked glove compartment

BUT once the arrested driver is under police's complete control, then police can only search when they have reason to believe an item connected to the arrest is still in the car


What result if the cops are conducting a legitimate search for item X, and while searching, come across other illegal items?

Cops may seize the stuff


What result if a search is unreasonable?
• Remedy
• Exceptions

Remedy: Exclusionary Rule

BUT the evidence won't be suppressed if:
1. Police in good faith believed the warrant was valid
2. Evidence is used at a proceeding other than the trial on the merits (grand jury, sentencing, etc.)
3. Evidence used to impeach the D who has testified


4A: Effect of not having a reasonable expectation of privacy?

Can't complain about the search no matter how unreasonable it was


Involuntary Confession
• Test
• Remedy

Test: TOC - consider all relevant facts and circumstances to determine whether the confession is voluntary

• Prosecutor may not use in its case-in-chief OR
• Prosecutor may not impeach the D


Miranda Violations:
• Remedy
• Examples (2)

1. Prosecutor can't use in case-in-chief against D
2. Prosecutor may use to impeach D

1. Cops don't give appropriate warnings
2. Cops don't follow the rules after warnings given


Miranda Warnings:
• When must they be given?
• What isn't "custody"?

1. In custody AND
2. About to be interrogated

Note - traffic stops are not in custody for miranda purposes


Right to Counsel:
• Rule
• Remedy

Once the D has been formally charged (judicial proceedings have started), right to counsel attaches
• no interrogation w/out counsel present unless D waives

1. Prosecutor can't use in case-in-chief
2. Prosecutor can use to impeach D


Burden of Proof: Const'l Rules (2)

1. State must prove each element of the crime charged beyond a reasonable doubt

2. If the defense is one of the elements of the crime hasn't been established, then the D only has to raise a reasonable doubt (so the D doesn't have a "burden")
• BUT for all other defenses, the state may require the D to establish the defense by a POE


Double Jeopardy: When does jeopardy attach?
• Jury Trial v. Bench Trial

Jury trial --> when the jury is sworn

Bench trial --> when first witness on the issue of guilt is sworn (b/c there will be preliminary hearings)


Double Jeopardy: Exceptions (3)

1. Hung jury

2. Granted new trial

3. Mistrial for manifest necessity
• not b/c of prosecution misconduct


Double Jeopardy: "same offense" means what?

Two crimes are not the same if each one requires proof of a fact that the other does not

No Double Jeopardy:
Crime 1: A, B, C
Crime 2, A, B, X

Double Jeopardy:
Crime 1: A, B (lesser included offense)
Crime 2: A, B, C


Right to Jury Trial
• Serious Crime v. Petty Crime
• 6-person jury ok?

Right to jury trial in all serious criminal cases, but not in petty criminal cases

6 person jury is ok (but unanimous verdict req't)

"serious" - POSSIBLE max sentence is OVER 6 months


Right to Counsel: Felony v. Misdemeanor

An indigent D has a right to counsel in
1. All felony cases AND
2. Misdemeanor cases in which a jail sentence is actually imposed (includes suspended sentence)



General Intent (recklessness)
1. Unlawful force
2. Causing bodily injury or offensive touching



Specific Intent
• attempted battery



General Intent (recklessness)



Specific Intent
• solicit another to commit a crime (crime is in the asking)



Specific Intent



Specific Intent


Defense: Self-Defense: Non-Deadly Force

Reasonably believe necessary to protect self


Defense: Mistake of Fact
• Definition
• Strict Liability vs. Specific Intent vs. Other Crime

D made a mistake about a critical fact found in the crime
• Strict liability --> no defense
• Specific intent --> any mistake
• Other crimes --> reasonable mistake


Defense: Voluntary Intoxication (3)
• Elements (3)
• Applicable Crimes

1. Voluntary
2. Intentional
3. Taking of intoxicating substance

Only Specific Intent Crimes


Specific Intent: Crimes (11)

1. Assault
2. First Degree Premeditated Murder
3. Larceny
4. Embezzlement
5. False Pretenses
6. Robbery
7. Burglary
8. Solicitation
9. Conspiracy
10. Attempt
11. Forgery


General Intent: Crimes (4)

1. Battery
2. False Imprisonment
3. Kidnapping
4. Forcible Rape


Defense: Deadly Force

Reasonably believe threatened w/ death or great bodily harm

Retreat rule

Original Aggressor: no defense if D is aggressor unless:
1. D retreats OR
2. Victim escalates non-deadly to deadly


Malice: Crimes (2)

1. Murder
2. Arson


Defense: M'Naghten Rule

D entitled to acquittal if he proves:
1. Mental disease caused a defect of reason
2. Such that D lacked ability at time of his actions to either know the wrongfulness of his actions or understand the nature/quality of them


Larceny by Trick: Elements (3)

1. Obtain possession
2. Of another's property
3. By lying or trickery (fraud/misrepresentation)


Accomplice Liability: Is mere knowledge of a crime sufficient?

No, at least where the aid involves the sale of ordinary goods at ordinary prices


False Pretenses: Elements (2)

1. False representation of a material present or past fact
2. That causes the vicim to pass title to his property to D


Police: Use of Force

Whatever force is reasonably required (including deadly force) to apprehend or prevent the escape of a FELON who poses a threat of serious bodily harm to the officer or others


Reasonable Expectation of Privacy: Passenger in Another's Car

Merely being a passenger in someone else's car does NOT create a reasonable expectation of privacy w/ regard to a search of that care


Arrest Warrant for a Person in Another's Home
• Rules (2) and Exception

1. Police need a search warrant to search for the suspect in another's home

2. But the suspect lacks standing to complain about a warrantless search of another's home
• Exceptions: co-owner OR overnight guest


Warrant Req't: Community Caretaker Exception

Applies wen police are acting to protect a person from imminent physical harm


Exception to Fruit of the Poisonous Tree Doctrine: Inevitable Discovery Doctrine

Evidence is still admissible if the cops inevitably would have discovered it, regardless of whether they acted unconstitutionally


Exception to Warrant Req't: Special Needs: Public Schools
• Standard
• Test (3)

Standard: Reasonable grounds
• no warrant or PC req't

Reasonable if:
1. Moderate chance of finding evidence of wrongdoing
2. Measures used to execute search are reasonably related to the search's objectives AND
3. Not excessively intrusive (age, sex, nature of infraction)


Miranda: What result when D invokes right to silence?

Can't be used against D to show probable guilt. Miranda warnings carry an implicit assurance that silence won't carry a penalty.


Larceny: Can a person be guilty if he acts through an innocent agent?



Larceny: Can a person be guilty if he takes his own property

Yes - if that other person (like a bailee) has a superior right to possession of the property at that time


When is the crime of burglary complete?



Search Warrants and People Found Not Named in Warrant: What result?

Rule: Can't search the person

Exception: PC to arrest the person (search incident to arrest)


4A violation when a state statute authorizes warrantless searches of probationer's home (even absent PC)?

No - they are const'l, provided the statutes expressly says that
• Probationer has diminished expectation of privacy
• Gov't has heightened need for searching probationers


What result when one co-defendant gives a confession implicating the other? (3)

Rule: 6A right to confront an adverse witness prohibits using that statement - inadmissible!

Exceptions - statement may be admitted if:

1. All portions of the statement referring to the other D are eliminated

2. Confessing D takes the stand and subjected to cross regarding the truth/falsity of what his confession asserts OR

3. Non-testifying co-defendant's confession used to rebut D's claim that his confession as obtained coercively
• limiting jury instruction


What result when a culpable state of min is specified by an offense w/out indicating to which element it applies?

State of mind applies to all material elements of the offense


When does private person have right to use deadly force?

1. Effectuate an arrest when the felon appears to pose a threat to the person or others, and deadly force is necessary to prevent his escape
• PROVIDED felon was actually guilty of the felony

2. Prevent the completion of a crime being committed if the crime is a "dangerous felony" involving risk to human life


Receipt of Stolen Property: Elements (4)

1. Receiving possession and control
2. Of "stolen" personal property
3. Known to have been taken by criminal offense by another person
4. With the intent to permanently deprive the owner

Note - the property must have "stolen" status at the time the D receives it


Conspiracy: Undercover Officer

Rule: That an officer feigns agreement precludes liability

Exception: jurisdiction w/ the unilateral approach


MPC: Insanity Defense

Combines M'Naghten and Irresistible Impulse Test

D entitled to acquittal if he proves he suffered from a mental disease or defect and consequently lacked capacity to either:

1. Appreciate the criminality of his conduct OR

2. Conform his conduct to the law


Involuntary Manslaughter

Death caused by criminal negligence: a person is not aware that a:
• Substantial and unjustifiable risk exists OR
• Result will follow, and such failure is a substantial deviation from what a reasonable person would do in the circumstances


Exception to Warrant Req't: Consent
• Rule
• Req'ts to be Valid (2)
• Parent-Child

Any person w/ equal right to use or occupy the property may consent to a search, and any evidence found may be used against the other owners/occupants.

Search valid if:
(i) Cops reasonably believed the consenting party had authority to consent (even if in fact they don't)
(ii) Within the scope of consent - extends to any area where a reasonable person under the circumstances would assume it extends

Parent generally has authority to consent to child's room (even adult child), provided the parent has access to the room
- BUT, depending on child's age, parent lacks authority to consent to a search of locked containers in the room


Defense: M'Naughten Rule: D Suffers Delusions

Determine whether his actions would have been criminal if the facts has been as he believed them to be


Merger: Inchoate Crimes
• Definition
• Application

Arises when the substantive offense merges with the other offense (so D is charged with only one offense)

Solicitation --> merger

Attempt --> merger

Conspiracy --> no merger
• may be charged with conspiracy + substantive crime


False Pretenses v. Larceny by Trick: Key Difference

What the D obtains:

Obtain possession --> larceny by trick
Obtain title --> false pretenses


Valid Arrest + Third Party's House Searching For Suspect

Rule: Need search warrant to search third party's home
• exception: exigent circumstances


Commission of a Crime: Elements (5)

1. Actus Reas
2. Mens Rea
3. Concurrence
4. Causation
5. Harm


Felony Murder: Agency Theory

D will not be guilty for the killing of a bystander by a cop or victim b/c those parties are not an "agent/accomplice" of the D


Self-Defense: Victim Escalates

When the victim escalates a minor fight into one involving deadly force (w/out giving the aggressor a chance to withdraw), the aggressor may use force in self-defense


Imperfect Self-Defense
• Applicable when?

Applies when the D's use of force was unreasoanble


Larceny: Continuing Trespass

Someone wrongfully takes property w/out the intent to permanently deprive, but later decides to keep it. Concurrence occurs (and thus guilty of larceny) at the moment he decides to keep the property.



Conscious Intent



Substantial certainty


Right to Counsel: Miranda (5A) v. Messiah (6A)

Apply Miranda BEFORE formal charges
• not offense specific

Apply Messiah AFTER formal charges
• offense specific


Double Jeopardy: Conviction Reversed on Appeal

Double jeopardy prohibits re-trying a D whose conviction was reversed on appeal for any offense more serious than that for which she was convicted at the first trial
• even if at second trial D only convicted for an offense no more serious than that for which she was convicted at the first trial


Guilty Plea: Legal Effect

1. Not admitting the legality of an incriminating search

2. Doesn't waive 4A claims in a subsequent civil action challenging the constitutionality of the incriminating search


4A: Search and Seizure: Standing

Must have a reasonable expectation of privacy in the place searched or the item seized
• can't say another person's rights were violated, so mine are too -- you're own expectation of privacy must have been violated


5A: Right Against Self-Incrimination

Applies only to compelled testimony
• documents = non-testimonial



Making or altering a false writing


False Imprisonment

1. Confine
2. Without consent



1. False Imprisonment
2. Move or hide the victim


Forcible Rape

1. Sex
2. Without consent
3. Force, threat of force, or unconscious victim



1. Knowing and intelligent
2. Voluntary