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Flashcards in Criminal Law from lecture Deck (102):

When does a state acquire jurisdiction over a crime?

If either the conduct or the result happen in that state.


What is merger of crimes?

Two crimes become one crime. Generally no merger of crimes in American law.


What crimes merge in American law and what does that practically mean?

solicitation and attempt--if you have completed that crime, you cannot be charged with attempting to commit that crime.


Does conspiracy merge into the substantive offense?

No. You can be convicted of conspring to do something and doing it.


What are the essential elements of a crime?

1. Act; 2. Mental State


What constitutes an act for an element of a crime?

1. Can be any bodily movement but must be a voluntary act.


What are some examples of bodily movements that do not qualify for criminal liability?

1. Conduct that is not the product of your own volition; 2. A reflexive or convulsive act; 3. An act performed while you are unconscious or asleep. (includes sleepwalking)


Omissions as an act:

Generally there is no legal duty to rescue but sometimes there is a legal duty to act.


How can a legal duty to act arise?

1. By statute (failure to file taxes); 2. By contract (A lifeguard or nurse); 3. Because of the relationship between the parties (parent's duty to protect children; spouse's duty to protect the other spouse); 4. Because you voluntarily assume a duty of care and then fail to adequately perform it; 5. Where your conduct created the peril.


What are the 4 common law mental states of a crime?

1. specific intent crimes; 2. malice crimes; 3. general intent crimes; 4. strict liability crimes.


What is the importance of specific intent crimes?

They qualify for additional defenses not available for other types of crime. 1. Voluntary intoxication; 2. mistake of fact.


What are the specific intent crimes?

1. Solicitation (inchoate offense); 2. Conspiracy (inchoate offense); 3. Attempt (inchoate offense); 4. First degree murder; 5. Assault; 6. Larceny; 7. Embezzlement; 8. False pretenses; 9. Robbery; 10. Burglary; 11. Forgery


What is the mnemonic for specific intent crimes?

Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts.


Malice Crimes

Murder and Arson (just need reckless disregard of some high risk that this harm is going to occur.)


General intent Crimes

General intent is a big catch-all category. All crimes not so far mentioned are general intent crimes unless they qualify for strict liability.


Transferred Intent

Intent can be transferred to an unintended victim. There are always two crimes in a transferred intent hypothetical. Attempt and actual crime committed. There are two victims--so we have two crimes.


What is the intent of strict liability crimes?

No intent. The importance of strict liability on the bar exam is that any defense that negates intention CANNOT be a defense to the no intent crimes of strict liability.


If you see a statute on the exam, pay attention to what?

If the crime is in the administrative, regulatory, or morality area and you don't see any adverbs in the statute such as knowingly, willfully, or intentionally, then the statute is meant to be a no intent crime of strict liability.


Mental states of the Model Penal Code:

1. Purposely; 2. Knowingly; 3. Recklessly; 4. Negligently.


When does one act purposely?

When it is his conscious objective to engage in certain conduct and cause a certain result.


When does one act knowingly?

When he is aware that his conduct will very likely cause the result.


When does one act recklessly?

When he consciously disregards a substantial and unjustifiable risk.


When does one act negligently?

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


An accomplice is who?

one who aids, advises, or encourages the principal in the commission of the crime charged. Accomplices must also have the requisite intent that the crime be committed.


Accomplices are liable for what?

The crime itself and all other foreseeable crimes.


Rule about accomplices and withdrawal:

If the person encourages the crime, the person must repudiate the encouragement. If the person aided by providing assistance to the principal (such as giving materials) he must do everything possible to neutralize this assistance (such as attempting to retrieve the materials). An alternate means of withdrawing is to contact the police.


Inchoate offenses: means what?



What are the 3 inchoate crimes?

1. solicitation; 2. conspiracy; 3. attempt


What is solicitation?

Solicitation is asking someone to commit a crime. The crime of solicitation ends when you ask them. Under the common law, it is not necessary that the person solicited agrees to commit the crime.


What if the person you ask to do a crime agrees?

Then it becomes conspiracy and the solicitation merges and the only crime left when the person agrees to do it is conspiracy. Solicitation goes away.


What is no defense for solicitation?

Factual impossibility.


What is conspiracy?

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


Conspiracy and merger?

No. Can be convicted of conspiring of doing something and doing it.


Liability for co-conspirators' crimes:

Each conspirator is liable for ALL the crimes of co-conspirators if those crimes were committed in furtherance of conspiracy and were foreseeable.


What is the agreement requirement for conspiracies?

The agreement need not be expressed. Intent can be inferred from conduct.


What is the bilateral and unilateral approach for conspiracy?

Unilateral: (MPC) on the hook for the actions of just you. So if one party is feigning agreement, the other person is still liable for conspiracy. 2. Bilateral approach--need two guilty parties for there to be a conviction for conspiracy. So if one person is feigning agreement, the other cannot be convicted of conspiracy.


What is the majority rule for the grounding of liability for conspiracy? Minority/common law rule?

Majority rule (MPC): in order to ground liability for conspiracy there must be an agreement plus some overt act in furtherance of the conspiracy. Minority and common law rule: grounded liability for conspiracy in the agreement itself.


What kind of overt act is required by the majority rule for conspiracy?

Any little act will do to be an overt act in furtherance of conspiracy, even an act of mere preparation.


What is no defense to conspiracy?

Factual impossibility. (Agreement to rob a place that has no money.)


What is the rule regarding withdrawal and conspiracy?

Withdrawal, even if it is adequate, can never relieve the defendant from liability for the conspiracy itself. The defendant can withdraw from liability for other conspirators' subsequent crimes but not the conspiracy.


Attempt: rules regarding intent; overt act; defenses.

Specific intent plus an overt act in furtherance of the crime. The overt act must be a substantial step in furtherance of the commission of the crime. Mere preparation cannot ground liability for attempt. Legal impossibility is a defense, but factual impossibility is not a defense.


What are the defenses for crimes based on criminal capacity?

1. Insanity; 2. Intoxication; 3. Infancy


Insanity defense: 4 tests.

1. M'Naghten rule; 2. Irresistible impulse; 3. Durham rule; 4. Model Penal Code


M"Naghten rule

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.


Irresistible Impulse rule

Defendant lacked capacity for self control and free choice.


Durham rule

Defendant's conduct was a product of mental illness.


Model Penal Code

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


Voluntary intoxication is a defense only to

Specific intent crimes--no other kind of crime. Addicts and alcoholics are always voluntarily intoxicated.


Involuntary intoxication: what is it

1. Unknowingly being intoxicated; 2. Becoming intoxicated under duress. Involuntary intoxication is a form of insanity and is a defense to all crimes.


Infancy: what is it?

Under age 7, no criminal liability. Under age 14, a rebuttable presumption of criminal liability.


Self defense nondeadly force may be used when?

Anytime the victim reasonably believes that force is about to be used on him.


Self defense deadly force can be used when?

Majority rule: Anytime the victim reasonably believes that deadly force is about to be used on him.
Minority rule: a victim is required to retreat if it is safe to do so, but no duty to retreat from your home; a rape or robbery; a police officer.


Self defense for original aggressor?

To get back the defense of self-defense, the original aggressor must 1. withdraw, and 2. communicate that withdrawal. If the victim of the initial aggression suddenly escalates a minor fight into one involving deadly force and does so without giving the aggressor the opportunity to withdraw, the original aggressor may use force in his own defense (including deadly force, if reasonable.)


Defense of others rule:

A defendant can raise a defense of others defense if he reasonably believes that the person assisted would have had the right to use force in his own defense.

Majority rule: there need not be a special relationship between the defendant and the person in whose defense he acted.


Defense of a dwelling rules:

deadly force may never be used solely to defend your property.


When is duress a defense to a criminal act?

The person acts under the threat of imminent infliction of death or serious bodily injury, and that belief is reasonable. Threats to harm a third person may also suffice to establish the defense of duress. Duress is a defense to all crimes except homicide.


Necessity defense

Conduct that would otherwise be criminal is justifiably if ,as a result of pressure from natural forces, the defendant reasonably believes that his conduct was necessary to avoid a greater societal harm. (Tornadoes, etc.) Differs from duress because duress involves a human threat and necessity involves pressure from natural forces.


Mistake of fact rules.

Mistake of fact is a defense only when mistake negates intention. The mistake has to be reasonable to be a defense to a malice or a general intent crime, but on the bar exam, any mistake, no matter how ridiculous, is a defense if the defendant is charged with a specific intent crime. Mistake of fact is never a defense to strict liability crimes.


Consent as a defense to a criminal act is available when?

Consent of the victim is generally no defense.


Entrapment defense rule:

the criminal design must have originated with law enforcement officers and the defendant must not have been predisposed to commit the crime.


Offenses against the person: list

1. Battery; 2. Assault; 3. Aggravated assault; 4. Homicide


Rule for Battery:

Battery is the unlawful application of force to the person resulting in either bodily injury or offensive touching. A battery need not be intentional (sufficient if defendant acted with criminal negligence). The force need not be applied directly (can be poison). Remember that battery is a general intent crime.


Rule for Assault:

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


Assault/battery distinction:

If there has been an actual touching then it is a battery and not an assault.


Aggravated assault rules

Aggravated assault is an assault plus one of the following: 1. use of deadly or dangerous weapon; 2. with the intent to rape, maim, or murder.


Murder defined:

Murder is the unlawful killing of another human being with malice aforethought.


Murder intent:

Malice aforethought: Such a state of mind exists if there is: 1. an intent to kill or 2. an intent to inflict great bodily harm or: 3. reckless indifference to an unjustifiably risk to human life; 4. or intent to commit a felony.


Murder Causation:

Cause-in-fact: The defendant's conduct must be the cause-in-fact of the victim's death. In other words the death would not have occurred but-for the defendant's conduct.

Proximate cause: the general rule is that a defendant is responsible for all results that occur as a natural and probably consequence of his conduct, even if he did not anticipate the exact manner in which they would occur.


Degrees of murder:

1. First Degree Murder; 2. Second degree murder; 3. Manslaughter


First degree murder: 3 types

1. Premeditated murder; 2. Felony murder; 3. Homicide of a Police Officer


Premeditated murder rules:

1. The victim must be human; 2. the defendant must have acted with intent or knowledge that his conduct would cause death.


Felony murder:

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


Defenses to felony murder:

If the defendant has a defense to the underlying felony, then he has a defense to felony murder. The felony they are committing must be a felony other than the killing. The deaths must be foreseeable. Deaths caused while fleeing from a felony are felony murders, but once the defendant reaches a point of temporary safety, deaths caused thereafter are not felony murders. On the MBE, the defendant is not liable for the death of a co-felon as a result of resistance by the victim or police.


Homicide of a police officer rule:

The defendant must know the victim is a law enforcement office and the victim must be acting in the line of duty.


Second degree murder defined:

In many states, second degree murder is classified as a depraved heart killing, a killing done with reckless indifference to an unjustifiably high risk to human life, or murders that are not classified as first degree murders (e.g., premeditated killings or first-degree felony murders.


2 types of manslaughter:

voluntary and involuntary


Voluntary manslaughter rule:

1. Killing in the heat of passions resulting from an adequate provocation by the victim; 2. the provocation must be one that 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 a sufficient time between the provocation and the killing for the passions of a reasonable person to cool off; 4. the defendant did not cool off between the provocation and the killing.


Involuntary manslaughter rule:

1. A killing of criminal negligence or 2. misdemeanor manslaughter (killing someone while committing a misdemeanor or 3. an unenumerated felony.


False Imprisonment rule

Unlawful confinement of a person without his valid consent. NOTE: if a known alternate route is available, the confinement element will not be met for purposes of false imprisonment. NOTE: One's consent to the confinement precludes it from constituting false imprisonment.


Kidnapping rule

Confinement of a person with 1. some movement or 2. concealment in a secret place.


Sex Offenses:

1. Rape; 2. Statutory Rape; 3. Crimes against nature and other sex crimes.


Rape rules

Slightest penetration completes the crime of rape. Only thing you need to know for MBE.


Statutory rape rules

Strict liability crime and consent of victim is no defense and mistake of fact is no defense.


Crimes against nature and other sex crimes:

disgusting stuff


Property Crimes: list

1. Larceny; 2. Embezzlement; 3. False Pretenses


Larceny rules:

Common law larceny requires a wrongful taking, a carrying away (asportation) of property of another by trespass (without permission) with intent to permanently deprive.
The slightest movement is sufficient. Intent to deprive owner permanently must exist at the time of the taking or it is not common law larceny (but if they take property and later decides to steal it, can be liable under theory of continuing trespass.) Taking property in the belief that it yours (you have some right to it) is not common law larceny.


Embezzlement rules:

The fraudulent conversion of property of another. NOTE: the emblezzler always has lawful possession followed by an illegal conversion; a trustee is often the MBE embezzler. You don't have to carry away to be an embezzler. The embezzler does not have to get the benefit.


False Pretenses: rules

The defendant persuades the owner of property to convey title by false pretense (false representation). NOTES: It is the conveyance of TITLE that is the center of false pretenses. This false representation could be as to a present or past fact. A false promise to do something in the future cannot ground liability for false pretenses. Larceny by trick: if only possession of property is obtain and not TITLE.


Robbery: rules

A taking of personal property of another in the other person's presence by force or threat with the intent to permanently deprive him of it. NOTES: the presence requirement is very broadly drawn (covers a farmer tied up in the barn and taking things from his house). As for taking by either force or threat, things such as ripping a necklace from a person's neck is sufficient. The threat must be a threat of imminent harm.


Extortion: rules

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


Differences between extortion and robbery:

1. You don't have to take anything in the person's presence to be extortion.
The threats are of future harm in extortion, not imminent harm.


Offenses against habitation: list

1. Burglary; 2. Arson


Burglary rules:

Breaking and entering of a dwelling of another at night with the intent to commit a felony within.


Rule on actual breaking:

Breaking can be actual (involving some force however slight) or constructive. It is not an actual breaking for someone to come uninvited through a wide open door or window. But if someone pushes open an interior door to a bedroom then a breaking exists.


Rule on constructive breaking

A breaking by fraud or threat.


Rule on entering

Occurs when any part of the body crosses into the house.


Rule on dwelling house of another

Cannot be barn or commercial structure.


Rule on intent to commit felony therein

The intent to commit the felony has to exist at the time of the breaking or it is not common law burglary.


Arson rules

The malicious burning of the dwelling of another.


malice for arson rule

no specific intent is required: acting with a reckless disregard of an obvious risk that the structure will burn will suffice for arson culpability.


burning for arson rule

must be burning, not smoke damage


dwelling of another for arson rule

has to be a dwelling, it could not be a barn or commercial building.