Exam Review Flashcards

(68 cards)

1
Q

4 types of Mens Rea for Murder

A

Intent to kill
Intent to cause serious bodily harm/injury
Depraved Heart - reckless indifference to the value of human life
Felony Murder - intent to commit unrelated felony is sufficient to meet mens rea requirement of murder

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2
Q

Premeditation - Old and Modern View

A

Old View - no substantial amount of time need elapse between formation of intent to kill and execution of killing

Modern view - reasonable period of time during which deliberation exists

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3
Q

In order to be convicted for 1st degree murder, what do you need?

A

substantial evidence must be shown to prove that killing was pre-meditated and deliberate

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4
Q

What is 2nd degree murder?

A

unlawful killing of a human being with malice aforethought but without additional evidence such as willfulness, pre-meditation, and deliberation that would support a conviction of 1st degree murder

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5
Q

What is Felony Murder?

A

if D, while he is in the process of committing a felony, kills another (even accidentally) the killing is murder

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6
Q

Why was felony murder doctrine created?

A

Deter the use of violence

Commit felony in the least harmful way

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7
Q

What is the agency approach to Felony Murder?

A

doctrine does not apply if person who directly causes death is a non-felon

MAJORITY RULE!

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8
Q

How is felony murder and proximate cause related?

A

A felon can be held responsible in felony murder if felon set in motion acts which results in victim’s death

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9
Q

What is Res Gestae

A

term defining overall start-to-end sequence of underlying felony

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10
Q

How is felony murder and place of temporary safety related?

A

crime is no longer being perpetrated if actor reaches a place of temporary safety

New felony if/when criminal flees

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11
Q

What is the difference between murder and manslaughter?

A

homicide which is deemed not sufficiently heinous to be treated as murder, but still too blameworthy to go completely unpunished

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12
Q

What is voluntary manslaughter?

A

D kills while in an extremely angry or disturbed state

“heat of passion”

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13
Q

What are the elements of voluntary manslaughter

A
  • Must have been an adequate provocation – sufficient to cause a reasonable person to lose control
  • Killing must have been in heat of passion
  • Killing must have followed the provocation before there was a reasonable opportunity for a “cooling off” period
  • Must be a causal connection between the provocation, passion, and fatal act
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14
Q

Can words be an adequate provocation for manslaughter?

A

Generally, NO!

Court found that words CAN constitute adequate provocation, if they are accompanied by conduct indicating a present intention/ability to cause D bodily harm

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15
Q

What are 3 situations that may mitigate what would normally be murder to manslaughter?

A
  • Discovering one’s spouse in the act of sexual intercourse with another
  • Mutual combat
  • Assault and battery
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16
Q

What is involuntary manslaughter?

A

unintentional killing that results from recklessness or criminal negligence

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17
Q

Is D’s awareness of risk always required in order to be liable for manslaughter?

A

NO

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18
Q

What is Self Defense?

A

General right to defend oneself against the use of unlawful force

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19
Q

What are the elements of Self Defense?

A

Resist unlawful force – D must have been resisting present or imminent use of unlawful force

Force must not be excessive – degree of force used by D must not be more than is reasonably necessary to defend against threatened harm

Deadly force – forced used by D may not be deadly unless the danger being resisted was also deadly force

Aggressor – D must not have been the aggressor. Unless – he was a non-deadly aggressor confronted with the unexpected use of deadly force OR withdrew after initial aggression and P continued to attack

Retreat – D must not have been in a position where he could retreat with complete safety. Unless – attack takes place in D’s dwelling or D uses only non-deadly force

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20
Q

Is the right to use self defense available to someone that provoked a conflict?

A

No - aggressor doctrine

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21
Q

What is the retreat to the wall doctrine?

A

forbids the use of deadly force when there is an avenue for safe retreat open (majority of states have removed this rule, incl. IL)

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22
Q

What is the castle doctrine?

A

One who through no fault of his own is attacked in his home is under no duty to retreat

Some jurisdictions extend this to the area around your home (in your yard)

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23
Q

Will a court take into account individual physical attributes when determining self defense doctrine?

A

Yes

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24
Q

What is Defense of Others?

A

a person may use force to defend another in roughly the same circumstances in which he would be justified in using force in his own defense

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25
What are the requirements to use Defense of Others?
* Danger to other – must reasonably believe that the other person is in imminent danger of unlawful bodily harm * Degree of Force – degree of force used by D is no greater than that which seems reasonably necessary to prevent the harm * Belief in another person’s right to use force – D reasonably believes that the party being assisted would have the right to use in his own defense the force that the defendant proposes to use in his assistance
26
What is the Alter Ego Rule?
D “stands in the shoes” of the person he aids. If the person aided would not have had the right to use that degree of force in his own defense, D’s claim fails
27
Is an unborn fetus included in defense of others doctrine?
Yes
28
What is Defense of Habitation/Property?
one has a limited right to use force to defend one’s property against a wrongful taking
29
What are the requirements of Defense of Habitation/Property?
* Reasonable belief that there is an immediate threat of a person entering or attempting to enter in order to commit a violent felony * Don’t have to use proportionate force
30
What is the Actus Reus of Sexual Assault?
committing an act of sexual penetration and using force or a threat of force or knowing that the victim is unable to understand the nature of the act or is unable to give knowing consent
31
What is the Mens Rea of Sexual Assault?
intent to commit sexual penetration
32
What is the Affirmative Consent model
actual permission and nothing less than positive willingness clearly communicated should ever count as consent
33
What is Title IX/Title 9?
Using preponderance of the evidence in sexual assault Requires affirmative consent + lower standard of proof
34
What are the 2 arguments against using Title 9?
Argument against #1 – not a high enough bar in Title IX cases * Cases where there is a 49% chance of innocence will still punish the student * Although not incarceration – still serious and will unfairly punish a student and affect their education and future lives Argument against #2 – Requires victim and accused to carry the same evidential burden, putting them on the same ground •Uneven burdens of proof can further discriminate against victims who have already faced so much trauma
35
What is an Inchoate Crime?
Crime of preparing for or seeking to commit another crime
36
What are the two general categories of Inchoate Crimes?
Incomplete and Complete
37
What are 3 reasons we punish inchoate crimes?
* Give law enforcement a basis to intervene * Conduct designed to cause or culminate in the commission of a crime indicates actor is disposed towards such activity – there needs to be safeguards against this * If any actor couldn’t be punished if they tried to carry out a crime but were unsuccessful due to luck this could “shock the conscious” and would be an inequality of treatment if they weren’t punished
38
What are the two requirements for Attempt?
Correspond with actus and mens rea Act must constitute a substantial step D must intend to commit the specific crime
39
Merger and Attempt
attempt merges with the completed crime – CANT be charged with attempt and complete crime, only one or the other
40
How many criminal intents does attempt involve?
Criminal attempts involves two “intents” – BOTH must be satisfied Actor’s conduct must be intentional Specific intention of committing the completed offense
41
What are the 7 doctrines of attempt liability?
Physical proximity doctrine – the closer the preparatory act (actus reus element) is to the complete crime, the stronger the case for calling it an attempt •How close did D come to completing the offense? Dangerous proximity doctrine – the greater the gravity and probability of the offense and the nearer the act to the crime, the stronger probability for calling act an attempt Indispensable element test – look at whether an indispensable aspect of the endeavor remains to be completed, if they do not have the element, they have not yet crossed the line of preparation v. attempt Probable desistance test – if there was no interruption from an outside source, would the conduct have resulted in the intended crime? Last Act Test – only after the actor had taken the last step and events were out of his control could the law punish an attempt RIL/Unequivocality test – requires that the defendant’s conduct unequivocally manifests his criminal intent •If conduct could be indicative either of a non-criminal intent or of a criminal one, it is not sufficient •If conduct does unequivocally manifest criminality of intent, it suffices even though completion of the plan is many steps away Substantial step test – MPC/IL approach/majority rule – considers actions undertaken in preparation of the commission of a crime
42
Can mere preparation ever be sufficient to confer attempt liability?
Preparation might be enough if it comes very near to the accomplishment of act and intent to complete it renders crime so probable that act will be a crime
43
What is factual impossibility and how is it related to attempt liability?
D intended and constitutes a crime but he fails to complete it because of a factual circumstance unknown to him or beyond his control Factual impossibility is almost never accepted as a defense to attempt
44
What is legal impossiblity
when D committed acts which as a matter of law could not have amounted to a crime
45
What are the two types of legal impossibility
Pure legal impossibility – when an actor engages in lawful conduct that he incorrectly believes constituted a crime •Court will always acquit - Hybrid legal impossibility – actor intended a crime but completing it was impossible due to a mistake of the legal status of something necessary to complete it
46
What is abandonment
if D renounces or stops his involvement of the crime prior to its completion, he can invoke an abandonment clause
47
Involuntary/Voluntary and Abandonment
Must be voluntary decision •Threat of immediate apprehension – where D learns that if he goes through with his plans, he is likely to be immediately apprehended, it is involuntary EX – if D doesn’t shoot because there are police present Postponement for a better time – does not constitute abandonment
48
What is a threat?
tools that are employed when one wishes to have some effect, or achieve some goal, through intimidation A communication containing a threat must be such that a reasonable person would (1) take the statement as a serious expression of an intention to inflict bodily harm and (2) perceive such expression as being communicated to effect some change or achieve some goal through intimidation
49
What is solicitation
When one requests or encourages another to perform a criminal act, regardless of whether the latter agrees No overt act required – as soon as D makes his request or proposal, crime of solicitation is complete
50
What is attempted solicitation?
NO SUCH THING!
51
What are the 3 approaches to determine a solicitation v. attempt
3 approaches to determining when a solicitation is actually an attempt Treats every solicitation as a specific type of attempt to be governed by ordinary attempt principles A naked solicitation is not an attempt, but a solicitation accompanied by other overt acts (offer of reward or giving materials) is an attempt Similar to 2nd view, but in order to find the solicitor guilty of an attempt, the other overt acts must proceed beyond what would be called preparation if the solicitor planned to commit the crime himself
52
What is the MPC Rule for Solicitation v. Attempt?
expressly makes it irrelevant that D fails to communicate with person he solicits if his conduct was designed to make such a communication
53
What is a Conspiracy?
An agreement between two or more persons to do either an unlawful act or a lawful act by unlawful means
54
What is required to show a Conspiracy?
Agreement – between two or more persons Objective – to carry out an act which is either unlawful or which is lawful but to be accomplished by unlawful means Mens Rea – a culpable intent on the part of D – intent must consist of at least the mental state required for the object crime
55
What are the 2 purposes of conspiracy law
Inchoate crime – conspiracy may be (and frequently is) found where no substantive crime is ever committed, society is able to stop conduct before the harmful effects of substantive criminality occurs Group activity – group activity of criminal nature is more dangerous than criminal conduct engaged in by an individual working alone Pressure element – people in groups can be pressured to carry out acts while if they are lone-wolfs, they might abandon their efforts if they change their mind •Contrary view – group activity also increases the likelihood that there will be a leak
56
Does Conspiracy merge with attempted or completed offense?
Common law - NO - can be charged with the conspiracy and attempt or successful completion of offense IL - YES
57
Can Co-conspirators be responsible for any crime that is committed in furtherance of conspiracy?
In some jurisdictions, yes - this is IL law Modern limit - most courts now reject such substantive liability founded upon mere membership
58
Intent necessary for conspiracy can be inferred from knowledge when - 5 ways!
No legitimate use for goods or services existed Stake in venture – if nature of sales shows that he in some sense he acquired a stake in the crime Controlled commodities – more likely to be a participant in conspiracy if substance sold was a governmentally-controlled one that, in the quantities in question could only have been used for illegal purposes Large proportion of sales – if sales to criminal purchasers represent a large proportion of supplier’s overall sales of item, he is more likely to be held to have the requisite intent Serious crime – more likely to be found to be a participant in conspiracy where the illegal activity is known to the supplier to constitute a serious crime, than where the end use is a misdemeanor
59
How can P prove there was an agreement when there is no proof?
P can prove conspiracy even when there is no proof of an agreement amongst the conspirators through the use of circumstantial evidence
60
What is unilateral v. bilateral theory of conspiracy
Unilateral approach to conspiracy (MPC) – does not require actual agreement between two or more person. When an individual agrees with an undercover agent who has no intent to commit crime, there can be a conviction for conspiracy Bilateral/Multilateral approach to conspiracy – requires an actual agreement between two or more persons. When an individual agrees with an undercover agent who has no intent to commit the crime, there can be no conviction for conspiracy •Someone merely feigning agreement does not equal conspiracy!
61
What is a chain conspiracy?
usually dealing with a single subject matter (drugs) – looks like a chain of command with different levels of involvement where you know many other people are involved but you know their identity * Can be liable for other chain’s acts (check this!) * Single conspiracy in which each person is responsible for a distinct act within overall plan – looks like a chain * Can involve hub and spoke conspiracies at every level
62
What is a Hub and Spoke Conspiracy?
possibility of multiple conspiracies – point man is the hub, at the center, conspires with spokes Spokes don’t have knowledge of each other and cannot be charged with the other’s crimes
63
What is a Wheel conspiracy?
only one conspiracy – same as hub and spoke but spokes know about each other or should have known and are performing separate functions For a wheel conspiracy to be considered a single conspiracy rather than a series of smaller separate ones: Each spoke knows that other spokes exist (doesn’t necessarily have to know their precise identity) Various spokes have, and realize that they have, a community of interest
64
What is a community of interest?
success of venture depends on performance of the other spokes
65
What is Wharton's Rule?
where a substantive offense is defined so as to necessarily require more than one person, a prosecution for the substantive offense must be brought, rather than a conspiracy prosecution Doesn't apply in IL!
66
What is the 3rd party exception for Wharton's Rule?
if more people are involved in the crime than are needed to commit - conspiracy charge can be brought EX - threesome!
67
What is the defense of withdrawal?
done through an affirmative act communicated to all co-conspirators notifying them that you desire to withdraw Only complete defense if done before the overt act is committed •If done after agreement made – precludes liability for all subsequent acts but guilty of conspiracy
68
What is Renunciation
complete defense relieving liability for all prior involvement for the conspiracy D must thwart the success of the conspiracy