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Flashcards in Unit 4 Deck (55):

The 2 dominating justifying theories of punishment are:

1. retributive justice: the wrongdoer deserves justice. "just deserts"
2. utilitarian: predicated on the notion that a social practice is desirable if it promotes human happiness more effectively than any other alternatives. (What benefits the majority) 185


In present years the __________ has emerged as the prevailing theory of punishment.

retributive justice 185


_________ is the effect that punishment of the offender will have in causing other people in the community to refrain from committing the same act.

general deterrence 187


_________ is the effect that the imposition of punishment on the wrongdoer will have in causing other people in the community to refrain from committing the same crime.

individual deterrence 187


Under the theory of _________, the greater the temptation to commit the crime and the less chance of detection, the more severe the penalty should be.

general deterrence 187


_______ is the removal or restriction of freedom of those who have violated criminal laws.

incapacitation 187


three-strikes laws, which impose sentences of __________ for those convicted of certain serious offenses thee times.

25-years-to-life 187


______, _______ impose maximum penalties for certain crimes, such as particular sex offenses.

zero tolerance, one-strike law 187


______ is the imposition of punishment in the context of an "eye for an eye"... usually associated with _______, though the utilitarian may see benefit in this as well.

vengeance, retribution 188.


Indeterminate sentencing systems were one the predominate approach in the US. The 2 principles of this system were:

1. judge had discretion to fashion a sentence based on information obtained during the sentencing hearing
2. parole boards and other correctional authorities had the power to release a prisoner before completion of their sentence if they believed the rehabilitative goals had been achieved. 189


_______ is a sentencing system that abolishes parole boards and creates presumptive sentencing ranges for various classes of offenses, thereby limiting ________ discretion.

determinate sentencing, trial judges' 190


can mandatory sentences found in both determinate and indeterminate sentencing systems?



______ is the ______ of a sentence of incarceration, allowing the offender to return to the community with the conditions set by the court.

probation, suspension 194


______ is the release of an offender from incarceration prior to the expiration of the full term of incarceration.

parole 194


___________ is a process through which all the parties with a stake in a particular offense come together to resolve collectively how to deal with the aftermath of the offense and its implications for the future.

restorative justice 194


_______ is the Constitutional principle that the punishment should fit the crime, expressed in the 8th amendment's cruel and unusual punishment clause.

proportionality 197


A ___________ is any act that causes the death of another person with criminally culpable mens rea and with out a lawful justification or excuse.

criminal homicide 207


______ is the unlawful killing of a fetus.

feticide 210


All states consider the killing of a newborn child, known as an _______, a ______.

infanticide, homicide 210


Elements of criminal homicide (5).

1. an act or omission
2. that causes the death
3. of another human being
4. with criminally culpable mens rea
5. without lawful justification or excuse 213.


_______ and _______ is the mental state that raises 2nd degree murder to 1st degree murder in jurisdictions that classify murder into 2 or more levels. It implies a cold-blooded killing.

premeditation, deliberation 213


_________, which means the body or substance of the crime. In homicide cases this literally means the _________. What are the 2 elements?

body of the victim.

1. the prosecution cannot use the defendant's statement or confession alone to prove that a crime has been committed.

2. there must be proof that the victim died as a result of the accused person's criminal act. (If no corpse is recoverable, circumstantial evidence can be used.) 213


Under the common law definitions, ______ is the killing of another with ________, and __________ is the killing of another without ____________.

murder, malice aforethought, manslaughter, without aforethought 216


The MPC names 3 categories of criminal homicide:

1. murder
2. manslaughter
3. negligent homicide 216


In the context of actus reus, an instance in which an actor causes an involuntary condition leading to liability for criminal homicide could be: (4)

1. knowingly driving while sleepy
2. knowingly drinking to the point of passing out.
3. disregarding advice from doctors by driving or operating equipment knowing that one is subject to heart failure or epilepsy.
4. driving or operating dangerous equipment while knowingly on any kind of psychoactive substance. 215


The _____________ holds that if the victim does not die within a _________ of the time the injury was inflicted by the defendant, the defendant cannot be convicted of being the legal cause of the victim's death. This rules exists in a number of states; however other states have extended this time period to ___________.

year-and-a-day-rule, 1 and a day, 3 years and a day 218


Malice is state of mind connoting an ___________ It is not limited to the specific intent to kill, since eve a wanton or reckless state of mind may constitute malice.

"abandoned and malignant heart." 222


In modern times, criminal homicide is generally divided into 3 categories:

murder, voluntary manslaughter, and involuntary manslaughter 207


An essential element distinguishing murder from the 2 types of manslaughter is _______ , which is the mens rea of the accused at the time of the act.

malice aforethought 207


At common law, under the _______, a child would have to be physically separated from the mother in order to be considered a human being.

born-alive rule 208


Legal abortion is generally protected by the mother's right to privacy until the fetus is ______.

viable 210


viability is usually _______ after conception and is when the fetus is considered to be capable of surviving _________.

five to six months, outside of the womb 210


Under the Uniform Determination of Death Act, an individual who has sustained either ___________________ or ____________________, is dead.

1. irreversible cessation of circulatory and respiratory functions, or
2. irreversible cessation of all functions of the entire brain, including the brain stem 211


under modern law, is suicide a crime?

NO 211


______ is the only state that has explicitly legalized physician-assisted suicide in certain circumstances.

Oregon 211


_______, as a defense to a criminal homicide charge, means that the actor had a right or privilege to engage in conduct that otherwise would have been criminal.



Events that occur after the defendant's conduct but before the victim's death, and which directly contribute to the death, have raised special concerns. These events are called __________ and generally ________ relieve the defendant of criminal liability except........

intervening acts, will NOT, when the acts are completely independent of the defendant's acts. 218


________ , also know as forcible felonies, which are those that pose a significant threat to human life. These felonies include residential burglary, arson, rape, robbery, kidnapping, and forcible sodomy.

inherently dangerous felonies 224


In jurisdictions where there is felony murder rule, prosecution for murder can still be pursued on the theory of ___________

reckless indifference to the value of human life. 226


_______ is the primary purpose behind the application of the felony murder rule.



A capital murder is also known as a ___________.

murder in the first degree


The ________ allows a jury to infer from the fact that the defendant used an object that causes fatal injuries upon the deceased that he intended to kill the deceased.

deadly weapon doctrine 217


Both justifications and excuses are __________ to murder, which means the accused person who raises the defense is required to prove it. The standard of proof is usually __________.

affirmative defenses, preponderance of evidence. 230


At common law, there was only 1 form of manslaughter, which is now often referred to as ________. This is by definition, killing committed without __________.

voluntary manslaughter, malice aforethought 231


Killing done negligently is considered ____________.

manslaughter 229


At common law, before a killing could be downgraded from murder to manslaughter, the actor must have been _______ in a way that caused him or her to act in a heat of passion.

provoked 231


Under the common law rule, a provocation defense must meet these elements (3):

1. acted in the heat of passion
2. caused by legally sufficient provocation
3. of such a degree as would cause a person of reasonable, ordinary temperament to lose normal self-control. 231


___________ is a partial defense that reduces a murder charge to voluntary manslaughter, where the claim of self-defense fails because it is not objectively reasonably but is honestly believed by the accused.

imperfect self-defense 233


Under a ___________ defense, the defendant could have murder charges reduces to voluntary manslaughter in instances where they committed the acts while in a diminished capacity due to voluntary intoxication or mental illness that does not rise to the level of insanity.

diminished capacity 233


An actor is guilty of __________ if he or she causes an unintentional killing while acting in a criminally negligent manner

involuntary manslaughter 234


An accused can also be convicted of ______________ if an unintentional death occurs from the commission of a misdemeanor or non-forcible felony. This basis of ____________ liability is often referred to as the ______________.

involuntary manslaughter, involuntary manslaughter, misdemeanor manslaughter rule 235


In some states, ________ is a criminal homicide committed by a person who has neglected to exercise the degree of care that an ordinary person would have exercised under the same circumstances.

negligent homicide. 235


_________ is a condition observed in some rape victims in which the victim develops phobias and physical problems as a result of having been raped.

rape trauma syndrome 253


Generally an adult is guilty of _______ if he or she engages in any sexual conduct with a child to include exposing genitals to a child, having a child touch the perpetrators genitals, removing the child's clothing, taking nude photos of the child, or having the child touch the perpetrator or another child's genitals.

child molestation 255


_________ requires community notification by authorities when a convicted sex offender is released from prison.

Megan's Law 255