Crim Add-ons Flashcards
Does underlying offense of felony murder usually merge into felony murder charge?
YES
If burglar fails to complete felony, is he guilty of attempting that felony
YES, guilty of burglary + attempted xyz
Common law conspiracy vs. MPC conspiracy
CL: two guilty minds
MPC: one guilty mind + overt act
Is factual impossibility a defense?
NO, never a defense to attempt
(e.g. tried to poison someone and didn’t realize you used cilantro)
Under CL, are children 7-14 capable of committing crimes?
Yes, REBUTTABLY PRESUMED capable of committing crimes
If a person says “I’m not scared” while assault occurs, does this impact charge?
Yes, if indicates that person was in no fear of imminent harm , could negate assault charge
CL: if co-conspirators tried together and one acquitted on conspiracy, can other be guilty?
CL: NO, if at same trial, CANNOT convict one person of conspiracy if others acquitted at same trial
Under MPC, if no default mens rea, what do you read in?
RECKLESSNESS (conscious disregard of substantial/unjustifiable risk)
When can reliance on attorney advice provide a defense
Usually, not a mistake of law defense UNLESS negates required mental state for crime
Can you abandon an attempt after taking a substantial step?
NO, too late
In burglary, can ‘breaking’ element occur if guest enters room in home where they do not have permission?
YES, even if they have been invited into home
When may deadly force not be used in one’s own dwelling?
when intruder is in process of EXITING
What burden of proof is required for affirmative defenses (self-defense, insanity, etc.)
Any burden acceptable. Legislature decides
Forgery vs. false pretenses
Forgery = making false instrument of LEGAL significance
False pretenses = making false instrument of SOCIAL (historical, art, pop culture) significance
Does lawfully entering but then breaking to EXIT a dwelling count as burglary?
No, the breaking must occur when ENTERING a dwelling to create OPENING
Is assault a lesser included offense of robbery?
YES
When can therapist warn third parties of risk?
When patient makes credible threat of physical violence against ascertainable victim OR notify law enforcement, take other steps
Threat need NOT be imminent
Is mistaken belief of owning property a defense to larceny?
YES, can negate required intent
What standard of proof is required for affirmative defenses?
Affirmative defense = justifies/excuses criminal conduct, so burden NOT automatically on prosecution (who must bear burden for all ELEMENTS of crime)
State chooses which party bears burden, and can choose any standard of proof
Fraud in factum vs. fraud in inducement for sexual assault
Fraud in factum: negates consent bc victim unaware of consent
Fraud in inducement: does not negate consent bc victim aware he provided consent
Does MPC recognize larceny, embezzlement, and false pretenses?
NO, all treated as single statutory crime of THEFT
But all of these crimes are recognized in common law jurisdictions
If a statute is violated giving rise to negligence per se, are there any ways in which the violation could be reasonable?
Yes, if defendant was disabled, physically incapacitated, or a child
Under MPC, if MR is identified for one element of the crime, does it apply to other elements?
YES applies to other material elements unless there is a clear contrary purpose
Involuntary manslaughter vs. depraved heart murder MR standard
Involuntary manslaughter: Negligence (lack of care, maybe someone will get killed)
Depraved heart murder: Recklessness (would be shocking if someone didn’t get killed)
Can you back out of conspiracy after committing overt act? 3 perspectives
Majority/federal rule: CAN withdraw from a conspiracy BEFORE overt act
CL: completely bars withdrawal as defense
Minority/MPC: withdrawal as defense AFTER overt act IF defendant makes effort to thwart conspiracy
Redline doctrine
D NOT GUILTY of felony murder if co-felon dies at hands of victim or police
(followed by most states)
BUT depraved heart murder still possible
Does conspiracy require proof that D had specific intent for unlawful purpose?
YES, even if intended crime does NOT require specific intent
Is ‘breaking’ for burglary satisfied if a person uses a key to unlock a door without permission?
YES, even if they have a key, this still satisfies breaking if done without owner’s CONSENT
Do an attempted and completed crime merge if their intended targets are different?
NO, not if the two crimes have different victims
Charges can be tried together or separately
Can a person with IQ of 60 be given death sentence?
NO, 8A prohibits this for people with intellectual disability (IQ of 70 or lower)
Vindictive prosecution doctrine
bars prosecution from punishing defendant for exercising right (e.g. appeal)
JMOL standard (historical v today)
Historical: if scintilla of evidence supported verdict for non-movant
Today: if SUFFICIENT/SUBSTANTIAL evidence exists to support verdict
is ‘adequate provocation’ a question of fact or law?
question of FACT to be tried by jury
even if likely unreasonable, still can give to jury to consider
Under CL, can you prosecute only one person for a conspiracy, or must multiple be prosecuted?
Just one, don’t need to prosecute multiple
If a person stops taking anti-seizure medication and then has a seizure while driving, does voluntarily stopping taking medication establish fault?
Likely not sufficient answer, pick answer that goes further. It is BECAUSE that action consisted engaging in reckless/criminally negligent activity
When is abandonment NOT a defense to attempt?
When it was motivated by 1) desire to avoid detection 2) decision to delay crime to a later time or 3) selection of another objective/victim
Does arson require intentional burning?
NO, can be MALICIOUS (recklessness okay)
For a strict liability offense that has no MR requirement and solely AR, is intent relevant for an attempt?
YES, even if there is no mens rea requirement for statute, ATTEMPT is a specific intent crime, and so still requires requisite mens rea
Is there a reasonable person standard for attempt?
NO, does not matter what a reasonable person would think
Do most jdx have imminent danger or substantial step test?
SUBSTANTIAL STEP
Attempt elements
1) D had specific intent
2) D or his agent performed act in futherance
3) target crime not completed
If a party solicits another to commit a crime and solicitor has intent to commit that crime, will solicitor be found guilty of attempt if party attempts crime?
YES
Do common law property crimes apply to trade secrets and other intangible property?
NO, only relate to TANGIBLE property
Robbery elements
Larceny PLUS
Battery OR assault
Minority rule retreat doctrine
A person must retreat before using DEADLY force in self-defense if person is OUTSIDE home and can do so with REASONABLE SAFETY
Majority rule for accomplice liability
Accomplice who has purpose of PROMOTING or FACILITATING commission of offense, AIDS or ABETS PRIOR TO or DURING crime
Is a threat to damage property sufficient for robbery?
NO, need threat of serious physical injury to victim/close family member/other present person
Is burglary of an open store possible?
NO, if it was open to the public at time, did not ‘break’
Robbery or larceny more likely
In jury instructions, must a court apply mens rea to verbs or objects of criminal statute?
BOTH
Eg. “knowingly possessing marijuana” = knowingly possessing AND KNOWING it was marijuana
Must a person be physically moved to be kidnapped?
NO, can be CONFINED/CONCEALED for SUBSTANTIAL PERIOD
Can killing be reduced to voluntary manslaughter if a person 1) mistakenly believed the person was the provoking party or 2) accidentally killed another person while trying to kill provoker
YES and YES
When is duplicate permissible under best evidence rule?
Admissible UNLESS question of 1) AUTHENTICITY or 2) UNFAIR
If initial taking of property is not wrongful (e.g. lost property) and you then change your mind to keep, is this larceny?
NO, if initial taking is not wrongful, doctrine of continuing trespass does not apply
If lifeguard gives assurance that body of water is safe, does it generate duty?
YES, when person undertakes risk based on assurance, duty is generated IF lifeguard knew person took on risk
If a person does not KNOW that there was reckless danger posed by act, can he be charged w depraved heart murder?
NO, MPC/most jdx require ACTUAL knowledge of danger to human life
MPC Insanity test
1) does not appreciate wrongfulness of act
OR! (one or the other)
2) conform conduct to the law (irresistible impulse)
Majority rule re: person killed during felony by someone other than perpetrator or accomplices
NO criminal liability for perpetrator
Is an act robbery if a person believes they are recovering their own property?
YES, bc CLAIM OF RIGHT cannot be used to justify robbery in most states
For attempted robbery charge, do larceny/assault/battery merge?
YES, even if robbery is merely attempted, these are all lesser included offenses
MPC rule on charging for multiple inchoate crimes
Under MPC, person may be concurrently PROSECUTED for, but not CONVICTED of, more than 1 inchoate offense
MPC rule on conspiracy
Defendant does NOT need to perform overt act in furtherance so long as one party commits overt act
