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CA Bar: Elements > Crim / Crim Pro > Flashcards

Crim / Crim Pro Flashcards

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1
Q

Actus Reus

A

Voluntary v. Involuntary

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2
Q

Mens Rea

A

Strict Liability, Specific and General Intent, Knowingly, Recklessness, Criminal Negligence, Negligence

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3
Q

Concurrence

A

Must have concurrence between actus reus and mens rea

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4
Q

Causation

A

Defendant’s act must be factual and proximate cause

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5
Q

Accomplice Liability (parties)

A

principal, accomplice, or accessory after the fact

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6
Q

Accomplice

A

With intent crime be committed, aids, counsels, or encourages principal; Mere presence not enough; Liable for crime itself and all foreseeable crimes

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7
Q

Accessory After the Fact

A

intent to help felon escape, avoid arrest/trial, receives, relieves, or assists known felon after felony completed; “Obstruction of justice only” – NOT liable for crimes by principal

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8
Q

Inchoate (not fully completed) Offenses

A

Solicitation, Conspiracy, and Attempt

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9
Q

Solicitation (elements)

A

1) asking someone to commit a crime 2) w/ specific intent person commit the crime

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10
Q

Solicitation (liability)

A

i. If the party solicited actually commits the requested crime, the solicitor will also be liable for the crime;
ii. If the party solicited refuses, it is no defense

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11
Q

Conspiracy (elements)

A

1) agreement between two or more; 2) intent to enter into agreement; 3) intent to achieve unlawful purpose or objective, AND 4) overt act in furtherance of conspiracy (majority rule)

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12
Q

Conspiracy (liability)

A

each conspirator is liable for all crimes of other conspirators if FORESEEABLE and IN FURTHERANCE of the conspiracy

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13
Q

Conspiracy (defense)

A

Withdrawal - must communicate intent to withdraw to all other conspirators before the target crime occurs; BUT NO withdrawal from liability for the conspiracy itself

(note: No impossibility, NO merger)

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14
Q

Attempt (elements)

A

1) specific intent to commit a crime AND 2) a substantial step in the direction of the commission of the crime or come dangerously close (mere preparation not enough)

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15
Q

Attempt (defenses)

A

(1) Merger (attempt merges with committed crime);
(2) Legal Impossibility (NOT factual impossibility);

(note: abandonment is NO defense once substantial steps have begun)

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16
Q

Crimes Against the Person

A

Murder, Voluntary Manslaughter, Involuntary Manslaughter, Battery, Assault, Rape, Kidnapping, and Mayhem

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17
Q

Homicide

A

Killing of another human caused by the defendant

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18
Q

Murder (definition)

A

unlawful killing with malice aforethought

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19
Q

Murder (types)

A

1) intent to kill; 2) intent to commit serious bodily injury; 3) reckless indifference to unjustifiably high risk to life; OR 4) intent to commit a felony (felony murder - BARRK)

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20
Q

Murder (Depraved Heart)

A

Reckless–indifference to known, high risk of death, evidencing an abandoned and malignant heart

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21
Q

Murder (Felony Murder Rule)

A

Killing in the commission of, or the attempt to commit, an inherently dangerous felony:

(1) During the perpetration: from attempt until felon reaches a place of temporary safety;
(2) Inherently dangerous felonies (“BARRK”); minority also include non dangerous felonies committed in a dangerous manner;
(3) Felony must be independent from an act that caused death;
(4) Proximate cause (must be foreseeable);
(5) Vicarious liability: NO felony murder rule under majority rule if non-felon (victim or police) kills a felon;
(6) Under agency theory, defendant NOT liable when innocent party killed unless death caused by defendant or his agent

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22
Q

Murder (First Degree)

A

(1) Statutory;
(2) Common law–premeditation and deliberation;
(3) Inherently dangerous felony under the felony murder rule

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23
Q

Voluntary Manslaughter (definition)

A

would be murder but for existence of adequate provocation

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24
Q

Voluntary Manslaughter (elements)

A

1) sudden and intense subjective and objective passion (reasonable person would lose control); 2) heat of passion (no cooling off period)

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25
Q

Voluntary Manslaughter (Imperfect Self-Defense)

A

possible VMS from imperfect SD - unreasonable but honest belief in need to use deadly force

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26
Q

Involuntary Manslaughter (elements)

A

1) intent to inflict slight bodily injury, OR 2) criminal negligence (“gross deviation” from the standard of care of a reasonable person).

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27
Q

Involuntary Manslaughter (Misdemeanor-Manslaughter Rule)

A

a killing while committing a malum in se misdemeanor (inherently wrongful) BUT NOT committing a malum prohibitum misdemeanor (wrongful only because of statute)

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28
Q

Battery

A

unlawful application of force causing harmful or offensive contact to another (general intent)

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29
Q

Assault

A

either 1) attempted battery OR 2) intentional creation of reasonable apprehension of imminent bodily harm (Note - if offensive contact, it’s battery and assault merges with battery)

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30
Q

Rape

A

unlawful carnal knowledge of a woman by a man, not her husband, without her consent

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31
Q

Kidnapping

A

unlawful confinement involving movement or concealment of victim in a secret place

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32
Q

Mayhem

A

dismemberment or disablement of a body part

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33
Q

Crimes Against Personal Property

A

1) Larceny; 2) Embezzlement, 3) False Pretenses, 4) Receiving Stolen Property

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34
Q

Larceny

A

1) trespassory taking; 2) carrying away; 3) of personal property; 4) of another; 5) intent to permanently deprive at time of taking

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35
Q

Embezzlement

A

1) fraudulent conversion; 2) of personal property; 3) of another; 4) by person in lawful possession of that property

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36
Q

False Pretenses

A

1) obtaining title; 2) to personal property of another; 3) by intentional false statement of past or existing fact; 4) with intent to defraud the other

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37
Q

Receiving Stolen Property

A

1) Receiving possession and control, 2) of stolen personal property, 3) known to have been obtained in a manner constituting a criminal offense, 4) by another, 5) with the intent to permanently deprive

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38
Q

Crimes Against Person and Personal Property

A

1) Robbery, and 2) Extortion

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39
Q

Robbery

A

(larceny + assault) - 1) taking; 2) of personal property of another; 3) from person’s person or presence; 4) by use of force or fear; 5) with intent to permanently deprive

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40
Q

Extortion

A

CL - corrupt collection of an unlawful fee by an officer under color of office;
Modernly - obtaining property by means of threats to do harm or to expose information

(note: different from robbery because in extortion threats may be of future harm and taking need not be in victim’s presence)

41
Q

Crimes Against Real Property

A

1) Burglary, and 2) Arson

42
Q

Burglary

A

1) breaking/entering; 2) of dwelling; 3) of another; 4) at night; 5) intent to commit a felony

43
Q

Arson

A

1) malicious (intentional or reckless); 2) burning; 3) of the dwelling; 4) of another

44
Q

Crimes Against the Public

A

1) Forgery, 2) Misprision (compounding a felony), 3) Bigamy

45
Q

Forgery

A

1) making or altering, 2) a writing with apparent legal significance, 3) making it false, 4) with the intent to defraud

46
Q

Defenses

A

1) Self-Defense, 2) defense of Others, 3) defense of Property, 4) Insanity, 5) Intoxication, 6)Mistake, 7) Entrapment, 8) Age/Infancy, 9) Duress, 10) Crime Prevention, 11) Merger, 12) Impossibility

47
Q

Self-Defense

A

deadly force must be reasonable/necessary. No duty to retreat unless minority jdx (only if safe)

48
Q

Defense of Others

A

∆ can use deadly force if reasonable/necessary to defend another

49
Q

Defense of Property

A

non-deadly force only

50
Q

Insanity (tests)

A

1) M’Naughten, 2) Irresitable Impulse, 3) Durham, 4) ALI Substantial Capacity (MPC)

51
Q

Insanity (M’Naughten Test)

A

“Head Test” - as a result of mental defect 1) ∆ did not know wrongfulness of act OR 2) could not understand nature & quality of acts

52
Q

Insanity (Irresistible Impulse Test)

A

“Shoulders Test” - as a result of mental defect 1) ∆ unable to control actions OR 2) conform conduct to law

53
Q

Insanity (ALI Substantial Capacity Test (MPC))

A

“Shampoo Test” - ∆ lacked substantial capacity to 1) appreciate wrongfulness of conduct OR 2) conform conduct to requirements of law

54
Q

Insanity (Durham Test)

A

“Products Test” - ∆ not guilty if crime was product of mental disease or defect

55
Q

Insanity (Diminished Capacity)

A

(minority rule) evidence of ∆’s mental defect not enough for insanity but could be used to show ∆ could not have formed intent required for charged crime

(note: consider in discussing intoxication)

56
Q

Voluntary Intoxication

A

no defense to crimes requiring no intent (strict liability), general intent, or malice

57
Q

Involuntary Intoxication

A

defense to all crimes, renders ∆ “insane” under applicable test

58
Q

Reasonable Mistake of Fact

A

∆ makes reasonable mistake of fact, negates required mental state, ∆ not guilty

59
Q

Unreasonable Mistake of Fact

A

∆ makes unreasonable mistake or is ignorant, only defense to specific intent

60
Q

Mistake of Law

A

mistake or ignorance of law is no defense

61
Q

Entrapment

A

must show 1) criminal plan originated from government, AND 2) ∆ not predisposed to commit the crime

62
Q

Age / Infancy

A

1) 0-7 no liability; 2) 7-14 rebuttable presumption of NO criminal liability; 3) 14+ treated as an adult

63
Q

Duress

A

excused if committed under threat of imminent death or GBI – except for intentional homicide

64
Q

Crime Prevention

A

Police officer or private person may use deadly force if reasonably necessary to prevent commission of dangerous felony or to apprehend dangerous felon

65
Q

Merger (attempt defense)

A

attempt merged into completed crime (NOT available for conspiracy)

66
Q

Legal Impossibility

A

acts ∆intends to commit are not actually a crime = no criminal liability

67
Q

Factual Impossibility

A

i. acts ∆ intended to commit would be a crime if facts were as ∆ believed them to be
ii. ∆ will still be guilty, factual impossibility is NOT a good defense

68
Q

Exclusionary Rule

A

Unconstitutionally obtained evidence inadmissible at trial (includes fruits of poisonous tree)

69
Q

Exclusionary Rule (exceptions)

A

1) fruits derived from Miranda violations; 2) independent source; 3) ∆’s intervening act of free will; 4) inevitable discovery; OR 5) violations of knock and announce (no exclusionary rule)

70
Q

Exclusionary Rule (limits)

A
  1. grand juries, civil proceedings, violations of state law, internal agency rules, parole revocation
    ii. good faith reliance on law, defective search warrant, clerical error, impeachment
71
Q

Exclusionary Rule (Harmless Error Rule)

A

Harmless error makes it constitutional – except for right to counsel

72
Q

Fourth Amendment

A

Freedom from unreasonable search and seizures

73
Q

Fourth Amendment (attack plan)

A

A. Does ∆ have 4th AM right? (Government action; reasonable expectation of privacy)
B. If so, did government agent have a warrant?
C. If police do not have a warrant, did they make a valid warrantless search? (Presumed invalid)

74
Q

Warrant Requirement (elements)

A

a. Probable Cause - affidavit shows belief that evidence will be found on person or premises
b. Good faith exception applies only if warrant is invalid
c. Neutral / Detached Magistrate
d. Informant - totality of circumstances (previously reliable? Sufficient details)
e. Proper Execution - without unreasonable delay, knock and announce
f. Scope of warrant must be reasonable precise as to place to be searched, items seized

75
Q

Warrantless Searches (exceptions to warrant requirement)

A

1) Search incident to arrest, 2) Automobile exception, 3) Plain view, 4) Consent, 5) Stop & Frisk, 6) Hot pursuit and evanescent evidence, 7) Administrative searches, 8) Public schools, 9) Border searches, 10) Wiretapping / eavesdropping, 11) Body searches

76
Q

Search Incident to Arrest

A

contemporaneous to lawful arrest, wingspan only:

i. Search person and areas into which person might obtain weapons/destroy evidence
ii. Automobile - unsecured and may gain access or believe evidence of crime in vehicle
iii. Inventory - search of arrestee’s belongings to catalogue during impound

77
Q

Automobile Exception

A

need probable cause (but if PC, then police may search whole vehicle and any container that might reasonably contain item for which they had PC to search, including passenger’s belongings)

78
Q

Plain View

A

police must legitimately be on premises

79
Q

Consent

A

1) voluntary, 2) intelligent, and 3) w/ authority to consent

80
Q

Stop & Frisk (Terry Stops)

A

1) reasonable suspicion, 2) armed/dangerous, 3) pat-down of outer clothing only

81
Q

Hot Pursuit and Evanescent Evidence

A

evidence that could disappear or be destroyed (exigent circumstances, including emergencies affecting health and safety)

82
Q

Administrative Searches

A

general and neutral enforcement plan (DUI stops)

83
Q

Public Schools

A

reasonable grounds of moderate chance of finding evidence, search not excessively intrusive

84
Q

Border Searches

A

no 4th AM right

85
Q

Wiretapping / Eavesdropping

A

warrant if Probable Cause

86
Q

Body Searches

A

balance society’s need for evidence against magnitude of intrusion (may be inadmissible if it “shocks the conscience”)

87
Q

Fifth Amendment

A

1) Privilege Against Self-Incrimination (protects compelled testimony, NOT physical evidence), 2) Right to Counsel, 3) Double Jeopardy

88
Q

Fifth Amendment (privilege against self-incrimination)

A

a. Miranda Warning - 1) custody and 2) interrogation
b. Waiver - must be knowing, voluntary, and intelligent under totality of circumstances
c. Assertion of rights must be explicit, unambiguous, and unequivocal
d. Right to counsel invocation stops all questioning unless waiver or ∆ released & 14 days passes
e. Statements made in violation of Miranda admissible for impeachment

89
Q

Fifth Amendment (right to counsel)

A

NOT offense specific, police must stop interrogate

90
Q

Fifth Amendment (double jeopardy)

A

person may not be retried for same offense

a. Attaches when jury empanelled or first witness sworn in during bench trial
b. Same Offense - generally two crimes do not constitute same offense if each crime requires proof of an additional element the other does not
i. Lesser included offenses usually = same offense
ii. Separate sovereigns (e.g. State and Federal ≠ same offense)
c. Exceptions allowing retrial - 1) hung jury; 2) mistrial for manifest necessity; 3) re-trial after successful appeal; OR 4) breach of agreed upon plea bargain

91
Q

Sixth Amendment

A

Offense Specific (not required for unrelated, uncharged offenses)

1) Right to Counsel, 2) Speedy Trial, 3) Right to Jury, 4) Right to Confront Witnesses

92
Q

Sixth Amendment (right to counsel)

A

post charge line-up / show-up and all critical stages of prosecution post charging (NO right at photo ID); right includes effective assistance of counsel (presumed unless deficient performance caused opposite result)

93
Q

Sixth Amendment (speedy trial)

A

discuss totality of circumstance: length / reason of delay, did ∆ assert right, prejudice to ∆

94
Q

Sixth Amendment (right to jury trial)

A

(serious offenses: imprisonment of six months or more), at least 6 jurors, and if 6 then need a unanimous verdict

95
Q

Sixth Amendment (Confrontation Clause)

A

Right to Confront Witnesses - not absolute if important public purpose / remove disruptive ∆

a. Observe witness demeanor and opportunity to cross examine
b. Joint Trial - Co-∆’s confession cannot be admitted unless 1) portions referring to ∆ redacted; 2) confessing ∆ takes stand and submits to cross; OR 3) confession of co-∆ used to rebut ∆’s claims that his confession was involuntarily obtained

96
Q

Eighth Amendment

A

Right against cruel and unusual punishment (i.e., punishment must be proportionate to the offense)

97
Q

Eighth Amendment (death penalty)

A

a. Jury should be allowed to consider mitigating circumstances
b. Can be imposed for felony murder if ∆ a major participant and acted with reckless indifference
c. Jury can consider impact on victim’s family
d. No automatic category for imposition of death penalty

98
Q

14th Amendment (Due Process)

A

a. Burden of proof on prosecution to prove guilt beyond a reasonable doubt (states may impose burden on ∆ to prove affirmative defenses)
b. Identifications which are unnecessarily suggestive with substantial likelihood of misidentification barred by due process

CA Bar: Elements (7 decks)

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