crim law Flashcards
elements of a crime
physical act (actus reas)
mental state (mens rea)
causation (actual and prox)
concurrence (mental state and physical act at same time)
physical act
bodily movement that is the result of the person’s own volition
Things not included: conduct not the product of person’s volition, reflex or convulsive act, or an act performed while unconscious
o Possession as an act: requires D to have possession of contraband long enough to have an opportunity to terminate the possession
** D must be aware of their possession of the contraband, but does not have to be aware of its illegality
causation
Cause in fact/actual – but for D conduct, the result would not have occurred
• Homicide/manslaughter: any act by the D that hastens V death is a cause in fact, even if the death is already inevitable
Proximate cause – the actual result is the natural and probable consequence of D conduct, even if it did not occur exactly as expected
• Superseding intervening acts: must be entirely unforeseeable to shield D from liability (e.g., V refusal of medical treatment, third-party medical negligence is both foreseeable and do not shield D from liability)
common law mens rea
specific intent: intent or desire to engage in conduct or cause certain result
general intent: awareness of acting in a certain way
malice: reckless disregard of known risk that harm may occur
strict liability: no mental state required, only act required
MPC mens rea
purposefully: conscious object to engage in conduct or cause certain result (subj standard)
knowingly: aware that conduct is of particular nature or will cause certain result (subj standard)
recklessly: consciously disregards a substantial and unjustifiable risk + act is a gross deviation from how a reasonable person would act (obj & subj standard)
criminal negligence: should have been aware of substantial and unjustifiable risk + failure is a gross deviation from SOC of reasonable person (obj standard)
willful blindness standard
majority of states adopt this
a person is deemed to act knowingly when he is aware that certain facts are highly probable OR intentionally ignorant to certain facts
knowledge may be proved by circumstantial evidence
doctrine of transferred intent
D is liable if he intended to harm someone, but ends up harming someone other than intended victim
only applies to homicide, battery, and arson
does NOT apply to attempt (you can charge attempt w/ respect to intended victim, but not towards the actually injured victim)
under this usually there is two crimes –> attempt towards OG intended victim AND the actual resulting crime to actual victim
common law/2nd degree murder
unlawful killing of a person with malice aforethought
malice aforethought =
- intent to kill
- intent to inflict great bodily harm
- reckless disregard of extreme risk to human life (depraved heart) or
- intent to commit an inherently dangerous felony (felony murder)
1st degee murder
willful, deliberate, and premeditated
MPC murder
killing of a person purposefully or knowingly OR recklessly under circumstances manifesting extreme indifference to value of human life
felony murder –> recklessness is presumed for robbery, rape, arson, burglary, and kidnapping (BARRK)
common law voluntary manslaughter
killing of a person with adequate provocation
adequate provocation: D was provoked by sudden and intense passion causing loss of control, a reasonable person would have been provoked, not enough time to cool off, and D did NOT cool off
common law involuntary manslaughter
unintentional killing of a person committed:
recklessly
under misdemeanor murder rule
during non-dangerous/unenumerated felony OR
criminal negligence (in some states)
MPC manslaughter
killing of a person committed recklessly or negligently
felony murder proximate cause theory vs. agency theory
- Proximate cause theory: felons are liable for the deaths of innocent victims caused by someone other than a co-felon (minority view)
- Agency theory: the killing must be committed by the felon or someone acting as their agent (accomplice) with limited exceptions in cases where victim was used as a shield or otherwise forced by felon to occupy dangerous place (majority view)
larceny
- trespassory taking (without consent)
- carrying away
- of the personal property of another
- with intent to permanently deprive owner of the property (intent must exist at time of taking)
specific intent –> D must intend to deprive person of interest in property
It is possible to commit larceny with your own property if another person, such as a bailee, has superior possession rights to the property
Doctrine of Continuing Trespass: applies where D wrongfully takes or intends to borrow property with the intent to return it, but later develops the intent to keep it
larceny by trick
obtain possession (not title) of personal property of another through trick or deception
false pretenses
obtaining title
to personal property of another
through intentional false statement of material fact
with intent to defraud
embezzlement
fraudulent or wrongful
conversion
of personal property of another
by a person with lawful possession of the property
intent to permanently deprive the lawful owner is required
robbery
trespassory taking
of personal property of another
in their presence
by the use of force or threat of immediate physical harm
with intent to permanently deprive the owner of the property
armed robbery = same elements but with use of dangerous weapon
burglary
breaking and entering of dwelling of another at night for purpose of committing felony inside
rape
common law: unlawful, nonconsensual sexual intercourse by a man to a woman that is not her husband
MPC: male who has sex with female who is not his wife if he compels her by force or threat of imminent death, serious bodily injury, pain, or kidnapping; secretly drugs her; female is unconscious; or female is less than 10 years old
deviate sexual intercourse –> same elements but gender neutral
statutory rape: unlawful sexual intercourse with a person under the age of consent as defined by statute
battery
unlawful application of force
directly or indirectly upon another person or their close belongings
resulting in injury or offensive contact
**general intent crime
intent to cause injury is not required; only intent to contact
assault
either an attempted battery or
the intentional creation of a reasonable apprehension of imminent bodily harm to a person
kidnapping
confining, restraining, or moving of a person without authority of law
MPC: abducting another person for ransom, to facilitate a felony, to inflict bodily injury or terrorize, or to interfere with gov/political function
false imprisonment
unlawful confinement of a person against their will with knowledge that restriction is unlawful
MPC: when D knowingly restrains a person unlawfully so as to substantially interfere with the persons liberty
arson
malicious
burning
of a dwelling
of another
maj: includes damage caused by explosives and other types of buildings and vehicles
criminal possession
unlawful possession of an item according to statute
usually need knowledge of possession and knowledge of what the item is
attempt
when a person had specific intent to commit a crime AND
took overt act sufficiently beyond mere preparation
most states/MPC: substantial step
minority: proximate or dangerously proximate
attempt merges with underlying crime if committed
abandonment defense to attempt:
maj: not a defense, once D has taken sub step toward the crime it is complete
min/MPC: abandonment before completion is a defense if D voluntarily renounces his criminal purpose AND completely abandons the effort to commit the crime or prevents its commission
conspiracy
specific intent crime requiring
- agreement b/t 2 or more people
- intent to enter into the agreement
- intent to pursue an unlawful objective (common law/bilateral approach = requires all parties to have the intent; MPC/unilateral approach: only requires one party to have intent) AND
- commission of an overt act in furtherance of the unlawful objective
liability: conspirator is liable for conspiracy and all foreseeable crimes committed by co-conspirators in furtherance of the objective
withdrawal is not a defense for conspiracy at common law, but is a defense for crimes committed by co-conspirators after the withdrawal
MPC allows withdrawal from conspiracy itself if the person thwarts the conspiracy objective by contacting police or otherwise preventing it
withdrawal for subsequent offenses requires:
o Affirmative act required: withdrawal is effective when the withdrawing party makes an affirmative act that notifies ALL co-conspirators of his withdrawing
o Must be timely: withdrawal must give enough time for co-conspirators to abandon plans for the target offense
o The withdrawing party must attempt to neutralize the effect of any assistance provided to the OG conspiracy
solicitation
D requests another person commit a crime or join commission of a crime
with specific intent that the crime be committed AND
the other person receives request
renunciation is an affirmative defense if D voluntarily and completely renounces AND prevents the commission of the crime
accomplice liability
accomplice is one who
aids, abets, or facilitates the commission of a crime AND
has duel intent (intent to assist the primary party AND intent that crime be committed)
liable for all crimes committed himself and all foreseeable crimes committed by primary party
withdrawal: defense if D withdrawals before the crime becomes unstoppable and requires repudiating the encouragement given and neutralizing any assistance
defense: duress
an affirmative defense and excuses D conduct if it was result of
- threat of imminent death or serious bodily injury
- to D or another and
- D reasonably believed he was unable to avoid the harm by non-criminal conduct
most states –> duress is not available for intentional killings
defense: insanity
defense to all crimes, regardless of intent requirement.
4 tests:
1. M’Naghten Test: D is (a) unable to know the wrongfulness of his conduct or (b) the nature and quality of his actions
- MPC test: D was (a) unable to appreciate criminality of his conduct or (b) unable to conform his actions to the law
- Irresistible impulse test: D mental illness made him (a) unable to control his actions or (b) unable to conform his actions to the law
- Durham test: D unlawful conduct was the product of mental illness - i.e., but for mental illness, the D would not have done the action
Majority of states use M’Naughten or MPC test
self defense or defense of others
self-defense: is a complete defense to a crime.
non-deadly force: justified when (1) D reasonably believes, (2) that he is in imminent danger of being harmed, and (3) the forced used is proportional to the harm threatened
deadly force: justified when (1) D kills based on reasonable belief (2) that he was in imminent danger of being killed or suffering serious bodily injury and (3) the use of deadly force was necessary
minority of states: D has duty to retreat before deadly force may be used; but, D has no duty to retreat where there is no opportunity to do so, he could not retreat safely, or if attacked in own home
an aggressor may only use force in self-defense if he withdraws and communicates it or the other person escalates the fight with deadly force and withdrawal is not possible
defense of others - same rule as self-defense
imperfect self defense
mitigates murder to voluntary manslaughter when D kills based on good faith belief of self-defense but such belief was unreasonable
voluntary intoxication defense
only defense to specific intent crimes (first degree murder, property offenses, burglary, inchoate crimes, attempt crimes)
ingesting an intoxicating substance by D own free will
involuntary intoxication
Requirements: an intoxicant is taken involuntarily if
• Without knowledge of its nature
• Under direct duress imposed by another person or
• Pursuant to medical advice without notice of its intoxicating effect
If D intoxication is involuntary, you use the insanity test applicable to the jurisdiction to determine acquittal for the crime
mistake of fact defense
is a defense if it negates the mental state required for the crime
mistake of law defense
not a defense
standing for fourth amendment claim
person must have reasonable expectation of privacy regarding place or item
REP = that which they own or possess
no privacy expectation in bank account records, anything visible from airspace, anything left out on the CURB, sound of ones voice, anything that can be seen in or across from one’s home, handwriting, or odors
fourth amendment gov’t action
fourth amendment grants a person protection from unwarranted government searches and seizures, not private individuals
proper arrest under fourth amendment
to be proper, a police officer must have PC
- trustworthy facts or knowledge
- sufficient to warrant a reasonable person to believe
- that a person committed a crime
arrest in someone’s home requires a warrant
a custodial arrest doesn’t require warrant but requires PC of crime
stop & inquire fourth amendment standard
police must have reasonable articulable suspicion that criminal activity is afoot
stop and frisk standard
police must have reasonable articulable suspicion that criminal activity is afoot and the person is armed and dangerous
plain feel doctrine: during frisk, police may only seize items reasonably believed to be contraband or a weapon based on plain feel of outer clothing
reasonable suspicion defintion
quantum of knowledge sufficient to induce an ordinarily prudent and cautious person to believe criminal activity is afoot
seizure defintion
when a reasonable person would believe that they are not free to leave
warrant requirements
valid search warrant is required for all searches and seizures unless exception applies
valid warrant requires
- PC - reliable info that evidence of illegality will be found in place to be searched or item to be seized
- state with particularity the place and items to be searched/seized
- be issued by neutral and detached magistrate
warrant exceptions
Plain view doctrine: police may seize contraband if observed in plain view from place lawfully permitted to be and probable cause exists to believe the item is contraband
exigent circumstances: allows warrantless search if evidence is evanescent (dissipate or disappear quickly), is necessary to prevent imminent destruction of evidence, the police are in hot pursuit of a felon and evidence is in plain view or emergency aid
automobile exception: allows warrantless search if PC exists that contraband or evidence of a crime will be found in a car. police may search entire car plus packages, luggage, containers that may reasonably contain items for which there is PC
search after traffic stop = police need PC prior to search
SITA: police may search suspect persons and area within suspect immediate control. if arrest in home, may also search other immediately adjoining spaces from where an attack may be launched. if arrest in car, may search entire interior or passenger compartment if reason to believe evidence of the crime might be found or arrested person is unsecured and could gain access to vehicle
consent: freely, voluntarily, and intelligently. third person w/ authority may consent. if 2 or more people share authority, any one may consent, but police cannot search private areas that only the non-consenting person has authority to give consent for
inventory search: allows warrantless search when person is incarcerated or for an impounded vehicle. inventory search must be reasonable and conducted pursuant to established police agency procedures
stop & frisk: police has RAS that criminal activity is afoot and the person has weapon. plain feel doctrine applies.
special need: applies in limited emergency circumstances
confession barred under 14A due process
violation of D rights if confession is product of police coercion that overbears the suspects free will
police may use coercive conduct, i.e., lying, as long as it does not overcome D free will
privilege against self-incrimination
5A protects the right not to incriminate oneself
privilege is only available for compelled testimonial evidence
**testimonial = verbal or communicative (does not include line ups or physical evidence)
compelled = elicited or induced
miranda rights = attach when suspect is subject to custodial interrogation (right to remain silent, anything said can be used against you in court, right to talk to attorney, if you cannot afford atty one will be appointed for you, right to have atty present when questioned)
does not apply if:
grant of immunity, SOL has run so incrimination is not possible, or waiver
custodial interrogation
custody = person reasonably believes they are not free to leave
interrogation = police knew or should have known they were likely to elicit an incriminating response
public safety exception: limited interrogation without Miranda is allowed when police ask questions reasonably prompted by public safety concern or safety of the officer
invoking miranda rights
must be clear and unambigious
once invoked, police must stop any questioning
D silence after invoked cannot be commented on at trial
reinitiating questioning after invoking miranda
police may reinitiate questioning if
- suspect is re-issued miranda
- has provided knowing and intelligent waiver and
- either counsel is present, suspect initiates communication, or 14-days have passed since suspect was released from custody
waiver of miranda rights
a valid waiver must be made knowingly, intelligently, and voluntarily
- D must understand the nature of the right being waived and the consequences for waiver
- police failure to provide outside info does not invalidate waiver unless the info was essential to ability to waive rights
**confession that is voluntary, but made in violation of miranda, may be used to impeach BUT involuntary confession cannot be used to impeach
right to counsel 6A
the accused has the right to counsel in all criminal prosecutions except state misdemeanor prosecutions that do not carry jail time
attaches –> formal adversarial judicial proceedings are commenced
- once right attach, a suspect cannot be questioned without a lawyer, and anything said is inadmissible without a waiver
- this right is offense specific
waiver requires the same as 5A waiver
right to counsel 5A
attaches when the suspect is in custodial interrogation
the suspect has the right to consult with an attorney and have one present during questioning
effective assistance of counsel
D has right to effecitve assistance of counsel - includes effective aid in preparation and trial of criminal case
ineffective assistance of counsel - “reasonable probability that outcome would have been different” or “but for” test
*if shown, verdict must be reversed, and D is entitled to a new trial
line ups & police arranged identification constitutional procedures
due process/14A = violates when line-up is unnecessarily suggestive resulting in substantial likelihood of misidentification
if violated –> identification is inadmissible at trial
absent improper police influence, an out-of-court identification is admissible
independent source rule –> an in-court identification is admissible at trial, even if line-up is tainted, when its
- based on witness previous knowledge
- trustworthy and
- based on previous transaction
right to counsel 6A –> person has the right to counsel at a post-charge line-up
– no right to counsel at pre-charge line-up or photo-identification
Miranda rights 5A –> pre-trial identifications, blood tests, finger prints, and voice identifications are not protected by 5A
suspect in custody cannot refuse to participate in a line-up
exclusionary rule
evidence obtained in violation of D 4, 5, or 6A is inadmissible at trial
all derivative evidence is also inadmissible under the fruit of poisonous tree doctrine
exceptions to exclusionary rule
does not apply if
- police had an independent source for secondary evidence
- discovery of the evidence was inevitable regardless of the illegality
- through attenuation doctrine (evidence is too remote and attenuated from unlawful search or seizure) or
- police relied in good faith on a defective warrant
* *exclusionary rule does not apply to grand jury proceedings or violation of KNA
additional exceptions for Miranda violations
- not required to suppress the physical evidence found b/c of D statement as long as statement was voluntary
- statements in violation of Miranda may be used to impeach D on cross examination
remedy: harmless error review - must show admissibility was harmless beyond a reasonable doubt on appeal
right to jury trial requirements
6A guarantees D right to jury trial for offenses where imprisonment is greater than 6 months
- minimum 6 jurors and verdict must be unanimous
- any fact other than the prior conviction that increases the max penalty for a crime must be submitted to a jury and proven beyond reasonable doubt
D competence to stand trial
D is competent to stand trial if he has
- sufficient present ability to consult with his lawyer (able to assist in preparing defense) AND
- a rational and factual understanding of the proceedings
D cannot be tried if deemed incompetent but competence can be reassessed at later date
double jeopardy
prevents D from being prosecuted twice for the same offense
Blockburger test –> two crimes are not the same offense if each crime requires proof of fact which the other does not
- final judgment of lesser offense bars prosecution of greater offense on the same facts unless the greater offense (a) did not exist at the time of trial or (b) was not discovered despite due diligence
attaches –> when jury is impaneled and sworn
exceptions: hung jury, manifest necessity exists to end trial, or trial is terminated at D request and its not an acquittal on the merits
presumptions for jury instructions
rebuttable presumption –> one that may be disputed or overcome by additional evidence»_space; violates DP if it shifts burden to D
irrebuttable presumption –> per se violation of DP
sufficiency of evidence
a court must enter acquittal if evidence is insufficient to sustain a conviction
D may move for judgment of acquittal either at close of case-in-chief or after close of all evidence
harmless error rule
even if evidence is improperly admitted at trial, guilty verdict will stand if the prosecution can prove that error was harmless (that D would have been convicted anyway)
roadblock constitutionality
cars must be stopped on neutral basis and serve some purpose closely related to particular problem pertaining to cars
