Crim law Flashcards
Elements of larceny
1 trespassers taking and carrying away
2 the personal property of another
3 with the intent to permanently deprive
Elements of robbery
1 trespassers taking of property of another
2 with intent to permanently deprive
3 with FORCE, INTIMIDATION OR FEAR
Must be from the victim or in his presence
Arson
Malicious burning of another’s dwelling
Note- setting fire in negligent or reckless way is Not arson
Burglary
1 Breaking and entering into the HOME
2 Of Another
3 At night
4 with intent to commit a felony
Where does the US have the power to prosecute crimes
Crimes that occur in the US, on the seas, and committed by US nationals abroad
Can a state punish for conduct outside the state that involved an attempt to commit a crime in the state
Yes, a portion of the crime just has to be in the state
What is acts reus
A voluntary physical act, act can be speech. Act can also be failure to act when you have an affirmative duty to act
What are times where D has a duty to act
special relationship between defendant and victim, voluntarily assuming a duty of care that is cast aside, D causes danger and fails to mitigate harm to victim caused by peril
What is specific intent
Defendant committed the act and did it for the purpose of causing the result. MUST have intent at time you commit the act
what are the 4 categories of crimes that are specific intent crimes under common law?
FIAT:
First degree murder
inchoate crimes (CATS)
Assault with attempted battery
Theft crimes
What defenses are only available for FIAT- specific intent crimes
voluntary intoxication and unreasonable mistake are ONLY available for FIAT/ specific intent crimes
What are the two malice crimes
Arson and murder (anything other than 1st degree)
When does Malice exist
When d acts in a reckless disregard of high degree of harm.
What does a general intent crime refer to
The intent to perform an act and the act is unlawful.
The d does not need to know the act is unlawful. He just needs to intend to perform the act
Examples of general intent crimes
Battery, manslaughter, kidnapping, rape, false imprisonment
What is a strict liability crime
There is NO STate of mind requirement. The defendant must merely have committed the act
What are the states of mind under the model penal code
- purposely
- knowlingly
- recklessly
- negligently
If there is no mens rea in the statute, what must the prosecutor prove
Recklessness
Does transferred intent apply to attempted crimes
NO- only completed crimes
What merges into robbery
Larceny + threat of force or battery
iF there are two separate victims, can the crimes against each victim merge together
No
Can a defendant who actually completed a crime also be convicted of attempting that crime
NO- i.e you can’t be convicted of attempted robbery and robbery
Does solicitation merge into the completed crime?
YES- so if you solicit another to do a murder and the person commits the murder then D is liable for the murder but NOT for solicitation
Does Conspiracy ever merge?
NO- a defendant can be convicted of both conspiracy to commit a crime and committing the crime itself
Can there be more than one principal to a crime?
Yes- i.e a gang
What must an accomplice show to be charged with the same crime as the principal
Dual intent: must intend to help the principal and intend to commit that crime
Can a bystander, even an approving one, be liable as an accomplice
NO
Liability for an accomplice extends to the planned crime and what else?
Any foreseeable crimes that occur in the course of the criminal act
Can an accomplice be liable even if the principle can not be convicted?
YES
Can an accessory after the fact be guilty of the primary crime?
NO but they can be guilty of other crimes like obstruction of justice or harboring fugitives
What would make an aider or abettor of the defendant also be guilty of conspiracy?
If there was an agreement to commit a crime AND an overt act was taken in furtherance of the agreement
What mental state is required for accomplices under the MPC
purpose of facilitating commission of crime, intend that his acts assist the criminal conduct
What are three ways to negate mens rea
- mistake
- insanity
- intoxication
What is a mistake of law
Mistake about what the law forbids
Ignorance of law is no excuse- think about guy driving 100 mph b/c he “didn’t know the speed limit”
What are exceptions - allowing mistake of law to be ok
- reliance on high level govt interpretations (not your lawyer)
- lack of notice
- mistake of law goes to an element of specific intent crimes
Is mistake of fact ever a defense to a strict liability crime?
No- i.e. can’t get out of statutory rape b/c you thought the girl was 18
For general intent crimes, when is a mistake of fact a defense?
if the mistake is REASONABLE and goes towards criminal intent
For specific intent crimes, when is mistake of fact a defense
When the mistake is reasonable OR unreasonable
What is the M’Naughten test for insanity
D either didn’t know the nature of the act or did not know the act was wrong b/c of mental disease or defect
-Didn’t know nature, didn’t know it was Naughty
What is the Durham test for insanity
D would not have committed the crime BUT FOR his mental disease
CAN voluntary intoxication be a valid defense?
ONLY to specific intent crimes (FIAT) and only if it prevented the D from forming the mens rea
Under the MPC is voluntary intoxication a defense
Only for crimes where a material element requires purpose or knowledge and the intoxication prevents formation of that mental state
What are the inchoate crimes
CATS
Conspiracy, Attempt and solicitation
Common law elements of conspiracy
an real agreement between two or more people
to commit an unlawful act
The agreement can not be with an undercover officer b/c then it isn’t real
The agreement is the crime
Under modern conspiracy statutes, what are the elements
An agreement b/ 2 or more people
to commit an unlawful act
WITH performance of an OVERT ACT
in furtherance of the conspiracy
Under the model penal code, can the conspiracy happen with undercover agents?
Yes- only the defendant needs to agree
Does the OVERT ACT need to be illegal?
NO, it just needs to further the conspiracy, i.e joining a health club to get stronger to hijack planes better
At common law, what could each co-conspirator be convicted of
Conspiracy AND all substantive crimes committed by ANY OTHER conspirator acting in furtherance of the conspiracy
At common law, can you withdraw from a conspiracy
No- b/c the crime is completed the moment the agreement is made
For Federal and MPC, can you withdraw from a conspiracy
Yes, if you do so BEFORE the commission of any OVERT ACT by communicating your intent to withdraw to all OTHER CONSPIRATORS or telling police
Elements of ATTEMPT
specific intent to commit a particular crime
PLUS taking a SUBSTANTIAL STEP towards perpetrating the crime
If the completed offense is a general intent crime like battery, is attempt still a specific intent crime
YEs. Attempted xyz is always a specific intent crime
What defenses can be used for ATTEMPT
voluntary intoxication and
unreasonable mistake of fact
Does attempt merge into to the completed offense
YES- you can’t be convicted of attempted murder and murder of same person
Elements of solicitation
- specific intent for target offense
- request someone to commit crime
if someone solicits you to commit a crime and you agree to do so, what are you charged with
Conspiracy
does solicitation merge with the completed offense
YES
Define homicide
The killing of a living human being by another human
What causation must exist for homicide
- but, for causation- the victim would not have died but for what the d did
- proximate causation- the D’s act is a foreseeable cause of the victim’s death
Is consent a defense to any type of homicide
No
Is assisted suicide homicide?
Yes
If the test just says murder, what do you assume
THAT it is NOT 1st degree murder,
common law murder
define first degree murder
a deliberate and premeditated killing murder or killing that results during commission of a dangerous felony
In common law, define murder
unlawful killing of another with malice aforethought
4 types of common law murder
intent to kill, intent to inflict serious bodily harm, depraved heart, & felony murder
What are the inherently dangerous felonies that if a death occurs during one of these it becomes FELONY MURDER
BARRK
Burglary
Arson
Robbery
Rape
Kidnapping
If a bystander is killed during a felony, what could be charged
felony murder
Is a defendant liable for the crimes of the victim, police or third party in the commission of a felony
NO- i.e if a co-felon is killed by police, the D is NOT guilty of felony murder
define manslaughter
The unlawful killing of another human that is not first degree murder or common law murder
define voluntary manslaughter
When a d intends to kill a victim but his state of mind is less blameworthy than murder.
HEAT OF PASSION MURDER or under EXTREME EMOTIONAL DISTURBANCE
What is the test for voluntary manslaughter
Is the situation one in which most people would act w/o thinking and w/o taking time to cool off?- acting in heat of passion
In most jurisdictions, is hearing about your spouse’s affair sufficient provocation
NO but seeing your spouse having an affair is!
Define involuntary manslaughter
Where the death was NOT intended- but the D engaged in criminally negligent conduct and caused a death. Ex traffic deaths
Can consent for taking be obtained by fraud
NO- if consent has been obtained by a lie/decent- then it is larceny by trick.
Is borrowing property larceny
NO- as long as you had intent to give it back.
if the property you took is DESTROYED in your care, have you committed larceny
NO. - i.e. if you borrowed car with intent to return it but then crashed and destroyed car, still not larceny
What type of crime is larceny
Specific intent crime- theft crime
does mistake of fact negate intent for larceny?
YEs- if you think the property is yours, even unreasonably, you are NOT guilty of larceny
elements of embezzlement
D starts out having victim’s consent to have the property but then commits embezzlement by converting it to his own use
What is False pretenses
Larceny by Trick but you get the title
So.
taking personal property of another
with intent to permanent deprive
accomplished by deceit
when you get the TITLE to the property
What is extortion
Threats of future harm including non-physical harm
What does breaking in burglary entail
coming in by force or obtaining entry by fraud. It can be opening a door or window, even an unlocked door
at common law, what type of dwelling is required for burglary
A home
at modern law, what type of dwelling is required
any- commercial or residential
Can you burglarize your own home?
no
What is the usual felony associated with burglary
larceny once inside
if you break into someone’s house out of curiosity is it burglary
No
battery elements
unlawful application of force
to another person
that causes bodily harm or offensive touching
What is a complete defense to battery
Consent
is voluntary intoxication or mistake of fact a defense to battery
NO b/c battery is a general intent crime
Does battery require actual physical contact with the victim?
No- can throw a rock that hits someone
Assault elements
- placing another in fear of imminent bodily harm OR
- attempted battery (specific intent crime)
common law rape elements
Unlawful sexual intercourse
with a female
against her will by force or threat of force
what do modern rape statutes require
Lack of consent rather than force
Can voluntary intoxication or mistake of fact be used as a defense for rape
NO- b/c it is a general intent crime
kidnapping elements
Unlawful confinement of another person
Against their will
by moving or hiding the person
for modern arson what is different
It is arson even if there is no damage to the structure or if the fire was caused by an explosion
And it can be a commercial structure
Perjury elements
willful act of false statements
person must know what they are saying is false, intend to say something false and that falsity must go to a material matter
What are defenses for specific intent crimes (FIAT)
voluntary or involuntary intoxication,
All mistakes of fact
what are defenses for general intent crimes
involuntary intoxication and only reasonable mistakes of fact
when can you use non deadly force
Anytime you reasonable fear imminent unlawful harm
when can you use deadly force
only if you reasonably believe that deadly force will be used against you
under the majority view- is retreat required if someone is coming after you with deadly force
NO
IN ANY JURISDICTION, is retreat required when someone is coming after you with deadly force IN YOUR HOME?
NO
Explain defense of others
an individual has the same right to defend others against a criminal that she has to defend herself
what kind of force can you use to protect property
non deadly
what is required for the successful use of the defense of duress
There must be a threat of death or serious bodily harm. Mere injury or injury to property is NOT enough
What can you not use the defense of duress for
Intentional murder
when is the necessity defense available
In response to natural forces
if you have battery and theft what do they merge into
Robbery
the MEE uses what version of crimes
Common law
What is a factual impossibility
Facts make it impossible to commit the crime. It is not a defense to the crime of attempt
what is an accomplice liable for
Any crimes that are the natural and probable consequences of the accomplice’s conduct
For an accessory after the fact, what will make them guilty
if the aid the felon to avoid apprehension after the felony is committed
The person must know the felony was committed
What is the M’Naghten rule for insanity - most tested on MEE
A defendant is not guilty bc of mental defect or disease if the D did not know either
-the nature and quality of the act
OR the wrongfulness of the act
What is the test to determine competency
- does the D comprehend the nature of proceedings against him
- Does D have the ability to consult with a lawyer with a reasonable degree of understanding
when is competence determined
At time of trial
Describe the felony murder rule
Under the FMR, a D can be found guilty for an unintended but foreseeable killing that is proximately caused by or during the commission or attempted commission of an inherently dangerous felony. Traditionally, Burglary, Arson, Robbery, Rape and Kidnappeing are considered inherently dangerous felonies.
What are the defenses to felony murder
- if the death was unforeseeable, no felony murder
- Point of safety. If the felony is complete and the D has reached a place of safety, the FMR will not apply to deaths that occur after that point
Elements of larceny by false pretenses
D obtains title to the property of another through reliance of that person on a false representation of a material fact made by the D with intent to defraud.
D must know representation is false and specifically intend to defraud. I.e selling car by knowing brakes are bad but telling buyer they are fine- gain title to buyer’s money
Can a conspirator be convicted if all other conspirators are acquitted at the trial
No, b/c a conspiracy requires agreement b/2 people
difference between voluntary manslaughter and depraved heart murder
Voluntary manslaughter requires INTENT TO KILL. Depraved heart is just horribly reckless behavior that results in death without intent to kill.
for larceny, the taking must be _____
Unlawful
what is the Pinkerton rule
Imposes liability on a conspirator for all crimes committed by co conspirators
Can you use deadly force to prevent imminent Rape
Yes- as long as you are not the initial aggressor
For larceny, does the taking need to be by the defendant?
No, can be the defendant’s agent- even someone who is unaware of D’s criminal intent
If kidnapping occurs incident to commission of another offense, how much movement is required
MORE than is necessary to complete the other offense otherwise it is NOT kidnapping
Can you steal back your own property in burglary
NO- it must be the property of another
receiving stolen items elements
- must receive control of stolen property,
know that the property is stolen,
and intend to permanently deprive the owner of the property.
Property that is unlawfully obtained through larceny, embezzlement, or false pretense is stolen property.
The act of receiving the property must coincide with the recipient’s knowledge that the property is stolen
for self defense, if someone is attacking you with NON deadly force, what can you do
Use non-deadly force back- any type of non-deadly force as long as reasonable amount. BUT you can NOT be the initial aggressor
If one of the D’s conduct was substantial factor in injury- and there were multiple defendants where each harm on its own would have been sufficient to cause P’s injury then is D the “cause” of the injury
YES b/c a substantial factor
Are actual damages necessary for false imprisonment if P was aware of confinement?
NO
for a jury instruction, if you have reasonable doubt as to whether the D was at the scene, you must find D——
NOt guilty
If D forces people at gunpoint to allow him to enter into the residence, is it “breaking and entering” for burglary
Yes, b/c it can be constructive breaking thru force or threats
For felony murder, does the murder/death have to be at the time of the felony?
No- it just needs to be a foreseeable result of the crime- i.e guy dying of heart attack b/c tied up and his death occurred while struggling with restraints after burglars left still counts for felony murder
Standard of proof for affirmative defenses
preponderance of evidence
Can you be convicted of robbery and felony murder
No- robbery merges into felony murder
For embezzlement it must be the fraudulent conversion of property of _____
ANOTHER
for false pretenses you get ____ of the property
TITLE. If victim hands property over and never intends to get it back = false pretenses
For larceny by trick, you obtain _____ of the property but not _____
possession but not title. tell a lie to obtain custody of the personal property of another
is voluntary manslaughter considered murder for the bar
NO. Murder= intent to kill, intent to GBH, depraved heart murder, Felony murder
for robbery, what must the threat be?
immediate threat of death or serious physical injury to victim or close family member
if the crime is to knowingly possess x, what do you need to prove
You need to KNOW you have it
You need to KNOW what you have
two types of assault
- attempted battery assault- d takes substantial step towards commission of battery (specific intent crime)
- fear of harm assault- D intentionally places another in apprehension of imminent bodily harm (general intent crime)
for party opponent hearsay exception who must it be
Party to litigation so in a criminal case- state v defendant- it can be the prosecution OR the defendant, not the victim.
When can an accomplice be charged with same Crime as the principal
ALWAYS- unless they repudiate prior aid, tell police and do so before chain of events is in motion
For second degree murder (CL) essay question- how to start the essay
D must have acted with the requisite mens rea of malice aforethought. Malice aforethought includes the following mental states: the intent to kill, the intent to inflict serious bodily injury, reckless indifference to a known and unjustifiably high risk to human life (i.e., a “depraved heart”), or the intent to commit certain felonies. In this jurisdiction, second-degree murder is “all murder that is not deliberate or premeditated.”
Also address that there is NO premediation (for 1st degree murder) and go thru facts as to why there is no premediation
Can you have attempted depraved heart murder
NO b/c for attempted murder you must have the intent to KILL.
If you intend to do GBH and instead, succeed in killing, are you still guilty of murder
yes, despite lack of intent
accomplices can be charged with the same crime as principal unless they…
repudiate, tell police and do this before chain of events is set in motion
Does arson require intent to burn down
NO
Can you have transferred intent for first degree murder
YEs
Would speeding qualify for depraved heart murder
NO- speeding is not considered reckless disregard for obvious or unjustifiable high risk of death for depraved heart murder
Can a person use force to protect another from self harm/ committing suicide
Yes, D is privileged to use reasonable force to protect that person from self harm when the person can’t understand the nature/consequences of actions AND D reasonably believes the person is about to kill or seriously harm themselves
For conspiracy, if you don’t know co-conspirator has a gun, can you be convicted of conspiracy for ARMED robbery
No- b/c it is specific intent crime, you need to INTEND the elements of the crime
Is paying someone to murder your wife enough to convict you for attempted murder
NO- b/c in common law, attempt required DANGEROUS proximity and paying someone doesn’t bring you in dangerous proximity to completing murder
Accomplice must be ….
If they are a getaway driver with no knowledge of what their friends are doing in the bank….
present at the crime and aiding principal with intent that principal commit the crime
If D hands offer the property and never intends to get it back, is it larceny by trick or false pretenses
False pretenses- title and possession
Are factual impossibilities- i.e the crime was impossible to complete (no bullets in gun) or withdrawing (changing your mind) defenses to inchoate crimes (CATS)?
NO
for arson or Malice murder- if you neglectfully burn down the house of another… did you commit arson?
No- Malice crimes require recklessness- intentional disregard of known risk that a result will occur
A man plans to burns down his neighbor’s house. His friend likes the idea- says “Yeah, go burn down their house, they deserve it.” Man’s gf hands him a match. What can friend and gf be charged with?
ARSON- b/c they are accomplices. They are liable for arson through a theory of accomplice liability
can a battery or assault serve as adequate provocation for voluntary manslaughter
YES
A guy is sitting at a bar. Man comes up to him, punches him in the face and walks away. Guy is so angry, he instantly takes out his gun and shoots man. What is guy guilty of
Heat of passion- voluntary manslaughter
test for whether d is competent to stand trial (or competent to plead guilty)
whether the defendant comprehends the nature of the proceedings against him and has the ability to consult with a lawyer with a reasonable degree of rational understanding.
accomplices are liable if they
act with the purpose of helping, encouraging, aiding, agreeing in the crime. Mere knowledge that another person intends to commit a crime is not enough. Charged w/ same crime as principal. Just a way to make someone liable who helped.
Ex. D encourages A to burn B’s house. A burns the house. D is an accomplice. If the fire spreads to another house, D is also liable for that crime.
is withdrawal a defense to conspiracy
No, b/c the crime of conspiracy is complete at the moment an overt act in furtherance of the conspiracy is done.
what is imperfect self defense
when defendant honestly BUT UNREASONABLY believes that someone is a threat (i.e bad guy at the door coming to kill him) and he shoots in self defense–> can’t be convicted of murder
It reduces MURDER to INVOLUNTARY manslaughter
does going thru unlocked door (NOT OPEN BUT UNLOCKED) when you don’t have permission still count as breaking and entering for burglary
Yes, because you didn’t have permission and you used any degree of force to OPEN the door without the owner’s permission or legal priviledge.
what mental state is required for common law arson
Malicious burning of the dwelling of another- malicious requires reckless- reckless disregard of high risk of harm
What level of intent is required by an accomplice
aid or encouraging principal before or during the crime WITH THE INTENT THAT THE PRINCIPAL COMMIT THE CRIME. So if ur driver just watches you go in and rob a store and then drives away, Not an accomplice unless you can prove INTENTed that Principal commit the crime and you actually helped or encouraged.
if person has a “receipt” for items they fraudulently took- think….
False Pretenses. Possession and title. The receipt gives you title.
attempted rape is what type of crime… and what defenses are available vs rape is what type of crime and what defenses are available
Attempted rape- Attempt= specific intent crime- honest unreasonable mistake is a defense.
Rape= general intent crime. only reasonable mistake is defense.
LOOK FOR ATTEMPT!!!
dwelling=
HOME
if a person drugs someone to take their property while they are out cold, is it robbery
Yes, the drugging counts as force
if a co felon is killed by a police officer as they are trying to escape the scene of the crime, is the remaining cofelon on the hook for felony murder
No b/c it was a justifiable homicide by the police officer
define criminal negligence
Criminal negligence is grossly negligent action that puts another person at a significant risk of serious bodily injury or death. (think involuntary manslaughter)
police extension of a traffic stop to perform dog drug sniffs is ?
unreasonable seizure
under common law, if someone gets intoxicated at a party and then drives and kills someone can the social host be liable
Under Common Law, social host liability is NOT recognized
for robbery, is a threat to damage personal property (other than your home) sufficient for intimidation
NO, needs to be a threat to hurt you, or close family member or other person present
If someone is provoked/angered with JUST WORDS, would it be voluntary manslaughter or 2nd degree murder
2nd degree murder b/c words alone are not provocation for voluntary mansalughter
define criminal negligence (i.e involuntary homicide)
grossly negligent conduct that puts another person at a significant risk of injury or death. But less than depraved heart
to charge an accomplice for a reckless or negligent crime, the accomplice must
only act recklessly or negligently, not with intention
define reckless
acting with a conscious disregard of a substantial and unjustifiable risk that a material element of a crime exists or will result from his conduct.
cutoff for intellectual disability for Capital murder
IQ of 70 or below
if maximum sentence for Crime is less than 6 months in jail are you entitled to jury trial
NO
conspiring with someone/hiring them to beat up your spouse
= solicitation and attempted battery
At common law, it would be conspiracy as long as second person wasn’t under cover officer.
the act of asking someone to do this is enough of substantial step for attempted battery
most states apply what theory of felony murder
Agency theory= so the criminal is only responsible for acts of his agent- i.e if police officer kills bystander- not the criminal’s fault.
does battery require INTENT to harm/touch another
NO- b/c it is a general intent crime, it includes criminal negligence- so gross negligence in touching/harming another
MPC rule for insanity
Defendant does not have substantial capacity to appreciate the wrongfulness of the act or to conform his conduct to the law due to mental disease or defect
If abanonment is due to fear of being caught then can abandpnment be a defense?
No
Define malice aforethought
Depraved indifference to the value of human life. Acting with reckless indiffernce to human life. Shooting gun into crowded room
What could be charge for someone shooting a gun in general direction of friend to scare him
Murder-behavior that carries substantial risk of causing death and done with no legit purpose except amusement of D. Depraved indiff to human life
For an unintentional.death caused by assault or battery, what can be charged
vol manslaughter
For 1st degree murder, how can specific intent to kill be negated by voluntary intoxication?
Being drunk can rob the defendant of his ability to premeditate
Is opening an unlocked closed door considered breaking for burglary
Yes
For mpc, would paying money to hit man in advance be attempt?
Yes, enough of substantial step to be attempted murder and solicitation
Is it entrapment for an undercover officer to offer drugs to known drug user?
No
Define negligent homicide.under mpc
Causing a death thru exercise of behavior that iS gROSS deviation from standard of care of reasonable person
Can the death penalty be applied to felony murder for a getaway driver
No. Death penalty is unconstitutional for felony murder where person did Not intend to kill and DID NOT KILL
What act is required for attempt crimes- common law vs mpc-majority
Common law-dangerous proximity test. Did d do act dangerously close to performjng crime
Mpc-majority: substantial step test. Did d exceed mere preparation. I.e surveil bank
When is abandonment of a crime NOT a defense?
1 ,if motivated by desire to avoid detection
2 if part of decision to delay to better time
3 ,if part of decision for diff objective or victim
For attempt of statutory rape, do u need to INTEND to rape someone under 18
Yes. Any attmept requires specific intent of the offense
what is the Wharton rule
It says that crimes that require more than one person to commit (like bigamy) also require more than one person for conspiracy to commit.
What is the rekindling doctrine
If someone assaults/attacks you and then a few days later taunts you about the assault, your anger gets “rekindled” and if you kill them it then falls under voluntary manslaughter b/c of provocation etc…
