Crim Law Flashcards

Question

Inchoate Offenses: Conspiracy: Mental State

Answer 1

Specific Intent Parties must have: (1) the intent to agree and (2) the intent to achieve the objective of the conspiracy.

Answer 2

Not required by common law Required by most states Can be as little as preparation or showing up

Answer 3

Point at which it terminates is important Acts and statements of co-conspirators are admissible against a conspirator only if they were done or made in furtherance of the conspiracy. A conspiracy usually terminates upon completion of the wrongful objective. Unless agreed to in advance, acts of concealment are not part of the conspiracy

Answer 4

A conspirator may be held liable for crimes committed by other conspirators if the crimes: (1) were committed in furtherance of the objectives of the conspiracy and (2) were foreseeable.

Answer 5

NOT a defense to any inchoate crime

Answer 6

NOT a defense to conspiracy, as once agreement is made and any little act is done, conspiracy committed Withdrawal may be a defense to crimes committed in furtherance of the conspiracy Conspirator must perform an affirmative act that notifies all co-conspirators of withdrawal in time for them to abandon plans and neutralize assistance

Answer 7

NO merger with crime of conspiracy (can commit conspiracy and crime itself)

Answer 8

Asking another person to commit a crime, with the intent that the person commit it If other person agrees, then it merges into conspiracy

Answer 9

An act done with intent to commit a crime that falls short of completing it Always requires specific intent for the actual crime

Answer 10

Act beyond mere preparation Traditional/Proximity Test: Dangerously close to completion Modern/Majority Test: Substantial step in course of conduct

Answer 11

NOT a defense at common law DEFENSE under MPC if fully voluntary and complete Must be full repudiation, no intent to return and do it later

Answer 12

If the defendant, having completed all acts that they had intended, would have committed no crime, they cannot be guilty of an attempt to do the same if they fail to complete all intended acts. Legal impossibility is a defense, albeit rare.

Answer 13

Factual impossibility describes the situation when the substantive crime is incapable of completion due to some physical or factual condition, unknown to the defendant. Factual impossibility is NOT a defense Ex. Couldnt complete crime as no money to steal, not defense

Answer 14

A defendant charged only with a completed crime may be found guilty of the completed crime or an attempt, but a defendant charged only with attempt may not be convicted of the completed crime. Merger.

Answer 15

Unlawful killing of a human being with malice aforethought

Answer 16

Intent to kill Intent to inflict great bodily injury Reckless indifference to an unjustifiably high risk to human life Intent to Commit a Felony

Answer 17

Defendant made decision to kill in cool and dispassionate manner and actually reflected on the idea of killing Intent or knowledge

Answer 18

Burglarly, arson, rape, usually in statute First degree Murder Some states say the felony must be inherently dangerous Some states don’t list at all

Answer 19

Some statutes make killings performed in certain ways (for example, by torture) or with certain victims first degree murder. Many states make the homicide of a police officer first degree murder. The defendant must: (i) know the victim is a law enforcement officer, and (ii) the victim must be acting in the line of duty

Answer 20

Any death caused in the commission of or in an attempt to commit, a felony is murder Common Law Inherently Dangerous Felonies (BARRK): Burglary, arson, rape, robbery, kidnap

Answer 21

Defendant must have committed or attempted to commit the underlying felony A defense that negates an element of the underlying offense will be a defense to felony murder Felony must be distinct from killing itself Death must have been foreseeable Death must have been caused before immediate flight from felony ended Includes running from crime, need place of temporary safety Not liable for felony murder when co-felon is killed in felony, by victim, or by police

Answer 22

Felony liable for deaths of innocent victims caused by someone other than co-felon (Minority view)

Answer 23

Felon liable only if killing committed by felon or agent (Majority view, apply if silent)

Answer 24

A killing that would be murder but for the existence of adequate provocation. Provocation is adequate only if:** Provocation would arouse sudden and intense passion in the mind of ordinary person Defendant was in fact provoked (not opportunistic) Not sufficient time between provocation and killing for passions of reasonable person to cool D did not cool off Sudden and intense passion with reasonable loss of control with no time to cool off Heat of passion not defense but reduces crime to manslaughter

Answer 25

Some states recognize Murder may be reduced to manslaughter even if (1) the defendant was at fault in starting the altercation; or (2) the defendant unreasonably but honestly believed in the necessity of responding with deadly force (meaning the defendant’s actions do not qualify for self-defense)

Answer 26

Killing committed with criminal negligence (recklessness under MPC) Look for driving car unsafely hypos Killing committed during commission of unlawful act (not enumerated in felony murder)

Answer 27

Abandoned and malignant heart murder at common law involves a high risk of death while involuntary manslaughter based on recklessness requires only a substantial risk.

Answer 28

The defendant’s conduct must be both the cause-in-fact and the proximate cause of the victim’s death. Cause in fact: “but for” Proximate Cause: A defendant’s conduct is the proximate cause of the result if the result is a natural and probable consequence of the conduct, even if the defendant did not anticipate the precise manner in which the result occurred. Superseding factors break the chain of proximate causation.

Answer 29

An act that hastens an inevitable result is still the legal cause of that result. Simultaneous acts of two or more persons may be independently sufficient causes of a single result. A victim’s preexisting weakness or fragility, even if unforeseeable, does not break the chain of causation.

Answer 30

Traditionally, for a defendant to be liable for homicide, the death of the victim must occur within one year and one day from infliction of the injury or wound. Most states that have reviewed this rule have abolished it.

Answer 31

Generally, an intervening act shields the defendant from liability if the act is a coincidence or is outside the foreseeable sphere of risk created by the defendant. **Note that a third party’s negligent medical care and the victim’s refusal of medical treatment for religious reasons are both foreseeable risks, so the defendant would be liable.

Answer 32

Unlawful application of force to the person of another resulting in either bodily injury or an offensive touching. A battery can be, but need not be, intentional, and the force need not be applied directly General intent crime* Some jdx recognize consent for simple battery or specified batteries

Answer 33

(punished as felonies): Battery with deadly weapon Battery resulting in serious bodily harm Battery of a child, woman, or police officer

Answer 34

Assault is either: (1) An attempt to commit a battery or (2) The intentional creation—other than by mere words—of a reasonable apprehension in the mind of the victim of imminent bodily harm. If there has been an actual touching of the victim, the crime can only be battery, not assault.

Answer 35

Aggravated assault is an assault plus one of the following: (1) the use of a deadly or dangerous weapon, or (2) with the intent to rape, maim, or murder

Answer 36

Unlawful confinement of a person without valid consent MPC requires: interfere substantially with victim’s liberty Not enough to restrict access, must have reasonable alternative route though

Answer 37

Modern statutes often define kidnapping as unlawful confinement of a person that involves either (1) some movement of the victim, or (2) concealment of the victim in a “secret” place.

Answer 38

ransom, kidnapping for the purpose of committing other crimes, kidnapping for offensive purposes, and child stealing (a child is incapable of giving valid consent)

Answer 39

Traditionally, rape was the unlawful carnal knowledge of a woman by a man, not her husband, without her effective consent. Today, a number of state statutes have renamed “rape” as gender-neutral “sexual assault.” The slightest penetration is sufficient.

Answer 40

Statutory rape is carnal knowledge of a person under the age of consent. Statutory rape is a strict liability crime, and, therefore, it is not necessary to show lack of consent. Mistake to age doesn’t matter on bar exam

Answer 41

Specific Intent A taking (obtaining control) And carrying away (asportation) (slightest movement is enough) Of tangible personal property (excluding realty, services, and intangibles, but including written instruments embodying intangible rights such as stock certificates) Of another with possession By trespass (without consent or by consent induced by fraud) With intent to permanently deprive that person of their interest in the property Note: If you believe you have right to possession, then it is not common law larceny For a larceny question, be sure that the defendant had the intent to permanently deprive when they took the property. If not, there is no larceny (unless it is a continuing trespass situation

Answer 42

The property must be taken from the custody or possession of another. If the defendant had possession of the property at the time of the taking, the crime is not larceny, but may be embezzlement.

Answer 43

Possession involves a greater scope of authority to deal with the property than does custody. Generally, the defendant has possession if they were given discretionary authority over the property and has custody if they were given only limited authority over the property. Ordinarily, low level employees have only custody of an employer’s property and so are guilty of larceny for taking it.

Answer 44

Generally, a bailee has possession and thus may be guilty of embezzlement if they take the property. However, if the bailee opens closed containers in which the property has been placed by the bailor (that is, the bailee “breaks bulk”), the possession is regarded, by use of a fiction, as returning to the bailor, and thus the bailee may then be guilty of larceny if they take that property

Answer 45

Generally, larceny requires that at the time of the taking the defendant intended to permanently deprive a person of their property.

Answer 46

An intent to create a substantial risk of loss, or an intent to sell or pledge the goods to the owner, is sufficient for larceny.

Answer 47

Where the defendant believes that the property they are taking is theirs or where they intend only to borrow the property or to keep it as repayment of a debt, there is no larceny. OR that they have some right to it

Answer 48

There may be larceny where the defendant intends to pay for the goods (if the goods were not for sale) or intends to collect a reward from the owner (if there is no intent to return the goods absent a reward).

Answer 49

Larceny can be committed with lost or mislaid property or property that has been delivered by mistake, but not with abandoned property.

Answer 50

If the defendant wrongfully takes property without the intent to permanently deprive (for example, without permission borrows an umbrella), and later decides to keep the property, the defendant is guilty of larceny when they decide to keep it. However, if the original taking was not wrongful (for example, the defendant took the umbrella thinking it was theirs) and later decides to keep it, it is not larceny

Answer 51

Fraudulent conversion of personal property of another by person in lawful possession of that property. Different from larceny: misappropriated property in their possession

Answer 52

Defendant must intend to defraud. If the defendant intends to restore the exact property taken, it is not embezzlement. However, if the defendant intends to restore similar or substantially identical property, it is embezzlement, even if it was money that was initially taken and other money—of identical value— that they intended to return.

Answer 53

As in larceny, embezzlement is not committed if the conversion is pursuant to a claim of right to the property. Whether defendant took the property openly is an important factor.

Answer 54

A trustee is often the MBE embezzler. A person does not have to carry away to be an embezzler—just the possession of the property is required. The embezzler does not have to get the benefit.

Answer 55

The offense of false pretenses is: Obtaining title To personal property of another By an intentional false statement of a past or existing fact With intent to defraud the other

Answer 56

The victim must actually be deceived by, or act in reliance on, the misrepresentation, and this must be a major factor (or the sole cause) of the victim passing title to the defendant. Traditionally, the defendant’s misrepresentation must have related to a past or present fact, and false promises to do something in the future, even without the present intent to perform, were not sufficient. However, under the M.P.C. and the modern prevailing view, any false representation suffices, including a false promise to perform in the future. (Majority)

Answer 57

Depending on the statute involved, the defendant must either have known the statement to be false or have intended that the victim rely on the misrepresentation. Most states will find that the defendant “knew” of the falsity of any statements when, after being put on notice of the high probability of the statement’s falsity, they deliberately avoided learning the truth.

Answer 58

If the victim is tricked—by a misrepresentation of fact—into giving up mere custody or possession of property, the crime is larceny by trick. If the victim is tricked into giving up title to property, the crime is false pretenses Possession or title?

Answer 59

Robbery consists of: 1. A taking 2. Of personal property of another 3. From the other’s person or presence (including anywhere in their vicinity) 4. By force or threats of immediate death or physical injury to the victim, a family member, or some person in the victim’s presence 5. With the intent to permanently deprive them of it Ie. pickpocketing is larceny, unless the victim knows they exist and resists

Answer 60

The presence requirement is very broadly drawn and would even cover a farmer tied up in his barn while the robber took things from his house. As for taking either by force or threat, actions such as ripping a necklace from a person’s neck is sufficient. The threat must be a threat of imminent harm.

Answer 61

can be a simulated deadly weapon, ie. no real weapon but impression of one

Answer 62

Common law extortion consists of the corrupt collection of an unlawful fee by an officer under color of office. Under modern statutes, extortion (blackmail) often consists of obtaining property by means of threats to do harm or to expose information. Under some statutes, the crime is complete when threats are made with the intent to obtain property; meaning, the property need not be obtained. Distinguish from robbery: Future harm, not immediate

Answer 63

Receipt of stolen property consists of: Receiving possession and control Of “stolen” personal property Known to have been obtained in a manner constituting a criminal offense By another person With the intent to permanently deprive the owner of their interest in it Stolen at time defendant receives it Knowledge important

Answer 64

Modern statutes and MPC can combine above crimes as theft: Larceny Embezzlement False Pretenses Robbery Extortion Receipt of Stolen Property

Answer 65

Making or altering a writing with apparent legal significance so that it is false with intent to defraud If the defendant fraudulently causes a third person to sign a document that the third person does not realize they are signing, forgery has been committed. But if the third person realizes they are signing the document, forgery has not been committed even if the third person was induced by fraud to sign it Intent

Answer 66

Common law: breaking and entering of dwelling of another at nighttime with intent to commit a felony in the structure (any part of the body enters house; dwelling is place for sleeping purposes) Modern statutes say can apply to any building, not just a dwelling and eliminated nighttime requirement

Answer 67

The breaking can be actual (involving some force, however slight) or constructive. Actual Breaking: It is not an actual breaking for a person to come uninvited through a wide open door or window. If it is wide open, there is no breaking. But if a person pushes open an interior door to another room (for example, the bedroom or living room), then a breaking exists. Constructive Breaking: A constructive breaking is a breaking by fraud or threat.

Answer 68

An entering occurs when any part of the body crosses into the structure.

Answer 69

An entering occurs when any part of the body crosses into the structure.

Answer 70

The dwelling cannot be a barn or a commercial structure

Answer 71

At common law, the burglary has to be at night.

Answer 72

The intent to commit the felony must exist at the time of the breaking and entering.

Answer 73

No SI, malice Arson at common law consists of: The malicious (that is, intentional or with reckless disregard of an obvious risk) Burning (requiring some damage to the structure caused by fire) Of the dwelling Of another Like statutory changes for burglary, modern arson statutes (including the M.P.C.) have modified the common law rules, usually to expand potential criminal liability. Most states have expanded the definition of arson to include damage caused by explosion, and expanded the types of property that may be destroyed to include commercial structures, cars, trains, etc. No specific intent required, just recklessness

Answer 74

Destruction of the structure, or even significant damage to it, is not required to complete the crime of arson. Mere blackening by smoke or discoloration by heat (scorching) is not sufficient, but mere charring is sufficient.

Answer 75

At common law, the building had to be the house of another; one could not be guilty of arson of one’s own house. The common law misdemeanor of houseburning consisted of: (1) a malicious; (2) burning; (3) of one’s own dwelling; (4) if the structure is situated either in a city or town, or so near to other houses as to create a danger to them.

Answer 76

M’Naghten Rule (right/wrong test) Under this rule, a defendant is entitled to acquittal if: (1) a disease of the mind; (2) caused a defect of reason; (3) such that the defendant lacked the ability at the time of their actions to either know the wrongfulness of their actions or understand the nature and quality of their actions. Delusions, belief that one’s actions are morally right, or loss of control because of mental illness are not defenses unless this test is met.

Answer 77

Irresistible Impulse Test (self control test) Under this test, a defendant is entitled to acquittal only if, because of a mental illness, they were unable to control their actions or conform their conduct to the law.

Answer 78

Durham (or New Hampshire) Test Under this test, a defendant is entitled to acquittal if the crime was the product of their mental illness (that is, the crime would not have been committed but for the disease). The Durham test is broader than either the M’Naghten test or the irresistible impulse test. It is followed only in New Hampshire.

Answer 79

Under the M.P.C. test (which represents the “modern trend”), a defendant is entitled to acquittal if they had a mental disease or defect, and, as a result, they lacked the substantial capacity to either: (1) appreciate the criminality of their conduct; or (2) conform their conduct to the requirements of law.

Answer 80

All defendants are presumed sane; the defendant must raise the insanity issue. In most states, once the issue is raised, the defendant must prove their insanity, generally by a preponderance of the evidence. Other states (and the M.P.C.) require the prosecution to prove the defendant was sane beyond a reasonable doubt. Federal courts require the defendant to prove insanity by clear and convincing evidence.

Answer 81

Although the insanity defense may be raised at the arraignment when the plea is taken, the defendant need not raise it then. A simple “not guilty” at that time does not waive the right to raise the defense at some future time.

Answer 82

If the defendant does not raise the insanity issue, they may refuse a court-ordered psychiatric examination to determine their competency to stand trial. If the defendant raises the insanity issue, they may not refuse to be examined by a psychiatrist appointed to aid the court in the resolution of his insanity plea.

Answer 83

Results from intentional taking, without duress, of substance known to be intoxicating Defense to specific intent crimes Reduces crime, ie first degree murder can be second degree Exam tip: alcoholics and addicts always considered under the law to be voluntary (ie no compulsion argument)

Answer 84

Intoxication resulting from taking substance without knowledge of its nature, under duress, or pursuant to medical advice while unaware of intoxicating effect Can be a defense to all crimes

Answer 85

Intoxication resulting from taking substance without knowledge of its nature, under duress, or pursuant to medical advice while unaware of intoxicating effect Can be a defense to all crimes

Answer 86

Under Age 7 = no criminal liability Ages 7-14 = rebuttable presumption child unable to understand wrongfulness of acts Age 14 and older = treated as adult

Answer 87

Often modify this and provide that no child can be convicted of a crime until a stated age is reached, usually 13 or 14. However, children can be found to be delinquent in special juvenile or family courts.

Answer 88

A person without fault may use such force as the person reasonably believes is necessary to protect themself from the imminent use of unlawful force upon themself. There is no duty to retreat.

Answer 89

A person may use deadly force in self-defense if the person (1) is without fault; (2) is confronted with “unlawful force”; and (3) reasonably believes that they are threatened with imminent death or great bodily harm.

Answer 90

Generally, there is no duty to retreat before using deadly force. The minority view requires retreat before using deadly force if the victim can safely do so, unless: The attack occurs in the victim’s own home The attack occurs while the victim is making a lawful arrest The assailant is in the process of robbing the victim

Answer 91

If one is the aggressor in the confrontation, they may use force in defense of themself only if: They effectively withdraw from the confrontation and communicate to the other their desire to do so, or The victim of the initial aggression suddenly escalates the minor fight into a deadly altercation and the initial aggressor has no chance to withdraw

Answer 92

A defendant has the right to defend others if they reasonably believe that the person assisted has the legal right to use force in their own defense. All that is necessary is the reasonable appearance of the right to use force. Generally, there need be no special relationship between the defendant and the person in whose defense they acted. Minority view: familial relationship needed

Answer 93

A person may use nondeadly force in defense of their dwelling when, and to the extent that, they reasonably believe that such conduct is necessary to prevent or terminate another’s unlawful entry into or attack upon their dwelling. Deadly force may be used only to prevent a violent entry and when the person reasonably believes that the use of force is necessary to prevent a personal attack on themself or another in the dwelling, or to prevent an entry to commit a felony in the dwelling.

Answer 94

Deadly force may never be used in defense of property. Reasonable, nondeadly force may be used to defend property in one’s possession from what they reasonably believe is an imminent, unlawful interference. Force may not be used if a request to desist or refrain from the activity would suffice.

Answer 95

A person may use force to regain possession of property that they reasonably believe was wrongfully taken only if they are in immediate pursuit of the taker.

Answer 96

It is a defense to a crime other than intentional homicide that the defendant reasonably believed that another person would imminently inflict death or great bodily harm upon them or a member of their family if the defendant did not commit the crime. Threats to harm a third person may also suffice to establish the defense of duress.

Answer 97

Traditionally, threats to property were not sufficient; however, a number of states, consistent with the M.P.C., do allow for threats to property to give rise to a duress defense, assuming that the value of the property outweighs the harm done to society by commission of the crime.

Answer 98

Traditionally, threats to property were not sufficient; however, a number of states, consistent with the M.P.C., do allow for threats to property to give rise to a duress defense, assuming that the value of the property outweighs the harm done to society by commission of the crime.

Answer 99

It is a defense to a crime that the person reasonably believed that commission of the crime was necessary to avoid an imminent and greater injury to society than that involved in the crime. The test is objective; a good faith belief is not sufficient. Under the traditional common law view, the pressure producing the choice of evils had to come from natural forces; Modern cases have abandoned this requirement.

Answer 100

No deadly force to protect property The defense of necessity is not available if the defendant is at fault in creating the situation requiring that they choose between two evils. Unlike necessity, duress always involves a threat by a human.

Answer 101

Mistake or ignorance of fact is relevant to criminal liability only if it shows that the defendant lacked the state of mind required for the crime; thus, it is irrelevant if the crime imposes “strict” liability.

Answer 102

Specific intent: can be unreasonable Any other state of mind: must be reasonable

Answer 103

Generally, it is not a defense that the defendant believed that their activity would not be a crime, even if that belief was reasonable and based on the advice of an attorney. However, if the reliance on the attorney negates a necessary mental state element, such reliance can demonstrate that the government has not proved its case beyond a reasonable doubt.

Answer 104

Entrapment occurs if the intent to commit the crime originated not with the defendant but with law enforcement officers. Entrapment exists only if: (1) The criminal design originated with law enforcement officers, and (2) The defendant was not predisposed to commit the crime prior to contact by the government. Merely providing the opportunity for a predisposed person to commit a crime is not entrapment. Ex. undercover officers usually provoke entrapment analysis, usually not a valid defense without serious encouragement

Answer 105

Perjury is the intentional taking of a false oath (lying) in regard to a material matter (that is, one that might affect the outcome of the proceeding) in a judicial proceeding.

Answer 106

Subornation of perjury consists of procuring or inducing another to commit perjury.

Answer 107

at common law was the corrupt payment or receipt of anything of value for official action. Under modern statutes, it may be extended to nonpublic officials, and either the offering of a bribe or the taking of a bribe may constitute the crime.

Answer 108

Compounding consists of agreeing, for valuable consideration, not to prosecute another for a felony or to conceal the commission of a felony or the whereabouts of a felon. Under modern statutes, the definition refers to any crime.

Answer 109

At common law, misprision of a felony consisted of the failure to disclose knowledge of the commission of a felony or to prevent the commission of a felony. Under modern statutes, misprision is no longer a crime, or if it remains a crime, it requires some affirmative action in aid of the felon.