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Texas Bar Exam Feb. 2024 > Crim Law > Flashcards

Crim Law Flashcards

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1
Q

Elements of a Crime Generally

A
  • actus reus
  • mens rea
  • concurrence
  • causation
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2
Q

Actus Reus

A

voluntary affirmative act OR failure to act when a legal duty exists

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3
Q

Existence of Legal Duty

A
  • statute or law requires action
  • relationship between defendant and victim impose duty on defendant
  • contract obligates defendant to act
  • defendant voluntarily assumes duty and excludes others from helping
  • defendant created risk of harm, whether or not defendant was at fault
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4
Q

Mens Rea

A

Required mental state of mind

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5
Q

Mens Rea: Common Law

A

General intent: crimes that require intent to commit the actus reus but not the result

Specific intent: crimes that require specific state of mind related to the resulting crime

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6
Q

Mens Rea: Model Penal Code

A

Purposely: conscious or primary objective was to cause the relevant harm

Knowledge: practically certain harm would result

Willful blindness: mental state for knowledge satisfied IF defendant reckless and took deliberate steps to avoid learning the truth

Recklessness: aware of substantial and unjustified risk that harm would occur; risk must be significant and not warranted under the circumstances

Negligence: defendant’s failure to perceive substantial and unjustified risk that harm would occur was a substantial deviation from the standard of care

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7
Q

Mens Rea: Transferred Intent

A

Under both CL and MPC, intentional mens rea can transfer to unintended victim IF actus reus resulted in the same or similar crime as the intended crime.

ONLY applies to completed crimes, not attempted crimes.

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8
Q

Mens Rea: Strict Liability

A

crimes that require no mens rea

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9
Q

Mens Rea: Vicarious Liability

A

can be responsible for actions of another under theories of conspiracy liability, accomplice liability, and felony murder

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10
Q

Concurrence

A

defendant must have required mens rea at the time the defendant acts

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11
Q

Causation

A

for COMPLETED crimes, defendant’s act must be the actual and proximate cause of the victim’s harm.

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12
Q

Causation: Actual Cause

A

defendant’s act = but-for cause or substantial factor

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13
Q

Causation: Proximate Cause

A

harm was direct and natural result of the defendant’s actus reus

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14
Q

Causation: Intervening Events

A

if event occurs between defendant’s act and eventual harm, event becomes superseding cause that breaks causal chain IF event not foreseeable (acts of nature, crimes, intentional torts by 3Ps)

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15
Q

Homicide: Common Law Murder

A

Unlawful killing of another human being with malice aforethought
- intent to kill
- intent to inflict serious bodily harm
- extreme recklessness (depraved heart murder)
- felony murder

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16
Q

Homicide: Common Law Murder - Intent to Kill

A

defendant must (1) have the conscious objective or purpose to cause death OR (2) be substantially certain that death would result

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17
Q

Homicide: Common Law Murder - Extreme Recklessness

A

requires defendant to (1) be consciously aware of a substantial and unjustified risk that death will result from defendant’s actions and (2) engage in behavior that exhibits a complete lack of care for human life.

Substantial - significant risk of death; unjustified - no good reason to engage in it

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18
Q

Homicide: Felony Murder

A

Must meet five requirements:

  • homicide occurs during commission or attempted commission of felony [immediately before or after acts constituting crime but not killings after defendant reaches place of temporary safety]
  • defendant possesses the mens rea necessary for underlying felony
  • underlying felony must be inherently dangerous [pose danger to human life. CL = only burglary, arson, rape, robbery, kidnapping]
  • underlying felon must be independent from the homicide [any felony that requires some kind of intent to harm would fail this rule]
  • death must be foreseeable under either the agency approach or proximate cause approach
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19
Q

Homicide: Felony Murder - Agency Approach v. Proximate Cause Approach

A

Agency approach includes homicides committed or caused by defendant or accomplice but NOT killings by officers, victims, bystanders.

Proximate cause approach includes any homicide that is a natural or proximate result of a commission of the felony.

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20
Q

Homicide: First-Degree Murder

A
  • intentional killing with premeditation and deliberation OR
  • killing that occurs during the commission of an inherently dangerous felony
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21
Q

Homicide: First-Degree Murder - Premeditation

A

defendant planned the killing in advance

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22
Q

Homicide: First-Degree Murder - Deliberation

A

defendant carefully considered how the defendant would commit the crime and was in a clear state of mind when making the decision to proceed

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23
Q

Homicide: Second-Degree Murder

A
  • intentional killing without premeditation or deliberation
  • unintentional killing in which the defendant had intended to inflict serious or great bodily harm OR
  • depraved heart murder
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24
Q

Homicide: Voluntary Manslaughter

A
  • done in the heat of passion OR
  • resulting from an imperfect use of self-defense
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25
Q

Homicide: Voluntary Manslaughter - Heat of Passion

A

Three requirements:
- defendant must be severely provoked or angered by the victim at the time of the killing
- reasonable person in that same situation would have also been severely provoked or angered by the victim’s conduct AND
- killing occurred before a reasonable person would have cooled off from the provocation

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26
Q

Homicide: Voluntary Manslaughter - Imperfect Self-Defense

A

either:
- defendant feared imminent harm but fear was not reasonable OR
- defendant’s use of deadly force to prevent the harm was disproportionate

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27
Q

Homicide: Involuntary Manslaughter

A

unintentional killing that occurs when:
- defendant recklessly or negligently causes the death OR
- during the commission of an unlawful act that does not qualify as an inherently dangerous felony (misdemeanor manslaughter)

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28
Q

Homicide: Involuntary Manslaughter - Recklessness

A

defendant is actually aware of a substantial and unjustified risk of death

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29
Q

Homicide: Involuntary Manslaughter - Negligence

A

defendant should have been aware of the substantial and unjustified risk of death

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30
Q

MPC Homicide: Murder

A
  • all intentional killings, regardless of whether committed with premeditation and deliberation
  • killings done with extreme indifference, which include unintentional killings that occur during commission of a felony and killings that resulted from an intent to commit serious bodily harm
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31
Q

MPC Homicide: Manslaughter

A
  • killings done with recklessness
  • killings under extreme mental or emotional disturbance for which there is a reasonable justification or excuse
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32
Q

MPC Homicide: Homicide

A

killing done with criminal negligence

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33
Q

Larceny

A
  • trespassory (unlawful)
  • taking and carrying away
  • of the personal property of another
  • with the intent to steal (permanently deprive the owner)
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34
Q

Larceny - Taking and Carrying Away

A

requires movement of property away from its origin; applies if defendant designates agent to pick up the property

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35
Q

Larceny - Continuing Trespass Doctrine

A

if defendant’s initial conduct constitutes a trespassory taking and carrying away of property without the intent to steal, but the defendant thereafter forms the requisite intent, the defendant will still be guilty of larceny

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36
Q

Larceny by Trick

A
  • trespassory (unlawful)
  • taking and carrying away
  • of the personal property of another
  • with the intent to steal (permanently deprive the owner)
  • the theft is accompanied by the defendant’s fraud (knowingly false statement of material fact that induces reliance)
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37
Q

Robbery

A
    • trespassory (unlawful)
  • taking and carrying away
  • of the personal property of another
  • with the intent to steal (permanently deprive the owner)
  • theft accomplished by use of actual physical force or threat of force
  • taking must be from the victim or victim’s presence (area over which victim has current control)

*Larceny, assault, and battery all merge into offense of robbery.

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38
Q

False Pretenses

A
  • defendant makes a fraudulent statement that
  • results in the victim passing title in the property to the defendant
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39
Q

Embezzlement

A
  • defendant is in lawful possession of another’s property (tangible or intangible)
  • defendant fraudulently converts the property to the defendant’s own use
  • with the intent to permanently deprive
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40
Q

Receipt of Stolen Property

A
  • defendant knowingly received possession of, or retained possession of, property that
  • defendant knows or believes was very likely obtained through a theft offense
  • with the intent to steal (permanently deprive the owner)
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41
Q

Burglary: Common Law

A
  • unlawfully breaking and entering
  • the dwelling house of another
  • with the intent to commit a felony therein
  • at nighttime
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42
Q

Burglary: Common Law - Breaking and Entering

A

actual breaking into the structure itself or constructive breaking by entering by fraud or exceeding the scope of consent

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43
Q

Burglary: Common Law - Dwelling

A

building used regularly for sleeping (but modern law includes any type of structure)

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44
Q

Burglary: Common Law - Intent

A

defendant must intend to commit a felony at the moment of entry

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45
Q

Burglary: Common Law - Nighttime

A

modern law does not require the entry to be at night

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46
Q

Kidnapping

A
  • unlawfully restraining and transporting a person
  • through force or the threat of force with at least recklessness or criminal negligence (general intent)
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47
Q

Kidnapping: Restraint and Transportation

A

physically moving the victim a substantial distance or actively concealing the victim, even if the victim is not moved from one location to another

48
Q

Kidnapping: Force

A

mere moral compulsion does not suffice.

This element is not always required if the victim is vulnerable (child, person with mental disability)

49
Q

Assault

A
  • putting another in reasonable apprehension of imminent unlawful harm (acting with at least recklessness or criminal negligence) OR
  • committing an attempted battery
50
Q

Battery

A

causing another person an unlawful harmful or offensive contact (acting with at least recklessness or criminal negligence)

51
Q

Rape

A

person commits rape when the person engages in
- sexual intercourse
- by force or the threat of force
- without consent
- state of mind: recklessness or criminal negligence with respect to the victim’s consent

52
Q

Rape: Sexual Intercourse

A

CL: only vaginal intercourse

Today: any kind of penetration (vaginal, oral, or anal)

53
Q

Rape: Force or Threat of Force

A

CL: considerable force was required

Today: most jurisdictions only require a small amount of force

54
Q

Rape: Alternatives to Force

A

in must jurisdiction, not required if victim intoxicated or unconscious.

Some jurisdictions expand force requirement to include psychological or extreme emotional coercion.

A few jurisdictions have eliminated the force requirement and focus solely on consent.

55
Q

Rape: Without Consent

A

Consent can be conveyed verbally or through actions.

A victim may be legally incapable of giving consent due to mental deficiency or intoxication.

The more force that is used, the stronger the inference is that the victim did not consent.

56
Q

Rape: Fraud

A

if defendant engaged in fraud in the factum (deceipt about nature of act), consent is not effective.

Consent is effective if fraud in the inducement (i.e., victim agreed to intercourse after the defendant deceived the victim on a collateral matter).

57
Q

Statutory Rape

A

person has
- sexual intercourse with
- another person under the age of consent

In many jurisdictions, statutory rape is a strict liability crime, so it does not matter whether the defendant was aware of the victim’s age and consent is not a defense.

58
Q

Arson

A
  • maliciously
  • burning
  • the dwelling house of another

Modern law expands house to personal property, structures other than dwelling houses, and certain forestland.

59
Q

MPC Theft

A

under the MPC, larceny, larceny by trick, false pretenses, and embezzlement are combined into one crime called “theft by unlawful taking or disposition”

60
Q

Defense to Crimes: Insanity

A

defendant suffered from a mental disease or defect and, as a result of the defect, met one of the requirements below:

  • M’Naghten: (1) defendant did not know the nature and quality of his actions OR (2) did not know what he was doing was wrong
  • Irresistible Impulse Test: defendant was (1) unable to control his conduct OR (2) unable to conform his conduct to the law
  • MPC: defendant lacked substantial capacity to (1) appreciate the wrongfulness of his conduct or (2) conform his conduct to the requirements of the law
  • Durham Rule: defendant committed the crime (e.g., the conduct must be a product the disease/defect)
61
Q

Defense to Crimes: Diminished Capacity

A

if the defendant suffers from some mental disability that prevents the defendant from forming the required level of mens rea for a crime, the defendant may be acquited for any crime under the MPC and specific-intent crimes under CL

62
Q

Defense to Crimes: Infancy

A

very young children cannot be criminally culpable because they lack the ability to form the requisite mens rea for criminal offenses.

MPC sets age at 16 where a person subject to criminal prosecution rather than juvenile adjudication

63
Q

Defense to Crimes: Involuntary Intoxication

A

Involuntary intoxication is a defense.

Involuntary: defendant unwittingly drugged or otherwise intoxicated against defendant’s will where effect was powerful enough to defeat the mens rea requirement.

64
Q

Defense to Crimes: Voluntary Intoxication

A

Voluntary intoxication is often not a defense.

Voluntary intoxication does not apply if the required mens rea was formed before intoxication.
- CL: applies to specific-intent crimes but not general-intent or strict liability crimes
- MPC: applies to a mental state of purpose or knowledge but not recklessness or negligence

65
Q

Defense to Crimes: Consent

A
  • person knowingly and voluntarily consents AND
  • element of the offense involves an unlawful contact of another or taking of another’s property.

Contact or taking is not unlawful where the defendant reasonably believes that it is permitted.

66
Q

Defense to Crimes: Consent Exceptions

A

Does not apply to:
- strict liability offenses
- if the defendant exceeds the scope of consent
- the harm is the infliction of serious bodily injury or death

67
Q

Defense to Crimes: Self-Defense

A

Requirements:

  • defendant (a) must not be the initial aggressor or (b) must have regained the right to use self-defense (withdrew hostile intent in good faith and communicated it to the other person or there is a sudden escalation by the other person)
  • defendant must (a) honestly and (b) reasonably believes that the defendant faces an (c) imminent threat of unlawful bodily contact. May only use deadly force if the defendant faces an imminent threat of death or serious bodily harm AND
  • defendant must (a) honestly and (b) reasonably believe that the force used is reasonably necessary to prevent the threatened harm (i.e., proportionality)
68
Q

Defense to Crimes: Self-Defense - Duty to Retreat (Deadly Force)

A

in a minority of jurisdictions, if deadly force is used, defendant must retreat if the defendant can do so safely.

in most jurisdictions, if deadly force is used, there is no duty to retreat if the defendant was lawfully standing in a place where the defendant had the right to be.

69
Q

Defense to Crimes: Self-Defense - Duty to Retreat (Nondeadly Force / Castle Doctrine)

A

in all jurisdictions, there is no duty to retreat if nondeadly force is used or the defendant was in the defendant’s home or workplace

70
Q

Defense to Crimes: Defense of Others

A

defendant
- honestly and
- reasonably believed
- there was an imminent threat of unlawful bodily contact to another person and that the force used was necessary to prevent the threatened harm.

*operates the same as self-defense

71
Q

Defense to Crimes: Defense of Property

A

defendant
- honestly and
- reasonably believed there was an
- imminent threat of unlawful intrusion or interference and
- force used to prevent the harm was reasonable (i.e., proportionality)

72
Q

Defense to Crimes: Defense of Property - Deadly Force

A

never allowed to defend property UNLESS the person is
- defending the person’s dwelling AND
- reasonably believes force is necessary to prevent entry by an intruder who intends to commit a felony in the home or prevent an intruder from inflicting death or serious bodily harm on the person or others in the home

73
Q

Defense to Crimes: Arrest

A
  • law enforcement officer used force to effectuate a felony arrest and
  • individual is fleeing or poses a significant threat of death or serious physical injury to others
74
Q

Defense to Crimes: Crime Prevention

A
  • law enforcement officer or private person
  • used nondeadly force to prevent any felony
  • provided that the force used is reasonably necessary to prevent the crime
75
Q

Defense to Crimes: Entrapment

A
  • the gov’t
  • improperly induced or caused the defendant to commit the crime and
  • the defendant was not predisposed to commit it
76
Q

Defense to Crimes: Necessity

A
  • defendant’s action was taken to avoid significant harm
  • there was no adequate legal alternative and
  • the harm caused by the defendant’s action was less than the harm avoided
77
Q

Defense to Crimes: Necessity - CL Exceptions

A

necessity is not a defense to intentional killings or when the defendant was responsible for creating the situation

78
Q

Defense to Crimes: Necessity - MPC

A

allows the possibility of a necessity defense to intentional killings but not when the defendant was responsible for creating the situation

79
Q

Defense to Crimes: Duress

A

defendant reasonably believed that
- the defendant or another person faced an ongoing threat of death or serious bodily harm AND
- the defendant could prevent the threatened harm only by carrying out the unlawful action with which the defendant is charged

80
Q

Defense to Crimes: Duress - CL Exceptions

A

not a defense to intentional killings or when defendant responsible for creating the situation

81
Q

Defense to Crimes: Duress - MPC

A

defense to intentional killings and does not require the threat to be immediate or imminent, only that a reasonable person could not have resisted it

82
Q

Defense to Crimes: Mistake of Fact

A

not a defense but can negate the mens rea requirement.

Specific-intent crimes: mistake must be made in good faith

General-intent crimes: mistake must (1) be made in good faith and (2) be reasonable

83
Q

Defense to Crimes: Mistake of Law

A

ignorance or misinterpretation of the law will not shield the defendant from criminal liability, but it can negate the mens rea requirement

84
Q

Defense to Crimes: Mistake of Law - Exceptions

A
  • defendant reasonably relies on a statute, administrative decision, official interpretation, or judicial decision that authorized the defendant’s conduct, but was later overturned or overruled OR
  • the law the defendant is charged with violating had not been sufficiently published at the time of the defendant’s conduct
85
Q

Merger Doctrine

A

lesser include offense merges with greater offense where all the elements of the lesser offense are also elements of the greater offense (e.g., larceny, assault, and battery merge into robbery; solicitation and attempt merge into completed substantive crime)

Court can give a lesser-included offense instruction at a party’s request when evidence could lead the jury to convict on the lesser offense even if it acquits on the charged offense.

86
Q

Inchoate Crimes: Attempt

A
  • purpose to commit the acts in question and the target offense AND
  • conduct that goes beyond mere preparation to act in furtherance of the planned criminality
87
Q

Inchoate Crimes: Attempt - Dangerous-Proximity Test

A

dangerously close to completing the last act of a crime

88
Q

Inchoate Crimes: Attempt - Unequivocal Test

A

defendant’s actions unequivocally or unquestionably show an intent to commit the crime

89
Q

Inchoate Crimes: Attempt - Substantial-Step Test

A

requires a major step or action; preparatory steps are not sufficient

90
Q

Inchoate Crimes: Attempt - Defenses - Legal Impossibility

A

defense at CL but not under the MPC.

Under the defense, the defendant believes the defendant is committing a crime, but the defendant’s actions do not constitute a crime

91
Q

Inchoate Crimes: Attempt - Defenses - Factual Impossibility

A

is not a defense where the defendant’s commission of the target offense is unsuccessful because of the erroneous belief about a factual circumstance related to the crime

92
Q

Inchoate Crimes: Attempt - Defenses - Abandonment

A

not a defense at CL.

under MPC, can avoid conviction if defendant shows that defendant (1) voluntarily and (2) completely abandoned the attempt before the last act

93
Q

Inchoate Crimes: Solicitation

A
  • purposeful promotion of criminal conduct and
  • communications (either oral or written) encouraging, commanding, or requesting another person to commit a crime
94
Q

Inchoate Crimes: Solicitation - Conduct

A

Under MPC, communication does not need to be heard or received by the intended recipient but it does under CL.

95
Q

Inchoate Crimes: Solicitation - Recipient’s Actions

A

recipient does not need to respond to the defendant’s communication or actually commit or agree to commit the crime

96
Q

Inchoate Crimes: Solicitation - Defenses - Renunciation and Withdrawal

A

defense under the MPC but not he CL.

Must be voluntary and complete and defendant must thwart the success of the criminal purpose

97
Q

Inchoate Crimes: Solicitation - Defenses - Impossibility

A

legal impossibility is a defense but factual impossibility is not

98
Q

Inchoate Crimes: Conspiracy

A
  • agreement to commit a crime
  • with the purpose or conscious objective to enter into the agreement and commit a crime and
  • overt act in furtherance of the conspiracy (required under modern law)
99
Q

Inchoate Crimes: Conspiracy - Agreement

A

can be express or implied

100
Q

Inchoate Crimes: Conspiracy - Mens Rea

A

Under CL, at least two defendants must act with purpose or conscious objective to commit the crime.

Under the MPC, only one defendant must act with the purpose to commit the crime.

Bumping Knowledge to Purpose: defendant may be guilty if defendant knows the defendant’s services are being used to facilitate the commission of a crime and (1) there is direct evidence of the defendant’s participation, (2) the planned crime is aggravated (felony or serious charge), or (3) defendant has a special interest in the enterprise

101
Q

Inchoate Crimes: Conspiracy - Overt Act

A

any action, including mere preparation, by a conspiracy member is enough

102
Q

Inchoate Crimes: Conspiracy - Defenses - Wharton’s Rule

A

if crime itself requires two parties for its commission, then there must be an agreement with at least one additional person other than the two persons required for the crime

103
Q

Inchoate Crimes: Conspiracy - Defenses - Class Protected

A

when target offense is one that has been enacted to protect a class of persons from harm, a person within the protected class cannot be a member of the conspiracy.

104
Q

Inchoate Crimes: Conspiracy - Defenses - Renunciation and Withdrawal

A

is a defense under the MPC but not under CL.

Under MPC, defendant is not guilty of conspiracy if defendant (1) renounces or abandons the plan voluntarily and completely and (2) thwarts the success of the conspiracy

105
Q

Inchoate Crimes: Conspiracy - Defenses - Impossibility

A

legal impossibility is a defense but factual impossibility is not

106
Q

Conspiracy Liability (Pinkerton Rule)

A

Members of the conspiracy are criminally liable for crimes that are committed in furtherance of the conspiracy if the crime was (1) reasonably foreseeable and (2) in furtherance of the conspiracy.

107
Q

Conspiracy Liability: Statute of Limitations

A

conspiracy terminates when (1) crime’s objective is completed OR (2) individual properly abandons the agreement

108
Q

Conspiracy Liability: Renunciation and Withdrawal

A

defendant’s withdrawal from a conspiracy is a defense to crimes committed by co-conspirators if the defendant
- makes the defendant’s withdrawal known to all other co-conspirators in advance of completion of an overt act AND
- takes an affirmative action to negate any assistance that the defendant previously provided

109
Q

Accomplice Liability

A

person is guilty of an inchoate or substantive crime under accomplice liability if
- accomplice purposely promotes the criminal conduct
- the accomplice has the same mens rea as would be required for commission of the crime
- the accomplice actually provided or attempted to provide assistance AND
- principal committed the crime

110
Q

Accomplice Liability: Bumping Knowledge to Purpose

A

defendant could be guilty if defendant knows the defendant’s services are being used to facilitate the commission of a crime

111
Q

Accomplice Liability: Assistance

A

defendant must provide aid, assistance, or encouragement through words or action.

Defendant’s presence alone is not enough

112
Q

Accomplice Liability: Accessory-after-the-Fact

A

person who helps the principal avoid capture or punishment after the crime has been committed cannot be convicted of the underlying substantive crime but may be convicted of a separate crime (e.g. obstruction of justice)

113
Q

Accomplice Liability: Foreseeable Crimes

A

if defendant is an accomplice, defendant is liable for any other offenses that are a reasonably foreseeable consequence of the commission of the crime

114
Q

Accomplice Liability: Defenses - Withdrawal

A

defendant
- withdraws her complicity before the principal commits the crime and
- nullifies the help she gave

115
Q

Accomplice Liability: Defenses - Principal’s Actions

A

person cannot be guilty of a crime as an accomplice if there is no principal who committed the crime, but the principal does not need to be tried and convicted of the offense

116
Q

Accomplice Liability: Defenses - Class Protected

A

person within the protected class cannot be liable for a crime as an accomplice (e.g., a minor who is unable to consent to sexual intercourse)

Texas Bar Exam Feb. 2024 (16 decks)

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