Crim Law & Procedure Flashcards
Murder Elements
ACTUS REUS: voluntary killing
MENS REA: malice aforethought
CAUSATION: actual and proximate cause
CONCURRENCE Coexistence of Killing and Malice aforethought
Malice aforethought
1) intent to kill
2) intent to cause great bodily injury
3) Reckless indifference to an unjustifiably high risk to human life
4) intent to commit a felony
Voluntary Manslaughter
1) adequate provocation
2) Imperfect self-defense
Inchoate Crimes
1) Solicitation
2) Attempt
- Specific intent to commit crime
- Overt act beyond mere preparation
3) Conspiracy
Larceny
ACTUS REUS: Trespassory taking & carrying away of personal property
MENS REA: Intent to permanently deprive
CAUSATION: actual and proximate cause
CONCURRENCE Coexistence of taking and intent to permanently deprive
Embezzlement
ACTUS REUS: Fraudulent conversion of personal property
MENS REA: Intent to defraud
CAUSATION: actual and proximate cause
CONCURRENCE Coexistence of conversion and intent to defraud
False Pretenses
ACTUS REUS: Obtaining *title to property by a knowing false representation of past or present material fact
MENS REA: Intent to defraud
CAUSATION: actual and proximate cause
CONCURRENCE Coexistence of obtaining title and intent to defraud
Larceny by trick
ACTUS REUS: Obtaining *custody to property by a knowing false representation fo past or present material fact
MENS REA: Intent to defraud
CAUSATION: actual and proximate cause
CONCURRENCE Coexistence of obtaining custody and intent to defraud
Exceptions to the warrant requirement
1) stop & frisk
2) search incident to lawful arrest
3) plain view
4) automobile exception
5) consent
6) hot pursuit
7) exigent circumstances
5th Amendment Right basics
1) Custody?
- Would a reasonable person feel free to terminate?
- How similar the situation is to traditional arrest
2) Interrogation?
- Behavior the police should know is reasonably likely to elicit an incriminating response
6th Amendment Right basics
1) Formal Charges?
- Government may not elicit incriminating statements from defendant without aid of counsel
OFFENSE SPECIFIC!
4th amendment expectation of privacy
To have a Fourth Amendment right to be free from unreasonable search and seizure, a person must have a reasonable expectation of privacy in the place searched or the item seized. Standing to challenge a search on Fourth Amendment grounds does not exist merely because a person will be harmed by introduction of evidence seized during an illegal search of a third person’s property; the defendant’s own expectation of privacy must be violated.
Co-felon liability for felony murder:
1) Traditional common law “proximate cause theory” Co-felon is guilty of all crimes committed during the commission fo the felony
2) Modern “agency theory”: Co-felon is guilty only where the killing is caused by one of the co-felons/participants
GENERAL MATTERS—JURISDICTION AND MERGER
- Jurisdiction
Rule: A state acquires jurisdiction over a crime if either the conduct or the result happened in that state. - Merger
1. Generally, there is no merger of crimes in American law.
2. BUT: solicitation and attempt do merge into the substantive offense. Thus, if you have completed a crime, you cannot be convicted of attempting to commit that crime.
3. Note: Conspiracy does NOT merge into the substantive offense. Thus, you can be convicted of conspiring to do something and doing it.
Essential Elements of Crime: Generally
- Act (actus reus)
- Mental state (mens rea)
- Concurrence: the physical act and mental act existed at the same time
- Harmful result and causation: A harmful result caused by the defendant’s act.
Essential Elements of Crime: PHYSICAL ACT
An act can be any bodily movement - but the act must be a voluntary act.
Examples of bodily movements that do not qualify for criminal liability:
- (1) Conduct which is not the product of your own volition
- A reflexive or convulsive act
- (2) An act performed while you are unconscious or asleep
Essential Elements of Crime: AN OMISSION AS AN ACT
Generally there is no legal duty to rescue but sometimes there is a legal duty to act. A legal duty to act can arise in one of five circumstances:
(1) By statute.
• Example: Requirement to file your tax returns.
(2) By contract.
Example: A lifeguard or nurse has a legal duty to act.
(3) Because of the relationship between the parties.
• Example: A parent’s duty to protect children, or a spouse’s duty to protect the other spouse.
(4) Because you voluntarily assume a duty of care and fail to adequately perform it.
(5) Where your conduct created the peril.
Essential Elements of Crime: COMMON LAW MENTAL STATES
Four Common Law Mental States of a Crime: (1) specific intent crimes, (2) malice crimes, (3) general intent crimes, and (4) strict liability crimes.
- Specific Intent Crimes The importance of specific intent crimes is that they will qualify for additional defenses not available for other types of crime. • Solicitation (Inchoate offense) • Conspiracy (Inchoate offense) • Attempt (Inchoate offense) • First-degree murder • Assault • Larceny • Embezzlement • False pretenses • Robbery • Burglary • Forgery
Specific Intent Crimes Mnemonic:
Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts.
- Malice Crimes
On the bar exam, there are only two (2) malice crimes: murder and arson. - General Intent
General intent is the big catch-all category. All crimes not so far mentioned are general intent crimes unless they qualify for strict liability.
General intent means that the Defendant has a gener- al awareness that she is acting in a manner that would be prohibited by law.
- Strict Liability—The No Intent Crimes
The importance of strict liability on the bar exam is that any defense that negates intention cannot be a defense to the no intent crimes of strict liability.
a. Strict liability crimes are the no intent crimes.
b. Note: If the crime is in the administrative, regulatory, or morality area and you don’t see any adverbs in the statute such as knowingly, willfully, or intentionally, then the statute is meant to be a no intent crime of strict liability.
- Mental States and the Model Penal Code Analysis of Fault
a. Purposely: One acts purposely when it is his conscious objective to engage in certain conduct or cause a certain result.
b. Knowingly: One acts knowingly when he is aware that his conduct will very likely cause the result.
c. Recklessly: One acts recklessly when he consciously disregards a substantial and unjustifiable risk.
d. Negligently: One acts negligently when he fails to be aware of a substantial and unjustifiable risk.
Essential Elements of Crime: CONCURRENCE AND CAUSATION
Concurrence requirement: The defendant must have had the intent necessary for the crime at the time he committed the act constituting the crime.
Causation: Some crimes (e.g., homicide) require a harmful result and causation. Thus, when a crime is defined to require not merely conduct, but also a specified result (e.g., death), the defendant’s conduct must be both the cause-in-fact and the proximate cause of the specified result.
Accomplice Liability: PARTIES TO A CRIME—COMMON LAW
The common law distinguished four types of parties to a felony:
(1) Principals in the first degree: persons who actually engage in the act that constitutes the criminal offense;
(2) Principals in the second degree: persons who aid, advise, or encourage the principal and are present at the crime;
(3) Accessories before the fact: persons who aid, advise, or encourage the principal but are not present at the crime; and
(4) Accessories after the fact: persons who assist the principal after the crime
Accomplice Liability: PARTIES TO A CRIME—MODERN STATUTES
Most jurisdictions have abolished the distinctions between principals in the first degree, principals in the second degree, and accessories before the fact (accessories after the fact are still treated separately).
Principal: one who, with the requisite mental state, actually engages in the act or omission that causes the criminal result.
Accomplice: one who aids, advises, or encourages the principal in the commission of the crime charged.
Accessory after the fact: one who receives, comforts or assists another knowing that he has committed a felony, in order to help the felon escape arrest, trial, or conviction.
Accomplice Liability: MENTAL STATE REQUIRED FOR ACCOMPLICE LIABILITY
In order to be convicted of a substantive crime as an accomplice, the accomplice must have (1) the intent to assist the principal in the commission of the crime, and (2) the intent that the principal commit the crime.
Accomplice Liability: SCOPE OF LIABILITY
An accomplice is responsible for the crimes she committed or aided/advised/encouraged and for any other crimes committed in the course of committing the crime contemplated, as long as the other crimes were probable and foreseeable.
Accomplice Liability: ACCOMPLICES AND WITHDRAWAL
If the person encouraged the crime, the person must repudiate the encouragement.
If the person aided by providing assistance to the principal (such as giving materials), he must do everything possible to neutralize this assistance (such as attempting to retrieve the materials).
An alternate means of withdrawing is to contact the police.
Inchoate Offenses: generally
Inchoate means incomplete. There are three inchoate offenses.
Inchoate Offenses: CONSPIRACY
Rule: Conspiracy is an agreement, with an intent to agree, and an intent to pursue an unlawful objective.
~~Notes on Common Law Conspiracy
- No Merger
Conspiracy does NOT merge with the substantive offense. On the bar exam you CAN be convicted of conspiring to do something and doing it.
Example: Robbery and conspiracy to commit robbery. - Agreement Requirement for Conspiracies
The agreement need not be expressed. Intent can be inferred from conduct.
• Bilateral approach: The traditional (common law) rule required two guilty parties. Thus, under this approach, if one person (in a two-party conspiracy) is merely feigning agreement, the other person cannot be guilty of conspiracy. Furthermore, the acquittal of all persons with whom a defendant is alleged to have conspired precludes conviction of the remaining defen- dant under this approach.
• Unilateral approach: The modern trend (and MPC approach) requires that only one person have a genuine criminal intent. - Overt Act Requirement
The majority rule is that in order to ground liability for conspiracy there must be an agreement plus some overt act in furtherance of the conspiracy. The minority rule and the common law rule grounded liability for conspiracy with the agreement itself.
(1) If you are operating under the majority rule that requires an agreement plus an overt act, any little act will do to be an overt act in furtherance of conspiracy, even an act of mere preparation.
(2) Notes on the MBE regarding majority and minority rules: Always apply the majority rule UNLESS specifically told otherwise. - Factual Impossibility
Factual impossibility is no defense to conspiracy. - Withdrawal
Withdrawal, even if it is adequate, can never relieve the defendant from liability for the conspiracy itself. The defendant can withdraw from liability for the other conspirators’ subsequent crimes. But he cannot with- draw from this conspiracy.
Inchoate Offenses: SOLICITATION
Rule: Solicitation is asking someone to commit a crime. The crime of solicitation ends when you ask them.
Note that under the common law, it is not necessary that the person solicited agree to commit the crime.
What if the person you ask to commit the crime agrees to do it? Then it becomes a conspiracy, and the solicitation merges and the only crime left when the other person agrees to do it is conspiracy.
Note: Factual impossibility is no defense.
Inchoate Offenses: ATTEMPT
Rule: (1) Specific intent plus (2) overt act in furtherance of the crime.
For purposes of attempt, the overt act must be a sub- stantial step in furtherance of the commission of the crime; thus, mere preparation cannot ground liability for attempt.
- Defense of Abandonment
The majority rule is that, once Defendant has taken a substantial step toward committing the crime, aban- donment is never a defense. The MPC allows for this defense only if it is fully voluntary and a complete renunciation of criminal purpose. - Impossibility
Legal impossibility is a defense to attempt; but factual impossibility is not a defense.
Homicide: generally
COMMON LAW MURDER (generally):
Murder is the unlawful killing of another human being with malice aforethought. Such a state of mind exists if there is:
• Intent to kill; or
• Intent to commit a felony; or
• Intent to inflict great bodily harm; or
• Reckless indifference to an unjustifiably high risk to human life.
Homicide: FIRST DEGREE MURDER
(1) Premeditated killing
• First the victim must be human.
• The defendant must have acted with intent or knowledge that his conduct would cause death.
(2) Felony murder (discussed in detail below)
(3) Homicide of a Police Officer
(a) The defendant must know the victim is a law enforcement officer, and
(b) The victim must be acting in the line of duty.
Homicide: SECOND DEGREE MURDER
In many states, second-degree murder is classified as a depraved heart killing—a killing done with reckless indifference to an unjustifiably high risk to human life; or Murders that are not classified as first-degree murders (e.g., premeditated killings or first-degree felony murders or homicide of a police officer).
Homicide: FELONY MURDER
Rule: Any killing—even an accidental killing—commit- ted during the course of a felony.
- Defenses to Felony Murder
(1) If the Defendant has a defense to the underlying felony, then she has a defense to felony murder.
(2) The felony they are committing must be a felony other than the killing.
(3) The deaths must be foreseeable.
(4) Deaths caused while fleeing from a felony are felo- ny murders. BUT once the Defendant reaches a point of temporary safety, deaths caused thereafter are NOT felony murders.
(5) At common law, Defendant is not liable for the death of a co-felon as a result of resistance by the victim or the police.
Homicide: VOLUNTARY MANSLAUGHTER
(1) Killing in the heat of passion resulting from an adequate provocation by the victim;
(2) The provocation must be one that would arouse sudden and intense passion in the mind of an ordi- nary person such to cause him to lose self-control;
(3) There must not have been a sufficient time between the provocation and the killing for the passions of a reasonable person to cool; and
(4) The defendant in fact did not cool off between the provocation and the killing.
- Imperfect Self-Defense
If Defendant has an honest but unreasonable belief that his life was in imminent danger, this defense will reduce a murder to manslaughter.
Note: Only some states recognize this doctrine.
Homicide: INVOLUNTARY MANSLAUGHTER
(1) A killing of criminal negligence or
(2) Misdemeanor manslaughter—killing someone while committing a misdemeanor or an un-enumerated felony.
Homicide: CAUSATION
Cause-in-fact: The Defendant’s conduct must be the cause-in-fact of the victim’s death. In other words, the death would not have occurred but for the Defendant’s conduct.
Proximate cause: The general rule is that a Defendant is responsible for all results that occur as a natural and probable consequence of his conduct even if he did not anticipate the exact manner in which they would occur.
Other Crimes Against the Person: BATTERY
Rule: Unlawful application of force to the person resulting in either bodily injury or offensive touching.
- A battery need not be intentional.
- The force need not be applied directly.
- Remember that battery is a general intent crime.
Other Crimes Against the Person: ASSAULT
(1) An attempt to commit a battery, or
(2) The intentional creation – other than by mere words – of a reasonable apprehension of imminent bodily harm.
The Assault/Battery distinction: If there has been an actual touching, the crime is battery.
Other Crimes Against the Person: AGGRAVATED ASSAULT
Aggravated Assault is an Assault plus one of the following:
• The use of a deadly or dangerous weapon; or
• With the intent to rape, maim, or murder.
Other Crimes Against the Person: FALSE IMPRISONMENT
Rule: Unlawful confinement of a person without his valid consent.
Note: If a known alternate route is available, the confinement element will not be met for purposes of false imprisonment.
Note: One’s consent to the confinement precludes it from constituting false imprisonment.
Other Crimes Against the Person: KIDNAPPING
Rule: Confinement of a person with either some movement or concealment in a secret place
Other Crimes Against the Person: RAPE
Most Modern Statutes: Sexual Assault.
For questions dealing with rape/sexual assault on the bar exam: the slightest penetration completes the crime.
Other Crimes Against the Person: STATUTORY RAPE
Statutory Rape is a strict liability crime, meaning consent of the victim is no defense and mistake of fact is no defense.
Offenses Against Property and Habitation: LARCENY
Rule: Common law larceny requires a wrongful taking, a carrying away of property of another by trespass with intent to permanently deprive.
Notes on the common law rule:
(1) The slightest movement of the property is enough for purposes of the bar exam.
(2) The intent to deprive the owner permanently must exist at the time of the taking or it is not common law larceny. BUT if a person takes prop- erty not intending to steal it, but then later decides to keep the property, she can be guilty of larceny under the theory of continuing trespass.
(3) Taking property in the belief that it is yours (or that you have some right to it) is NOT common law larceny.
note: It is possible to commit larceny of your own property if another person, such as a bailee, has a superior right to possession of the property at that time
Offenses Against Property and Habitation: EMBEZZLEMENT
Rule: The fraudulent conversion of property of another. Notes for the MBE:
(1) The embezzler always has lawful possession, followed by an illegal conversion.
(2) A trustee is often the MBE embezzler.
(3) You don’t have to carry away to be an embezzler – just the lawful possession.
(4) The embezzler doesn’t have to get the benefit.
Offenses Against Property and Habitation: FALSE PRETENSES
Rule: The Defendant persuades the owner of property to convey title by false pretense (false representation).
Notes for the MBE:
(1) It is the conveyance of title that is the center of false pretenses.
(2) This false representation could be as to a pres- ent or past fact.
(3) A false promise to do something in the future cannot ground liability for false pretenses.
“Larceny by Trick” distinguished: If only possession of the property is obtained, the offense is larceny by trick. If title is obtained, the offense is false pretenses.
Offenses Against Property and Habitation: ROBBERY
Rule: The taking of personal property of another from the other person’s presence, by force or threat with the intent to permanently deprive him of it.
Notes for the MBE:
(1) The presence requirement is very broadly drawn, and would even cover a farmer tied up in his barn and taking things from his house.
(2) As for taking either by force or threat, things such as ripping a necklace from a person’s neck is sufficient.
(3) The threat must be a threat of imminent harm.
is the following an example of ARMED robbery?
[hypo:] Carl is walking down the street with his hand in a paper bag. As Lenny approaches from the opposite direction, Carl stops Lenny and pushes the paper bag into Lenny’s ribs. “I’ve got a gun in here. Give me all of your money or I’ll shoot you.” Carl grabs the money and is arrested two blocks later by a nearby officer, who discovers that Carl did not have a gun in the paper sack, but was using his finger
to poke Lenny in the ribs. Is Carl guilty of armed robbery? -> Yes! This is a simulated deadly weapon scenario at common law
Offenses Against Property and Habitation: EXTORTION
Rule: Knowingly seeking to obtain property or services by means of a future threat.
Differences between Extortion and Robbery:
• You don’t have to take anything from the person or his presence to be extortion.
• The threats are of future harm—not imminent harm.
Offenses Against Property and Habitation: FORGERY
- The making or altering of a false writing with intent to defraud.
- Note: Any writing that has apparent legal significance can be subject to the crime of forgery.
Offenses Against Property and Habitation: BURGLARY
Rule: Breaking and entering of a dwelling of another at night with the intent to commit a felony therein.
Notes for the MBE:
a. Breaking—can be actual (involving some force, however slight) or constructive.
(1) Actual breakings: It is not an actual breaking for someone to come uninvited through a wide open door or window. If wide open – there is no breaking. BUT if someone pushes open an interior door to the bedroom or living room then a breaking exists.
(2) Constructive breakings: A breaking by fraud or threat.
b. Entering—occurs when any part of the body crosses into the house.
c. Dwelling house of another—cannot be a barn or a commercial structure.
d. At night—common law had to be at night.
e. With the intent to commit a felony therein. The intent to commit the felony must exist at the time of the breaking and entering or it is NOT common law burglary.
