Criminal Cumulative Flashcards
What was the common law punishment for a felony?
At common law, felonies were punishable by death. Felonies included: murder, manslaughter, rape sodomy, mayhem, robbery, arson, larceny, burglary.
What significance is the situs of a crime?
The situs of a crime is the place where the unlawful act or omission takes place.
If wholly or partially within a state, the defendant may be prosecuted in that state.
What is the difference between a felony and a misdemeanor under the modern view?
Felonies are crimes that are punishable by death or more than a year imprisonment.
Misdemeanors are punishable for less than 1 year imprisonment and/or fines.
Fines may also be included in felonious crimes.
Distinguish Malum in Se and Malum Prohibitum.
A Malum in Se crime is inherently evil and “wrong in itself,” noted by malicious intent or moral turpitude.
Malum Prohibitum is a crime that is only illegal because of a statute.
What is an Ex Post Facto law?
A Ex Post Facto law makes a prior act criminal, or aggravates the penalty for already committed crimes.
Ex Post Facto laws are not allowed.
How are criminal laws interpreted by the courts?
The courts interpret criminal laws using the plain meaning of the words unless it is oppressive or creates injustice.
Ambiguous laws are interpreted in favor of the defendant.
What is the merger doctrine?
Under the CL, a misdemeanor merged into a felony if both were committed.
Under the modern view, merger is largely abolished. Except, solicitation or attempt can merge into the completed crime.
What are the essential elements for any crime?
Most all crimes must have an Actus Reus, Mens Rea, Concurrence of the Actus Reus and Mens Rea, and Causation.
Certain crimes are strict liability or have exceptions to one of the above.
What is the result is the Actus Reus is an involuntary action by the defendant?
The Actus Reus must be a voluntary act, not when unconscious or the product of another’s determination. If the act is involuntary, their is no criminal liability because the Actus Reus is not satisfied.
When can the omission of action satisfy the Actus Reus?
An omission can satisfy as an act when there is a legal duty to act.
A legal duty to act exist when a statute imposes a duty, there is a contractual duty, a sufficiently close relationship, the defendant assumed a duty, or the defendant created the peril.
What is the doctrine of willful blindness?
Willful blindness is where the knowledge of a wrongdoing is inferred because the defendant had a reasonable suspicion or the wrong and was indifference or deliberate about finding the truth.
What are the common law malice crimes?
At common law, murder and arson were malice crimes and only needed a reckless disregard for a high risk.
What are the specific intent crimes?
Specific intent crimes are crimes where the actor has the objective of the crime at the time of commission.
Solicitation, Conspiracy, Attempt, Burglary, Theft crimes, Assault, Premeditated Murder [SCAB TAP]
What are the theft crimes requiring specific intent?
Larceny (& Larceny by Trick), Robbery, Forgery, False Pretenses, Embezzlement
What mens rea is required for general intent crimes?
General intent crimes infer the mental state from the nature of the act. Some examples are Rape, Arson, Battery, Involuntary Manslaughter, and Depraved Heart Murder
What is the significance of a strict liability crime?
Strict liability crimes do not require a mens rea. Therefore, the state of mind defenses (mistake of fact) are not applicable to strict liability.
What are the MPC mindsets, that are also commonly used in modern jurisdictions?
Purposefully- acts with a purpose,
Knowingly- acts aware of a high probability or knowledge of result,
Recklessly- acts with conscious disregard or substantial and unjustifiable risk (gross deviation from standard of care),
Negligently- Unaware but should be aware of unjustifiable risk (objective standard but higher than Tort negligence)
Can negligence per se satisfy a negligent mindset?
Yes. Negligence per se can show a negligent mindset. Example: exceeding the speed limit
Considering accomplice liability, how are the parties to a crime classified at common law?
At CL, the principle in the 1st degree was the person engaged in the acts. The principle in the 2nd degree was one who aided, commanded, encouraged and was present. Accessories before the fact aided, encouraged, abetted but weren’t present at the crime. Accessories after the fact assisted after the crime was complete.
What is the modern view on classifying parties to a crime in accomplice liability?
The modern view combined principles in the 2nd degree and accessories before the fact, into simply Accomplices. The full list is principle, accomplice, and accessory after the fact.
What is the Innocent Agent Doctrine of criminal liability?
A principle who acts through an innocent, unwilling, or irresponsible agent is still a liable principle.
What mental state is required for accomplice liability?
An accomplice must have dual intents. Both the intent to aid/assist AND the intent that the crime be committed by the principle.
The majority rule is the mens rea matches the substantive offense.
Can an accomplice be liable for crimes not specifically intended?
Yes. An accomplice is liable for the crimes committed or counseled on, and other foreseeable crimes in the course of commission.
Foreseeable is often called the “Natural and Probable Consequences” of the original crime.
How can an accomplice withdraw from the crime and liability?
To withdraw from accomplice liability, the accomplice must voluntary withdraw before the crime is unstoppable and undo whatever assistance she provided.
If the accomplice encouraged, must repudiate encouragement. If the accomplice assisted, must negate assistance. If unable to undo, must notify authorities.
What are inchoate criminal offenses?
The basic inchoate offenses are Attempt, Conspiracy, and Solicitation.
Inchoate offenses are crimes completed by a punishable step towards the commission of another crime.
How do inchoate offenses merge into a completed crime?
Conspiracy does not generally merge, so a person can be convicted of both conspiracy and the completed principal offense.
Solicitation and Attempt do merge into a completed crime, and a person can not be convicted of both attempted robbery and robbery.
What are the elements of solicitation?
Solicitation is:
1) inciting, counseling, encouraging, commanding another,
2) with specific intent that the other commit a crime
Unlike conspiracy, the other person does not have to agree to follow-through.
What are defenses to solicitation?
Generally, a factual impossibility and withdrawal are not defenses to solicitation. However, the MPC allows a withdrawal defense if the defendant prevents the commission of the crime.
What are the elements of Conspiracy?
1) An agreement between 2 or more parties,
2) Specific intent to enter such agreement,
3) Specific intent to achieve the objective (crime or lawful purpose via criminal means)
How is the Actus Reus element of conspiracy satisifed?
At CL, the agreement itself was the actus reus.
The majority modern rule is that an overt act in furtherance is required, but this is less strict than the overt act required for attempt and mere preparation or simply “how” to commit the crime will satisfy.
What is the majority rule if there is one agreement to commit multiple crimes?
Under the rule in Braverman v. U.S., conspirators can only be charged for 1 conspiracy, regardless of the number of crimes agreement, when there is only 1 agreement.
Can a person be convicted of both conspiracy to (crime) and the completed crime? [Merger?]
Yes, conspiracy is the inchoate crime that does not merge and convictions are allowed on both charges of conspiracy and the crime itself.
What are the 2 major theories on multiple parties to a conspiracy?
The Chain theory and the Hub & Spoke theory.
In the chain theory, each party depends on the other parties and is a single large conspiracy.
In the hub & spoke theory, a common person has multiple independent conspiracies with many parties.
What is the Wharton rule regarding conspiracies?
The Wharton rule states that a conspiracy must have more parties than the crime requires to complete. For example bribery takes two parties to complete, so those 2 people can’t conspire to commit bribery.
Can one conspire with a feigned accomplice?
Under the modern view, the unilateral approach is used and only 1 party needs criminal intent.
The traditional view used a bi-lateral approach that required 2 guilty minds (with exception for husband and wife).
If a party to a conspiracy commits crimes beyond the agreed crime, is the conspirator liable for the acts of the accomplice?
Maybe. If the crimes are in furtherance of the objective crime, AND are a natural and probable (foreseeable) consequence of the crime.
When is withdrawal a defense to conspiracy?
The general rule is one can not withdraw from a conspiracy, but if all members of the conspiracy are notified of withdrawal it can be a defense to future crimes.
Withdrawal is a conspiracy defense under the MPC if the conspirator voluntarily withdraws and thwarts the crime.
What are the elements of Attempt?
Specific intent to commit the crime, AND
and overt act in furtherance of that intent.
Note the overt act threshold is more strict than conspiracy liability and must be more than mere preparation.
What are the tests to evaluate is an overt act is satisfied for attempt crimes?
The majority and MPC test is the substantial step test, where a substantial step towards the commission of the crime is taken.
Common law tests include the (dangerous or physical) proximity test, the equivocality test, and the last act test.
What are the defenses to Attempt?
Legal impossibility (not a crime if completed) is a defense. Factual impossibility and Abandonment are never defenses in the majority view. The MPC allows withdrawal defense if: fully voluntary AND complete abandonment of criminal purpose.
What is criminal battery?
Battery is the unlawful application of force resulting in injury or offensive touching. Battery is a general intent crime, it can be intentional but generally only negligence is required.
At CL, simple battery was a misdemeanor. What commonly can escalate simple battery to aggravated battery, and what is the result?
Aggravated battery generally constitutes a felony and is applied commonly if:
Deadly weapon is used, Serious bodily injury, or a woman, child, or police officer is battered.
What is an Assault?
Assault is the attempt to commit a battery or the intentional creation of reasonable apprehension of a battery.
Assault can be aggravated if a dangerous or deadly weapon is used, or if there is an intent to rape, maim, or murder.
How are assault and battery often addressed in the modern approach?
Statutes often co-mingle assault and battery terminology and sometimes the crime itself.
What is Common Law Murder?
Common law murder is the unlawful killing of another human being with malice aforethought.
What constitutes malice aforethought?
Malice aforethought is a term of art. It can be either expressed or implied. An intent to kill or create serious bodily injury is expressed.
When one has a reckless indifference to an unjustifiably high risk to life, or when one commits felony murder malice aforethought can be implied.
What is the deadly weapon rule?
If a deadly weapon is used and the result is death, malice aforethought is implied from the use.
What mitigates murder to voluntary manslaughter?
The intentional killing of another is generally murder, but if done in response to adequate provocation- intentional killing can be voluntary manslaughter.
What are the requirements of adequate provocation for mitigating to voluntary manslaughter?
1) Bring a sudden and intense passion, AND
2) the actor was in fact provoked, AND
3) the actor had no time to cool off, AND
4) the actor in fact did not cool off.
Generally this is seen if subjected to serious battery or deadly force, or catching a spouse in the act of adultery. Mere words are NOT enough to provoke here.
What circumstance can create involuntary manslaughter?
Involuntary manslaughter is a general intent crime and can be established by criminal negligence. When the actor is culpable, grossly or recklessly negligent or reasonably incompatible with human life.
The majority requires the actor be subjectively aware of the risks of his acts.
What is the MPC equivalent to Involuntary Manslaughter?
The MPC uses the crime of negligent homicide, occurring when the actor is reckless, and not aware of the risks but should have been.
What is the misdemeanor manslaughter rule?
When death results as a result of a misdemeanor or not inherently dangerous felony, it can be manslaughter. The crimes must either be Malum in Se, or the death is foreseeable in a Malum Prohibitum crime.
How is murder commonly classified in the modern approach?
Many statutes create degrees of murder. Generally, first degree murder is deliberate, premeditated, from lying-in-wait, torture, or poisoning, or felony murder.
How is premeditation established?
Premeditation requires reflection or planning prior to the act. However, this premeditation can be formed in an instant, or while pulling the trigger.
What are the inherently dangerous felonies considered for felony murder?
Burglary, Arson, Rape, Robbery, and Kidnapping are the generally accept inherently dangerous felonies (BARRK).
When is a felony over for purposes of felony murder?
Felons are liable for FORESEEABLE (majority) deaths in the commission or attempt of a felony and during the escape. Once felons reach a place of temporary safety, the felony ends for the purpose of felony murder.
What is the majority felony murder rule for the death of a co-felon, based on the Redline case?
Under Redline, a felon is not liable for the death of a co-felon during the commission of a felony.
What are the two predominant theories for a death caused by another (not co-felon) during a felony?
The AGENCY theory states that the killing must be done by an agent of the felon, and co-felon are not responsible for deaths caused by bystanders or police.
The PROXIMATE Cause theory is that a co-felon is liable for any death that is a proximate result of the felony.
What is the exception to the agency theory of third party killing by another?
The Human Shield doctrine, if the felon places or forces a third party to be in a place of danger, the felon is liable to the death as a foreseeable result.
How is causation satisfied for homicide?
The defendant must have caused the death to be liable. Both the cause in fact (but-for) and the proximate cause are required. Proximate causation is determined by the natural and probable result of the act, and superseding factors can negate proximate cause.
What is the year and a day rule?
The year and a day rule is an old Common Law rule that death must occur no more than a year and a day from the defendant’s actions.
What is the crime of false imprisonment at common law?
CL criminal false imprisonment is the unlawful confinement of a person without consent, mirroring tort false imprisonment.
Distinguish CL kidnapping and the modern view.
CL kidnapping was the forcible abduction or stealing away of a person from his own country.
The modern view of kidnapping is confinement of a person that involves either movement of the victim, or concealment in a secret place.
What circumstances can aggravate kidnapping (modern view)?
Holding for ransom.
Holding for the purpose of another crime.
Holding for offensive (sexual) purpose.
Child stealing (including enticement).
What is the CL definition of rape?
Under the common law, rape is the unlawful carnal knowledge of a woman by a man, who is not her husband, without consent.
Under the CL & MPC, husband couldn’t rape wife. the Majority has largely dropped this, and several jurisdictions have made gender neutral.
What makes sexual consent ineffective?
Consent gained by force, threats, or from an incapable or intoxicated person is generally ineffective.
However, sexual consent by fraud is generally effective.
How does statutory rape differ from rape?
Statutory rape is a strict liability crime, having no required criminal intent. Generally, a mistake of age is not a defense, but may be if over 10y in certain circumstances of the minority/MPC.
What are so-called Romeo and Juliet provisions to statutory rape?
Romeo and Juliet laws are exceptions to statutory rape defined by statute, where a certain define closeness of age may be a defense, generally for teenagers.
What are the elements of Larceny?
The trespassory taking and asportation of another’s personal property with the intent to permanently deprive.
Which element of larceny is negated by a claim of right?
If the defendant has a claim of right to the property that is greater than the victim’s, it is not another’s personal property.
What distinguishes Larceny from Larceny By Trick?
The trespassory element of larceny is the distinguishing factor. Consent obtained by or through misrepresentation of the truth constitutes a larceny by trick.
Can lost property be stolen?
Yes, lost property can be the subject of larceny if the defendant knows or has reason to believe he can discover the rightful owner AND has the specific intent to permanently deprive.
What are the elements of embezzlement?
Embezzlement is the Fraudulent conversion of property of another by a lawful (entrusted) possessor.
Conversion is a use or disposal of the property inconsistent with the trust arrangement.
What is a defendant had the intent to return or restore property when taken or converted?
The intent to restore/return must be for the exact property, and is not a defense if the property is cash.
What are the elements of the crime of false pretenses?
False pretenses is obtaining the title to property of another by false representation with the intent to defraud, and the victim relies on the falsity.
What distinguishes false pretenses from larceny by trick?
The transfer of title distinguishes. In false pretenses, the actual property may or may not be taken but the title always is. In LBT, the title does not change hands.
What are the elements of Robbery?
Robbery is the taking of personal property from or in the presence of a person, by force or threat of force, with the intent to permanently deprive.
What elements are required to show receiving stolen property?
Receiving possession and control of stolen property known to been obtained by another in a criminal manner, with intent to permanently deprive.
Possession is not required after the fact, can be hidden or sold.
What is forgery?
Forgery is the making or altering of a false writing with the intent to defraud.
Uttering a forged instrument is offering as genuine a false instrument that may be forged with an intent to defraud.
These crimes are separate at CL.
What is the historical definition of burglary?
The breaking and entering of the dwelling of another at night with intent to commit a felony therein.
What satisfies breaking for burglary?
Minimal force, pushing open a cracked door or window is sufficient. Likewise, constructive breaking is established if entry by means of fraud or threat or using a chimney.
If a visitor in consensually in a dwelling and then decides to commit a felony, can a charge of burglary stand?
No, the intent to commit the felony (mens rea) and the breaking and entering (actus reus) must be concurrent.
What are the common law elements of arson?
At common law, arson was the malicious burning of the dwelling of another. Arson was one of the CL malice crimes requiring only general intent and one could not arson his own dwelling.
What degree of burning is sufficient to establish CL arson?
The damage must occur from fire, not from an explosion. A scorching is not enough, there must be charring to the fibers of the wood to satisfy arson.
What elements are required to establish deadly force as a self-defense, and who must prove this?
The elements of deadly force are 1) without fault, 2) confronted by unlawful force, AND 3) reasonable belief threatened with imminent death or serious harm.
In the majority, the prosecutor must prove the force was not justified, BYRD.
Can the instigator use the defense of self-defense?
Generally, the instigator or provoker can not claim self-defense. However, in a minority of jurisdictions the original aggressor can regain self-defense rights if he communicates a withdrawal/retreat from the conflict. Also in a minority, when a minor scuffle suddenly escalates.
When is there a duty to retreat?
Under the majority American view, there is no duty to retreat.
Under the CL, MPC, and a minority there is a duty to retreat if can do so safely to avoid the necessity of force.
What is the Castle Doctrine
When a duty to retreat exists, it doesn’t apply to a man in his home where someone is unlawfully trying to gain entry or enters with intent to create harm.
