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Bar Exam > Criminal Law > Flashcards

Criminal Law Flashcards

1
Q

Essential Elements of a Crime - General

A
  1. Act (or Omission)

2. Mental State

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2
Q

Movement that does not qualify as an ACT

A
  1. Conduct which is not the product of your own volition
  2. Reflex or convulsion
  3. act performed while asleep or unconscious
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3
Q

Omission

when legal duty arises

A
  1. By Statute
  2. By Contract
  3. Relationship between the parties (parent/child)
  4. voluntary assumption of a duty or care and failure to perform
  5. Where your conduct created the peril
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4
Q

4 Common Law Mental States of a Crime

A
  1. Specific Intent
  2. Malice Crimes
  3. General Intent Crimes
  4. Strict Liability Crimes
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5
Q

Specific Intent Crimes (11)

A 
Solicitation
Conspiracy
Attempt
First Degree Murder
Assault
Larceny
Embezzlement
False pretenses
Robbery
Burglary
Forgery
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6
Q

Malice Crimes (2)

A

Murder

Arson

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7
Q

General Intent

A

All crimes that are not specific intent, malice crimes, or strict liability

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8
Q

Doctrine of Transferred Intent

A

-

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9
Q

Strict Liability

A

No Intent Crimes
- If the crime is in the administrative, regulatory, or morality arena and you do not see any adverbs such as Knowingly, willfully, or intentionally, then the statute is meant to be a no intent crime of strict liability

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10
Q

Model Penal Code Mental States

A
  1. Purposely
  2. Knowingly
  3. Recklessly
  4. Negligently
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11
Q

Purposely

A

One acts purposely when it is his conscious objective to engage in certain conduct or case a certain result

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12
Q

Knowingly

A

One acts knowingly when he is aware that his conduct will very likely cause the result

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13
Q

Recklessly

A

One acts recklessly when he consciously disregards a substantial and unjustifiable risk

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14
Q

Negligently

A

One acts negligently when he fails to be aware of a substantial and unjustifiable risk

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15
Q

Accomplice

A

One who Aids, Advises, or Encourages the principle in the commission of the crime charged

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16
Q

Accomplice Intent

A

Must intend that the crime be committed

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17
Q

Accomplice’s Liability

A

Accomplices are liable for the crime itself and all other foreseeable crimes

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18
Q

Accomplice Withdrawal

A
  1. If encouraged the crime, must repudiate the encouragement
  2. if aided by providing assistance to the principal, must do everything possible to neutralize the assistance
  3. Alternative to withdrawing - Contact police
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19
Q

Incohate Offenses

A

Incohate = Incomplete

  1. Solicitation
  2. Conspiracy
  3. Attempt
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20
Q

Solicitation

Define

A

Solicitation is asking someone to commit a crime. The crime of solicitation ends when you ask them.

Note: if the person you ask to commit the crime agrees to do it, 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 - No Defense

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21
Q

Conspiracy

Define

A

An agreement, with an intent to agree, and an intent to pursue and unlawful objective.

Note: Agreement can be express or inferred by conduct

Note: majority requires an overt act, minority looks to whether an agreement is present

Note: Factual Impossibility is NOT a defense

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22
Q

Conspiracy and Merger

A

Conspiracy does NOT merge with substantive offense. You can be convicted of conspiring to do something and doing it.

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23
Q

Liability for Co-Conspirator Crimes

A

Each conspirator is liable for ALL the crimes of co-conspirators if those crimes were committed in furtherance of the conspiracy and were foreseeable

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24
Q

Bi-Lateral Approach

Common Law

A
  • Requires 2 guilty parties
  • If one person is merely feigning agreement, the other person can’t be convicted of conspiracy
  • Acquittal of one = acquittal of all
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25
Q

Unilateral Approach

Modern and MPC Approach

A

Requires that only 1 person have a genuine criminal intent

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26
Q

Withdrawal from Conspiracy

A

Withdrawal can never relieve defendant from liability from the conspiracy itself. May withdraw from the liability for the other conspirator’s subsequent crimes.

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27
Q

Attempt

define

A

Requires:

  1. Specific intent; and
  2. An overt act in furtherance of the crime

Note: Act must be a substantial step in furtherance of the commission of the crime. Mere preparation is not enough.

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28
Q

Defense of Abandonment

A

Majority Rule: Once Defendant has taken a substantial step toward committing the crime abandonment is NEVER a defense

Minority/MPC Rule: Allows for defense only if it fully voluntary and a complete renunciation of criminal purpose

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29
Q

Impossibility and Attempt

A

Legal Impossibility - Defense to attempt

Factual Impossibility - Not a defense to attempt

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30
Q

Defenses Based on Criminal Capacity

A

Insanity
Intoxication
Infancy

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31
Q

Tests for Insanity (4)

A

M’Naghten Rule
Irresistible Impulse
Durham Rule
Model Penal Code

32
Q

M’Naughten Rule

A

At the time of his conduct, Defendant lacked the ability to know the wrongfulness of his actions or understand the nature and quality of his actions.

33
Q

Irresistible Impulse

A

Defendant lack the capacity for self control and free choice

34
Q

Durham Rule

A

Defendant’s conduct was a product of mental illness

35
Q

Insanity under MPC

A

Defendant lacked the ability to conform his conduct to the requirements of law

36
Q

Intoxication

A

Voluntary intoxication is a defense only to specific intent crimes

37
Q

Involuntary Intoxication

A
  1. Unknowingly intoxicating or
  2. Becoming intoxicated under duress

Note: is considered a form of insanity, therefore a defense to all crimes

38
Q

Infancy

A

Two rules:

  1. Under age 7 - no criminal liability
  2. Under age 14 - rebuttable presumption of no criminal liability
39
Q

Self Defense

Non-Deadly Force

A

A victim may use non-deadly self-defense anytime the victim reasonably believe that force is about to be used on him

40
Q

Self Defense

Deadly Force

A

Majority Rule: A victim may use deadly force in self defense anytime the victim reasonably believes that deadly force is about to be used on him

Minority Rule: A victim is required to retreat if it is safe to do so. Three exceptions:

  • your home
  • victim of rape or robbery
  • police officers
41
Q

Self-Defense

Original Aggressor

A

To get back the defense of self-defense, the original aggressor must:

  1. withdraw, and
  2. communicate that withdrawal

Note: if the victim of the initial aggression suddenly escalates a minor fight into one involving deadly force and does so without giving the aggressor the opportunity to with draw, the original aggressor may use force in his own defense.

42
Q

Defense of Others

A

A defendant can raise a “defense of others” defense if he reasonably believes that the person assisted would have had the right to use force in his own defense.

Majority Rule: there need not be a special relationship between the defendant that he person in whose defense he acted.

43
Q

Defense of Dwelling

A

Deadly force may never be used solely to defend your property

44
Q

Duress

A

Duress is a defense to a criminal act if:

  1. The person acts under the threat of imminent infliction of death or great bodily harm, and
  2. that belief is reasonable

Note: Threats to harm a third person may also suffice to establish the defense of duress.

Duress is a defense to all crimes except homicide

45
Q

Necessity

A

Rule: Conduct that would otherwise be criminal is justifiable if, as a result of pressure from natural forces, the defendant reasonably believes that his conduct was necessary to avoid a greater societal harm.

Note: the necessity defense differs from duress because duress involves human threat, and necessity involves pressure from natural forces

46
Q

Mistake of Fact

A

Rule: Mistake of fact is a defense only when the mistake negates INTENTION.

Note: The mistake has to be reasonable to be a defense to a malice or general intent crime.

  • will always be a defense to a specific intent crime
  • will never be a defense to strict liability crimes
47
Q

Consent

A

Consent of the victim generally is NO defense

48
Q

Entrapment

A

Entrapment is a valid defense only if:

  1. The criminal design originated with law enforcement officers, and
  2. The defendant must not have been predisposed to commit the crime
49
Q

Battery

A

Rule: Unlawful application of force to the person resulting in either bodily injury or offensive touching

Note: batter doesn’t need to be intentional and force may be applied directly or indirectly

Battery is a general intent crime

50
Q

Assault

A

Rule: Either (1) an attempt to commit battery, or (2) the intentional creation - other than bay mere words- or a reasonable apprehension of eminent bodily harm

Assault/Battery distinction: If there has been an actual touching, the Crime is battery

51
Q

Aggravated Assault

A

Rule: Aggravated Assault is an Assault + one of the following:

  1. The use of a deadly or dangerous weapon, or
  2. With the intent to rape, maim, or murder.
52
Q

Murder

Generally

A

Murder is the unlawful killing of another human being with malice aforethought.

53
Q

Malice Aforethought

A

Malice aforethought exists when there is:

  1. intent to kill, or
  2. intent to inflict great bodily harm, or
  3. intent to commit a felony, or
  4. reckless indifference to an unjustifiably high risk to human life
54
Q

Murder - Causation

A

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.

55
Q

First-degree Murder

A

Premeditated Killing

  • victim must be human, and
  • defendant must have acted with intent or knowledge that his conduct would case death
56
Q

Felony Murder

A

Any killing, even an accidental killing, committed during the course of a felony

Note: deaths caused while fleeing from a felony are felony murders. BUT once the Defendant reaches a point of temporary safety deaths caused thereafter are NOT felony murders.

57
Q

Defense to Felony Murder

A

If the Defendant has a defense to the underlying felony, then he has a defense to felony murder

58
Q

Homicide of Police Officer

A
  1. The defendant must know the victim is a law enforcement officer, and
  2. The victim must be acting in the line of duty

Note: considered 1st degree murder

59
Q

Second-degree Murder

A

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 1st degree felony murders)

60
Q

Voluntary Manslaughter

A
  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 ordinary 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 dd not cool off between the provocation and the killing.
61
Q

Imperfect Self-Defense

A

If defendant has an honest but unreasonable belief that his life was in imminent danger, this defense will educe a murder to manslaughter.

Note: only some states recognize this doctrine

62
Q

Involuntary Manslaughter

A

A killing of criminal negligence

63
Q

Misdemeanor Manslaughter

A

Killing someone while committing a misdemeanor or an enumerated felony

64
Q

False Imprisonment

A

Rule: Unlawful confinement of a person without his valid consent

Note: If a a known alternate route is available, the confinement element will not be met.
One’s consent to the confinement precludes it from constituting false imprisonment.

65
Q

Kidnapping

A

Rule: Confinement of a person with either:

  1. Some movement (transportation); or
  2. Concealment in a secret place
66
Q

Rape

A

Sexual intercourse without consent

Note: for the MBE, all you need to know is that the slightest penetration completes the crime of rape.

67
Q

Statutory Rape

A

Strict Liability Crime - neither the consent of the victim or a mistake of fact may be a defense

68
Q

Larceny

A

Rule: Common law larceny requires a wrongful taking, a carrying away of property of another by trespass with intent to permanently deprive

Note: The intent to deprive the owner permanently must exist at the time of the taking.
- Taking property in the belief that is is yours is NOT common law larceny

69
Q

Embezzlement

A

Rule: the fraudulent conversion of property of another

Note: The embezzler always has lawful possession followed by an illegal conversion

  • embezzler does not have to get the benefit
  • a trustee is often the embezzler on the MBE
70
Q

False Pretenses

A

Rule: The defendant persuades the owner of property to convey title by false representation (pretense)

Note: false representation could be as to a present or past fact
- a false promise to do something in the future cannot be liability for false pretenses

71
Q

Larceny by Trick

A

The defendant persuades the owner of the property to convey possession by false pretense.

72
Q

Robbery

A

The taking of persona property of another from the other person’s presence by force or threat with the intent to permanently deprive him of it

Note: threat must be a threat of eminent harm

73
Q

Extortion

A

Knowingly seeking to obtain property or services by means of a future threat

74
Q

Differences between Extortion and Robbery

A

A. you don’t have to take anything from the person or his presence to be extortion

B. The treats are of future harm - not imminent harm

75
Q

Forgery

A

Rule: The making or altering of a false writing with intent to defraud

Note: Any writing that has apparent legal significance is subject to the crime of forgery

76
Q

Burglary

A

Rule: Breaking and entering of a dwelling of another at night with the intent to commit a felony therein

Note: breaking may be actual or constructive
- the intent to commit a felony MUST exist AT THE TIME of the breaking and entering

77
Q

Arson

A

Rule: The malicious burning of the dwelling of another

Note: only applies to burning - not smoke damage. Scorching is insufficient, but charring is sufficient.

Bar Exam (3 decks)

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