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Josh's MBE Cards > Criminal Law > Flashcards

Criminal Law Flashcards

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1
Q

Vagueness/Other Constitutional Limitations

A
  1. Fair warning (a persona of ordinary intelligence must be able to discern what is prohibited; and
  2. No arbitrary discriminatory enforcement.
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2
Q

Merger Doctrine

A
  1. Common Law: If you did a F and a M you could only be convicted of the F.
  2. Modern Law: No such rule anymore, however if you cannot have both solicitation/attempt and the underlying crime, they merge. Except for conspiracy.
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3
Q

Elements of Crime: Physical Act

A
  1. Voluntary physical act. A bodily movement is a physical act.

Tip: don’t be fooled by unconsciousness or other non-voluntary action.

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4
Q

Elements of Crime: Omission as an Act

A

Failure to act gives rise to a legal duty only if:

  1. There is a legal duty to act;
  2. D had knowledge of the facts giving rise to the duty; and
  3. It is reasonably possible to perform the duty.

Can arise by statute, K, relationship between D and victim (like parent/child or spouses), voluntary assumption of care, or CREATION OF THE PERIL.

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5
Q

Elements of Crime: Possession as an Act

A

Only must have control for a long enough period of time to have an opportunity to terminate possession.

Usually only need to know it is in your possession, ignorance of illegality not a defense. But some states have a state of mind requirement. But we can infer knowledge based on trying to ‘avoid learning’ and/or suspicious context.

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6
Q

Specific Intent

A

Requires a specific object in mind to be specific intent. Specific intent crimes include:

  1. Solicitation
  2. Attempt
  3. Conspiracy
  4. First degree murder
  5. Assault (intent to commit a battery)
  6. Larceny and Robbery
  7. Burglary
  8. Forgery
  9. False Pretenses
  10. Embezzlement
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7
Q

Malice

A

Requires a reckless disregard of an obvious or high risk that the particular harmful result will occur.

DEFENSES TO SPECIFIC INTENT CRIMES (E.G., INTOXICATION) DO NOT APPLY TO MALICE CRIMES

Malice crimes include common law murder and arson.

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8
Q

MPC Intent

A

No general or specific intent. Instead a subjective standard is used:

  1. Purposely: When conscious object is to engage in certain conduct or cause a certain result.
  2. Knowingly:

A D acts knowingly with respect to the nature of his conduct he is aware that his conduct is of a particular nature or that certain circumstances exist.

Also applies where D is aware of a high probability that certain facts exist and deliberately avoids learning truth.

Acts knowingly with respect to his conduct when he knows that his conduct will necessarily or very likely cause a particular result.

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9
Q

MPC: Recklessly

A
  1. consciously disregards a substantial and unjustifiable risk; or
  2. that a prohibited result will follow and this disregard constitutes a gross deviation from the standard of care.
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10
Q

MPC: Negligence

A

Where a person fails to be aware of a substantial and unjustifiable risk. Objective standard.

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11
Q

General Intent

A

Acting in proscribed way and that the required circumstances exist. Crimes:

  1. Battery
  2. Rape.
  3. Kidnapping
  4. False imprisonment.
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12
Q

Transferred Intent

A

Where you try to commit a crime against Person A but actually commit it against Person B.

Guilty of attempt against Person A and completed crime against Person B.

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13
Q

Concurrence of Mental Fault with Physical Act

A

Where you have intent to commit a crime but a physical act or mistake (driving somewhere to kill person A and then accidentally running over Person A, not a crime).

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14
Q

Accomplice

A

Liable for the principal crime if they intended to aid or encourage the crime.

Mental State required:

  1. intent to assist the principal in commission of crime;
  2. intent that the principal commit the substantive offense.

Where negligence or recklessness is a factor, it is enough if accomplice intended to facilitate and acted with reckless/negligence while doing so.

Mere sale of ordinary goods, even with knowledge of use, is typically insufficient. Gouging price might make it enough.

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15
Q

Accessory after the Facrt

A

Liable for separate less serious crime of being an accessory after the fact.

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16
Q

Withdrawal

A

Must occur before the crime. Done by:

  1. Repudiation is sufficient for mere encouragement.
  2. Attempt to neutralize is required if participation went beyond mere encouragement. (Notifying the police is enough).
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17
Q

Solicitation

A
  1. Inciting, counseling, advising, urging, or commanding;
  2. Another to commit a crime; and
  3. With the intent that the person solicited commit the crime.

Merger: It merges into the substantive offense.

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18
Q

Conspiracy Elements

A
  1. Agreement between two or more persons;
  2. An intent to enter into the agreement; and
  3. An intent by at lease two persons to achieve the objective of the agreement.

Most states require an overt act, mere preparation will suffice.

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19
Q

Conspiracy: Unilateral

A

Modern approach follows unilateral approach and only requires one party to have criminal intent, i.e., it can be one criminal and an undercover cop.

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20
Q

Conspiracy: Bilateral

A

Requires two or more genuinely criminal parties. If one is feigning and one is serious, then it isn’t conspiracy.

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21
Q

Effect of Acquittal of Some Conspirators

A

General rule: Acquittal of all persons with whom a D is supposed to have conspired precludes a conviction of the remaining D.

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22
Q

Conspiracy: Chain vs. Hub and Spoke

A

Chain: single large conspiracy where all are liable for the conspiracy

Hub and Spoke: where one kingman has a bunch of little conspiracies that he is the hub of. The spokes are only responsible for their little conspiracies.

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23
Q

Termination of Conspiracy

A
  1. Usually upon completion of the wrongful objective.

2. Concealment generally not part of conspiracy unless agreed in advance.

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24
Q

Conspiracy: Defenses

A
  1. Factual impossibility
  2. Withdrawal: Not a defense to conspiracy but may be a defense to crimes committed in FURTHERANCE of the conspiracy. To be effective the conspirator must take an affirmative act that notifies ALL members of the conspiracy that they are withdrawing and give them time to abandon their plans. Withdrawal is not effective AS TO THE CONSPIRACY unless RARE INSTANCE when it happens before the overt act.
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25
Q

Attempt

A
  1. Done with intent to commit a crime that falls short of completing the crime.
  2. Attempt always requires specific intent, regardless of mens rea for the crime.
  3. Overt act required BEYOND mere preparation. Substantial step. Much more than conspiracy.
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26
Q

Attempt: Defenses

A
  1. Legal impossibility.
  2. Factual impossibility due to some condition unknown to the defendant.
  3. Abandonment is a defense under the MPC. Full and voluntary.

Cannot be convicted of both attempt and the completed crime.

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27
Q

Insanity: M’Naghten

A

Applies where:

  1. disease of the mind
  2. Caused a defect of reason
  3. Such that the defendant lacked the ability at the time of his actions to
  4. Either know the wrongfulness of his actions or understand the nature and quality of his actions

Delusions belief that ones actions are orally right, or loss of control, because of mental illness are not defenses UNLESS THE TEST IS MET.

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28
Q

Insanity: Irresistible Impulse

A

Where unable, due to mental illness, to control his actions or conform his conduct to the law.

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29
Q

Insanity: Durham Test

A

Where crime was a product of his mental illness.

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30
Q

Insanity: ALI or MPC

A

Due to mental illness or defect he lacked the substantial capacity to: (i) appreciate the criminality of his conduct; or (ii) conform his conduct to the requirements of the law.

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31
Q

Insanity: Procedural Issues

A
  1. Presumed sane.
  2. If D raises insanity issue, may not refuse to be examined by a court appointed psych. If D does NOT raise it, they may refuse to be examined.
32
Q

Diminished Capacity

A

Can be a defense to specific intent crimes.

33
Q

Defenses: Intoxication

A

Voluntary: Evidence of VOLUNTARY intoxication can be offered as a defense only if the crime required purpose (intent) or knowledge and being intoxicated prevented the obtaining of that knowledge or purpose. Usually only applies to specific intent.

Involuntary: Evidence of Involuntary intoxication (without knowledge, duress, or pursuant to medical advice) treated as mental illness, may be a defense to all crimes.

34
Q

Self Defense: Non-Deadly Force

A

Where person reasonable believes necessary to protect herself from imminent use of unlawful force upon herself. No duty to retreat.

35
Q

Self Defense: Deadly Force

A
  1. without fault
  2. confronted with unlawful force; and
  3. reasonably believes they are threatened with imminent death or great bodily harm.

Retreat: Generally no duty. Some jurisdictions require it unless (i) in your own home; (ii) attack occurs while making a lawful arrest; or (iii) assailant in process of robbing victim).

36
Q

Self Defense: Right of Aggressor to Self Defense

A

Only applies where:

  1. He effectively withdraw from confrontation and communications to the other his desire to do so; or
  2. the victim of the initial aggression suddenly escalates the minor fight into a deadly altercation AND the initial aggressor had no chance to withdraw.
37
Q

Defense of Others

A

Permitted where:

Reasonably believes the person assisted as right to use self defense. Appearance is enough.

38
Q

Defense of Dwelling

A

May use non-deadly force in defense of dwelling. Deadly force only permitted where reasonably believes necessary to prevent a personal attack on herself or another person in the dwelling OR to prevent an entry to commit a felony in the dwelling.

39
Q

Defense of Other Property

A

Can never use deadly force. Reasonable non-deadly force may be used. Can only use force to regain possession if in immediate pursuit of the taker.

40
Q

Crime Prevention/Cops

A

Crime Prevention:

  1. Civilian may only use nondeadly force to the extent reasonably necessary to prevent felony or breach of peace. Deadly force may be used only if it appears reasonably necessary tp terminate or prevent a dangerous felony.

Arrest:

  1. Cops: Nondeadly force reasonably necessary to effectuate an arrest. Deadly force only if believe criminal will escape AND threat to life or bodily harm. Bystander summoned to help has the same powers as cop and takes shelter.
  2. Civilian: Nondeadly force if a crime was in fact committed and the private person has reasonable grounds to believe the person arrested in fact committed the crime. Deadly force only to prevent escape of person who ACTUALLY committed felony and person reasonable believes that the suspect threatens death or great bodily harm.
41
Q

Resisting Arrest

A

Nondeadly force may be used to resist an improper arrest. Deadly force may be used where one does not know the persona arresting him is an officer.

42
Q

Defense: Necessity

A

Available where reasonably necessary to avoid an imminent and greater injury to ones self or society.

Exception:

  1. Death of another.
  2. Where at fault in creating the circumstance.
43
Q

Defense: Duress

A

Defense to crimes OTHER THAN INTENTIONAL HOMICIDE where D believed a third party would inflict great bodily harm or death upon him or a member of his family if D did not act.

Some states/MPC allow for duress where significant threat to property.

44
Q

Defense: Mistake or Ignorance of Fact

A

Only defense where it shows the D lacked state of mind required for the crime.

  1. If offered to negate specific intent it need not be a reasonable mistake
  2. Must be reasonable for every other state of mind.
45
Q

Mistake/Ignorance of Law

A

Not defense generally, however may negate crimes requiring certain mental state.

most likely to occur when relying on professional advice.

46
Q

Consent

A

Only if freely given, capable of consenting, and no fraud used to obtain consent.

Rape, minor assaults and batteries, etc.

47
Q

Entrapment

A

Criminal design originates with Cops and the D was not predisposed to commit the crime prior to police contact. Not available of Cops just provide the opportunity.

48
Q

Battery

A

Elements:

  1. Unlawful application of force;
  2. To another; and
  3. Resulting in bodily injury or offensive touching.

A Battery can be but NEED NOT BE intentional.

49
Q

Aggravated Battery

A

Elements:

  1. Battery with a deadly weapon
  2. Battery resulting in serious injury; or
  3. Battery of a child, woman, or cop.

felony

50
Q

Assault

A

Elements:

  1. Attempt to commit a battery; OR
  2. Intentional creation OTHER THAN BY MERE WORDS of a reasonable apprehension in the mind of the victim of imminent bodily harm.
51
Q

Common Law Murder

A

Types:

  1. Intent to kill
  2. Intent to inflict great bodily injury (results in death)
  3. Reckless indifference to an unjustifiably high risk to human life (abandoned and malignant heart); Or
  4. Intent to commit a felony.
52
Q

Common Law Voluntary Manslaughter

A

Killing that would have been murder but for the existence of adequate provocation. Provocation is adequate only if:

  1. Sudden and intense passion that causes a reasonable person to lose control;
  2. Was in FACT provoked;
  3. No sufficient time to cool off; AND
  4. The D in fact did NOT cool off.
53
Q

Common Law Manslaughter (Imperfect Self Defense)

A

Recognized where

  1. The D was at fault in starting altercation; or
  2. The D unreasonably but honestly believed in necessity of deadly force.
54
Q

Common Law Involuntary Manslaughter

A
  1. Killing with criminal negligence (MPC); or
  2. In some states: during the commission of an unlawful act (i.e., a misdemeanor or felony not included in the ambit of the felony murder rule).

DISTINGUISH from abandoned and malignant heart which requires HIGH risk of death, while involuntary manslaughter based on recklessness requires ONLY a SUBSTANTIAL risk.

55
Q

First Degree Murder

A

Specific intent, premeditated killing.

56
Q

First Degree Felony Murder

A

Killing committed during the commission of an ENUMERATED felony (i.e., one of a specific number). Usually burglary, arson, rape, robbery, kidnapping, usually has to be dangerous.

NOT THE SAME AS FELONY MURDER

57
Q

Felony Murder

A

Any death caused in the commission of, or in an attempt to commit, a felony. Malice is implied from the intent to commit the underlying felony.

Limitations:

  1. D must have committed or attempted to commit the underlying felony (defense to underlying felony also a defense to felony murder).
  2. Felony must be DISTINCT from the killing itself. (e.g., robbery or arson, not a battery that leads to death).
  3. Death must have been a FORESEEABLE RESULT.
  4. Death must have been caused before the D’s immediate flight from the felony. I.e., when D reaches a place of safety it cuts off the chain of responsibility.
  5. Usually not liable when a co-felon is killed as a result of resistance from the felony victim or police.
  6. Proximate cause liability for the deaths of innocent victims caused by someone other than a co-felon. OR agency theory where it must have been caused by felon or his agent.
58
Q

Causation

A

D’s conduct must be both the cause-in-fact and proximate cause of victim’s death.

Cause in Fact: the ‘but for’ cause.

Proximate Cause: a natural and probable consequence of the conduct.

Acts that hasten an inevitable result is still a legal cause of that result. Simultaneous acts of two or more persons may be independently sufficient causes of a single result.

59
Q

Year and a Day Rule/Intervening Acts

A
  1. After a year and a day it used to be you couldn’t be responsible for the death.
  2. Where intervening act is outside the foreseeable sphere of risk created by the Defendant. The third party’s negligence medical care and victim’s refusal of medical treatment for religious reasons are foreseeable and DO NOT COUNT.
60
Q

False Imprisonment

A
  1. Unlawful confinement without valid consent.

MPC requires it interfere substantially with a victim’s liberty.

61
Q

Kidnapping

A

Unlawful confinement of a person that involves either:

  1. Some movement of the victim;
  2. Concealment of the victim in a secret place.
62
Q

Rape

A
  1. Force
  2. Threat of force
  3. Incapable of consenting
  4. Fraud that the act is not intercourse.
63
Q

Larceny Elements

A
  1. A taking
  2. And carrying away (asportation)
  3. Of tangible personal property
  4. Of another
  5. By trespass; and
  6. With intent to permanently deprive.
64
Q

Larceny: Possession/Bailee

A

Must be taken from the custody or possession of ANOTHER.

Where the bailee has possession, usually only embezzlement. Can be larceny if they ‘break bulk’ by opening a closed container and take the property.

65
Q

Larceny: Intent to Permanently Deprive

A

Must occur at the time of the taking.

  1. Intent to create substantial risk of loss is sufficient.
  2. Not sufficient where you believe it is yours or kept as repayment of a debt or to BORROW.
  3. Maybe sufficient (i) if they intend to pay for the goods (if the goods were NOT for sale); or (ii) intends to collect a reward from the owner (no intent to return ABSENT the reward).

LOOK AT WHEN PROPERTY WAS TAKEN.

66
Q

Larceny: Continuing Trespass

A

Where you take without intent to permanently deprive, but then decide to keep it, you are guilty of larceny WHEN you decide to keep it.

Does not apply if the ORIGINAL TAKING was not wrongful.

67
Q

Embezzlement

A
  1. Fraudulent;
  2. Conversion;
  3. Of personal property;
  4. Of another;
  5. By a person in lawful possession of that property.

Misappropriation while in your lawful possession.

Exception:

  1. Intent to restore the EXACT SAME PROPERTY it is not embezzlement. Anything else is. Do not be fooled when you take $$$ and replace with equal value of $$$.
  2. Exercise of claim of right.
67
Q

Embezzlement

A
  1. Fraudulent;
  2. Conversion;
  3. Of personal property;
  4. Of another;
  5. By a person in lawful possession of that property.

Misappropriation while in your lawful possession.

Exception:

  1. Intent to restore the EXACT SAME PROPERTY it is not embezzlement. Anything else is. Do not be fooled when you take $$$ and replace with equal value of $$$.
  2. Exercise of claim of right.
68
Q

False Pretenses

A
  1. Obtaining title;
  2. To personal property of another;
  3. By an intentional false statement; and
  4. With intent to defraud the other.

Actual successful deception required.

Distinguish from larceny by trick which just tricks the person to give up mere custody.

69
Q

Robbery

A
  1. A taking
  2. Of personal property of another
  3. From the other’s person or presence
  4. By force or threats of immediate death or physical injury; and
  5. With the intent to permanently deprive him of it.
70
Q

Receipt of Stolen Property

A
  1. Receiving possess and control;
  2. Of stolen personal property;
  3. Known to have been obtained in a criminal manner
  4. By another person
  5. With the intent to permanently deprive the owner of it.

Must be stolen AT THE TIME D receives it. No entrapment. But you CAN still be convicted of attempt.

71
Q

Forgery

A
  1. Making or altering
  2. A writing
  3. So that it is FALSE (not a misrepresentation)
  4. With intent to defraud.

Uttering a Forged Instrument:

  1. offering as genuine;
  2. an instrument;
  3. that may be the subject of forgery and is false;
  4. With intent to defraud.
72
Q

Malicious Mischief

A
  1. The malicious
  2. Destruction
  3. Of property of another.

No ill will or hatred required, just requires intention to damage or destroy.

73
Q

Burglary

A
  1. Breaking
  2. Entry
  3. OF A DWELLING
  4. Of another.
  5. At NIGHTIME.
  6. With intent to commit a felony in the structure.

Intent to commit felony must be present AT THE TIME OF ENTRY. Not later acquired intent.

74
Q

Arson

A
  1. Malicious
  2. Burning
  3. OF THE DWELLING
  4. Of another.

Mere charring is often sufficient.

MBE often assumes it applies to other structures.

75
Q

Perjury/Subordination of Perjury

A
  1. Intentional taking of a false oath in regard to a material matter.
  2. Procuring the aforesaid.

Josh's MBE Cards (9 decks)

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