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BAR PREP BASIC > Criminal Law > Flashcards

Criminal Law Flashcards

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1
Q

Who is the principal

A

The person who actually commits the actus reus of the crime

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2
Q

Who is an accomplice

A

An accomplice is a person who assists or encourages the principal with the intent that the crime is committed. Tip: mere presence at the scene is not enough.

o Must intend to help the principal commit the crime and intend that the principal commit the crime that is charged

Note 1: Mere knowledge that another person intends to commit a crime is not enough to make a person an accomplice. The accomplice must act with the
intent that the principal commit the crime that is charged.

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3
Q

Accomplice Liability

A

an accomplice is liable for all crimes committed that he aids or encourages and all “natural and probable results” of the crime that he intends to assist.

he accomplice lends his truck to the principal to commit a
burglary. During the burglary, the principal commits a battery against a security guard. The accomplice may be liable for the burglary and also the battery if it is a natural and probably consequence

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4
Q

accessory after the fact

A

an accessory after the fact is a person who
knowingly assists a person who has committed
a felony with intent to help him avoid arrest,
trial, or conviction

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5
Q

How can an accomplice withdraw? (3 elements)

A

To legally withdraw (and avoid liability for the substantive crime), the accomplice must:

  1. Repudiate prior aid;
  2. Do all that is possible to countermand prior assistance; and
  3. Do so before the chain of events is in motion and unstoppable
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6
Q

The insanity tests

A

M’Naghten Rule
Irresistible Impulse Test
Durham Rule
Model Penal Code Test

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7
Q

M’Naghten Rule

A

One of the Insanity Tests
The defendant is not guilty if, because of a mental disease or defect, the defendant did not know either
(i) the nature and quality of the act, or
(ii) the wrongfulness of the ac

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8
Q

Irresistible Impulse Test

A

One of the insanity tests

The defendant is not guilty if a mental disease or defect prevented him from being able to conform his conduct to the law.

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9
Q

Durham Rule

A

One of the insanity Tests

The defendant is not guilty if the crime would not have been committed but for the mental disease or defect.

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10
Q

Model Penal Code Test for Insanity

A

The defendant is not guilty if a mental disease or defect either prevents the defendant from knowing the wrongfulness of the conduct or prevents the defendant from being able to conform his conduct to the law.

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11
Q

What does a Voluntary intoxication defense do?

A

a. Voluntary Intoxication
 Involves the voluntary ingestion of an intoxicating substance

 It is a defense to specific intent crimes if the intoxication prevents the formation of the required intent.

 Voluntary intoxication is not a defense to crimes involving malice, recklessness, or negligence, or for strict-liability crimes

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12
Q

Involuntary Intoxication Defense

A

b. Involuntary Intoxication

 Unknowingly or forced to ingest an intoxicating substance

 It is a defense to both general and specific intent crimes, as well as malice crimes when the intoxication serves to negate an element of the crime

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13
Q

Causation in homicides

A

basically torts version, Actual but for cause, if multiple causes needs to be substantial factor,

need proximate cause, and intervening causes and superseding causes can break that chain.

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14
Q

Common law murder (basic definition)

A

At common law, murder is the unlawful killing of a human being committed with malice aforethought

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15
Q

How to show “malice aforethought”

A

“Malice aforethought” includes the following mental states:

o Intent to kill

o Intent to inflict serious bodily injury

o Reckless indifference to an unjustifiably high risk to human life (depraved heart)

o Intent to commit certain felonies (felony murder

if common law murder is tested, you should always discuss the intent to kill, intent to inflict serious bodily injury, and reckless indifference theories. Felony murder should only be discussed in certain situations (see
notes below)

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16
Q

Felony Murder Rule and BARKK

A

Under the FMR, a defendant can be found guilty for the unintended but foreseeable killing that is proximately caused by or during the commission or attempted commission of an inherently dangerous felony.

o Traditionally, burglary, arson, robbery, rape and kidnapping are considered to be inherently
dangerous felonies.

BARKK

To earn full credit, you must state the underlying felony that
occurred and analyze the elements of the felony. Then analyze the felony murder rule

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17
Q

Defenses to Felony Murder Rule

A

b. Death of a bystander (Majority Rule)

 If the death was unforeseeable the FMR will not apply

 Point of Safety: If the felony is complete and the defendant has reached a place of safety, the FMR will not apply.

.

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18
Q

Death of a Bystander while committing a felony

A

b. Death of a bystander, (MAJORITY)
A defendant will not be liable for the death of a bystander caused by a police officer or as a result of resistance by the victim of the felony because neither person is the felon’s agent.

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19
Q

Death of a co-felon, is the defendant liable?

A

A defendant will not be liable for the death of a co-felon if a victim or police officer kills the co-felon

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20
Q

1st degree murder elements with explanations

A

An intentional killing with premeditation and deliberation (e.g., poisoning someone)

Exam Tip 5: Remember to use common law murder unless the prompt tells you that the jurisdiction uses first and second-degree murder.

a. Premeditated
A murder is premeditated if the defendant had enough time to plan and reflect on the idea of the killing. The amount of time needed for premeditation may be brief, a mere second of reflection is sufficient.

b. Deliberate
The defendant made the decision to kill in a cool and dispassionate manner

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21
Q

second degree murder

A

Exam Tip 6: Second-degree murder is the statutory version of common law murder.

o Second-degree murder is a homicide committed with the necessary malicious intent:

 The intent to kill;

 The intent to do great bodily injury; or

 Depraved-heart murder

(with malice aforethought)
(1) Extreme recklessness (e.g., D shoots his gun in a crowded room without intent to kill).
(2) Intentional infliction of great bodily harm and death results (e.g., D cuts someone’s legs off without
intent to kill him but he dies).
(3) Catchall: D is not guilty of first-degree murder but acts with malice; D can intend to kill (e.g., D shoots and kills someone because he is enraged after being insulted by them).

Tip: oftentimes this third category of second-degree murder looks like voluntary manslaughter but D is not adequately provoked.

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22
Q

Voluntary Manslaughter, elements and explanations

A

First degree murder can be mitigated down to voluntary manslaughter.

o Voluntary manslaughter is murder committed in response to adequate provocation.

a. Provocation

 Objective Element: A reasonable person would have been provoked by the victim’s actions.
• Words are generally not enough provocation
• Sufficient provocation—discovery of adultery, a serious battery

 Subjective Element: The defendant must also have actually been provoked.

b. Time to Cool Off
 Objective: There must not have been sufficient time for an ordinary (reasonable) person to cool off.

 Subjective: The defendant also must not have actually cooled off.

Tip: mere words do not count as adequate provocation under the majority view.

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23
Q

Involuntary Manslaughter elements and explanation

A

Involuntary manslaughter is an unintentional homicide committed with criminal negligence or during an unlawful act.

a. Criminal Negligence

 Grossly negligent action (or inaction when there is a duty to act) that puts another person at a significant risk of serious bodily injury or death

 Model Penal Code: In addition to grossly negligent action, the defendant must also have been actually aware of the risk his conduct posed.

b. Unlawful Act
 The defendant commits an unlawful act that does not rise to felony murder and a death
occurs as a result

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24
Q

Misdemeanor Manslaughter

A

A killing during a misdemeanor or felony that does not qualify for felony murder (misdemeanor manslaughter rule)

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25
Q

Criminal Battery Elements

A
  1. The intentional unlawful application of force to another person
  2. that causes bodily harm to that person, or constitutes an offensive touching
26
Q

Criminal Assault

A
  1. An attempt to commit a battery, or
  2. intentionally placing another in apprehension of imminent
    bodily harm
27
Q

Kidnapping

A

The unlawful confinement of a person against that person’s will coupled with either movement or concealment of that person

28
Q

Criminal False Imprisonment

A

The unlawful confinement of a person without consent. Criminals vs Civil?

29
Q

Rape

A

Unlawful sexual intercourse with a person against his/her will by force or threat of immediate force.

30
Q

Larceny elements

A

The trespassory taking and carrying away of the personal property of another, without consent, with the specific intent to permanently deprive the owner of the property at the
time of the taking

 Taking and carrying away can be met by the slightest movement.

 Intent to permanently deprive must be present at the time of the taking. (But if have property still and form requisite intent later it can apply)

31
Q

Embezzlement

A

The fraudulent conversion or misappropriation of the property of another by a person who is in lawful possession of the property

32
Q
A

o Occurs when the defendant obtains title to the property of another person through reliance of that person on a false representation of material fact made by the defendant with the intent to defraud

 False Representation: The representation must be false and must be of a material past or present fact.

• An opinion, sales talk or puffing, a prediction, or a false promise is not sufficient.

 Reliance: The victim must rely upon the false representation, and that reliance must cause the victim to pass title to the defendant.

 Intent to Defraud: The defendant must know that the representation is false and specifically intend to defraud.

33
Q

Robbery

A

A larceny by force or intimidation when the taking of property is from the victim or in his presence

Larceny + a taking from another’s person or presence + force or threat of force.

Tip: D must use force or the victim must feel fear. (If the victim is not afraid and no force is used, D cannot be liable for robbery.)

34
Q

Burglary

A

o Burglary is the breaking and entering of the dwelling of another at nighttime with the specific intent to commit a felony therein.

 Breaking: the slightest push can be sufficient

 Entering: merely crossing the threshold can be sufficient

 Specific intent to commit a felony: At the time of the breaking and entering, the defendant must have the intent to commit a felony (e.g., larceny, robbery, rape,
murder) inside the dwelling.

 A defendant who fails to commit the underlying felony may nevertheless be guilty of burglary and attempt to commit the underlying felony.

35
Q

Larceny by trick

A

D intentionally makes a false representation of material past or existing fact to obtain custody (but not title) of personal property of another.

i) Larceny
ii) Accomplished by fraud or deceit
iii) That results in the conversion of the property of another.

36
Q

Forgery

A

Forgery is the:

i) Making;
ii) Of a false writing;
iii) With apparent legal significance; and
iv) With the intent to defraud (i.e., make wrongful use of the forged document).

37
Q

extortion Common Law

A

a. Common law

At common law, extortion was the unlawful taking of money by a government officer.

38
Q

Extortion Modern approach

A

Most jurisdictions have enacted statutes that more broadly define extortion as:

the taking of money or property from another by threat.

In most jurisdictions, it is the making of threats (rather than the obtaining of the property) that is the essence of the crime. In a minority of jurisdictions, however, the accused must actually obtain the property to be guilty

39
Q

Extortion vs Robbery

A

Extortion differs from robbery in two respects:

i) The threats need not be of immediate harm, nor need they be of a physical nature (e.g., threatening future exposure of the victim’s marital infidelity); and
ii) The property intended to be taken need not be on the victim or in his presence.

40
Q

arson

A

Arson is the:

i) Malicious;
ii) Burning;
iii) Of the dwelling;
iv) Of another.

41
Q

Receiving Stolen Goods

A

Receiving stolen property is a statutory crime that requires:

i) Receiving control of stolen property;
ii) Knowledge that the property is stolen; and
iii) Intent to permanently deprive the owner of the property.

42
Q

Conspiracy (Majority Rule) Elements

A

o An agreement between two or more people to accomplish an unlawful purpose;
o With specific intent to agree and commit the criminal objective; and
o An overt act in furtherance of the conspiracy

A defendant can be convicted of conspiracy to commit a crime and the underlying crime itself (as well as any crimes committed in furtherance of the conspiracy). There is no merger doctrine with regard to conspiracy.

Example 2: A defendant can be liable for conspiracy to commit robbery and robbery itself (and any other crimes in furtherance of the conspiracy).

43
Q

Withdrawal Majority rule for conspiracy

A

Withdrawal (Majority Rule)
After there has been an agreement but before an overt act has been committed, a person
may avoid criminal liability for conspiracy.

44
Q

Attempt

A

Attempt requires a substantial step toward the commission of a crime coupled with the specific intent to commit the crime. Mere preparation is not enough.

Exam Tip 8: If a person succeeds in committing the crime, he will not be liable for the attempt and the crime itself. The doctrine of merger applies.

45
Q

How to abandonment of Crime

A

 At common law, once the defendant has taken a substantial step toward the commission of the offense, the defendant may not legally abandon the attempt to commit the crime.

 Some states do recognize voluntary abandonment as a defense to attempt. Abandonment is not voluntary if it is motivated by a desire to avoid detection.

Note 6: See outline for the discussion of merger and solicitation

46
Q

Self-Defense

A

o Self-defense is the use of reasonable force to protect oneself at a reasonable time.

 Deadly force may only be used to protect against the use of deadly force.

o Unreasonable use of force can be used as imperfect self-defense. Too much force for the circumstances may mitigate a murder charge down to voluntary manslaughter.

47
Q

Duress

A

o A third party’s unlawful threat causes a defendant to reasonably believe that the only way to avoid death or serious bodily injury to himself or another is to violate the law, and that causes the defendant to do so

o Under the majority rule, duress is not a defense to intentional homicide, but it is available for criminally negligent homicide

48
Q

Defense: Incompetency to stand trial

A

: if D is unable to understand the nature of the proceedings against him or assist his lawyer, he may be incompetent to stand trial

49
Q

Mistake of Fact Defense

A

For specific intent crimes, a reasonable or unreasonable MOF can serve as a defense.

For general intent or malice crimes, only a reasonable MOF is a defense.

For strict liability crimes, MOF is not a defense

50
Q

Mistake of law (MOL)

A

Generally, MOL is not a defense (even when relying on one’s lawyer!).

There are very narrow exceptions to this general rule.

51
Q

Necessity Defense

A

Necessity: this is a defense if D reasonably believed his criminal conduct was necessary to prevent a greater harm and is not at fault in creating the situation that required
the necessity

52
Q

Some strict Liability criminal crimes

A

Strict liability: there is no mens rea; engaging in the act is sufficient
• Statutory rape (sexual intercourse with a minor) and regulatory offenses. Tip:
examples of strict liability crimes include selling contaminated food, littering, and
vehicular traffic offenses

53
Q

Conspiracy elements, does it merge with crime, and liability of accomplices?

A

Mens Rea: The specific intent to enter into the agreement and accomplish its objectives

An agreement by two or more people to commit a crime and an overt act in furtherance of the crime (in some states).
Note: an overt act is not required at common law.

Merges with completed Crime? No. One can be convicted of conspiracy and the completed crime.

Note: D is also liable for all other crimes committed by his coconspirators so long as the crimes were foreseeable and in furtherance of the conspiracy. (Withdrawal is not a
defense but will cut off liability for any crimes committed after the withdrawal.)

54
Q

Solicitation

A
55
Q

Attempt Common Law and Majority

A
  • MPC/majority: a “substantial step” that is “strongly corroborative” of the criminal purpose.
  • Common law: D gets “dangerously close” to committing the crime

Yes. One cannot be convicted of both attempt and the
completed crime.

56
Q

Solicitation

A

The specific intent that the crime be committed

D requests, encourages, advises, or commands that
someone commit a crime

Yes. One cannot be convicted of solicitation and the completed crime.

57
Q

Durham Insanity Test

A

Def criminal actions product of mental illness

58
Q

MPC Insanity test

A

Mental illness prevents def from

1) Appreciating criminality of act OR
2) Conforming conduct to law

59
Q

Irresistible Impulse Test

A

Insanity Test

Mental illness prevented def from

1) Controlling Actions OR
2) Conforming Conduct to law

60
Q

M’Naghhten Test

A

Mental Illness prevented def from

1) Understanding nature/quality of criminal act OR
2) knowning actions were wrong

BAR PREP BASIC (17 decks)

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