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Michigan Bar Questions > Criminal Law > Flashcards

Criminal Law Flashcards

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1
Q

Homicide - Michigan

A

First degree murder:

  1. defendant caused the death
  2. defendant intended the death
  3. defendant premeditated the death
  4. Defendant’s actions were deliberate
  5. The death is not justified or excused
Second Degree Murder: 
1. defendant caused the death 
2. defendant acted with malice 
3. the death is not justified or excused 
MALICE: 
1. intent to kill (need not be premed) 
2. intent to do great bodily harm 
3. creating a high risk of death/bodily harm - KNOWING that death/bodily harm is a likelihood

Voluntary manslaughter:

  1. defendant caused the death
  2. defendant acted on impulse
  3. the death resulted from emotional excitement

Involuntary manslaughter:

  1. defendant caused the death
  2. defendant was grossly negligent
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2
Q

Self-Defense

A

A person may use deadly force if he honestly (subjective) and reasonably (objective) believes that that he is in danger of serious bodily harm/death AND that deadly force is required.

Michigan is a stand your ground state and does not require retreat.

Self-defense is not allowed if the defendant is the FIRST AGGRESSOR.

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3
Q

Intoxication (Defense)

A

Voluntary intoxication is not a defense to murder.

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4
Q

Duress (Defense)

A

Defendant reasonably (objective) feared that if he did not perform the crime, he or another would suffer imminent death/harm.

DURESS CANNOT BE USED AS A DEFENSE TO HOMICIDE.

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5
Q

Homicide - Common Law

A

Common Law does not distinguish between the degrees of murder.

Common law homicide is an unlawful killing with malice aforethought.

Malice is:

  1. intent to kill (need not be pre-meditated)
  2. Intent to cause serious bodily harm
  3. depraved-heart murder
  4. felony murder (murder arising out of an inherently dangerous felony - BARRK)
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6
Q

Homicide - MPC

A

First Degree Murder:
Murder committed with premeditation and deliberation
OR
Felony Murder in BARRK felonies (in most jurisdictions)

Second degree murder: homicide committed with the necessary malicious intent 
Malice is 
1. intent to kill 
2. intent to do great bodily harm 
3. depraved-heart murder 
4. felony murder for non-BARRK felonies
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7
Q

Factual impossibility

A

Factual impossibility may be a defense to attempt crimes ONLY IF the defendant KNEW of the impossibility

e.g. D shoots V, believing that V is sleeping, but V is already dead.

V is guilty of ATTEMPTED murder because actual impossibility (causing the death) is not a defense

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8
Q

Legal impossibility

A

Legal impossibility may be a defense to attempt crimes if the act attempted is not a crime.

This defense is valid even when the state has done away with the impossibility defense.

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9
Q

Larceny

A

Trespassory
Taking
And Carrying away (but note that just holding the item is enough to “carry away”)
of personal property
of another
with the SPECIFIC intent to permanently deprive the owner (note that return to owner does not vitiate intent had upon trespassory taking)

Michigan also has a separate crime: Larceny by Person - same as larceny but the property is taken from a person or her immediate control/presence. No force is required.

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10
Q

Accomplice liability - Michigan

A

Michigan has abolished the distinction between a principal and an accomplice. Any would-be accomplice is liable and can be prosecuted as if he is a principal in the crimes.

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11
Q

Merger

A

The doctrine of merger prevents punishing the defendant for certain inchoate crimes in addition to the actual crime.

This includes solicitation, attempt (if the crime was completed)

Michigan determines whether the doctrine of merger should apply with the same elements test.

E.g. you cannot be guilty o murder and solicitation of murder

You cannot be guilty of attempted murder and murder

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12
Q

Solicitation

A

Enticing/Encouraging/Requesting/Commanding another person
To commit a crime
With the intent that the other person commits the crime (Specific intent - FIAT - CATS)

Michigan requires that the request also have an offer to give/promise to give/actually give money/anything of value OR to forgive a debt/obligation. (I.e. Michigan requires that the request be in exchange for a benefit)

NOTE: it is not solicitation if the defendant is a member of the class the statute is designed to protect (e.g. a minor who solicits sex is not guilty of soliciting statutory rape or even of the ultimate statutory rape)

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13
Q

Renouncing Solicitation

A

Common Law: Impossible to renounce

MPC: voluntary renunciation may be a defense IF the defendant thwarts the commission of the actual crime

Michigan: Defendant must prove renunciation by a preponderance of the evidence:

  1. Defendant notified the solicited actor of renunciation
  2. Defendant gave timely warning/cooperation to law enforcement
  3. Solicited crime did not occur
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14
Q

Conspiracy

A

An Agreement
Between Two or More Persons
To accomplish an unlawful purpose
With the Intent to accomplish that purpose (Specific intent - FIAT - CATS)

Majority rule/federal law/MPC:
overt act is required in furtherance of the conspiracy
unilateral conspiracy theory

Common law (MICHIGAN):
no overt act
bilateral conspiracy theory

Michigan:
No overt act required

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15
Q

One Man Conspiracy Rule

A

If the alleged co-conspirators are acquitted of conspiracy at the same trial, then one defendant cannot be guilty of conspiracy.

If the alleged co-conspirators are acquitted of conspiracy at a different trial, then one defendant can be guilty of conspiracy if the prosecution meets its burden

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16
Q

Withdrawing from Conspiracy

A

Common law: withdrawal is not a defense to conspiracy (MICHIGAN follows this rule).

Federal rule/majority rule:
conspiracy does not come into existence until an overt act is committed, so AFTER the agreement but BEFORE the act, a person must 1. communicate notice to withdraw to putative co-conspirators and 2. provide notice to the law enforcement.

If the overt act has occurred, then withdrawal is impossible.

MPC/Minority rule: subsequent withdrawal is only possible if the defendant acts to voluntarily thwart the success of the conspiracy.

17
Q

Attempt

A
  1. substantial step towards commission of a crime (mere preparation is insufficient)
  2. specific intent to commit the crime (FIAT - CATS)
    (applies even if the attempted crime is a general intent or malice crime)

Michigan requires that a substantial step be direct movement toward COMMISSION of the crime. Merely making arrangements is preparation which does not qualify as a substantial step.

18
Q

Abandoning Attempt

A

Common law: once a substantial step has been taken toward an offense, abandonment is impossible.

Michigan: defendant must prove by a preponderance of the evidence that he VOLUNTARILY and COMPLETELY renunciated his criminal attempt:

  1. avoided the commission by abandoning his efforts
  2. Took further affirmative steps to prevent the commission (if mere abandonment is insufficient to avoid the commission)

Unanticipated difficulties/resistance compelling abandonment is not voluntary.

19
Q

Aiding and Abetting - Michigan

A

Accomplice liability is known as aiding and abetting in Michigan.

A defendant aided and abetted a crime if:

  1. the crime charged was committed by the defendant (or some other person)
  2. the defendant performed the acts OR gave encouragement that assisted in the commission of the crime
  3. defendant INTENDED the commission of the crime OR had KNOWLEDGE that the principal intended its commission
20
Q

Arson

A

Malicious
Burning (more than smoke damage - damage to structure is required)
Of the dwelling
Of another

Michigan has established five degrees of arson:

  1. multi-unit building or physical injury to the individual
  2. Malicious or willful burning of a dwelling or its contents (need not be the structure of the dwelling)
  3. willful or malicious burning of any building
  4. willful an malicious burning of personal property less than $20,000
  5. Misdemeanor - intentional damage or destruction of personal property of $1,000 or less
21
Q

Burglary

A

Breaking (use of force - slight like opening a door or hard like breaking the door; non-consensual or consent gleaned by fraud/threat or exceeding scope of consent)
And Entering (any part of the body)
Of the Dwelling
Of Another
At Nighttime
With the specific intent to commit a felony therein
(Failure to commit the intended felony does not chang the intent had upon breaking and entering - similarly adopting intent to commit a felony once in is insufficient)

Michigan has 2 distinct crimes rather than 1 crime for burglary:

  1. Home invasion - defendant breaks and enters a dwelling and commits OR intends to commit a felony while entering, there, or leaving
  2. Breaking and entering other structures - a lesser crime where the defendant breaks and enters non-dwellings, with the intent to commit a felony therein.
22
Q

Robbery

A

Larceny (trespassory taking and carrying away of the personal property of another with the intent to permanently deprive him)
From the person or the presence of the victim
By force or intimidation

Michigan: 
Commission of Larceny 
Committed with force or violence 
In the presence of another
(Larceny need not be completed - at any point during the attempt or completion of larceny that there may be force used qualifies as robbery)

Felony robbery requires robbery (larceny with force or violence in the presence of another) PLUS possession of a weapon, dangerous or claiming to have a weapon/dangerous object.

23
Q

Pinkerton Rule

A

Common Law:
A conspirator can be convicted for the offense of conspiracy AND all the crimes committed by other co-conspirators acting in furtherance of the conspiracy.

MPC/Minority view:
a member of a conspiracy is liable for the conspiracy and substantive crimes of his co-conspirators IF he aids and abets the commission of those crimes.

24
Q

Agency Theory (Felony Murder)

A

Majority:
A defendant is only responsible for the foreseeable deaths caused by defendants co-felons/agents. He is not liable for the deaths caused by others, like victims, third parties, or police.

Minority:
A defendant is responsible for deaths caused by his co-felons AS WELL AS deaths caused by those who resist the crime, victims, and police officers (but not liable for a police officer killing the co-felon).

25
Q

Carjacking

A
  1. Use of force, violence, threat, or fear
  2. in the course of larceny of a vehicle
  3. taken from a lawful possessor/user of the vehicle

Larceny is a specific intent crime, meaning carjacking is also a specific intent crime.

26
Q

False Pretenses

A

False Pretenses:

  1. Defendant knowingly misrepresented a material fact
  2. Defendant had an intent to defraud
  3. Defendant, as a result, received title to another’s property.
27
Q

Strict Liability Offenses

A

Strict Liability offenses are crimes where no mens rea is required. They are disfavored. Typically, strict liability crimes will 1. implicate health/public safety and 2. have light penalties.

28
Q

Insanity Defenses

A

Four types of insanity defenses:

  1. M’Naughten (Majority):
    Mental illness prevented the defendant from EITHER understanding nature/quality of the criminal act OR knowing that his action were wrong
  2. Irresistible impulse:
    Mental illness prevented defendant from controlling actions OR conforming conduct tot he law
  3. Durham:
    Mental illness caused the criminal actions
  4. MPC:
    Mentall illness prevented Defendant from EITHER appreciating the criminality of the act OR conforming conduct to law.
29
Q

Forgery

A

Forgery requires making a false document of apparent LEGAL significance

If the forged document is of apparent SOCIAL significance, then it may be FALSE PRETENSES IF:

  1. knowingly misrepresented a material fact
  2. Did so with specific intent to defraud
  3. obtained title to another’s property or money
30
Q

Common Law Felonies

A

Common law Felonies are MR. & MRS. LAMB

Murder
Rape

Manslaughter
Robbery
Sodomy

Larceny
Arson
Mayhem
Burglary

31
Q

Receiving Stolen Property

A

Receiving Stolen Property:

  1. Defendant took possession of or had control over stolen personal property
  2. Defendant knew the property was stolen
  3. Defendant specifically intended to permanently deprive the owner of it

If the property is recovered by the police, it is no longer considered stolen.

Michigan Bar Questions (17 decks)

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