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Bar Exam (Austin) > Criminal Law > Flashcards

Criminal Law Flashcards

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1
Q

Physical Act and examples of bodily movements that do NOT qualify for criminal liability

A

Defendant must have performed voluntary physical act or failed to act

Examples of bodily movements that DO NOT qualify for criminal liability include:
o Conduct that is not the product of the person’s own volition
o A reflexive or convulsive act
 Seizure
o An act performed while unconscious or asleep

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2
Q

Legal Duty to Act?

A

There is no general good Samaritan law requiring people to help others in trouble unless he has a duty to do so – no matter how easy it would have been to render help!!

Duty to Act?
- by statute (requirement to file a tax return)
- by contract (ON DUTY lifeguard or nurse)
- relationship between parties (parents to child)
- voluntary assumption of care by D for the victim
- D created the peril for the victim

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3
Q

Specific Intent Crimes and the 2 defenses

A

SCALE FR BF
S - Solicitation
C - Conspiracy
A - Attempt
L - Larceny
E - Embezzlement
F - False Pretenses
R - Robbery
B - Burglary
F - Forgery

and of course First Degree Premeditated Murder

Two Defenses to Specific Intent Crimes
- Voluntary Intoxication
- Unreasonable mistake of fact

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4
Q

Malice Crimes and the intent required

A

Common Law Murder (2nd degree murder) AND Arson

Intent - reckless disregard of obvious or high risk that a particular harmful result will occur

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5
Q

General Intent Crimes

A

D has awareness of all factors contributing to the crime

All other crimes that do not require specific intent, malicious intent, or are not strict liability crimes…

Examples -> Battery, rape, kidnapping, false imprisonment…

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6
Q

Strict Liability Crimes and the intent to do

A

Selling alcohol to minors and statutory rape

No mens rea requirement… D is simply guilty by just committing the act

Exam Tip
If the crime is in the administrative, regulatory, or morality area and there are no adverbs in the statute such as “knowingly,” “willfully,” or “intentionally,” then the statute is meant to be a no intent crime of strict liability

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7
Q

MPC Fault Standards
Purposely ->
Knowingly ->
Recklessly ->
Negligently ->

A

P -> Conscious object to engage in proscribed conduct
K -> Awareness that conduct is of a particular nature or will cause a particular result
R - Conscious disregard of a substantial and unjustifiable risk
N -> Failure to be aware of a substantial and unjustifiable risk

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8
Q

Transferred Intent

A

Defendant intended harm to a different victim or object

Applies to homicide, battery, and arson

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9
Q

Common Law Parties to a Crime

A

Principals in the 1st Degree
o Persons who engage in act that constitute the crime
Principals in the 2nd Degree
o Persons who aid, advise, or encourage and are present
Accessories Before the Fact
o Persons who assisted or encouraged but were not present
Accessories After the Fact
o Persons who, with knowledge other committed felony, assisted them to escape
arrest or punishment

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10
Q

Modern Statutes Parties to a Crime

A

Principal = one who actually engaged in the act that causes the criminal result

Accomplice = one who aids, advises, or encourages the principal in the commission of crime

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11
Q

Withdrawal from Accomplice Liability - 3 elements

A

Must occur BEFORE crimes becomes unstoppable
RAN
1. Repudiate encouragement
2. Attempt to neutralize any assistance
3. Notify police or taking other actions to prevent the crime

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12
Q

Conspiracy - 4 elements

A
  1. Agreement between 2 or more persons (bilateral approach)
  2. Intent to enter into agreement
  3. Intent to achieve objection (criminal or unlawful)
  4. Overt act required by majority of states (NOT REQUIRED FOR COMMON LAW)
    - Any little act, even acts or preparation

MPC
- require just a unilateral approach
Ex. -> D can be convicted of conspiracy if they conspire with one person only and that person is a police officer working undercover

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13
Q

Conspiracy - Liability for co-conspirator’s crimes, defenses, and punishment

A

Liability for co-conspirator
A conspirator can be convicted of a crime committed by another conspirator if the crimes were (1) committed in furtherance of the objectives of the conspiracy AND (2) the crimes were foreseeable

Defenses
- Factual Impossibility is NOT a defense
- Generally, Withdrawal is NOT a defense
- must perform an affirmative act that notifies ALL co-conspirators of their
withdrawal in time for the members to abandon their plans
- if crime is complete - guilty of conspiracy… don’t care if they had 2nd feelings
Punishment
Conspiracy and completely crimes are distinct offenses - NO MERGER

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14
Q

Solicitation - 2 elements

A

Asking a person to commit a crime with the specific intent that they actually commit the crime…

Can still be convicted of solicitation if the person says NO to you asking…

Merger - solicitor cannot be punished for both the solicitation and these other offenses

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15
Q

Attempt - 2 elements and a defense

A

Overt act done with specific intent to commit a crime that falls short of completing it
- Specific intent and overt act (mere preparation does not suffice)
- Tests for overt act…
- Traditional/Proximity test -> dangerously close to completion
- Modern -> Substantial step in course of conduct

Defense - Abandonment
- NOT A DEFENSE AT COMMON LAW
- Defense under MPC if voluntary and complete

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16
Q

Common Law Murder

A

Unlawful killing of a human being with malice aforethought

Malice aforethought
- Intent to kill
- Intent to inflict great bodily injury
- Reckless indifference to an unjustifiably high risk to human life
- Intent to commit a felony

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17
Q

First Degree Premeditated Murder

A

Defendant made decision to kill in cool and dispassionate manner and actually reflected on idea of killing, even if only for a very brief period

D must have acted with intent or knowledge that their conduct would cause death!
- 1st degree requires specific intent which can be negated by defense of voluntary intoxication

Many state say homicide of a police officer is 1st degree murder as long as D knows the victim is a police officer and they are acting in line of duty!

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18
Q

Felony Murder

A

Classified as First Degree Murder

-To convict, (1) that the defendant committed or attempted to commit a felony (i.e., he is factually guilty of the felony), (2) killing must take place while the felony is being committed, (3) felony must be independent of the killing, and (4) death must be a foreseeable result of the commission of the felony
- BARRK
- Burglary
- Arson
- Rape
- Robbery
- Kidnapping

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19
Q

Felony Murder - Proximate cause and agency theory

A

Proximate Cause -> Felon liable for deaths of innocent victims caused by someone other the co-felon

Agency Theory -> Felon liable only if killing committed by felon or agent

20
Q

Second Degree Murder

A

Killing that is done with a depraved heart (reckless disregard) or any murder that is not first degree murder :)

21
Q

Voluntary Manslaughter

A

Killing that would be murder but for the existence of adequate provocation

Adequate Provocation ->
1. Provocation would arouse sudden and intense passion in mind of ordinary person
causing them to lose self-control
- Exposure to a threat of deadly force, finding your spouse in bed with
another, or being a victim of serious battery
2. D was in fact provoked (lost control)
3. No time for reasonable person to cool off
4. D in fact did not cool off

22
Q

Involuntary Manslaughter

A

TWO TYPES
- Killing committed with criminal negligence (or recklessness under MPC)
- Killing committed during commission of unlawful act

Negligence
Requires a greater deviation from the reasonable person standard that is required for civil liability; the defendant’s behavior must be a substantial deviation from the standard of care that a reasonable person would have exercised in the same situation

23
Q

Abandoned and Malignant Heart Murder (Common Law)

A

Involves a high risk of death while involuntary manslaughter based on recklessness requires only a substantial risk

24
Q

Causation

Cause-in-fact

Proximate Cause

A

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

Cause-in-Fact
- D’s conduct is cause-in-fact of the result if the result would not have occurred BUT FOR the D’s conduct

Proximate Cause
- Natural and probable consequence of the conduct
- Superseding factors break the chain of proximate causation

3rd Party’s negligent medical care and the victim’s refusal of medical treatment for religious reasons are both foreseeable risks, so the defendant would be liable!!

25
Q

Battery

and

Aggravated Battery

A

Unlawful application of force to the person of another resulting in either bodily injury or an offensive touching
- ACTUAL TOUCHING OCCURS***
- General Intent Crime!!!!!
- Does not have to be intentional

AG
- Battery with a deadly weapon
- Battery resulting in serious bodily harm and
- Battery of a child, woman, or police officer

26
Q

Assault

and

Aggravated Assault

A

Assault - SPECIFIC INTENT CRIME
- Attempt to commit battery
- Intentional creation (other than by mere words) of reasonable apprehension of
imminent bodily harm
- NO ACTUAL TOUCHING OCCURS***

Aggravated Assault
- Use of deadly or dangerous weapon OR
- With the intent to rape, maim, or murder

27
Q

False Imprisonment

A

Unlawful confinement of a person without valid consent
o MPC requires the confinement must “interfere substantially” with the victim’s liberty
o It is not confinement to simply prevent someone from going where they desire to
go, as long as alternative routes are available to them

28
Q

Kidnapping

and

Aggravated Kidnapping

A

Unlawful confinement of a person that involves either:
o (1) some movement of the victim, or
o (2) concealment of the victim in a “secret” place

AK
Includes kidnapping for ransom, kidnapping for the purpose of committing other crimes, kidnapping for offensive purpose, and child stealing (the consent of a child to their detention or movement is not of importance because a child is incapable of giving valid consent)

29
Q

Larceny

A

Specific Intent Crime
- A taking
- and carrying away
- of tangible personal property
- of another
- by trespass
- with intent to permanently deprive

30
Q

Embezzlement

A

Specific Intent Crime
- The fraudulent
- conversion
- of personal property
- of another
- by a person in lawful possession of that property

31
Q

False Pretenses

and

Larceny by Trick

A

Specific Intent Crime
- Obtaining title (ownership)
- To personal property of another
- By an intentional false statement of a past or existing fact
- With intent to defraud the other

Same as above except obtaining custody or possession of the property = larceny by trick

32
Q

Robbery

A

Specific Intent Crime
- A taking
- Of personal property
- From the other’s person or presence
- By force or threats of immediate death or physical injury
- With the intent to permanently deprive them of it

33
Q

Extortion

A

Obtaining property by means of threats or exposing information

34
Q

Receipt of Stolen Property

A
  • Receiving possession and control
  • Of stolen personal property
  • Known to have been obtained in a manner constituting a criminal offense
  • By another person
  • With the intent to permanently deprive the owner of their interest in it
35
Q

Forgery

A

Specific Intent Crime
- Making or altering
- a writing with apparent legal significance
- so that it is false
- with intent to defraud

36
Q

Burglary at Common Law and Modern Statutes

A

Specific Intent Crime
- A breaking
- And entry (any part of body enters into the house)
- Of a dwelling (used for sleeping purposes)
- Of another
- At nighttime
- With the specific intent to commit a felony in the structure

Modern Statutes
- Eliminate many of the “technicalities” of common law burglary, including the
requirements of a breaking, that the structure be a dwelling, that the act occur at
nighttime, and the intent be to commit a felony (misdemeanor) is enough

37
Q

Arson at Common Law and Modern Statutes

A
  • The malicious (reckless disregard)
  • Burning
  • Of the dwelling
  • Of another

Modern statutes
- Expands criminal liability
- Include damage caused by explosion, and expanded the types of property that may be destroyed to include commercial structures, cars, trains, etc…

Damages Required
- Scorching (blackening by smoke or discoloration by heat) is not sufficient
- Charring is sufficient

38
Q

Insanity Defenses

M’Naghten

Irresistible Impulse

Durham Test

ALI or MPC Test

A

Defense to ALL crimes

M’Naghten -> D does not know right from wrong or does not understand his actions

Irresistible Impulse -> unable to control their actions or conform their conduct to the law

Durham (rare bc only New Hampshire) -> but for the mental illness, D would not have done the act

ALI or MPC -> lacked substantial capacity to either (1) appreciate the criminality of their conduct OR (2) conform their conduct to the requirements of law

39
Q

Self-Defense -> Nondeadly force

A

Person without fault may use such force as person reasonably believes is necessary to protect themselves from imminent use of unlawful force

40
Q

Self-Defense -> Deadly force

A

Person may use deadly force in self-defense if person
1. Is without fault
2. Is confronted with unlawful force
3. Reasonably believes they are threatened with imminent death or great bodily harm

Majority says no duty to retreat!

41
Q

Self-Defense -> Defense of others

A

Right to defend others if D reasonably believes person has right to use force in own defense
- Generally, no need for a special relationship

42
Q

Defense of Duress

A

Defense to crime, other than intentional homicide, that D reasonably believed another person would imminently inflict death or great bodily harm if D did not commit crime

43
Q

Defense of Necessity

A

Defense that D reasonably believed commission of crime was necessary to avoid imminent and greater injury to society

This test is objective

44
Q

Defense of Mistake or Ignorance of Fact

A

Relevant to criminal liability if it shows D lacked state of mind required for crime

Specific intent a Mistake can be unreasonable

Any other state of mind a Mistake must be reasonable

45
Q

Defense of Mistake or Ignorance of Law

A

Generally, NOT a defense that D believed that their activity would not be a crime, even if that belief was reasonable and based on the advice of an attorney

46
Q

Defense of Entrapment

A

Occurs if the intent to commit the crime originated not with the defendant BUT with law enforcement officers
- 1. Criminal design originated with law enforcement
- 2. D not predisposed to commit crime

Undercover officer -> discuss crime of entrapment -> then 99.9% of time say Entrapment is not a valid defense because almost always the Defendant was going to commit crime anyways!

Bar Exam (Austin) (17 decks)

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