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UBE Bar Exam > Criminal Law > Flashcards

Criminal Law Flashcards

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1
Q

What are the 4 types of malice mental states that can rise to common law murders?

A

1) intent to kill: defendant acted with the desire that the victim
end up dead

2) intent to inflict serious bodily injury: defendant acted with the desire that the victim
be seriously injured, and the victim dies

3) felony murder: unintended death occurred during the commission of a dangerous felony (Burglary, Arson, Robbery, Rape, or Kidnapping)

4) abandoned or malignant heart or depraved heart: defendant knew what they were doing was dangerous, but still
acted with a cavalier disregard for human life and a death resulted.

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2
Q

What are the 3 types of homicide?

A

1) common law murder
2) first degree murder
3) manslaughter

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3
Q

What are the 2 types of manslaughter?

A

1) Voluntary: intentionally killing someone while in the heat of passion

2) involuntary: criminally negligent killing or killing someone during the commission of a crime other than those covered by felony murder

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4
Q

What is larceny?

A

1) taking another’s property
2) without their consent
3) with the intent of depriving them of the property permanently

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5
Q

What is embezzlement?

A

When you receive someone’s property with their consent, but you then convert the property for your own purposes

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6
Q

what is exortion?

A

taking someone’s property by threatening them with future harm

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7
Q

Does a person have a duty to retreat before they can use deadly force in self-defense?

A

No. A minority of jurisdictions have a duty to retreat, but the majority and the common law impose no duty to retreat.

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8
Q

For what crimes can the duress defense be used?

A

All crimes other than intentional murder

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8
Q

Can you use mistake of fact defense in specific intent and general intent crimes?

A

In general intent crimes, only reasonable mistakes of fact can be used as a defense

In specific intent crimes, all mistakes of fact can be potential defenses

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9
Q

What is the necessity defense?

A

choosing the lesser of two evils in response to natural forces (ex. having to break into a store for shelter during a hurricane)

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10
Q

what is specific intent mens rea?

A

When someone commits an action for the very purpose of causing the illegal result

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11
Q

What is general intent mens rea?

A

When someone intentionally performs an illegal act

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12
Q

What are the 4 kinds of specific intent crimes?

A

FIAT
First degree murder

Inchoate crimes (conspiracy, attempt, solicitation)

Assault with intent to commit a battery

Theft-related crimes (larceny, burglary, etc.)

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13
Q

What are the 4 kinds of mental states outlined in the model penal code?

A

1) Purpose
2) Knowledge
3) Recklessness
4) Negligence

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14
Q

What are the 4 kinds of mens rea?

A

Specific intent, general intent, malice, strict liability

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15
Q

what is the purposeful mental state in regard to mens rea?

A

when the defendant’s conscious objective is to engage in the conduct or to cause a certain result

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16
Q

what is the knowledge mental state in regard to mens rea?

A

the defendant is aware that 1) their conduct is of a nature to commit a certain crime, or 2) the result is practically certain to result from their conduct

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17
Q

what is the recklessness mental state in regard to mens rea?

A

when the defendant acts with conscious disregard of a substantial and unjustifiable risk that constitutes a gross deviation from the standard of conduct
of a law-abiding person.

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18
Q

what is the negligence mental state in regard to mens rea?

A

when the defendant should be aware of a substantial and unjustifiable risk and acts in a way that grossly deviates from the standard of care of a
reasonable person in the same situation.

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19
Q

How does merger affect inchoate crimes?

A

attempt and solicitation merge if the crimes are actually completed. Conspiracy never merges

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20
Q

how does merger affect lesser-included crimes?

A

The lesser included crime will merger into the crime with the extra element, unless there are 2 separate victims. If that happens, those crimes won’t merge together.

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21
Q

What is a lesser-included crime?

A

An offense where each of its elements appears in a different
offense, but that different offense has something additional

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22
Q

What is the common law
definition of murder?

A

unlawful killing of another person with malice aforethought

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23
Q

What are the common law malice crimes?

A

common law murder and arson

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24
Q

what is the irresistible impulse test for insanity?

A

The defendant is not guilty if he lacked the capacity for self-control and free choice because mental disease or defect prevented him from being able to conform his conduct to the law.

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25
Q

Define first degree murder

A

A statutorily created offense; a deliberate and premeditated murder, or a felony murder.

25
Q

what are the elements of bribery?

A

1) payment of something for value
2) to a public official
3) for the purpose of influencing that official’s discharge of their official duties

(this is the common law definition. Modern law doesn’t require the recipient be a public official)f

26
Q

define robbery

A

assault + larceny

an unlawful taking of property from a person or in that person’s presence accomplished by using force or the threat of force

27
Q

What are the 3 parties that can be guilty of a crime?

A

1) the principal
2) an accomplice
3) an accessory after the fact

28
Q

what are the common law elements of rape?

A

1) unlawful
2) sexual intercourse
3) with a woman victim
4) against her will by force or threat of force

29
Q

what are the common law elements of conspiracy?

A

1) an agreement
2) between 2 or more people
3) to commit an unlawful act

30
Q

How does the modern law and MPC definition of conspiracy differ from the common law definition?

A

The modern law and MPC add the additional element that an overt act be taken in furtherance of the crime

31
Q

what is the common law definition of burglary?

A

1) breaking and entering
2) another person’s dwelling
3) at night
4) with the specific intent to commit a felony therein

32
Q

what is the common law definition of battery?

A

1) unlawful
2) application of force
3) to another person
4) causes a bodily harm to the that person that can be considered an offensive touching

33
Q

define kidnapping

A

1) unlawful
2) confinement of a person
3) against that person’s will
4) coupled with either a movement or hiding of that person

34
Q

What parties’ deaths can constitute felony murder?

A

1) someone who resists the underlying felony (ex. rape victim resists and rapist kills her)

2) an innocent bystander killed during the commission of the underlying felony (ex. bystander gets shot during a bank robbery)

3) In a minority of jurisdictions, bystanders who get shot by police during the underlying felony (ex. police get in shootout with bank robber and accidentally shoot a bystander. Robber is liable for felony murder)

35
Q

Can a conspirator withdraw from the conspiracy?

A

In the common law, it’s impossible to withdraw

In MPC and modern law, may only withdraw after the agreement but before an overt act has been committed, by either (i) communicating notice of his intent not to participate to the other potential co-conspirators or (ii) informing the police about the agreement.

36
Q

Is renunciation/withdrawal a defense to solicitation?

A

No

37
Q

Define solicitation

A

When someone intentionally invites, requests, or demands that another person commit a crime.

If that person agrees to commit the crime, it then transforms into conspiracy

38
Q

what is an accessory after the fact?

A

A person who aids or assists a felon to avoid apprehension or conviction after commission of the felony;

the person must know a felony has been committed, and is only liable for a separate crime.

39
Q

When is voluntary intoxication a valid defense?

A

Voluntary intoxication is a defense to a specific intent crime if the intoxication prevents the formation of the required intent. Under the MPC, it is a defense to crimes requiring a mental state of purposefully or knowingly

It cannot be used as a defense for crimes involving negligence, recklessness, or malice

40
Q

When is involuntary intoxication a valid defense?

A

Can be a valid defense to general intent, specific intent, and malice crimes when the intoxication negates the necessary mental state

41
Q

when is an accomplice liable for the principal’s crimes?

A

an accomplice is liable to the same extent as the principal for:

1) the crime for which the accomplice provided encouragement or assistance; and

2) other crimes committed by the principal that were a natural and probable consequence of the accomplice’s conduct.

42
Q

can the death of a co-felon serve as a basis for charging someone with felony murder?

A

If a co-felon is killed by a victim or police while the felons are committing a dangerous felony, the other co-felon isn’t liable for felony murder of that co-felon

However, if the co-felon is accidentally killed by the other co-felon during the dangerous felony, that can be a basis for felony murder

43
Q

what is larceny by trick?

A

When someone unlawfully obtains possession, but not title, of the property of another, with the intent to steal it, via fraud or deceit

44
Q

What’s the difference between larceny by trick and false pretenses?

A

Both involve using fraud and/or deceit in a property crime, but false pretenses is when you intentionally use fraud/deceit to obtain TITLE to the property.

Larceny by trick is when you use fraud/deceit to obtain possession of the property

45
Q

Do you need to prove that a burglar accomplished their intended felony in order to have a prima facie case for burglary?

A

No. Once they enter the dwelling of another with the intent to commit the specific felony therein, that’s enough for burglar. They don’t need to actually accomplish the felony they intended.

46
Q

Can a person be convicted of conspiracy if the other party feigned/faked agreement?

A

Depends on the jurisdiction

In a minority of jurisdictions and the common law,
no. If the other party fakes their agreement to the deal, like an undercover cop, that doesn’t rise to meet the required element for conspiracy

In the majority of jurisdictions and the MPC
if at least one person specifically intends to enter agreement, and they commit an overt act in furtherance of the crime, that’s enough for conspiracy

47
Q

When is someone guilty of “attempt” of a crime?

A

if they had specific intent to commit the crime and they took a substantial step in furtherance of the crime

48
Q

can someone withdraw/abandon an attempt of a crime?

A

In the majority of jurisdictions, no. As soon as they take that substantial step towards furthering the crime, even if they decide to withdraw, that’s still attempt

49
Q

what is the M’Naghten test for insanity?

A

defendant did not know either (i) the nature and quality of the act, or (ii) the
wrongfulness of the act, because of a defect of reason due to mental disease

50
Q

what is the Durham test for insanity?

A

the unlawful act was the product of defendant’s mental disease or defect

a “but for” test

51
Q

what is the MPC test for insanity?

A

at the time of the conduct, defendant
lacked substantial capacity to appreciate the wrongfulness of the act or to conform his
conduct to law, as a result of mental disease or defect

52
Q

Is mistake of law a valid defense?

A

Typically, ignorance of the law isn’t a defense, unless one of the 3 exceptions apply.

53
Q

What are the 3 mistake of law exceptions where it can form a valid defense?

A

1) Reliance on a high-level govt. interpretation
2) lack of notice
3) mistake of law that goes to a specific intent element (only applies to FIAT crimes)

54
Q

How do you determine whether a defendant is competent to plead guilty and/or stand trial?

A

1) whether the defendant comprehends the nature of the proceedings against them; and

2) whether the defendant has the ability to consult with a lawyer to a degree of rational understanding

if one or both of these are lacking, then the defendant isn’t competent to stand trial or enter a guilty plea.

55
Q

Define felony murder

A

An unintended but foreseeable killing that is proximately caused by or during the commission or attempted commission of an inherently dangerous felony

Inherently dangerous felonies are BARRK. Burglary, Arson, Rape, Robbery, Kidnapping.

56
Q

Define common law murder

A

The unlawful killing of a person, committed with malice aforethought

57
Q

When would an aggressor gain valid grounds to use self-defense?

A

1) When the initial aggressor’s use of nondeadly force is met with deadly force (ex. shoving someone and that person then pulls a knife)

2) When the initial aggressor, in good faith, completely withdraws from the altercation and communicates that fact to the victim

58
Q

Can an accomplice be liable for the same crime as the principal even if the accomplice was not involved in the principal’s criminal actions

A

Yes.

59
Q

what is an accomplice?

A

a person who, with the purpose of promoting or facilitating the commission of the offense, aids or abets a principal prior to or during the commission of the crime

60
Q

What counts as “breaking and entering” when it comes to burglary?

A

Breaking requires creating an opening in the structure of the dwelling, such as raising a window or pushing open a door.

Going in through an open door or window does not count as breaking and entering

61
Q

Is impossibility a valid defense to an attempt charge (ex. charged with attempted statutory rape but the person who the defendant thought was a child was actually 24)

A

No, impossibility is not a valid defense to an attempt charge.

UBE Bar Exam (14 decks)

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