Criminal Law Flashcards
1
Q
Elements of a crime
A
- actus reus (physical act)
- mens rea (mental state)
- concurrence of act and mental state
- causation (sometimes)
2
Q
Actus reus
A
Voluntary physical act OR omission when there was a legal duty to act
3
Q
Bodily movements with no criminal liability (involuntary)
A
- conduct not product of one’s own volition
- reflexive or convulsive act
- act performed while unconscious or asleep
4
Q
Failure to act gives rise to criminal liability if:
A
- Legal duty to act
- D knows about facts giving rise to duty AND
- reasonably possible to perform duty
5
Q
Legal duty to act (5 circumstances)
A
- by statute (filing a tax return)
- by contract (lifeguard or nurse on duty)
- relationship between the parties (parent/child and spouse/spouse)
- voluntary assumption of care (“I’ll save him!”)
- D created the peril (pushing a person who can’t swim into the pool)
6
Q
Possession as a crime
A
D has control of item for long enough period of time to have opportunity to terminate possession
Can be actual or constructive - located in an area within D’s dominion and control
Must be aware of possession, but not illegality if not state of mind requirement in the statute
7
Q
Specific intent
A
Crime requires act PLUS doing it with a specific objective
Doing the act alone ≠ specific intent
8
Q
Additional defenses available for specific intent crimes
A
- voluntary intoxication
- unreasonable mistake of fact
9
Q
Specific intent crimes
A
Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts
- Solicitation = intent to have person solicited commit a crime
- Conspiracy = intent to have crime completed
- Attempt = intent to complete the crime
- First degree premeditated murder = premeditated intent to kill
- Assault = intent to commit a battery
- Larceny = intent to permanently deprive other of interest in property taken
- Embezzlement = intent to defraud
- False pretenses = intent to defraud
- Robbery = intent to permanently deprive other of interest in property taken
- Burglary = intent to commit felony in dwelling
- Forgery = intent to defraud
10
Q
Malice crimes and intent required
A
second degree murder and arson
reckless disregard of obvious or high risk that particular harmful result will occur
11
Q
General intent
A
D had an awareness of all factors constituting the crime
Catch-all category for any crime not a specific intent crime
12
Q
Strict Liability Crimes
A
D can be found guilty from mere fact that they committed the act
No mens rea requirement = Any defense that negates state of mind is not available
13
Q
MPC Mens Reas and Standards (Objective or Subjective)
A
Purposely = conscious objective is to engage in certain conduct or cause certain result (subjective)
Knowingly = aware that conduct is of particular nature or that certain circumstances exist (subjective)
Recklessly = conscious disregard of a substantial and unjustifiable risk (subjective and objective)
Negligently = failure to be aware of substantial and unjustifiable risk (objective)
14
Q
Common Law Mens Reas and Standards (Objective or Subjective)
A
Specific intent = intent to engage in proscribed conduct (subjective)
General intent = awareness of acting in proscribed manner (subjective)
Malice = reckless disregard of known risk (subjective)
Strict Liability = conscious commission of a proscribed act (not applicable - intent irrelevant)
15
Q
Corporations may be held liable for crimes/acts performed by:
A
- an agent of the corporation acting within scope of employment OR
- a corporate agent high enough in hierarchy to presume their acts reflect corporate policy
16
Q
Transferred intent and applicable crimes
A
D held liable when they intend the harm actually caused, but to a different victim or object
Applies to homicide, battery and arson
does NOT apply to attempt
17
Q
A person found guilty of crime based on transferred intent is guilty of…
A
1) completed crime against actual victim and
2) attempt against intended victim
18
Q
Concurrence of mens rea and actus reus
A
D must have had necessary intent for the crime AT THE TIME they committed the crime and intent must have prompted the act
19
Q
Common law parties to a crime
A
Principals in first degree = engaged in crime
Principals in second degree = aided, advised or encouraged principal and present at crime
Accessories before the fact = assisted or encouraged but not present
Accessories after the fact = knowledge of the crime and assisted to escape arrest or punishment
CL required conviction of principal for conviction of accessory - mostly abolished now
20
Q
Modern accomplice liability
A
Principal = person who engages in act or omission of the crime
- liable for principal crime
Accomplice = person who aids, encourages or advises principal in commission of the crime charged
- liable for principal crime if they intended to aid or encourage crime
Accessory after the fact = one who assists in escaping knowing there was a crime
- liable for separate, less serious crime of being an accessory after the fact
21
Q
Mental state required for accomplice to a crime
A
dual intent:
1) intent to assist the principal in commission of a crime AND
2) intent that the principal commit the crime
Mere knowledge ≠ liability
22
Q
Mental state required for accomplice to recklessness or negligence crime
A
1) Intent to facilitate commission of crime AND
2) acted with recklessness or negligence
23
Q
Scope of accomplice liability
A
Liable for:
1) crimes they did or counseled AND
2) any other probable and foreseeable crimes committed in course of committing the crime
24
Q
Exclusions from accomplice liability
A
- Members of the protected class
- Necessary parties to a crime not provided for in the statute
- Withdrawal from the crime before it becomes unstoppable:
- repudiate encouragement
- attempt to neutralize assistance
- notifying the police
mere withdrawal from involvement without additional action is not effective withdrawal
25
Crimes committed prior to or in preparation of a more serious offense
solicitation, attempt, conspiracy
26
Crimes committed against property
Habitation = burglary, arson
Personal property = larceny, embezzlement, false pretenses, robbery
27
Crimes committed against a person
Death = murder, manslaughter, felony murder
No death = battery, assault, false imprisonment, kidnapping, rape
28
Inchoate offenses
incomplete crimes = conspiracy, solicitation, attempt
29
Elements of conspiracy
1. agreement between 2 or more persons
2. intent to enter into an agreement
3. intent by at least 2 persons to achieve criminal or unlawful objective
4. overt act, including mere preparation (modern law in most states)
30
Agreement for conspiracy
doesn't have to be express --> can be inferred from joint activity or mutual action
Objective must be CRIMINAL or unlawful
31
Number of people required for conspiracy
Unilateral approach (MPC) = only one party needs genuine criminal intent
- e.g., policeman working under cover
Bilateral approach (CL) = at least 2 parties must have criminal intent
-e.g., if one party is feigning intent, no conspiracy
32
Wharton Rule
No conspiracy unless more parties involved than are necessary to commit the crime
e.g., for conspiracy to commit adultery, three people are needed
33
Agreement with person in "protected class"
A person a criminal statute is designed to protect cannot be guilty of the crime itself or conspiracy to commit the crime
If only two people - nonprotected person also cannot be guilty of conspiracy
34
Effect of Acquittal of Co-Conspirators
If all other co-conspirators are acquitted, remaining D cannot be convicted
Acquittals show there was no one with whom D could conspire
35
Mental state for conspiracy
Specific intent crime
1) intent to agree AND
2) intent to achieve objective of conspiracy
- both parties in CL states
- at least one party in MPC states
36
Overt act for conspiracy
An act done in furtherance of a conspiracy, including mere preparation
- not required at CL (conspiracy was complete when agreement with intent was reached)
- now required by most states
37
Termination of conspiracy
Usually upon completion of the crime
Point at which conspiracy terminates is important --> acts and statements of co-conspirators are admissible against D ONLY IF they were done or made IN FURTHERANCE of the conspiracy
38
Acts of concealment
Unless agreed to in advance, acts of concealment are NOT part of the conspiracy
39
Liability for co-conspirators' crimes
Conspirator labile for crimes committed by other conspirators if the crimes were:
1) committed in furtherance of the objectives of the conspiracy AND
2) foreseeable
40
Factual Impossibility
NOT a defense to conspiracy
41
Withdrawal
NOT a defense to the conspiracy
BUT may be a defense to crimes committed in furtherance of the conspiracy, including the target crime
D can withdraw from liability for subsequent crimes but NOT the conspiracy itself
42
When withdrawal from conspiracy effective
performance of an affirmative act that notifies all members of conspiracy of the withdrawal
If conspirator supplied assistance as an accomplice, they must try to neutralize the assistance
43
Merger and conspiracy
Conspiracy and the completed target crime are DISTINCT crimes, so there is NO merger
D can be convicted and punished for both
44
Solicitation
1) asking, inciting, counseling, etc. another person to commit a crime
2) with the intent that the person commit the crime
3) person solicited need not agree to commit the crime
45
Defenses and non-defenses to solicitation
Defense = solicitor could not be found guilty of crime because of legislative intent to exempt
- e.g., minor urging adult to have sex with them
MPC defense = renunciation if D prevents commission of the crime
Non-defense = person solicited is not convicted
Non-defense = factual impossibility
46
Merger and solicitation
Person solicited agrees to commit crime = merges with crime of conspiracy
47
Attempt
An act done with an intent to commit a crime that falls short of completing the crime
1) specific intent PLUS
2) an overt act in furtherance of the crime
No such thing as attempt for crimes requiring negligence or recklessness
48
Overt act for attempt (and 2 tests)
Act beyond mere preparation
CL proximity test = act was "dangerously close" to successful completion of the crime
MPC substantial step test = act was a substantial step toward completing the crime, which strongly corroborates the criminal purpose
49
Defenses (and non-defenses) to crime of attempt
1) abandonment = must be fully voluntary and complete
- MPC defense
- not a defense at CL
2) legal impossibility = what the person did was not actually a crime, even if they thought it was a crime
- rare defense
3) factual impossibility = crime cannot actually happen because of some physical or factual condition, unknown to D
- NOT a defense
50
Merger and attempt
D cannot be charged with both attempt to complete a crime AND the completed crime
Attempt merges with the crime if completed and D is only charged with ONE
51
Common law murder
unlawful killing of a human being WITH malice aforethought
52
Malice aforethought
no facts giving rise to a defense and one of the following states of mind:
1) intent to kill
2) intent to inflict great bodily injury
3) reckless indifference to an unjustifiably high risk to human life (second degree murder)
4) intent to commit a felony (felony murder)
Intentional use of a deadly weapon = inference of intent to kill
53
First degree murder
Deliberate and premeditated
1) D made decision to kill in a cool and dispassionate manner AND
2) actually reflected on idea of killing, even for just a moment
Specific intent required = voluntary intoxication is a defense
54
First degree felony murder
killing committed during the commission of an enumerated felony (usually BARRK)
CL rule = felony is inherently dangerous to human life and death occurs
55
Other first degree murders
1) killings performed in certain ways (e.g., torture)
2) homicide of a police officer IF:
- D knows victim is cop AND
- victim was acting in the line of duty
56
Second degree murder
Depraved heart killing = reckless indifference to an unjustifiably high risk to human life
Any murder not classified as first degree murder
57
Felony murder
any death, even accidental, caused in the commission of, or an attempt to commit, a felony
malice implied from intent to commit underlying felony
CL = BARRK felonies, but some states add more
58
Limitations on Felony Murder Liability
1) D must have committed or attempted to commit underlying felony
- Defense that negates element of underlying crime is also a defense to felony murder
- e.g., being drunk while committing armed robbery and killing someone is a defense (no specific intent with voluntary intoxication)
2) Felony must be distinct from killing itself
- e.g., victim of aggravated battery dies ≠ felony murder
3) death must be foreseeable result
4) death must have been caused before D's immediate flight from felony ended
- place of "temporary safety" = end of felony, cuts of liability
5) D is not liable when co-felon is killed as a result of resistance by felony victim or cops
59
Liability for deaths of caused by someone other than felon(s)
Proximate cause theory = felon liable for deaths of innocent victims caused by someone other than co-felon(s)
- minority of jx
Agency theory = felon liable only if the killings were committed by a felon or their accomplice
e.g., bystander killed by cop during a shootout with felons:
- proximate cause theory = guilty of felony murder
- agency theory = not guilty of felony murder
60
Voluntary manslaughter
killing that would be murder but for the existence of adequate provocation
61
Adequate provocation
1) provocation would arouse sudden and intense passion in ordinary (reasonable) person
2) D was in fact provoked/lost control
3) no time for reasonable person to cool off AND
4) D did not cool off between provocation and killing
NOT a defense to the killing, but may reduce from murder to voluntary manslaughter
62
Involuntary manslaughter
A killing committed:
1) with criminal negligence
- MPC = recklessness
- only requires a substantial risk of death (compared to CL murder, which requires a HIGH risk)
2) during the commission of unlawful act
- a misdemeanor or a felony not enumerated for felony murder
63
Causation
D's act must be BOTH the 1) cause in fact AND 2) the proximate cause of victim's death
64
Cause-in-fact
Death would not have occurred but for the D's conduct
65
Proximate cause
Death is a natural and probably consequence of the conduct
- superseding factors break chain of causation
66
Rules of causation
1) act that hastens an inevitable result = legal cause
2) simultaneous acts can still be an independent cause of a single result
3) victim's preexisting weakness (even if unforeseeable) does not break chain
67
Limitations on causation
1) Year and a day rule = for D to be liable for homicide, death must occur within one year and one day of inflicted injury
- most states have abolished
2) intervening acts = D not liable IF the act is:
- a coincidence OR
- outside of foreseeable sphere of risk created by D
- third party's negligence medical care of victim's refusal of medical treatment ARE foreseeable
68
Battery
unlawful application of force to the person of another resulting in either bodily injury or offensive touching
- need not be intentional
- forced need not be applied directly
- GENERAL INTENT CRIME
69
Aggravated batteries
Punished as felonies
1) battery with a deadly weapon
2) battery resulting in serious bodily harm
3) battery of a child, woman, or police officer
70
Assault crimes
1) attempted battery assault = an attempt to commit a battery (specific intent crime)
2) intentional creation (other than mere words) of reasonable apprehension of imminent bodily harm
Actual touching ≠ assault (but battery)
***Consider BOTH types in a question - either type could apply!
71
Aggravated assault
Assault PLUS:
1) use of a deadly or dangerous weapon OR
2) with intent to rape, maim, or murder
72
False imprisonment
unlawful confinement of person without valid consent
MPC = confinement must interfere substantially with victim's liberty
73
Kidnapping
Unlawful confinement of a person that involves either:
1) some movement of the victim OR
2) concealment of the victim in a secret place
74
Rape
AKA sexual assault
Intercourse without effective consent
- Slightest penetration is sufficient
- Lack of effective consent:
1) actual force
2) threats of great and immediate bodily harm
3) victim is incapable of consent due to unconsciousness, intoxication, etc. OR
4) victim is fraudulently caused to believe that the act is not intercourse
75
Statutory rape
Sex with person under the age of consent
Strict liability crime = reasonable mistake of age is not a defense
- but MIGHT be a defense if D reasonably believed victim was old enough to give effective consent
76
Larceny
Taking and carry away of tangible personal property of another with possession by trespass with intent to permanently deprive that person of their interest in the property
Specific intent crime = unreasonable mistake of fact is a defense (but mistake of law is not!)
77
Asportation (larceny)
carrying away - slightest movement of property is enough!
78
Possession (larceny)
- property must be taken from custody or possession of ANOTHER person
- it is possible to commit larceny of your own property if another person, such as a bailee, has a superior right to the possession of the property at that time
79
Intent to permanently deprive
sufficient intent = intent to create a substantial risk of loss or intent to sell or pledge goods to owner
insufficient intent = person believes property is their own, only intend to borrow, or keep property as repayment of debt
Intent must exist at the time property was taken
80
Continuing trespass (larceny)
D wrongfully takes property without intent to permanently deprive and later decides to keep it = larceny
If original taking was NOT wrongful ≠ larceny
81
Embezzlement
the fraudulent conversion of personal property of another by a person in lawful possession of that property
82
Larceny vs embezzlement
Larceny = D misappropriates property not in their possession
Embezzlement = D misappropriates property in their rightful possession
83
Fraudulent intent (embezzlement)
D must intend to defraud
Intent to restore EXACT same property taken ≠ embezzlement
Embezzlement = intent to restore similar or substantially identical property
- e.g., restoring the same amount of money ≠ identical property
84
False pretenses
obtaining title to personal property of another by intentional false statement of past or existing fact with intent to defraud the other
85
Requirements for false pretenses
1) misrepresentation = victim must actually be deceived by or act in reliance on the misrepresentation --> must be a major factor of passing title to D
- CL = false promises to do something in the future not sufficient
- MPC = includes a false promise to perform in the future
2) intent to defraud = D knew statement was false or intended victim to rely on misrepresentation
86
Larceny by trick
victim gives up custody or possession of property based on D's misrepresentation of fact
87
larceny by trick vs false pretenses
larceny by trick = custody or possession of property
false pretenses = title to property
88
Robbery
1) 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 to the victim, family member, or person in V's presence,
5) with the intent to permanently deprive them of it
V must give up property because they feel THREATENED --> giving over property because they feel sorry for D or want them to go away is NOT robbery (may be attempted robbery)
89
robbery vs larceny
robbery = taking with force or threat of force
larceny = taking away without force or threat
90
Simulated deadly weapon in robbery hypo
If D simulates the use of a deadly weapon (even without actual use of one), charge of robbery is elevated to armed robbery
91
Extortion
CL = corrupt collection of an unlawful fee by an officer under color of office
Modern = obtaining property by means of threats to do harm or expose information
- blackmail
- threats may be of future harm
92
Receipt of stolen property
1) receiving possession 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 their interest in it
93
"Possession" and "stolen" for receipt of personal property
possession = property put in a location D designated or D arranges a sale for the thief to a third person (fencing)
stolen = property is stolen AT THE TIME D receives it
94
Theft
MPC and modern statutes = some or all property offenses combined and defined as "theft"
95
Forgery
1) making or altering
2) a writing with apparent legal significance (e.g., a contract)
3) so that it is false
4) with intent to defraud
- no one need actually be defrauded for D to be guilty
96
Burglary
1) breaking and
2) entering
3) of a dwelling
4) of another
5) at nighttime
6) with intent (at time of breaking and entering) to commit a felony within
97
Breaking and entering (burglary)
Actual breaking ≠ coming through an open door or window
- BUT opening an interior door = breaking
Constructive breaking = by fraud or threat
Entering = any part of the body crosses into the structure
98
Arson
1) malicious (intentional or with reckless disregard of an obvious risk)
2) burning (requires some damage caused by fire)
3) of the dwelling
4) of another
99
Modern arson statutes
- include damages caused by explosion
- include other types of property including commercial buildings, cars, trains, etc.
100
Malice and damage (arson)
Malice = no specific intent, so additional defenses not available
- reckless disregard for an obvious risk suffices
Damage required = at least charring
- mere blackening by smoke or scorching ≠ sufficient
101
M'Naughten rule
Insanity defense applies if:
1) a disease of the mind
2) caused a defect of reason
3) such that the D lacked ability at time of actions to EITHER know the wrongfulness OR understand the nature and quality of their actions
"Right-wrong" test = D does not know right from wrong or does not understand his actions
102
Irresistible impulse test
Insanity defense applies if:
1) because of a mental illness
2) D was unable to control their actions or conform their conduct to the law
"Self-control" test = impulse that D cannot resist
103
Durham (NH) test
Insanity defense applies if crime was product of D's mental illness
- Broader than both M'Naughten rule and irresistible impulse test
- Followed only in NH
"Products" test = but for the mental illness, D would not have done the act
104
MPC insanity rule
Insanity defense applies if:
1) D had a mental disease or defect
2) and as result
3) they lacked substantial capacity to EITHER:
- appreciate the criminality of their conduct OR
- conform their conduct to the law
MPC = Combination of M'Naughten and irresistible impulse tests
105
Burdens of proof for insanity defense
D must raise insanity issue
1) Majority of states = D must prove insanity by a preponderance of the evidence
2) MPC = prosecution must prove D was sane BRD
3) Federal courts = D must prove insanity by clear and convincing evidence
106
Diminished capacity
as a result of a mental defect short of insanity, D did not have the required mental state to commit the crime
- mostly limited to specific intent crimes
107
Competency to stand trial
the DPC requires that D:
1) understand the nature of the proceedings brought against them and
2) able to assist their lawyer in preparation of their defense
108
Voluntary intoxication
results from the intentional taking, without duress, of a substance known to be intoxicating
- defense to specific intent crimes
- NOT applicable to general intent, malice, or strict liability crimes
- may reduce first degree murder to second degree murder
- not available if D purposely becomes intoxicated to establish the defense before committing crime
- addicts = voluntarily intoxicated for the exam
109
Involuntary intoxication
results from taking substance without knowledge of its nature, under duress, or pursuant to medical advice while unaware of intoxicating effect
- treated as mental illness
- defense to ALL crimes (like insanity is)
110
Infancy
CL rules:
1) under 7 = no criminal liability
2) ages 7-14 = rebuttal presumption that child was unable to understand wrongfulness of their acts
3) ages 14 and older = treated as adult
Modern rules = no child can be convicted of a crime until a stated age is reached, usually 13 or 14
111
Justification defenses
arise when society has deemed D should not be punished for the proscribed act because the circumstances justified the action
threat must be immediate --> threat of future harm is insufficient
112
Nondeadly force
person without fault may use as much force as they reasonably believe necessary to protect themself from imminent use of unlawful force
NO duty to retreat
113
Deadly force
Person may use deadly force if they are:
1) without fault
2) confronted with unlawful force
3) reasonably believe they are threatened with imminent death or great bodily harm
114
Imperfect self-defense
If not all three elements met for deadly force, some states reduce to manslaughter from murder
115
Duty to retreat
Majority = no duty to retreat before using deadly force
Minority (retreat jx) = must retreat before using deadly force if it can be safely done UNLESS:
1) attack occurs in the home
2) attack during lawful arrest or
3) during robbery
116
Right of aggressor to use self-defense
Aggressors can use force in self-defense ONLY IF:
1) they effectively withdraw and communicate desire to do so oR
2) other person suddenly escalates a minor fight into deadly altercation and aggressor has no chance to withdraw
117
Defense of others
D has a right to defend others D reasonably believes would have a right to use force in their own defense
Reasonable appearance of right to use force
Majority = no special relationship required
Minority = familial relationship required
118
Defense of a dwelling
Nondeadly force allowed to prevent unlawful entry or attack upon dwelling
Deadly force allowed only to prevent force against inhabitants of dwelling or a felony from being committed in the dwelling
119
Defense of property
Reasonable nondeadly force allowed
Deadly force never allowed
Force may be used to regain possession ONLY IF:
1) property was wrongfully taken and
2) they are in hot pursuit of the taker
120
Duress
D reasonably believed that another person would imminently kill or seriously harm D or third party if D did not commit the crime
CL = not allowed for threats to property
MPC = allowed for threats to property, assuming value of property outweighs harm done by commission of crime
121
Necessity
Reasonably believed crime was necessary to avoid imminent and greater injury than that involved in the crime
- objective standard NOT good faith belief
CL = injury must be result of natural forces
Modern = doesn't have to be natural forces
122
Limitations on necessity
1) causing death of another is never justified
2) not available if D created the dangerous/potentially harmful situation
123
Mistake or ignorance of fact
Relevant if it shows that D lacked state of mind required for the crime
Reasonableness:
- specific intent = mistake can be unreasonable
- all others = mistake but be reasonable
- strict liability = mistake is irrelevant
124
Mistake or ignorance of law
Mistake of law is not a defense UNLESS:
1) statute proscribing conduct was not published or made reasonably available prior to conduct
2) reasonable reliance on statute or judicial decision
3) reasonable reliance on official interpretation or advice
May negate intent if the mistake or ignorance was as to a collateral legal matter proving that D lacked state of mind required for the crime
- e.g., D can't be guilty of selling a gun to a known felon if D thought buyer had only been convicted of a misdemeanor
125
Entrapment
Intent to commit crime originated with law enforcement, not the D
Exists only if:
1) criminal design originated with law enforcement AND
2) D not predisposed to commit crime prior to governmental contact
Providing opportunity for predisposed person to commit crime ≠ entrapment
126
When entrapment defense is unavailable
1) no entrapment by private citizen
2) not based solely on fact that officer provided an ingredient for commission of crime
127
Entrapment defense in undercover officer question
1) lay out rule for entrapment
2) discuss when available and when not
3) discuss high threshold D must meet to prove entrapment
128
Perjury
1) intentional taking of a false oath (lying)
2) in regard to a material matter (one that might affect outcome)
3) of a judicial proceeding
