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BAR EXAM > Criminal Law > Flashcards

Criminal Law Flashcards

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1
Q

Larceny (common law)

A
  1. trespassory
  2. taking and
  3. carrying away
  4. of the personal property
  5. of another
  6. with the intent to permanently deprive that person of the property (i.e. intent to steal)
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2
Q

Arson (common law)

A
  1. malicious
  2. burning
  3. of the dwelling
  4. of another
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3
Q

Robbery

A
  1. larceny
  2. from the person or presence of the victim
  3. by force or intimidation
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4
Q

define specific intent crime

A

specific intent crimes require that the defendant possess a subjective desire, specific objective, or knowledge to accomplish a prohibited result

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5
Q

crimes categorized as specific intent crimes

A

FIAT
1. first degree murder
2. inchoate offenses
3. assault with intent to commit a battery
4. theft offenses (larceny / by trick, false pretenses, embezzlement, forgery, burglary, robbery)

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6
Q

when is mistake of fact a defense to a specific intent crime? general intent crime?

A

spec intent: mistake of fact is a defense, even if mistake is unreasonable

general/malice: only a defense if mistake was reasonable

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7
Q

how can an accomplice legally withdraw/avoid liability for a crime?

A
  1. repudiate prior aid
  2. do all that is possible to countermand prior assistance
  3. do so before chain of events is in motion and unstoppable
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8
Q

when is withdrawal a defense to conspiracy?

A

common law: never, b/c conspiracy complete as soon as agreement

fed/majority: after agreement but before overt act, may w/d by: 1. communicating notice of intent not to participate to co-cons or informing cops

MPC/minority: w/d only possible if D acts voluntarily to thwart success of conspiracy

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9
Q

when is withdrawal a defense to the substantive crime underlying conspiracy?

A

by withdrawing from conspiracy any time after formed
may w/d by giving notice to co-cons or timely advising legal authorities even though doesn’t thwart conspiracy

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10
Q

four insanity tests

A
  1. M’Naghten
  2. irresistible impulse
  3. Durham rule
  4. MPC
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11
Q

M’Naghten test

A

D not guilty if b/c of defect of reason due to mental disease did not know either (i) nature and quality of act or (ii) wrongfulness of act

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12
Q

when is voluntary intoxication a defense?

A

only to specific intent crimes, if intoxication prevents formation of required intent

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13
Q

common law murder: specific intent?

A

no. common law murder is a malice crime even though it says ‘intent to kill’

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14
Q

arson: specific intent?

A

no. arson is a malice crime even though it says ‘intent to burn’

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15
Q

when is involuntary intoxication a defense?

A

when intoxication negates an element of the crime, including general and specific intent and malice crimes / strict liability

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16
Q

what happens if: someone is convicted of both felony murder and the underlying felony (e.g. arson)? what if convicted of the felony murder, then the arson?

A

the underlying crime merges into the felony murder

thus, prosecution for the underlying crime after the felony murder conviction violates double jeopardy

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17
Q

what felony murder liability results if a bystander is killed by a cop or dies b/c of felony victim’s resistance?

A

majority: agency theory. felon not liable for bystander death b/c neither cop nor victim is felon’s agent

minority, proximate cause: liability may attach b/c death direct consequence of felony

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18
Q

statutory first degree murder

A

deliberate and premeditated; felony murder; heinous murder (e.g. lying in wait, bombing, terrorism, poisoning)

specific intent crime

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19
Q

statutory second degree murder

A

homicide w/necessary malicious intent: to kill, great bodily injury, depraved heat murder, or non-BARRK felonies

malice crime

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20
Q

common law divisions of murder

A

murder
voluntarily manslaughter
involuntary manslaughter
(vs. 1st degree, 2nd degree, vol/invol manslaughter, felony murder)

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21
Q

common law murder

A

unlawful killing of another person with malice aforethought, malice shown by either:
1. intent to kill
2. intent to do serious bodily injury
3. reckless indifference to human life (depraved heart)
4. intent to commit a felony

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22
Q

involuntary manslaughter

A

unintentional homicide committed with criminal negligence (recklessness under MPC) or while engaged in unlawful act

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23
Q

larceny: trespassory

A

property taken w/o owner’s consent

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24
Q

when does the taking of stolen property from a thief constitute larceny?

A

constitutes larceny unless the taker has a superior possessory interest in the property (e.g. owner or lessee of the property)

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25
Q

proper defense to larceny?: had intent to permanently deprive, but gives it back

A

no. crime was complete at time of taking

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26
Q

larceny by trick: elements

A
  1. larceny (trespassory taking and asportation of personal property of another with intent to permanently deprive)
  2. accomplished by fraud or deceit
  3. that results in conversion of property of another
27
Q

difference in what must happen to property under larceny vs. larceny by trick

A

under larceny, nothing in particular must happen to the property
whereas under by trick, property must be converted - person must become deprived of ability to use the property so much that a court would order D to pay full and fair market value

28
Q

difference between larceny by trick and false pretenses

A

under larceny by trick, D obtains possession

29
Q

forgery: elements

A
  1. making
  2. of a false writing
  3. with apparent legal significance
  4. with the intent to defraud (i.e. make wrongful use of forged doc)
30
Q

embezzlement: elements

A
  1. fraudulent
  2. conversion (inappropriate use of property held pursuant to trust agreement)
  3. of the property
  4. of another
  5. by a person who is in lawful possession of the property
31
Q

false pretenses: elements

A
  1. obtaining title of the property
  2. of another person
  3. through the reliance of that person
  4. on a known false representation of a material past or present fact; and
  5. the representation is made with the intent to defraud
32
Q

robbery: elements

A
  1. larceny (trespassory taking of personal property of another w intent to permanently deprive)
  2. from person or presence of victim
  3. by force or intimidation
33
Q

which of these merge into robbery? attempted robbery?: larceny, assault, battery

A

all merge into robbery and attempted robbery

34
Q

extortion: common law

A

unlawful taking of money by government officer

35
Q

extortion: modern

A

usually defined as taking of money or property from another by threat

36
Q

common law burglary: elements

A
  1. breaking and
  2. entering
  3. of the dwelling
  4. of another
  5. at nighttime
  6. with specific intent to commit a felony therein
37
Q

does merger apply to a burglary and the underlying intended felony if: the felony was completed? if it was not completed?

A

if completed: no merger; guilty of felony and burglary

if underlying felony failed: guilty of burglary and attempt to commit felony

38
Q

common law arson: elements

A
  1. malicious
  2. burning
  3. of the dwelling (tho MBE may be loosey goosey with this)
  4. of another
39
Q

arson: extent of burning required

A

damage to dwelling must be caused by fire. smoke damage alone insufficient and damage must affect structure of building. scorching insufficient. wood must be charred

40
Q

receiving stolen goods: elements

A
  1. receiving control of stolen property
  2. knowledge that property is stolen and
  3. intent to permanently deprive owner of property
41
Q

elements of battery

A
  1. unlawful
  2. application of force
  3. to another person
  4. that causes bodily harm to that person or constitutes offensive touching
42
Q

elements of assault

A
  1. attempt to commit battery or
  2. intentionally placing another in apprehension of imminent bodily harm
43
Q

fear of harm assault: elements

A

general intent crime requiring intent to cause either bodily harm or apprehension of such harm

victim’s apprehension must be reasonable

44
Q

kidnapping: elements

A
  1. unlawful
  2. confinement of a person
  3. agains that person’s will
  4. coupled with either
    - the movement or
    - the hiding of that person
    (more than necessary to commit other crime)
45
Q

false imprisonment: elements

A
  1. unlawful
  2. confinement of a person
  3. without consent
46
Q

elements: solicitation

A
  1. enticing, encouraging, requesting, or commanding of another person
  2. to commit a crime
  3. with intent that the other person commits the crime
47
Q

elements: conspiracy

A
  1. agreement
  2. between two or more persons
  3. to accomplish unlawful purpose
  4. with intent to accomplish that purpose
48
Q

Pinkerton rule

A

conspiracy may be convicted of both the offense of conspiracy and all substantive crimes committed by any other co-cons acting in furtherance of that conspiracy

49
Q

when is withdrawal a defense to conspiracy?

A
  1. common law: never
  2. fed rule / maj rule: no w/d after overt act; may w/d before overt act by communicating intent not to participate or telling cops
  3. minority / MPC: no withdrawal post-agreement absent voluntary act to thwart
50
Q

elements: attempt

A
  1. substantial step toward commission of crime, plus
  2. specific intent to commit crime
51
Q

when is impossibility a defense to attempt?

A

only if the act intended was not a crime

not a defense that unknown to defendant, completion of crime would have been impossible

52
Q

elements of self defense

A
  1. not the aggressor
  2. justified in using reasonable force (as rq to repel attack) against another
  3. to prevent immediate / imminent
  4. unlawful harm
53
Q

when is retreat required under self defense?

A

if using non deadly force: never
if using deadly force, majority view: never
if deadly force, minority: required if safely accomplished; but not when employing deadly force in own home

54
Q

when can an aggressor use self defense?

A
  1. aggressor using non deadly force is met with deadly force
  2. aggressor has in good faith completely withdrawn from altercation and has communicated that to victim
55
Q

when can someone use deadly force to prevent a crime? non deadly force?

A

anyone may use deadly force to prevent commission of serious felony involving risk to human life
non deadly force to prevent commission of felony or breach of peace misdemeanor

private citizen who makes even a reasonable mistake as to commission of serious felony by vic not entitled to rely

56
Q

duress defense

A

a defendant can claim the duress defense when a third party’s unlawful threat causes the 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 the defendant violates the law

57
Q

larceny: continuing trespass rule

A

applies when initial taking was trespassory but there was no intent at the time to permanently deprive the person of the property
if the person later decides to permanently deprive, the rule deems the original trespass “continuing” so that it coincides with later-acquired crim intent

58
Q

main difference between embezzlement and larceny

A

larceny requires a trespassory taking; embezzlement requires that a person already be in lawful possession in a trust relationship

59
Q

when is the use of deadly force justified in self defense?

A

a person
1. actually and reasonably believes that deadly force is necessary to prevent imminent serious bodily harm or death and
2. is not the initial aggressor
usually no duty to retreat

60
Q

describe the majority and minority views of what constitutes a conspiracy (including stances on agreement and overt act requirements)

A

majority (modern&MPC): unilateral approach (requires only one person specifically intend to enter an agreement) and requires at least 1 conspirator to commit an overt act

minority(common law): bilateral (2+ persons spec intend to agree); no overt act required

61
Q

elements of conspiracy

A
  1. two or more persons entered an agreement (explicitly or implicitly) to accomplish an unlawful purpose
  2. the conspirators had the specific intent to accomplish that purpose, and
  3. (in most / MPC/modern jx) at least one conspirator committed an overt act in furtherance of the agreement
62
Q

define accomplice

A

an accomplice is a person who (1) aids or abets the principal prior to or during the commission of a crime with
(2) the specific intent that the crime be committed
(minority: liable as accomplice if intentionally or knowingly aids, induces ,or causes another to commit offense - spec intent not required)

63
Q

default mental state under MPC when not stated

A

recklessness

64
Q

when, if ever, is legal impossibility a defense to attempt?

A

when a person’s intended act would not constitute a crime if completed

BAR EXAM (28 decks)

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