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California Bar Exam > Criminal Law > Flashcards

Criminal Law Flashcards

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1
Q

Jurisdiction

A

if:

  1. any act constituting an element of the offense was committed in the state
  2. an act outside the state caused a result in the state
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2
Q

Theories of Punishment

A
  1. incapacitation of the criminal
  2. special deterrence of the criminal
  3. general deterrence of others
  4. retribution
  5. rehabilition
  6. education of the public
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3
Q

Classification of Crimes

A
  1. Felony - crimes punishable by death or imprisonment for more than one year
  2. misdemeanor - other crimes
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4
Q

Interpretations of Criminal Statutes

A
  1. construed in favor of defendants
  2. more specific statute controls
  3. more ecent statute controls over older statute
    4.
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5
Q

Merger

A
  1. Common Law - if person engaged in felony and misdemeanor, she could only be convicted of felony. - the misdemeanor merged into the felony
  2. Modern Law - No Merger - exception (solitiation merges to crime upon completion of crime)(attempt merges into completed crime) conspiracy doesnot merge with completed offense.
  3. Rule against multiple convictions - no double jeopardy. but imposition of multiple punishments are allowed
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6
Q

Elements of a Crime

A

Actus Reus - physical act

and

Mens Rea - Mental State

and the concurrence of the act and mental state.

may also require proof of a result and causation

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7
Q

Physical Act

A

an act is a voluntary bodily movement

  1. omission can be an act if
    1. there is a duty to act imposed by law
    2. defendant has knowledge of the facts of the duty to act, and
    3. it is reasonably possible to perform the duty
  2. Possession can be an act . Possession is dominion and control. so the item need not be in the hands of the offender, but merely in the dominion and control of the offender.
    1. state of mind requirement - defendant mus be aware of the possession. cannot be disingenuous.
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8
Q

Mental State

A
  1. Specific Intent -
    1. soliciation
    2. attempt
    3. conspiracy
    4. first degree murder (premeditation)
    5. assaut
    6. larceny and robbery
    7. burglary
    8. forgery
    9. false pretenses
    10. embezzlement
  2. Malice - (common law murder and arson) reckless disregard of an obvious risk that the particular harmful result will occur. defenses to specific intent do not apply
  3. General Intent - defendant aware of the factors of a crime exist
    1. battery
    2. rape
    3. kidnapping
    4. false imprisonment
  4. Strict Liabilit Offenses - does not require knowledge, intent, or awareness
    1. statutory rape
    2. selling liquor to minors
    3. bigamy (some jurisdictions)
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9
Q

Model Penal Code MPC

A

eliminates distinction between general and specific intent. Instead it uses the following:

  1. Purposely, knowingly or recklessly - subjective standard is used
    1. purposely - conscious object is to engage in certain conduct or cause a certain result
    2. knowingly - awareness that conuct is of a particular nature or knows conduct will very likely cause a particular result
    3. recklessly - knows of sibstantial and unjustificable risk and consciously disregards it
  2. Negligence - when a person fails to be aware of a substantial and unjustiable risk. objective standard used. more than just the reasonable person, the risk must be very unreasonable.
  3. Vicarious Liability - i.e. employee to employer.
    1. Enterprise liability - in common law, corporations cannot commit crims. under Modern statutes, corporations may be liable for act by agent of corp acting in scope of employment or agent in management is presumed to be acting on behalf of corporate and his actions reflect corporate policy
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10
Q

Concurrence of Mental Fault with Physical Act

A

intent to commit a specific crime must also coincide with the act comitted.

if A has intent to kill B with a gun at B’s house, but accidently kills B while driving to B’s house, there is not the required intent.

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11
Q

Accomplice Liability

A
  1. Principal - person who commits the illegal act or who causes an innocent agent to do so. this party will be liable for principle crime.
  2. Accomplice - Person who aids or encourages principal to commit the illegal conduct. Liable for principle crime if accomplice intended to aid or encourage crime. (a necessary party who does have specific punishment (buyer of drugs) cannot be liable as accomplice)
  3. Accessory after the fact - person who aids another to escape knowing that he has committed a felony. liable for separate, less serious crim of being an accessory after the fact.

Defenses - Withdrawal- a person can withdraw from being an accomplice if withdrawal occurs before crime becomes unstoppable.

  1. repudiation - sufficient to counteract encouragement
  2. attempt to neutralize - required if participation went beyond encouragement
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12
Q

Inchoate Crime

A
  1. Solicitation
    1. urging another to commit a crime
    2. no defense if person solicited is not convicted.
    3. no defense by way of renunciation, unls under MPC, if solicitor prevents the crime from occuring.
    4. Merger - if crime completed, soliciation merges into the crime itself
  2. Conspiracy
    1. agreement between two or more person, with an intent to enter into the agreement, and an intent by at least two to achieve the objective of the agreement. most states also require an overt act, but a mere preparation will suffice.
    2. Wharton Rule - where two or more people are necessary for the offense (adultry), then three are required for conspiracy.
    3. persons in protected class cannot be guilty of conspiracy or crime.
    4. if agreement existed with a person in protected class, then more than one co-conspriator is needd.
    5. under traditional view, acquittal of all persons defendant has conspired with precludes defendant from conspiring. if separate trials, then rule may not hold.
    6. MPC - unilateral approach, others acquittal no bearing on defendant’s case.
    7. Mental State - specific intent
      1. party must have intent to agree and intent to acheive objective of conspiracy
    8. Liability - conspiratory may be held liable for crimes committed by others if the crimes were committed in furtherance of the objectives and were foreseeable
    9. Termination of conspiracy - upon completion of the wrongful objective
    10. Defenses
      1. factual impossibility not a defense
      2. withdrawal not a defense.
    11. Punishment - no merger of offenses
    12. multiple conspiracy
      1. chain relationship - all parties working together for same objective,even if sub groups. all liable
      2. hub and spoke relationship - conspiracies linked together by common member (hub), sub groups not liable for other sub groups act. hub member liable for all
  3. Attempt - act with intent to commit a crim, that falls short of completion
    1. specific intent
    2. overt act beyond mere preparation for the offense.
      1. traditional - proximity test, dangeriously close to completing the crime
      2. MPC - substantial step is required
    3. Defenses -
      1. legal impossibility - defnse only when defendants acts would not constiute a crim under any circumstances
      2. factual impossibility not a defense
      3. abandonment - not a defense at common law. however under MPC, a full voluntary and complete abandonment is a defense.
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13
Q

Responsibility and Criminal Capacity

A
  1. Insanity
    1. M’Naghten Rule - acquittal if mental disease caused defendant
      1. to not know that his act would be wrong, or
      2. to not understand the nature and qualityu of his actions
    2. Irresistible Impulse test - acquittal if because of a mental illness, defendant was unable to control his actions or conform his conduct to the law
    3. Durham (new hampshire test) - acquittal if crime was the product of his mental illness. (crime would not have been committed but for the MI)
    4. MPC - acquittal if defendant had mental disease and as a result he lacked substantial capacity to:
      1. appreciate the criminality of his conduct, or
      2. confirm his conduct to the requirements of the law
  2. Procedural issues
    1. burden of proof on defendant to prove insanity
    2. need not be raised at the arraignment
    3. if insanity is raised, then defendant cannot refuse court-ordered physician examination
  3. if acquitted on insanity, then defendant is committed to mental institution until cured
  4. Mental Condition and Due Process -
    1. required defendant to be able to understnad the nature of the proceedings being brought
    2. must be able to help lawyer in preparation of defense.
    3. cannot be executed if incapable of udnerstanding nature of punishment
  5. diminished capacity - usually limited to specific intent crimes - defendant did not have required mental state to commit crime, but not fully insane
  6. Intoxication -
    1. voluntary intoxication - defense to specific intent crim if intoxication prevents formation of required intent.
    2. involuntary - treated as mental illness. may be defrense to all crimes
  7. Infancy - defendant under 14 (13 in MPC). under age 7, absolute defense to all crimes. under 14(13), rebuttable presumption that child was unable to understand the wrongfulness of his acts
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14
Q

Principles of Excuplation

A
  1. Justification - reasonable nondeadly force always ok
    1. self - defense - deadly force ok when threatened with great bodily harm
    2. defense of others- deadly force ok when threatened with great bodily harm
    3. defense of a dwelling - deadly force ok if person inside is threatened or to prevent felony inside
    4. defense of other property
      1. deadly force never ok
      2. nondeadly force ok to defend property in physical possession. it is not ok if a request to desist would suffice. force cannot be used to regain possession, unless there is an immediate pursuit.
    5. crime prevention - DF only to prevent or end felony risking human life
    6. use of force to effectuate arrest - deadly force ok to prevent escape of felon who threatens human life
    7. resisting arrest - deadly force ok against officer if resistor doesn’t know arrestor is a police officer and the arrest is improper
    8. necessity - deadly force never ok
    9. public policy
    10. domestic authority
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15
Q

Exculpatory Defenses - Other

A
  1. Duress -
    1. applies to all crimes except homicde.
    2. D reasonably believed that another would imminently harm him or family member if he did not commit the crime
  2. Mistake of Fact -
    1. applies to crimes with a mental state element
    2. for specific intent crimes, any mistake that negates intent
    3. for other crimes, only reasonable mistakes
  3. Mistake of Law
    1. applies to crimes with a mental state element and statutory ccrimes
    2. mistake must negate awareness of some aspect of law regarding the elements of the crime requires or must be due to :
      1. statute not being reasonably available
      2. reasonable reliance on statute or judicial interpretation
      3. or in some states reasonable reliance on official advice
  4. Consent
    1. applies to crimes requiring lack of consent, i.e. rape, and minor assaults and batteries
    2. applicable if:
      1. consent is freely given
      2. party is capable of consenting
      3. and no fraud was used to obtain consent
  5. Entrapment
    1. Applies to most crimes,but not available if the police merely provide the opportunity to commit the crime
    2. available when the criminal design originated with the police and the defendant was not predisposed to commit the crim before contact with police
      3.
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16
Q

Assault and Battery

A
  1. Battery is an unlawful application of force to the person of another resulting in eitehr bodily injury or an offensive touching
    1. aggrivated battery -
      1. involves deadly weapon
      2. results in serious bodily harm
      3. of a child, woman, police officer
  2. Assault - is either
    1. an attempt to commit a battery, or
    2. the intentional creation of a reasonable apprehension in the mind of the victim of imminent bolidy harm
17
Q

Homicide - common law

A
  1. Murder
    1. unlawful killing of a human being with malice aforethought. in addition to malice aforethought, one of the following elements must be present
      1. intent to kill (use of a deadly weaopon)
      2. intent to inflict great bodily injury
      3. reckless indifference to an unjustifiably high risk to human life
      4. intent to commit a felony
  2. Voluntary Manslaughter - would be murder but for the existence of adequate provocation, which exists if:
    1. sudden and intense passion in the mind of an ordinary person
    2. defendant was in fact provoked
    3. there as not sufficient time between provocation and killing for passion of reasonable person to cool
    4. defendant did not in fact cool off between the provocation and the killing
  3. Involuntary Manslaughter
    1. criminal negligence (gross negligence), or
    2. during the coimmission of an unlawful act (not including the felony murder rule)
    3. foreseeabliity of deaht is also a requirement
18
Q

Homicide - Statutory considerations

A
  1. Murder is second degree unless:
    1. the act of killing was deliberate and premeditated
    2. first degree felony murder - death that occurs during a felony that is inherently dangerous to human life may be liable for first degree murder
19
Q

Felony Murder

A

Limitations of LIability -

  1. Defendant must be guilty of the underlying felony
  2. felony must be distinct from the killing
  3. death must have been a foreseeable result
  4. death must have been caused before the defendant’s immediate flight. once the felon has reached a place of temporary safety, subsequent deaths are not felony murder
  5. no liable for the death of co-felon who died after resistence from police
  6. under agency theory, defendant is not liable for the death of an innocent party when he or his ageny/accomplice did not kill that person (contrast with proximate cause theory

Causation

  1. Cause in fact
  2. proximate cause - the natural and probable consequence of conduct of th defendant
  3. rules of causation
    1. an act that hastens the inevitable deaht is still the legal cause of that death
    2. simultaneous acts of two or more person may be independently sifficient causes of a single result(death)
    3. a victim’s pre-existing condition does not break the chain of causation
    4. an intervening act may breack causation chain
20
Q

False Imprisonment and Kidnapping

A
  1. False imprisonment
    1. unlawful confinement of a person,
    2. without his valid consent
  2. Kidnapping
    1. unlawful confinment of a person that involves
      1. some movement of the victim, or
      2. concealment of the victim in a secret place
21
Q

Sex Offenses

A
  1. Rape
    1. traditional - unlawful carnal knowledge of a woman by a man not her husband
    2. lack of consent occurs when
      1. intercourse is by actual force
      2. intercourse is by threats of great and immediate bodily harm
      3. victim is incapable of consenting due to unconsciousness, intoxication, or mental condition
      4. victim is fraudulently cuased to believe that the act is no intercourse
  2. Statutory Rape - carnal knowledge of a person under the age of consent.
  3. Adultery and Forniciation - committed by both parties. behaviour must be open and notorious. fornication is by unmarried persons
  4. incest -
  5. seduction - inducing by promise of marriage, an unmarried woman to engage in intercourse
  6. bigamy - marrying someone while having a living spouse
22
Q

Larceny

A
  1. Taking and asportation of property from possesson of another person
  2. without consent or with consent by fraud
  3. with intent to steal
  4. title does not pass
23
Q

Embezzlement

A
  1. Conversion of property held pursuant to a trust agreement
  2. use of property in a way inconsistent with terms of trust
  3. with intent to defraud
  4. title does not pass
24
Q

false pretenses

A
  1. obtaining title to property
  2. by consent induced by fraudulent misrepresenation
  3. with intent to defraud
  4. title passes
25
Q

robbery

A
  1. taking property from another’s presence
  2. by force or by threat of force
  3. with intent to steal
  4. title does not pass
26
Q

Extortion

A
  1. consists of obtaining property by means of threats to do future harm or to expose information
27
Q

Receipt of Stolen Property

A
  1. Receiving possession and control
  2. of stolen personal property
  3. known to have been obtained in a manner constituting criminal offense
  4. by another person
  5. with intent to premanetly deprive owner of his interest
28
Q

Forgery

A
  1. Making or altering
  2. a writing with apparent legal significance
  3. so that it is false
  4. with intent to defraud
29
Q

Malicious Mischief

A
  1. the malicious
  2. destruction or damage
  3. to the property of another
30
Q

Burglary

A
  1. breaking (entry without consent)
  2. and entry
  3. of a dwelling
  4. of another
  5. at nighttime
  6. with intent to commit a felony in the structure
31
Q

Arson

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

damage is required, but a mere charring is sufficient

32
Q

perjury

A

intentional taking of a false oath in regard to material matter in a judicial proceeding

33
Q

subornatoin of perjury

A

procuring or inducing another to commit perjury

34
Q

bribery

A

the corrupt payment or receipt of anything of value for official action

35
Q

Compounding a crim

A

agreeing, for valuable consideration, not to prosecture another for a felony or to conceal the commission of a felony

36
Q

Misprision of a felony

A

failure to disclose knowlege of the comission of a felony or to prevent the commissino of a felony

California Bar Exam (10 decks)

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