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Criminal Law 2 Flashcards

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1
Q

Generally: to establish a criminal case, Prosecutor MUST prove:

A
  1. Actus Reus (Guilty Act)
  2. Mens Rea (Guilty Mind)
  3. Concurrence
  4. Causation of Harmful Result (only some crimes, e.g. Homicide)
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2
Q

Actus Reus: Criminally Liable Person MUST have done what?

A
  1. Performed a Voluntary, Physical Act
    OR
  2. Failed to Act under circumstances imposing a Legal Duty to Act

NOTE: Act = Speech/Bodily Movement; Thoughts are NOT acts!

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3
Q

Actus Reus: Voluntary, Physical Acts are Person’s

A

Conscious Exercise of Personal Will.

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4
Q

Actus Reus: Involuntary Acts CANNOT cause criminal liability because . . .

A

involuntary acts cannot be deterred by punishment.

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5
Q

Actus Reus: Habitual Acts are ________ EVEN IF Defendant was ____________________________.

A

Voluntary EVEN IF Defendant was UNAWARE he was acting.

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6
Q

Actus Reus: Acts committed while Unconscious or Asleep are VOLUNTARY IF

A

Defendant Knew he Might
1. Fall Asleep OR Become Unconscious
AND
2. Engage in the Dangerous Behavior

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7
Q

Actus Reus: Failure to Act results in Criminal Liability IF

A
  1. Person has Legal Duty to Act under the circumstances AND
  2. Person is Aware of the Facts creating the duty to act OR
    Law Imposes a Duty to Learn the Facts AND
  3. It’s Reasonably Possible for Person to Perform the Duty OR
    Obtain Assistance
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8
Q

Actus Reus: A Legal Duty to Act arises from:

A
  1. Statutes
  2. Contracts
  3. Relationships
  4. Voluntary Assumption of Care (reasonable standard of care)
  5. Creation of Peril
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9
Q

Actus Reus: 3 Types of Involuntary Acts

A
  1. Conduct that is NOT the product of Actor’s determination
  2. Reflexive or Convulsive Acts
  3. Movements while Unconscious, Asleep, or Hypnotized
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10
Q

Actus Reus: Criminal Statutes penalizing possession of contraband generally only require that Defendant have control of the item . . .

A

for a Long Enough Period to have an Opportunity to Terminate the Possession.

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12
Q

When is Mens Rea not required?

A

Strict Liability Crimes

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13
Q

Mens Rea: Specific Intent Crimes

A

Crime’s Definition requires that an act be performed with a specific intent or objective

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14
Q

Mens Rea: Why is it necessary to identify specific intent crimes?

A
  1. The manner in which an act was done may provide circumstantial evidence
  2. Some defenses apply only to specific intent crimes, I.e., voluntary intoxication and unreasonable mistake of fact
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15
Q

Mens Rea: The 10 Major Specific Intent Crimes

A
  1. Solicitation (solicited-person commit crime)
  2. Attempt (complete crime)
  3. Conspiracy (complete crime)
  4. First Degree Premeditated Murder (premeditated intent to kill)
  5. Assault (commit a battery)
  6. Larceny and Robbery (permanently deprive Another of his property interest)
  7. Burglary (commit a felony within a dwelling, at the time of entry)
  8. Forgery (defraud)
  9. False Pretenses (defraud)
  10. Embezzlement (defraud)
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16
Q

Mens Rea: Common Law created the special mental state of malice to . . .

A

Deny the specific intent defenses to murders and arsonists.

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17
Q

Mens Rea: To establish Malice, Prosector MUST show . . .

A

Defendant Recklessly Disregarded an Obvious OR High Risk that the particular harmful result would occur.

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18
Q

Mens Rea: General Intent

A

An awareness of the likely existence of all factors constituting the crime.

Generally, all crimes require specific intent

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19
Q

Mens Rea: Jury may infer . . .

A

general intent from mere action.

It is not necessary that evidence specifically proving the general intent be offered by the prosecution

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20
Q

Mens Rea: Intent Transfers from Intended person OR object to Another person or object IF

A
  1. Person Intended to Cause a harmful result to a Particular person or object AND
  2. Person Caused a Similar harmful result to Another person or object,

Most Commonly Applies to homicide, battery, and arson

Does NOT apply to Attempt!

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22
Q

Mens Rea: What is Motive, and what is its legal significance?

A

Reason or Explanation underlying an Offense.

Generally immaterial to substantive criminal law: a good motive will not excuse a criminal act, and a lawful act with a bad motive will not be punished.

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23
Q

Mens Rea: Strict Liability Offenses require

A

awareness of at least one element of a crime BUT NOT ALL

Certain Defenses, such as mistake of fact are not available

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24
Q

Strict Liability Offenses are also known as . . .

A

Public Welfare Offenses

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25
Q

Strict Liability/Public Welfare Offenses generally . . .

A
  1. are Insignificantly immoral
  2. are regulatory offenses that implicate public health or safety
  3. have relatively low penalties
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26
Q

IF Statute is silent regarding mens rea, Courts may . . .

A

Interpret Statute as Requiring Some Mens Rea, especially IF

 1. statute appears to be codification of traditional common law OR
 2. the statute imposes a severe penalty.
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27
Q

Majority State: Constitutionality of Strict liability crimes

A

Constitutional

EXCEPTION: Statutes criminalizing Felon’s failure to register as a Felon–UNconstitutional

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28
Q

M.P.C.: 4 Categories of Mens Rea (instead of general v. Specific intent)

A
  1. Purposely
  2. Knowingly
  3. Recklessly
  4. Negligently
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29
Q

M.P.C.: Purposely

A

Subjective Standard

Person consciously intends to

 1. Engage in certain conduct
 2. Cause a certain result
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30
Q

M.P.C.: Knowingly (or Willfully)

A

Subjective Standard

  1. Person is aware that his conduct is of a prohibited nature OR
  2. Person knows, believes, or is substantially certain that his act will bring about a prohibited result

IF willful ignorance, the Court will generally find that Pesron acted knowingly

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31
Q

M.P.C.: Recklessly

A

Subjective (awareness) and Objective (unjustifiable)

Person consciously disregards a substantial, unjustifiable risk that circumstances exist or that a prohibited result will follow AND the disregard constitutes a gross deviation from the standard of care that a reasonable person would exercise in the situation.

Person MUST KNOW that injury

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32
Q

An act performed Recklessly is also performed

A

Wantonly

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33
Q

M.P.C.: Negligently

A

Objective Standard

Person fails to become aware of a substantial and justifiable risk that circumstances exist, or that a result will follow, AND such failure constitutes a substantial deviation from the standard of care that a reasonable person would exercise under the circumstances.

Person MUST have taken a very unreasonable risk in light of the usefulness of his conduct, his knowledge of the facts, and the nature and extent of the harm that may be caused.

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34
Q

Common Law: 3 classifications of Mens Rea

A
  1. General Intent Crimes
  2. Specific Intent Crimes
  3. Strict Liability Crimes
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35
Q

Violations of State Statutes, Municipal Ordinances, and Administrative Regulations MAY

A

Be evidence of liability re: negligence

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36
Q

IF a statue establishes a culpable state of mind without indicating whether it is required for all material elements of the offense, then

A

The specified state of mind applies to all material elements of the offense UNLESS a contrary purpose appears in the statute

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37
Q

IF a criminal statute does NOT include a state of mind requirement

A

Defendant MUST have acted with AT LEAST recklessness re: each material element of the offense

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38
Q

M.P.C.: the showing of a higher state of mind . . .

A

Automatically satisfies a lower mental state requirement of a statute.

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39
Q

IF a lower standard of negligence, or a higher standard of knowledge or purpose is required, then . . .

A

The standard MUST be indicated in the language of the statute

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40
Q

Vicarious Liability Offenses

A

Person without fault is vicariously liable for Another’s criminal conduct (usually an employee)

Employee MUST possess mens rea

Analogous to the tort doctrine of Respondeat Superior

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41
Q

Minority State: Imprisonment for vicarious liability crimes . . .

A

Violates the due process guarantees of the constitution

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42
Q

Current Legislative Trend: Limit Vicarious Liability

A

Crime: Regulatory
Punishment: Fines

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43
Q

Majority State: the mere fact that the underlying offense is clearly a strict liability offense . . .

A

Should NOT imply a legislative intent to impose vicarious liability

I.e., criminal statute: no one can serve alcoholic beverages to a minor–bar owner not vicariously liable if bartender serves underage person if the owner was not present and didn’t authorize bartender’s actions

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44
Q

Actus Reus: IF Criminal Statute penalizes possession of contraband but lacks a state of mind requirement . . .

A

Defendant must be aware of his possession of the contraband BUT need not be aware of the item’s illegality or true nature

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45
Q

Actus Reus: Possession as an Act under the M.P.C. and Many States add a knowingly state of mind requirement, so

A

Defendant MUST know the identity or nature of the item possessed BUT CANNOT consciously avoid learning the true nature of the item possessed.

Knowledge may be inferred from a combination of suspicion and indifference to the truth

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46
Q

Common Law: Enterprise Liability

A

Corporations could NOT commit crimes because they were unable to form the necessary criminal intent

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47
Q

Majority State: Enterprise Liability: Corporations (and sometimes unincorporated associations) are vicariously liable IF

A

The conduct giving rise to corporate liability was performed by corporation’s Agent, acting on Corporation’s behalf and within the scope of his office or employment UNLESS the law specifically provides otherwise

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48
Q

Minority State: Enterprise Liability is limited to . . .

A

Conduct performed by, or participated in by, Agents sufficiently hugging the corporate hierarchy to presume that their acts reflect corporate policy.

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49
Q

M.P.C.: Enterprise Liability: A Corporation may be guilty of a criminal offense provided the offense:

A
  1. Consists of Corporation’s failure to discharge a specific duty imposed by law OR
  2. Is defined by a statute with a plain legislative purpose to impose liability on corporations OR
  3. Was authorized, requested, commanded, performed, or recklessly tolerated by the board of directors or by a high managerial agent acting on behalf of the corporation within the scope of his office or employment
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50
Q

The person who, in the name of the corporation, performs (or causes performance of) conduct that is an element of a criminal, offense

A

Is legally accountable and subject to punishment to the same extent as if the conduct were performed in his name or on his own behalf

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51
Q

The fact that a Corporation is criminally liable does NOT

A

Prevent the conviction of the individual who committed the offense

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52
Q

Concurrence of Mens Rea and Actus Reus

A

Person MUST have necessary intent for the crime at the time he committed the act constituting the crime

Intent MUST prompt action

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53
Q

Common Law: Conspiracy

A

A combination or agreement between two or more persons to

 1. accomplish some criminal or unlawful purpose OR
 2. Accomplish a lawful purpose through unlawful means

Go back to page 21

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54
Q

Common Law/State Minority: Merger of Conspiracy

A

IF conspirators committed a substantive offense, the crime of conspiracy merges into the completed crime, and the members of the conspiracy can only be convicted of the substantive offense.

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55
Q

Majority State: Merger of Conspiracy: IF conspirators complete the substantive offense,

A

The conspirators may be convicted of BOTH the criminal conspiracy AND the substantive offense

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56
Q

Battery

A

Misdemeanor

The unlawful application of force upon Another, resulting in

 1. Bodily injury, or
 2. Offensive touching
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57
Q

Battery: intent

A

A battery can be BUT need NOT be intentional.

It is sufficient that Defendant caused the application of force with general intent, interpreted in most jurisdictions today as requiring no more than criminal negligence

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58
Q

Battery: Force need NOT be applied directly; therefore, it is sufficient IF

A

The force is applied by a force or substance put in motion by Defendant. I.e., causing a dog to attack or causing ingestion of poison

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59
Q

Majority State: Aggravated Battery is most commonly:

A

Felony

  1. A deadly weapon is used (an ordinary object may become a deadly weapon depending upon how it is used), or
  2. Serious Bodily Injury is caused, or
  3. Victim is a Child, Woman, or Police Officer
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60
Q

Minority State: Victim’s Consent as a Defense to Battery

A

E.g., medical operations or reasonable injuries incurred in consensual athletic contests.

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61
Q

Majority State: Assault

A

Misdemeanor

  1. An attempt to commit a battery, or
  2. The intentional creation of Victim’s reasonable apprehension of imminent bodily harm
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62
Q

Minority State: Assault

A

Only Attempt to commit a battery.

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63
Q

Some statutes define assault as an unlawful attempt to commit battery PLUS

A

A present ability to succeed.

Lack of ability to succeed precludes liability under such statutes

I.e., unloaded guns

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64
Q

Aggravated Assault

A

All jurisdictions treat certain aggravated assaults more severely tha simple assault. Such aggravated assault includes but is not limited to

 1. Assault with a dangerous or deadly weapon
 2. Assault with the intent to rape, maim, or murder
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65
Q

Common Law/Majority State: Mayhem

A

Dismemberment or disablement if a bodily part.

Modern Statutes expand the scope of mayhem to include permanent disfigurement.

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66
Q

Mayhem: Recent Trend

A

Abolish mayhem as a separate offense.

It’s treated as a form of aggravated battery.

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67
Q

Minority State: Mayhem: Intent

A

Specific Intent to Maim or Disfigure

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68
Q

3 Common Law Classifications of Homicide

A
  1. Justifiable (authorized by law)
  2. Excusable (defense to criminal liability)
  3. Criminal
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69
Q

Common Law: 3 Criminal Homicides

A
  1. Murder
  2. Voluntary Manslaughter
  3. Involuntary Manslaughter
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70
Q

Common Law: Murder

A

The unlawful killing of another human being with, express or implied, malice afterthought.

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71
Q

Common Law: Murder: In athe absence of facts excusing a homicide or reducing it to voluntary manslaughter, MALICE AFORETHOUGHT exists IF Defendant:

A
  1. Intended to Kill (express)
  2. Intended to inflict great bodily injury (implied)
  3. Held a reckless indifference to an unjustifiably high risk to human life (“abandoned and malignant heart”) (implied)
  4. Intended to commit a felony (felony murder) (implied)
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72
Q

Common Law Murder: Intentional use of a deadly weapon authorizes

A

A permissive inference of intent to kill.

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73
Q

Common Law Murder: A deadly weapon is . . .

A

Any instrument (or perhaps a part of the body) used in a manner calculated or likely to produce death or serious bodily injury.

I.e., speedboat crashes into people, person fires bullet in crowded room, professional fighter

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74
Q

Common Law: Voluntary Manslaughter

A

A killing that would otherwise be murder BUT

It’s distinguished by the existence of adequate provocation

I.e., killing in the heat of passion.

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75
Q

Common Law: Adequate provocation reduces a killing to voluntary manslaughter IF

A
  1. Provocation arose sudden and intense passion in the mind if an ordinary person, which caused him to lose self-control
  2. Defendant was IN FACT provoked
  3. NO sufficient time between provocation. And the killing for the passions of the reasonable person to cool (consider the nature of the circumstances and the attendant circumstances, including earlier altercations between defendant and victim)
  4. Defendant IN FACT did NOT cool off between the provocation and the killing.
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76
Q

Common Law: Voluntary Manslaughter: Provocation most frequently recognized in cases of. . .

A
  1. Being subjected to a serious battery or a threat of deadly force
  2. Discovering one’s spouse in bed with another person.
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77
Q

Common Law: Voluntary Manslaughter: the most significant INADEQUATE provocation as a matter of law

A

Mere words.

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78
Q

Modern Courts: Voluntary Manslaughter: Inadequate provocation as a matter of law is a question . . .

A

Submitted to the jury to determine wither mere words or similar matters constitute adequate provocation.

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79
Q

Minority States: Involuntary Manslaughter: Imperfect Self-defense

A

A murder may be reduced to manslaughter ENVEN THOUGH

  1. Defendant was at fault in starting the altercation OR
  2. Defendant unreasonably BUT HONESTLY believed in the necessity of responding with deadly force.
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80
Q

Common Law: 2 Types of Involuntary Manslaughter

A
  1. Criminal Negligence

2. Unlawful Acts

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81
Q

Common Law: Involuntary Manslaughter: Criminal Negligence

A

IF a death is caused by criminal negligence, the killing is involuntary manslaughter.

Criminal Negligence requires a greater deviation from the reasonable person standard than is required for civil liability

Go back to pg 49

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82
Q

Common Law: Involuntary Manslaughter: 2 types of Unlawful Acts

A
  1. A killing caused during the commission of a misdemeanor

2. A killing caused during the commission of a felony, which does NOT qualify as a felony murder.

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83
Q

Majority State: Involuntary Manslaughter: A killing during the commission of a misdemeanor requires that the misdemeanor was . . .

A
  1. Malum in se

2. Malum prohibitum AND the death was a foreseeable or natural consequence of the unlawful conduct

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84
Q

Majority State: Involuntary Manslaughter: A killing during the commission of a felony, which doe NOT qualify as a felony murder requires that . . .

A

The death was a foreseeable consequence of the felony

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85
Q

Majority State: Degrees of Murder

A
  1. Deliberate and Premeditated Killing
  2. First Degree Felony Murder
  3. Second Degree Felony Murder
  4. Other State Variations
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86
Q

Majority State: All murders are __ degree murders UNLESS . . .

A

Second degree murders, UNLESS the prosecution can prove that the murder was first degree.

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87
Q

Majority State: Degrees of Murder: Deliberate and Premeditated Killing

A
  1. Defendant made the decision to kill in a cool and dispassionate manner.
  2. Defendant actually reflected on the idea of killing, EVEN IF only for a very brief period.
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88
Q

Majority State: Degrees of Murder: First Degree Felony Murder

A

IF a killing is committed during the commission of an enumerated felony murder the killing is usually first degree murder.

The prosecution does NOT need to show that the killing was either deliberate or premeditated

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89
Q

Many State Statutes list specific felonies that may serve as the basis for felony murder, the felonies most commonly listed are:

A
  1. Burglary
  2. Arson
  3. Rape
  4. Robbery
  5. Kidnapping
  6. Other felonies inherently dangerous to human life
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90
Q

Majority State: Degrees of Murder: Second Degree Felony Murder

A

A statute may provide criminal liability for killings committed during the course of felonies not specifically listed as felony murders

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91
Q

Minority State: Degrees of Murder: Other Variations

A
  1. No felony murders are specifically listed
    Perhaps, includes the requirement that
  2. A felony (as committed) was intently dangerous to human life
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92
Q

Minority State: Degrees of Murder: Some statutes make killings performed in certain ways first degree murder; thus killing by . . .

A
  1. Lying in wait
  2. Poison
  3. Torture

MAY be first degree murder

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93
Q

Felony Murder: Malice Aforethought is implied from . . .

A

The intent to commit the underlying felony

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94
Q

Felony Murder

A

A killing committed during the course of a felony.

EVEN IF the killing was accidental

Majority: Death must have been a foreseeable result of the commission if the felony (courts are very willing to find most deaths foreseeable)

Minority: felony must have been malum in se

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95
Q

IF in the course of a conspiracy to commit a felony, a death is caused, ALL members to the conspiracy are liable for Murder IF ALL members to the conspiracy are liable for Murder IF the death. . .

A
  1. was caused in furtherance of the conspiracy AND

2. Was a foreseeable consequence of the conspiracy

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96
Q

To convict Defendant of Felony Murder, the Prosecution MUST prove . . .

A

Defendant committed or attempted to commit the under lying felony

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97
Q

Defenses to Felony Murder

A

Substantive defenses that negate an element of the underlying felony BUT usually NOT procedural defenses

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98
Q

Felony Murders are prosecuted ONLY IF

A

The underlying felony was independent of the killing.

CANNOT be felonies such as manslaughter or aggravated battery.

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99
Q

Felony Murder: The fact that a felony was technically completed before death was caused . . .

A

DOES NOT prevent the killing from being a felony murder.

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100
Q

Felony Murder: Deaths caused while fleeing the scene of a crime . . .

A

Are felony murders

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101
Q

Felony Murder: once a felon reaches a place of temporary safety . . .

A

The impact of the felony murder rule ceases AND

Subsequent Deaths cause by Felon are NOT felony murder

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102
Q

Majority State: Felony Murder: Co-Felon’s liability for another Co-Felon’s death by resistance from Police or Victim

A

Co-Felon NOT liable

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103
Q

Majority State: Felony Murder: IF innocent victims are killed by someone other than a co-felon . . .

A

The Felons will be guilty of felony murder IF they caused the series of events, which caused the death of the innocent person (proximate cause)

i.e. bystander is accidentally killed by a police officer during a shootout at the crime scene

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104
Q

Minority State: a Felony is liable for Felony Murder ONLY IF

A

Felon or Felon’s Agent committed the Murder

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105
Q

Majority State: Malum Prohibitum Misdemeanors: Deaths caused during the commission of the misdemeanor are manslaughter ONLY IF

A

The death was a foreseeable result of the commission of the misdemeanor

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106
Q

Minority State: Malum In Se Misdemeanors: Deaths caused during the commission of the misdemeanor are classified as

A

Manslaughter

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107
Q

When a crime is defined to require NOT merely conduct BUT ALSO a specified result of that conduct, Defendant’s conduct MUST BE

A
  1. Cause-in-fact

2. Proximate Cause of the Specified Result

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108
Q

Cause-in-fact

A

The result would not have occurred BUT FOR Defendant’s Conduct

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109
Q

Common Law: To Prosecute person for homicide, Victim’s Death MUST occur

A

Within one year and one day form the infliction of the injury/wound.

Majority State: abolish this rule

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110
Q

Homicide: Problems of proximate cause arise only when Victim’s death occurs because of Defendant’s Acts, BUT

A

In a manner NOT intended OR anticipated by Defendant

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111
Q

Proximate Cause

A

Dendant is responsible for all results that occur as a natural and probably consequence if his conduct EVEN IF he did NOT anticipate the precise manner in which they would occur

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112
Q

The chain of proximate causation is broken ONLY by

A

The intervention of a superseding factor

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113
Q

Causation: An act that hastens an inevitable result

A

Is a legal cause of the result

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114
Q

Causation: Simultaneous acts by two or more persons may be considered

A

Independently sufficient causes of a single result

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115
Q

Causation: Victim’s Pre-existing Condition that makes him more susceptible to death

A

Does NOT break the chain of causation

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116
Q

Defendant is NOT liable IF an intervening act . . .

A
  1. Was a mere coincidence OR

2. was outside the foreseeable sphere of risk created by Defendant’s act

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117
Q

Intervening Acts may be

A
  1. Acts of Nature
  2. Acts of Third Persons (negligence of medical treatment BUT NOT gross negligence)
  3. Acts by the Victim (refusal of medical treatment; suicide)
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118
Q

5 necessary steps of analyzing Homicide Questions

A
  1. Sufficient State of Mind?
  2. 1 yes, Raise Homicide to 1st Degree Murder?
  3. 1 yes, Reduce Homicide to Voluntary Manslaughter?
  4. 1 no, Involuntary Manslaughter
  5. Adequate causation? Broken Chain of Causation?
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119
Q

Common Law: False Imprisonment

A

Misdemeanor

  1. Unlawful
  2. Confinement of Person
  3. WITHOUT Person’s Valid Consent
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120
Q

False Imprisonment: Confinement requires that . . .

A

Victim be compelled to

 1. Go where he does NOT wish to go
 2. Remain where he does NOT wish to remain
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121
Q

False Imprisonment: It is NOT confinement IF

A

Simply preventing Person from going where he desires to go, as long as alternative routes are available.

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122
Q

False Imprisonment: confinement may be accomplished by

A
  1. Actual force
  2. A show of force
  3. Threats
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123
Q

M.P.C.: False Imprisonment: Confinement MUST

A

Substantially interfere with Victim’s liberty

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124
Q

False Imprisonment: confinement is unlawful UNLESS

A

It is specifically authorized by

 1. law OR
 2. Person's consent
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125
Q

Consent to confinement precludes if from constituting false imprisonment BUT the consent MUST

A
  1. Be freely given

2. By Person with capacity to give such consent

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126
Q

False Imprisonment: Consent is invalidated by

A
  1. Coercion
  2. Threat
  3. Deception
  4. Incapacity due to mental illness, substantial cognitive impairment, or youth
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127
Q

Common Law: Kidnapping

A

Misdemeanor

The forcible abduction or stealing away of a person. From his own country and sending him into another

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128
Q

Majority State/M.P.C.: Kidnapping

A

Aggravated False Imprisonment

  1. Some movement of Victim OR
  2. Concealment of Victim in secret place
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129
Q

Majority State: 4 common forms of Aggravated Kidnapping

A
  1. Kidnapping for Ransom
  2. Kidnapping for the Purpose of Commission of Other Crimes
  3. Kidnapping for Offense Purpose
  4. Child Stealing
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130
Q

Aggravated Kidnapping: Kidnapping for Ransom

A

The abduction or secretion of Person for the purpose of obtaining anything of value for the return of Person.

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131
Q

Aggravated Kidnapping: Kidnapping for the Purpose of Commission of Other Crimes

A

Abduction or secretion for the purpose of committing other offenses, such as robbery

132
Q

Aggravated Kidnapping: Kidnapping for Offensive Purpose

A

Abduction or Secretion with the intent of

 1. harming Person OR
 2. committing some sexual crime with Person
133
Q

Aggravated Kidnapping: Child Stealing

A

Leading, taking, enticing, or detaining Child with intent to keep or conceal the child from a guardian or parent.

NOTE: consent of children is irrelevant because age = incapacitation to consent

134
Q

Kidnapping: Free consent given by a person competent to consent . . .

A

Precludes the confinement or movement of a person from being kidnapping

135
Q

IF Statutes define kidnapping as detention involving movement of the victim, kidnapping arguably occurs . . .

A

Incident to the commission of other crimes, such as robbery or rape

Sometimes ONLY IF movement of Victim substantially increased the risk to the victim, over and above that necessarily involved in the other crime.

136
Q

Common Law: Rape

A

FELONY

The unlawful carnal knowledge of a woman by a man, NOT her husband, WITHOUT her effective consent

137
Q

Rape requires ONLY

A

The penetration of the female sex organ by the male sex organ

Emission is NOT necessary to complete the crime

138
Q

Modern Trend: Rape is renamed to __________ AND Statutory terms are ____________.

A

Sexual Assault and Statutory Terms are gender neutral

139
Q

Majority State: Rape: the requirement that woman and man are NOT married is

A
  1. Abolished

2. Dropped IF parties are estranged or separated

140
Q

Rape: Victim’s Consent is INEFFECTIVE IF

A
  1. Intercourse is accomplished by actual force
  2. Intercourse is accomplished by placing Victim in fear of great and immediate bodily harm (even IF Victim fails to resist to the utmost
  3. Victim is incapable of consenting because of
    1. Unconsciousness
    2. The effect of drugs or intoxicating substances
    3. viVictim’s mental condition (insane/cognitively impaired)
141
Q

Rape: Consent: IF Victim is fraudulently caused to believe that the act is NOT sexual intercourse, the act

A

IS RAPE

142
Q

IF Defendant fraudulently persuades Victim that he is her husband, intercourse

A

Does NOT constitute rape (best answer)

143
Q

Intercourse obtained by fraud will constitute rape ONLY IF

A

Defendant fraudulently causes Victim to believe that the act is not sexual intercourse

144
Q

Statutory Rape

A

The crime of carnal knowledge with a person the age of consent EVEN IF Victim willingly participated

145
Q

Statutory Rape: Age of consent

A

Varies from state to state, generally 16 to 18

146
Q

Statutory Rape is a _____ crime

A

Strict liability

147
Q

Statutory Rape: Reasonable Mistake as to Victim’s age

A
  1. Defendant still LIABLE (best answer)
  2. May prevent conviction IF Defendant reasonably believed that Victim was old enough to give effective consent (second best answer)
148
Q

Crimes against nature: Beastiality

A

Probably the only crime against nature that still survives

It’s the carnal copulation with an animal by a human being (male or female)

149
Q

Adultery and Fornication were punished by

A

The church as ecclesiastical offenses

150
Q

The misdemeanor offense of Adultery is committed when

A

Any person cohabits or has sexual intercourse with another, NOT his spouse IF

  1. The behavior is open and notorious AND
  2. Person is married AND other Person is not his spouse OR
  3. Person is NOT married AND knows that other Person IS MARRIED
151
Q

Fornication

A

Sexual intercourse between OR open and notorious cohabitation by unmarried Persons

152
Q

Incest

A

Statutory Offense–usually a Felony

Marriage OR Sexual Acts between persons who are too closely related.

153
Q

Incest: Degree of Relationship

A

No uniformity exists among the States

Majority: Blood Relatives
Significant Number: also includes some no blood relatives

154
Q

Incest: Degree of responsibility

A

Some states make a distinction in penalties depending on the parties involved

155
Q

Seduction

A

Statutory Felony

Male Person induces Unmarried Female of previously chaste character to engage in an act of intercourse on the promise of marriage

156
Q

M.P.C.: Seduction

A

A male person induces a female person to engage in an act of intercourse based on a false promise of marriage.

157
Q

Seduction: Defense

A

Subsequent marriage.

There is no uniformity requiring a specific time of the marriage. It may be before the indictment, after sentence, or anywhere in between.

158
Q

Bigamy

A

Marrying someone while having another living spouse

A traditional strict liability offense

158
Q

Actus Reus: Possession of Contraband may be . . .

A
  1. Non-Exclusive

2. Constructive IF the Contraband is Located in an Area within Person’s Dominion and Control

159
Q

Common Law: Defendant is Guilty of Bigamy EVEN IF Defendant reasonably believed that . . .

A
  1. Defendant’s purported divorce was valid, OR

2. Defendant’s spouse is dead

159
Q

Majority: Transferred Intent: IF Defendant could assert Any Defenses or Mitigating Circumstances against Intended Victim,

A

Defense or Mitigating Circumstances may be asserted against Unintended Victim

e.g., self-defense, provocation

160
Q

Common Law: Larceny

A

The taking and carrying away
Of another’s tangible, personal property
By trespass

With intent to deprive Person of his interest in the property

 1. Permanently
 2. For an unreasonable time
161
Q

Common Law: Larceny can be committed ONLY by the acquisition of personal property that is . . .

A
  1. Capable of being possessed, AND

2. Of some value

162
Q

Common Law: Larceny: Realty and Severed Materials are NOT:

A

Subjects of larceny

163
Q

Larceny: If something is severed from realty and taken before Landowner takes possession,

A

Larceny is NOT committed.

164
Q

Larceny: IF Landowner receives possession of Severed Materials as personalty, a subsequent taking . . .

A

Is Larceny.

165
Q

Larceny: Traditionally, obtaining services wrongfully . . .

A

Does NOT rise to Larceny.

166
Q

Larceny: Intangibles . . .

A

CANNOT give rise to larceny.

167
Q

Larceny: Gas and Electricity . . .

A

Are considered personal property that can be stolen.

168
Q

Common Law: Larceny: Documents and Instruments

A

Merge with the matter they represent

UNLESS they have monetary value in themselves

169
Q

Modern Statutes: Larceny: Written Instruments

A

Modern statutes expand larceny to include instruments embodying intangible rights.

170
Q

Larceny: Another’s Property includes

A

Property taken from Someone with a Superior Possessory Interest

171
Q

Embezzlement/Larceny: IF Defendant has possession (e.g., bailee) at the time of the taking, the resulting offense . . .

A

Is NOT Larceny

MAY be Embezzlement

172
Q

Larceny: IF Defendant has “custody” of property, NOT possession, then

A

Misappropriation of the property is Larcency

173
Q

Larceny: Another’s Property: Custody v. Possession: Possession involves __________________________________________________.

A

Possession involves a much greater scope of authority to deal with property than does c

Example: A, while in a store, asks B, the Clerk, if she may take a certain suit of clothing home on approval. B consents. A then asks her to see a watch to examine it; B gives it to her. A absconds with both items. Have either of them been taken from B’s possession?

Held: the watch was taken from B’s possession, because A only had the authority to look at it. The suit, on the other hand, was in A’s possession at the time it was misappropriated because of the extent of control B had given A over it.

174
Q

Larceny: Another’s Property: Custody v. Possession: Low Level Employees

A
  1. Generally ONLY have Custody of Employer’s Property.
  2. Employee has Possession IF
    1. Employer gives Employee Especially Broad Power Over
      Employer’s Property
    2. Employee receives Property directly from Third Person
      WITHOUT Employer’s Intermediate Possession.
175
Q

Larceny: Another’s Property: Custody v. Possession: Bailee

A

Generally Bailee has Possession of Bailor’s Property BUT

 IF Bailee Opens Closed Containers containing Bailor's Properties (i.e., breaking bulk), the law regards that Possession returns to Bailor.

 IF Bailee Misappropriates Property AFTER Breaking Bulk, Bailee is taking from Bailor's Possession.
176
Q

Larceny/Embezzlement: Another’s Property: Custody at the Time of a Taking: IF Person has Lawful Custody of Property when Person “Takes” the Property,

A

Person is NOT guilty of Larceny, EVEN IF Person does NOT Own the Property

Person MAY be guilty of Embezzlement

177
Q

Larceny: Custody at the Time of a Taking: IF Owner takes Own Property WHEN Another has Lawful Possession,

A

Owner may be guilty of Larceny.

178
Q

Larceny: Another’s Property: Stolen Property

A

May be the subject of Larceny

179
Q

Common Law: Larceny: Another’s Property: Joint Property

A

Joint Owner CANNOT commit Larceny by taking the Jointly Held Property

180
Q

Larceny: Another’s Property: Lost or Mislaid Property

A

The law regards that Owner Constructively Possesses lost or mislaid property

IF lost or mislaid property is FOUND AND TAKEN, the Property is taken from Owner’s Possession AND Larceny may be committed.

181
Q

Larceny: Another’s Property: Abandoned Property

A

Abandoned property has NO Owner; therefore, Larceny CANNOT be committed by appropriating abandoned property.

182
Q

Larceny: Taking: It is essential that Defendant . . .

A

Actually Obtain Possession and Control of Property

183
Q

Larceny: Taking: Destruction

A

INSUFFICIENT to constitute a Taking.

184
Q

Larceny: Taking: Movement

A

INSUFFICIENT to constitute a Taking.

185
Q

Larceny: Takings by Innocent Agents

A

IF Defendant obtains control of Property through the acts of Innocent Agents, a TAKING STILL OCCURS.

Example: D points out Cow and offers to sell it to X for $10. X gives D the money and takes the cow. D is guilty of Larceny.

186
Q

Larceny: Carrying Away

A
  1. ALL Property’s Parts or Portions MUST be (slightly) MOVED

AND

  1. the Movement MUST be part of the carrying away process.
187
Q

Larceny: Trespass

A

Defendant must Take Property from Another’s Possession OR Control in a Trespassory manner, i.e. without the consent of the person j custody or possession of the property.

188
Q

Larceny: Trespass: Larceny By Trick

A

IF Victim consent to Defendant taking Possession or Custody of Property BUT the CONSENT was INDUCED BY MISREPRESENTATION, the Consent it INVALID, and the resulting Larceny is often referred to as larceny by trick.

WATCH OUT: distinguishing false pretenses

189
Q

Larceny: Intent

A

At the time of taking, Defendant intended to permanently deprive Another of his property interest

190
Q

Larceny: IF Defendant intends to deal with Property in manner involving Substantial Risk of Loss,

A

The intent is sufficient for Larceny

191
Q

Larceny: IF Defendant takes goods with the intent to sell them back to the owner,

A

The intent is sufficient for larceny because it involves the substantial equivalent of (substantial risk of) permanent loss.

192
Q

Larceny: If Defendant intends to return property within a reasonable time AND at the time of the taking has a substantial ability to do so,

A

The unauthorized borrowing does NOT Constitute Larceny.

NOTE: Many states make it a crime to joyride (borrowing a motor vehicle, even if borrower fully intends to return it)

193
Q

Larceny: IF Defendant honestly believes she is entitled to repayment of Other’s Debt AND Defendant takes Other’s money or goods,

A

Defendant is not guilty of Larceny BUT the goods MUST be less than or equal to the amount of the debt

Rationale: Defendant believes the property is his; therefore, Defendant lacks the intent to deprive someone else of her property

194
Q

Larceny: Intent: IF Property taken is NOT For Sale, the fact that Defendant intends to pay for it . . .

A

Does NOT negate the Larceny.

195
Q

Larceny: Intent: IF Property taken is For Sale, the taking is NOT Larceny IF

A

Defendant has Specific AND Realistic Intent to Repay Seller.

196
Q

Larceny: Intent: IF Defendant takes goods, intending to return them AND HOPING for a reward,

A

The intent is INSUFFICIENT for Larceny.

197
Q

Larceny: Intent: IF Defendant takes goods NOT intending to return them UNLESS she is ASSURED of an Award,

A

The intent is sufficient for Larceny because it creates a substantial risk of loss.

198
Q

The 4 Situations Requiring Highly Technical Application of Larceny Elements

A
  1. Abandoned or Lost Property
  2. Misdelivered Property
  3. “Container” Situations
  4. “Continuing Trespass” Situations
199
Q

Larceny: Person finding lost or mislaid property can commit Larceny IF

A
  1. Finder knows, or has reason to believe, that Finder can find out Owner’s identity AND
  2. At the moment Finder takes possession, Finder MUST have the intent necessary for Larceny.
200
Q

Larceny/Embezzlement: IF Finder of lost or mislaid property takes custody without the intent to steal BUT later formulates the intent,

A
  1. Finder has NOT committed Larceny

2. Finder has NOT committed embezzlement because no trust relationship exists between Finder and Owner

201
Q

Larceny: Person accepting misdelievered property commits larceny IF

A
  1. At the time of misdelievery, Person realizes the mistake AND
  2. At the time of the acceptance of the misdelievery, Person has the intent to permanently deprive
202
Q

Larceny: Container Cases: IF Defendant is charged with Larceny for an item Defendant discovers within another larger item or container, which Defendant legitimately possesses, the issue is

A

Whether Defendant already has possession at the time she appropriates the discovered item.

IF YES, NO larceny because Property was not taken from Another

IF NO, larceny

203
Q

Larceny: Containers: IF Parties intended to transfer a container, the law regards that . . .

A

Recipient takes immediate possession of both the container and its contents.

Therefore, Recipient’s later misappropriation of contents is NOT larceny because Recipient already has possession.

204
Q

Larceny: Containers: IF Parties do NOT intend to transfer a container AND regard the it,s transferred as empty, the law regards that . . .

A

Recipient does NOT obtain possession of contents UNTIL Recipient discovers them.

IF at the time of Discovery, Recipient has the intent to permanently deprive, Recipient is guilty of Larceny

205
Q

Larceny: a Trespassory taking WITHOUT the intent to permanently deprive,

A

Is NOT Larceny

206
Q

Larceny: a Trespassory taking of property WITH a wrongful state of mind BUT WITHOUT the intent to permanently deprive AND LATER, while still in possession, the intent to permanently deprive develops,

A

The trespass involved in the initial wrongful taking is regarded as “continuing” AND Person is guilty if Larceny.

NOTE: Person NOT guilty of Larceny IF initial state of mind was NOT motivated by a wrongful state of mind

207
Q

Embezzlement was NOT a Common Law Crime,

A

It is part of the America Common Law, a statutory misdemeanor beginning in 1799, intended to plug the gaps in the law of larceny.

208
Q

Modern Statutes: often distinguish between grand embezzlement and petit embezzlement based on . . .

A

The value of the property embezzled

Grand Embezzlement = Felony
Petit Embezzlement = Misdemeanor

209
Q

Generally, Embezzlement requires . . .

A

Fraudulent
Conversion
Of Another’s Property
By Person in Lawful Possession of Other’s Property

210
Q

Embezzlement: Conversion requires that . . .

A

Defendant dealt with Property in a manner INCONSISTENT with the Trust Arrangement, pursuant to which Defendant holds the property.

211
Q

Embezzlement: Conversion need NOT result in . . .

A

Defendant’s Direct Personal Gain.

212
Q

Embezzlement: Property

A

Usually Statutorily Defines as “property that may be subject to larceny” I.e., real property and services CANNOT be embezzled

Some relatively expansive statutes make embezzlement of real property a crime.

213
Q

Embezzlement: IF Borrower converts money for personal use AND fails to repay Grantor,

A

Borrower is NOT guilty of embezzlement because embezzlement requires that converted property belongs to Another, not Convertor

214
Q

Embezzlement: Intent

A

Intent to defraud

215
Q

Embezzlement: Intent: IF Defendant intended to restore the EXACT Property take,

A

NO Embezzlement

216
Q

Embezzlement: Intent: IF Defendant intended to restore SIMILAR or SUBSTANTIALLY IDENTICAL Property,

A

Embezzlement EVEN IF Defendant initially took money with intent to restore it with other money of identical value.

217
Q

Embezzlement: IF Defendant honestly believes she is entitled to repayment of Other’s Debt AND Defendant converts Other’s Property,

A

NO Embezzlement. The fact that Defendant retained Property openly tends to establish a claim of right

218
Q

Embezzlement: IF a conversion of property clearly occurred, Victim . . .

A

Need NOT make a demand that it be returned.

219
Q

Embezzlement: IF a conversion of property doubtfully occurred, it may be necessary that . . .

A
  1. Owner demanded return

2. Defendant refused to return

220
Q

Minority States: Embezzlement: Limitation

A

The fraudulent conversion of property “entrusted” or “delivered” to Embezzler.

Therefore, IF Person finds lost property and fraudulently converts it, while in lawful possession, Person is NOT guilty of embezzlement.

221
Q

Generally, False Pretenses Requires . . .

A

Obtaining Title
To Another’s Property
By an intentional (minority: knowing) false statement of past ot existing fact
With intent to defraud

222
Q

False Pretenses v. Larceny:

IF Defendant obtains only custody . . .
IF Defendant obtains title . . .

A
  1. Larceny by trick
  2. False Pretenses

NOTE: what is obtained depends upon Victims intentions to Convey

223
Q

False Pretenses/Larceny by Trick: IF Defendant knows that Victim holds a mistaken belief, Defendant’s failure to correct the mistaken belief is NOT misrepresentation IF

A
  1. Defendant was NOT responsible for creating the mistaken belief OR
  2. Defendant has NO fiduciary duty to the aggrieved party
224
Q

False Pretenses/Larceny by Trick: Defendant must have created

A

A false impression as to the matter of fact

225
Q

False Pretenses/Larceny by Trick: IF Defendant’s statements constitute only an opinion or puffing, Defendant’s statements . . .

A

Are NOT misrepresetations

226
Q

False Pretenses/Larceny by Trick: Traditionally: Defendant’s misrepresentation MUST have related to . . .

A

A past or present fact

False promises were NOT sufficient

227
Q

False Pretenses/Larceny by Trick: M.P.C./Majority: ANY false representation . . .

A

Is suffice to constitute a misrepresentation, including false promise to perform.

228
Q

False Pretenses: Victim MUST actually . . .

A

Be deceived by, or act in reliance on, the misrepresentation AND

the deception or action must be a major factor (or sole cause) of Victim passing title to Defendant

229
Q

False Pretenses: Intent to Defraud: Depending on the statute involved, Defendant MUST have

A
  1. Known the statement was false OR
  2. Intended for a victim to rely upon the misrepresentation OR
  3. Subjected Victim to a risk of loss
230
Q

False Pretenses: Majority State: Defendant knows of a statement’s falsity IF

A

Defendant deliberately avoided learning the truth, AFTER Defendant was put on notice of the high probability of the statement’s falsity

231
Q

Majority State: Bad Check Legislation

A

Resembles False Pretenses, but its a separate statutory crime prohibiting tendering no-account or insufficient funds checks with the intent to defraud.

232
Q

Majority State: Abuse or Misuse of Credit Card Legislation

A

Resembles False Pretenses, BUT it’s a separate statutory offense (misdemeanor) to

Knowingly obtain property by a means of a stolen, forged, canceled, revoked, or otherwise unauthorized credit card

233
Q

Robbery requires. . .

A 
A taking
Of Another's Personal Property
From Other's Person or Presence
By force or intimidation
With intent to permanently deprive
234
Q

Robbery is . . .

A

A felon in ALL jurisdictions and

Basically aggravated larceny, in which the taking is accomplished by force or threats of force,

235
Q

Robbery: IF force is used, it MUST be

A

Sufficient to overcome Victim’s resistance.

236
Q

Robbery: IF threats are used, they MUST be

A

Threats of immediate death or serious physical injury to Victim, Victim’s Family/Relative, or Present Person.

Threats to damage property are INSUFFICIENT UNLESS the threat is to destroy Victim’s dwelling

237
Q

Robbery: Property MUST be taken from . . .

A

Some location reasonably close to the victim (within Victim’s vicinity)

IF Victim is within a house, Any property also within the house is in Victim’s presence

238
Q

Robbery: the use of force or threats MUST must be used to . . .

A
  1. Gain possession of the property OR

2. Retain possession immediately after gaining possession

239
Q

Majority State: Aggravated Battery

A

Battery accomplished with a deadly weapon

240
Q

Common Law: Extortion

A

Misdemeanor

The corrupt collection of an unlawful fee by an officer under color of his office.

241
Q

Majority Trend: Extortion/Blackmail

A

Obtaining property from another by means of certain oral or written threats, usually threats to

 1. Cause physical harm to Victim or Others
 2. Damage Victim's Property
242
Q

Split View: Extortion: Completion

A
  1. Crime complete when threats are made with intent to obtain money or something of value (threat = essence of offense)
  2. Crime complete when money or property actually obtained because of the threats
243
Q

Extortion: Threats do NOT need to involve

A

Immediate or physical harm

244
Q

Extortion: Property generally does NOT need to be obtained from

A

victim’s presence or person

245
Q

Common Law: Receipt of Stolen Property

A

Misdemeanor

Substantially identical to modern offense

246
Q

Receipt of Stolen Property requires . . .

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 intent to permanently deprive Owner
247
Q

Modern Law: Extortion

A

Generally expanded far beyond its initial common law definition

248
Q

Receipt of Stolen Property: Possession and Reciving

A

Possession is sufficient for receiving, BUT NOT necessary.

249
Q

Receipt of Stolen Property: Receiving

A
  1. Manual Possession OR
  2. Thief places Stolen Property in Place Designated By Defendant OR
  3. For Profit, Defendant arranges for Thief to sell stollen property directly to Third Party
250
Q

Majority Trend: Receipt of Stolen Goods: “Stolen”

A

Defined broadly to included property obtained by commission of any of the property offenses BUT the property MUST have stolen status at the time it is received by Defendant

251
Q

Receipt of Stolen Property: IF Police recover Stolen Goods AND use them in an undercover operation WITHOUT owner’s permission, the goods . . .

A

Are NOT stolen AND Defendant CANNOT be guilty of receipt of stolen property

BUT

Defendant MAY be guilty of attempt to receive stolen goods

252
Q

Majority Trend: Theft

A

Theft = modern statutory crime

The consolidation of larceny, embezzlement, false pretenses, and receipt of stolen goods.

253
Q

Majority Trend: Larceny and other Property Offenses are expanded to cover . . .

A

Services, documents, intangibles, and joint property

254
Q

Minority Trend: reject the requirement of absorption for Larceny and require only that . . .

A

Control of the proper be obtained

255
Q

Minority Trend: simplify trespass requirement for Larceny

A

Defendant only needs to obtain unauthorized “control” over the property

256
Q

Common Law: Forgery

A

Making or Altering
Of a False Writing
With Intent to Defraud

257
Q

Common Law: Uttering a Forged Instrument

A

Offering as genuine
A false instrument (may be forged)
With Intent to defraud

258
Q

_________________________________ is a potential subject of forgery.

A

Any writing that has apparent legal significance

Writing = typewritten, printed, engraved, and other similar material

259
Q

_________________________________________ CANNOT be the subject for Forgery

A

Writings that derive their value from the mere fact of their existence (I.e., historical or artistic value)

260
Q

Forgery: False Statement

A

The writing MUST represent itself to be something it is not.

It is INSUFFICIENT that a writing merely contains a false statement.

261
Q

Forgery: Making

A

Forgery can be committed by the making of an entire instrument

262
Q

Forgery: Alteration

A

Forgery may be committed by altering an existing instrument, IF the alteration is material (affecting legal rights)

263
Q

Forgery: Alteration may be in the form of . . .

A
  1. Changing some of the writing
  2. Adding to the existing writing
  3. Removing some of the existing writing
  4. Improperly filling in blanks
264
Q

Forgery: IF Defendant fraudulently causes Third Person to sign a document that Third Person does NOT realize he is signing,

A

Forgery has been committed

265
Q

Forgery: IF Defendant fraudulently causes Third Person to sign a document AND Third Person realizes he is signing the document,

A

Forgery has NOT been committed, EVEN IF induced by fraud

266
Q

Forgery: Intent

A

Intent to defraud BUT no one actually needs to be defrauded

Intention if pecuniary harm is NOT necessary
Intention of ANY harm is sufficient

267
Q

Common Law: Malicious Mischief

A

Misdemeanor

Malicious
Destruction of OR Damage to
Another’s Property

268
Q

Common Law: Malicious Mischief: Damage

A

Only necessary that some physical damage be done, which

 1. impairs the utility of the property OR 
 2. materially diminishes Property's value.
269
Q

Common Law: Malicious Mischief: Intent

A

Malice, which requires that the damage or destruction was contemplated or intended by Defendant

Malice does NOT require ill will or hatred

270
Q

Common Law: Burglary

A

Breaking and Entering
Another’s Dwelling
At nighttime
With Intent to commit a felony therein

271
Q

Common Law: Burglary: Breaking

A

Actual breaking requires the use of some force to gain entry BUT minimal force is sufficient (i.e., opening a closed door)

272
Q

Common Law: Burglary: Breaking: IF force is used to enlarge an opening so that entry can be made,

A

Traditional Rule: NO breaking

Better View: Breaking occurred because force was used to gain entry

273
Q

Common Law: Burglary: Constructive Breaking

A

Gaining entry by means of

 1. Fraud
 2. Threat
 3. Intimidation
 4. A Chimney
274
Q

Common Law: Burglary: Breaking: IF Defendant has Resident’s consent to enter,

A

The use of force to gain entry is NOT a breaking because breaking requires trespass.

275
Q

Common Law: Burglary: Breaking: IF Defendant has consent to enter during limited times,

A

Entry by force at other times IS a breaking

276
Q

Common Law: Burglary: Breaking of the Dwelling

A

The breaking MUST effect entry into the structure or some separately secured us portion.

Sufficient: Defendant broke to enter a closed closet or wall safe
Insufficient: Defendant breaks open a box or trunk within dwelling

277
Q

Common Law: Burglary: Breaking: IF Defendant hides in a dwelling with the intent to commit a felony, and then breaks to get out of the dwelling,

A

There is NO Burglary because the breaking must be to gain entry

278
Q

Common Law: Burglary: Entry

A

Entry is made by placing any portion of the body inside the structure, even momentarily

279
Q

Common Law: Burglary: Entry: IF a tool or inanimate object is inserted into the structure,

A

Entry occurs IF it was inserted for the purpose of accomplishing the felony (i.e., shooting bullet through window)

Entry does NOT occur IF it is inserted for the purposes of gaining entry

280
Q

Common Law: Burglary: Dwelling

A

A structure regularly used for sleeping purposes

281
Q

Common Law: Burglary: Dwelling: IF a structure is used for both sleeping and other purposes, i.e., conducting business,

A

The structure remains a dwelling

282
Q

Common Law: Burglary: Dwelling: Temporary Absence

A

Temporary absence of the dwellers within the dwelling does NOT deprive the dwelling of its character as a dwelling

283
Q

Common Law: Burglary: Dwelling: BEFORE Dweller moves in, EVEN IF the structure was built to be a dwelling,

A

The structure is NOT a dwelling

284
Q

Common Law: Burglary: Dwelling: AFTER last dweller moves out with NO intent to return

A

The dwelling looses its character as a dwelling.

285
Q

Common Law: Burglary: Another’s Dwelling: Occupancy v. Ownership

A

Occupancy is material

Owners can commit burglary of his own structure IF others rent and use the property as a dwelling

286
Q

Common Law: Burglary: Nighttime

A

The period during which the countenance of a person could not be discerned by natural light

287
Q

Common Law: Burglary: Intent

A

At the time of entry, Defendant MUST have intended to commit a felony

It is not necessary that the intent be carried out.

IF intent is formed after entry, then NO burglary

288
Q

Majority Trend: Burglary: Breaking

A

In many jurisdictions, it is sufficient that Defendant entered the structure, EVEN IF Defendant did NOT break to gain entry

289
Q

Majority Trend: Burglary: Breaking: Remaining in a Structure

A

It is often burglary to remain concealed I’m a structure with the intent to commit an felony

290
Q

Majority Trend: Burglary: Dwelling/Structures

A

The description of structures that can be burglarized are often expanded beyond dwellings and sometimes beyond structures to include yards and cars

291
Q

Majority Trend: Burglary: Nighttime

A

The requirement that entry be at nighttime is often ABANDONED

BUT Burglary at nighttime is often assigned a more severe penalty than other burglaries.

Nighttime is often defined by statutes as sunrise and sunset

292
Q

Majority Trend: Burglary: Intent

A

The intent to commit a felony is is often expanded, making it sufficient for Defendant to intend to commit ANY theft, EVEN misdemeanor thefts

293
Q

Common Law: Arson

A

The malicious
Burning
Of Another’s Dwelling

294
Q

Common Law: Burning/Damage

A

The required damage MUST be caused by fire

damage caused by an explosion does NOT constitute arson

295
Q

Common Law: Burning: Scorching v. Charring

A

Mere blackening by smoke or discoloration by heat (“scorching”) is INSUFFICIENT

There MUST be some damage t the fiber of the wood or other combustible material; therefore, mere “charring” is sufficient.

Destruction or significant damage to the structure is not required

296
Q

Common Law: Arson: Dwelling

A

Defined the same was a dwelling for burglary

Before dweller moves in and after dweller moves out with no intent return, NO Dwelling

Dwelling may be used for other purposes than sleeping

Temporary absences do NOT negate characteristic of dwelling

Occupancy is material: Owners can commit arson of his own structure IF others rent and use the property as a dwelling

297
Q

Majority Trend: Arson: Dwelling

A

Most states, by statute, extend arson to structures other than dwellings

NOTE: questions testing onto her arson issues, i.e. malice, often assume without saying that the jurisdiction’s arson law applies to structures other than dwellings

298
Q

Common Law: the burning of One’s own house is

A

The misdemeanor of “house burning” IF other dwellings were nearby

299
Q

Common Law: Arson: Intent

A

Malice, all that malice requires is that Defendant acted with

 1. intent or knowledge that the structure would burn, OR
 2. reckless disregard of an obvious risk that the structure would burn.

No specific intent is required, BUT it is NOT sufficient that the burning was accidental, EVEN IF Defendant was negligent

300
Q

Common Law: House Burning

A

Misdemeanor

Malicious
Burning
Of One's Own Dwelling
IF the structure is located
     1. In a city or town
     2. So near to other houses as to create a danger to them
301
Q

Common Law: Arson: Intent to defraud Insurance Company

A

NOT arson to burn one’s own dwelling for the purpose of fraudulently collecting the insurance

302
Q

Majority Trend: Arson: Intent to defraud Insurance Company

A

Modern Statutes often make it an offense to burn one’s own dwelling for the purpose of fraudulently collecting the insurance.

303
Q

Majority Trend and M.P.C.: Expanding Criminal Lability for Arson

A

The definition of arson is expanded to include

 1. damage caused by explosion
 2. Other types of property, including commercial structures, cars, and trains
304
Q

Common Law: Perjury

A

The willful and corrupt taking of a false oath in regard to a material matter in a judicial proceeding

305
Q

Common Law: Perjury: Materiality

A

Materiality MUST be alleged in the indictment AND proved by the prosecution

Material Statements = Statements that might affect some phase or detail of the trial, hearings declaration, etc.

306
Q

Common Law: Perjury: Contradictory Statements

A

IF Witness makes two contradictory statements at the same proceeding AND admits that one of the statements is false BEFORE the end of the proceeding, Witness CANNOT be prosecuted for Perjury because we want witnesses to correct any false statement before substantial damage is caused

307
Q

Perjury: Civil Liability: Litigation under the Civil Rights Act, ALL Witnesses . . .

A

are completely immune from civil liability based on their testimony in judicial proceedings. Briscoe v. LaHue, U.S. (1983)

308
Q

Common Law: Subornation of Perjury

A

Procuring or inducing another to commit perjury.

Minority States: NOT part of the perjury statute

309
Q

Common Law: Bribery

A

The corrupt payment OR Receipt of anything of value in return for official action

310
Q

Modern Law: Bribery

A
  1. Can be a felony
  2. May be extended to classes of persons who are not public officials (e.g. Athletes)
  3. Offering OR Taking a bribe may constitute the crime
311
Q

Bribery: Mutual Intent

A

NO mutual criminal intent, JUST ONE PERSON

312
Q

Minority: Bribery: Failure to Report

A

Some states make the failure to report a bribe a misdemeanor offense.

313
Q

Common Law: Compounding a Crime

A

Entering into an agreement for valuable consideration to

 1. not prosecute another for a felony or
 2. conceal the commission of a felony or 
 3. conceal the whereabouts of a felon
314
Q

Modern Law: Compounding a Crime

A

The definition remains essentially the same BUT it applies to ANY crime, NOT just felonies

Minority: Felony Offene

315
Q

Common Law: Misprison of a Felony

A

Person fails to disclose OR report knowledge of the commission of a felony

Person IS NOT Principal OR Accessory Before the Fact

NO consideration

316
Q

Majority: Misprison of a Felony

A

Today, most jurisdictions do not recognize the crime of misprison of a felony; therefore, People have NO obligation to report crimes

317
Q

Offenses against the Person

A
  1. Assault
  2. Battery
  3. Mayhem
  4. Homicides
  5. False Imprisonment
  6. Kidnapping
318
Q

Sex Offenses

A
  1. Rape
  2. Statutory Rape
  3. Crimes Against Nature
  4. Adultery
  5. Fornication
  6. Incest
  7. Seduction or Carnal Knowledge
  8. Bigamy
319
Q

Property Offenses

A
  1. Larceny
  2. Embezzlement
  3. False Pretenses
  4. Robbery
  5. Extortion
  6. Receipt of Stolen Property
  7. Forgery
  8. Malicious Mischief
320
Q

Offenses against the Habitation

A
  1. Burglary
  2. Arson
  3. House Burning
321
Q

Offenses Involving Judicial Procedure

A
  1. Perjury
  2. Subornation of Perjury
  3. Bribery
  4. Compounding a Crime
  5. Misprison of a Felony

Bar Study (2 decks)

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