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Multistate & Georgia Distinctions > Criminal Law > Flashcards

Criminal Law Flashcards

1
Q

What are the four essential elements of crimes?

A

1) Actus Reus (Act Requirement)
2) Mens Rea (Mental State)
3) Causation
4) Concurrence Principle (Mens Rea at the same time as Actus Reus)

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2
Q

What are the two types of specific crimes?

A

Crimes against the Person

Property Crimes

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3
Q

What are the types of Parties to Crime and Liability for Conduct of Others?

A

Accomplice Liability

Enterprise Liability

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4
Q

What are the Inchoate Offenses?

A

Solicitation

Conspiracy

Attempt

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5
Q

What are the various criminal law defenses?

A

1) Insanity
2) Voluntary Intoxication
3) Infancy
4) Mistake
5) Self-Defense
6) Necessity
7) Duress
8) Entrapment

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6
Q

A crime may be prosecuted in any state based on what jurisdiction?

A

1) Where an act that was part of the crime took place

2) Where the result of the crime took place

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7
Q

What is burden of proof for the prosecution in a criminal case?

A

Prosecution must prove each element of the crime beyond a reasonable doubt

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8
Q

What is the difference between a felony and a misdemeanor?

A

A felony is a crime that may be punished by death or imprisonment for more than one year

A misdemeanor is a crime that may be punished by a fine and/or imprisonment for no more than one year

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9
Q

All bodily movements can be the basis for criminal liability, provided they are…?

A

Voluntary

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10
Q

Involuntary movements are not considered criminal acts if….?

A

They are not the product of the actor’s volition

It is from sleepwalking or otherwise unconscious conduct

It is a reflex or convulsion

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11
Q

An omission, or failure to act, can be the basis for criminal liability, provided what 3 requirements are satisfied?

A

1) Need a legal duty to act:
- By statute
- By contract
- By status relationship (parent-child, spouse-spouse)
- By voluntary assumption of care
- By creation of the peril

2) Need knowledge of the facts giving rise to the duty
3) Need ability to help

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12
Q

What are the four Common Law Mental States, and what are the applicable crimes?

A

1) Specific Intent: Not just the desire to do the act, but also to achieve to a specific result
- Crimes against the person
- ->Assault
- ->First degree, premeditated murder
- Property crimes
- ->Larceny
- ->Embezzlement
- ->False Pretenses
- ->Robbery
- ->Forgery
- ->Burglary
- Inchoate Crimes
- ->Solicitation
- ->Conspiracy
- ->Attempt
- Potential defenses? Voluntary Intoxication, or an Unreasonable Mistake of Fact

2) Malice: When a defendant acts intentionally or with reckless disregard of an obvious or known risk
- Murder
- Arson

3) General Intent: Defendant need only be generally aware of the factors constituting the crime; don’t need intent of a specific result (all crimes against a person)
- Battery
- Forceable Rape
- False Imprisonment
- Kidnapping

4) Strict Liability: When the crime requires simply doing the act; No mental state is needed.
- Public Welfare: Regulatory offenses that implicate public heath or safety
- ->Transferring unregistered firearms
- ->Selling contaminated food
- ->Shipping adulterated drugs
- Statutory Rape: Having sex with someone who is under the age of consent

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13
Q

What are the mental states of the Model Penal Code?

A

1) Purpose: When it is his conscious desire to achieve a particular result
2) Knowledge: Defendant acts knowingly when he is aware of what he is doing. It is practically certain that his conduct will achieve that result
3) Recklessness: The defendant acts recklessly when he is aware of a substantial and unjustifiable risk, and consciously disregards that risk
4) Negligence: Defendant should have been aware of a substantial and unjustifiable risk
5) Strict Liability: No mental state required

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14
Q

What are the two types of causation?

A

Actual (“But For”) Causation

Proximate (“Legal”) Causation

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15
Q

How is actual causation established?

A

The defendant is an actual cause if the bad result would not have happened but for the defendant’s conduct?

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16
Q

What is the exception to the rule for Actual causation?

A

When there is an accelerating cause, that cause is an actual cause

(e.g. shooting someone in the head while they’re bleeding out)

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17
Q

How is proximate causation established?

A

A defendant is a proximate cause if the bad result is a natural and probable consequence of the defendant’s conduct.

  • Not considered a proximate cause if an unforeseeable intervening event causes the bad result
  • Defendant will be considered a proximate cause even if the victim’s pre-existing weakness contributed to the bad result (e.g. eggshell victim–take them as you find them)
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18
Q

Concurrence issues arise most frequently in which two crimes?

A

Larceny and Burglary

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19
Q

What is common law battery? What is the required mental state?

A

The unlawful application of force to another, resulting in either bodily injury or an offensive touching.

Mental state: General Intent

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20
Q

What are the two types of common law assault? What is the required mental state?

A

Attempted battery, and

“Reasonable apprehension” of the assault
-The intentional creation other than by mere words of a reasonable apprehension in the mind of the victim of imminent bodily harm (e.g. a fake punch)

Mental state: Specific Intent

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21
Q

What is aggravated assault?

A

An assault perpetrated with a deadly weapon, or with the intent to:

  • Murder
  • Rape
  • Rob
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22
Q

What is Aggravate Battery, or Battery in GA?

A

Intentionally causing serious harm to another

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23
Q

When is death required for a defendant to be convicted of homicide after the commission of the act (under common law and in Georgia)?

A

Under common law, death must occur within a year and a day of the homicidal act.

In Georgia, death may occur at any time

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24
Q

What is the definition of murder?

A

Causing the death of another person with malice aforethought

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25
Q

What potential mental states are required?

A

1) The intent to kill
2) The intent to inflict serious bodily harm
3) Extreme recklessness (reckless indifference to human life–“depraved heart murder”)
4) Intentional commission of an inherently dangerous murder (felony murder)

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26
Q

What is the deadly weapon rule?

A

That the intentional use of a deadly weapon creates an inference of an intent to kill

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27
Q

What is transferred intent? Is there an exception for transferred intent?

A

If a defendant intends to harm one victim but accidentally harms a different victim instead, the defendant’s intent will transfer from the intended victim to the actual victim.

Does not apply to attempts, only to crimes with “completed harms”

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28
Q

What are common limitations on felony murder?

A

Defendant must have been guilty of the underlying felony

Felony must be inherently dangerous

Felony must be independent of the killing (GA does not recognize this limitation)

Res gestae principles: Killing must take place during the felony or during immediate flight from the felony. Once a place of temporary safety is reached, the felony ends.

Death must be foreseeable

Victim must not be a co-felon

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29
Q

What are the two types of vicarious liability?

A

Proximate cause theory: If one of the co-felons proximately causes the victim’s death, al of the co-defendants are guilty, even if killing is committed by a third party

Agency theory: Felony murder only applies if the killing is committed by one of the co-felons

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30
Q

What is First Degree Murder?

A

Any killing committed with Premeditation and Deliberation

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31
Q

What is Second Degree Murder?

A

All other intentional murders are second degree

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32
Q

What are the classifications of murder in Georgia?

A

ALL murder is a capital offense punishable by death or life imprisonment

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33
Q

What is feticide in Georgia?

A

Causing the death of a fetus at any stage of development

  • willfully through injury to the mother that would constitute murder if it were to result in the mother’s death
  • or during the commission of a felony

Punishment is life imprisonment

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34
Q

What is Homicide by Vehicle in Georgia?

A

Causing someone’s death, without malice aforethought, by driving in a manner that violates the Motor Vehicles code

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35
Q

What is voluntary manslaughter? What are the four core requirements?

A

A killing committed intentionally in the heat of passion upon adequate provocation.

Need for:

  • Provocation to be objectively adequate (serious assault or battery; witnessing adultery)
  • Defendant to actually be provoked
  • No time to cool off
  • Defendant did not actually cool off between being provoked and killing
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36
Q

What are the two types of involuntary manslaughter? Do both exist in GA?

A

1) A killing committed during the commission of a crime to which the felony murder doctrine does not apply (in GA, “unlawful act” manslaughter

2) An unintentional killing
- Common law: with criminal negligence
- MPC: Recklessly
- GA: Doesn’t have this type of vol. manslaughter

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37
Q

What are the required acts for false imprisonment?

Required mental state?

A

The unlawful confinement of a person without his consent.

Need general intent

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38
Q

What are the required acts for kidnapping?

Required mental state?

A

False imprisonment that involves either moving the victim or concealing the victim in a secret place.

Need general intent

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39
Q

What are the requirements for forcible rape?

Required mental state?

A

Sexual intercourse without the victim’s consent, accomplished by:

  • Force
  • Threat of force
  • Or, when the victim is unconscious

Need general intent

40
Q

What are the requirements for statutory rape?

Required mental state?

A

Sexual intercourse with someone under the age of consent (in GA, 16 years old)

Need strict liability in most places, but a reasonable mistake of age is a defense in SOME places

41
Q

What are the requirements for larceny?

Definitions?

A

Trespassory Taking and Carrying away the Personal property of Another with the Intent to Permanently retain the property

  • Trespassory: Wrongful or unlawful
  • Taking and Carrying Away: Property must be moved
  • Personal Property of Another: Legal custody belonged to someone else (even if Defendant still owned property)
  • Intent to Permanently retain the property: Can’t intend to give the property back–need intent to steal
42
Q

What is the Erroneous Takings Rule?

A

A taking under a claim of right is never larceny, even if the defendant erroneously believes the property is his

43
Q

What is the doctrine of Special Trespass?

A

If a defendant later forms the intent to steal (even if he wasn’t originally guilty of larceny), the initial trespassory taking is considered to have continued and he will be guilty of larceny.

44
Q

What is embezzlement?

What is the required mental state?

A

The conversion of personal property of another by a person in lawful possession of that property, with the intent to defraud.

Need a specific intent to defraud

45
Q

Why is possession important for embezzlement?

A

Possession requires the authority to exercise some discretion over the property.

46
Q

What are False Pretenses? What kind of false statement is needed?

A

Obtaining title to the personal property of another by an intentional false statement, with the intent to defraud

Need false statement of a present or past event, not a future promise

47
Q

What is larceny by trick?

A

Where the defendant obtains only custody as a result of an intentional false statement.

48
Q

What are the elements of robbery?

Required mental state?

A

A larceny from someone’s person or presence by force or threat of immediate injury.

Need specific intent to steal

Also, must be some location reasonably close to the victim (room in house where victim is located)

49
Q

What force is needed in a robbery?

A

Any amount of force sufficient to overcome resistance is sufficient

50
Q

What kind of threat is necessary in a robbery

A

Need threat of immediate injury (can’t be future harm)

51
Q

What are the elements of a forgery?

Required mental state?

A

Making or altering a writing so that it is false

Need specific intent to defraud

52
Q

How have most states, including Georgia, consolidated the common law property crimes? How is each offense graded?

A

Into the single offense of theft

The seriousness of the offense is determined by the value of the property taken

53
Q

How is common law burglary defined?

A

The breaking and entering the dwelling of another at night with the intent to commit a felony inside

54
Q

How are the elements of common law burglary defined?

A

1) Breaking: Creating or enlarging an opening by at least minimum force (includes “Constructive breaking”–entry gained through fraud or threats)
2) Entry: Some part of defendant’s body must enter the building
3) Dwelling: a structure where someone regularly sleeps
4) Of another: Can’t burglarize your own house
5) At night: at night
6) Intent to commit a felony inside: Specific Intent Crime

55
Q

How is burglary defined in Georgia?

A

Entering or remaining within an occupied or unoccupied building or structure without authority, and with the intent to commit a felony or any theft therein.

56
Q

What is common law arson?

Required mental state?

Arson in Georgia?

A

The malicious burning of a building. Burning requires material wasting, and it must be the building itself that burns

Need malice

In Georgia, arson is knowingly damaging personal property worth $25 or more by means of fire or explosive

57
Q

What is the possession of contraband?

Constructive possession?

Required mental state?

A

When a statute criminalizes the possession of contraband, possession means controlled for a period of time long enough to terminate possession.

Contraband does not need to be in actual possession, just so long as it is close enough for him to exercise dominion and control over it.

Need knowledge of the possession and of the character of the item possessed.

58
Q

What is required for the Receipt of Stolen Property?

Required mental state?

Georgia law?

A

Receiving possession and control of stolen personal property

Need knowledge that the property has been obtained criminally by another party

Classified as a theft in Georgia

59
Q

What is act required for accomplice liability?

Required mental state?

A

Aids or encourages the principal

Need intent that crime be committed

60
Q

What is an accomplice guilty of if he is found completely liable?

A

All crimes that he aids or encourages, and all other foreseeable crimes committed along with the aided crime

61
Q

When is a person NOT an accomplice?

What is the Special Georgia Rule surrounding accomplice liability?

A

When their mere presence is at the scene without actively aiding/encouraging principal.

When they possess mere knowledge of the crime without the criminal intent.

In Georgia, an accomplice may be tried and convicted even if the principal is acquitted.

62
Q

How does an accomplice’s role in assisting the principal affect his ability to withdraw–what are the two ways to withdraw as an accomplice?

A

1) As an encourager: An accomplice who only encouraged the principal may withdraw by repudiating the encouragement before the crime is committed
2) As an aider: An accomplice who actually helped the principal must either neutralize the assistance or otherwise prevent the crime from happening

63
Q

What are the requirements for common law accessory after the fact? What kind of modern crimes does a defendant commit when he is an accessory after the fact today?

A

Helping a principal who has committed a felony with knowledge that the crime has been committed, and with the intent to help the principal avoid arrest or conviction.

Defendant commits statutory crimes such as obstruction of justice or hindering prosecution.

64
Q

What is the general requirement for Enterprise Liability?

What is a public welfare offense?

A

When a corporate agent engages in criminal conduct, BOTH the corporation and the agent may be held criminally liable, provided the agent is acting:

  • On behalf of the corporation
  • Within the scope of his or her office

When a corporation commits a regulatory offense involving public health or safety and its agents stand in reasonable relation to the situation creating the public danger

65
Q

What is the requirement for Solicitation?

Required mental state?

A

Asking someone to commit a crime, with the intent that the crime be committed

Need specific intent

66
Q

Is completion necessary for Solicitation?

A

NO, the crime is in the asking.

67
Q

What is required for conspiracy? How are those requirements defined?

Required mental state?

A

An agreement between two or more people to commit a crime, plus an overt act in furtherance of the crime

  • Agreement need not be expressed but can be proved by conduct
  • Any act, even preparatory, by any of the co-conspirators

Need specific intent to: Enter into an agreement, and to accomplish the objectives of the conspiracy

68
Q

Is completion necessary for conspiracy?

A

NO. Essence of the crime is in the agreement

69
Q

Can you have a One-Person Conspiracy under Georgia law and the common law? Under the MPC?

A

NO, under the bilateral approach, there must be at least 2 guilty minds, both of whom agree to the conspiracy

YES, under the unilateral approach, the defendant may be guilty of conspiracy even if the other parties are acquitted or were just pretending to agree

70
Q

What is vicarious or “Pinkerton” liability?

A

In addition to the conspiracy, a defendant will be liable for other crimes committed by his co-conspirators, so long as:

  • The crimes were committed in furtherance of the conspiracy’s objective, and
  • Were foreseeable
71
Q

Is impossibility a defense to a charge of conspiracy? Example?

A

NO, it’s not a defense. Still guilty of conspiracy if the person you conspire to kill dies before you kill him.

72
Q

What is required for Attempt? What are the two tests for attempt and who uses them?

A

Requires an overt act beyond mere preparation.

1) Common Law “Proximity Test”: The defendant must engage in conduct that gets dangerously close to the commission of the crime
2) Majority/Georgia/MPC “Substantial Step” Test: The defendant must engage in conduct that constitutes a substantial step towards the commission of the crime–conduct must strongly corroborate the criminal purpose

73
Q

What is the required mental state for attempt? What about unintentional crimes?

A

Requires specific intent to commit the underlying crime.

Cannot attempt unintentional crimes–no attempt versions of:

  • Recklessness crimes
  • Negligence crimes
  • Felony murder
74
Q

What is the rule for withdrawal as a defense to an inchoate offense?

A

Withdrawal is NOT a defense. But once a defendant withdraws from a criminal conspiracy, he will no longer be vicariously liable for crimes committed by co-conspirators after he leaves.

Still guilty of conspiracy and all foreseeable crimes committed prior to his withdrawal

75
Q

What is rule for withdrawal as a defense in Georgia?

A

Abandonment is a defense to attempt, provided the change of heart was complete and voluntary.

A co-conspirator can be absolved of criminal responsibility for the conspiracy charge if he withdraws before the occurrence of an overt act.

76
Q

What are the general merger rules for inchoate offenses? In Georgia?

A

Solicitation and attempt merge with the complete crime. But conspiracy does not merge.

In Georgia, conspiracy merges with the completed crime.

77
Q

What is the first requirement for the insanity defense?

A

Defendant must have a mental disease or defect

78
Q

What are two major tests for determining whether or not a mental disease or defect renders a defendant legally insane?

What are bases in Georgia for insanity acquittal?

A

1) The M’Naghten Test: Defendant must prove that he either
- Did not know his conduct was wrong
- Did not understand the nature of his conduct

2) The MPC Test: Defendant must establish that he lacked the substantial capacity to
- Appreciate the criminality of his conduct
- To conform his conduct to the requirements of the law

In Georgia, the two bases for an insanity acquittal are:

  • Defendant must prove he didn’t know his act was wrong; or
  • Defendant must prove he was operating under a “delusional compulsion” that “overmastered his will” to resist committing the crime
79
Q

What is the difference between insanity and incompetency?

A

With insanity, the issue is whether the defendant was insane at the time of the crime. If he was insane, he is not guilty by reason of insanity.

With incompetency, the issue is whether at the time of trial, the defendant cannot understand the nature of the proceedings, or cannot assist his lawyer in preparing a defense. If he is incompetent, the trial is postponed until the defendant regains competency.

80
Q

What are the common law requirements for a voluntary intoxication defense?

Georgia requirements?

A

Under the common law, voluntary intoxication can be a defense to specific intent crimes only. It requires such a “severe prostration of the faculties” that a defendant cannot form the requisite specific intent.

Under Georgia law, the voluntary intoxication defense requires more than a temporary alteration of brain function so as to negate criminal intent.

81
Q

What is the traditional requirement to raise an infancy defense?

Modern and Georgia law?

A

The common law follows the Rule of Sevens:

  • Less than 7 at time of crime, cannot prosecute
  • Between 7 and 14, there is a rebuttable presumption against prosecution
  • 14 or older, prosecution is allowed

Most states have abolished the Rule of Sevens, but in Georgia, to be found guilty of a crime, defendant must be at least 13 at the time of the crime.

82
Q

What are the two types of mistake defense?

A

Mistake of fact and mistake of law

83
Q

What are the requirements for a mistake of fact defense?

A

If mental state for the crime is specific intent, any mistake of fact will be a defense.

If mental state is malice or general intent, only a reasonable mistake will be a defense.

If mental state is strict liability, mistake of fact will NEVER be a defense.

84
Q

What are the requirements for a mistake of law defense?

A

Mistake of law is generally not a defense, unless a statute specifically makes knowledge of the law an element of the crime.

85
Q

What kinds of force are considered under Self-Defense or Justification Defense?

A

Deadly and non-deadly force

86
Q

An individual may use non-deadly force if doing so is….

A

Reasonably necessary to protect against an immediate use of unlawful force against himself

87
Q

An individual can only use deadly force in self-defense if…

A

He is facing an imminent threat of death OR serious bodily harm

88
Q

What is the initial aggressor rule?

A

A defendant may not use deadly force when he is the initial aggressor, but he can regain his right to use deadly force in self-defense if:

  • He withdraws from the fight and communicates this withdrawal to the other person; or
  • The victim suddenly escalates a non-deadly fight into a deadly one
89
Q

What is the retreat rule? In Georgia and in minority states?

A

In Georgia, retreat is not required before using deadly force in self-defense.

In minority states, retreat is required unless the defendant cannot retreat in complete safety, or he is in his home

90
Q

What is the mistake defense for using unlawful force in self-defense?

A

A reasonable mistake is a complete defense

An unreasonable mistake is not a defense at all in Georgia and in most states, but under the MPC and in a few states, an unreasonable mistake will mitigate but not exonerate a defendant.

91
Q

What is the “imperfect self-defense”?

A

An unreasonable belief in the need to use deadly force in self-defense will mitigate murder to voluntary manslaughter.

92
Q

Can force be used to prevent a crime? In defense of others? In defense of property?

A

Non-deadly force may be used, if reasonably necessary, to prevent any serious breach of the peace. Deadly force may only be used to prevent a felony risking human life.

A defendant may use force, even deadly force, to protect others as he would protect himself.

Generally, deadly force may NOT be used to defend property. But in Georgia, deadly force may be used to prevent the commission of a felony inside a dwelling.

93
Q

What are the requirements for necessity or a choice of evils defense? What are the limitations on this defense?

A

Necessity is a defense to criminal conduct if the defendant reasonably believed that the conduct was necessary to prevent a greater harm.

But the defense is unavailable if:

  • Defendant causes the death of another person to protect property
  • Defendant creates the situation that causes a choice of evils
94
Q

What are the requirements for a duress defense? What are limitations?

A

Can bring a duress defense if the defendant was coerced to commit a crime because of a threat, from another person, of imminent death or serious bodily injury–to himself or a close family member

In most states, including Georgia, duress cannot be a defense to a crime of homicide.

95
Q

What are the requirements for an entrapment defense? What are the chances of winning on this defense?

A

If the defendant believes that the government unfairly tempted him to commit a crime, he may claim entrapment. Must prove:

  • That the criminal design originated with the government; and
  • He was not predisposed to commit the crime

Entrapment is a very narrow defense–a defendant virtually never wins on this defense.

Multistate & Georgia Distinctions (3 decks)

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