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Criminal Law Flashcards

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1
Q

Prosecutorial Jurisdiction

(State vs Federal)

A

Federal:** **The U.S. has the power to criminalize/prosecute acts:

  • occurring in the U.S. or U.S. territory
  • occurring on ships and planes
  • by U.S. nationals anywhere

State: States may only prosecute crimes connected to the state:

  • where any part of crime was committed in the state
  • conduct outside the state in attempt to commit in-state crime
  • conspiracy where an overt act occurs within state
  • mere citizenship of an actor is not enought
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2
Q

Actus Reus

A

Act must be both

  • physical
    • speech counts
    • 3 types of omissions count:
      • failure to comply with statutory duty
      • failure to act where special relationship exists
      • voluntarily assumed dut of care
  • voluntary
    • will movement/motor control
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3
Q

Mens Rea Types

A

Crimes are divided into four categories of mens rea:

  1. Specific intent
  2. Malice
  3. General Intent
  4. Strict Liability
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4
Q

Mens Rea - Specific Intent

A

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

FIAT:

  1. first-degree murder
  2. inchoate crimes (CATS)
    • conspiracy
    • attempt
    • solicitation
  3. assault with attempt to commit a battery
  4. theft offenses

*** Where statute contains “intent to” language

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5
Q

Mens Rea - Malice

A

Where defendant acted in **reckless disregard of a high degree of risk of harm. ** Malice requires only a criminal act without excuse, justification, or mitigation.

  • murder (other than 1st degree)
  • arson
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6
Q

Mens Rea - General Intent

A

GI crimes require only the intent to perform an act that is unlawful. Generally acts done knowingly, recklessly, or negligently under the MPC are GI crimes.

  • battery
  • rape
  • kidnapping
  • false imprisonment

*** watch for questions on whether particular defenses are available

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7
Q

Mens Rea - Strict Liability

A

Crimes where no mens rea is required so long as defendant committed the act; defined by statute

  • statutory rape
  • others defined by statute where mens rea is not specified
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8
Q

(Criminal) Transferred Intent

A

Where defendant had the requisite intent for a crime with respect to A but actually harmed B, intent is transferred; maybe be charged with both

  • attempted crime against A
  • actual crime against B
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9
Q

(Criminal) Vicarious Liability

A

Where a person may be criminally liable for the acts of another; typically in the case of a corporation

  • MPC requires a specific duty imposed by law on the corporation or high-level authorization/toleration of the act
  • both corporation and individual actor may be guilty
  • Typically limited to regulatory crimes and punishment is limited to fines
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10
Q

Merger

A

Modern law does not subscribe to the doctrine of merger except in cases of soliciation and attempt.

Defendant cannot be convicted of two crimes that merge

  1. Lesser included and greater included offenses
    • all the elements of the lesser crime are also elements of the greater crime
      • felony underlying felony murder merges into felony
  2. Attempt/solicitation and completed offenses
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11
Q

Child Criminals

A

Common law:

  • childern under 7 are never capable of committing a crime
  • children **7 through 13 **are rebuttably presumed incapable of committing a crime
  • children at least 14 may be charged as adults
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12
Q

Criminal Principals

A

Defendant whose acts or ommissions formed the actus reus of the crime

  • may be more than one principal

Must be actually or contstructively present at the scene of the crime.

  • A principal is constructively when some instrumentality he left or controlled resulted in the commission of the crime.
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13
Q

Criminal Accomplices

A

An accomplice (i.e., an accessory before the fact or a principal in the second degree) is a person who, with intent that the crime be committed, aids or abets a principal prior to or during the commission of the crime.

  • Difference between ana cessory before the fact and a principal in the second degree is presence.

An accomplice is anyone who assisted the principal either before or during the commission of the crime

  • must have intent of assisting the principal
    • approving bystanders are not accomplices, but offering verbal encouragement might constitute assistance and intent
    • need not be chargeable as principal
    • principal need not be convictable
  • liable for both planned crimes and foreseeable crimes occurring in course of the criminal act

​*** also look for elements of conspiracy

An accomplice is responsible for the crime to the same extent as the principal. May be liable for other crimes if the other crimes are the natural and probable consequences of the accomplice’s conduct.

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14
Q

Criminal Accessories

A

Accessory or Accessory After the Fact are people who aid or assists a felon in avoiding apprehension or conviction after commission of the felony. Must know that a felony was committed. Not charged with the committed crime but instead has committed a separate crime - sometimes labled obstruction of justice or harbouring a fugitive.

*** also look for elements of conspiracy

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15
Q

Negated Mens Rea - Mistake of Law

A

Ignorance of the law is not a defense except where

  1. defendant relied on a high-level government interpretation
  2. lack of notice (extremely rare)
  3. where belief that conduct was legal negates the intent element of the crime
    • usually applies to specific intent crimes but sometimes general intent crimes as well
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16
Q

Negated Mens Rea - Mistake of Fact

A

Specific Intent crimes: mistake of fact is a defense as long as defendant actually held the mistaken belief

General Intent crimes: mistake of fact is a defense if the mistaken belief was **reasonable **and actually held

  • mistaken identity of victim never negates transferred intent

Strict Liability crimes: mistake of fact is never a defense

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17
Q

Negated Mens Rea - Insanity

A

M’Naghten: either didn’t know the nature of the act or **didn’t know it was wrong **(most difficult)

Irresistable Impulse: could not control self due to mental disease or defect

MPC: due to mental disease/defect, lacked substantial capacity to appreciate the wrongfulness of act or conform conduct to the law

Durham: but for mental disease/defect, would not have committed crime (easiest)

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18
Q

Negated Mens Rea - Intoxication

A

Involuntary: may be valid defense to specific, malice, and general intent crimes

  • unaware of ingestion of intoxicating substance
  • forced ingestion
  • unexpected reaction to prescription medication

Voluntary: a potential defense only to specific intent crimes

  • where intentionally ingests substance knowing it will intoxicate
  • not a defense where consumed in order to commit crime
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19
Q

Conspiracy

A
  1. (explicit or implicit) agreement
  2. between two more more people
    • ​​common law: at least 2 people must actually conspire
  3. to commit an unlawful act
  4. with (lawful or unlawful) overt act in furtherance of conspiracy (modern approach)
    • ​​overt act can be very small - speech, comment

Where conspiracy exists, all persons can be liable for subsequent subsequent crimes in furtherance (foreseeable) of conspiracy. (Pinkerton Rule)

Chain: multiple participants who may or may not know eachother but all further the same crime; each conspirator may be convicted of both conspiracy and all substantive crimes committed by co-conspirators in furtherance of the conspiracy

Spoke/Hub: central person dealing with peripherals unknown to eachother; each spoke conspirator may be convicted of conspiracy, own crimes, and hub’s crimes but not other spokes’ crimes

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20
Q

Withdrawal from Conspiracy

A

Common Law: impossible to fully withdraw but will not be guilty of substantive crime planned

Federal Law: may withdraw prior to occurence of overt act if communicate withdrawal to all co-conspirators or inform law enforcement (majority rule)

MPC: may withdraw by helping to thwart the success of the conspiracy

  • might still be liable if withdrawal is not timely or communicates withdrawal but fails to act, but won’t be liable for subsequent substantive crimes

*** very hard to argue that there was not an overt act - can be very small

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21
Q

Attempt

A
  1. specific intent to commit a particular criminal act
  2. substantial step towards perpetrating the crime
    • still constitutes attempt even if defendant changes his mind after the substantial step

** Attempt is always a specific-intent crime, even if attempted crime is not

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22
Q

Solicitation

A

Where defendant invites, requests, or commands another person to commit a crime

  • acceptance creates conspiracy
  • actual commission merges into substantive crime
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23
Q

Larceny

A
  1. taking
    • any movement
  2. of another person’s property
    • tangible, pesonal property
    • theft from a thief constitutes larceny
  3. without consent
    • or where consent is by force or fraud
  4. with intent to deprive permanently
    • borrowing (even joyriding) does not satisfy

** Receipt of stole goods requires that defendant knows they are stolen

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24
Q

Embezzlement

A
  • taking
  • of another person’s property
  • with consent
  • but subsequent conversion to one’s own

** a version of larceny, except that there is initial consent

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25
Q

False Pretense

A
  • taking
  • of another person’s property
  • through the reliance of that person
  • on a known false representation of a material past or present fact; and
  • The representation is made with the intent to defraud

** The same as larceny except that there is consent gained by deception

26
Q

Theft (MPC)

A

In the MPC, all thefts are treated the same by statute and include theft of intangibles

27
Q

Robbery

A

Larceny + assault or battery

  • taking
  • of another’s property
  • without consent
  • intending to permanently deprive
  • by force
    • taking from the victim’s person or in presence
    • either by physical violence or placing in fear of imminent physical harm
28
Q

Burglary

A
  1. breaking and
    • use of force or fraud
  2. entering
    • crossing the plane
  3. the dwelling
  4. of another
  5. at night
  6. with intent to commit felony inside
    • intent must occur prior to entry
29
Q

Battery

A

General intent, dangerous crime consisting of:

  1. unlawful
    • consent is a complete defense
  2. application of force
  3. to another
  4. that causes bodily harm OR constitutes an offensive touching
30
Q

Criminal Assault

A

Two types:

Intentional placing another in fear of imminent bodily harm:** **(general intent)

Attempted Battery: if a defendant has taken a substantial step toward completing a battery but fails, constitutes assault (specific intent)

31
Q

Rape

A

Common law/modern rape statutes: (general intent)

  1. Unlawful
  2. Sexual intercourse
    • modern rape statutes do not require sexual intercourse
  3. with a female
    • modern rape statutes not limited to women
  4. against her will by force or threat of force
    • modern rape statutes don’t require force
    • consent is a defense
      • ​fraud in the inducement does not negate consent
      • fraud in the factum would

Statutory rape: sexual intercourse with underage person (strict liability)

32
Q

Kidnapping

A
  1. unlawful
  2. confinement of another
  3. against his will
  4. either by moving or hiding the victim
33
Q

Arson

A
  1. malicious
  2. burning
    • modern statute: explosions count
    • modern statute: need not be structural damage
  3. of another person’s
    • modern statute: applies to own home
  4. dwelling
    • modern statute: applies to commercial buildings
34
Q

Perjury

A

Willful act of falsely promising to tell the truth, stating something false either verbally or in writing about material matters

  • must know that it is false
  • must go to a material matter
35
Q

Subornation of Perjury

A

Paying someone to commit perjury

36
Q

Bribery

A

Common law: corrupt payment (or receipt) of something of value for purposes of influencing official in discharge of his duties

Modern: allows bribery to be prosecuted even if person is not public officialk

37
Q

Self-Defense

A

In defense of self or others,

Non-deadly force: not likely to cause death or serious injury

  • any time a victim reasonably fears an imminent unlawful harm

Deadly force: intended or likely to cause death or serious injury

  • only if reasonably anticipte deadly force
  • MPC: also to prevent serious bodily injury (rape)
  • minority: must first retreat if safe to do so and not in own home
  • not permitted solely in defense of property

** not entitled to self-defense if initiated altercation, unless use of non-deadly force triggered use of deadly force; then may respond as such

38
Q

Defense of Duress

A

Where defendant is threatened and reasonably believes commission of the crime is the only way to avoid imminent death or serious bodily harm.

  • a defense to all crimes except intentional murder
39
Q

Necessity

A

A defense where the crime was the lesser of two evils in the face of natural forces

40
Q

Larceny by Trick

False Pretenses

&

Embezzlement

A

Larceny by Trick:

  • Obtaining possession (but not title) to property of another
  • through fraud or deceit
  • with the intent to unlawfully convert it
  • and later actual conversion occurs.

False Pretenses:

  • Obtaining title to the property
  • of another
  • through the reliance of that person
  • on a material misrepresenation of fact
  • with an intent to defraud.

Embezzlement

  • fraudulent
  • conversion
  • of another’s personal property
  • by a person in lawful possession
41
Q

M’Naghten

A

Under the M’Naghten test, the defendant is not guilty if, because of a defect of reason due to a mental disease, the defendant did not know either

(i) the nature and quality of the act or
(ii) the wrongfulness of the act.

42
Q

Irresistible-impulse test

A

Under the irresistible-impulse test, the defendant is not guilty if he lacked the capacity for self-control and free choice because mental disease or defect prevented him from being able to conform his conduct to the law. The loss of control need not be sudden. This is an impulse that the defendant cannot resist.

43
Q

Durham

A

Under the Durham rule, a defendant is not guilty if the unlawful act was the product of the defendant’s mental disease or defect and would not have been committed but for the disease or defect. This is the “but-for” test

44
Q

MPC Insanity

A

The Model Penal Code combines the M’Naghten and irresistible-impulse tests. The defendant is not guilty if, at the time of the conduct, he, as a result of a mental disease or defect, did not have substantial capacity to appreciate the wrongfulness of the act or to conform his conduct to the law.

45
Q

MPC Mens Rea

A

A crime defined by statute generally states the requisite mens rea. The following levels of culpability are based on the Model Penal Code (“MPC”). The MPC is the minority view. The MBE tests the common-law majority position unless otherwise expressly stated in the question. The MPC has no application to federal law. The following mental states are defined by the MPC:

  • Purposely - conscious objective is to engage in the conduct
  • Knowingly or willfully - defendant be aware that his conduct is of the nature required by the crime.
  • Recklessly - acting with a conscious disregard of a substantial and unjustifiable risk.
  • Negligently - should be aware of a substantial and unjustifiable risk.
  • Not state
46
Q

Homicide

A
  • For a homicide to occur, a living person must die.
  • A body need not be found; death can be established by circumstantial evidence.
  • A person cannot be killed twice. Shooting a corpse is not homicide, but it can be a crime (e.g., abuse of a corpse).
  • At common law, a fetus is not a living person.
47
Q

Homicide (Causation)

A

To prove a homicide, prosecution must show actual and proximate causation

48
Q

Homicide (Actual Cause)

A
  • Actual cause - but for cause or caust-in-fact
    • Can be found when there are multiple causes and the D’s act was a substantial factor
    • If victim is killed by an indepenedent cause before the D’s act can kill then no cause.
    • Providing a person with the means by which they can commit suicide generally does not make the provider guilty of murder (usually a lesser offense).
49
Q

Homicide (Proximate Cause)

A
  • Proximate cause
    • Proximate cause exists only when the death is foreseeable. A defendant’s conduct is deemed foreseeable if death is the natural and probable result of the conduct. Actions by a third party as well as actions by the victim are generally foreseeable. Actions by a force of nature that are not within the defendant’s control are generally not foreseeable. An act that accelerates the death is a legal cause of that death.
50
Q

Types of Homicide

A

Murder

Statutory Crimes of Murder

Voluntary Manslaughter

Involuntary Manslaughter

51
Q

Murder

A

Murder is the:

  • Unlawful (i.e., without a legal excuse);
  • Killing;
  • Of a human being;
  • Committed with malice aforethought
    • includes the following mental states:
      • intent to kill,
      • intent to inflict serious bodily injury,
      • reckless indifference to an unjustifiably high risk to human life (depraved heart), or
      • intent to commit certain felonies (felony murder)
52
Q

Malice Aforethought

A
  • Intent to kill - Conduct accompanied by the intent to kill that is the legal cause of the death of a living person constitutes intent-to-kill murder unless the legal circumstances surrounding the homicide are such that the crime is reduced to voluntary manslaughter. An inference of intent to kill may be made if a deadly weapon was used intentionally in the commission of the crime.
  • Intent to inflict serious bodily harm - A person who intends to do serious bodily injury or “grievous bodily harm” but actually succeeds in killing is guilty of murder despite the lack of intention to kill.
  • Depraved heart - A killing that results from reckless action by a defendant that manifests an extreme indifference to human life is a depraved-heart murder.
  • Felony Murder - an unintended killing proximately caused by and during the commission or attempted commission of an inherently dangerous felony.
    • BARRK: Burglary, Arson, Rape, Robbery, and Kidnapping.
53
Q

Statutory Crimes of Murder

A
  • First-degree murder - a deliberate and premediated murder.
    • Premediation distinguishing element. The defendant reflected on the idea of killing or planned the killing. The amount of time needed for premeditation may be brief, as long as, after forming the intent to kill, the defendant had sufficient time to become fully conscious of the intent and to consider the killing.
    • Specific intent
  • Second-degree murder - a homicide committed with the necessary malicious intent: the intent to kill, the intent to do great bodily injury, or a depraved-heart murder.
    • Like common-law mruder is a malice crime
  • Felony murder may be treated as first or second depending on jurisdiction.
54
Q

Voluntary Manslaughter

A
  • Voluntary manslaughter is murder committed in response to adequate provocation
    • Heath of Passion - provoked by a situation that would inflame the passion of a reasonable person to the extent that it would ause that person to momentarily act out of passion rather than reason.
      • Needs sufficient provocation
      • If there is sufficient time to cool off between provocation and the killing then murder is not mitigated.
    • Causation - must be a causal connetion between provocation, passion, and fatal act
55
Q

Involuntary Manslaughter

A
  • Involuntary manslaughter is an unintentional homicide committed with criminal negligence or during an unlawful act.
    • Crriminal negligence is reckless action that puts another person at a significatn risk of injury or death.
    • Unlawful act
      • misdemeanor manslaughter
      • a killing that is in the commission of a felony that is not statutorily treated as first or second degree murder.
      • cause - must be causal connection between unlawful act and death
56
Q

How do you effectively withdraw from a crime?

A

To effectively withdraw from a crime, one must repudiate the crime and/or attempt to neutralize any actions already taken before the crime is completed. This will cut off accomplice liability. Note: You cannot withdraw from a conspiracy.

57
Q

What are the inchoate offenses?

A
  • Solicitation
  • Conspiracy
  • Attempt
58
Q

Is a conspirator liable for crimes committed by her co-conspirator outside the conspiracy?

A

If, while executing the acts agreed upon, one co-conspirator commits another unplanned crime, her co-conspirators may also be liable if the crime was in furtherance of the conspiracy and was foreseeable.

59
Q

What is the required mental state for conspiracy?

A

Conspiracy requires a showing of two specific intents:

  • The intent to agree, which can be inferred from conduct
  • The intent to achieve the objective, which must be established for each defendant
60
Q

What defenses to a conspiracy charge are not valid?

A

Impossibility of achieving the objective is not a defense to a conspiracy charge. Withdrawal is not a defense to a conspiracy charge because the crime is complete at that point; however, withdrawal is a defense to subsequent crimes in furtherance of the conspiracy if the defendant notifies all co-conspirators of her withdrawal in time for them to abandon the plan.

61
Q

What is the mental state required for attempt?

A

Attempt requires the specific intent to commit the attempted crime, regardless of the mental state required for the underlying crime.

62
Q

Negates Mens Rea

A

Mens rea may be negated by

  • mistake of law
  • mistake of fact
  • instanity
  • intoxication

Bar Exam (8 decks)

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