Criminal Law Flashcards
Crim MBE Review Done MBE Final Review Done.
1
Q
Bodily movements that do NOT qualify for criminal liability
A
- Conduct is not the product of your own volition.
- It’s REFLEXIVE or CONVULSIVE
- An act performed while you are unconscious or asleep.
2
Q
Jurisdiction over crimes
A
A state acquires jurisdiction over a crime if either CONDUCT or RESULT happened in that state.
3
Q
An omission as a criminal act (5 circumstances)
A
Generally, no legal duty to rescue. But sometimes there is a duty to act.
- By statute (ex. file taxes)
- By contract (a lifeguard or nurse on duty)
- Because of relationship to the parties (parent/child, spouse/spouse)
- Because you voluntarily assume a duty of care and then fail to adequately perform it.
- Where your conduct created the peril.
4
Q
Four Common Law Mental States of a Crime
A
- Specific intent crimes
- Malice crimes
- General intent crimes
- Strict liability crimes
5
Q
11 Specific intent crimes
A
- Solicitation
- Conspiracy
- Attempt
- First degree murder
- Assault
- Larceny
- Embezzlement
- False Pretenses
- Robbery
- Burglary
- Forgery
“Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts”
6
Q
2 Malice Crimes
A
- Common Law Murder
2. Arson
7
Q
General Intent Crimes
A
Catch-all. Ex. rape, battery…
8
Q
Strict Liability Crimes
A
NO INTENT crimes.
Look for statutory language with, “knowingly, willfully, or intentionally then the statute is meant to be a NO INTENT crime of strict liability.
9
Q
“Purposely”
A
?
10
Q
“Knowingly”
A
When he is AWARE that his conduct will very likely cause the result.
11
Q
“Recklessly”
A
When he CONSCIOUSLY DISREGARDS a SUBSTANTIAL and UNJUSTIFIABLE risk to human life.
12
Q
“Negligently”
A
When he fails to be aware of a SUBSTANTIAL and UNJUSTIFIABLE risk.
13
Q
Accomplice
A
One who aids, advises, or encourages the principal in the commission of a crime.
14
Q
Accomplice liability:
A
Liable for:
- The crime itself, and
- All other foreseeable crimes.
15
Q
How does an accomplice withdraw if he ENCOURAGED the crime?
A
He must REPUDIATE the encouragement.
16
Q
How does an accomplice withdraw when he has aided by providing assistance?
A
He must do everything possible to neutralize this assistance.
17
Q
Solicitation
A
Asking someone to commit a crime. The crime ends when you ask them.
Factual impossibility is no defense.
18
Q
Conspiracy
A
- An agreement between two or more persons,
- With the intent to enter into an agreement, AND
- The intent to achieve the unlawful objective of the agreement.
19
Q
Conspiracy Majority Rule
A
Must be an agreement PLUS some overt act in furtherance of the conspiracy. ANY act, even just mere preparation.
20
Q
Effect of withdrawal from conspiracy
A
Can never relieve D of liability for the conspiracy itself, but CAN withdraw from liability for other conspirators subsequent crimes.
21
Q
Attempt
A
- Specific intent, and
2. Overt act in furtherance of the crime
22
Q
For purposes of attempt an overt act must be:
A
A substantial step in futherance of the commission of the crime. Mere preparation is NOT enough.
23
Q
M’Naghten Rule
A
At time of his conduct D lacked the ability TO KNOW THE WRONGFULNESS OF HIS ACTIONS or to understand the nature, quality, and being of his actions.
24
Q
Irresistible Impulse
A
D lacked the CAPACITY FOR SELF CONTROL and free choice.
25
Durham Rule
D's conduct is a PRODUCT OF MENTAL ILLNESS.
26
MPC Insanity
D lacked the ability to conform his conduct to the requirements of the law.
27
Voluntary intoxication
Defense only to a SPECIFIC INTENT crime.
28
Involuntary intoxication
1. Unknowingly being intoxicated.
2. Becoming intoxicated under duress.
Form of insanity and therefore a defense to ALL CRIMES.
29
Criminal liability under the age of 7?
No.
30
Criminal liability under age of 14?
A rebuttable presumption of no criminal liability.
31
Non-deadly force in self defense
May be used anytime the victim reasonably believes that force is about to be used on him.
32
Use of deadly force in self defense: Majority Rule
V may use deadly force in self defense any time the V reasonably believes that deadly force is about to be used on him.
33
Use of deadly force in self defense: Minority Rule
V is required to retreat if it is safe to do so with three exceptions:
1. No duty to retreat from home.
2. No duty to retreat if you are a victim of a rape or robbery.
3. Cops have no duty to retreat.
34
Original aggressor must do what to get back the defense of self defense?
1. Withdraw, and
| 2. Communicate that withdrawal.
35
Initial aggressor and victim escalation
If V escalates minor fight into one involving deadly force and does so without giving the initial aggressor the opportunity to withdraw, original aggressor may use force in his own defense.
36
Defense of others
D can raise 'defense of others' defense if he reasonably believes that the person assisted would have had the right to use force in his own defense.
37
Defending property
Deadly force may never be used.
38
Duress is a defense to a criminal act if:
1. The person acts under the threat of imminent infliction of death or great bodily harm, and
2. That belief is reasonable.
Threats to 3rd persons may suffice.
39
Duress is a defense to all crimes except:
homicide.
40
Necessity
Conduct that would otherwise be criminal is justifiable if,
1. As a resulting pressure from NATURAL FORCES
2. D reasonably believes his conduct was necessary to
3. Avoid a greater societal harm.
41
Mistake of Fact Defense
Only a defense when the mistake NEGATES INTENTION.
42
Mistake of Fact Defense: Malice and General Intent Crimes
Mistake must be reasonable.
43
Mistake of Fact Defense: Specific Intent Crimes
ANY mistake, NO MATTER HOW RIDICULOUS is a defense.
44
Mistake of Fact Defense: Strict Liability Crimes
Never a defense.
45
Entrapment
1. Criminal DESIGN might have originated with law enforcement officers, AND
2. D must not have been predisposed to commit the crime.
46
Battery
Unlawful application of force to the person resulting in either:
1. Bodily injury, or
2. Offensive touching.
General Intent Crime.
47
Assault
1. Attempt to commit a battery, or
2. Intentional creation,
3. other than by mere words,
4. of a reasonable apprehension
5. of imminent bodily harm.
Specific intent crime.
48
Aggravated assault
Assault plus:
1. The use of a deadly or dangerous weapon; or
2. With the intent to rape, maim, or murder.
49
Murder
Unlawful killing of another human being with MALICE AFORETHOUGHT. Such state of mind exists if there is:
1. An intent to kill; or
2. Intent to inflict serious bodily harm, or
3. Reckless indifference to an unjustifiably high risk of human life; or
4. Intent to commit a felony.
50
Murder and proximate cause
D is responsible for all results that occur as a natural and probable consequence of his conduct, even if he did not anticipate the exact manner in which the event would occur.
51
Felony murder
1. Any killing, even accidental, committed during the course of a felony.
52
Defenses for felony murder
1. If D has a defense to the underlying felony.
2. The deaths are not foreseeable.
3. Deaths caused after D reaches a point of temporary safety.
53
Homicide of a police officer
1st degree murder if:
1. D knows the victim is a cop; and
2. V is acting in the line of duty.
54
Second degree murder/Depraved heart killing
Killing done with:
1. Reckless indifference to an unjustifiably high risk to human life; or
2. Murders that are not classified as first degree murders.
55
Voluntary manslaughter
Killing in the heat of passion resulting from:
1. Adequate provocation from the V
2. Provocation must be such that it would arouse sudden and intense passion in the mind of an ORDINARY PERSON such to cause him to lose self control;
3. There must not have been sufficient time for the passions of a REASONABLE PERSON to cool; and
4. D did in fact NOT cool.
56
Involuntary manslaughter
1. Killing of criminal negligence.
| 2. Misdemeanor manslaughter.
57
False Imprisonment
Unlawful confinement of a person without his valid consent.
58
Rape
Only thing that you need to know is that even slight penetration completes the crime of rape.
59
Statutory Rape
Strict liability crime. Consent is no defense and mistake of fact is no defense.
60
Larceny
Requires:
1. Wrongful taking, a carrying away,
2. of property of another
3. by trespass
4. with an intent to permanently deprive.
Specific intent at time of taking.
61
Embezzlement
Fraudulent conversion of property of another.
62
False Pretenses
D persuades the owner of property to convey TITLE by false representation.
63
Robbery
1. Taking of personal property of another
2. from the other person's presence
3. by force or threat
4. with intent to permanently deprive him of it.
64
Extortion (blackmail)
Knowingly seeking to obtain property or services by means of a future threat.
65
Burglary
1. Breaking and entering
2. Of a dwelling-house of another
3. At night
4. With the intent to commit a felony therein.
66
Burglary breaking
Can be actual (however slight) or constructive (through fraud or threat).
67
Actual breakings
If a door or window is wide open, there is no breaking. If someone pushes open an INTERIOR door after that then a breaking exists.
68
Entering
Occurs when any part of the body crosses into the house.
69
Intent to commit the felony therein
Intent must be there at the time of the breaking and entering.
70
Arson
Malicious burning of the dwelling of another.
No specific intent - reckless disregard is enough.
71
Extra defenses for specific intent crimes
1. Honest (unreasonable) mistake of fact
| 2. Voluntary intoxication
72
Exclusionary rule
remedy of American constitutional procedure whereby someone who has been the victim of an illegal search or a coerced confession can have the illegal material EXCLUDED from any subsequent CRIMINAL prosecution.
73
Limitations on the exclusionary rule
1. Does not apply to grand jury proceedings.
2. Not available in civil proceedings.
3. The search in question must either violate the Constitution or a federal statute.
4. Not available in parole revocation proceedings.
5. Does not apply to the use of excluded evidence for impeachment (of D) purposes.
6. Not available for violations of the knock and announce rule.
74
Fruit of the Poisonous Tree
Excludes any evidence obtained or derived from police illegality.
Note: Does not apply to Miranda violations ... unless police act in bad faith.
75
3 ways to break the chain and get in poison fruit (3 I's)
1. Independent source for the evidence.
2. Inevitable discovery
3. Intervening acts of free will on the part of the D
76
Harmless error test
A conviction will be upheld if the conviction would have resulted despite the improper evidence.
77
Fourth Amendment
Freedom from unreasonable search and seizures
78
An arrest must be made on
probable cause
79
To make a Terry stop police must have:
a reasonable suspicion supported by articulable facts of criminal activity.
80
When is there governmental conduct for the purposes of the Fourth Amendment?
1. Actions of publicly paid police - on or off duty, or
| 2. Any private individual acting at the direction of the public police.
81
Where do you have the most reasonable expectation of privacy? 3 instances
(Standing to object)
1. If you own the premises searched.
2. You live in the premises searched.
3. You're an overnight guest in the premises searched.
82
9 Things that you hold out to the public every day that you have no expectation of privacy in:
1. Sound of your voice
2. Style of your handwriting
3. Paint on the outside of your car
4. Account records in a bank
5. Monitoring the location of your car on a public street or in your driveway
6. Anything that can be seen in open fields
7. Anything seen flying over public airspace
8. The odors emanating from your luggage or car.
9. Your trash
83
Core requirements for facially valid search warrant
1. Probable cause
| 2. Particularity
84
Probable cause in a warrant:
FAIR probability that contraband or evidence of a crime will be found in the area searched.
85
Particularity
the place to be searched and the things to be seized.
86
No knock entry permitted when it would be:
1. Dangerous
2. Futile, or
3. Inhibit the investigation (destruction of evidence)
87
4 Exceptions to cop good faith reliance on warrants
1. So lacking of PROBABLE CAUSE that no reasonable cop would have relied on it.
2. Affidavit underlying the warrant is so lacking in PARTICULARITY that no reasonable cop...
3. The cop lied to or misled the magistrate when seeking the warrant
4. If the magistrate is biased.
88
Exceptions to warrant requirements
1. Search incident to arrest
2. Automobile exception
3. Plain view
4. Consent
5. Stop and frisk
6. Hot pursuit
7. Evanescent Evidence
89
Valid search incident to arrest requires
1. Arrest is LAWFUL
| 2. Search and arrest must be contemporaneous in time and place.
90
Police may search the interior of auto incident to arrest ONLY IF:
1. The arrestee is unsecured and may still gain access to the interior of the vehicle, OR
2. The police reasonably believe that evidence of the offense FOR WHICH THE PERSON WAS ARRESTED may be found in the vehicle.
91
```
Automobile exception
(Don't confuse with search incident to arrest)
```
1. If police have probable cause they may search the entire car, including the trunk and any containers that may reasonably contain the item they had probable cause to look for.
92
Plain view exception
1. Cops must be legitimately present at the location where the viewing is done, and
2. It must be immediately apparent that the item is contraband or fruit of a crime.
93
Consent to search
Must be:
1. Voluntary, and
2. Intelligent
94
Third party consent to search
Where 2 or more people have equal right to use a piece of property, either can consent to its warrantless search.
If they disagree - the one who does not consent controls.
95
Auto stops
If vehicle is properly stopped for a traffic violation and there is a reasonable belief that the driver or passenger is armed and dangerous the officer may:
1. Conduct a frisk, and
2. Search the vehicle, limited to the areas in which a weapon may be placed.
96
Warrantless public school searches are valid in what cases?
1. Drug testing for kids in extra curricular activities
| 2. Kids effects - purses, backpacks - to investigate violations of school rules.
97
School searches will only be held valid when:
1. It offers a moderate chance of finding evidence of wrongdoing.
2. The measures adopted to carry out the search are reasonably related to the objectives of the search, and
3. The search is not excessively intrusive (regards to age and gender)
98
Trigger for Miranda warning?
Custodial interrogation
99
You are in custody when?
You are not free to leave.
Does not include probation interviews or traffic stops.
100
Interrogation under the 5th Amendment
Any conduct where cops knew or should have known that they might elicit an incriminating response.
101
Miranda waiver must be:
1. Knowing
2. Voluntary
3. Intelligent
102
How to invoke your Miranda right to remain silent
1. Must be unambiguous.
Police may reinitiate questioning after waiting a period of time, remirandize, and limit questions to a crime that was not the subject of earlier questioning.
103
How to invoke your Miranda right to counsel
1. Unambiguous request.
ALL questions must cease until D is given an attorney or the accused initiates further questioning.
104
How to invoke your Miranda right to remain silent
1. Must be unambiguous.
Police may reinitiate questioning after waiting a period of time, remirandize, and limit questions to a crime that was not the subject of earlier questioning.
105
How to invoke your Miranda right to counsel
1. Unambiguous request.
ALL questions must cease until D is given an attorney or the accused initiates further questioning.
106
Elements required for crimes:
a. Actus reus – criminal act
b. Mens rea – mental state
c. ***concurrence on a and b
d. Causal connection
e. Harm
107
Felony murder
```
unintentional killing during the commission or an attempt of an inherently dangerous felony.
BARRK
i. Burglary
ii. Arson
iii. Rape
iv. Robbery
v. Kidnapping
```
108
Depraved heart/involuntary manslaughter (fine line distinction)
i. When D acts with EXTREME recklessness to show an unjustifiably risk to human life (Depraved Heart)
ii. Involuntary – criminally negligent killing.
109
Inherently dangerous felonies
BARRK
i. Burglary
ii. Arson
iii. Rape
iv. Robbery
v. Kidnapping
110
Attempt requires:
Specific intent – if it’s not there … they’re not going to be guilty, AND
2. SUBSTANTIAL STEP
conduct in furtherance of that attempt.
111
Aiding and Abetting
One who AIDS, counsels, commands, or encourages another in the commission of a crime, and who is present when the crime is committed – is gen. guilty of aiding and abetting.
Except: Members of a class that are sought to be protected by the statute violated are exempt from liability.
112
Solicitation
a. Committed the moment D asks, encourages, or requests another to commit a crime.
b. **** Doctrine of merger applies to crime of solicitations
i. If the crime solicited for is carried out – then solicitation merges into completed crime.
113
Conspiracy
CL unless otherwise
a. Specific intent → Agreement b/t 2 or more guilty minds to commit a crime.
i. Specific intent to enter into the agreement, and
ii. SI to achieve objective of agreement (overt act)
1. MERE PREPERATION will suffice for overt act.
b. **** NOOOOOO MERGER
114
Withdrawal
1. Affirmative act that notifies all members of the conspiracy.
2. Done in time for them to have the opportunity to abandon their plans.
a. No need to go to the cops in CL.
115
Specific intent defenses
. Any mistake of fact
| 2. Voluntary intoxication.
116
Valid search
1. Probable cause, and
| 2. Warrant
117
Exceptions to necessity for search warrant
i. Consent
ii. Plain view
iii. Search incident to lawful arrest
iv. Auto exception
v. Hot pursuit
vi. Exigent circumstances
118
A warrantless search if auto passenger compartment after arrest is valid only if:
1. The arrestee is unsecured. And still making access to interior of auto; OR
2. COPS reasonably believe that auto contains evidence of the crime for which occupant is arrested.
119
Did a seizure occur?
Would a reasonably prudent person believe that he was not free to leave.
120
Voluntary confessions must be:
a knowing and intelligent waiver of rights → under the totality of the circumstances test. (Admissible)
121
Coerced confessions are:
inadmissible.
122
Under Miranda, if D requests counsel it must be:
UNAMBIGOUS and SPECIFIC.
123
Under Miranda if D requests counsel:
ALL questioning must CEASE.
124
6th Amd. Right to Counsel
Applies after a suspect has been FORMALLY charged.
125
Impeachment and the 6th Amendment
Statement obtained in violation of 6th Amd right to counsel can be used to IMPEACH D’s contrary trial testimony.
126
Blockberger Test
2 crimes do not constitute the same offense if each crime requires proof of an additional element that the other crime does not require → even if some of the same facts may be necessary to prove the crime.
127
Blockberger Illustration
```
ABC
ABX --- Not a violation of double jeopardy.
___________________
ABCD
ABC --- violation of double jeopardy.
```
128
Right to counsel in misdemeanor trials
6th Amendment right to counsel applies to misdemeanor trials only when imprisonment is actually imposed.
129
Right to a jury trial
1. No constitutional right to a jury of 12.
2. Must be at least six jurors to satisfy right to jury trial under the 6th and 14th Amd.
3. No right to a unanimous verdict, however, 6 member juries must be unanimous.
4. Right to a jury trial when charged with a serious offense that authorizes imprisonment for greater than 6 months.
130
Felony Murder: Redline view
Killing of co-felon by police officer to prevent the felon’s crime or escape cannot be the basis for felony murder.
131
Felony Murder: Agency Theory
the felon cannot be liable for the killing of the bystander b/c the killing was not done by his agent.
132
Search Incident to Lawful Arrest
After arresting the occupant of a vehicle the police may search the interior of the vehicle incident to arrest if: (GANT)
1. Arrestee is unsecured and still may gain access to the interior, OR
2. The police reasonably believe that evidence for the offense for which the person was arrested may be found in the vehicle.
133
Miranda applies:
prior to suspect being formally charged. Not offense specific under 5th Amd.
134
Messiah applies:
after adversary proceedings have begun. 6th amd right to counsel is offense specific.
135
Double jeopardy
Prohibits retrying a D who’s conviction has been reversed on appeal for any offense more serious for that which she was convicted at the first trial.
