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Criminal Law Flashcards

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MBE flashcards
1
Q

5 Elements

A

1) Actus Reus–Voluntary act or omission of an act where the law imposes a duty
2) Mens Rea–D’s “guilty” state of mind
3) Concurrence–Physical act and mental state must occur at the same time
4) Causation–D’s act must cause the harmful result
5) Harm–V harmed

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2
Q

Right to a Jury Trial

A

If potential sentence is greater than 6 months

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3
Q

State’s Burden of proof

A

must prove D is guilty beyond a reasonable doubt. This include proving each element of the crime and disproving each defense.

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4
Q

D’s Burden

A

Mere defenses–D comes forward with a defense (burden of production), but does not have to prove it. Prosecution must disprove beyond a reasonable doubt once D raises.

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5
Q

Affirmative Defenses

A

Modern statutes have created “affirmative defenses” which requires D to raise the defense and then prove it.

  • Fed standard = clear and convincing evidence
  • Some states have lower standard = preponderance of the evidence
  • If D does not meet burden jury does not hear. IF D does prove prosecution must disprove beyond a reasonable doubt.
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6
Q

CL Mens Rea – General Intent

A

Requires the general intent to engage in conduct. D must be aware she is acting in proscribed manner. 4 gen intent crimes: RAPE, BATTERY, KIDNAPPING, FALSE IMPRISONMENT

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7
Q

CL Mens Rea – Specific Intent

A

the desire to achieve a specific result or objective

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8
Q

CL Mens Rea –Malice

A

a willful or corrupt intention of the mind, which includes any unlawful of unjustifiable motive. Malice includes both intentional and reckless conduct. Only 2 CL crimes which req malice: MURDER and ARSON

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9
Q

CL Mens Rea – Strict Liability

A

Does not re proof of a mental state b/c criminal culpability is imposed for merely doing a proscribed act

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10
Q

CL Mens Rea – Wanton Conduct

A

a reckless indifference to an unjustifiably high risk to human life

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11
Q

MPC Mens Rea – Purposely

A

A person acts purposely when her conscious objective is to cause a certain result or engage is a certain activity

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12
Q

MPC Mens Rea – Knowingly

A

A person acts knowingly when she is aware that her conduct will probably cause a certain result

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13
Q

MPC Mens Rea – Recklessly

A

A person acts recklessly when she consciously disregards a substantial or unjustifiable risk that circumstances exist or that a certain result will occur. The disregard of the risk must be a gross deviation from the standard of care that a reasonable person would exercise under the same or similar circumstances.

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14
Q

MPC Mens Rea – Negligently

A

A person acts negligently when she fails to be aware of a substantial and unjustifiable risk that circumstances exist or that a particular result will occur. The failure to be aware of this risk must be a substantial deviation from the standard of care that a reasonable person would exercise under the same or similar circumstances.

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15
Q

Accomplice Liability – Modern View

A

Modern View:

1) Aids or encourages
2) The principal
3) With the intent the criminal act takes place
4) knows/should have know act was criminal

-L for all foreseeable crimes associated with acts that were probable and foreseeable

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16
Q

3 Inchoate Crimes

A

1) Solicitation
2) Conspiracy
3) Attempt

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17
Q

Solicitation (inchoate)

A

G if:

1) invites, advises, counsels, incites, induces, encourages, urges, or commands another
2) to commit a crime,
3) W/ the spicific intent the crime be committed

Note: solicitation merges w/ the crime. If the person solicited attempted the crime the person soliciting becomes an accomplice.

Non-Defenses: Withdrawal/Renunciation; Factual impossibility; non-G verdict of person solicited

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18
Q

Conspiracy (inchoate)

A

G if:

1) agreement between two or more persons
2) an intent to enter into an agreement, and
3) an intent to achieve the objective of the agreement

Note: don’t nee overt act on MBE but do need it on NY

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19
Q

Conspiracy – Bilateral vs Unilateral

A

Bilateral (CL/MBE)–need at least 2 ppl committed to criminal objective. Both parties must have intent + capacity to agree.

Unilateral (NY)–req only one party to have the requisite capacity or intent

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20
Q

Conspiracy–Merger

A

Conspiracy does not merge

-termination of conspiracy–upon attempt of crime

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21
Q

Conspiracy–L of one for acts of another

A

L if:

1) crime was committed by one conspirator
2) in furtherance of the conspiratorial objectives, and
3) was foreseeable

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22
Q

L of co-conspirators

A

conspiracy terminates on attempt. BUT any crime in furtherance of the conspiracy that were foreseeable can be charged against all co-conspirators

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23
Q

If two co-conspirators

A

If one is not G then the other can’t be guilty

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24
Q

Withdrawal re Conspiracy

A

Not a defense on MBE but is a defense in NY

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25
Q

Factual impossibility re Conspiracy

A

Not a defense

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26
Q

Attempt

A

elements: 1) specific intent to commit a crime, and 2) a substantial step in furtherance of that crime.

Note: D cannot

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27
Q

Murder

A

The unlawful killing of another with malice aforethought. MPC has done away w malice aforethought as mens rea.

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28
Q

Malice Aforethought

A

mens rea for CL murder. includes:

1) intent to kill
2) intent to inflict great bodily injury and unintentional death
3) Reckless indifference to an unjustifiable risk to human life (dont confuse w involuntary manslaughter)
4) felony murder (intent to commit felony)

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29
Q

Intent to Kill

A

has intent to kill if she has intent to cause death of another, and causes the death of such person or a 3rd person. D if G of intentional murder if she committed a killing with premeditation and deliberation. Don’t confuse w Voluntary Manslaughter, that is an intentional killing lacking premeditation and deliberation b/c of provocation (frequently raised as a defense to intentional murder).

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30
Q

Intent to do great bodily harm

A

If D intended to do great bodily harm and unintentionally killed someone, the intent to do harm coupled with death constitutes malice

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31
Q

Reckless indifference to human life

A

D must be depravedly indifferent to human life by recklessly engaging in conduct that creates a grave risk of death to another person, and thereby causes the death of another person. Dont confuse with Involuntary Manslaughter, that is a negligent killing likely to cause serious injury.

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32
Q

Felony Murder

A

a person is G of FM if she or a participant causes the death of a non-participant during an attempt of or flight from one of the BARK-R felonies (Burgulary, Arson, Robbery, Kidnappint, Rape). Elements:

1) Commission of inherently dangerous felony (BARK-R)
2) Death of a non-participant during the course of the felony
3) D was a participant, AND
4) D must be found G of underlying felony

Note: if co-felon dies during the commission of a felony then other co-felon is not G. BUT if a non-participant causes the death of another non-participant then they a G.

33
Q

Voluntary Manslaughter

A

intentional killing w/o malice aforethought b/c there is no premeditation or deliberation due to adequate provocation if:

1) D provoked by exposure to a threat if harm or caught spouse having sex with another that;
2) aroused a sudden and intense passion causing an ordinary person to lose self-control
3) not sufficient time to cool off, AND
4) the killing.

34
Q

Involuntary Manslaughter

A

is an unintentional homicide that is the result of either criminal negligence or an unlawful act.

1) Criminal Negligence–failure to perceive the risk or a disregard of the consequences. The D’s conduct must have been a gross deviation from the reasonable person standard.
2) Unlawful Act/Misdemeanor/Manslaughter: If a killing occurred during the course of a crime that is not a recognized under the felony murder rule, then the killing constitutes involuntary manslaughter.

35
Q

Robbery

A

1) the taking
2) of personal property from another’s person or presence
3) by force or threat of force of immediate death or physical injury, inducing fear in order to obtain or retain the property;
4) with the intent to permanently deprive the other of property

36
Q

Battery

A

1) unlawful application of force
2) to the person of another
3) that results in offensive touching/bodily injury

Intent: battery is a general intent crime that can be satisfied by either intentional, reckless, or criminally negligent conduct.

37
Q

Mayhem

A

a more serious Battery by intentional maiming or the permanent disfigurement of a bodily part

38
Q

Assault

A

is either the attempt to commit a battery or intentionally placing another in reasonable apprehension of imminent bodily injury

39
Q

False Imprisonment

A

False imprisonment is the:

1) unlawful
2) detention or confinement of an individual
3) w/o valid consent

Merger w/ other crimes: if the detention or confinement is wholly incidental to the simultaneous commission of another crime (eg robbery or rape), then the imprisonment mergers into the other crime.

40
Q

Kidnapping

A

1) unlawful
2) confinement of an individual accompanied by
3) either movement or concealment of that individual

Merger: if movement wholly incidental to the simultaneous commission of another crime (robbery, rape) then the kidnapping mergers into the other crime.

41
Q

Rape

A

1) unlawful intercourse by a man who is not her spouse, and
2) w/o consent

Note: Stat rape is a separate crime that is committed when one has sec w another who is under the legal age of consent. SL crime, mistake of age is not a defense.

42
Q

Other sex offenses

A

-Incest–sex or marriage btw closely related persons
-Bigamy–marrying a person while already being married
-Adultery–a married person that cohabitates or has sexual intercourse with someone other than their spouse or if not married has sex w someone they know is married.
-Fornication–sex by unmarried persons
Seduction–G if induced unmarried female to engage in an act of intercourse on the promise of marriage

43
Q

Arson

A

CL has 4 elements:

1) MALICIOUS (includes gen intent, knowledge, or reckless disregard)
2) BURNING (most cause charring–under CL needs be be cause by fire NOT bomb)
3) of a DWELLING (modern view = vehicles other structures included)
4) of another

44
Q

Burglary

A

CL has 6 elements:

1) Breaking (not necessary under modern view)
2) and entering (modern view = or remaining unlawfully)
3) a dwelling (modern view = any structure)
4) of antoher
5) at night (modern view = anytime)
6) with the intent to commit a felony (modern view = any crime)

Concurrence

45
Q

Larceny by trespasser taking

A

with intent to permanently deprive:

1) by trespass (enter sphere of V)
2) a taking (from V’s control)
3) carrying away (movement)
4) of personal property
5) of another

46
Q

Larceny by trick

A

a false representation that causes the person to pass possession of property to a thief, who knows that the representation is false and intends to defraud by the representation.

47
Q

Obtaining property by false pretenses

A

with intent to defraud:

obtains title of another’s property by an intentional false statement of past or existing fact.

48
Q

Obtaining property by false promise

A

a false representation of a future fact that causes the person to pass title and possession of property to a thief, who knows that the rep is false and intends to defraud by the rep

49
Q

Forgery

A

With the intent to defraud:

making or altering a writing, such that is it false

50
Q

Embezzlement

A

the fraudulent conversion of the personal property of another by one already in lawful possession

51
Q

Extortion

A

Exacting property or payment of money by verbal or written threats of harm to another or threats to damage the victim’s property in the future

DO NOT confuse w robbery (a present threat)

52
Q

Receiving stolen property

A

receiving possession of personal stolen property know to have been obtained in a manner constituting a criminal offense by another person w/ intent to permanently deprive O of her interest in the property

53
Q

Malicious Mischief

A

Malicious destruction of, or damage to, the property of another

54
Q

Defenses – Burden

A

only requires the D to come forward with the defense (burden of production) but not to satisfy the burden of proof

Defenses:

  • insanity
  • incompetency
  • diminished capacity
  • intoxication
  • infancy
  • justification
55
Q

Insanity defense

A

If D insane at TIME OF ACT will be acquitted (4 theories):

1) M’Naughten Test
2) Irresistible Impulse Test

56
Q

M’Naughten Test

A

1 of 4 theories on insanity defense–a disease of the mind which caused a defect of reasoning such that the D lacked the ability at the time of her actions to either: a) KNOW the wrongful nature of the act, or 2) UNDERSTAND the nature and quality of her act. D must not be able to tell society deems acts wrong

57
Q

Irresistible Impulse Test

A

D must establish that due to a mental disease or defect she was unable to:

1) Control her actions, or
2) Conform her conduct to the law
3) Durham Test
4) MPC test

ie., the D had lost ability to conform conduct to uncontrollable urge

58
Q

Durham Test

A

D must prove the criminal conduct was the PRODUCT of mental disease or defect. The disease must have actually caused the criminal conduct.

ie., but for the mental disease the crime would not have been committed

59
Q

Insanity defense – MPC test

A

D must est that AT THE TIME of the criminal conduct, she suffered from a mental disease/defect and as a result LACKED SUBSTANTIAL CAPACITY to either:

1) Appreciate the criminality of her act (M’Naughten); or
2) Conform such act within the the req of the law (irresistible impulse)

60
Q

Incompetency

A

D cannot be tried, convicted, or sentences if, as a result of mental disease or defect, she is unable to:

1) Understand the nature of the proceedings being brought against her, or
2) assist her lawyer in the perpetration of her defense

61
Q

Diminished Capacity

A

this defense is available if the D can show that, as a result of mental disease/defect, she was unable to form the requisite intent necessary for the crime

62
Q

Intoxication

A

Is a defense if the intoxication negates a required element of the crime (eg mens rea).

Voluntary or Involuntary Intoxication

63
Q

Voluntary Intoxication

A
  • Is the ingestion of an intoxicating substance w/o duress
  • Defense to crimes that require intent or knowledge if the D was so intoxicated as to be unable to form such intent or acquire such knowledge.

Voluntary intox is not a defense to offenses:

1) where intox is an element (DUI)
2) SL crimes
3) where crime is based on recklessness/neg of D
4) where D become inebriated to build up nerve
5) requiring recklessness or malice

64
Q

Involuntary Intoxication

A

the ingestion of intoxicant:

1) under duress
2) by virtue of med advice
3) w/o knowledge of intoxicating nature of substance

Apply to same crimes insanity defense can be used for

65
Q

Infancy

A

1) under age of 7–conclusive presumption child not criminally L
2) 7 to 14–rebuttable presumption that child is not criminally L
3) 14+–under CL treated as adults

66
Q

Justification–Necessity

A

Due to natural forces the D:

1) acted with a reasonable belief that her actions were necessary to prevent
2) An immediate hard to society
3) and the harm to society would outweigh the harm caused by the crime

67
Q

Justification–Self-Defense

A

Requires two forms of reasonableness: 1) reasonableness in the belief that the force was necessary, and 2) reasonableness of the force used. If either is deemed unreasonable not a complete defense BUT might mitigate

68
Q

Non-Deadly Force

A

person may use to prevent the imminent use of unlawful physical force

69
Q

Deadly Force

A

Person may use only if:

1) she is confronted w/ unlawful force
2) she is w/o fault (not initial aggressor), and
3) she reasonably believes she is faced with a threat of serious bodily harm or death

70
Q

Deadly Force–Duty to Retreat

A

Most jurisdictions do not require. NY does if person can do so safely unless:

1) making a lawful arrest
2) attack in V’s home (castle doctrine)
3) assailant attempting to commit Dr Barks (Deadly force can be used to prevent Robbery, Burglary, Arson, Rape, Kidnapping, forcible Sodomy

71
Q

Right of Aggressor–Deadly Force

A

Has no right to use deadly force unless:

1) aggressor withdraws AND communicates OR
2) V escalates fight to

72
Q

Defense of Home–Use of Force

A

Rules differ whether deadly or non-deadly can be used:

1) Non-deadly–to prevent or terminate unlawful entry into one’s home
2) Deadly–cannot be used to defend property unless:
a) threat of force OR b) entry into a dwelling where V believes D is going to commit dangerous felony and V believes force is necessary to prevent such harm

NOTE: defense of personal property never justifies deadly force

73
Q

Crime Prevention–Use of Force

A

1) Non-Deadly ok if person reasonably believes will prevent substantial breach of the peace
2) Deadly–ok to prevent Dr. Barks

74
Q

Police Officer–Use or force

A

Non-deadly–may use to effect lawful arrest or prevent escape of someone already arrested

Deadly–only if felon threatened serious bodily harm or death and deadly force necessary to prevent his escape

75
Q

Private Citizen–Use of Force

A

1) non-deadly–can use only if (a) she reasonably believes that the person arrested has committed the crime and (b) the crime was in fact committed
2) deadly–can only use in effecting an arrest if the person was actually guilty of offense for which they were arrested

76
Q

Defenses–Excuse of Duress

A

Person NG of criminal offense if:

1) an act is performed under a threat of of imminent death or serious bodily injury; and
2) the person reasonably believes that death or serious bodily injury will be inflicted on herself or others

Note: threats of future harm not sufficient. Defense cannot be used for an intentional killing

77
Q

Defenses–Ignorance or Mistake

A

Mistake of Fact–For malice or general intent crimes, the ignorance/mistake must be REASONABLE. However, for specific intent crimes a mistake of fact is a defense whether mistake is reasonable or unreasonable.

Mistake of Law–Not a defense, but a few exceptions. Eg D cannot be criminally L for actions taken at the advice of a public official or if D’s reliance on her atty negates a necessary mental state element (e.g. knowingly)

78
Q

Defenses–Entrapment

A

3 elements to defense:

1) criminal plan did not originate w/ D but originated w police
2) A law enforcement official induced D to commit the crime (don’t confuse providing opportunity w inducement),
3) And D was not predisposed to commit the crime

79
Q

Consent

A

If an element of the crime requires establishing a lack of consent, then evidence of consent is a defense. Valid consent must be free of coercion, duress, deception, fraud, and must be given by one legally capable of consent.

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