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Criminal Law Flashcards

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1
Q

Ex post facto law

A

CRIMINAL ONLY. Not ever for anything civil.

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2
Q

Crimes against the person (types)

A

Assault and Battery
Murder (felony, depraved heart, intent to inflict serious bodily injury)
Manslaughter (voluntary and involuntary)

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3
Q

Crimes against the person (elements)

A

Mens Rea
Actus Reus
Defenses (insanity, self defense)

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4
Q

Principles of Criminal Liability

A 
Actus Reus
Mens Rea
Concurrence
Causation
Defenses
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5
Q

Mens rea - “knowingly”

A

A person has “knowledge” of a material fact is he is AWARE OF THE FACT or he correctly believes that it exists.
Most jdx also permit a finding of knowledge of an attendant circumstance when the D is said to be guilty of “willful blindness” or “deliberate ignorance” if the D is AWARE OF A HIGH PROBABILITY OF THE EXISTENCE OF THE FACT in question, and he deliberately fails to investigate in order to avoid confirmation.

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6
Q

Willful blindness or deliberate ignorance - mens rea knowingly?

A

In most jdx, YES.

Most jdx also permit a finding of knowledge of an attendant circumstance when the D is said to be guilty of “willful blindness” or “deliberate ignorance” if the D is AWARE OF A HIGH PROBABILITY OF THE EXISTENCE OF THE FACT in question, and he deliberately fails to investigate in order to avoid confirmation.

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7
Q

3 categories of crimes

A

Specific intent
General intent
Strict liability

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8
Q

Specific intent crimes - requirement

A

Requires an actual subjective intent to cause a specific result

Have to show that you intended to bring about a specific result. Harder to prove by the prosecution - have to prove mental state to cause the specific result.

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9
Q

General intent crimes - requirement

A

Requires only an intent to do the prescribed act

Prosecution doesn’t have to prove as much.

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10
Q

Strict liability crimes - requirement

A

NO mens rea requirement

Examples: regulatory offenses (speeding, alcohol to minors); regulation of food, drugs, firearms; morality crimes (bigamy, sexual assault, statutory rape).

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11
Q

Voluntary Intoxication - SI

A

Defense to a specific intent crime where it negates the mens rea.

NOT a defense to a general intent crime.

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12
Q

When can Mistake of Fact can be used as a defense (SI, GI and SL)

A

SI - any mistake, reasonable or unreasonable
GI - only reasonable mistake
SL - mistake of fact is NOT a defense.

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13
Q

Defense of Self Defense

A

Reasonable, non-deadly force is allowed where D reasonably believes it is necessary to avert imminent harm

General rule: NO DUTY TO RETREAT

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14
Q

When Deadly Force is allowed

A
  1. To meet deadly force,
    OR
  2. To counter a threat of serious bodily harm.
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15
Q

Insanity Defense - M’Naghten cognitive test

A

Test:
1. D does not know the nature and quality of his act
OR
2. He does not know what he was doing was wrong

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16
Q

Criminal liability for failure to act - when a duty may arise

A

A duty MAY arise by:

  1. Statute
  2. Contract
  3. Creation of victim’s peril
  4. Relationship (parent and spouses)

Most of these will trigger manslaughter. But can be murder where you actually want the death to occur.

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17
Q

Murder

A

Requires malice

Intentional - premeditated - 1st degree

Unintentional - felony murder, intent to inflict serious bodily harm, depraved heart murder, nonfeasance.

At common law - only murder, no degrees. But save 1st degree for intentional killings.

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18
Q

Can a homicide be unintentional?

A

YEP.

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19
Q

Felony murder

A

The unintentional murder (death) of a person during an inherently dangerous felony

BARRK (inherently dangerous felony)
Burglary, Arson, Rape, Robbery, Kidnapping

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20
Q

Intent to inflict serious bodily harm

A

When the D doesn’t intend to kill the person, but wanted to hurt the person, and they ended up dying anyway.

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21
Q

Depraved heart murder

A

You don’t care about your actions, whatsoever.

Don’t intend to hurt someone, don’t intend to kill. BUT you’re reckless - so malicious, and it’s murder.

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22
Q

Manslaughter

A

The unjustified killing of another. No malice.

Can be intentional or unintentional (voluntary, involuntary)

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23
Q

Intentional manslaughter - voluntary

A

D had no prior intent to kill, but acted in the “heat of passion,” under circumstances that would cause a reasonable person to become emotionally or mentally disturbed.

Specific intent

  1. Adequate provocation
  2. Mistaken justification
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24
Q

Unintentional manslaughter - involuntary

A

Unintentional, the lowest level of homicide. Need gross negligence.
Criminally negligent homicide is usually this in most jdx.

Nonfeasance.

General Intent

  1. Gross negligence
  2. Misdemeanor - manslaughter
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25
Q

How to mitigate murder to manslaughter

A
  1. Adequate provocation (murder to voluntary manslaughter)

2. Not reckless, just grossly negligent (depraved heart murder to involuntary manslaughter)

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26
Q

Voluntary Intoxication - homicide

A

Can reduce 1st degree murder to 2nd degree

Does NOT mitigate murder to voluntary manslaughter.

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27
Q

Can you take into account a person’s attributes to determine if they acted reasonably under the Model Penal Code?

A

YES.
At least some individual peculiarities should be taken into account bc they bear upon the inference as to the actor’s character that is fair to draw upon as the basis of his act.

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28
Q

Redline Rule (felony murder)

A

To be guilty of felony murder, the killing must have been done in the furtherance of the felony, BUT the victim must be an innocent party.

Felony murder does not apply when the person killed is a co-felon.

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29
Q

1st Degree Murder

A

Reserved for intentional killing, premeditated

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30
Q

2nd Degree Murder

A

Two types:

  • Malice required, victim intended, intent to inflict SBI
  • Unintentional, felony murder (BAARK - inherently dangerous felony)
31
Q

Crimes against the property (types)

A

Arson
Burglary
Theft Crimes (embezzlement, larceny, larceny by trick, false pretenses, receiving stolen property)

32
Q

Incohate crimes

A

Solicitation
Conspiracy
Attempt

ALL INCOHATES ARE SPECIFIC INTENT CRIMES

33
Q

Solicitation - SI

A

Defendant entices, encourages, orders or requests another to commit a crime. The crime is complete at this point.
Merges into the target offense. Typically for a conviction question - solicitation will be correct standing alone.
No defenses at common law. Renunciation doesn’t mean anything, doesn’t help you.

34
Q

Conspiracy - SI (elements)

A

Elements (common law):

  1. Agreement between 2 or more persons
  2. Intent to achieve same criminal objective

If 3 people enter a house to all do different things, don’t have the same criminal objective, then not a conspiracy even though they all agreed to enter into the house.

You CANNOT conspire with the law - if someone is a cop, then no conspiracy.
Conspiracy does NOT merge.

35
Q

Conspiracy defenses

A

Withdrawal is NOT a defense at common law.

MPC contra if defendant “thwarts the success”

36
Q

Attempt - SI (elements)

A

Elements:

  1. Intent to commit a crime
  2. A “substantial” step in furtherance that goes beyond mere preparation

MERGES into the completed offense.

37
Q

Attempt defenses

A

Legal impossibility - yes, defense

Factual impossibility - no, not a defense

38
Q

Unilateral Theory of Conspiracy

A

Under Model Penal Code
An agreement between 2 or more persons is NOT required. Only an INTENT by a single actor agreeing with another is needed.

39
Q

Is a co-conspirator guilty of all crimes committed in furtherance of the conspiracy?

A

YES, THEY ARE. A co-conspirator is guilty of all crimes committed “in furtherance of” the conspiracy (these are called Pinkerton crimes)

40
Q

A conspirator can withdraw from Pinkerton crimes when

A

When the conspirator:
1. notified all other members of the conspiracy,
AND
2. such notice is timely giving other members the opportunity to abort their plans

Pinkerton crimes - crimes committed in furtherance of a conspiracy

41
Q

Accomplice liability - SI (test)

A

For accomplice liability:

  1. gives aid or encouragement with
  2. intent to achieve SAME criminal objective.
42
Q

Scope of accomplice liability

A

All crimes “reasonably foreseeable”

43
Q

Battery - GI

A

Unlawful application of force

44
Q

Assault - SI (types)

A
  1. Attempted battery

2. Intent to frighten

45
Q

Accessory after the fact - SI (elements)

A
  1. Knows of a completed crime,
    AND
  2. Gives aid to hinder apprehension or conviction
46
Q

Receiving stolen property

A
  1. Knew or should have known that someone was stolen AND

2. You accepted it.

47
Q

Larceny vs. Embezzlement

A

Larceny - taking is trespassory/wrongful

Embezzlement - initial taking cannot be trespassory

48
Q

Larceny by trick v. False pretenses

A

LBT - title does NOT pass
False pretenses - title DOES pass

Both crimes require a false representation of a past or present material fact

49
Q

False pretenses - SI

A

False representation of a past or present material fact which causes the victim to pass TITLE to the wrongdoer

Example - the kid who sells oregano to the cop and says its marijuana.
A receipt is evidence of title.

50
Q

Embezzlement - SI

A

Fraudulent conversion of the personal property of another by one in lawful possession.

Example - pawn shop owner sells pawned item before the pawn agreement ran out.

51
Q

Burglary - SI (elements at common law)

A
  1. Breaking and entering of
  2. the dwelling house of another
  3. at nighttime with
  4. the intent to commit a larceny or felony therein
52
Q

Presumptions

A

Shifts the burden of production to the opposing party.
Must be accepted as true, unless rebutted.
A jury instruction creating a presumption as to an element of the crime charged is UNCONSTITUTIONAL and violates due process.

53
Q

Basis for appeal - right to jury trial

A

Arises where imprisonment for more than 6 months is possible

54
Q

Basis for appeal - right to counsel

A

Arises for felonies or misdemeanors where imprisonment is actually imposed.

55
Q

Reasonable Expectation of Privacy and police searches

A

If there IS REP - police intrusion constitutes a search

If NO REP - police intrusion is NOT a search.

56
Q

Standing for objections to searches

A

D must have a possessory interest in the premies searched or in the items siezed

57
Q

For a search, need:

A
  1. probable cause

2. warrant (unless an exception applies)

58
Q

Exception where you don’t need a warrant to search:

A 
Stop and frisk (need reasonable suspicion)
Search incident to lawful arrest
Plain view
Automobile
Consent
Hot pursuit
Exigent circumstances
59
Q

Inventory search

A

A routine search to protect the arrestee’s personal items and to safeguard the police from any claims of theft.

60
Q

Curtilage

A

The land immediately surrounding a house or dwelling, including any closely associated buildings and structures, but excluding any associated “open fields beyond”

On curtilage - yes expectation of privacy, need warrant.

61
Q

“Open fields” doctrine

A

Applies to the area beyond the “curtilage”
No REP
No 4th A protection
A view of “open fields” is NOT a serach

62
Q

Consent search

A 
Consent extends to all areas where a person with an apparent equal right to use or occupy the property would have joint access or control. Need apparent authority over the area you're consenting to.
-co-habitant?
-shared area?
-child?
BURDEN ON POLICE

If room is locked to a child, child doesn’t have apparent authority over that room.

63
Q

Dog sniff

A

A dog sniff of the exterior of a lawfully stopped vehicle does NOT constitute a search

Positive canine alert PROVIDES PROBABLE CAUSE to search.

64
Q

Requirements for a warrant

A
  • Must be issued only by a neutral, disinterested magistrate
  • Require probable cause, oath or affirmation, and a particular description of the place and object of the search to meet constitutional requirements
  • Sworn statement of facts showing probable cause to search particular place for particular items
65
Q

Standard for probable cause for a search warrant

A

Objective - there’s sufficient information to persuade a reasonable person that a certain place contains evidence of a crime

66
Q

Protective Sweeps

A

A sweep of the area immediately around the arrestee and the path, walk or hallways directly to and from him and the entrance to the residence.

Purpose: to ensure the security of law enforcement officers

Must be limited to a cursory inspection of places where a person may hide, and lasts no longer than is necessary to dispel the reasonable suspicion of danger.

67
Q

Miranda - CI

A

CUSTODIAL INTERROGATION
Law enforcement officials are REQUIRED to administer warnings in order to protect an individual who is in custody and subject to direct questioning or its functional equivalent

Prevents against violations of individual’s 5th A right against compelled self-incrimination.

68
Q

6th A right to counsel

A

Prevents deliberate elicitation of incriminating statements once formal charges have been filed (critical stages)

Need actual waiver to waive

69
Q

Double Jeopardy

A

The act of putting a person through a second trial for an offense for which he or she has already been prosecuted or convicted.

70
Q

Do you have a reasonable expectation of privacy for activities conducted in plain view (in your own home??)??

A

NO YOU DO NOT. NO REP.

71
Q

Can you extend a stop for the sole purpose of bringing a dog or letting a dog sniff around the car?

A

NOOOO! Could be a violation of 4th A.
Extension is a violation of the 4th A. Dog has to be running around the car while you’re writing the ticket. Once the reason for the stop is over, the individual has to be free to leave.

72
Q

What is custody for purposes of Miranda?

A

Invited to the station - nope
Held at the station - yes
6 guys with machine guns in your house and you’re on the couch - yes
In the back of the cop car, you’ve got handcuffs on - yes

73
Q

Can you use evidence gotten from an undercover officer while in jail with the undercover against the D at trial??

A

NOOO - violates the D’s right to counsel.

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