Criminal Law Flashcards
How is jurisdiction created in a criminal case?
Where act took place or where result took place.
What is the burden of proof in a criminal case?
Beyond a reasonable doubt.
Note* Juries cannot presume the required mental state i if they find that D committed the acts necessary to establish the offense.
What is a felony? What is a misdemeanor?
Felony - Punishable by death or 1+ years imprisonment.
Misdemeanor - Punishable by a fine and/or less than 1 year in prison.
What are the broad elements to every crime?
1) Voluntary Act (not sleepwalking, unconscious, or a reflex/convulsion) or failure to act when you had a legal duty, knowledge, and ability to act. Don’t forget that the duty to act can arise from a statute, contract, spousal relationship, parent child relationship, an undertaking, or creation of the peril.
2) The Proper Intent (Specific, General, Malice or Strict Liability).
3) Causation - Actual (but for) and Proximate
4) The Concurrence Principle - Appropriate mental state at the time of the criminal act.
What is specific intent and what are the specific intent crimes?
Desire to achieve a specific result.
Spec. Intent Crimes:
1) Assault
2) First Degree Murder
3) Larceny
4) Embezzlement
5) False Pretenses
6) Robbery
7) Forgery
8) Burglary
9) Solicitation
10) Conspiracy
11) Attempt
Note***Voluntary intoxication and unreasonable mistakes of fact only work to negate specific intent.
What is malice? What crimes require it?
Act intentionally or with reckless disregard of the risk.
Malice Crimes:
1) Arson
2) Murder
What is general intent? What crimes?
Generally aware of the result (inferred from doing the act usually).
General Intent Crimes:
1) Battery
2) Forcible Rape
3) False Imprisonment
4) Kidnapping
What is strict liability with respect to criminal law? What crimes?
Absence of mental state required.
Public welfare offenses such as transferring unregistered firearms, selling contaminated food, or shipping adulterated drugs in interstate commerce.
OR
Statutory Rape
How does the Model Penal Code differentiate mental states from the common law?
MPC has 5 mental states
1) Purposeful (Conscious desire)
2) Knowing (aware)
3) Recklessness (substantial and unjustifiable risk and a conscious disregard thereof)
4) Criminal Negligence (should have been aware of a substantial and unjustifiable risk)
5) Strict Liability (just a causal relationship between the act and the commission of a crime).
What is the difference between actual and proximate cause?
Actual cause = But for causation
Proximate cause = the bad result was the natural and probable consequence of D’s conduct. Is it foreseeable? Unforeseeable intervening acts relieve D of being found guilty. However, D takes the victim as he finds him (Eggshell victim).
When is the concurrence principal most likely to present a problem?
Required mental state at same time as act most likely to present a problem in larceny and burglary cases.
What is common law battery?
Unlawful;
Application of force;
Resulting in either bodily injury or offensive touching.
General intent crimes.
In MA, no aggravated battery but enhancements for battery if:
1) cause serious bodily injury
2) victim is pregnant woman
3) victim had a restraining order against attacker
What is common law assault? Change in MA?
Attempted battery (swing and miss) OR Intentional creation beyond mere words; Of a reasonable apprehension; Of imminent bodily harm.
Specific intent = create imminent apprehension of contact.
In MA, need not prove that the victim was actually placed in apprehension, just that D engaged in objectively menacing conduct intending to place victim in apprehension of imminent bodily harm. It is also a crime to threaten to commit a crime against the person or property of another.
What is common law murder?
Causing the death of another person with malice aforethought.
Another usually must be someone born, but in MA, it includes a viable fetus.
4 Possible Mental States
1) Intent to kill (inferred from use of deadly weapon)
2) Intent to cause seriously bodily harm
3) Depraved Heart/Extreme Recklessness/Reckless Indifference
4) Intentional commission of an inherently dangerous felony (felony murder).
What is the year and a day rule? Does it still apply?
At common law, the victim must die within a year and a day from the homicidal act to charge D with murder.
The majority and MA rule is that death may occur at any time.
What is transferred intent? When does it apply?
Transferred intent applies when D intends to harm V1, but instead harms V2. The intent to harm V1 transfers to the actual victim, V2.
Applies to murder, battery, and arson.
It does not apply to attempts. So if you intended to kill V1, and you missed, thus harming V2, but V2 did not die, V2 cannot go after you for attempted murder, only V1.
If you intend to kill V1, but you kill V2, can you be charged with murder of V2 and attempted murder of V1?
Yes. 2 victims so there is no merger.
What is felony murder? Changes in MA?
Any killing caused during the commission of or attempt to commit a felony (burglary, robbery, rape, arson, and kidnapping for sure).
1) D must have committed the underlying felony (so a defense to the felony is a defense to felony murder).
2) The felony must be inherently dangerous (see list above)
3) The felony must independent of the killing (e.g. assault and battery cannot be felony murder).
4) The killing must take place during the felony or in flight therefrom (over once reach temporary safety).
5) Death must be foreseeable
6) At common law, the victim must not be a co-felon.
In MA, the victim may be a co-felon, but felony murder only attaches if the killing is committed by one of the felons not a security guard, bystander, cops, etc. This is the Agency Theory.
Some states follow the Proximate Cause Theory in which the felons may be charged with murder even if the actual killing was done by a third party.
How is murder broken down in MA?
First Degree Murder
(a) premeditation and deliberation; or
(b) extreme atrocity or cruelty; or
(c) felony murder when the underlying felony is punishable by life imprisonment.
Second Degree Murder - all other murders, including murders committed during a felony that could not carry life imprisonment.
What is voluntary manslaughter? What about MA?
It would be murder, but it was in the heat of passion due to adequate provocation (serious A&B or witnessing adultery, but not mere words)
4 elements:
Objective adequate provocation;
Subjective provocation;
Objectively wouldn’t have calmed down at time of the killing;
Subjectively hadn’t calmed down at time of the killing.
In MA, additional allowance for inflammatory info such as learning about spouse’s infidelity, but the info must come from the victim, not a third party.
What is involuntary manslaughter? Changes in MA?
Either:
(a) A killing committed during a crime, but a crime not serious enough for felony murder; OR
(b) An unintentional killing committed with:
(i) Criminal negligence (gross deviation from reasonable standard of care) = Common Law
(ii) Recklessly (awareness and conscious disregard of a substantial and unjustifiable risk of death) = Modern Trend.
In MA,
Causing death unintentionally::
(a) By wanton or reckless conduct (high degree of likelihood that substantial harm will result to another);
OR
(b) By committing a battery that D knew or should have known created a high degree of likelihood that substantial harm would result.
What is false imprisonment? What is kidnapping?
FI = Unlawful confinement of a person without his or her consent.
Kidnapping = False imprisonment + moving the victim or secluding the victim in a secret place.
Both General Intent Crimes.
What is forcible rape? What is statutory rape? MA distinctions?
Rape = Sexual intercourse without the victim’s consent, accomplished by force, threat of force, or the victim is unconscious.
Statutory Rape = Sexual intercourse with someone under the age of consent (16 in MA)
In MA and in a majority of states this is a strict liability crime.
MPC allows for a reasonable mistake.
What is larceny?
A trespassory taking and carrying away of another’s personal property with the intent to permanently deprive the owner of the property.
Specific intent to steal.
NoteTaking under an erroneous claim of right is not larceny.
NoteConcurrence Principle Exception - If you take it with the intent to return it, but you later form the intent to permanently deprive, then the trespassory taking is said to have continued and the thief will be guilty of larceny.
What is embezzlement?
Conversion of the personal property of another by a person already in lawful possession of that property, with the intent to defraud.
Requires specific intent to defraud.
Note***Possession requires more than mere custody. It requires the authority to exercise some discretion over the property.
Compare a trustee who siphons money from a trust to a bank security guard who takes $1000 from the bank.
What is false pretenses? What is larceny by trick?
False pretenses is obtaining title to the personal property of another by false statement made knowingly, with the intent to defraud. With false pretenses, D actually gets actual title, not merely custody.
In Larceny by Trick, D obtains only custody as a result of his false statement.
Compare using a false statement to induce the current owner to grant you ownership (FP) with using the false statement to induce the current owner to just grant you use (L by T).
What is robbery? What about in MA?
Larceny +
from someone’s person or presence (separate room in the house is close enough) +
Force (not stealth like pick pocketing) or threat of immediate injury (not future harm)
Specific intent to steal.
Note***Pick pocketing is larceny, threat of future harm is extortion.
In MA, Armed Robber occurs when a person is armed with a dangerous weapon, and he assaults another and commits robbery or larceny. The weapon need not be used in the robbery.
What is forgery?
Making or altering a writing so that it is false. The crime is complete when the writing has been written. e.g. forgery committed when you write a check on someone else’s checkbook, not when it is cashed.
Requires specific intent to defraud.
In MA, this would be attempted larceny if he fails to get the money.
How do MA theft offenses differ from the Common Law?
MA has consolidated larceny, embezzlement, false pretenses, and L by T into a single offense called larceny.
Grand Larceny (felony) is larceny of property more than $250 or larceny of any firearm or larceny of any motor vehicle.
Petit Larceny (misdemeanor) is larceny of property valued at $250 or less (other than firearms and motor vehicles).
What is Common Law Burglary?
Breaking and entering the dwelling of another at night with the intent to commit a felony inside.
“Breaking” = creating or enlarging an opening by at least minimal force. (breaking a window, opening a window, or entry gained through fraud, yes; climbing through an open window or entering with permission, no).
“Entry” = any part of the body breaks the plane.
“Dwelling” = where someone regularly sleeps.
“Of another” = can’t burglarize your own house.
Specific intent = commit a felony therein (steal, rob, rape, assault, kill, etc.)
