Criminal Law Flashcards
1
Q
Criminal Law: Jurisdiction
A
A state acquires jurisdiction over a crime if either THE CONDUCT or THE RESULT happened in that state
More than one state can have jurisdiction
2
Q
Merger
A
Generally, no merger
Conspiracy DOES NOT MERGE into the substantive offense. You can be convicted of conspiring to do something and doing it
2 victims, 2 crimes, no merger
3
Q
Merger: Exception to the General Rule
A
Solicitation and attempt do merge into the substantive offense.
If you had completed a crime, you cannot be convicted of attempting to commit that crime.
4
Q
Elements of Crimes
A
Act (actus reus)
Mental state (mens rea)
Concurrence: physical act and mental act existed at the same time
Harmful result and causation: harmful result is caused by the defendant’s act
5
Q
Physical Act
A
Any bodily movement; most be voluntary
6
Q
Physical Act: Not Voluntary
A
Conduct which is not the product of your own volition (e.g. reflexive/convulsive act)
Act performed while unconscious or asleep
7
Q
Omission as an Act: General Rule
A
No legal duty to rescue, but sometimes there is a legal duty to act. Can arise in 5 circumstances
8
Q
Legal Duty to Act: 5 Circumstances
A
(1) by statute
(2) by contract
(3) because of the relationship between the parties (“status relationship”)
(4) because you voluntarily assume a duty of care and fail to adequately perform it
(5) where your conduct created the peril
9
Q
4 Common Mental States of a Crime
A
(1) specific intent crimes
(2) malice crimes
(3) general intent crimes
(4) strict liability crimes
10
Q
Specific Intent Crimes
A
Qualify for additional defenses not available for other types of crimes (voluntary intoxication, unreasonable mistake of fact)
11
Q
Specific Intent Crimes Mnemonic
A
Students can always fake a laugh, even for ridiculous bar facts
Solicitation (inchoate offense)
Conspiracy (inchoate offense)
Attempt (inchoate offense)
First-degree murder
Assault
Larceny
Embezzlement
False Pretenses
Robbery
Burglary
Forgery
12
Q
Malice Crimes
A
Characterized by reckless indifference
(1) Murder
(2) Arson
13
Q
General Intent Crimes
A
All crimes not otherwise specified unless they qualify for strict liability.
Most important: battery and rape.
Defendant has a general awareness that she is acting in a manner that would be prohibited by law.
14
Q
Strict Liability
A
Any defense that negates intention cannot be a defense to the NO INTENT crimes of strict liability.
If crime is in the administrative, regulatory, or morality area and you don’t see adverbs in the statute such as knowingly, willfully, or intentionally, then the statute is meant to be a no intent crime of strict liability
15
Q
Mental States and MPC: Purposely
A
One acts purposely when it is his conscious objective to engage in certain conduct or cause a certain result
16
Q
Mental States and MPC: Knowingly
A
One acts knowingly when he is aware that his conduct will very likely cause the result
17
Q
Mental States and MPC: Recklessly
A
One acts recklessly when he consciously disregards a substantial and unjustifiable risk
18
Q
Mental States and MPC: Negligently
A
One acts negligently when he fails to be aware of a substantial and unjustifiable risk
19
Q
Concurrence requirement
A
Defendant must have had the intent necessary for the crime at the time he committed the act constituting the crmie
20
Q
Causation
A
Some crimes (e.g. homicide) require a harmful result and causation.
When a crime is defined to include not merely conduct, but also a specified result, the defendant’s conduct must be both the cause-in-fact and the proximate cause of the specified result.
21
Q
Common Law: Principals in the First Degree
A
Persons who actually engage in the act that constitutes the criminal offense
22
Q
Common Law: Principals in the Second Degree
A
Persons who aid, advise, or encourage, the principal and are present at the crime
23
Q
Common Law: Accessories Before the Fact
A
Persons who aid, advise, or encourage the principal but are not present at the crime
24
Q
Common Law: Accessories After the Fact
A
Persons who assist the principal after the crime.
25
Modern Statutes: Parties to a Crime
Most jurisdictions have abolished the distinctions between principals in the first degree, principals in the second degree, and accessories before the fact (accessories after the fact are still treated separately)
26
Modern Construction: Principal
One who, with the requisite mental state, actually engages in the act or omission that causes the criminal result
27
Modern Construction: Accomplice
One who aids, advises, or encourages the principal in the commission of the crime charged
28
Modern Construction: Accessory after the Fact
One who receives, comforts, or assists another knowing that he has committed a felony, in order to help the felon escape arrest, trial, or conviction
29
Accomplice Liability: Required Mental State
To be convicted of a substantive crime as an accomplice, accomplice must have
(1) intent to assist the principal in the commission of the crime
(2) intent that the principal commit the crime
30
Scope of Liability
Accomplice is responsible for the crimes she committed or aided/advised/encouraged and for any other crimes committed in the course of committing the crime contemplated, as long as the other crimes were probable and foreseeable
31
Accomplices and Withdrawal: Encouragement
If a person encouraged the crime, the person must repudiate the encouragement
32
Accomplices and Withdrawal: Assistance
If a person aided by providing assistance to the principal (such as giving materials), he must do everything possible to neutralize this assistance (such as attempting to retrieve the materials)
33
Accomplices and Withdrawal: Alternate Means
Contact the police
34
Inchoate Offenses
Incomplete
3 inchoate offenses
(1) Conspiracy
(2) Solicitation
(3) Attempt
35
Conspiracy
An agreement, with an intent to agree, and an intent to pursue an unlawful objective
36
Conspiracy: Merger
NO MERGER.
Conspiracy does NOT merge with the substantive offense. You CAN be convicted of conspiring to do something and doing it.
37
Conspiracy: Agreement Required
The agreement NEED NOT BE EXPRESSED.
Intent can be inferred from conduct.
38
Conspiracy: Bilateral Approach
Traditional (common law rule)
Two guilty parties.
If one person is merely feigning agreement, the other person cannot be guilty of conspiracy.
Acquittal of all persons with whom a defendant is alleged to have conspired PRECLUDES conviction of the remaining defendant.
39
Conspiracy: Unilateral Approach
Modern trend (& MPC)
Only one person need have a genuine criminal intent
40
Conspiracy: Overt Act Majority Rule
Majority rule is that in order to ground liability for conspiracy there must be an agreement plus some overt act in furtherance of the conspiracy.
Any little act will do to be an overt act in furtherance of the conspiracy, even an act of mere preparation
41
Conspiracy: Overt Act Minority Rule
Common law and minority rule grounded liability for conspiracy with agreement itself.
42
Conspiracy: Factual Impossibility
No defense to conspiracy
43
Conspiracy: Withdrawal
Withdrawal, even if it is adequate, can never relieve the defendant from liability for the conspiracy itself.
Defendant can withdraw from liability for the other conspirator's SUBSEQUENT crimes.
Cannot withdraw from this conspiracy.
44
Solicitation
Asking someone to commit a crime. Crime ends when ou ask them.
45
Solicitation: Agreement
Under common law, it is not necessary that the person solicited agree to commit the crime. If they do agree, the solicitation merges into conspiracy.
46
Solicitation: Factual Impossibility
No defense to conspiracy
47
Attempt
(1) Specific intent plus
| (2) Overt act in furtherance of the crime
48
Attempt: Overt Act
Must be a substantial step in furtherance of the commission of the crime; mere preparation cannot ground liability for attempt
49
Attempt: Abandonment
Once defendant has taken a substantial step toward committing a crime, abandonment is never a defense.
MPC allows defense only if it is FULLY VOLUNTARY and a complete renunciation of criminal purpose.
50
Attempt: Impossibility
Legal impossibility is a defense to attempt.
Factual impossibility is not a defense to attempt.
51
Homicide
AKA Common Law Murder
Unlawful killing of another human being with malice aforethought.
52
Homicide: Intent
First degree
- Intent to kill, or
- Intent to commit a felony, or
2nd degree
- Intent to inflict great bodily harm
- Reckless indifference to an unjustifiably high risk to human life
53
First Degree Murder
(1) Premeditated killing
- victim must be human
- defendant must have acted with intent or knowledge that his conduct would cause death
(2) Felony murder
(3) Homicide of a Police Officer
- defendant must know that the victim is a law enforcement officer
- victim must be acting in the line of duty
54
Second Degree Murder
Depraved heart killing
Killing done with reckless indifference to an unjustifiably high risk to human life.
Murders that are not classified as first degree murders
55
Felony Murder
Any killing-- even an accidental killing-- committed during the course of a felony.
56
Defenses to Felony Murder
(1) if the defendant has a defense to the underlying felony, she has a defense to felony murder
(2) the felony they are committing must be a felony other than the killing
(3) deaths must be foreseeable
(4) deaths caused while fleeing from a felony are felony murders. BUT once defendant reaches a point of temporary safety, deaths caused thereafter are NOT felony murder
(5) at common law, defendant is NOT liable for the death of a co-felon as a result of resistance by the victim of the police
57
Felony Murder: Death of Co-Felon
At common law, no liability for death of co-felon
58
Inherently Dangerous Felonies
BARRRK
```
Burglary
Arson
Rape
Robbery
Kidnapping
```
59
Voluntary Manslaughter
(1) killing in the heat of passion resulting from adequate provocation by the victim
(2) the provocation must be one that would arouse sudden and intense passion in the mind of an ordinary person such as to cause him to lose self-control
(3) must not have been a sufficient time between the provocation and the killing for the passions of a reasonable person to cool, and
(4) the defendant did in fact not cool off between the provocation and the killing
60
Imperfect Self Defense
If defendant has an honest but unreasonable belief that his life was an imminent danger, this defense will reduce a murder to manslaughter.
Only some states recognize this doctrine.
61
Involuntary Manslaughter
(1) a killing of criminal negligence, or
| (2) misdemeanor manslaughter-- killing someone while committing a misdemeanor or an unenumerated felony
62
Homicide: Causation
Cause-in-Fact
Defendant's conduct must be the cause-in-fact of the victim's death.
The death would not have occurred BUT FOR the defendant's conduct
63
Homicide: Causation
Proximate Cause
General rule: Defendant 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 they would occur.
64
Battery
Unlawful application of force to the person resulting in either bodily injury or offensive touching
Need not be intentional (i.e. application of force with criminal negligence will suffice)
Force need not be applied directly
General intent crime
65
Assault
Attempt to commit a battery or
Intentional creation-- other than by mere words-- of reasonable apprehension of imminent bodily harm
66
Aggravated Assault
Assault plus one of the following:
- use of a deadly or dangerous weapon
- with intent to rape, main, or murder
67
False Imprisonment
Unlawful confinement of a person without his valid consent.
If known alternate route is available, confinement element will not be met for purposes of false imprisonment.
One's consent to confinement precludes it from constituting false imprisonment.
68
Kidnapping
Confinement of a person with either some movement or concealing in a secret place
69
Rape
Slightest penetration completes the crime.
Most modern statues: sexual assault
70
Statutory Rape
Strict liability crime, meaning consent of the victim is no defense and mistake of fact is no defense.
71
Larceny
Wrongful taking, a carrying away of property of another by trespass with intent to permanently deprive
- Slightest movement of property is enough
- Intent to deprive owner permanently must exist AT THE TIME OF THE TAKING.
- Taking property in the belief that it is yours (or that you have some right to it) is NOT common law larceny
72
Larceny: Continuing Trespass
If a person takes property not intending to steal it, but then later decides to keep the property, she can be guilty of larceny under the theory of continuing trespass.
73
Embezzlement
Fraudulent conversion of property of another
(1) Embezzler always have lawful possession, followed by an illegal conversion
(2) trustee is often the embezzlor
(3) you don't have to carry away to be the embezzlor-- just the lawful possession
(4) Embezzlor doesn't have to get the benefit
74
False Pretenses
Defendant persuades the owner of property to CONVEY TITLE by false pretenses (false representation)
(1) Conveyance of title is the center of false pretenses
(2) false representation could be as to a present or past fact
(3) false promise to do something in the future cannot ground liability for false pretenses
75
Larceny by Trick:
Defendant persuades the owner of property to convey possession of property
76
Robbery
Taking of personal property of another from the other person's presence, by force or threat with intent to permanently deprive him of it.
(1) presence requirement broadly drawn
(2) things such as ripping a necklace from a person's neck is sufficient
(3) threat must be a threat of IMMINENT harm
Pickpocket can never be robbery!
77
Simulated Deadly Weapon
On the hook for armed robbery. (finger guns, bomb in the backpack)
78
Extortion
Knowingly seeking to obtain property or services by means of a future threat
Don't need to take anything from the person or his presence to be extortion
Threats are of future harm-- not imminent harm
79
Forgery
Making or altering of a false writing with intent to defraud
Any writing with apparent legal significance can be subject to the crime of forgery (check/will/life insurance policy)
80
Burglary
Breaking and entering of a dwelling of another at night with intent to commit a felony therein.
Breaking: actual (involving some force, however slight) or constructive
Entering: occurs when any part of the body crosses into the house
Dwelling house of another: cannot be a barn or commercial structure
At night: common law had to be at night
With intent to commit a felony therein: intent to commit a felony must exist AT THE TIME OF THE BREAKING AND ENTERING or it is NOT common law burglary
81
Actual Breakings
NOT an actual breaking for someone to come uninvited through a wide open window or door.
If wide open: no breaking.
Someone pushes open an interior door to the bedroom or living them-- breaking
82
Constructive Breakings
Breaking by fraud or threat
83
Arson
Malicious burning of the dwelling of another.
No specific intent required; acting with reckless disregard of obvious risk that structure would burn will suffice for arson culpability
- Only applies to burning (scorching insufficient, charring sufficient). Not just smoke damage
- at common law, had to be a dwelling, not a bar or commercial building
- at common law, had to be a house of another. Could not burn own house at common law
84
Insanity: 4 Tests
(1) M'Naughten rule
(2) Irresistible impulse
(3) Durham Rule
(4) MPC
85
Insanity: M'Naughten Rule
At the time of his conduct, Defendant lack ed the ability to know the wrongfulness of his actions or understand the nature and quality of his actions
(Right/wrong test)
86
Insanity: Irresistible impulse
Defendant lacked the capacity for self-control and free choice
(Self control test)
87
Insanity: Durham Rule
Defendant's conduct was a product of mental illness (product test)
88
Insanity: MPC
Defendant lacked the ability to conform his conduct to the requirements of the law
89
Voluntary Intoxication: Self-Induced Intoxication
Voluntary intoxication is a defense on the bar exam only to specific intent crimes (and no other kind of crime)
Addicts and alcoholics are always VOLUNTARILY intoxicated
90
Involuntary Intoxication
(1) unknowingly being intoxicated or
(2) becoming intoxicated under duress
- slipped into drink
- forced to drink
A form of insanity. A defense to ALL crimes
91
Self Defense
Non-deadly force: victim may use non-deadly self-defense any time the victim reasonably believes that force is about to be used on him
92
Self Defense: Use of Deadly Force
Majority Rule
Victim may use deadly force in self-defense any time the victim reasonably believes that deadly force is about to be used on him
93
Self Defense: Use of Deadly Force
Minority Rule
Victim is required to retreat if it is safe to do so.
If in a minority jurisdiction, there are three exceptions
(1) no duty to retreat from your own home
(2) no duty to retreat if you are the victim of a rape or robbery
(3) police officers have no duty to retreat
94
Original Aggressor and Self Defense
To get back defense of self-defense, original aggressor must:
(1) withdraw, and
(2) communicate that withdrawal
Note: if victim of initial aggression suddenly escalates a minor fight into one involving deadly force and does so without giving aggressor the opportunity to withdraw, the original aggressor may use force in his own defense (including deadly force, if reasonable)
95
Defense of Others
A defendant can raise a defense of others defense if he reasonably believes that the person assisted would have had the right to use force in his own defense.
96
Defense of Others: Majority Rule
There need not be a special relationship between the defendant and the person in whose defense he acted.
97
Duress
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 harm a third person may also suffice to establish the defense of duress
A defense to all crimes EXCEPT HOMICIDE
98
Necessity
Conduct that would otherwise be criminal is justifiable if, as a result of pressure from natural forces, the defendant reasonably believes that his conduct was necessary to avoid a greater societal harm.
Differs from duress because necessity involves pressure from natural sources, not people.
99
Defense of Dwelling
Deadly force may never be used to solely defend your property.
100
Mistake of Fact
Defense only when the mistake negates intention.
Mistake has to be reasonable to be a defense to a malice or general intent crime
BUT-- on the Bar Exam-- any mistake, no matter how ridiculous, is a defense if the defendant is charged with a specific intent crime.
NEVER a defense to strict liability crimes.
101
Mistake/Ignorance of the Law
It is not a defense to a crime that the defendant was unaware that her acts were prohibited by law or that she mistakenly believed that her acts were not prohibited.
This is true even if ignorance or mistake is reasonable
102
Entrapment
A valid defense only if
(1) the criminal design originated with law enforcement officers, and
(2) the defendant must not have been predisposed to commit the crime
103
"Properly charged and convicted"
If there is an applicable defense, can be no proper charge and conviction
104
"Discuss any crimes"
Be sure to talk about defenses
105
Reasonable belief defenses
Self defense
Duress
Necessity
Mistake of fact for malice/general intent crimes
106
Trapped/confined
False imprisonment
107
Touched
Battery
108
Fearful
Assault
109
Breaking into house
Burglary
