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September 2020 Bar Exam > Criminal Law > Flashcards

Criminal Law Flashcards

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MBE flashcards
1
Q

General Matters: How does a state acquire jurisdiction over a case in criminal law?

A

A state acquires jurisdiction over a crime if EITHER the CONDUCT and/or the RESULT happened in that state

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2
Q

General Matters: Merger + Exception + Remember Conspiracy

A

Generally, there is NO MERGER of crimes

Exception: SOLICITATIONS and ATTEMPTS DO MERGE into the substantive offense (e.g. you cannot be convicted of attempting to commit a crime AND that crime)

Remember; Conspiracy does NOT merge into the substantive offense, and therefore you may be charged with both

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3
Q

Essential Elements of Crime: Elements of Crimes Generally

A

1) Act (actus reus)
2) Mental state (mens rea)
3) Concurrence (physical act and mental act at same time)
4) Harmful result and causation

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4
Q

Essential Elements of Crime: Physical Act Definition + Non Act Examples

A

An act can be ANY bodily movement, but MUST be voluntary

Examples: 1) Reflexive or convulsive acts (e.g. seizure), 2) Unconscious or asleep acts

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5
Q

Essential Elements of Crime: Omission as an Act Circumstances

A

Generally, there is no legal duty to rescue, BUT a legal duty to act can arise in any of the following 5 circumstances:

1) By statute (e.g. filing tax returns)
2) By employment contract (e.g. nurse or lifeguard)
3) Relationship between the parties (e.g. parents duty to protect children)
* *4) Fail to adequately perform after assuming duty of care
* *5) Where your conduct created the peril

** = most popular on MBE

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6
Q

Essential Elements of Crime: Common Law Mental States of a Crime + Remember Additional Defenses for Specific Intent Crimes

A

1) specific intent crimes
2) malice crimes
3) general intent crimes
4) strict liability crimes

Remember: 1) voluntary intoxication, and 2) unreasonable mistake of fact - these are ONLY available for specific intent crimes

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7
Q

Essential Elements of Crime: Specific Intent Crimes + Tip Mnemonic

A 
Students (solicitation)
Can (conspiracy)
Always (attempt)
(the inchoate offenses)
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Fake (first-degree murder)
A (assault)
Laugh (larceny),
Even (embezzlement)
For (false pretenses)
Ridiculous (robbery)
Bar (burglary)
Facts (forgery)
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8
Q

Essential Elements of Crime: Malice Definition Crimes

A

1) Murder (common law murder, a.k.a. second-degree murder)

2) arson

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9
Q

Essential Elements of Crime: General Intent Definition + Crimes

A

General intent means D has a GENERAL AWARENESS that she is acting in a manner that would be prohibited by law

All crimes not specific intent or malice are general intent crimes, unless they qualify for strict liability

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10
Q

Essential Elements of Crime: Strict Liability + Remember Defenses of No Intent + Tip to Find Strict Liability Crimes by Statutory Reading

A

No intent needed to be guilty of strict liability crimes, therefore any defense negating intention will be unsuccessful

Tip: If the crime is administrative, regulatory, or morality area AND you don’t see adverbs such as “knowingly, willfully, or intentionally” then the statute is meant to be a no intent crime of strict liability

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11
Q

Essential Elements of Crime: Model Penal Code - Purposely Definition

A

One acts purposely when it is his CONSCIOUS OBJECTIVE to engage in certain conduct or cause a certain result

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12
Q

Essential Elements of Crime: Model Penal Code - Knowingly Definition

A

One acts knowingly when he is AWARE that his conduct will very likely cause the result

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13
Q

Essential Elements of Crime: Model Penal Code - Recklessly Definition

A

One acts recklessly when he CONSCIOUSLY DISREGARDS a SUBSTANTIAL AND UNJUSTIFIABLE risk

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14
Q

Essential Elements of Crime: Model Penal Code - Negligently Definition

A

One acts negligently when he fails to be aware of a SUBSTANTIAL and UNJUSTIFIABLE risk

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15
Q

Essential Elements of Crime: Concurrence Requirement

A

D must have had the intent necessary for the crime AT THE TIME he committed the act

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16
Q

Essential Elements of Crime: Causation Requirement

A

Some crimes (e.g. homicide) require a harmful result and causation, thus when a crime requires conduct and specified result, D’s conduct must be both the ACTUAL CAUSE and PROXIMATE CAUSE

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17
Q

Accomplice Liability: Parties to a Crime & Definition - Common Law

A

1) Principals in the 1st Degree - persons who actually ENGAGE IN THE ACT that constitutes the criminal offense;
2) Principals in the 2nd Degree - persons who aid, advise, or encourage the principal and ARE PRESENT at the crime;
3) Accessories before the fact - persons who aid, advise, or encourage the principal but ARE NOT PRESENT at the crime
4) Accessories after the fact - persons who assist the principal AFTER the crime

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18
Q

Accomplice Liability: Parties to a Crime - Modern Statutes

A

Most jurisdictions ABOLISHED the distinctions between principals in 1st and 2nd degree and accessories after and before the fact. They define parties as one of the two:

1) Principal - one who, with the requisite mental state, actually engages in the act or omission that causes the criminal result
2) Accomplice - one who AIDS, ADVISES, or ENCOURAGES the principal in the commission of the crime charged
3) Accessory after the fact - one who receives, comforts, or assists another knowing the he has committed a felony in order to help the felon escape the arrest, trial, or conviction

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19
Q

Accomplice Liability: Mental State Required for Accomplice Liability

A

In order to be convicted of a substantive crime as an accomplice, the accomplice MUST have:

1) The INTENT TO ASSIST the principal in the commission of the crime, AND
2) the INTENT that the principal commit the crime

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20
Q

Accomplice Liability: Scope of Liability

A

An accomplice is responsible for the crimes SHE COMMITTED or AIDED/ADVISED/ENCOURAGED and for OTHER CRIMES that were committed if PROBABLE and FORESEEABLE

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21
Q

Accomplice Liability: Accomplices and Withdrawal (Encouraged v. Aided) + Remember One Withdrawal Method that Always Works

A

Encouraged: If the person encouraged the crime, the person MUST REPUDIATE the encouragement

Aided: If the person aided by providing assistance, he must do EVERYTHING POSSIBLE TO NEUTRALIZE this assistance (e.g. retrieve materials)

Remember: An alternate means of withdrawing is to CONTACT THE POLICE

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22
Q

Inchoate Offenses: Conspiracy Definition + Remember Agreement Options

A

Conspiracy is an agreement, with an intent to agree, and an intent to pursue an UNLAWFUL OBJECTIVE

Remember: Agreement NEED NOT be expressed, intent CAN BE INFERRED from conduct

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23
Q

Inchoate Offenses: Conspiracy - No Merger Rule

A

Conspiracy DOES NOT MERGE into the substantive offense, therefore you can be convicted of conspiring to do something A D actually doing it (e.g. robbery and conspiracy to commit robbery)

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24
Q

Inchoate Offenses: Conspiracy - Agreement Approaches

A

1) Bilateral approach (common law) - the traditional rule required TWO guilty parties. Therefore, if one person in a two party conspiracy is feigning agreement, the other CANNOT BE GUILTY of conspiracy. (the acquittal of all persons but one alleged to conspire PRECLUDES CONVICTION of the remaining D)
2) Unilateral approach (MPC approach) - requires that ONLY ONE person have a genuine criminal intent

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25
Q

Inchoate Offenses: Conspiracy - Overt Act Requirement (Majority v. Minority Rule) + Remember Mere Preparation

A

Majority Rule (MPC): There must be an AGREEMENT PLUS SOME OVERT ACT in furtherance of the conspiracy

Remember: Even an act of MERE PREPARATION would constitute an overt act (e.g. buying a black glove)

Minority Rule (common law): Liability for conspiracy is grounded with THE AGREEMENT ITSELF

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26
Q

Inchoate Offenses: Conspiracy - Factual Impossibility + Remember Rule for Other Inchoate Offenses

A

Factual impossibility IS NO DEFENSE to conspiracy

Remember: Factual impossibility is NEVER a defense to inchoate crimes

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27
Q

Inchoate Offenses: Conspiracy - Withdrawal

A

Withdrawal, even if adequate, CAN NEVER relieve the D from liability for the conspiracy itself, BUT may withdraw them from liability for subsequent crimes

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28
Q

Inchoate Offenses: Solicitation + Remember Common Law Agreement Requirement + Remember Merger

A

Solicitation is ASKING someone to commit a crime

Remember: Under common law, it IS NOT necessary that the person AGREE to commit the crime

Remember: If you ask a person to commit the crime, and the person agrees to do it, solicitation merges INTO CONSPIRACY

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29
Q

Inchoate Offenses: Attempt Elements + Remember Substantial Step

A

1) Specific intent, plus 2) overt act IN FURTHERANCE of the crime

Remember: The overt act MUST be a SUBSTANTIAL STEP in furtherance of the commission of the crime, thus mere preparation CANNOT GROUND liability for attempt

30
Q

Inchoate Offenses: Attempt - Abandonment (Majority v. Minority Rule)

A

Majority (Common Law): Once D has taken a substantial step toward committing the crime, abandonment is NEVER A DEFENSE

Minority (MPC): Allows for this defense ONLY IF it is fully VOLUNTARY and a COMPLETE RENUNCIATION of criminal purpose

31
Q

Inchoate Offenses: Attempt - Impossibility (Factual v. Legal)

A

Factual impossibility IS NOT a defense, BUT legal impossibility is a defense to attempt

32
Q

Homicide: Common Law Murder Definition + Remember States of Mind

A

The UNLAWFUL killing of another human being with MALICE AFORETHOUGHT

Such a state of mind exists IF there is:

1) INTENT to kill; or
2) Intent to COMMIT A FELONY; or
3) Intent to INFLICT GREAT BODILY HARM; or
4) RECKLESS INDIFFERENCE to an unjustifiably high risk to human life

33
Q

Homicide: First-Degree Murder Types + Remember Intent + Remember Officer Requirements

A

(1) Premeditated killing;
Remember: D must act with INTENT or KNOWLEDGE that his conduct would cause death, and victim must be human and dead);

(2) Felony murder; and

(3) Homicide of a Police Officer
Remember: D must know V was a police officer, and victim must be acting in line of duty

34
Q

Homicide: Second Degree Murder Definition

A

Classified as a DEPRAVED HEART killing - done with RECKLESS INDIFFERENCE to an unjustifiably high risk to human life; or some states define this as murder not classified within first-degree

35
Q

Homicide: Felony Murder + Remember Inherently Dangerous + Tip to Remember Dangerous Felonies

A

Any killing - EVEN ACCIDENTAL - committed during the course of a felony (considered 1st Degree)

Remember: At common law, the felonies being committed to constitute felony murder must be INHERENTLY DANGEROUS

Tip: BARRK (Burglary, Arson, Rape, Robbery, and Kidnapping) are inherently dangerous felons

36
Q

Homicide: Felony Murder - Defense

A

(1) If the D has a DEFENSE TO THE UNDERLYING FELONY, then he has a defense to felony murder,
(2) The felony they are committing MUST be a felony OTHER THAN THE KILLING;
(3) the deaths must be FORESEEABLE;
(4) death caused while fleeing from a felony ARE FELONY MURDERS, BUT once D reaches temporary safety, deaths caused thereafter are not felony murders;
(5) At common law, D is NOT LIABLE for the death of a co-felon as a result of resistance by the victim or police

37
Q

Homicide: Voluntary Manslaughter + Remember Ordinary Person Rule + Remember Sufficient Time (Cool Off)

A

A killing in the HEAT OF PASSION resulting from ADEQUATE PROVOCATION by the VICTIM

Remember: The provocation must be one that would arouse sudden and intense passion IN THE MIND of an ORDINARY PERSON such to lose self-control

Remember: There must have been SUFFICIENT TIME between the provocation and the killing for the passions of a reasonable person to cool; and the D did NOT IN FACT COOL OFF

38
Q

Homicide: Voluntary Manslaughter - Imperfect Self-Defense + Remember Amount of States that Recognize This

A

If D has an HONEST but UNREASONABLE belief that his life was in imminent danger, this defense will reduce a murder to manslaughter

Remember: Only SOME STATES recognize this doctrine

39
Q

Homicide: Involuntary Manslaughter

A

(1) A killing of CRIMINAL NEGLIGENCE; or

(2) Misdemeanor manslaughter - killing someone while committing a MISDEMEANOR or un-enumerated felony

40
Q

Homicide: Causation

A

Must prove ACTUAL CAUSATION and PROXIMATE CAUSATION

41
Q

Other Common Law Crimes: Battery + Remember Intent + Remember Indirect Battery

A

Unlawful application of force to the person resulting in either BODILY INJURY or OFFENSIVE TOUCHING

Remember: Battery NEED NOT be intentional. Battery is a GENERAL INTENT crime (not specific intent)

Remember: The force NEED NOT be applied directly (e.g. poisoning is battery)

42
Q

Other Common Law Crimes: Assault + Tip for Battery v. Assault

A

An attempt to commit a battery, or the intentional creation - other than by mere words - of a reasonable APPREHENSION of IMMINENT BODILY HARM

Tip: The distinction between assault and battery generally comes down to an ACTUAL TOUCHING, which results in a battery, otherwise it is typically an assault

43
Q

Other Common Law Crimes: Aggravated Assault

A

An assault (intent to create imminent bodily harm) PLUS: 1) the use of a deadly weapon OR 2) with intent to rape, maim, or murder

44
Q

Other Common Law Crimes: False Imprisonment + Remember Alternate Route

A

Unlawful confinement of a person without valid consent

Remember: If a known ALTERNATE ROUTE is available, the confinement element will NOT BE MET

45
Q

Other Common Law Crimes: Kidnapping

A

Confinement of a person with either some movement or concealment in a secret place

46
Q

Other Common Law Crimes: What Constitutes Rape

A

The slightest penetration completes the crime of rape

47
Q

Other Common Law Crimes: Statutory Rape + Liability

A

Statutory rape is a strict liability crime, meaning consent of the victim or mistake of fact IS NO DEFENSE

48
Q

Offenses Against Property and the Habitation: Larceny Rule + (1) Remember Movement Threshold + (2) Remember Intent to Deprive Timing + (3) Remember Mistake of Fact

A

Common law larceny requires a wrongful taking, a CARRYING AWAY of property or another by trespass WITH INTENT TO PERMANENTLY DEPRIVE

(1) Even the SLIGHTEST MOVEMENT of the property is enough for purposes of the bar exam
(2) The intent to deprive the owner permanently must exist AT THE TIME of the taking or it is not common law larceny
(3) Taking property in the BELIEF IT IS YOURS is NOT larceny

49
Q

Offenses Against Property and the Habitation: Larceny - Continuing Trespass Rule

A

If a person takes property NOT INTENDING TO STEAL, but then later decides to keep the property, she CAN BE GUILTY of larceny under the continuing trespass rule

50
Q

Offenses Against Property and the Habitation: Embezzlement + Remember Beneficiary of Embezzlement + Tip for MBE Popular Embezzler

A

Fraudulent conversion of another’s property

Remember: The embezzler DOES NOT have to get the benefit

Tip: MBE often uses a TRUSTEE as an embezzler

51
Q

Offenses Against Property and the Habitation: False Pretense (or False Representation) + (1) Remember Conveyance + (2) Remember Time of Representation + Tip to Distinguish Larceny by Trick

A

The D persuades the owner of property to CONVEY TITLE under false pretenses

(1) The CONVEYANCE of title is the center of false pretenses
(2) The false representation could be as to PRESENT or PAST fact, BUT a promise to do something in the FUTURE CANNOT ground liability for false pretenses

Tip: If ONLY POSSESSION of the property is obtained, larceny by trick occurred. If TITLE is obtained, the offense is FALSE PRETENSES

52
Q

Offenses Against Property and the Habitation: Robbery + (1) Remember Presence Requirement + (2) Remember Imminent Element

A

The taking of personal property of another from the other PERSON’S PRESENCE, by FORCE or THREAT with the intent to permanently deprive him of it

(1) The presence requirement is VERY BROAD (e.g. someone tied up in another room can count)
(2) The threat MUST BE IMMINENT

53
Q

Offenses Against Property and the Habitation: Extortion + Remember Difference Between Extortion and Robbery

A

Knowingly seeking to obtain property or services by means of a future threat

Remember: For extortion, there does NOT have to be anything taken from the person AND the threat is of a FUTURE HARM. Whereas robbery requires something taken and a past or present imminent harm

54
Q

Offenses Against Property and the Habitation: Forgery + Remember What Documents Count

A

Making or altering of a false writing with intent to defraud

Remember: Any writing that has APPARENT LEGAL SIGNIFICANCE can be subject to the crime of forgery

55
Q

Offenses Against Property and the Habitation: Burglary + (1) Remember Actual v. Constructive Breaking + (2) Remember Dwelling Requirement + (3) Remember Intent to Commit Felony Timing

A

A breaking and entering of a dwelling of another at night with the intent to commit a felony therein

(1) Actual - involving some force (even opening a door inside the house); Constructive - a breaking by FRAUD or THREAT
(2) Must be a dwelling house of another, it cannot be a barn or commercial structure
(3) The intent to commit a felony therein MUST exist AT THE TIME of the breaking and entering, or it is NOT burglary

56
Q

Offenses Against Property and the Habitation: Arson + (1) Remember Intent Needed + (2) Remember Smoke Damage + (3) Remember Dwelling & Whose Dwelling

A

The malicious burning of the dwelling of another

(1) The “malice” requirement means no specific intent, acting with reckless disregard or an obvious risk will suffice
(2) Smoke damage is INSUFFICIENT to count as arson - also known as “scorching,” but “charring” IS sufficient
(3) Building had to be a dwelling, not barn or commercial property, AND cannot be ONE’S OWN dwelling

57
Q

Defenses: Insanity - Four Tests Used

A

1) M’Naughten Rule - D lacked the ability to KNOW THE WRONGFULNESS of his actions at the time of the conduct (Right/Wrong Test);
2) Irresistible Impulse - D lacked the CAPACITY FOR SELF-CONTROL and free choice;
3) (RARE) Durham Rule - D’s conduct was a PRODUCT of mental illness;
4) MPC - D lacked the ABILITY TO CONFORM HIS CONDUCT to the requirements of law

58
Q

Defenses: Voluntary Intoxication - When Can This Be Used?

A

This defense can ONLY be used for SPECIFIC INTENT CRIMES

59
Q

Defenses: Involuntary Intoxication Definition + Remember When This Can Be Used

A

Unknowingly being intoxicated OR becoming intoxicated UNDER DURESS

Remember: This is a form of insanity, and thus can be used as a defense to ALL CRIMES

60
Q

Defenses: Self-Defense - Non-Deadly Force

A

A victim may use non-deadly self-defense ANY time the V REASONABLY BELIEVES that force is about to be used on him

61
Q

Defenses: Self-Defense - Deadly Force (Majority v. Minority)

A

Majority: A V may use deadly force in self-defense any time the victim REASONABLY BELIEVES that deadly force is about to be used on him

Minority: A victim is required to RETREAT if it is safe, UNLESS (1) you are in your home, (2) a V of rape or robbery, and (3) a police officer

62
Q

Defenses: Self-Defense - Original Aggressor + Remember Escalation

A

To get back the defense of self-defense, the original aggressor MUST:

1) Withdraw, and
2) Communicate withdrawal

Remember: If V of the initial aggression escalates a minor fight into a deadly one without giving the original aggressor time to withdraw, the original aggressor may use deadly force in self defense if reasonable

63
Q

Defenses: Self-Defense - Defense of Others + Remember Special Relationship

A

A D 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

Remember: There need NOT BE A SPECIAL RELATIONSHIP between the D and the person in whose defense he acted

64
Q

Defenses: Duress Elements + (1) Remember Third Person + (2) Remember When Applicable

A

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

(1) Threats to harm a THIRD PERSON may also SUFFICE to establish the defense
(2) This defense is available for ALL CRIMES EXCEPT HOMICIDE

65
Q

Defenses: Necessity + Remember Distinction from Duress

A

Conduct that would otherwise be criminal is justifiable if, as a result of NATURAL FORCES, the D reasonably believes that his conduct was necessary to avoid greater societal harm

Remember: The necessity defense differs from the duress because duress involves a HUMAN THREAT, and necessity involves pressure from NATURAL FORCES

66
Q

Defenses: Defenses of a Dwelling - Deadly Force

A

Deadly force MAY NEVER be used solely to defend your property

67
Q

Defenses: Mistake of Fact - When is it Applicable for Malice and General Intent v. Specific Intent + Remember Strict Liability

A

Mistake of fact is a defense ONLY when the mistake negates intention - used if REASONABLE to a malice or general intent crime

Specific Intent: Any mistake, no matter how ridiculous, is a defense if the D is charged with a SPECIFIC INTENT CRIME

Remember: Mistake of fact is NEVER a defense to strict liability

68
Q

Defenses: Mistake of Law

A

It is NOT A DEFENSE to a crime that the D was unaware that her acts were prohibited by law or that she mistakenly believed her acts were legal

69
Q

Defenses: Entrapment Elements

A

Entrapment is valid ONLY IF: 1) The criminal design ORIGINATED WITH LAW ENFORCEMENT OFFICERS, and
2) D must NOT have been predisposed to commit the crime

70
Q

Defenses: Which Defenses Require Reasonable Belief?

A

1) Self-defense,
2) Duress,
3) Necessity,
4) Mistake of fact (only for malice or general intent, not specific intent)

September 2020 Bar Exam (21 decks)

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