Criminal Law Flashcards
Where does the US have jx to criminalize and prosecute crimes?
Jx over:
1) crimes that occur ANYWHERE within US BOUNDARIES
2) crimes that occur on SHIPS and PLANES;
3) crimes committed by US NATIONALS ABROAD
When does a state have the jurisdiction to prosecute?
needs a CONNECTION with the state:
1) crime occurring in WHOLE or in PART inside the state;
2) conduct OUTSIDE the state involving an ATTEMPT to commit a crime INSIDE the state;
3) a CONSPIRACY to commit a crime if an OVERT ACT occurred WITHIN the state
What is required for there to be actus reus?
1) a PHYSICAL ACT
- speech counts
2) that is VOLUNTARY
- just motor control over act, irrelevant if he didn’t want to do it
When can the FAILURE to act be sufficient actus reus?
1) failure to comply with STATUTORY DUTY
2) SPECIAL RELATIONSHIP between D and vic
3) VOLUNTARILY ASSUMING a duty that is CAST ASIDE
4) CAUSING a DANGER and FAILING TO MITIGATE harm to victim caused by the danger
What are the four types of common law mens rea, generally?
Specific intent: did act for very purpose of causing result criminalized by law
Malice: reckless disregard of a high degree of harm
General intent: intent to perform unlawful act
Strict liability: no state of mind req, just commit the act
What is specific intent and what crimes are specific intent crimes under the common law?
D committed actus reus FOR VERY PURPOSE of causing the CRIMINALIZED RESULT
FIAT:
1) First-degree murder
2) Inchoate crimes (CATS): conspiracy, attempt, solicitation
3) Assault with attempt to commit BATTERY
4) Theft offenses: larceny, embezzlement, forgery, burglary, robbery, etc.
What is malice and what crimes are malice crimes under the common law?
i “AM” certain there are only two:
1) ARSON
2) MURDER
malice = D acts in RECKLESS DISREGARD of a HIGH DEGREE OF HARM
What is general intent and what are general intent crimes under the common law?
Catch-all: intent to perform act, and act is unlawful
D does not have to know act is unlawful
Generally anything done “knowingly, recklessly, or negligently” under the MPC are general intent crimes, e.g., manslaughter, battery, kidnapping, rape, and false imprisonment
What is strict liability and what are the general categories of SL crimes under the common law?
no mental requirement, D must only have committed act
1) STATUTORY/REGULATORY offenses (e.g., failure to put an expiration date on milk)
2) MORALS offenses (e.g., statutory rape)
What intent is described in a statute reading “with intent to”?
SPECIFIC INTENT CRIME
What intent is described in a statute reading “knowingly or recklessly”?
GENERAL INTENT CRIME
If there is no mens rea language in a statute, what should you do?
consider if it’s a STRICT LIABILITY CRIME
What are the mental states under the MPC, in what order?
1) Purpose: highest level of culpability
2) Knowledge/Willfullness
3) Recklessness
4) Negligence: lowest level
Under the MPC, what should you assume if there is no mens rea requirement in a statute?
prosecutor must prove RECKLESSNESS
Define the four mental states under the MPC
1) Purposely = CONSCIOUS OBJECTIVE is to engage in conduct/cause a certain result (e.g., pointing gun and saying die and firing)
2) Knowingly/willingly = D is AWARE his conduct is of nature required to commit crime and that the RESULT is PRACTICALLY CERTAIN to occur based on his conduct (e.g., poisoning someone without intending to kill them)
3) Recklessly = D acted with CONSCIOUS DISREGARD of a SUBSTANTIAL and UNJUSTIFIABLE RISK that constitutes a GROSS DEVIATION from standard of conduct of a law abiding person (e.g., tossing a dud firework on a grill)
4) Negligently = D SHOULD BE AWARE of substantial and unjustifiable risk
What is the transferred intent doctrine?
If D has requisite mens rea against Victim A, but actually commits crime against Vic B, the law TRANSFERS his intent from A to B.
What is the merger doctrine? When does it apply?
D cannot be convicted of more than one crime when they merge into one:
1) Lesser-included offenses: when all the elements appear in another, more burdensome crime, the lesser is included and merges (larceny merged into burglary)
2) Inchoate crime + completed offense: can’t get attempted homicide AND homicide *EXCEPT FOR CONSPIRACY, you can get conspiracy + crime
At common law, when could children be held liable for a crime?
Under 7, NEVER
7 to 14: rebuttable presumption against liability
14+: could be charged as adults
Who is the principal of a crime?
whoever’s acts/omissions form the actus reus
CAN BE MULTIPLE PRINCIPALS
What is accomplice liability?
holding those who ASSISTED principal before/during commission of a crime
What intent is required to convict someone as an accomplice?
must INTEND to assist principal to commit crime
under maj/MPC: PURPOSE of promoting or facilitating the crime
minority: knowingly is enough
What is an accomplice liable for?
the PLANNED crime and any FORESEEABLE CRIMES that occur in the COURSE of criminal conduct
Can an accomplice be criminally liable if she cannot a principal?
If the principal cannot be convicted?
IRRELEVANT! Yes, can still be convicted
EXCEPTION: person protected by statute cannot be an accomplice in violating statute (e.g., statutory rape)
Is an accomplice the same as an accessory after the fact?
NO
accessory after the fact is a SEPARATE crime, typically (e.g., money laundering)
When is mistake of law a valid defense to negate mens rea?
Generally, ignorance of the law is no excuse.
exceptions:
1) reliance on high-level GOVT INTERPRETATIONS
2) lack of notice
3) mistake of law that goes to an ELEMENT of SPECIFIC INTENT (only for FIAT and other specific intent crimes)
When is mistake of fact a valid defense to negate mens rea?
DEPENDS ON INTENT REQ:
if SL: NEVER!
if general intent: valid defense if mistake is REASONABLE and GOES TO CRIM INTENT
if specific intent: valid defense WHETHER REASONABLE OR UNREASONABLE
What are the four tests for insanity to negate mens rea?
Who has burden?
M’Naghten: D did not know nature of act or did not know that the act was wrong because of MD/D
Irresistible impulse: couldn’t control himself
Durham rule (not used): MD/D is but for cause
MPC: D did not have SUBSTANTIAL CAPACITY to appreciate wrongfulness of his actions or to CONFORM conduct to law
Maj: burden on D to prove insanity
What is involuntary intoxication?
When is involuntary intoxication a valid defense to negate mens rea?
Involuntary intoxication =
1) person DOESN’T REALIZE she received intoxicating substance (e.g., slipped a mickey)
2) person is COERCED into ingesting; or
3) person has UNEXPECTED/UNANTICIPATED reaction to prescription medication
Valid defense to GENERAL-intent, SPECIFIC-intent, an MALICE crimes WHEN IT NEGATES MENS REA
What is voluntary intoxication?
When is voluntary intoxication a valid defense to negate mens rea?
voluntary intoxication = occurs when a person INTENTIONALLY ingests substance KNOWING it is an intoxicant
ONLY defense to SPECIFIC-intent crimes and ONLY if it prevented D from forming mens rea: INVALID IF D GOT DRUNK TO COMMIT CRIME
What are the elements of conspiracy?
Common law:
1) agreement
2) between two or more people
3) to commit an unlawful act
Modern statutes:
4) overt act in furtherance of the conspiracy
MPC:
2a) only D must actually agree to commit unlawful act (better for policing)
What can each co-conspirator be convicted of?
conspiracy
AND all substantive crimes committed by any other conspirator ACTING IN FURTHERANCE OF CONSPIRACY
What are the two types of conspiracy and what is the liability of the co-conspirators in each?
Chain conspiracy: multiple linear steps (e.g., manufacturer to distributor to dealer) and EACH CO-CON IS LIABLE FOR SUBSEQUENT CRIMES
Spoke-hub conspiracy: many people dealing with hub, only liable for your own part of the conspiracy because each spoke is separate agreement
Can you withdraw from a conspiracy?
at common law: NEVER
under Federal law and MPC: yes, before OVERT ACT by communicating intent to withdraw to co-cons OR cops
–after, only withdraw is by helping to THWART
What mens rea is required to prove intent?
SPECIFIC INTENT
What are the requirements of attempt?
1) specific intent to commit a particular criminal act;
2) a SUBSTANTIAL STEP toward perpetrating the crime
What defenses are available for attempt?
anything available for any specific intent crimes: no mens rea, voluntary intoxication, unreasonable mistake of fact
What is solicitation?
When someone INTENTIONALLY invites, requests, or commands another person to commit a crime.
What is a homicide, generally?
killing of a living being by ANOTHER HUMAN BEING
When is consent a defense to homicide?
NEVER!*
*except in assisted suicide jurisdictions. otherwise, assisted suicide is homicide.
What is first degree murder?
SPECIFIC INTENT CRIME
a deliberate and PREMEDITATED murder, or sometimes felony murder is defined as murder 1 as well
On the MBE, if not otherwise indicated, what type of murder must you assume a murder is?
COMMON LAW MURDER (it’ll tell you if it’s m1)
What is common law murder?
UNLAWFUL killing of another human being committed with MALICE AFORETHOUGHT
What are the four kinds of malice that meet the requirements of common law murder?
1) intent to KILL: need not be premeditated, just wanted the guy dead
2) intent to inflict SERIOUS BODILY HARM: wanted to hurt guy badly and he died
3) ABANDONED/MALIGNANT/DEPRAVED HEART: CAVALIER DISREGARD for human life, resulting in a death
- -MPC/maj: D must actually realize there’s danger
4) FELONY murder: death occurred during commission of DANGEROUS felony (BARRK)
What are the crimes that can be the basis of felony murder?
BARRK:
1) burglary
2) arson
3) robbery
4) rape
5) kidnapping
Whose death can a D be liable for when caused by a felony? Who cannot?
felon is liable for death of:
- -someone RESISTING the felony
- -when a BYSTANDER is killed during a felony
NOT liable for:
- -third person killed by resistor or cops (minority says they can be liable for this)
- -co-felon
What is manslaughter?
All unlawful killings of another human that are not M1 or common law murder
can be voluntary or involuntary
What is voluntary manslaughter?
D intends to kill but is less blameworthy:
acted in HEAT OF PASSION or UNDER EXTREME EMOTIONAL DISTURBANCE (e.g., wife in bed with another man)
test: would most people act in that situation without THINKING and without time to COOL OFF?
What is involuntary manslaughter?
CRIMINALLY NEGLIGENT killing
killing of someone while committing a non-BARRK felony
What are the elements of larceny?
1) taking
2) another person’s property
3) without his consent
4) with the INTENT to deprive him of it PERMANENTLYi
Is it larceny if the property taken is intangible?
NO! some statutes may change it, but at common law, larceny is only tangible personal property!
What does it mean that larceny must be trespassory?
Who bears the burden of showing this?
WITHOUT CONSENT
D bears burden of proving consent existed
Is it larceny if the defendant thinks he’s taking his own property?
What if he intends to return it?
NO and NO! Specific intent crime, so if he is mistaken that the property is his, even if unreasonably, not larceny
must have intent to PERMANENTLY deprive
What is embezzlement?
D starts out having vic’s consent to have the property but CONVERTS IT to his own use
What is false pretenses?
Obtaining title to someone else’s property via act of DECEPTION
How does the MPC address theft?
Theft = larceny, false pretenses, and embezzlement.
ONE SINGLE CRIME.
MAKE SURE YOU CHECK WHICH JX YOU’RE IN
What are the elements of robbery?
Robbery = Larceny:
1) taking
2) another’s property
3) without consent
4) with intent to deprive him of it permanently;
+ assault:
5) taking occurs from vic’s PERSON or in her PRESENCE
6) by VIOLENCE or putting vic in FEAR OF IMMINENT PHYSICAL HARM
What is extortion?
Variation of robbery, involves THREATS OF FUTURE HARM
What are the elements of burglary?
1) breaking and
2) entering
3) the property
4) of another
5) with the specific intent to commit a felony inside
Is it still burglary if the D gets into the house via fraud, instead of by force?
YES
force or fraud
What counts as a dwelling for it to be burglary?
house or a commercial building
What are the elements of criminal common law battery?
1) unlawful
2) application of force
3) to another person
4) that causes BODILY HARM or an OFFENSIVE TOUCHING
Is consent a defense to battery?
YES (like a boxing match)
What level of intent is required for battery?
GENERAL INTENT, so voluntary intoxication and unreasonable mistake of fact are NOT AVAILABLE DEFENSES
What are the two forms of assault?
What level of intent is required for each?
1) attempted battery: taking a substantial step toward completing a battery but failing
- -SPECIFIC INTENT (because attempt, DUH!)
2) fear of harm: intentionally placing another in FEAR of IMMINENT BODILY HARM
- -GENERAL INTENT
What is required to prove rape under most modern statutes?
Intent?
1) unlawful
2) sexual intercourse
3) without consent
GENERAL INTENT: voluntary intoxication NOT A DEFENSE
What is statutory rape?
Intent?
consensual sex with someone under age of consent
STRICT LIABILITY
What are the elements of kidnapping?
1) unlawful
2) confinement of another person
3) against her will
4) either by MOVING or HIDING the victim
what are the elements of arson under the common law? Under modern statutes?
intent?
Common law =
1) malicious
2) burning (of structure)
3) of another’s (can’t arson your own house)
4) dwelling (not commercial)
intent = MALICE: intends to act in way that causes burning or is SUBSTANTIALLY LIKELY TO DO SO
modern:
- burning: doesn’t have to do structural damage
- another person: now you can arson your own house
- dwelling: any building will count
What is perjury?
Intent?
1) willful act of
2) falsely promising to tell the truth
3) about material matters
Must KNOW what you’re saying is FALSE, must INTEND to say something FALSE, and falsity must go to MATERIAL MATTER
What is subornation of perjury?
persuading someone else to commit perjury, like via bribes
What is bribery?
Common law: corrupt payment of something of value for purposes of influencing an official in discharge of his official duties
Modern: even if not a public official (like a CEO)
OFFERING AND RECEIVING BRIBES ARE BOTH FELONIES
you can be convicted even if it couldn’t be received
When is intoxication a defense of a crime?
for specific intent crimes: valid defense if voluntary or involuntary, iff D couldn’t maintain necessary mens rea for crime
for general intent crimes: valid only if involuntary
When is mistake of fact a valid defense of a crime?
specific intent crimes: all mistakes are potential defenses, even if unreasonable
general intent crimes: only reasonable mistakes of fact are a defense
When is a vic allowed to use non-deadly force against a D?
anytime he reasonably fears a threat of imminent unlawful harm
When is a vic allowed to use deadly force against a D?
only if he reasonably believes that deadly force will be used against him!
OR, under the MPC, if he reasonably believes that the crime will result in serious bodily injury
maj rule says no duty to retreat, minority says you must retreat first if possible (never have to retreat if in own home)
When can one use force in defense of others?
same rules apply to yourself as to others
When can you use deadly force to protect property?
never!!! only non-deadly force
What is the defense of duress?
D claims he committed a crime only because he was THREATENED by a third party and REASONABLY BELIEVED that the ONLY WAY to avoid DEATH or INJURY to himself or others was to commit the crime
need threat of DEATH or SERIOUS BODILY HARM
property harm or mere injury is not enough
NOT A DEFENSE FOR INTENTIONAL MURDER
What is the defense of necessity?
like duress but for natural forces
What is larceny by trick?
gaining possession (but not title) to another’s property through fraud or deceit
with intent to permanently deprive victim
resulting in conversion
What is the Wharton Rule?
Under the Wharton Rule AT COMMON LAW, if a crime requires two or more participants (e.g., adultery), there is no conspiracy unless more parties than necessary conspire.
since MPC does not require two conspirators for a conspiracy, WHARTON RULE DOES NOT APPLY TO CONSPIRACIES UNDER THE MPC
What happens if one person is acquitted of conspiracy and the other is convicted, UNDER COMMON LAW?
the conviction should be overturned because at COMMON LAW you need two or more people to form a conspiracy
what is the mens rea requirement for bigamy?
STRICT LIABILITY
what is the agency theory of felony murder?
D IS NOT LIABLE IF COP SHOOTS BYSTANDER IN TRYING TO STOP D
