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The Bar!!!! > Criminal Law > Flashcards

Criminal Law Flashcards

1
Q

Where does the US have jx to criminalize and prosecute crimes?

A

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

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2
Q

When does a state have the jurisdiction to prosecute?

A

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

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3
Q

What is required for there to be actus reus?

A

1) a PHYSICAL ACT
- speech counts
2) that is VOLUNTARY
- just motor control over act, irrelevant if he didn’t want to do it

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4
Q

When can the FAILURE to act be sufficient actus reus?

A

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

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5
Q

What are the four types of common law mens rea, generally?

A

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

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6
Q

What is specific intent and what crimes are specific intent crimes under the common law?

A

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.

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7
Q

What is malice and what crimes are malice crimes under the common law?

A

i “AM” certain there are only two:

1) ARSON
2) MURDER

malice = D acts in RECKLESS DISREGARD of a HIGH DEGREE OF HARM

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8
Q

What is general intent and what are general intent crimes under the common law?

A

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

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9
Q

What is strict liability and what are the general categories of SL crimes under the common law?

A

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)

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10
Q

What intent is described in a statute reading “with intent to”?

A

SPECIFIC INTENT CRIME

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11
Q

What intent is described in a statute reading “knowingly or recklessly”?

A

GENERAL INTENT CRIME

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12
Q

If there is no mens rea language in a statute, what should you do?

A

consider if it’s a STRICT LIABILITY CRIME

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13
Q

What are the mental states under the MPC, in what order?

A

1) Purpose: highest level of culpability
2) Knowledge/Willfullness
3) Recklessness
4) Negligence: lowest level

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14
Q

Under the MPC, what should you assume if there is no mens rea requirement in a statute?

A

prosecutor must prove RECKLESSNESS

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15
Q

Define the four mental states under the MPC

A

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

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16
Q

What is the transferred intent doctrine?

A

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.

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17
Q

What is the merger doctrine? When does it apply?

A

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

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18
Q

At common law, when could children be held liable for a crime?

A

Under 7, NEVER

7 to 14: rebuttable presumption against liability

14+: could be charged as adults

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19
Q

Who is the principal of a crime?

A

whoever’s acts/omissions form the actus reus

CAN BE MULTIPLE PRINCIPALS

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20
Q

What is accomplice liability?

A

holding those who ASSISTED principal before/during commission of a crime

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21
Q

What intent is required to convict someone as an accomplice?

A

must INTEND to assist principal to commit crime

under maj/MPC: PURPOSE of promoting or facilitating the crime

minority: knowingly is enough

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22
Q

What is an accomplice liable for?

A

the PLANNED crime and any FORESEEABLE CRIMES that occur in the COURSE of criminal conduct

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23
Q

Can an accomplice be criminally liable if she cannot a principal?

If the principal cannot be convicted?

A

IRRELEVANT! Yes, can still be convicted

EXCEPTION: person protected by statute cannot be an accomplice in violating statute (e.g., statutory rape)

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24
Q

Is an accomplice the same as an accessory after the fact?

A

NO

accessory after the fact is a SEPARATE crime, typically (e.g., money laundering)

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25
Q

When is mistake of law a valid defense to negate mens rea?

A

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)

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26
Q

When is mistake of fact a valid defense to negate mens rea?

A

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

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27
Q

What are the four tests for insanity to negate mens rea?

Who has burden?

A

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

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28
Q

What is involuntary intoxication?

When is involuntary intoxication a valid defense to negate mens rea?

A

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

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29
Q

What is voluntary intoxication?

When is voluntary intoxication a valid defense to negate mens rea?

A

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

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30
Q

What are the elements of conspiracy?

A

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)

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31
Q

What can each co-conspirator be convicted of?

A

conspiracy

AND all substantive crimes committed by any other conspirator ACTING IN FURTHERANCE OF CONSPIRACY

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32
Q

What are the two types of conspiracy and what is the liability of the co-conspirators in each?

A

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

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33
Q

Can you withdraw from a conspiracy?

A

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

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34
Q

What mens rea is required to prove intent?

A

SPECIFIC INTENT

35
Q

What are the requirements of attempt?

A

1) specific intent to commit a particular criminal act;

2) a SUBSTANTIAL STEP toward perpetrating the crime

36
Q

What defenses are available for attempt?

A

anything available for any specific intent crimes: no mens rea, voluntary intoxication, unreasonable mistake of fact

37
Q

What is solicitation?

A

When someone INTENTIONALLY invites, requests, or commands another person to commit a crime.

38
Q

What is a homicide, generally?

A

killing of a living being by ANOTHER HUMAN BEING

39
Q

When is consent a defense to homicide?

A

NEVER!*

*except in assisted suicide jurisdictions. otherwise, assisted suicide is homicide.

40
Q

What is first degree murder?

A

SPECIFIC INTENT CRIME

a deliberate and PREMEDITATED murder, or sometimes felony murder is defined as murder 1 as well

41
Q

On the MBE, if not otherwise indicated, what type of murder must you assume a murder is?

A

COMMON LAW MURDER (it’ll tell you if it’s m1)

42
Q

What is common law murder?

A

UNLAWFUL killing of another human being committed with MALICE AFORETHOUGHT

43
Q

What are the four kinds of malice that meet the requirements of common law murder?

A

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)

44
Q

What are the crimes that can be the basis of felony murder?

A

BARRK:

1) burglary
2) arson
3) robbery
4) rape
5) kidnapping

45
Q

Whose death can a D be liable for when caused by a felony? Who cannot?

A

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
46
Q

What is manslaughter?

A

All unlawful killings of another human that are not M1 or common law murder

can be voluntary or involuntary

47
Q

What is voluntary manslaughter?

A

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?

48
Q

What is involuntary manslaughter?

A

CRIMINALLY NEGLIGENT killing

killing of someone while committing a non-BARRK felony

49
Q

What are the elements of larceny?

A

1) taking
2) another person’s property
3) without his consent
4) with the INTENT to deprive him of it PERMANENTLYi

50
Q

Is it larceny if the property taken is intangible?

A

NO! some statutes may change it, but at common law, larceny is only tangible personal property!

51
Q

What does it mean that larceny must be trespassory?

Who bears the burden of showing this?

A

WITHOUT CONSENT

D bears burden of proving consent existed

52
Q

Is it larceny if the defendant thinks he’s taking his own property?

What if he intends to return it?

A

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

53
Q

What is embezzlement?

A

D starts out having vic’s consent to have the property but CONVERTS IT to his own use

54
Q

What is false pretenses?

A

Obtaining title to someone else’s property via act of DECEPTION

55
Q

How does the MPC address theft?

A

Theft = larceny, false pretenses, and embezzlement.

ONE SINGLE CRIME.

MAKE SURE YOU CHECK WHICH JX YOU’RE IN

56
Q

What are the elements of robbery?

A

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

57
Q

What is extortion?

A

Variation of robbery, involves THREATS OF FUTURE HARM

58
Q

What are the elements of burglary?

A

1) breaking and
2) entering
3) the property
4) of another
5) with the specific intent to commit a felony inside

59
Q

Is it still burglary if the D gets into the house via fraud, instead of by force?

A

YES

force or fraud

60
Q

What counts as a dwelling for it to be burglary?

A

house or a commercial building

61
Q

What are the elements of criminal common law battery?

A

1) unlawful
2) application of force
3) to another person
4) that causes BODILY HARM or an OFFENSIVE TOUCHING

62
Q

Is consent a defense to battery?

A

YES (like a boxing match)

63
Q

What level of intent is required for battery?

A

GENERAL INTENT, so voluntary intoxication and unreasonable mistake of fact are NOT AVAILABLE DEFENSES

64
Q

What are the two forms of assault?

What level of intent is required for each?

A

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

65
Q

What is required to prove rape under most modern statutes?

Intent?

A

1) unlawful
2) sexual intercourse
3) without consent

GENERAL INTENT: voluntary intoxication NOT A DEFENSE

66
Q

What is statutory rape?

Intent?

A

consensual sex with someone under age of consent

STRICT LIABILITY

67
Q

What are the elements of kidnapping?

A

1) unlawful
2) confinement of another person
3) against her will
4) either by MOVING or HIDING the victim

68
Q

what are the elements of arson under the common law? Under modern statutes?

intent?

A

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
69
Q

What is perjury?

Intent?

A

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

70
Q

What is subornation of perjury?

A

persuading someone else to commit perjury, like via bribes

71
Q

What is bribery?

A

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

72
Q

When is intoxication a defense of a crime?

A

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

73
Q

When is mistake of fact a valid defense of a crime?

A

specific intent crimes: all mistakes are potential defenses, even if unreasonable

general intent crimes: only reasonable mistakes of fact are a defense

74
Q

When is a vic allowed to use non-deadly force against a D?

A

anytime he reasonably fears a threat of imminent unlawful harm

75
Q

When is a vic allowed to use deadly force against a D?

A

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)

76
Q

When can one use force in defense of others?

A

same rules apply to yourself as to others

77
Q

When can you use deadly force to protect property?

A

never!!! only non-deadly force

78
Q

What is the defense of duress?

A

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

79
Q

What is the defense of necessity?

A

like duress but for natural forces

80
Q

What is larceny by trick?

A

gaining possession (but not title) to another’s property through fraud or deceit

with intent to permanently deprive victim

resulting in conversion

81
Q

What is the Wharton Rule?

A

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

82
Q

What happens if one person is acquitted of conspiracy and the other is convicted, UNDER COMMON LAW?

A

the conviction should be overturned because at COMMON LAW you need two or more people to form a conspiracy

83
Q

what is the mens rea requirement for bigamy?

A

STRICT LIABILITY

84
Q

what is the agency theory of felony murder?

A

D IS NOT LIABLE IF COP SHOOTS BYSTANDER IN TRYING TO STOP D

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