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CMONEY STUDIES FOR THE BAR > CRIMINAL LAW > Flashcards

CRIMINAL LAW Flashcards

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1
Q

BURGLARY

A
  1. breaking
  2. and entering into
  3. the dwelling
  4. of another
  5. at night
  6. with the intent to commit a felony therein
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2
Q

What establishes whether a building is a dwelling “of another” for purposes of establishing an element of common law burglary?

A

occupancy (not ownership)

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3
Q

The “burning” requirement for common law arson must be, at a minimum, a __________.

A

charring of the fiber of the wood or other combustible material of the dwelling

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4
Q

Common law arson is:

A

The malicious burning of the dwelling of another

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5
Q

To be convicted of common law arson, the defendant must have acted _______.

A

with malice.

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6
Q

Under modern statutes, burglary can be committed:

A

During the day or night, by remaining in the structure (rather than “breaking into” the structure), and commercial structures may be burglarized

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7
Q

What mens rea is required for burglary?

A

specific intent

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8
Q

For common law burglary, an _______ breaking _______ is required.

A

Actual or constructive; to enter the dwelling or some subpart of it

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9
Q

Under modern statutes, what is the difference between a principal and an accomplice to a crime?

A

The principal actually commits the crime; the accomplice aids, counsels, or encourages the principal to commit the crime

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10
Q

The general intent requirement for a crime:

A

Can be established by proof that the defendant committed the criminal act

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11
Q

For an individual to be convicted as an accessory after the fact under modern statutes, which of the following statements is true?

A

The crime committed by the principal must be a felony, and it must have been completed at the time the accessory renders aid

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12
Q

An accessory after the fact

A

receives, relieves, comforts, or assists another, knowing that he has committed a felony, in order to help the felon escape arrest, trial, or conviction.

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13
Q

An accomplice is criminally responsible for:

A

All crimes that he did or counseled, as well as any foreseeable or probable crimes committed during the course of the contemplated crime, regardless of whether the accomplice could have been a principal to the crime charged

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14
Q

What can never satisfy the physical act requirement for criminal liability?

A

a thought

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15
Q

A legal duty to act __________ arise from a _________.

A

may; voluntary assumption of care.

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16
Q

Under the Model Penal Code, a person acts negligently when:

A

He fails to be aware of a substantial and unjustifiable risk that circumstances exist or a result will follow, and such failure constitutes a substantial deviation from the standard of care that a reasonable person would exercise under the circumstances.

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17
Q

A person who has assisted planning to commit a crime by providing some material to the principal may avoid liability as an accomplice if, before the crime is committed, he:

A

Attempts to neutralize the assistance he provided, e.g., by doing everything possible to retrieve the material provided

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18
Q

The principal is

A

the party to a crime that possesses the requisite mental state and actually engages in the act or omission that causes the criminal result

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19
Q

An attempt of a crime requires:

A

The specific intent to commit the crime and an overt act in furtherance of that intent

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20
Q

What mental state must an accessory after the fact possess?

A

An accessory after the fact must know that the person he is aiding has committed a felony

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21
Q

Under what circumstances can a person be criminally liable for mere failure to act?

A

Where the law imposes on that person a duty to act

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22
Q

A legal duty to act may arise from a:

A

Statute, contract, or voluntary assumption of care

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23
Q

A defendant charged as an accomplice is responsible for which crimes?

A

The crimes he did or counseled and any other crimes committed in the course of committing the crime contemplated, as long as the other crimes were probable or foreseeable.

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24
Q

The Model Penal Code defines acting purposefully as when:

A

It is the defendant’s conscious object to engage in certain conduct or cause a certain result

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25
Q

What mental state must an accessory after the fact possess?

A

An accessory after the fact must know that the person he is aiding has committed a felony

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26
Q

4 foundational principles of criminal law

A
  1. actus reus
  2. mens rea
  3. concurrence between actus reus & mens rea
  4. causation: factual & proximate
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27
Q

A conspirator can be convicted of a crime committed by another conspirator if:

A

The crimes were committed in furtherance of the objectives of the conspiracy, and the crimes were foreseeable.

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28
Q

In a hub and spoke conspiracy

A

it must be established that the subagreements are reasonably independent of each other.

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29
Q

The necessary intent for conspiracy is

A

the intent to agree and the intent to achieve the objective of the conspiracy.

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30
Q

If conspirators are successful in completing the intended crime, they can be convicted of:

A

Both the crime of conspiracy and the completed crime

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31
Q

What is the intent required for attempt?

A

The intent to perform an act and obtain a result that, if achieved, would constitute a crime.

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32
Q

The crime of solicitation is complete when

A

the solicitation is made.

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33
Q

Solicitation consists of

A

inciting, counseling, advising, inducing, urging, or commanding another to commit a felony with the specific intent that the person solicited commit the crime (general approval or agreement is insufficient)

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34
Q

Defenses to solicitation

A
  1. No defense for factual impossibility
  2. No withdrawal generally, though MPC recognizes renunciation if the solicitor prevents the commission of the crime.
  3. Exemption: If the solicitor could not be found guilty of the intended crime because of legislative intent to exclude her, then defense. (minor girl accused of soliciting statutory rape).
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35
Q

A defendant charged with a completed crime can be found guilty of:

A

Either a completed crime or an attempt to commit the crime

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36
Q

If conspirators are successful in completing the intended crime, they can be convicted of:

A

Both the crime of conspiracy and the completed crime

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37
Q

The Wharton Rule

A

states that where two or more people are necessary for the commission of the substantive offense, there is no crime of conspiracy unless more parties participate in the agreement than are necessary for the crime.

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38
Q

Chain conspiracy

A

A series of agreements, all of which are regarded as part of a single large scheme in which all of the parties to the subagreements are interested is called:

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39
Q

Common law murder requires

A

Malice, manifested as either:

  1. intent to kill
  2. intent to inflict great bodily injury
  3. reckless indifference to an unjustifiably high risk to human life, or
  4. the intent to commit a felony
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40
Q

First degree murder requires

A

premeditation & deliberation

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41
Q

Voluntary manslaughter is

A

a killing committed under the duress of an adequate provocation, and it requires:

  1. a provocation sufficient to arose the sudden and intense passion inthe mind of an ordinary person such as to cause him to lose self-control;
  2. the defendant to be in fact provoked;
  3. an insufficient time to cool off; and
  4. the defendant did not in fact cool off.
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42
Q

The MPC test for insanity provides that

A

A D is entitled to acquittal if he suffered from a mental disease or defect and as a result lacked substantial capacity to either:

  1. appreciate the criminality of his conduct; or
  2. conform his conduct to the requirements of law.

*Combines the irresistible impulse test and the M’Naghten test.

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43
Q

The Durham test for insanity provides that

A

a D is entitled to acquittal if his crime was the product of mental disease or defect.

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44
Q

The M’Naghten test for insanity provides that

A

a D is entitled to acquittal if a disease of the mind caused a defect of reason, suchthat the defendant lacked the ability at the timeof his actions to either:

  1. know the wrongfulness of his actions; or
  2. understand the nature and quality of his actions.
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45
Q

The Irresistible Impulse Test for insanity provides that

A

D is entitled to acquiittal if, becuase of mental illness, the D was unable to control his actions or to conform his conduct to the law.

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46
Q

Robbery is

A

a taking of another’s personal property from the other’s person by force or intimidation with the intent to permanently deprive him of his property.

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47
Q

There are two actions covered by the crime of assault. They are:

A
  1. an attempted battery

2. the intentional creation of a reasonable apprehension in the mind of the victim of imminent bodily harm.

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48
Q

Receipt of stolen property requires

A

that D receive possession and control of stolen property knowing it to have been stolen by another person and with the intent to permanently deprive the owner of it.

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49
Q

Involuntary manslaughter occurs when

A

death is caused by criminal negligence.

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50
Q

Provocation is sufficient to reduce a killing from murder to manslaughter if

A

it would arouse suddent and intense passion in an ordinary person, and there has been insufficient time for the passions of a reasonable person to cool. D must actually be provoked and have acted under that provocation (i.e. didn’t cool off).

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51
Q

Attempted murder is a specific intent crime and therefore,

A

intent to kill is required.

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52
Q

Accomplice

A

with intent to commit the crime, must actively aid, abet, or counsel the principal.

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53
Q

Accessory after the fact

A

with the intent to help a felon escape or avoid arrest or trial, receives, relieves, or assistsa a known felon after the felony has been completed.

54
Q

Acommplice/ Accessory after the fact withdrawal can occur if

A
  1. If the person merely encouraged the commision of the crime he must repudiate his encouragement.
  2. If the person provided some material (e.g. gun), he must do all possible to retrieve it.
  3. Notify authorities or take some action to prevent the commission of the crime.
  4. All must be before the chain of events leading to the commission of the crime becomes unstoppable.
55
Q

Solicitation

A

Asks or requests someone to commit a crime.

If the party solicited actually commits the requested crime, the solicitor will also be liable for the crime.

56
Q

Conspiracy

A
  1. An agreement–express or implied–to accomplish some criminal or unlawful purpose, or to accomplish a lawful purpose by unlawful means.
  2. An intent to agree with another
  3. An intent to achieve the aobjective of the agreement.
  4. Some overt act in furtherance of the agreement.
57
Q

Conspiracy withdrawal requires

A
  1. Must communicate intent to withdraw to all other conspirators before the target crime occurs.
  2. No withdrawal from liablity for the conspiracy itself.
58
Q

Anytime you raise co-conspirator liabilty, you should also consider raising

A

accomlice liabliity and vice versa.

59
Q

Attempt Elements

A
  1. specific intent to commit target crime
  2. a substantial step in the direction of the commission of the crime or come dangerously close (mere preparation is not enough).
60
Q

Attempt Defenses:

A
  1. Merger–attempt merges with committed crime.
  2. factual impossibility is not a defense if the facts were as defendant believed them to be.
  3. legal impossibility is a defense when the acts defendant intends to commit are not a crime.
  4. abaondonment is no defense after substantial steps have been begun.
61
Q

Homicide definition:

A

Killing of another human caused by D.

62
Q

Murder requires malice aforethought which can be shown by

A
  1. intent to kill
  2. intent to commit serious bodily injury
  3. recklessness–indifference to known, high risk of death, evidencing an abandoned and malignant heart.
  4. felony murder rule–killing in the commission of, or the attempt to commit an inherently dangerous felony
63
Q

First degree murder requires

A
  1. a statutory definition, or
  2. at common law, premeditation and deliberation, or
  3. inherently dangerous felony under felony murder rule.
64
Q

Assault is

A

an attempted battery or the intentional creation of a reasonable apprehension of imminent bodily harm.

65
Q

Battery is

A

unlawful application of force causing harmful or offensive contact of another.

66
Q

Rape is

A

the unlawful carnal knowledge of a woman by a man, not her husband, without her consent.

67
Q

Kidnapping is

A

unlawful confinement of a person that involves either some movement of the victim or concealment of the victim in a secret place.

68
Q

Mayhem is

A

dismemberment or disablement of a body part.

69
Q

Larceny is

A
  1. trespassory taking (controlling) and
  2. carrying away (asportation)
  3. of the personal property
  4. of another (with possession)
  5. with the intent to permanently deprive (at the time of the taking).
70
Q

Embezzlement is

A
  1. fraudulent conversion
  2. of personal property
  3. of another
  4. by a person in lawful possession of that property.
71
Q

False pretenses is

A
  1. obtaining title
  2. to the personal property of another
  3. by an intentional false statement of past or existing fact
  4. with the intent to defraud the other.
72
Q

Receiving stolen property is

A
  1. receiving possession and control
  2. of stolen personal property
  3. known to have been obtained in a manner constituting a criminal offense,
  4. by another
  5. with the intent to permanently deprive.
73
Q

Robbery is

A
  1. the taking
  2. of personal property of another
  3. from the person’s person or presence
  4. by the use of force or fear
  5. with the intent to permanently deprive.
74
Q

Extortion at common law is

A

the corrupt collection of an unlawful fee by an officer under color of office.

75
Q

The modern definition of extortion is

A

obtaining property by means of threats to do harm or to expose information.

76
Q

Burglary is

A
  1. breaking and entering (modern, entry)
  2. of a dwelling (modern, any structure)
  3. of another
  4. at nighttime (modern, goes to degree)
  5. with the intent to commit a felony therein (modernly, adds theft).
77
Q

Arson is

A
  1. the malicious (intentional or reckless)
  2. burning (charring is insufficient)
  3. of the dwelling (modernly, a structure)
  4. of another.
78
Q

Forgery is

A
  1. Making or altering
  2. a writing with apparent legal significance
  3. making it false
  4. with intent to defraud.
79
Q

Possible criminal defenses include:

A
  1. self-defense
  2. defense of others
  3. defense of property
  4. Insanity
  5. Intoxication
  6. Mistake
  7. Entrapment
  8. Age, Infancy
  9. Duress
  10. Crime Prevention
80
Q

Self-defense allow the D to use deadly force to

A

protect against an imminent deadly attack. Deadly force must be reasonable and necessary.

81
Q

The majority rule states that a D need not retreat before using deadly force, unless

A

the D is the aggressor and safe retreat is available.

82
Q

If the D is the initial aggressor, D cannot assert self-defense as a justification unless

A
  1. the D initial aggressor withdraws
  2. the D initially used non-deadly force and attacker is now using deadly force
  3. If safe retreat is available, the initial aggressor must retreat before using deadly force.
83
Q

Defense of others allows

also give majority & minority rules

A

D to use deadly force if reasonable and necessary to defend another.

Majority rule: D may claim defense of others if the victim reasonably appears to have the right to use deadly force.

Minority rule: D steps into the shoes of person defended.

84
Q

Defense of property of a dwelling allows

A

that nondeadly force may be used against unlawful entry; deadly force may be used if becomes self-defense or to prevent a felony.

85
Q

Defense of property (not a dwelling)

A

deadly force is not an option.

86
Q

What are the 4 Insanity tests?

A
  1. M’Naghten
  2. Irresistible Impulse test
  3. ALI Substantial Capacity (MPC)
  4. Durham Product Test
87
Q

The M’Naghten test says

A

D, as a result of mental defect, did not understand the wrongfulness of his act OR, did not understand the quality and nature of his acts.

88
Q

The irresistible impulse test says

A

D, as a result of mental defect, was unable to control his conduct, or conform his conduct to the law.

89
Q

Substantial capacity test syas

A

D lacked the substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.

90
Q

Durham Product test says

A

D is not guilty if his crime was the product of mental disease or defect.

91
Q

Intoxication Defense

A

may excuse criminal liability in certain circumstances.

92
Q

Voluntary Intoxication

A
  1. Voluntarily and knowingly consumes an intoxicating substance.
  2. No defense to crimes requiring no intent (strict liability), general cirminal intent or malice.
93
Q

Involuntary intoxication

A
  1. D voluntarily or unknowingly consumes an intoxicating substance.
  2. Defense to all crimes if the intoxication renders the D “insane” under the applicable test.
94
Q

Reasonable mistake of fact

A

If the D makes a reasonable mistake of fact or is ignorant of a fact that negates the required mental state for the crime, D is not guilty of that crime.

95
Q

Unreasonable mistake of fact

A

If the D is mistaken or ignorant of a fact, but the mistake is unreasonable under the circumstances, then the mistake is a defense only to a specific intent crime.

96
Q

Mistake of law

A

A mistake or ignorance of the law is no defense

97
Q

Entrapment

A

D must show:

  1. the criminal plan originated with the government and
  2. D was not predisposed to commit the crime prior to the contract with the government.
98
Q

Age or infancy can be a defense if:

A
  1. Under the age of 7: no criminal liability
  2. Between 7-14: rebuttable presumption of no criminal liability
  3. over 14: treated as an adult.
99
Q

Duress

A

D’s crime, except an intentional homicide, is excused if committed under the threat of imminent death or great bodily harm.

100
Q

Crime Prevention

A

A police officer or private person may use deadly force if reasonably necessary to prevent the commission of a dangerous felony or to apprehend a dangerous felon.

101
Q

It is possible to commit larceny on your own property if

A

another person, such as a bailee, has a superior right to possession of the property at that time.

102
Q

A search warrant does/does not authorize the police to search persons found on the premises who are not named in the warrant.

A

Does not.

*However, if the police have probable cause to arrest a person discovered on the premises to be searched, they may conduct a warrantless search of her incident to lawful arrest.

103
Q

Factual impossibility is/ is not a defense to attempt

A

Is not. Even if it would have been impossible for D to complete his plan, not a defense to attempt.

104
Q

Larceny is a crime against _______rather than ownership.

A

possession. This requires only that the property be taken from someone who has a possessory interest superior to that of the D.

105
Q

The 4th amendment is not violated by a statute authorizing warrantless searches of a ________’s home, even absent probable cause, if a statute provides for such searches. And why?

A

a probationer’s home. A probationer has a diminished expectation of privacy and the gov’t has a heightened need for searching, therefore serach is reasonable under Constitution.

106
Q

For _______ the burden rests with the defendant.

A

Affirmative defenses.

107
Q

Proving all elements of a crime is a burden for

A

the prosecution.

*Means the prosecution can’t ask D to prove depraved heart. State must instead prove malice to pursue murder charge. See Question13, set 5 in MPQ1. p.97.

108
Q

Generally, the 6th amendment prohibits the use of a confession by one D implicating the other due to the confrontation clause. Exceptions:

A

Statement can be admitted if:

  1. all portions of the statement referring to the other defendant can be eliminated (blacking out name is not enough)
  2. the confessing D takes the stand and subjects himself to cross-exam with respect to the truth or falsity of what the statement asserts; OR
  3. the confession of the nontestifying co-defendnat is being used to rebut the D’s claim that his confession was obtained coercively, in which case the jury must be instructed as to the purpose of the admission.

*If 3 happens, 1 and 2 are not necessary, so 3 is the ideal answer.

109
Q

When a culpable state of mind is specified by an offense without indicating to which element it applies, the state of mind

A

applies to all material elements of the offense unless a contrary purpose appears in the statute.

110
Q

A school search will be upheld only if

A
  1. it offers a moderate chance of finding evidence of wrongdoing
  2. the measures adopted to carry out the search are reasonably related to the objectives of the search, and
  3. the search is not “excessively intrusive inlight of the age and sex or the student and the nature of the infraction.”
111
Q

A private person has the right to use deadly force to effectuate an arrest when

A

the felon appears to pose a threat to the person or to others and deadly force is necessary to prevent his escape, as long as the felon was actually guilty of the felony.

112
Q

A person has the right to use deadly force in preventing the completion of a crime being committed if

A

the crime is a “dangerous felony” involving risk to human life.

113
Q

False Pretenses consists of

A
  1. obtating title to
  2. the property of another
  3. by an intentional false statement
  4. of past or existing fact,
  5. with the intent to defraud the other.
114
Q

If D has sex with a girl thinking she is 15, but she is actually 16 (the age of consent), can he be found guilty of statutory rape in a strict liability jurisdiction?

A

No. The fact that he thought she was underage is irrelevant.

115
Q

If a statute is intended to protect members of a limited class from exploitation or overbearing, members of that class are

A

presumed to have been intended to be immune from liability, even if they participate in the crime in a manner that would otherwise make them liable.

116
Q

Under the unilateral approach to conspiracy (MPC), the crime of conspiracy requires only ____ party to have a genuine criminal intent.

A

One.

v. bilateral common law approach two parties have to agree.

117
Q

If a D suffers from delusions, it must be determined…

A

whether his actions would have been criminal if the facts had been as he believed them to be.

118
Q

Criminal assault is either

A
  1. an attempt to commit a battery, or
  2. the intentional creation, other than by mere words, of a reasonable apprehension in the mind of the victim of imminent bodily harm.
119
Q

A person other than the defendant can/cannot invoke the 5th amendment right against self-incrimination.

A

Can.

But, 5th amendment does not permit a person to avoid being sworn in as a witness or being asked questions. Witness must then invoke.

120
Q

A person may use deadly force in self-defense if she is:

A
  1. without fault
  2. confronted with unlawful force
  3. threatened with imminent death or great bodily harm.
121
Q

One who solicits another to commit a crime can/cannot be convicted of both the solicitation and the completed crime?

A

Cannot.

122
Q

Conspirators may/may not be convicted of both conspiracy and the completed crime?

A

May.

123
Q

One who completes a crime after attempting it may/may not be convicted of both the attempt and the completed crime?

A

May not.

124
Q

False pretenses consists of

A

obtaining title to the property of another by an intentional or knowing false statement of past or existing fact with intent to defraud another.

(larceny by trick, in contrast, obtain only possession, not title).

125
Q

A gulity plea must be a ____ and _____ waiver of 6th amendment rights.

A

Voluntary & intelligent.

126
Q

For a 6th amendment right to trial by jury to be voluntary & intelligent, the judge must:

A

Must determine on the record that the waiver is voluntary & intelligent.

To do so: inform D of:

  1. nature of the charge to which the plea is offered.
  2. maximum possible penalty
  3. that she has a right not to plead guilty
  4. that by pleading guilty she gives up right to jury trial.
127
Q

A D may be deemed to possess the requisite knowledge ___________________________ when he can readily do so.

A

if he deliberately avoids discovering facts

128
Q

If it appears to the judge that the defendant might be incompetent, the judge has_____________________.

A

a constitutional obligation to conduct further inquiry and determine whether in fact the defendant is incompetent.

*True whether or not the D is represented by counsel.

129
Q

The government’s seizure of funds is __________, even if the funds were to be used by the defendant to pay for his attorney of choice.

A

constitutionally permissible

130
Q

The _____________ does not apply in grand jury proceedings.

A

exclusionary rule.

*Illegally seized evidence is admissible in grand jury proceedings.

CMONEY STUDIES FOR THE BAR (17 decks)

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