Criminal Law Flashcards
1
Q
Jurisdiction. an act may be prosecuted in any state where
A
an act that was part of the crime took place OR the result of the crime took place
2
Q
Bruden of proof in Criminal case
A
beyond a reasonable doubt
3
Q
Felony
A
a crime that may be punished by death or imprisonment for more than 1 year
4
Q
misdemeanor
A
a crime punishable by a fine and/or imprisonment for no more than 1 year
5
Q
the act requirement of crime
A
culpable acts can be either commissions or ommisions
6
Q
Commission
A
culpable act + req state of mind
all bodily movements are physical acts that can be the basis for criminal liability provided they are voluntary
Involuntary movements that are not considered criminal acts:
- one that is not the product of the actor’s volition (being pushed)
- sleepwalking or otherwise unconscious conduct
- a reflex or convulsion (epileptic seizure)
7
Q
omission
A
a failure to act that is the basis for criminal liability
legal duty to act + knowledge + the ability to help
Legal duty to act created by:
- statute
- contract
- status relationship (parent/child, spouses)
- voluntary assumption of care
- creation of the peril
8
Q
four mental states
A
specific intent
general intent
malice
strict liability
9
Q
specific intent
A
when the crime required not just the desire to do the act but also the desire to achieve a specific result
10
Q
specific intent crimes
A
- assault
- first degree/premeditated murder
- larceny
- embezzlement
- false pretenses
- robbery
- forgery
- burglary
- solicitation
- conspiracy
- attempt
11
Q
specific intent defenses
A
voluntary intoxication
unreasonable mistake of fact
12
Q
malice
A
when a defendant acts intentionally or with a reckless disregard of an obvious known risk
Malice crimes: arson, common law murder
13
Q
General intent crimes
A
the defendant need only be generally aware of the factors constituting the crime, he need not intend a specific result
the jury can infer general intent from simply the doing of the act
Crimes: battery
forcible rape
false imprisonment
kidnapping
14
Q
strict liability crimes
A
where the crime requires simply doing the act, no mental state is needed
two types:
1. public welfare offenses: regulatory offenses that implicate public health or safety and typically carry small penalties.
ex. transferring unregistered firearms, selling contaminated food, and shipping adulterated drugs in interstate commerce
2. statutory rape: having sex with someone under the age of consent
15
Q
model penal code/ ohio mental states
A
- purpose: the defendant acts purposely when it is his conscious desire to achieve a particular result
- knowledge: the defendant is aware of what he is doing and he is aware that it is practically certain that his conduct will cause a particular result
- recklessness: the defendant is aware of a substantial and unjustifiable risk and consciously disregards that risk
- negligence: the defendant acts when he should have been aware of a substantial and unjustifiable risk and consciously disregards that risk
- strict liability: no mental state required
16
Q
actual causation: criminal
A
the defendant is the actual cause (the cause in fact) if the bad result would not have happened but for the defendants conduct
an accelerating cause is an actual cause (someone is dying from a stab wound and D comes by and shoots them dead, D still the actual cause of death)
17
Q
Proximate cause: criminal
A
the defendant is the proximate cause if the bad result is a natural and probable consequence of the defendants conduct
intervening causes: D will not be considered a proximate cause if an unforeseeable intervening event causes the bad result
eggshell victim: D will be considered a proximate cause even if the victim’s pre-existing weakness contributed to the bad result
18
Q
the concurrence principle
A
the defendant must have the required mental state at the same time he engages in the culpable act
concurrence issues generally arise in larceny and burglary
19
Q
common law battery
A
- the unlawful
- application of force to another
- resulting in either bodily injury or an offensive touching
Mental state: general intent
20
Q
common law assault
A
- attempted battery
- the intentional creation other than by mere words of a reasonable fear in the mind of the victim of imminent bodily harm
mental state: specific intent
21
Q
Ohio Battery
A
All batteries are classified as assaults
1. negligent assault: (3rd degree misdemeanor) causing physical harm to another negligently by means of a deadly weapon
2. Assault: (1st degree misdemeanor) recklessly causing serious physical harm to another OR knowingly causing, or attempting to cause physical harm to anther
3. felonious assault: (2nd degree felony) knowingly causing serious physical harm to another or knowingly causing or attempting to cause physical harm to another by means of a deadly weapon
4. aggravated assault: (4th degree felony) felonious assault caused by a sudden passion or rage in response to a serious provocation
in OHIO aggravated assault is less serious than felonious assault
22
Q
timing for homicide crimes
A
majority rule: death may occur at any time
common law rule: death must occur within one year and a day of the act
23
Q
murder or common law murder
A
causing the death of another person with malice aforethought
Malice aforethought:
1. the intent to kill
2. the intent to inflict serious bodily harm
3. extreme recklessness, menaing reckless indifference to human life (depraved heart murder)
4. the intentional commission of an inherently dangerous felony (felony murder)
24
Q
intent to kill murder
A
deadly weapon rule: the intentional use of a deadly weapon (usually gun, knife but can be anything) creates an inference of an intent to kill
Transferred intent: if the D intents to harm one victim but accidentally harms a different one instead, the D’s intent transfers from the intended victim to the actual victim
transferred intent does not apply to attempts, only to completed harms
25
first degree murder
most states, including ohio, have created 2 degrees of purposeful murder
1. aggravated murder: first degree murder where the D kills purposely and: with prior calculation or design or while committing or attempting to commit an offense that qualifies for felony murder
2. murder: all other purposeful killings are otherwise second degree murger
26
Felony murder
any killing cause during the commission of or attempt to commit a felony
the D MUST be guilty of the underlying felony and the felony must be inherently dangerous
the death must be foreseeable
death cannot be a co-felon (ohio the death can be a co-felon)
Ohio limits felony murder to:
1. burglary
2. arson
3. rape
4. kidnapping
5. robbery
6. escape
7. terrorism
8. trespassing in a habitation where a person is or is likely to be present
27
the merger rule
the felony must be independent of the killing (cant be assault or battery underlying it)
28
res gestae principles
the killing must take place during the felony or during immediate flight from the felony. once the felon reaches a place of temporary safety, the felony ends
29
vicarious liability
1. proximate cause theory: in most states if one of the co-felons proximately causes the victims death, all of the other co-felons will be guilty of felony murder even if the actual killing is committed by a 3rd party (police)
2. agency theory: in some states, felony murder only applies if the killing is committed by one of the co-felons
30
voluntary manslaughter
a killing committed intentionally (in ohio, the defendant must act knowingly in causeing the death of the victim) in the heat of passion upon adequate provocation
core requirements:
1. the provocation must be objectively adequate: it would arouse a sudden passion in the mind of a reasonable person (a serious assault or battery or presently witnessed adultery) common law: words alone are not enough, most states dont follow that
2. the D was actually provoked (subjective)
3. the D did not have time to cool off
4. the D did not actually cool off etween the provocation and the killing
31
involuntary manslaughter-common law
1. a killing committed during the commission of a crime to which felony murder doctrine does not apply
2. an unintentional killing committed with criminal negligence (gross deviation from a reasonable standard of care) or with recklessness (more of a modern trend)
32
involuntary manslaughter ohio
1. a first degree felony where death proximately results from the D's commission of or an attempt to commit: a felony that dos not qualify for felony murder or a felony to which the felony murder does apply but there was no purpose to use force of violence in perpetrating the crime
2. 3rd degree felony where death results from the D's comission of or attempt to committ a misdemeanor or a regulatory offense
33
additional homicide offenses in ohio
1. reckless homicide a third degree felony for recklessly causing the death of another
2. negligent homicide: 1st degree misdemeanor. 1) causing the death of another person commits while driving negligently (vehicular homicide) or 2)negligently causing the death of another through the use of a deadly weapon
34
false imprisonment
the unlawful confinement of a person without his or her consent
mental state: general intent
in ohio: called unlawful restraint
35
kidnapping
false imprisonment that involves either moving the victim or concealing the victim in a secret place
mental state: general intent
36
forcible rape
sexual intercourse without the victims consent accomplished by force or by threat of force or when the victim is unconscious
mental state: general intent
37
statutory rape
sexual intercourse with someone under the age of consent
mental state: strict liability
in a minority of state: reasonable mistake of age is a defense
OHIO: an individual who has sex with someone under the age of 13 commits the crime of rape, a 1st degree felony, and state of mind is irrelevant.
an individual who has sex with someone between the age of 13-15 and acts knowingly or recklessly with respect to age of the victim commits the lesser crime of unlawful sexual contact with a minor
38
larceny
Thieves took Carmen' Purse and Issac's Portfolio
Trespassory (wrongful or unlawful)
taking and carrying away (asportation)
the personal property of another (who has lawful custody at the time? you can be guilty when taking your own property)
with the intent to permanently retain the property (intent to steal)
the Erroneous takings rule: a taking under a claim of right is never larceny even if the defendant erroneously believes the property is his
39
the continuing trespass
if a D wrongfully takes property but without the intent to steal and then LATER forms the intent to steal, the initial trespassory taking will be considered to have continued and he will be guilty of larceny
this creates an exception to the concurrence doctrine
40
embezzlement
conversion of the personal property of another by a person already in lawful possession of that property with the intent to defraud
Mental state: specific intent to defraud (if D intends to give the exact property back in exact form, no defraud)
Key difference from larceny? the D must have lawful possession of the property that he misappropriates, this requires more than mere custody, have to have some discretion of the property
41
false pretenses
obtaining title to the personal property of another by an intentional false statement with the intent to defraud
key difference from larceny: the D gets title or ownership
there must be a present or past event for the false statement, not a future promise
42
Larceny by trick
if the D only obtains custody and not title as a result of an intentional false statement
43
Robbery
Larceny + 2
1. a larceny
2.from someone else's person or presence (some location reasonably close)
3. by force or threat of immediate injury (amy amount of force to overcome resistance is sufficient)
in OHIO: possession of a weapon is sufficient even if the D doesnt use or display it
Mental state: specific intent to steal
Pickpocketing is larceny, not robbery because no force
if the threat is for future harm, the crime is extortion or blackmail
44
forgery
making or altering a writing so that it is false
mental state: the specific intent to defraud
dont have to cash a check for forgery to be complete, if you do cash it, false pretenses too
45
theft
most states including OH have consolidated larceny, embezzlement, false pretenses or larceny by trick into theft and the seriousness of the offense is determined by the value of the property taken
46
Burglary: common law
breaking and entering into the dwelling of another at night with the intent to commit a felony inside
Breaking: creating or enlarging an opening by at least minimal force, constructive breaking: entry gained through fraud, threats or intimindation
dwelling: where someone regularly sleeps
intent: intent to commit a specific intent crime
47
burglary in Ohio
trespassing in an occupied structure by force, stealth or deception with the purpose to commit a criminal offense inside.
if deadly force if attempted, threatened or used = aggravated burglary
48
Arson: common law
the malicious burning of a building
Burning: requires material wasting (charring not scorching and it must be the building itself that burns)
Modern: no longer limited to the dwelling of another, can be any building and the D's own home
49
possession of contraband
when a statute criminalized the possession of contraband possession means: control for a period of time long enough to have an opportunity to terminate possession. can have constructive possession (the D has dominion and control)
mental state: knowledge of the possession and the character of the item possessed
50
receipt of stolen property
receiving possession and control of stolen personal property
mental state: knowing that the property has been obtained criminally by another party AND with the intent to permanently deprive the owner of his interest in the property
51
accomplices
any person who aids or encourages the principal
mental state: with the intent that the crime be committed
Ohio: accomplices commit the crime of complicity
scope of liability: all crimes that he aids or encourages (as if he did it) and all other foreseeable crimes committed along with the aided one
52
when is a person not an accomplice
1. mere presence at the scene of the crime, he must actively aid or encourage
2. mere knowledge of the crime, he must share the criminal intent
3. vicitms of the crime cannot be accomplices since they are members of a protected class (15 year old cant be an accomplice to statutory rape)
53
withdrawl
common law: accomplice can avoid criminal liability by withdrawing before the crime is committed. how he withdraws depends on how he has assisted
1. encourager: may withdraw by repudiation before the crime is committed
2. aider: must either neutralize the assistance of otherwise prevent the crime from happening (notifying authorities)
in Ohio: affirmative defense to criminal liability is the D terminated his complicity prior to the commission of the offense under circumstances manifesting a complete and voluntary renunciate of the common criminal purpose
54
accessory after the fact
common law: a D must help a principal who has committed a felony with knowledge that the crime has been committed and with the intent to help the principal avoid arrest or conviction
in OHIO: accessories commit obstuction of justice
55
enterprise liability:
when a corporate agent engages in criminal conduct, bother the corporation and the agent may be helf liable provided that the agent is acting:
1. on behalf of the corporation and within the scope of his or her office
Public welfare offense: when a corporation commits a regulatory offense involving public health or safety, its agents can also be held criminally liable provided the agents stand in the responsible relation to the situation that created the public danger
56
solicitation
asking someone to commit a crime with the intent that the crime be committed
mental state: specific intent
completion is unnecessary: the crime is in the asking
57
conspiracy
an agreement between two or more people to commit a crime plus an overt act in furtherance of that crime
1. the agreement need not be express, can be proven by conduct: a concert of action toward a common goal
2. overt act is any act, even prepratory performed by any of the conspirators
3. mental state: specific intent to enter into an agreement AND to accomplish the objectives of the conspiracy
4. the completion of the crime is unnecessary, just need the agreement really
58
one person conspiracy?
common law: no
the bilateral approach: there must be at least 2 guilty minds, both of whom actually agree to accomplish the conspiracy's objectives. related rule, if all other parties to the agreement are acquitted, the last D cannot be convicted
Model penal code: Yes
unilateral approach: can be convicted even if all other parties acquitted or were just pretending to agree
Pinkerton or vicarious liabilty: in addition to conspiracy, a D is liable for other crimes committed by his co conspirators so long as those crimes are committed in furtherance of the conspiracy's objective and were foreseeable
Impossibility is NEVER a defense to conspiracy
59
Attempt
attempt requires an overt act beyond mere preparation
1. common law proximity test: the D must engage in conduct that gets dangerously close to the commission of the crime
2. majority and ohio test: D must engage in conduct that constitutes a substantial step towards the commission of the crime provided that conduct stongly corroborates the actors criminal purpose
mental state: specific intent to commit the underlying crime
unintentional crimes: you cannot attempt unintentional crimes, so there are no attempt version or reckless, negligence crimes or felony murder
60
inchoate withdraw/ renunciation
withdraw is generally not a defense. B"Ut once a D withdraws form conspiracy he will no longer be liable vicariously for the crimes committed by other conspirators
Ohio: abandonment is a defense to attempt, provided it is complete and voluntary
61
merger for inchoate offenses
solicitation and attempt merge with the completed crime
conspiracy does not merge!
ohio: in Ohio conspiracy does merge
62
Insanity defense
1. the defendant must have a mental disease or defest
2. apply test: three most common: m'maghten test, irresistable impulse test, MPC test
the issue is whether D was insane at the time of the crime
63
M'Naghten Test
D must prove that he either
1. did not know that his conduct was wrong OR
2. did not understand the nature of his conduct
purely cognitive
64
irresisible impulse test
purely volitional
D must prove that he either was
1/ unable to contol his actions or
2. was unable to conform his conduct to the law
65
MPC test
used in 25% of states, coginitive or volitional
D must establish that he lacked the substantial capacity to either:
1. appreciate the criminality of his conduct or
2. conform his conduct to the requirements of the law
66
incompetency
issue is whether at the time of trial the D cannot either : understand the nature of the proceedings against him OR assist his lawyer in the preparation of his defense
the trial is postpones until competence is regained
67
voluntary intoxication
common law: can be a defence to spcific intent crimes ONLY
required a sever prostration of the faculties that the defendant cannot form the requisite specific intent
in Ohio: evidence of voluntary intoxication can be introduced only to prove that the D was physically unable to commit the crime, not that he lacked the required mental state
68
infancy
rule of 7s
less than 7: prosecution not allowed
7-13: rebuttable presumption against prosecition
14 and older: prosecution allowed
69
defense of mistake
mistake of fact:
common law: depends on the mental state for the crime and whether the mistake is reasonabe or not
specific intent: any mistake of fact is a defense
malice or general intent: only a reasonable mistake of fact is a defense
strict liability: mistake of fact is never a defense
Mistake of law: generally not a defense unless the statute specifically makes knowledge an element of the crime
70
self defense criminal
nondeadly force: can be used if it is reasonably necessary to protect against immediate use of unlawful force against self
deadly force: the D may use it if he is facing an imminent threat of death or serious bodily harm
Initial agressor rule: D cannot use self defense if he is the initial aggressor but he can regain the right if: he withdraws from the fight AND communicates the withdrawl to the other person OR if the victim suddenly escalates the nondeadly fight into a deadly one
Retreat: majority rule: not required
Ohio rule: retreat unless the D cannot in complete safety or in his own home
reasonable mistake about need to use deadly force is a complete defense
an unreasonable mistake is no defense but in a minority of state it mitigates
71
use of force to prevent a crime
nondeadly force can be used if reasonably necessary to prevent any serious breach of the peace
deadly force can be used to prevent a felony risking human life
72
defense of property
generally cannot use deadly force
in a dwelling: an occupant can use deadly force when an intruder has gained entry in a tumultuous (noisy) manner AND the occupant reasonably believes that the use of deadly force is necessary to prevent a personal attack on herself or to someone else in the dwelling
73
necessity
if the D reasonably believed that the conduct was necessary to prevent a greater harm (ex. redirecting a fire from residential area to empty building)
limitation: the defense in unavailable if it causes the death or another person to protect property or the D is at fault in creating the situation that created the choice of evils
74
duress
if the D is coerced to commit a crime because of a threat from another person of imminent death or serious bodily injury to himself or a close family member
duress is a defense to everything except homicide
75
entrapment
the government unfairly tempted the D to commit the crime.
entrapment if:
1. the criminal design originated with the government AND
2. the defendant was not predisposed to commit the crime
