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The Bar Exam > Criminal Law and Procedure > Flashcards

Criminal Law and Procedure Flashcards

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MBE flashcards
1
Q

malice

A

common law murder and arson

shown with at least reckless disregard of an obvious or high risk that a particular result would occur

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2
Q

general intent

A

D is aware they are acting int he proscribed manner and that any attendant circumstances required by the crime are present

Can be inferred from doing the act

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3
Q

MPC purposely

A

conscious object to engage in act or cause a certain result

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4
Q

MPC Knowingly

A

as to nature of conduct: aware of the nature of conduct or that circumstances exist; as to result: knows that conduct will necessarily or very likely cause result

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5
Q

MPC Recklessly

A

conscious disregard of a substantial and unjustifiable risk that circumstances exist or a prohibited result will follow, and this disregard is a gross deviation from a “reasonable person” standard of care

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6
Q

MPC negligently

A

failure to be aware of a substantial and unjustifiable risk that circumstances exist or a prohibited result will follow, and this disregard is a gross deviation from a “reasonable person” standard of care

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7
Q

elements of accomplice liability

A
  1. intentionally aiding, counseling, or encouraging the crime- active aiding, etc. required. mere presence not enough even if D seems to consent to crime or fails to notify police
  2. if crime is one of recklessness or negligence, accomplice must intend to facilitate commission and act with recklessness or negligence
  3. liability is for the crime itself and all foreseeable crimes
  4. accessory after the fact is not an accomplice
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8
Q

accessory after the fact

A

helping someone escape

not liable for crime itself; separate lesser charge

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9
Q

defenses to accomplice liability

A

withdrawal is an affirmative defense if prior to crime’s commission

  • if encouraged crime, must repudiate encouragement
  • if provided material, must neutralize assistance
  • or may notify police or otherwise act to prevent crime
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10
Q

solicitation

A

1) asking someone to commit a crime

2) with intent the crime be committed

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11
Q

defenses to solicitation

A

the refusal or incapacity of the solicited is not a defense

if legislative intent is to exempt solicitor, that is a defense

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12
Q

conspiracy

A

1) an agreement to commit an illegal act
2) intent to agree
3) intent to achieve the objective of the agreement
4) an overt act (most jurisdictions)

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13
Q

conspiracy liability

A

each conspirator is liable for all crimes of other conspirators if foreseeable AND in furtherance of the conspiracy

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14
Q

conspiracy defenses

A

withdrawal—can only withdraw liability for future crimes

MPC recognizes voluntary withdrawal as defense if the defendant thwarts the conspiracy, like by informing police

If one p
factual impossibility is not a defense

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15
Q

conspiracy merger

A

no merger- can be convicted of both conspiracy and the substantive offense

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16
Q

attempt

A

1) specific intent

2) overt act- a substantial step in the direction of the commission of the crime (mere preparation not enough)

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17
Q

defenses to attempt

A

factual impossibility is not enough (D sets out to do an illegal act but cannot complete act due to unknown reason)

true legal impossibility is a defense (D sets out to do an act he believes is illegal that is actually legal)

abandonment not a defense after substantial steps have begun (CL)

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18
Q

MPC attempt abandonment rule

A

MPC recognizes abandonment as a defense if (1) fully voluntarily and (2) complete

(ie: not a postponement due to unfavorable circumstances)

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19
Q

insanity: m’naghten test

A

disease of the mind caused a defect of reason so D lacked the ability at time of his actions to know wrongfulness or understand nature and quality of actions

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20
Q

insanity: irresistible impulse test

A

unable to control actions or conform conduct to law

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21
Q

insanity: durham test

A

crime was a product of mental disease or defect

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22
Q

insanity: MPC test

A

combination of M’Naghten and irresistible impulse test

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23
Q

intoxication

A

voluntary intox is a defense if it negates specific intent

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24
Q

self defense: non-deadly force

A

a person may use NDF in self-defense if she reasonably believes force is about to be used on her, no duty to retreat

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25
Q

self defense: deadly force

A

a person may use DF if she is:

1) without fault
2) confronted by unlawful force
3) reasonably believes that she is threatened with imminent death or great bodily harm

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26
Q

duty to retreat before using deadly force

A

majority rule- no duty to retreat

minority rule- duty to retreat, except

1) when it cannot be done safely
2) in one’s home

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27
Q

deadly force by original aggressor

A

only if he tries to withdraw and communicates that to the original victim or if sudden escalation of violence by original victim

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28
Q

use of deadly force to arrest

A

officer must reasonably believe suspect armed or presents a danger to the public

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29
Q

if fact-finder determines absence of right to self-defense

A

D may be guilty of voluntary manslaughter under “imperfect self-defense” theory

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30
Q

defense of others or dwelling - non deadly force

A

person reasonably believes that NDF is necessary to protect other or dwelling (or to end unlawful entry)

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31
Q

defense of others or dwelling- deadly force

A

only if a person reasonably believes that she is threatened with death or great bodily harm

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32
Q

necessity

A

choice of evils- harm to society exceeded by harm of criminal act

objective test

not available if D is at fault for creating situation requiring choice

traditionally, choice had to arise from natural forces but modern cases do not have this requirement

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33
Q

duress

A

defendant performs a criminal act under threat of death or serious bodily harm to him or another

1) threat must be made by another human
2) traditionally the threat to property was not sufficient; MPC recognizes threat to property as sufficient if harm threatened outweighs harm of criminal act

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34
Q

mistake of fact

A

must negate state of mind

malice and general intent crimes- mistake must be reasonable

specific intent crimes- mistake can be reasonable or unreasonable

strict liability crimes- mistake is not a defense

35
Q

mistake of law

A

not a defense

36
Q

entrapment

A

1) criminal design originated with authorities and

2) defendant was not predisposed to commit crime

37
Q

common law murder

A

1) unlawful
2) killing of another human being
3) with malice aforethought
4) lack of justification and no provocation

38
Q

malice aforethought- CL murder options

A

1) intent to kill (1st)
2) intent to do serious bodily harm (2nd)
3) reckless indifference to unjustifiably high risk to human life (depraved heart murder); or (2nd)
4) felony murder (1st)

39
Q

defenses to CL murder

A

justification (Self defense)

provocation (Reduces crime to voluntary manslaughter)

40
Q

defenses to CL felony murder

A

if D has a substantive defense to the underlying felony, he usually has a defense to felony murder (procedural defense, like SOL, is not a defense)

41
Q

felony murder

A

1) killing must be foreseeable
2) killing must be committed during the course of the felony- deaths caused while fleeing from a felony are felony murder but deaths that arise after D has found some point to temporary safety are not
3) the felony must be independent of the killing

majority rule- D is not liable for felony murder for death of a co-felon as a result of resistance by the victim or police

D does not have to be convicted for the underlying felony to be convicted for felony murder if the SOL has run on the felony

42
Q

voluntary manslaughter

A

1) adequate provocation
2) gave rise to sudden and intense heat of passion in the mind of an ordinary person such to cause him to lose self-control and
3) no adequate cooling off period for a reasonable person
4) the D in fact did not cool off

  • a failed self defense claim is voluntary manslaughter
43
Q

involuntary manslaughter types

A

types:
1) killing resulting from criminal negligence; or
2) misdemeanor manslaughter (killing someone during course of a misdemeanor or an unenumerated felony in the state’s felony murder statute)

44
Q

involuntary manslaughter rule

A

defendant is liable for all natural and probable consequences of his conduct unless the chain of causation is broken by the intervention of a superseding factor

45
Q

involuntary manslaughter superseding factors

A

acts of nature, coincidence

negligent medical care is NOT a superseding factor unless gross negligence or intentional malpractice

46
Q

CL battery

A

1) unlawful application of force to another

2) resulting in bodily injury or offensive touching

47
Q

CL assault

A

1) intent to commit battery or
2) intentional creation (other than by mere words) of a reasonable apprehension in the mind of the victim of imminent bodily harm

48
Q

CL false imprisonment

A

1) unlawful;
2) confinement of a person;
3) without his valid consent

49
Q

CL kidnapping

A

1) some movement or concealment of a victim in a “secret” place

some courts hold that kidnapping is committed when the victim is moved during the commission of another crime to a location that places her in more danger than that necessarily involved in the commission of the other crime

50
Q

CL rape

A

1) any penetration of the female sex organ by the male sex organ (many states have now made this gender neutral)
2) without the victim’s effective consent
3) in the absence of a marital relationship between the woman and the man (most states have abolished or modified this element)

without consent includes:

1) intercourse accomplished by actual force
2) intercourse accomplished by threats of great and immediate bodily injury
3) intercourse where victim is incapable of consenting due to unconsciousness, intoxication, or mental condition; or
4) intercourse where the victim is fraudulently caused to believe that the act is not intercourse

51
Q

CL larceny

A

1) taking,
2) and carrying away
3) of tangible personal property
4) of another with possession
5) by trespass
6) with intent to permanently deprive that person of her interest in the property

52
Q

CL embezzlement

A

1) the fraudulent
2) conversion
3) of personal property
4) of another
5) by a person in lawful possession of that property

If the defendant intended to restore the exact property taken, it is NOT embezzlement. But if he intended to restore similar or substantially identical property, it is embezzlement, even if it was money that was initially taken and other money-of identical value-that he intended to return.

53
Q

CL false pretenses

A

1) obtaining title (if title is not obtained the crime is larceny by trick)
3) to personal property of another
3) by an intentional false statement of a past or existing fact
4) with intent to defraud the other

54
Q

CL robbery

A

1) a taking
2) of personal property of another
3) from the other’s person or presence
4) by force or threats of immediate death or physical injury to the victim, a member of his family, or some person in the victim’s presence
5) with intent to permanently deprive him of it

The force or threats of force may be used to retain possession immediately after such possession has been accomplished.

55
Q

Cl receipt of stolen property

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 person
5) with the intent to permanently deprive the owner of his interest in it

56
Q

theft

A

not a traditional common law offense but many modern statutes and the MPC consolidate larceny, embezzlement, false pretenses, and receipt of stolen goods under the single heading of “theft”

57
Q

CL burglary

A

1) a breaking
2) and entry
3) of a dwelling
4) of another
5) at nighttime
6) with the intent to commit a felony in the structure

58
Q

CL arson

A

1) the malicious
2) burning
3) of the dwelling
4) of another

59
Q

solicitation and attempt merger

A

solicitation and attempt both merge into the substantive offense upon completion of that offense - so you cannot be convicted of both attempt to burglarize and burglary

60
Q

conspiracy bilateral approach (majority rule)

A

requires two guilty parties… thus if one person (under a two party conspiracy) is merely feigning agreement, the other person cannot be guilty of conspiracy

Furthermore, the acquittal of all persons with whom a D is alleged to have conspired precludes conviction of the remaining defendant under this approach

61
Q

conspiracy unilateral approach (minority and MPC approach)

A

the modern trend requires that only one person have genuine criminal intent

62
Q

specific intent crimes

A 
solicitation 
conspiracy 
attempt
first-degree murder
assault
larceny
embezzlement 
false pretenses
robbery
burglary 
forgery
63
Q

general intent crimes

A

battery
false imprisonment
kidnapping

64
Q

larceny by false pretenses vs larceny by trick

A

false pretenses- title

trick- custody only, not title

65
Q

first degree murder

A

intent to kill or intent to commit a felony

66
Q

second degree murder

A

intent to inflict great bodily harm or reckless indifference to an unjustifiably high risk to human life

67
Q

Use of a thermal imager to photograph the interior of a home.

A

constitutes a search

68
Q

Low altitude aerial photographing of a home using a telephoto lens.

A

not a search

69
Q

plain view exception to the warrant requirement

A

the police (1) must be legitimately on the premises where the item is found; (2) the item must be evidence, contraband, or a fruit or instrumentality of a crime; (3) the item must be in plain view; and (4) it must be immediately apparent (i.e., probable cause) that the item is evidence, contraband, or a fruit or instrumentality of a crime.

70
Q

4th amendment seizure

A

a seizure occurs when a reasonable person would believe that he is not free to leave. The courts consider the totality of the circumstances in making this determination.

71
Q

Knock and announce rule

A

When executing a warrant, the police do not need to always knock and announce their presence before entering a home. Usually, the police must knock and announce their authority and purpose and await admittance for a reasonable time or be refused admittance before using force to enter. However, no announcement needs to be made if the police reasonably suspect that knocking and announcing would be dangerous or futile or inhibit the investigation.

72
Q

3rd party accompanying police when executing a warrant

A

A third party MAY be permitted to accompany the police when executing a warrant in a home. Typically the police may not be accompanied by the media or a third party. However, a third party may accompany the police if the third party is there to aid in executing the warrant, for example to identify stolen property that might be found in the home.

73
Q

can people search people found on the premises where a search pursuant to a valid warrant is being conducted

A

not unless the people are named in the warrant

74
Q

5th amendment right to counsel

A

Miranda

Right to counsel during interrogations

only applies to questioning by known police (confidential informant doesn’t count)

75
Q

6th amendment right to counsel

A

applies only after adversary judicial proceedings have begun (e.g., formal charges have been filed).

offense specific

The Sixth Amendment right to counsel applies to all post-charge interrogations, whether or not the defendant knows he is speaking to a government informant.

76
Q

co-D confession

A

If two persons are tried together and one has given a confession that implicates the other, the right of confrontation generally prohibits the use of that statement because the other defendant cannot compel the confessing co-defendant to take the stand for cross-examination. A co-defendant’s confession is inadmissible even when it interlocks with the defendant’s own confession, which is admitted.

77
Q

A confession obtained in violation of Miranda can be used for what?

A

to impeach

78
Q

minimum number of jurors under the Sixth and Fourteenth Amendments?

A

6

79
Q

If more than _______ months’ imprisonment is authorized, the offense is considered “serious” for determining whether a defendant has a constitutional right to a jury trial.

A

6

80
Q

speedy trial right analysis

A

The determination is made by an evaluation of the totality of the circumstances, and the following factors should be considered: (i) length of the delay, (ii) reason for the delay, (iii) whether the defendant asserted his right, and (iv) prejudice to the defendant.

81
Q

failure to rat out co-conspirators

A

The United States Supreme Court held, in Roberts v. United States (1980), that a defendant’s refusal to cooperate with an investigation of the criminal conspiracy of which he was a member may properly be considered in imposing sentence.

82
Q

Double jeopardy

What is it and what amendments?

A

The right to be free of double jeopardy derives from the Fifth Amendment and has been incorporated into the Fourteenth Amendment. Under this right, once jeopardy attaches, the defendant may not be retried for the same offense. Jeopardy attaches in a jury trial when the jury is empaneled and sworn

83
Q

double jeopardy - two crimes

A

For purposes of the Double Jeopardy Clause, two crimes do not constitute the “same offense” if each crime requires proof of an additional element that the other crime does not require, even though some of the same facts may be necessary to prove both crimes.

The Bar Exam (7 decks)

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