Criminal Law (MBE/MEE) Flashcards
1
Q
Actus Reus
A
- Either (i) a voluntary, affirmative act, or (ii) an omission (failure to act), causing a criminally proscribed result
- Must be a concurrence of D’s mens rea with the actus reus such that the mens rea causes the actus reus
2
Q
Voluntary Act
A
- Must be a physical act that is voluntary (i.e., willed by the defendant/had motor control over the moment)
- Involuntary: Unconscious/asleep/under hypnosis
3
Q
Failure to Act
A
A failure to act can constitute the actus reus when a duty exists:
* Imposed by statute (e.g., obligation to file tax return)
* Contract (e.g., lifegaurd saving a drowning person)
* Special relationship (e.g., parent’s duty to her child or duty to one’s spouse)
* Detrimental undertaking (e.g., leaving victim in worse condition after treatment)
* Causation (e.g., failing to aid after causing victim’s peril) (ex. lifeguard failing to save friend after friend had gone swimming based on lifeguard’s assurance that it was safe to do so)
4
Q
Mens Rea: Specific-Intent
A
Requires D has a subjective desire, specific objective, or knowledge to accomplish prohibited result. Applicable crimes under common law (FIAT)
* First-degree murder
* Inchoate Crimes (e.g., conspiracy, attempt, solicitation)
* Assault with attempt to commit battery
* Theft Offenses (e.g., larcency, embezzlement, forgery, burglary, robbery)
5
Q
Mens Rea: Malice
A
- Requires D acts with a reckless disregard of a high degree of harm.
- Applicable Crimes: Arson and murder
6
Q
Mens Rea: General-Intent
A
- Requires the intent to perform an unlawful act
- MPC: Acts done knowingly, recklessly, or negligently
- Applicable Crimes: Battery, rape, kidnapping, false imprisonment, etc.
7
Q
Transferred Intent
A
- When D has requisite mens rea for committing a crime against Victim A, but actually commites crime against Victim B, law transfers intent from Victim A over to Victim B.
- Applies only to “bad aim” cases, not mistaken identity
- Does not apply to attempted crimes, only completed crimes (usually homicide, battery, arson)
8
Q
Mens Rea: MPC
A
- Purposely
- Knowingly
- Recklessly
- Negligently
9
Q
MPC: Purposely
A
D’s conscious objective is to engage in the conduct or to cause a certain result
10
Q
MPC: Knowingly
A
D is aware or knows that the result is practically certain to occur based on the conduct
11
Q
MPC: Recklessly
A
D acts with a conscious disregard of a substantial and unjustifiable risk
12
Q
MPC: Negligently
A
D should be aware of a substantial and unjustifiable risk and acts in a way that grossly deviates from the standard of care of a reasonable person in the situation
13
Q
Strict Liability
A
- No mens rea requirement; proof of actus reus is sufficient for conviction
- Generally disfavored; limited to statutory/regulatory offenses (e.g., regulation of food and drugs) and moral offenses (e.g., statutory rape or bigamy)
14
Q
Vicarious Liability
A
- Imposes criminal liability on D for the actus reus of a third party
- Corporations may be vicariously liable when act is performed by high-ranking corporate agent who likely represents corporate policy
15
Q
Mistake of Fact: Common Law
A
- Specific-intent crimes: Defense to specific-intent crimes, even if unreasonable;
- General-intent crimes: defense to general-intent or malice crimes only if reasonable
16
Q
Mistake of Fact: MPC
A
Serves as defense if it prevents P from establishing required state of mind for a material element of offense
17
Q
Mistake of Law: Common Law
A
Not valid under common-law; ignorance of the law is no excuse
18
Q
Mistake of Law: MPC
A
Only valid under MPC if:
* Reliance on high-level government interpretations;
* Lack of notice of malum prohibitum crimes;
* MIstake of law that goes to an element of specific-intent crime
19
Q
Principal
A
- Person whose acts or omissions are the actus reus of the crime
- Must be actually or constructively present at scene of crime
20
Q
Accomplice
A
- Person who aids or abets principal prior to or during crime with the intent of assisting the principal to commit the crime
- Liability: Liable for any crimes that are the natural and probable consequences of the accomplice’s conduct
21
Q
Principal in the Second Degree
A
An accomplice who is physically or constructively present during the commission of the crime
22
Q
Accessory before the Fact
A
An accomplice who is neither physically nor constructively present during the commission of the crime, but who possesses the requisite intent
23
Q
Accomplice: Repudiation
A
To withdraw, an accomplice must:
* Repudiate prior aid,
* Do all that is possible to countermand prior assistance, and
* Do so before the chain of events is in motion and unstoppable
24
Q
Accessory after the Fact
A
- A person who aids a felon to avoid apprehension after the felony is committed
- To be guilty, person must know the felony was committed
- Only liable for a separate crime
25
Insanity: M'Naghten Rule
D did not know either the:
* (i) **nature and quality** of the act, or
* (ii) **wrongfulness** of the act
26
Insanity: Irresistible Impulse Rule
* D lacked capacity for **self-control and free choice** due to mental disease or defect
* Unable to conform conduct to law
27
Insanity: Durham Rule
Crime would not have been committed **but-for** D's mental disease or defect
28
Insanity: MPC Rule
D lacked **substantial capacity** to **a****ppreciate the wrongfulness** of the act or to **conform his conduct to law**, as a result of mental disease or defect
29
Insanity Defense: Constitutional Requirements
* A state is not constitutionally required to recognize any form of an insanity defense
* If a state does recognize an insanity defense, it is constitutionally permissible to shift the burden to the accused to prove it as an affirmative defense
30
Intoxication: Voluntary
* Person intentionally ingests substance, knowing it is an intoxicant
* **Defense (Common-Law)**: Only to **specific-intent** crimes if intoxication prevents formation of required mens rea
* **Defense (MPC)**: Defense that require **purpose** or **knowledge**, and intoxication prevents formation of that mental state
31
Intoxication: Involuntary
* Taken without knowledge of intoxicating nature, or under duress
* Defense: Can be **valid defense to specific-intent, general-intent, and malice crimes** when it negates mens rea necessary for crime
32
Homicide
* Killing of a living human being by another human being
* Must be actual causation and proximate causation
33
Homicide: Causation
**Actual Causation**: But-for causation
**Proximate Causation**: D's act is a **foreseeable cause** of the victim's death
* Independent actions by a third person are generally not a foreseeable cause, but negligence is generally foreseeable
34
Common-Law Murder
The unlawful killing of another human being with **malice aforethought**. Malice can be shown by:
* Intent to kill;
* Intent to do serious bodilly injury;
* Reckless indifference to human life ("depraved heart murder"); or
* Felony murder
35
Common-Law Murder: Depraved-Heart Murder
Reckless indifference to an unjustifiably high risk to human life
36
Common-Law Murder: Felony Murder
* **Unintended but foreseeable killing** proximately caused by and during commission or attempted commission of an **inherently dangerous felony**
* Crimes (BARRK): **Burglary**, **arson**, **robbery**, **rape**, **kidnapping**
37
Felony Murder: Agency Theory vs. Proximate Cause Theory
* **Agency Theory** (Majority): D is not liable for a bystander's death caused by a felony victim or police officer
* **Proximate Cause Theory** (Minority): Bystander's death falls under felony murder rule because death is direct consequence of felony
Note: D is not liable under either theory for the death of a co-felon if a victim/police officer kills the co-felon. Instead, those are considered justifiable homicides.
38
First-Degree Murder
Typically defined as either a:
(1) **Deliberate and premeditated murder**; or
* Deliberate: D made decision to kill in cool and dispassionate manner
* Premeditated: D had time to plan and reflect on idea of killing (mere second is sufficient)
* Specific-intent crime
(2) **Felony murder**
39
Second-Degree Murder
Statutory version of common law murder defined as a homicide committed with necessary **malicious** intent
* Intent to kill;
* Intent to do great bodily injury;
* Depraved-heart murder; or
* Felony murder
40
Voluntary Manslaughter
Murder committed in response to **adequate provocation** and **no time to cool off**
* **Provocation**: A reasonable person would have been, and D was, provoked by victim's actions (e.g., discovery of adultery, serious battery).
* **Cooling off**: Must not have been sufficient time for a reasonable person to cool off, and D did not cool off, between provocation and killing.
**Note**: Words alone do not constitute adequate provocation
41
Transferred Provocation
* If D misidentifies provoker or kills wrong person due to a reasonable mistake of fact, D can be guilty of voluntary manslaughter.
* Doesn't count if D intentionally killed a third party due to provocation by provoker
42
Voluntary Manslaughter: Imperfect Defense
If D uses self-defense and kills another person but was unreasonable in doing so (e.g., used excessive force, improper use of self-defense), murder can be mitigated down to voluntary manslaughter
43
Involuntary Manslaughter
An unintentional homicide committed with **criminal negligence** or **during an unlawful act**
44
Involuntary Manslaughter: Criminal Negligence
**Grossly negligent action** (or inaction when there is a duty) that puts another person at a **signficant risk** of serious bodily injury or death
Note: **MPC** requires D was actually aware of the risk of his conduct.
45
Involuntary Manslaughter: Unlawful Act
D commits an unlawful act that does not give rise to felony murder and a death occurs as a result
46
Larceny
Requirements:
* (i) **Trespassory taking and carrying away** of the **personal property** of another,
* (ii) without consent,
* (ii) with the **specific intent** to **permanently deprive** the owner of the property at the time of the taking (stolen property taken from thief can usually constitute larceny)
**Note**: Factual impossibility is not a defense to larceny.
47
Larceny by Trick
Requirements:
* (i) Larceny;
* (ii) Accomplished by **fraud or deceit**;
* (iii) resulting in **conversion** of the property to another
48
Embezzlement
**Fraudulent conversion** of the **property of another** by a person who is in **lawful possession** of the property (e.g., not acquired by fraud)
**Note**: The amount of embezzlement is measured by the value of the property at the time of the conversion.
49
Forgery
Requirements:
* (i) Making of a **false writing**;
* (ii) with apparent **legal significance**, and
* (iii) with **intent to defraud**
50
False Pretenses
Requirements:
* (i) Obtaining **title** to the property of another;
* (ii) Through the **reliance** of that person;
* (iii) On a known **false representation** of a material fact; and
* (iv) The representation is made with an **intent to defraud**
51
Robbery
Robbery = Larceny + Assault:
* (i) **Larceny**;
* (ii) From the person or presence of the victim;
* * (iii) By **violence** or **putting the victim in fear of imminent physical harm** (i.e., threat to damage or destroy property not sufficient)
**Note**: Threat of immediate serious physical injury need not be made against victim himself, but may be made against another person who is present when threat is made. Threatened party need not be related to victim.
52
Extortion
Taking of money or property from another by threat
* Involves threats of future harm, including non-physical harm
53
Common-Law Burglary
Requirements:
* (i) **Breaking and entering** of the **dwelling** of another;
* (ii) at **nighttime**;
* (ii) with the **specific intent** to commit a felony therein
**Consent**: If D gains entry to dwelling by consent, breaking can still occur if D breaks into part of dwelling where D lacks consent to be.
**Note**: Can be convicted of burgary even if you fail the underlying felony.
54
Common-Law Arson
Requirements:
(i) **Malicious burning**;
(ii) of the **dwelling** of **another**
* Requires damage to structure of building, not it's contents
Note: MPC includes any intentional fire intended to destroy a building/occupied structure or destroy property to collect insurance
55
Possession Offenses
D exercises **dominion and control** over a prohibited object or substance
* D not required to be aware possession of substance is illegal, but must be aware the substance is within his dominion and control
* D must possess long enough to have had an opportunity to cease such dominion and controls
56
Reciept of stolen Property
Requirements:
* (i) **Receiving control** of stolen property;
* (ii) **Knowledge** that property is stolen; and
* (iii) intent to **permanently deprive** owner of the property
57
Perjury
Requirements:
* (i) Person **knows** what they are saying is false;
* (ii) Person **intends** to say something that is false; and
* (iii) Falsity must go to a **material matter**
Note: **Subornation of perjury** is when a person persuades someone else to commit perjury.
58
Bribery
Corrupt payment of value for purposes of influencing an official in the discharge of his official duties
* Modern law allows bribery charge even if person bribed is not public official
59
Battery
Requirements:
* (i) Unlawful application of **force** to another person;
* (ii) That causes **bodilly harm** or constitutes an **offensive touching**
Note: Does not require actual physical contact
60
Assault
Either:
* An **attempt to commit a battery**; or
* Intentionally placing another in **apprehension** of **imminent bodily harm**
61
Mayhem
Common-law felony battery that causes dismemberment or permanent disfigurement of a person
62
Kidnapping
Requirements:
* (i) **Unlawful confinement** of another person against that person's will;
* (ii) coupled with either **movement or hiding** of that person
Note: If kidnapping occurs incident to another crime, movement must be more than what is necessary for commission of crime to be liable for separate offense.
63
False Imprisonment
Unlawful confinement of a person without consent
64
Rape: Common-Law
Requirements:
* (i) Unlawful **sexual intercourse**;
* (ii) with a female;
* (iii) against her will by **force** or **threat of immediate force**
65
Rape: Modern Statutes
Most modern rape statutes are **gender-neutral** and require **lack of consent** rather than the force requirement
66
Merger
D cannot be convicted of two crimes when those two crimes merge into one. Two categories of merger:
* (i) Lesser-included offenses; and
* (ii) Merger of an inchoate and a completed offense (other than conspiracy)
**Note**: D can be prosecuted for, but not convicted of, more than one inchoate offense based on conduct designed to culminate in commission of same crime (ex. soliciation and attempted kidnapping).
67
Solicitation
* Occurs when an individual intentionally **invites, requests, or commands** another person to commit a crime
* If person agrees, crime is a conspiracy
* Merger doctrine applies
* Renunciation (MPC): May be a defense if D thwarts commission of solicited crime
68
Attempt
A **substantial step** toward commission of crime, beyond mere perpeation, coupled with the **specific intent** to commit the crime.
* Merger doctrine applies
* **Impossibility**: Legal impossibility is a defense; factual impossibility is not
**Note**: Attempt requires specific intent to commit crime. This applies even when the target crime (e.g., statutory rape) is a strict liability offense that does not require proof of a particular mental state. Still will need to have specific intent to commit crime. For example, can't be convicted of attempt to commit murder if basis is depraved-heart murder because you didn't specifically intend to commit the killing.
69
Common-Law Conspiracy
Requirements:
* (i) An **agreement** between two or more persons (bilateral conspiracy) to accomplish an **unlawful purpose**;
* (ii) With specific intent to agree and commit the criminal objective
Note: If one party jokingly agrees, doesn't consitute actual intent to commit the criminal objective
70
Conspiracy: Chain Conspiracy
* Conspiracy can exist among individuals who do not know each other if there is a **community of interest** in achieving objective of conspiracy
* Established by chain relationship
71
Conspiracy: Overt Acts
* **Common Law**: No overt act required
* **Majority/federal law/MPC**: Require an overt act in furtherance of the conspiracy, but MPC does not require if conspiratoral crime is a first- or second-dgree felony
**Note**: The overt act need not be completed by the defendant; just a member of the conspiracy
72
Conspiracy: Unilateral Conspiracy
* **Majority/MPC**: Conspiracy may be formed when only one party actually agrees, including an undercover agent
* **Common Law**: Not recognized
73
Conspiracy: Pinkerton Liability
A conspirator is liable for conspiracy and co-conspirators’ substantive crimes committed in furtherance of the conspiracy
74
Withdrawal from Conspiracy: Liability for Conspiracy
**Majority rule**: After agreement but before an overt act has been committed, person may avoid criminal liability by either:
* Communicating notice of intent not to participate to other co-conspirators; or
* Informing police about agreement
**Minority/MPC**: Withdrawal only possible if D acts voluntarily to "thwart the success" of the conspiracy
75
Withdrawal from Conspiracy: Liability for Substantive Crimes
D may withdraw by:
* Giving notice to his co-conspirators, or
* Timely advising legal authorities of the existence of the conspiracy
76
Wharton Rule
If a crime requires 2+ participants, there is no conspiracy unless more parties than are necessary to complete the crime agree to commit the crime
77
Self-Defense
* Use of reasonable force against another person to prevent immediate unlawful harm to himself
* Non-deadly force may be used to repel non-deadly force
78
Self-Defense: Deadly Force
May be used in self-defense only if **reasonably necessary** to:
* Prevent **death or serious injury**, or
* Prevent **serious felony** involving risk to human life
79
Self-Defense: Retreat
No obligation to retreat before:
* using **nondeadly force**,
* **deadly force in home**, or
* **deadly force elswhere** (majority view; minority requires retreat if it can be safely accomplished)
80
Self-Defense: Aggressor's Right
An initial aggressor may gain right to act in self-defense if:
(i) Aggressor's non-deadly force was **met with deadly force**; or
(ii) Aggressor **withdrew** from altercation in good faith and communicated that to the victim.
81
Defense Of Others
Right to defend others exists under same circumstances in which self-defense would be acceptable
82
Reasonable Force to Protect Another From Self-Harm
A D is privileged to use reasonable force against an individual to protect that individual from self-harm when:
* the individual is unable to understand the nature and consequences of his/her actions and
* D reasonably believes that the individual is about to commit an act likely to cause death or serious bodily harm to him/herself
**Note**: May include acts that otherwise would be battery or false imprisonment
83
Defense of Property
Right to use **non-deadly proportionate force** to protect property if D **reasonably believes**:
* **real property** is in danger of unlawful trespass,
* or **personal property** is in immediate danger of being carried away
Note: Can only use deadly force if occupant reasonably believes intruder intends to commit a felony inside.
84
Arrest
* Police can use **reasonable force** to make a lawful arrest, and D may use nondeadly force to resist unlawful arrest
* Police can use **deadly force** if suspect is threat to officer or third parties
* A civilian has a self defense of arrest when using reasonable force to arest a person who has committed ac rime in the civilian's presence
85
Duress
A third party's **unlawful threat** causes a D to **reasonably believe** that the only way to avoid **death or serious bodily injury** to himself or another is to violate the law
Note: Not a defense to intentional murder.
86
Necessity
**Forces of nature** (not human actions, or the D's actions) caused D to commit what would otherwise be a crime (i.e., the "lesser of two evils")
87
Entrapment
Defense if:
* (i) Crime is induced by government agent; and
* (ii) D not predisposed to commit the crime
**Note**: Requiers participation of governmental official or agent, or someone working on their behalf
