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July 2013 NC Bar > CRIMINAL LAW RULES! > Flashcards

CRIMINAL LAW RULES! Flashcards

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1
Q

Jurisdiction

A

A crime may be prosecuted in the state where (1) an act part of the crime took place, or (2) the result took place.

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2
Q

Burden of Proof

A

The prosecution must prove each element of the crime beyond a reasonable doubt.

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3
Q

Felonies and Misdemeanors

A

A felony is crime punishable by prison for more than 1 year. Misdemeanor is one punishable for 1 year or less.

NC DISTINCTION – felonies are: (1) felony at common law or statute, (2) death, or (3) prison of any time.

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4
Q

Essential Elements of a Crime

Actus Reus

A

Voluntary physical act. Omission: (1) legal duty to act, (2) knows of facts giving rise to duty, (3) ability to help.

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5
Q

Mens Rea

A

Mens rea is the intent or state of mind of defendant at time of act. Specific intent crimes require desire to do the act AND a desire to achieve specific result. Malice Crimes in clued murder/arson; acts intentionally or with reckless disregard of an obvious or known risk. General intent crimes require that defendant be generally aware of the factors constituting the crime; he need not intend a specific result.

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6
Q

MPC Mental States

A

Purposely: conscious desire to accomplish particular result. Knowingly: aware or practically certain his conduct will cause a result. Recklessly: aware of a substantial & unjustifiable risk & consciously disregards it. Negligent: should have been aware of a substantial & unjustifiable risk.

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7
Q

Causation

A

Must be actual & proximate cause of bad result; responsible for natural & probable consequences; unforeseeable intervening causes will break the chain of causation.

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8
Q

Concurrence

A

Concurrence requires defendant to have required mental state at the time he engages in culpable conduct.

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9
Q

Crimes Against the Person – Assault, Battery, & Mayhem

Battery – General Intent

A

Battery is the unlawful application of force to another resulting in bodily injury or an offensive touch.

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10
Q

Assault – Specific Intent

A

Assault is an attempted battery OR the intentional creation of reasonable fear in mind of imminent bodily harm.

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11
Q

Aggravated Assault by Statute

A

Generally include assaults with a dangerous or deadly weapon with intent to rape, maim, or murder.

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12
Q

Aggravated Assault by Statute – NORTH CAROLINA

A

Heavier punishment on assaults with deadly weapon, female, under 12, state employees, & transit officer.

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13
Q

Assault with a Deadly Weapon – NC

A

A person commits assault with a deadly weapon (1) with intent to kill, OR (2) inflicts serious injury.

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14
Q

Assault by Pointing a Gun – NC

A

A person who points a gun at any person, regardless of whether it is loaded, is guilty of assault.

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15
Q

Mayhem – NC

A

Mayhem is the castration, maiming, or malicious throwing of acid that causes permanent injury on another.

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16
Q

Crimes Against the Person – Homicide

Death Requirement

A

Death may occur at any time after the infliction of injury, NOT 1 year + a day old common law rule.

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17
Q

Murder

A

Murder is the unlawful killing of another with malice aforethought. Malice aforethought is satisfied if one (1) intends to kill, (2) intends to inflict serious bodily harm, or (3) acts with extreme indifference to human life.

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18
Q

Deadly Weapon Rule

A

The intentional use of a deadly weapon creates an inference of intent to kill.

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19
Q

Transferred Intent

A

A defendant’s intent to kill can transfer from the intended victim to the actual victim. Does not apply to attempt.

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20
Q

First Degree Murder – NC

A

Any killing (1) with premeditation & deliberation, OR (2) with poison, torture, or a weapon of mass destruction.

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21
Q

Second Degree Murder – NC

A

Second degree murder is the unlawful killing with malice, but without premeditation and deliberation.

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22
Q

Felony Murder Rule

A

Any killing caused during the commission of, or attempt to commit, an inherently dangerous felony, and the defendant was guilty of the underlying felony. The killing must occur during the felony or during immediate flight from the felony. The death must be foreseeable, and the victim must not be a co-felon. Moreover, all co-felons will be guilty, even if the killing is committed by a third-party.

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23
Q

Felony Murder Rule - NC

A

A killing caused during commission of a felony, or attempt to commit a BARRK felony. However, conviction of the underlying felony is NOT required if D confessed to murder & sufficient facts to support felony. The killing must occur during the felony or during immediate flight from the felony. The death must be foreseeable, and the victim must not be a co-felon. All co-felons will be guilty, but not if killing was by a third-party.

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24
Q

Voluntary Manslaughter

A

Voluntary manslaughter is an intentional killing committed in the heat of passion upon adequate provocation. The provocation must be objectively adequate (assault, battery, adultery, unlawful restraint). The defendant was actually provoked (subjective). The defendant did not have time to cool off and did not actually cool-off between the provocation and the killing.

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25
Q

Involuntary Manslaughter

A

Involuntary manslaughter is an unintentional killing committed without malice, but with criminal negligence (gross deviation), OR committed during a commission of a crime not falling under the felony murder rule.

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26
Q

Crimes Against the Person – Confinement & Sex Offenses

False Imprisonment – General Intent

A

False imprisonment is the unlawful confinement of a person without his consent.

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27
Q

Kidnapping – General Intent

A

Kidnapping is the unlawful confinement of a person without consent involving moving or concealing victim.

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28
Q

Kidnapping – NC

A

Kidnapping is the unlawful confinement, restraint, or moving of a person without consent for the purpose of (1) ransom, (2) hostage or shield, (3) flight from felony, (4) inflicting serious bodily harm, or (5) for servitude. 1st Degree Kidnapping if he fails to release in safe place, seriously injures, or sex assault victim. If not, 2nd degree.

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29
Q

Stalking – NC

A

Willfully more than once, harasses a person or should know that his conduct would reasonably cause one to (1) fear for her or her family’s safety, OR (2) suffers emotional distress.

30
Q

Rape – General Intent

A

Rape is unlawful intercourse with a woman without consent accomplished by force or threat of force.

31
Q

Statutory Rape – Strict Liability

A

A reasonable mistake as to age with NOT prevent liability. Minority/MPC rule does allow it.

32
Q

Statutory Rape – NC

A

1st Degree: under 13, and defendant is 4 years or older & at least 12 years old. Class B1 Felony: victim is 13-15, & defendant is at least 6 years older. Class C Felony: victim is 13-15, and defendant is 4 years older.

33
Q

Property Crimes – Theft Offenses

Larceny

A

Larceny is the trespassory taking, with asportation, of personal property of another, with intent to deprive him of it permanently. Concurrence can be established later based on the continuing trespass doctrine.

34
Q

Embezzlement

A

Embezzlement is the fraudulent conversion of personal property of another by one who is already in lawful possession of it. Possession requires authority to exercise some discretion over the property, not mere custody.

35
Q

False Pretenses

A

False pretenses occurs when one fraudulently obtains title to personal property of another by an intentional false statement. The intentional false statement must be of a present or past event, NOT a future promise.

NC DISTINCTION – passage of title NOT required; thus, same rule as larceny by trick

36
Q

Larceny by Trick

A

Where defendant obtains custody, not title, of personal property of another from an intentional false statement.

37
Q

Robbery

A

Robbery is larceny from another’s person or presence by force or threat of immediate injury with intent to steal. However, a threat of future harm does not amount to robbery; he then will commit extortion/black mail.

38
Q

Armed Robbery – NORTH CAROLINA

A

Armed robbery is the (1) taking, or attempting to take, (2) the personal property of another, (3) by force or threat of force, (4) with a deadly weapon used to endanger the life of the victim.

39
Q

Forgery

A

Forgery is the making or altering of a writing so that it is false with specific intent to defraud.

40
Q

Property Crimes – Habitation Offenses

Burglary – Specific Intent

A

Burglary is the breaking and entering the dwelling of another at night with the intent to commit a felony therein.

NC DISTINCTION – breaking/entering the building of another at night with the intent commit a felony therein.

41
Q

Arson – Malice

A

Arson is the malicious burning of a building. The building itself must burn; charring is enough, not scorching.

NC DISTINCTION – 1st Degree if, of occupied dwelling. 2nd Degree for buildings by statute.

42
Q

Property Crimes – Possessory Offenses

Possession of Contraband (Drugs, Stolen Property, Child Pornography)

A

Possession means control for a long enough period of time to have an opportunity to terminate possession. Actual possession need not be established; constructive if close enough to exercise dominion & control over it.

43
Q

Receipt of Stolen Property

A

If he (1) receives possession & control of it, (2) knowing it was criminally obtain by another, and (3) with the intent to deprive the owner permanently.

NC DISTINCTION – (1) receives any item, and (2) having reasonable ground to believe it was stolen.

44
Q

Accomplice Liability

Accomplice

A

An accomplice is guilty of all crimes committed by principal if he (1) aids or encourages the principal, (2) with the intent that the crime be committed. Accomplice will be liable for all foreseeable crimes committed.

45
Q

When a Person is NOT an Accomplice

A

Mere presence at scene not enough; must actively aid/encourage principal. Mere knowledge of the crime not enough; he must intend to aid or encourage the principal. Victims of crimes cannot (minor sell alcohol minor).

46
Q

Withdrawing before Crime is Committed

A

An encourager may withdraw by simply repudiating the encouragement before the crime is committed.. An aider who actually helped must either neutralize the assistance or otherwise prevent the crime.

NC DISTINCTION – aider or encourager cannot escape quietly; must (1) renounce the common purpose, and (2) and tell others that he has done so and the he does not intend to participate further.

47
Q

Accessory After the Fact

A

To be an accessory after the fact, a defendant must (1) help a principal who committed a felony, (2) with knowledge that crime was committed, & (3) with the intent to help the principal avoid arrest or conviction.

48
Q

Inchoate Offenses

Solicitation

A

Solicitation is the asking of another to commit a crime with the specific intent that the crime be committed.

49
Q

Conspiracy

A

A conspiracy is an agreement between multiple persons to commit a crime, plus an overt-act in furtherance of the crime by any of them, even just preparatory. Requires at least 2 guilty minds (Not with the MPC).

NC DISTINCTION – conspiracy is an agreement between 2 or more to commit a crime. Intent to agree.

50
Q

Conspiracy – Wharton Rule – Conspiracy Defense

A

When two or more people are necessary for the commission of the substantive offense, there is no conspiracy unless more parties participate than are necessary for the crime (A and B agree to Duel – no conspiracy).

51
Q

Conspiracy – Vicarious Liability by Conspiracy

A

A defendant will be vicariously liable for the crimes of his co-conspirators if those crimes were (1) committed in furtherance of the conspiracy’s objective, and (2) such crimes were foreseeable.

52
Q

Conspiracy – Impossibility

A

Impossibility is never defense to conspiracy (A & B agree to kill C, they arrive house, but C is already dead).

53
Q

Attempt

A

Attempt occurs if one specifically intends to commit the underlying crime, and performs conduct that gets dangerously close to the commission of the crime (dangerous proximity). Under the MPC, substantial step.

54
Q

Attempt – Impossibility

A

Factual impossibility NO defense (A tried to pickpocket B, but it was empty). Legal impossibility is a defense.

55
Q

Withdrawal or Renunciation

A

Once defendant withdraws from conspiracy, he is no longer vicariously liable for crimes after he left. However, the defendant is still guilty of conspiracy and all crimes committed by co-conspirators before he left.

56
Q

Merging Solicitation and Attempt

A

Solicitation and attempt merge with the completed crime; but conspiracy NEVER merges.

57
Q

Defenses

Insanity – The M’Naghten Test – Majority and NC

A

The M’Naghten test is cognitive based; defendant must show that at the time of act (1) he had a mental defect or disease of the mind, & (2) did not know wrongfulness of actions OR did not understand nature of his conduct.

58
Q

Insanity – The Irresistible Impulse Test

A

Because of mental illness he (1) was unable to control his actions, or (2) was unable to conform conduct to law.

59
Q

Insanity – MPC Test – Minority

A

Defendant must establish that because of mental disease or defect, he lacked the substantial capacity to (1) appreciate the criminality of his conduct, OR (2) conform his conduct to the requirements of law.

60
Q

Incompetency – Postpone Trial

A

If at time of trial, defendant cannot (1) understand the nature of the proceedings against him, OR (2) assist his lawyer in the preparation of his defense, the trial is postponed until defendant regains competence.

61
Q

Voluntary Intoxication

A

Intoxication can be a defense to Specific Intent only, and the intoxication much be severe.

62
Q

Infancy

A

Under 7, cannot prosecute. 7 to 14 years old, rebuttable presumption against prosecution. 14+, prosecution.

63
Q

Mistake of Fact

A

A reasonable mistake of fact is defense to ANY crime. Unreasonable mistake of fact: only specific intent ones.

NC DISTINCTION – mistake of fact relevant to responsibility ONLY if it shows that defendant did not have the requisite mental state for the crime.

64
Q

Self Defense – Non-Deadly Force

A

Non-deadly force if reasonably necessary to protect against an immediate use of unlawful force against himself.

65
Q

Self Defense – Deadly Force

A

Deadly force is permitted if he is facing an imminent threat of death or serious bodily harm.

66
Q

Self Defense – Deadly Force – Initial Aggressor Rule

A

An aggressor may use deadly force unless he (1) withdraws from fight and communicates to the other person, OR (2) the victim suddenly escalates a non-deadly fight into a deadly one.

NC DISTINCTION – a defendant without murderous intent, who initiates an altercation that results in the other persons death is guilty of manslaughter, not murder, if he (1) reasonably believed deadly force was necessary to repel threat of death or serious bodily harm. Thus, it is an imperfect self-defense, it just mitigates not exonerate.

67
Q

Self Defense – Retreat Rule

A

Retreat is NOT required.

NC DISTINCTION – when confronted with non-felonious assault, duty to try to retreat if possible to w/o harm.

68
Q

Use of Force to Prevent a Crime

A

Non-deadly if reasonably necessary to prevent serious BOP. Deadly if to prevent a felony risking human life.

69
Q

Defense of Dwelling

A

An occupant may use deadly force inside his dwelling if (1) intruder gained entry in violent manner, and (2) occupant reasonably believes that use of deadly force is necessary to prevent a personal attack on one inside.

70
Q

Necessity

A

Necessity is a defense to criminal conduct if defendant reasonably believed his conduct was necessary to prevent a greater harm. Never available if caused death to protect property or at fault in creating the harm.

71
Q

Duress

A

Duress is a defense if defendant was coerced to commit a crime because of threat from another of imminent death or serious bodily injury to himself or close family member. Duress is never a defense to homicide.

72
Q

Entrapment

A

Entrapment

July 2013 NC Bar (16 decks)

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