Crimlaw Flashcards

Question

MENS REA @ COMMON LAW malice crimes - definition [elements of a crime // overview]

Answer 1

= crimes in which the accused acted with extreme recklessness (at least) TEST TIP = if you gotta ask, it’s gonna be extreme (not ordinary) recklessness

Answer 2

1. Common law murder 2. Second degree murder in states with statutes differentiating degrees of murder 3. Arson 4. Malicious mischief 5. House burning

Answer 3

= crimes in which the accused acted with at least ordinary recklessness OR gross negligence TEST TIPS - if you gotta ask = it’s gonna be extreme (not ordinary) recklessness - mental state requirement of crime is unclear = general intent is default

Answer 4

All crimes that do not require specific intent or malice, including 1. Battery 2. Rape 3. Kidnapping 4. False imprisonment 5. Mayhem 6. Voluntary manslaughter 7. Involuntary manslaughter 8. Assault (of the “threat” kind) 9. Reckless driving

Answer 5

= crime in which the accused’s mental state is irrelevant

Answer 6

1. Statutory rape 2. Selling or providing liquor to minors 3. Bigamy 4. DWI/DUI/most other traffic violations that are criminal in nature 5. Many regulatory/environmental/public welfare offenses (ex = selling impure or adulterated food or alcohol)

Answer 7

- Very few defenses to strict liability crimes - Mistake of fact is not a defense - But insanity may be a defense

Answer 8

1. Purposely 2. Knowingly or willfully 3. Recklessly 4. Negligence

Answer 9

= CONSCIOUS INTENT to either engage in/cause CERTAIN conduct/result (EX = A shot B b/c A wanted B to die)

Answer 10

= AWARE that conduct will or LIKELY WILL cause a certain result when conduct OVERWHELMINGLY LIKELY to produce a result NOTE = reasonable OR unreasonable mistake of fact is defense

Answer 11

= CONSCIOUS DISREGARD of a substantial or unjustifiable risk that constitutes a GROSS DEVIATION from standard of care of reasonable person with knowledge that injury might result NOTE = default mental state under MPC

Answer 12

= FAILURE TO BE AWARE of a substantial and unjustifiable risk and such failure is a SUBSTANTIAL DEVIATION from the standard of care of a reasonable person NOTE = higher standard than negligence in tort law—probably close to tort law’s gross negligence

Answer 13

Knowingly/willfully

Answer 14

Recklessly

Answer 15

= D must have the necessary mental state at the time he committed the act constituting the crime

Answer 16

= to be found guilty, D’s criminal act must be both the ACTUAL/but-for cause and the PROXIMATE cause NOTE = technically, causation is an element of all crimes but causation issues usually arise in “result” crimes (like homicide)

Answer 17

= But for D’s act, V would not have died WHEN HE DID - D is actual cause of murder/manslaughter if D’s criminal act SHORTENS V’s life - D may be actual cause of murder/manslaughter if D’s criminal act LENGTHENS V’s life in rare cases

Answer 18

Breaks the chain of causation from the original act to the death ONLY IF the intervening force was so out-of-the-ordinary that it’s no longer fair to hold D criminally responsible for the outcome Ordinarily negligent acts/omissions of 3P (ex = doctor or rescuer) OR victim are not sufficient to break the chain of causation

Answer 19

- Intervening act must be so ABNORMAL OR BIZARRE that it is TRULY UNFORESEEABLE - Ordinarily negligent acts/omissions of 3P (ex = doctor or rescuer) OR victim are not sufficient to break the chain of causation

Answer 20

1. Insanity 2. Intoxication 3. Infancy

Answer 21

1. M’Naghten rule 2. Irresistible impulse test 3. MPC test

Answer 22

M’Naghten rule

Answer 23

M’Naghten rule

Answer 24

Insanity defenses can’t be based on abnormality manifested only by repeated criminal or otherwise antisocial conduct = psychopaths and sociopaths aren’t eligible for insanity defenses

Answer 25

(majority and federal courts approach) At the time of the crime 1. the accused suffered from a MENTAL DISEASE/DEFECT 2. AND the accused DIDN’T KNOW what he was doing was LEGALLY WRONG NOTE = D is not entitled to acquittal merely b/c he believes his acts are morally right (D must not know his acts are legally wrong)

Answer 26

At the time of the crime 1. the accused from a mental disease/defect 2. AND the accused may have known his act was wrong but couldn’t resist

Answer 27

D is not guilty if he can satisfy EITHER a. M’NAGHTEN RULE or b. IRRESISTIBLE IMPULSE TEST

Answer 28

State may require accused to prove insanity as an affirmative defense by EITHER a. a preponderance of the evidence b. clear and convincing evidence

Answer 29

= if the accused is unable to a. understand the nature of proceedings OR b. assist his counsel

Answer 30

State may require accused to prove incompetency by a preponderance BUT NOT by clear and convincing evidence (b/c DP violation)

Answer 31

1. Voluntary intoxication | 2. Involuntary intoxication

Answer 32

= intoxication by drugs or alcohol 1. that is self-induced AND 2. taken without duress

Answer 33

Defense to SPECIFIC INTENT crimes only LIQUID COURAGE EXCEPTION = voluntary intoxication isn’t a defense to ANY crime if the accused used alcohol or drugs to build up his nerve or courage to commit the crime (AKA not a defense to general intent + malice + strict liability crimes)

Answer 34

Taking an intoxication substance a. w/o knowledge of its property OR b. under duress imposed by another OR c. pursuant to medical advice and w/o knowledge of its intoxicating effects

Answer 35

Treated the same as insanity | = defense to nearly all crimes

Answer 36

- Under age 7 = no criminal liability - Age 7-14 = rebuttable presumption of no criminal liability - Over age 14 = treated as adults

Answer 37

1. Self-defense 2. Defense of others 3. Defense of property 4. Necessity 5. Duress 6. Mistake/ignorance of fact 7. Mistake/ignorance of law 8. Consent 9. Entrapment

Answer 38

- Generally considered affirmative defenses - D has burden of production and burden of persuasion - Usually by a preponderance of the evidence

Answer 39

Not a defense to any crime

Answer 40

Not a defense to any crime

Answer 41

Person may use non-deadly force where 1. REASONABLY NECESSARY 2. to protect one’s self from IMMINENT use 3. of UNLAWFUL force Duty to retreat before using nondeadly force = no

Answer 42

For self-defense (and defense of others), D may NOT act out in PREEMPTION or RETALIATION

Answer 43

For self-defense (and defense of others), D may NOT act out in PREEMPTION or RETALIATION

Answer 44

A person may use deadly force when she 1. Is confronted with IMMINENT DEATH or SERIOUS BODILY HARM and 2. Was NOT the AGGRESSOR and 3. Is confronted with UNLAWFUL force Duty to retreat before using deadly force - Majority view = no - Minority/MPC = yes

Answer 45

- Nondeadly force = no duty to retreat before using nondeadly force in self-defense - Deadly force majority approach = no duty to retreat before using deadly force in self-defense - Deadly force minority view = there’s a duty to retreat before using deadly force in self-defense unless the person using self-defense is in her own home - Deadly force MPC rule = same as minority view

Answer 46

If too much force is used, self-defense is not available as a defense

Answer 47

Defense of others applies if the accused REASONABLY believed that another person was being attacked (and thus that person could have used self-defense) majority view = the defense is NOT negated by the fact that the other person was not entitled to use self-defense, as long as accused reasonably believed so

Answer 48

A person may NOT use deadly force solely to defend property EXAMPLE = spring guns DWELLING EXCEPTION = A person may defend his or her HOME with deadly force a. to protect those inside from personal attack by violent or riotous entry OR b. to prevent someone from entering for the purpose of committing a felony

Answer 49

Reasonable nondeadly force may be used to either a. regain possession of property if 1. that property was WRONGFULLY taken 2. from a person’s IMMEDIATE possession AND 3. the person DEMANDS return of the property BEFORE using such force (OR such a demand is OBVIOUSLY FUTILE) b. OR defend property in one’s possession IF the need to use force REASONABLY APPEARS IMMINENT

Answer 50

A person may use the defense of necessity if he REASONABLY believes 1. that his conduct was NECESSARY to avoid some greater harm AND 2. he has NO other LAWFUL ALTERNATIVE

Answer 51

Generally, the necessity must result from A. pressure from physical forces of NATURE or B. HEALTH-based emergencies

Answer 52

1. Never a defense to HOMICIDE | 2. Can’t be used if D was AT FAULT IN CREATING the necessity (ex = taking a sailboat out despite hurricane warnings)

Answer 53

If a person OR a member of his family is subject to PHYSICAL duress, this excuses the crime

Answer 54

SERIOUS violence OR | Threats of IMMEDIATE serious violence

Answer 55

1. Never as a defense for intentional homicide EXCEPTION = may be used as a defense for felony-murder if it would serve as a defense to the underlying felony 2. Never as a defense where D RECKLESSLY placed himself in a situation in which it was PROBABLE that he would be subject to duress (EX = by joining a dangerous gang that is rumored to kill any member that defects)

Answer 56

a reasonable mistake that NEGATES an ELEMENT of the crime is a defense to ALL CRIMES EXCEPT STRICT LIABILITY crimes

Answer 57

an UNREASONABLE mistake that NEGATES an ELEMENT of the crime is a defense ONLY TO SPECIFIC INTENT crimes

Answer 58

Mistake or ignorance of law is rarely a defense BUT there are a few minor exceptions 1. the law was not adequately published 2. the accused was relying on a judicial opinion that was later overturned 3. knowledge of the law is an “element” of the offense (which is quite rare)

Answer 59

Consent is generally not a defense to a crime, unless it negates an element of the offense and then only as to 1. rape and kidnapping (in certain situations) 2. minor assaults and batteries (ex = a legal boxing match) BUT NOT serious batteries or homicide

Answer 60

Some statutory crimes require prosecution to prove non-consent

Answer 61

D must show that 1. the intent to commit the crime ORIGINATED with law enforcement AND 2. D was NOT PREDISPOSED to commit the crime PRIOR to gov contact

Answer 62

allows the prosecution to introduce character evidence under FRE 405(b) to rebut character as an element of the defense

Answer 63

= acts committed PRIOR TO and IN PREP OF a more serious offense - inchoate offenses are complete offenses, even though the act to be done may not yet have been completed - all inchoate offenses are SPECIFIC INTENT crimes

Answer 64

1. Attempt 2. Solicitation 3. Conspiracy

Answer 65

An act or acts done with the intention of committing a crime, but which fall short of completing the crime

Answer 66

1. SPECIFIC INTENT to commit a crime (even if the completed crime is not a specific intent crime) 2. MPC/majority view = take SUBSTANTIAL STEP toward completing the crime (aka beyond mere preparation) OR 2. @ common law = must come DANGEROUSLY CLOSE to successful completion of the crime

Answer 67

Attempt merges with the completed offense | = D may not be convicted of BOTH attempt and the completed crime assuming there is only one victim

Answer 68

1. Factual impossibility of success 2. Legal impossibility 3. Abandonment

Answer 69

Test = if the facts are as the accused believed them to be, would the accused be guilty of a crime? If so, factual impossibility is not a defense to attempt

Answer 70

- IS a defense, but quite rare - applies only in those situations where the completed act is not illegal (despite the fact that the accused thought it was illegal)

Answer 71

Factual impossibility and legal impossibility often look alike (EX = D charged with murder for shooting a person he thought was alive but was already dead) If unclear, most courts and the MPC assume D is asserting factual impossibility and thus is guilty of the crime

Answer 72

This is not a defense at common law | BUT is a defense under MPC if the abandonment/renunciation is complete and truly voluntary

Answer 73

= Urging, inciting, or asking another person to commit a crime with the specific intent that the crime be committed (The offense of solicitation is complete upon the asking or inciting)

Answer 74

1. the other person was incapable of committing the crime (e.g., was a police officer) 2. the person asked to commit the crime is acquitted of the crime 3. the person asked to commit the crime fails to complete it 4. that the solicitor renounces or withdraws the solicitation (even if before the solicited crime is committed) BUT MPC recognizes renunciation as a defense if the soliciting party prevents commission of the crime

Answer 75

If the crime is committed, the solicitor is guilty of the crime as an accomplice

Answer 76

Solicitation merges with conspiracy, attempt, and the completed offense

Answer 77

= agreement between 2+ people to commit a crime

Answer 78

1. AGREEMENT (express or implied) btwn TWO+ people 2. specific intent to enter into an AGREEMENT (aka words or actions indicating that D intended to join the conspiracy) 3. specific intent to ACHIEVE the OBJECTIVE (aka successful completion of at least one crime) of the agreement 4. an overt act in furtherance of the conspiracy (any act by any conspirator—even one of mere preparation—is sufficient)

Answer 79

common law - requires 2 guilty minds - the second person cannot be a police officer or someone working with the police AKA the bilateral approach to conspiracy MPC - MPC requires only 1 guilty mind for conspiracy AKA the unilateral approach to conspiracy

Answer 80

1. stealing a getaway car 2. buying a gun 3. conducting a dry-run of the crime 4. arranging an additional meeting of the conspirators 5. checking a weather report for the day of the crime

Answer 81

The conspiracy ends when the underlying offense is completed UNLESS the parties also explicitly planned to conceal the crime BUT acts of concealment, by themselves, are not sufficient to continue the conspiracy

Answer 82

Conspiracy does NOT merge with attempt or the completed crime SO a person may be convicted of both conspiracy to commit murder and murder (or attempted murder)

Answer 83

All members of the conspiracy are liable for all foreseeable crimes committed in furtherance of the objectives of the conspiracy (BUT are not liable for crimes committed before they joined the conspiracy)

Answer 84

NOPE | doesn't matter that actual commission of crime was impossible

Answer 85

1. Withdrawal from the conspiracy 2. Protected persons 3. Acquittal of co-conspirators 4. Wharton rule

Answer 86

@ common law - withdrawal from the conspiracy is never a defense to the conspiracy itself (crime is complete as soon as agreement made + overt act committed) - BUT can withdraw from FUTURE crimes committed in furtherance of the conspiracy if 1. person AFFIRMATIVELY notifies all members of conspiracy with SUCH TIME that everyone has an OPP TO ABANDON his plans AND 2. if the withdrawing conspirator has provided MATERIAL assistance, he or she must NEUTRALIZE the assistance OR NOTIFY the police MPC recognizes complete and voluntary withdrawal as a defense to the conspiracy itself if the defendant thwarts the success of the conspiracy (EX = informs the police)

Answer 87

If a statute is designed to protect a particular class, the protected person may not be convicted of solicitation, conspiracy, or accomplice liability for the completed offense EVEN IF the protected person solicits or aids in the crime and/or agrees to commit the crime EXAMPLE = statutory rape laws are designed to protect underage victims and child labor laws are designed to protect children

Answer 88

If all other members of the conspiracy are acquitted, the accused may not be convicted because he had no one with whom to conspire

Answer 89

If the crime, by its very nature, requires two persons, there is no additional liability for conspiracy, unless a third person agrees to participate EXAMPLES = adultery, bribery, incest, dueling, and bigamy

Answer 90

a simple agreement to buy drugs is generally insufficient to establish a conspiracy between the seller and buyer

Answer 91

Under modern law, 3 parties to a crime 1. Principales 2. Accomplices 3. Accessories after the fact

Answer 92

= persons that engaged in the criminal act or omission with the required mental state

Answer 93

= persons that aided, counseled, or encouraged the principales WITH the intent that crime be committed

Answer 94

such aid may occur either before or during the crime

Answer 95

accomplice liability requires that person giving aid/encouragement to principales SPECIFICALLY INTENDS that the crime be successfully COMPLETED (EX = an accomplice to larceny must specifically intend that the owner be permanently deprived of the property) AKA if the accomplice has some purpose other than successful completion of the crime, the accomplice is not guilty (EX = to set a trap for the principal in which he is arrested) BUT mere knowledge that a crime may result from assistance is generally not sufficient

Answer 96

a person used as an ignorant “dupe” is not an accomplice (and the person using the dupe is a principal)

Answer 97

Accomplices are responsible for crimes they aid or encourage and for any other foreseeable (or probable) crimes committed during the course of the contemplated crime (P.S. accomplices are often guilty of conspiracy as well)

Answer 98

If an accomplice withdraws his or her aid/assistance before the crime is committed, this may be an effective defense, with the following caveats: 1. if the accomplice MERELY ENCOURAGED the commission of the crime, the accomplice’s REPUDIATION of that encouragement is enough 2. if the accomplice provided some MATERIAL ASSISTANCE (ex = getaway car), the accomplice must at least attempt to neutralize the assistance by retrieving the material 3. if the above are impossible, the accomplice must notify the authorities or try to stop the crime before the chain of events leading to commission of crime occurs or becomes unstoppable

Answer 99

= persons that assist felons in fleeing justice (felony must be complete at time aid is given) w/ purpose of preventing a conviction (P.S. it's a SEPARATE CRIME with its own punishment)

Answer 100

close relatives of the felon are often exempt from prosecution

Answer 101

1. Rape 2. Statutory rape 3. Bigamy

Answer 102

@ common law = 1. Unlawful carnal knowledge 2. of a woman 3. by a man who is not her husband 4. without her effective consent Modern statutes = - renamed as “sexual assault” or “sexual battery” - made crime gender-neutral - dropped “not her husband” requirement (mostly)

Answer 103

@ common law = “non-consent” was an element of the crime for the prosecutor to prove some modern statutes = consent is affirmative defense requiring D to prove both an honest AND reasonable belief that the victim consented

Answer 104

Consent is not valid when obtained: 1. by FORCE 2. by THREATS of force 3. from someone W/O CAPACITY (ex = underage, drunk, asleep, insane) 4. by FRAUD as to the nature of the “act” (ex = a doctor fraudulently telling his patient that the penetration was caused by a medical instrument) BUT other types of fraud do not invalidate consent (ex = a man fraudulently telling a woman that he will marry her if she agrees to sex)

Answer 105

sex acts with a person under the age of consent

Answer 106

TRICK. this is a strict liability crime, so mistake as to the victim’s age is no defense

Answer 107

Because statutory rape laws are designed to protect minors, the minor involved in a statutory rape CANNOT be found guilty: 1. of CONSPIRACY to commit statutory rape 2. of SOLICITATION of statutory rape 3. as an ACCOMPLICE to statutory rape

Answer 108

statutory rape = strict liability crime BUT attempted statutory rape = specific intent crime

Answer 109

= marrying someone while still having a living spouse

Answer 110

STRICT LIABILITY offense (= mistake as to survival of spouse or finality/effectiveness of divorce generally not a defense) WHARTON RULE crime (= there can be no additional conviction of conspiracy if only 2 people—bigamist and new spouse—are involved

Answer 111

1. Burglary 2. Arson 3. House burning

Answer 112

1. a breaking 2. and entry 3. of the dwelling of another (based on possession, not ownership) 4. at night 5. with the intent to commit a felony or larceny therein

Answer 113

1. includes any OPENING or ENLARGING of locked/unlocked exterior/interior doors/windows 2. includes UNAUTHORIZED use of keys 3. may also occur CONSTRUCTIVELY by force, threats of force, fraud, or entry through a chimney 4. must be PART OF THE DWELLING (a breaking of personal property, such as a portable safe or trunk, is not sufficient)

Answer 114

entry occurs if 1. any part of the BODY breaks the plane of the structure or 2. an INSTRUMENT used to COMMIT THE FELONY (as opposed to an instrument used to break in) breaks the plane of the structure

Answer 115

1. specific intent crime = D MUST have the intent to commit a felony inside (but the felony need not be completed) 2. D must have the intent to commit a felony in the dwelling AT THE TIME of the breaking

Answer 116

If the accused enters a dwelling with the intent to commit a felony therein AND actually does commit a felony, the accused is guilty of burglary and the felony AKA burglary and the underlying felony do not merge

Answer 117

= Burning the dwelling of another (based on possession, not ownership) with malice PRO TIP = MBE Qs often assume that the jurisdiction’s arson law applies to structures other than dwellings

Answer 118

1. starting a fire accidentally but recklessly letting it burn may satisfy the mental state 2. requires FIRE (a non-fire explosion, scorching, water damage, or smoke damage is not enough) 3. requires CHARRING is to the FIBERS of the dwelling itself (not to personal property or fixtures in the dwelling AKA wood walls or floor, not carpet)

Answer 119

1. BURNING of 2. one’s OWN DWELLING 3. with MALICE 4. when the structure is in a city or town or SO NEAR to other homes as to CREATE A DANGER to these structures

Answer 120

1. Perjury | 2. Bribery

Answer 121

= WILLFUL and CORRUPT taking of a FALSE OATH in a judicial proceeding

Answer 122

1. SPECIFIC INTENT crime 2. A statement that is alleged to be perjured must be MATERIAL 3. NOT considered perjury if the witness RECANT BEFORE THE TRIAL ENDS

Answer 123

= CORRUPT PAYMENT/RECEIPT of anything of VALUE in return for OFFICIAL ACTION

Answer 124

1. both OFFERING or TAKING briber is crime under modern law 2. SPECIFIC INTENT crime 3. Wharton rule crime (only can be convicted of conspiracy to commit bribery if third person agrees to participate)

Answer 125

1. Battery 2. Assault 3. Homicide 4. Kidnapping 5. False imprisonment

Answer 126

= unlawful application of force to the person of another resulting in either bodily injury or an offensive touching

Answer 127

1. Battery is a general intent crime | 2. Common law battery is a misdemeanor

Answer 128

sufficient that - D put into motion actions causing harm - D caused the application of force with ordinary recklessness (aka D is substantially certain harmful or offensive contact will occur)

Answer 129

A victim may consent (assuming he or she has capacity) to a simple battery, but not to serious batteries or homicide

Answer 130

1. attempt to commit a battery (this is a specific intent crime) 2. intentional creation (by more than mere words) of a reasonable apprehension in the victim’s mind of imminent bodily harm (this is a general intent crime)

Answer 131

1. Common law assault is a misdemeanor | 2. Under modern law, the term “assault” is often used for both assaults and batteries

Answer 132

1. Murder 2. Voluntary manslaughter 3. Involuntary manslaughter 4. Degrees of murder 5. Felony murder

Answer 133

= unlawful killing of a human being with MALICE AFORETHOUGHT

Answer 134

1. intent to kill (includes “mercy” killings) (NOTE = in some states, if the defendant intentionally uses a deadly weapon on the victim, the jury is permitted to infer “intent to kill”) 2. intent to inflict great bodily injury that could easily lead to death (ex = shoot in the shoulder, strike in head with baseball bat or cement block) 3. reckless indifference or extreme recklessness (ex = shooting in a crowded room or shooting in the direction of people) 4. intent to commit a common law felony (felony-murder)

Answer 135

A YEAR AND A DAY RULE = D’s act must cause victim’s death within one year and a day at common law

Answer 136

The hastening of one’s death may be murder D is liable for the natural and probable consequences of his acts, even if not anticipated AKA D is liable even if not aware of victim’s preexisting condition

Answer 137

= Intentional or reckless killing as a result of adequate provocation (AKA common law murder plus provocation)

Answer 138

adequate provocation exists when there is 1. sudden and intense passion for an average person (objective) 2. provocation in fact (subjective) 3. no “cooling off” time for an average person (objective) 4. no “cooling off” time for the defendant (subjective) NOTE - If D killed another intentionally or recklessly and any of these 4 elements is absent, the defendant is guilty of murder - if all 4 of the elements of voluntary manslaughter are present, D is not innocent, just guilty of voluntary manslaughter instead of murder

Answer 139

For UBE purposes, voluntary manslaughter is probably limited to the following fact patterns 1. defendant finds his or her spouse in bed with another person, 2. defendant is involved in mutual combat, or 3. defendant responds to an assault/battery with too much force (aka more force than necessary for self-defense)

Answer 140

1. Ordinary recklessness (majority) 2. Criminal negligence (minority) 3. Unlawful act manslaughter

Answer 141

(majority) a person may be convicted of involuntary manslaughter if he acts recklessly by consciously disregarding a high risk of death or serious bodily injury

Answer 142

(minority) a person may be convicted of involuntary manslaughter if a reasonable person would have been aware that her conduct created an unreasonable and high risk of death or serious bodily injury

Answer 143

(i.e., misdemeanor-manslaughter) a person may be convicted of involuntary manslaughter for a killing that occurs during the course of a serious misdemeanor or a felony not included on the list of felonies for felony-murder a majority of states do not have unlawful-act manslaughter statutes

Answer 144

Under MODERN LAW in MOST states, all murders are presumed to be second degree murder UNLESS the prosecution proves one of the following (in which case the accused is guilty of first degree murder): 1. deliberate and premeditated killing: brief reflection on idea of killing (ex = lying in wait or ambush) 2. first degree felony-murder: statutorily defined as such (generally burglary, arson, robbery, rape, kidnapping, felonious escape) 3. killings performed in certain ways, as enumerated by statute (ex = by bomb, poison, torture)

Answer 145

TRICK. common law didn't divide murder into degrees

Answer 146

TRICK. MPC doesn't divide murder into degrees

Answer 147

= a killing committed 1. during the COURSE of a common law felony OR 2. during an ATTEMPT to commit a common law felony EVEN IF the killing is accidental

Answer 148

1. Burglary 2. Arson 3. Robbery 4. Rape 5. Mayhem 6. Kidnapping

Answer 149

TRICK The criminal intent is implied from intent to commit the underlying felony

Answer 150

1. The underlying felony must be INDEPENDENT of the killing 2. The death must be the FORESEEABLE result of the commission of a felony 3. The death must have been caused DURING the commission or attempted commission of the felony OR the immediate flight from the felony

Answer 151

a person may receive the death penalty for felony-murder only if he played a substantial role in the felony AND the killing (EX = the getaway driver may be convicted of felony-murder but probably cannot be sentenced to death)

Answer 152

``` there is no felony-murder for 1. battery 2. assault 3. child abuse 4. manslaughter because these crimes are often precursors to murder ```

Answer 153

before the felon reaches a place of safety, such as his home or a hide-out

Answer 154

liability for death of co-felon 1. generally, D NOT liable for death of CO-FELONG caused by RESISTANCE from victim or police (b/c killing by police/victim is justifiable) 2. BUT D is probably liable for FELONY-MURDER if D HIMSELF kills (accidentally or intentionally) CO-FELONG during commission of the felony liability if police/victim accidentally kill police/victim/bystander 1. MAJORITY = agency theory aka D NOT liable 2. MINORITY = proximate cause aka D probably LIABLE

Answer 155

If the defendant has a defense to the underlying felony, then she can use the same defense for felony-murder

Answer 156

Under the doctrine of merger, the defendant may not be convicted of both felony-murder and the underlying felony (e.g., robbery), unless there are multiple victims

Answer 157

MPC does not recognize felony-murder, but it does establish a “rebuttable presumption” of recklessness for killings that occur during the commission of a robbery, rape, arson, burglary, kidnapping, or felonious escape

Answer 158

= The confinement of a person involving EITHER 1. some movement of the victim against the victim’s will or 2. restraint of the victim in a secret place

Answer 159

= location where the victim is unlikely to be found or a location outside of public view

Answer 160

Traditional view = any movement of victim against her will is sufficient majority view (and MPC) = Substantial movement is required (minor movement, like from room to room, incidental to another crime is insufficient)

Answer 161

If the victim is competent to consent and does so, this may negate an element of the crime Minors and mental incompetents may NOT consent

Answer 162

= the unlawful confinement of a person without his or her consent

Answer 163

1. Nearly identical to the tort of the same name 2. It is a general intent crime 3. False imprisonment is a lesser included offense of kidnapping

Answer 164

1. Larceny 2. Embezzlement 3. False pretenses 4. Robbery 5. Extortion 6. Receiving stolen property 7. Forgery

Answer 165

1. An unlawful 2. taking and carrying away (for even a slight distance and for a short period) 3. of the personal property (not intangible or real property or services) 4. of another

Answer 166

If the victim consents to the defendant taking custody or possession of her property because of a misrepresentation made by the defendant, this is “larceny by trick”

Answer 167

- The taking must be by trespass (AKA without consent or consent obtained by fraud) - If a person obtains possession of property with permission (e.g., borrows it with the intent to return) and later decides to retain it permanently, this is not larceny - BUT by contrast, if a person obtains property without permission (borrows it without permission) and then decides to retain it permanently, this is larceny by “continued trespass”

Answer 168

- Larceny is a specific intent crime = D must have the intent to steal (permanently deprive the owner) - Mistake of ownership negates the mental state - Taking a car for a joyride with the intent to return is not larceny (also fun fact: the crime of joyriding is a lesser included offense of larceny)

Answer 169

One who finds lost or mislaid property is guilty of larceny if 1. he intends to keep it at the time he finds it and 2. he knows who owns the property or is reasonably able to discover the owner’s identity

Answer 170

1. Misappropriation of property 2. Of another 3. Held by D in lawful trust NOTE = misappropriation must be by means INCONSISTENT W/ TERMS of the trust (aka includes any unauthorized use of the property, like donating it to charity or investing it in stocks)

Answer 171

EMBEZZLEMENT occurs when the defendant MISAPPROPRIATES an item ALREADY IN HIS lawful possession (ex = trustee, bailee) v. LARCENY occurs when the defendant STEALS an item from the possession of ANOTHER

Answer 172

If an employee misappropriates EMPLOYER’s property, use the following rules 1. Low-level employees generally have only “custody” of their employer’s property and thus are guilty of larceny 2. Management-level employees are generally guilty of embezzlement

Answer 173

- Embezzlement is a specific intent crime = D must act with the intent to defraud - If AT THE TIME OF MISAPPROPRIATION, D intends to RESTORE THE EXACT SAME ITEM of property, there is no embezzlement (BUT this rule does not apply if the property misappropriated is money)

Answer 174

1. obtaining TITLE 2. to property of ANOTHER 3. by intentional or knowing 4. FALSE statement 5. EITHER - common law = of PAST or EXISTING fact OR - MPC = any false statement suffices, even false promise to perform in future

Answer 175

False pretenses is a specific intent crime | = D must act with the intent to defraud

Answer 176

Ask: what did the victim intend to convey to the perpetrator? - If it was title (aka ownership) = false pretenses - If it was possession = larceny by trick

Answer 177

1. The TAKING 2. Of PERSONAL PROPERTY 3. Of ANOTHER 4. From the PERSON or in her PRESENCE 5. By FORCE or INTIMIDATION

Answer 178

Nearly any force will suffice EXAMPLES - purse-snatching = good - clean pickpocketing = no good

Answer 179

- The force or threats may be to gain possession of the property or to retain possession immediately after the theft (ex = using force to escape) - Robbery is a specific intent crime AKA D must act with the intent to steal - Robbery = larceny + either assault or battery (and the larceny, assault, and/or battery merge into the robbery)

Answer 180

1. Acquiring property 2. of another 3. by means of certain ORAL or WRITTEN 4. THREATS NOTE = if the accused uses immediate threats of harm, this is robbery

Answer 181

Extortion is probably a specific intent crime at common law

Answer 182

1. Receiving possession and control 2. of personal property 3. KNOWN (or strongly believed) 4. to have been stolen 5. by another person

Answer 183

D’s “knowledge” that the property was stolen may be inferred from circumstantial evidence (such as proof that the property was acquired from a person of questionable character or that the accused paid a disproportionately low price for the property)

Answer 184

Receiving Stolen Property is a specific intent crime = D must act with the intent to permanently deprive the owner of the property

Answer 185

If the police obtain possession of the property and then deliver it to the accused, the accused is not guilty of receiving stolen property (b/c it is no longer stolen) BUT is guilty of ATTEMPTED receipt of stolen property if he thought he was buying stolen property.

Answer 186

1. MAKING or ALTERING 2. a FALSE WRITING 3. with the SPECIFIC intent to defraud

Answer 187

the writing must represent a document that has AFFECTS THE LEGAL RELATIONS BTWN THE PARTIES examples = promissory note, check, will, deed, contract, loan application, or bank account application