Kaplan Pgs 310-332 Crimes Against the Person Flashcards
1
Q
What does the MBE test as far as the law regarding criminal law?
A
The common law. It often refers to it as “the law that is common to the state” or “the generally prevailing view“ or “the generally excepted view“
2
Q
On the MBE for criminal law, what approach should we always apply?
A
Majority rule. Often the common law is the majority rule, but if there is a divergence, then always apply the majority rule
3
Q
What is the difference between a felony and a misdemeanor?
A
– felony: crime punishable by death or by imprisonment for more than one year
– misdemeanor: crime punishable by imprisonment for less than one year or by a fine only
4
Q
At common law, what are the felony crimes?
A
– M: mayham
- R: Robbery
and
– M: manslaughter
- R: rape
- S:
– L: larceny
– A: arson
– M: murder
– B: burglary
5
Q
At common law what are misdemeanors?
A
Any crime that is not a felony
6
Q
What is the difference between Malum Prohibitum and Malum In Se?
A
- malum prohibitum: an act is wrong just because it violates a statute. I.e.: speeding or not registering a firearm
– malum in se: an act that is inherently wrong or evil and involves a general criminal intent or moral turpitude. I.e.: murder, theft, battery
7
Q
What is an ex post facto law and why is it prohibited?
A
It is a law that acts retroactively to make conduct criminal, to enforce stricter punishment, or to alter procedural or evidentiary rules so that a D can be more easily convicted.
People have to be on notice that conduct is forbidden, so these laws cannot apply retroactively
8
Q
What is actus reus?
A
A guilty act
9
Q
What are ways that actus reus can be accomplished?
A
– through a voluntary act that causes an unlawful result
– an omission to act if the D is under a legal duty to act, or
– vicarious liability where the D is responsible for the acts of someone else
10
Q
When can criminal liability result from an omission to act?
A
- if there was a legal duty to act, and
– the D can physically perform the act
11
Q
In what circumstances would a legal duty to act arise?
A
PRC v SLC:
– PERIL: if you created the risk of peril to another: you push someone in a pool who cannot swim, then you should try to save them
– RELATIONSHIP: parent and spouse
– CONTROL CONDUCT:
- VOLUNTARY: if voluntary undertaking has begun: you cannot unreasonably abandon if it would worsen a victim’s plight
- STATUTE: filing a tax return
- LANDOWNER:
– CONTRACT: a lifeguard, nurse, or guide has a duty to rescue
12
Q
What kind of acts can a person not be held liable for?
A
- reflexes
- compulsive acts
- performed while unconscious
- involuntary
- mean or bad thoughts that have no accompanying action
13
Q
Do habitual acts that someone is unaware of count as being conscious and voluntary?
A
Yes, so if a chain smoker lit up a cigarette in a “no smoking” area without realizing it, he can still be prosecuted
14
Q
What are the two ways to have specific intent?
A
- desiring that your conduct bring about a particular result
– being substantially certain that your conduct will have a particular result, even if you don’t necessarily want that result
15
Q
What are the specific intent crimes?
A
- first-degree murder
– theft crimes [larceny, robbery, extortion, embezzlement, false pretenses, receiving stolen property]
– burglary
– inchoate crimes [solicitation, conspiracy, attempt]
– assault
16
Q
What is general intent?
A
Commission of an unlawful act without a specific mens rea. A general bad state of mind will suffice as long as the criminal act is committed voluntarily and purposely
17
Q
What are the general intent crimes?
A
- battery – involuntary manslaughter - rape – kidnapping – false imprisonment – depraved heart murder
18
Q
If an exam question does not speak to the specific intent that is required, malice, or strict liability, and doesn’t state a mental state requirement, what should you assume?
A
Assume that general intent is required because it is the catchall
19
Q
What is the intent for malice?
A
When the defendant acts intentionally or with reckless disregard of an obvious or known risk
20
Q
What are the malice crimes?
A
Arson and common law murder
21
Q
What are the three categories of strict liability crimes?
A
– regulatory: traffic/vehicle violations, administrative statutes
– public welfare: regulation of firearms, food, drugs
– morality crimes: statutory rape, bigamy
22
Q
What is the essence of the transferred intent doctrine?
A
It preserves liability when a defendant intends criminal conduct against one party but instead harms another party.
23
Q
Transferred intent only applies to what kinds of crimes?
A
Completed crimes, not attempt crimes. Because attempt requires specific intent
24
Q
If a defendant is upset at his boss and fires a gun at him, but the shot misses the boss and hits the wall right by a coworker, is the defendant guilty of attempted murder of the coworker?
A
No, because he did not intend to kill the coworker, so transferred intent only applies to completed crimes, and not attempted crimes
25
What is required for timing with regard to the mental state and the act of a crime?
- there should be concurrence between these two,
| – but the intent should also actuate or put into action the act or omission
26
What are the three tests that can be applied for actual causation?
– but-for test
– substantial factor test when there are multiple causes
– if the defendant's conduct speeds up an inevitable death, even for a brief amount of time
27
What are the different types of causes that could happen for proximate cause?
- direct or indirect cause
| – superseding, dependent, or independent intervening cause
28
What is the difference between an intervening force that is dependent and one that is independent for proximate cause?
– dependent: the intervening force is a result of a response to the defendant's act. This means D is still liable
– independent: the intervening force would’ve occurred regardless of the defendant’s act
29
In what situation would a dependent intervening cause supersede the defendant's act?
Only if it was a totally abnormal response to the defendant's act
30
In what situation will an independent intervening cause not supersede the defendant's act?
If the force was forseeable
31
What is a better definition for homicide?
An action of the defendant that causes the death of another human being, with criminal intent, and without legal excuse or justification
32
What generally determines the difference between the homicide crimes?
The mental state of the defendant
33
What is the definition of common law murder?
The unlawful killing of a human being with malice aforethought
34
What are the three different ways that actus reus can happen?
– a voluntary act
– an involuntary act that comes from a voluntary act [person often has seizures driving a car]
– omission to act when there is a duty to act
35
What is the common law requirement for a living person?
Someone “born alive“. But a state can extend criminal liability to include a fetus after the first semester
36
Why is suicide not considered to be homicide?
Because the death must be caused by someone other than the victim, and in the case of suicide, the death is caused by the victim
37
If you persuade or aid another person to commit suicide, is that enough for you to be guilty of murder?
Yes
38
What are some examples of when a person would be considered the actual cause of another person's death even though the victim was already dying?
If the defendant brought the victim's death about more quickly. For example through something like disconnecting life support
39
If an intervening cause kills the victim before the defendant can complete his murderous act, what will happen?
He will be acquitted because a dead person cannot be killed
40
How does the year and a day rule apply to murder?
At common law, if the victim died more than one year and one day after the defendant's act, then the defendant was not the proximate cause of the killing. But most states have either eliminated this rule or extended the period
41
What are some situations where a defendant might not have personally committed any act that amounted to the murder of someone else, but will still be legally responsible for the killing?
- if he was an accomplice to the killer
– if it was a reasonably foreseeable result of a conspiracy
– if a third-party and the D together caused the victim's death
– if it happens during an inherently dangerous felony
42
Generally speaking if you do not prevent injury or death to another person, are you criminally liable?
Only if you had a duty to act and you failed to act
43
If a victim has an unusual condition that contributed to his death, is the defendant still guilty of murder?
Yes, because you take your victim as you find him
44
At common law, what is the mens rea for murder?
Malice
45
What are the rules regarding mental state for common law murder?
```
Four categories that meet the malice standard:
– intent to kill
– intent to cause serious bodily harm
– depraved heart murder
– felony murder
```
46
What is serious bodily injury?
Significant but non-fatal injury
47
What is the mental state that is required for felony murder?
Intent to commit the underlying felony
48
What are the two different approaches to whether or not an offence is considered to be inherently dangerous so that the felony murder rule will apply?
– majority: uses an abstract test that considers only the elements of the felony (dangerous by definition)
– minority: applies a contextual test that looks at the particular circumstances of the case to determine if the felony is considered to be inherently dangerous (dangerous by manner of commission)
49
What are the major approaches to vicarious liability under felony murder?
- common law: all felons are liable for any homicide that happens during the felony. No exceptions
– majority agency theory: no liability when a non-felon causes the death. Liability only exists when the killing is committed by one of the agents of the felony
– minority rule: charges can be based on killings by non-felons such as victims, bystanders, or police officers. Red line exception: co-felons are not guilty when the killing comes from a justifiable or excusable homicide (like a police or a victim shoots one of the co-felons)
50
How does degrees of murder fit into homicide?
Degrees of murder is not recognized at common law. Now most jurisdictions distinguish between these based on the state's murder statute
51
What are different things that would count as first-degree murder?
– intent to kill murder committed with premeditation and deliberation
– felony murder
– murder accomplished by lying in wait, poison, terrorism, or torture
52
What is generally required to prove premeditation and deliberation for first-degree murder?
- some jxs just require an intent to kill
| – most jxs require a reasonable period of time for premeditation and some evidence of reflection for deliberation
53
If someone killed someone while they were voluntarily intoxicated, is there a way that they could avoid first-degree murder charges?
Yes, if they can prove that the intoxication stopped them from acting with premeditation or deliberation
54
What are situations when second-degree murder would apply?
- if malice came from intent to inflict serious bodily injury
– if the defendant acted with wanton and wilful misconduct
– felony murder if the underlying felony is not specifically listed in the applicable first-degree murder statute
55
Is the rundown for dealing with homicide on an essay?
1) establish a homicide
2) murder, which is common law.
- Requires actual and proximate causation, plus
- a mental state that comes from malice (intent to kill, intent to cause there’s bodily harm, depraved heart murder, felony murder)
3) modern lot murder by degrees
– 1stdegree: intent to kill that is premeditated and deliberated
– 2nddegree: anything that doesn’t meet first- degree
4) voluntary manslaughter:
- adequate provocation: A reasonable person would have lost his self-control and not been able to cool off
– mitigating circumstances: either imperfect self-defence or minority view for diminished mental capacity
56
What is voluntary manslaughter?
And intentional killing that is mitigated by adequate provocation or other circumstances that negate malice aforethought
57
What is considered to be adequate provocation for voluntary manslaughter?
Objective test that asked if a reasonable person would lose self-control. The time period between the heat of passion in the foetal act can’t be long enough for a reasonable person to have cooled off.
58
What are some examples of things that courts will commonly find could provoke someone to kill and it would be classified as voluntary manslaughter?
– Victim of a serious battery
– threat of a deadly force
– finding spouse engaged in sexual contact with another person
59
What are situations where court will not find that there is voluntary manslaughter as a mitigation?
That if the defendant actually cooled off
| – if the defendant killed the victim while he was not in the heat of passion
60
What are two situations that might allow for mitigation of murder to voluntary manslaughter?
– Imperfect self-defense
| – diminished mental capacity [only applied in a minority of states]
61
What are the two different ways that an imperfect self-defence could result in mitigation of murder to voluntary manslaughter?
Dash if the defendant started the altercation
| – if the defendant unreasonably but I honestly thought that harm was eminent or that deadly force was necessary
62
What does involuntary manslaughter?
An unintentional killing without malice that is caused by recklessness, criminal negligence, or during the commission of an unlawful act
63
Examples of criminal negligence?
Dash miss handling a loaded weapon
– dangerous operation of a motor vehicle
– driving while drunk
64
Does a defendant have to be consciously aware of the risk that he is creating in order for involuntary manslaughter to apply?
No, they just have to be gross negligence or criminal negligence
65
What is involved in the misdemeanour manslaughter rule, and where does it fit?
This is an unintentional killing that happened during the commission of a misdemeanour that is Malum In Se. it fits under involuntary manslaughter
66
What is the only time that a death that results from a Malum prohibitum crime will be enough for in voluntary manslaughter?
When the killing is either a foreseeable consequence of the unlawful conduct or amounts to criminal negligence
67
What are common examples of involuntary manslaughter?
– Inflicting a superficial cut on a haemophiliac who dies from loss of blood
– battery that results in death because the victim had an eggshell skull
68
What is criminal battery?
The intentional, reckless, or criminally negligent application of force to the victim.
69
What type of intent is criminal battery?
General intent. It can be committed by an act that is reckless, negligent, or done with knowledge that it would result in criminal liability
70
If someone tells their dog to attack someone else, are they guilty of battery even though they didn’t directly touch the other person question
Yes, because you can be guilty of battery if you apply force directly or indirectly. This can include putting a force in motion
71
If someone fires a gun into another person’s house and the bullet smashes the window and a shard of glass hit someone in the house in the eye, why would that be considered a battery?
Because the act could have been considered criminal negligence since it created a high degree of risk of death or serious injury, or recklessness since it involves a conscious disregard of a substantial and justifiable risk
72
What is the duration is when a battery could be elevated to aggravated battery?
Dash if it causes the victim serious bodily injury
– if the defendant used a deadly weapon
– if he battered a woman, child, or law-enforcement officer
73
What are defences to battery?
– Consent
– self-defense/defence of others
– prevention of crime
74
What is criminal assault?
At modern law, it is:
– attempting to commit a battery, or [CL only recognizes this prong)
– intentionally causing the victim to fear an immediate battery
75
At common law, would an intent to frighten someone be considered an assault?
No, because it common law assault can only be committed by attempting to commit a battery. So if you weren’t intending to physically touch or injure the victim, that would not be enough
76
Word recklessness or negligence that come close to causing an injury be enough for common law assault?
No, because there must be an intent to injure
77
If a victim is not aware of actions that constitute an assault, can they still be criminal assault?
Yes
78
If a defendant lacks the ability to consummate a battery, let me he can’t be charged with criminal assault?
- majority: No. So if the defendant intended to shoot the victim, pulled the trigger, but there are no bullets in the weapon, that doesn’t matter.
– Minority: the defendant must have the present ability to commit the battery
79
Is the apprehension element of a criminal assault reasonable or subjective?
It is reasonable. A reasonable person must’ve expected eminent bodily harm
80
Are words alone enough to create apprehension for a criminal assault?
Generally no. They must be coupled with an overt act
81
What is required for apprehension for criminal assault?
Reasonable expectation or anticipation that the defendants act a result in immediate bodily harm. The person does not have to be afraid
82
Would it be considered a criminal assault if there was a threat of future action?
No, the threat must be to commit a present battery
83
What my speed is written contacts for assault?
It can be offensive, insulting, or painful
84
If a feared battery is accomplished, what happens?
The assault and battery merge and the defendant is only guilty of battery
85
How do you get aggravated assault?
If the defendant commits an assault with a dangerous weapon, or
– if D acts with the intent to seriously injured, rape, or murder the victim
86
What is Mayham?
Dash an unlawful act by means of physical force
– that resulted in injury:
• deprives a human being of a member of his body
• disabled, disfigures, or makes a limb useless
• cuts or disables the tongue, puts out an IV, slits the nose/year/lip
That was done maliciously
87
Does the malice requirement for Meyhem include?
Dash intent to vex, annoy, or injure someone else
88
What’s the major difference between modern and common law mayhem?
Common law focusses on injuries that reduce the victims fighting capabilities and disable his use of bodily parts that he needs for fighting
89
Different ways that you can restrain a victim for false imprisonment?
Dash erect physical barriers
– apply force
– threaten to apply force
– invalidly assert authority
90
How are kidnappings classified at common law and modern law?
Yes common law: misdemeanor
| – modern law: felony
91
What are the degrees for MPC kidnapping?
– Kidnapping is a first-degree felony unless the defendant voluntarily releases the victim alive and in a safe Place before trial, then it is a second-degree felony
92
What is necessary in order for a kidnapping to be increased to a aggravated kidnapping that deserves a higher punishment?
Dash use of a deadly weapon
– victim suffer serious bodily injury or sexual assaults
– victim is held for ransom
– victim is a small child
93
You’re the federal kidnapping statute, what is the minimum prison sentence?
20 years if the victim is under 18 and the offender is over 18, and the defendant is not the parent, grandparent, brother, sister, aunt, uncle, or someone with legal custody
94
In order for a rape to occur is it necessary that emission occurs?
No, penetration is all that is required
95
Is it possible for a husband to rape his wife?
Not at common law. But modernly every state says this is possible
96
Is rape limited to one gender?
As a common law it had to be a male against a female
| – modernly, it can occur regardless of gender
97
What kind of penetration is generally included in rape?
Vaginal or anal, but other acts of sexual intercourse can be included
98
What happens with non-consensual sexual acts that are not specifically rape?
Those are usually classified as sexual assault or sexual battery
99
What are the age assumptions with regard to rape?
Dash common law: males under 14 were conclusively presumed in capable of rape
– modernly: males under 14 or rebuttable presumed in capable
100
Is resistance necessary in order for a defendant to be charged with rape?
– A common law: generally there had to be resistance or opposition, and mere words were not enough. The resistance had to be by an act
– moderately: verbal resistance is enough
***The resistance must be in good faith and not feigned
101
What are the factors to consider in deciding whether there was resistance enough to charge a rape?
– The parties relative strength to lend us the degree of force that was use
– the fear instilled in the victim
– the victims age
– the victims physical and mental condition
– all of their circumstances
102
What are the situations that would make a victim in capable of consenting and thus any sexual intercourse would’ve been rape?
– The effect of drugs or alcohol
– unconsciousness
– age
103
What are the two defences to rape?
Ask the defendant had a reasonable and good faith mistake of fact about the victims consent
–
104
What is involved in the defence to rape where the defendant had a reasonable in good faith mistake of fact about the victims consent?
That subjective: the defendant honestly and in good faith believed the victim consented to sex. Defendant has to introduce evidence that the victim the victims conduct provide a basis for this conclusion
– objective: looks at whether the defendant mistake was reasonable according to society
105
If a defendant claims that his victim consented to sexual intercourse, how will the court determine whether a rape happened or not?
The jury will have to weigh the evidence and decide which witness is telling the truth.
– Jury considers the victims state of mind and decides if there was actual consent to the six. If not,
– the jury looked at the events from the defendants perspective to decide if the way that the victim expressed her lack of consent was so equivocal that the defendant would assume there was consent
106
Is it possible for someone to be convicted of statutory rape on their spouse?
No
107
Is it possible for a defendant to be guilty of both statutory and forcible rape?
Yes, but in most restrictions he would be sentenced to the more serious crime because statutory rape would merge
108
What is bigamy?
The crime of marriage by one individual to more than one other person
109
What is incest?
Sexual relations between individuals were closely related
110
What is included in the crimes against the person?
```
Dash homicide: this includes murder, felony murder, degrees of murder, involuntary involuntary manslaughter
– assault and battery
– Meyhem
– false imprisonment
– kidnapping
Dash rape
– bigamy
– incest
```
