MBE Criminal Law Flashcards
What does homicide refer to?
Either murder or manslaughter
What are the four types of murder?
1) intent to kill
2) intent to inflict serious bodily harm
3) felony murder
4) depraved heart murder
What is intent to kill murder?
Premeditated, specific intent
When can you presume intent for intent to kill?
Never
What is intent to inflict serious bodily harm murder?
Wanted to seriously injure someone but they die as a result
What is felony murder?
While in the course of a felony, defendant kills someone
What felonies fall into felony murder?
Burglary, arson, rape, kidnapping, robbery
What is depraved heart murder?
Reckless disregard for human life
When is something reckless for depraved heart murder?
Knew or should have known this could happen and you did it anyway. If people around = reckless.
What intent is required for manslaughter?
None. Manslaughter doesn’t have intent
What are the two types of manslaughter?
1) Voluntary
2) Involuntary
What is voluntary manslaughter?
Adequate provocation
What is adequate provocation?
Heat of passion and no time to cool off (no time to gain the requisite intent)
What is involuntary manslaughter?
Acted negligently
What would be negligent regarding people for involuntary manslaughter?
If no people around, negligent
What are the elements of attempt?
1) specific intent to commit the crime
2) Overt act or substantial step towards completing that crime
What is conspiracy?
2 or more people agree to commit a crime with the specific intent to do so
Is an act required for conspiracy?
No
What is the unilateral theory of conspiracy?
Just one person needs to decide to commit the crime
Where does the unilateral theory of conspiracy apply?
Only Model Penal Code
What is the co-conspirator rule?
If there is an agreement (underlying conspiracy), any crime(s) committed by one conspirator the other conspirator will be guilty of all those crimes as well so long as in furtherance of the conspiracy
Can you withdraw from a conspiracy?
No
How to limit conspiracy?
Withdraw from other crimes by giving notice to the co-conspirator or police prior to the crime being committed
What is solicitation?
Asking, inciting, counseling, advising, urging, or commanding someone to commit a crime with the intent that the person solicited actually commit the crime
What is the intent level for solicitation?
Specific intent that the person will do it (from motivation)
Are words alone enough for solicitation?
Yes, just need specific intent that someone else will commit the crime
What are the elements of burglary?
1) Breaking
2) Entering
3) Dwelling of another
4) Intent to commit a felony
5) At Night
What constitutes a breaking (for burglary)?
Any opening (Ex: opening a door or window)
What is considered an entering (for burglary)?
Any part of body that crosses the threshold
When is the intent to commit a felony required for burglary?
When you crossed that threshold
What is larceny?
Trespassory taking/carrying away. Took someone’s stuff w/o their permission. Need intent to steal
What is the mental state required for larceny?
Intent to steal when you touched or moved the other person’s item
Can you take back larceny?
No. Once guilty, guilty forever even if put back
What is robbery?
Trespassory taking/carrying away property of another by force, fear, or intimidation
What perspective is robbery viewed from?
Always from the victim’s perspective
What are the two definitions of assault?
1) intent to commit a battery; or
2) Intentionally placed someone in imminent apprehension of bodily harm
Are words alone enough for assault?
No
What is larceny by trick?
Obtain possession of another’s property by trick/lie/misrepresentation
What is larceny by false pretense?
Acquired TITLE to the property by trick or by buying/selling with a lie (doesn’t matter if actually intended to pay, just that misrepresented fact)
What is the difference between larceny by trick and larceny by false pretense?
LBT = Obtain possession LBFP= Obtain title
What is embezzlement?
Lawful possession of someone else’s property, but convert it to your own use
When does accomplice liability kick in?
Before the actual crime
What is accomplice liability?
Aid and abet someone to commit a crime with the intent to do so
Is knowledge alone enough for accomplice liability?
No. Need to do something to help
What happens if accomplice completes the crime?
Other accomplice can be guilty of the underlying crime itself and other foreseeable crimes
When does accessory after the fact kick in?
After the crime is committed
What is accessory after the fact?
Know of a completed crime and you help someone evade arrest or conviction
Can you be guilty of underlying crime if accessory after the fact?
No
What is battery?
Unlawful application of force. Once there’s touching –> guilty
What is arson?
Malicious burning of the dwelling of another
What is a synonym for malicious?
Reckless
When can you use intoxication as a defense?
When charged with a specific intent crime (Trying to negate intent)
What are the elements of the McNaughton test?
1) Mental disease
2) that prevents you from
3) appreciating the nature and quality of your actions (or knew the nature and quality but was so deranged he did not know what he was doing was wrong)
What does it mean to not appreciate the nature and quality of your actions?
Don’t know what you’re doing is wrong/criminal
When is defense of mistake appropriate in general intent crimes?
If mistake was reasonable
When is defense of mistake appropriate in specific intent crimes?
Always, doesn’t matter if reasonable or not
Is legal impossibility a defense?
Yes, always becuase basically saying elements are not met
Is factual impossibility a defense?
No, never.
What are two things necessary for conspiracy?
1) Intent to agree; and
2) intent to achieve the objective of the conspiracy
What are the elements for larceny by false pretenses (LBFPT)
1) obtaining title
2) to the property of another
3) by an intentional false statement of past or preexisting fact
4) with the intent to defraud the other
For it not to be embezzlement, what is required?
No embezzlement if defendant intends to restore the exact property taken
In most state, murder is of the second degree unless ____, in which case the murder is of the first degree
Deliberation and premeditation can be shown (intent to kill) or the killing occurred during an enumerated felony (felony murder)
What must the prosecution prove to convict a defendant of felony murder?
1) Defendant committed a felony
2) killing must take place while the felony is being committed
3) felony must be independent of the killing
4) death must be a foreseeable result of the commission of the felony
What does it mean that a felony must be independent of the killing for felony murder?
E.g., felony manslaughter cannot be the underlying felony for felony murder
If parent is charged with murder for not seeking medial attention for an illness, why would they be not guilty?
They would be not guilty if no intent to kill the child. Not seeking medical attention is insufficient for the finding of malice aforethought.
If parent is charged for not getting medical attention for a child, what crime would they likely be guilty of?
Involuntary manslaughter (if no intent to kill)
What is the mental state for robbery?
Intent to permanently deprive the owner of their property
Can voluntary intoxication be a defense to robbery?
Yes, to negate intent to permanently deprive
What if someone uses a weapon to force someone to allow them into their home/dwelling?
Would still be guilty of burglary because that is sufficient for breaking and entering
If principal is not convicted of the underlying crime, or not even charged, what is the effect on the accomplice?
No effect. An accomplice may be convicted even if principal is not
Who can prosecution go after in terms of accomplice liability?
Prosecution may pursue accomplice liability for one who aided, abetted, or facilitated the commission of that crime
What is the effect for accomplice liability of a person who urges a criminal perpetrator to flee the scene of the crime?
Not enough to constitute aiding, abetting, or facilitation commission of that crime
Does attempt have a mental state?
Yes, always. Intent to break the law
What is the mental state in attempt to break a strict liability crime?
Intent to break that strict liability law
What is the mental state for an accomplice?
Accomplice must have the mens rea necessary to actually commit the crime by direct action
When can you use mistake as a defense to a strict liability offense?
Never.
What is kidnapping?
The movement of a human being against the person’s will
What are the elements of larceny?
1) the taking and carrying (the slightest movement is insufficient)
2) without consent
3) and with the intent to permanently deprive the owner of the property
When can you use a mistake of fact defense?
Only when it negates the state of mind required for the crime
Is mistake of fact a valid defense to both murder and manslaughter?
Yes, if jury believes the mistake of fact made by the defendant was reasonable
What is required for receiving stolen property?
Defendant must have received stolen property that he knew was obtained through a criminal offense with the intent to permanently deprive the owner of his interest in the property
What is the intent required in felony murder?
The intent to commit the underlying felony
What is the “agency theory” limitation to felony murder?
The defendant will be found liable for the death of an innocent party only if the felony was committed by a defendant or an accomplice
Under MPC, what does it mean to kill willfully?
Not purposeful, but knowingly
When is the moved property considered robbed?
When the property is taken from the victim’s person or presence (a location reasonably close to the victim)
Is a threat to damage property sufficient for robbery?
No, unless the threat was to destroy the victim’s dwelling house
For it to be considered robbery, when must the force or threat of force take place?
Can be used to gain possession of the property or to retain possession immediately after such possession has been accomplished (like using force to physically keep the person from taking their property back)
Right to be free from double jeopardy comes from which amendment?
Fifth Amendment
Under the Blockburger test, two crimes do not constitute the same offense if:
EACH crime requires proof of an additional element that the other crime does not require
What would be a defense to breaking and entering?
Place is open to the public (so could not break in)
What are the elements of accessory after the fact?
someone who assists
1) a person who has committed a crime
2) after the crime
3) with knowledge that the person committed a crime
4) with the intent to help the person avoid punishment
What are the elements of attempt?
1) specific intent to commit the crime; and
2) overt act in furtherance of that event
Can a person be guilty of attempt if the circumstances are not what they think?
Yes
What felonies count for felony murder?
B- Burglary A- Arson R- Rape R- Robbery K- Kidnapping
Is mere knowledge that a crime will result from the aid provided be sufficient for accomplice liability?
No (at least where the aid involves sale of ordinary goods at ordinary prices)
Duress is a defense to all crimes except what?
Except intentional homicide (in some cases can reduce it to manslaughter though)
Can officer use deadly force to someone running away who has a gun?
Yes, police are generally entitled to use whatever force is reasonably required, including deadly force, to apprehend a felon who poses a threat of serious bodily harm to the officer or others
Is voluntary intoxication a defense to reckless?
No, only a defense to specific intent crimes
When is someone reckless?
Consciously disregards a substantial or unjustifiable risk that a prohibited result will follow and disregard is a gross deviation from the standard of reasonable care
What does MPC knowing mean?
Aware that his conduct will necessarily or very likely cause such a result
What is the common law definition of arson (minority view)?
Malicious burning of the dwelling house of another
What is the majority rule for arson?
Malicious burning of any structure or dwelling
What is needed for arson?
Charring (not just blackening)
What is the official definition of depraved heart murder?
Reckless indifference to an unjustifiably high risk to human life
What is required to establish malice in an arson case?
Prosecution need only show that the defendant displayed extreme recklessness or recklessly disregarded an obvious or high risk that the burning of the structure would occur
If accidentally lit a fire and had the opportunity to put it out but didnt, guilty of arson?
Yes (look at recklessness)
Substantial step is relevant to what crime?
Attempt
What does homicide require?
Result and causation
so, if died because of something else, not guilty
Who to put down as the intended victim of an attempted murder?
The person who the attempted murderer intended to kill and took an overt act to kill
(Ex: If man standing in front of him was target and shot but man was not the person he thought he was, man would be the victim, even if shot hit someone else)
What is the MPC test for insanity?
1) diagnosed with mental disorder
2) at the time of the incident couldn’t appreciate the criminality of her conduct or conform her conduct to the requirements of the law (lacked ability to control impulse)
Reliance by the promisee on a promise to make a future gift does not make the promise enforceable *UNLESS what?
Injustice can be avoided only by such enforcement (some gift promises are enforceable under a reliance theory)
Can you raise a defense that you were trying to apprehend a criminal?
Yes, but cannot use deadly force to do so
What is the continuing trespass theory of larceny?
When one takes the property with the intent to return it, but later keeps it, larceny arises at the moment the defendant decides not to return the property
What does retreat doctrine mean?
You can’t resort to deadly force in self-defense if you can safely avoid the risk of harm or death
(No duty to retreat unless he intends to use deadly force)
