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Criminal Law and Procedure > MBE Criminal Law > Flashcards

MBE Criminal Law Flashcards

1
Q

Burden of proof

A

Prosecution must prove each element beyond a reasonable doubt

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2
Q

Felony

A

Crime that may be punished by death or imprisonment for more than 1 year

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3
Q

Misdemeanor

A

Crime punishable by fine and/or imprisonment for no more than 1 year

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4
Q

Liability for omissions (3 requirements)

A

1) Duty to act
2) Knowledge of the facts giving rise to duty
3) Capacity to act

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5
Q

Situations where duty to act (5)

A

1) Contract
2) Statute
3) Status relationship
4) Voluntary assumption of care
5) Creation of peril

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6
Q

Specific intent crimes (11)

A

1) 3 inchoate offenses
2) Statutory first degree murder
3) Assault
4) Burglary
5) Robbery
6) False Pretenses
7) Embezzlement
8) Forgery
9) Larceny

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7
Q

Defenses for specific intent crimes

A

1) Voluntary intoxication

2) Mistake of fact (unreasonable)

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8
Q

Malice

A

Requires intent or recklessness

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9
Q

Malice crimes

A

Arson and common law murder

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10
Q

Intervening cause

A

D will not be held liable for an unforeseeable intervening cause

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11
Q

Concurrence issues arise most frequently with respect to

A

Larceny and burglary

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12
Q

Battery

A

Unlawful application of force to another resulting in bodily injury or an offensive touching

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13
Q

Assault

A

1) Attempted battery

2) Intentional creation of an reasonable apprehension in victim of imminent bodily harm

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14
Q

Year and a day rule (common law)

A

Death must occur within a year and a day of the homicidal act

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15
Q

Common law murder

A

Causing the death of another with malice aforethought

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16
Q

Malice for common law murder can be shown by (4)

A

1) Intent to kill
2) Intent to cause serious bodily harm
3) Depraved heart (extreme recklessness)
4) Felony murder

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17
Q

Common limitations on felony murder

A

1) D must be guilty of underlying felony

2) Felony must be inherently dangerous

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18
Q

Merger rule

A

Felony must be independent of the killing

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19
Q

Vicarious liability for felony murder

A

1) Proximate cause- All co-felongs liable for any foreseeable deaths during the felony even if committed by 3rd party
2) Agency theory- D liable only if murder is committed by a co-felon

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20
Q

Statutory First Degree Murder

A

Killing with deliberation and premeditation

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21
Q

Second Degree Murder

A

Intentional murders not first degree and depraved heart murder

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22
Q

Voluntary manslaughter (CL)

A

Intentional killing in the heat of passion upon adequate provocation

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23
Q

Requirements for voluntary manslaughter

A

1) Was actually provoked
2) A reasonable person would have been provoked
3) No objective cooling off period
4) D did not actually cool off

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24
Q

Involuntary manslaughter (2)

A

1) Criminal negligence

2) During commission of any crime that doesn’t qualify for felony murder

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25
Q

False Imprisonment

A

Unlawful confinement of a person without consent

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26
Q

Kidnapping

A

False imprisonment that involves moving or concealing the victim

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27
Q

Forcible rape

A

Sexual intercourse without consent accomplished by force or threat of force

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28
Q

Statutory rape

A

Sexual intercourse with someone under the age of consent (majority rule strict liability, MPC allows reasonable mistake of age as defense)

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29
Q

Larceny

A

Trespassory taking and carrying away of personal property of another with intent to permanently retain possession

30
Q

Continuing trespass

A

If D wrongfully takes property and subsequently forms intent to steal, the initial trespass is said to have continued

31
Q

Embezzlement

A

Conversion of personal property of another by one who already had lawful possession of that property with intent to defraud (requires ability to exercise discretion)

32
Q

False Pretenses

A

Obtaining title to personal property of another by an intentional false statement, with intend to defraud

33
Q

Larceny by trick

A

Obtaining custody (not title) as a result of an intentional false statement

34
Q

Robbery

A

Larceny from another’s person or presence by force or threat of immediate injury (no pickpocketing)

35
Q

Forgery

A

Making or altering a writing so that it is false with intent to defraud

36
Q

Burglary

A

Breaking and entering into the dwelling of another at night with the intent to commit a felony or larceny inside

37
Q

Modern statutory changes to burglary requirement

A

Dwelling, nighttime, and breaking

38
Q

Arson

A

Malicious burning of a building (traditionally was limited to dwellings of another)

39
Q

Meaning of possession in possession statute

A

Control over the contraband for a long enough time to terminate possession

40
Q

Receipt of stolen property (definition and mental state)

A

Receiving possession and control of stolen personal property

Mental state- Know that the property has been obtained criminally and intend to permanently deprive the owner of his interest

41
Q

Most important thing to look for in receipt of stolen property cases

A

Was it stolen at the time he received it?

42
Q

Accomplice liability mental state

A

Intent that the crime be committed

43
Q

Scope of accomplice liability

A

Guilty of all crimes that he aids or encourages and all other foreseeable crimes

44
Q

Withdrawal for accomplice liability

A

Encourager- may withdraw by repudiating encouragement before crime is committed

Aider- must either neutralize the assistance or otherwise prevent the crime from happening

45
Q

Accessory after the fact

A

Must help a principal who has committed a felony with knowledge that the crime has been committed and with intent to help the principal avoid arrest or conviction

46
Q

Solicitation

A

Asking someone to commit a crime with intent that the crime be committed (completion not needed)

47
Q

Conspiracy

A

An agreement between two or more people plus an overt act in furtherance of the crime

48
Q

Overt act requirement for conspiracy

A

Any act, even if preparatory, performed by any co-conspirator

WAS NOT REQUIRED AT COMMON LAW

49
Q

Bilateral approach

A

Must have at least two guilty minds for conspiracy at common law

50
Q

Wharton rule

A

Must have at least one more person than is necessary for commission of the crime to be guilty of conspiracy

51
Q

Impossibility as a defense to conspiracy

A

Not a defense

52
Q

Pinkerton Liability

A

D also charged with foreseeable crimes committed by co-conspirator in furtherance of the conspiracy

53
Q

Attempt

A

Requires an overt act beyond mere preparation.

MPC requires substantial step that strongly corroborates criminal purpose

54
Q

Impossibility

A

Factual impossibility- never a defense

Legal impossibility- is a defense

55
Q

Factual impossibility

A

Physical or factual condition unknown to D prevents the underlying crime from taking place

56
Q

Legal impossibility

A

Even if everything happened as D planned it, some legal circumstance or status prevented completion

57
Q

Withdrawal of inchoate offenses (rule and exception)

A

Withdrawal generally not a defense

Exception- Withdrawal from conspiracy cuts off Pinkerton liability after withdrawal

58
Q

Merger Rules

A

Solicitation and attempt merge with completed crime

59
Q

Insanity tests

A

M’Naughten Test- D must prove that he did not know that his conduct was wrong OR did not understand the nature of his conduct

Irresistible impulse- D was unable to control his actions OR unable to conform his conduct to law

MPC - Unable to appreciate the criminality of his conduct OR conform conduct to the requirements of law

60
Q

Incompetency

A

At the time of trial, D cannot either

1) Understand the nature of the proceedings against him
2) Assist his lawyer in preparation of his defense

61
Q

Infancy at Common Law

A

Under 7- no prosecution
Under 14- Rebuttable presumption against prosecution
14+ Prosecution allowed

62
Q

Mistake of fact

A

Specific intent- any mistake
Malice or general intent- reasonable mistake
Strict liability- no mistake defense

63
Q

Self-defense with nondeadly force

A

1) Reasonably necessary
2) To protect against an immediate use
3) Of unlawful force against himself

64
Q

Self-defense with deadly force

A

If facing an imminent threat of death or serious bodily harm

65
Q

Initial aggressor rule

A

D may not use deadly force if initial aggressor unless (a) he withdraws from the fight and communicates the withdrawal or (b) victim suddenly escalates nondeadly fight into a deadly one

66
Q

Retreat rule

A

Majority of states- retreat is not required before using deadly force

67
Q

Use of force to prevent crime

A

Nondeadly force may be used, if reasonable, to prevent breach of peace

Deadly force may only be used to prevent felony risking human life

68
Q

Choice of Evils

A

Defense if D reasonably believed that the conduct was necessary to prevent a greater harm

69
Q

Choice of evils not available where

A

1) D causes death of another person to protect property

2) D is at fault in creating a situation that creates a choice of evils

70
Q

Duress

A

Defense where D was threatened by another with imminent death or serious physical bodily harm.

Cannot be a defense to homicide

71
Q

Entrapment

A

1) Criminal design must have originated with the police

2) D must not have been predisposed to the crime

Criminal Law and Procedure (3 decks)

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