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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
False Imprisonment
Unlawful confinement of a person without consent
26
Kidnapping
False imprisonment that involves moving or concealing the victim
27
Forcible rape
Sexual intercourse without consent accomplished by force or threat of force
28
Statutory rape
Sexual intercourse with someone under the age of consent (majority rule strict liability, MPC allows reasonable mistake of age as defense)
29
Larceny
Trespassory taking and carrying away of personal property of another with intent to permanently retain possession
30
Continuing trespass
If D wrongfully takes property and subsequently forms intent to steal, the initial trespass is said to have continued
31
Embezzlement
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
False Pretenses
Obtaining title to personal property of another by an intentional false statement, with intend to defraud
33
Larceny by trick
Obtaining custody (not title) as a result of an intentional false statement
34
Robbery
Larceny from another's person or presence by force or threat of immediate injury (no pickpocketing)
35
Forgery
Making or altering a writing so that it is false with intent to defraud
36
Burglary
Breaking and entering into the dwelling of another at night with the intent to commit a felony or larceny inside
37
Modern statutory changes to burglary requirement
Dwelling, nighttime, and breaking
38
Arson
Malicious burning of a building (traditionally was limited to dwellings of another)
39
Meaning of possession in possession statute
Control over the contraband for a long enough time to terminate possession
40
Receipt of stolen property (definition and mental state)
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
Most important thing to look for in receipt of stolen property cases
Was it stolen at the time he received it?
42
Accomplice liability mental state
Intent that the crime be committed
43
Scope of accomplice liability
Guilty of all crimes that he aids or encourages and all other foreseeable crimes
44
Withdrawal for accomplice liability
Encourager- may withdraw by repudiating encouragement before crime is committed Aider- must either neutralize the assistance or otherwise prevent the crime from happening
45
Accessory after the fact
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
Solicitation
Asking someone to commit a crime with intent that the crime be committed (completion not needed)
47
Conspiracy
An agreement between two or more people plus an overt act in furtherance of the crime
48
Overt act requirement for conspiracy
Any act, even if preparatory, performed by any co-conspirator WAS NOT REQUIRED AT COMMON LAW
49
Bilateral approach
Must have at least two guilty minds for conspiracy at common law
50
Wharton rule
Must have at least one more person than is necessary for commission of the crime to be guilty of conspiracy
51
Impossibility as a defense to conspiracy
Not a defense
52
Pinkerton Liability
D also charged with foreseeable crimes committed by co-conspirator in furtherance of the conspiracy
53
Attempt
Requires an overt act beyond mere preparation. MPC requires substantial step that strongly corroborates criminal purpose
54
Impossibility
Factual impossibility- never a defense | Legal impossibility- is a defense
55
Factual impossibility
Physical or factual condition unknown to D prevents the underlying crime from taking place
56
Legal impossibility
Even if everything happened as D planned it, some legal circumstance or status prevented completion
57
Withdrawal of inchoate offenses (rule and exception)
Withdrawal generally not a defense Exception- Withdrawal from conspiracy cuts off Pinkerton liability after withdrawal
58
Merger Rules
Solicitation and attempt merge with completed crime
59
Insanity tests
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
Incompetency
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
Infancy at Common Law
Under 7- no prosecution Under 14- Rebuttable presumption against prosecution 14+ Prosecution allowed
62
Mistake of fact
Specific intent- any mistake Malice or general intent- reasonable mistake Strict liability- no mistake defense
63
Self-defense with nondeadly force
1) Reasonably necessary 2) To protect against an immediate use 3) Of unlawful force against himself
64
Self-defense with deadly force
If facing an imminent threat of death or serious bodily harm
65
Initial aggressor rule
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
Retreat rule
Majority of states- retreat is not required before using deadly force
67
Use of force to prevent crime
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
Choice of Evils
Defense if D reasonably believed that the conduct was necessary to prevent a greater harm
69
Choice of evils not available where
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
Duress
Defense where D was threatened by another with imminent death or serious physical bodily harm. Cannot be a defense to homicide
71
Entrapment
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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