Midterm Exam Flashcards
Complaint
Probable cause a crime was committed
Probable cause that that person committed the crime
Actus Reus
Criminal act
Mens Rea
Culpable mental state
Most crimes need?
Actus Reus
Mens Rea
Concurrence
Strict Liability
Only Actus Reus necessary
Mens Rea Test
- Cannot presume that if drafters left out Mens rea it means that they did not want it as part of the statute
- Malum in se v. Malum prohibita (Malum in se = inherently evil needs Mens rea)
- Public health - less need for Mens rea
- How much harm is done to the public
- “Strict liability”
- Legislative history
- How easy to prove intent
- Opportunity to ascertain true facts
- The # of prosecutions expected
Specific intent
“With intent to…”
General intent
Any other charge
Inchoate Crimes
Incomplete Crimes
1. Attempt
2. Conspiracy
3. Solicitation
4. Aiding and abetting
Attempt
Substantial step
V.
Preemptory conduct
Conspiracy
Agreement to commit a crime
Some jurisdictions require furtherance
To get out you may have to undue, report, or notify
Solicitation
Persuading another person to commit a crime
Aiding and Abetting
Natural and probable consequence
Some jurisdictions requires co-defendants to have the intent to commit the crime
Some jurisdiction only require co-defendants to have intent to aid and abet
Should we prosecute?
- Law enforcement priorities
- Nature and seriousness of the offense
- Deterrent effect
- Person’s culpability
- Criminal history
- Willingness to cooperate
- Personal circumstances
- Probable sentence
Plea bargaining
Prosecutors are allowed to “coerce” defendants by taking larger sentences off the table
Jury Nullification
Cannot be a jury instruction
No solicitation of jury nullification
Federal Jurisdiction
Federal land
FDIC banks
Cross state lines
Indian lands (concurrent with tribe)
Interstate commerce (realistic probability)
Interstate commerce
“Realistic probability”
State jurisdiction
Over the person
Over the crime
Over the geography
State has jurisdiction of citizens on the high seas
When can states have jurisdiction over crimes committed in other states?
“Substantial effect” on that state
Indian jurisdiction
Tribe only have jurisdiction over misdemeanors
Jurisdiction over tribal land
Must be a member of the tribe
live on the land
enrolled in the tribe
take part in ceremonies
Ex post facto
- A law that makes an action done before its passing illegal after its passing
- A law that aggravates a crime (makes it worse)
- A law that increases the punishment
- A law that alters the rules of evidence to allow more or less testimony
Void for vagueness
Vagrancy and loitering laws
Cannot figure out what is legal versus illegal
First amendment
Chilling effect on free speech
Void for uncertainty
Whether the language of a statute may not only apply to the particular act but also to a radically different one as well.
Left for conjecture
Nuisance
State can regulate behavior or land that is considered a nuisance
Can regulate behavior if it is a burden to society
Racial discrimination test
- Presence of disparate impact
- Historical context of legislation
- Legislative history
- Departure from normal legislative process
Proof beyond a reasonable doubt
Burden of proof is on the prosecution unless it is an affirmative defense
Affirmative defense
Only need to prove reasonable doubt
Burden of the state
Prove every element of a crime
Presumption of possession
As long as it is not the sole and sufficient basis for a finding of guilt
“More likely than not”
Double Jeopardy
Cannot be tried twice for the same crime
Due process retroactivity
Precedent cannot change a law ex post facto if it is unreasonable
Textualism
Plain meaning of the word
Scalia
Purposive or Intentionalism
Look at legislative history and other sources
Strict construct
Strict reading of the statute
Legislative Purpose
Statute does not need to be the narrowest meaning
