Midterm Exam

Question 1

Complaint

Answer 1

Probable cause a crime was committed
Probable cause that that person committed the crime

Question 2

Actus Reus

Answer 2

Criminal act

Question 3

Mens Rea

Answer 3

Culpable mental state

Question 4

Most crimes need?

Answer 4

Actus Reus
Mens Rea
Concurrence

Question 5

Strict Liability

Answer 5

Only Actus Reus necessary

Question 6

Mens Rea Test

Answer 6

1. Cannot presume that if drafters left out Mens rea it means that they did not want it as part of the statute
2. Malum in se v. Malum prohibita (Malum in se = inherently evil needs Mens rea)
3. Public health - less need for Mens rea
4. How much harm is done to the public
5. “Strict liability”
6. Legislative history
7. How easy to prove intent
8. Opportunity to ascertain true facts
9. The # of prosecutions expected

Question 7

Specific intent

Answer 7

“With intent to…”

Question 8

General intent

Answer 8

Any other charge

Question 9

Inchoate Crimes

Answer 9

Incomplete Crimes
1. Attempt
2. Conspiracy
3. Solicitation
4. Aiding and abetting

Question 10

Attempt

Answer 10

Substantial step
V.
Preemptory conduct

Question 11

Conspiracy

Answer 11

Agreement to commit a crime
Some jurisdictions require furtherance
To get out you may have to undue, report, or notify

Question 12

Solicitation

Answer 12

Persuading another person to commit a crime

Question 13

Aiding and Abetting

Answer 13

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

Question 14

Should we prosecute?

Answer 14

1. Law enforcement priorities
2. Nature and seriousness of the offense
3. Deterrent effect
4. Person’s culpability
5. Criminal history
6. Willingness to cooperate
7. Personal circumstances
8. Probable sentence

Question 15

Plea bargaining

Answer 15

Prosecutors are allowed to “coerce” defendants by taking larger sentences off the table

Question 16

Jury Nullification

Answer 16

Cannot be a jury instruction
No solicitation of jury nullification

Question 17

Federal Jurisdiction

Answer 17

Federal land
FDIC banks
Cross state lines
Indian lands (concurrent with tribe)
Interstate commerce (realistic probability)

Question 18

Interstate commerce

Answer 18

“Realistic probability”

Question 19

State jurisdiction

Answer 19

Over the person
Over the crime
Over the geography

State has jurisdiction of citizens on the high seas

Question 20

When can states have jurisdiction over crimes committed in other states?

Answer 20

“Substantial effect” on that state

Question 21

Indian jurisdiction

Answer 21

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

Question 22

Ex post facto

Answer 22

1. A law that makes an action done before its passing illegal after its passing
2. A law that aggravates a crime (makes it worse)
3. A law that increases the punishment
4. A law that alters the rules of evidence to allow more or less testimony

Question 23

Void for vagueness

Answer 23

Vagrancy and loitering laws
Cannot figure out what is legal versus illegal

Question 24

First amendment

Answer 24

Chilling effect on free speech

Question 25

Void for uncertainty

Answer 25

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

Question 26

Nuisance

Answer 26

State can regulate behavior or land that is considered a nuisance Can regulate behavior if it is a burden to society

Question 27

Racial discrimination test

Answer 27

1. Presence of disparate impact 2. Historical context of legislation 3. Legislative history 4. Departure from normal legislative process

Question 28

Proof beyond a reasonable doubt

Answer 28

Burden of proof is on the prosecution unless it is an affirmative defense

Question 29

Affirmative defense

Answer 29

Only need to prove reasonable doubt

Question 30

Burden of the state

Answer 30

Prove every element of a crime

Question 31

Presumption of possession

Answer 31

As long as it is not the sole and sufficient basis for a finding of guilt “More likely than not”

Question 32

Double Jeopardy

Answer 32

Cannot be tried twice for the same crime

Question 33

Due process retroactivity

Answer 33

Precedent cannot change a law ex post facto if it is unreasonable

Question 34

Textualism

Answer 34

Plain meaning of the word Scalia

Question 35

Purposive or Intentionalism

Answer 35

Look at legislative history and other sources

Question 36

Strict construct

Answer 36

Strict reading of the statute

Question 37

Legislative Purpose

Answer 37

Statute does not need to be the narrowest meaning