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1L-Crimes > MidTerm Review > Flashcards

MidTerm Review Flashcards

1
Q

What Amend is due process clause from Fed. gov’t.?

A

5th Amendment is due process clause from Fed. gov’t.

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2
Q

What Amend. requires proof BRD?

A

5th Amend. requires proof BRD, also in 14th Amend.

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3
Q

What Amend. gives right to speedy and public trial?

A

6th Amend. gives right to a speedy and public trial

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4
Q

What Amend. gives right to assistance of counsel?

A

6th Amend. gives right to assistance of counsel

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5
Q

What Amend. made Bill of Rights applicable to states?

A

14th Amend. made Bill of Rights applicable to states

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6
Q

Social harm consist of wrongful ______, wrongful ______, or ________ _________.

A

Social harm consist of wrongful CONDUCT, wrongful RESULT, or ATTENDANT CIRCUMSTANCES.

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7
Q

What are the 4 objectives of criminal code?

A
  1. proscribe and prevent conduct
  2. give fair warning of prohibited conduct
  3. give fair warning of consequences
  4. prescribe penalties
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8
Q

Prohibited act that does not have a prescribed penalty is ____?

A

Prohibited act that does not have a prescribed penalty is MISDEMEANOR.

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9
Q

Define a Crime

A

Crime is an act or omission (when the law requires a duty to act) and the necessary mental state that causes a harm.

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10
Q

What is Malum In Se?

A

Malum In Se mans “ACT IS WRONG”

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11
Q

Describe Malum In Se?

A

Malum In Se crimes are INTRINSICALLY EVIL.

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12
Q

Name the 7 Malum In Se crimes.

A
  1. Murder, 2. Theft, 3. Rape, 4. Mayhem, 5. Arson, 6. Robbery, 7. Burlary.
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13
Q

What is Malum Prohibitum?

A

Malum Prohibitum means act is wrong because a law (society) prohibits it.

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14
Q

Give an example of a malum prohibitum crime?

A

PUBLIC DRUNKENNESS is a malum prohibitum crime.

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15
Q

Name the sources of American criminal law

A

The 3 sources of American criminal law is:

  1. COMMON LAW
  2. STATUTORY LAW
  3. CONSTITUTIONAL LAW
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16
Q

Who defines a crime?

A

LEGISLATURE is the only body to define a crime

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17
Q

What is the Principle of Legality?

A

Principle of Legality: CANNOT PUNISH SOMEONE UNLESS CONDUCT IS PROSCRIBED BY LEGISLATURE.

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18
Q

When was MPC published?

A

MPC was published in 1962.

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19
Q

When did Tenn. revise penal code and in what way?

A

In 1989, Tenn. revised penal code to rely on MPC.

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20
Q

What is the Bill of Rights?

A

Bill of Rights is the FIRST 10 AMEND. TO THE US CONSTITUTION.

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21
Q

What is the purpose of the Bill of Rights?

A

Bill of Rights is TO PROTECT CITIZENS FROM THE FED. GOV’T.

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22
Q

What is the purpose of the Tenn. Constitution?

A

The Tenn. Constitution PROTECTS CITIZENS FROM THE TENN. GOV’T.

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23
Q

How does the Tenn. Constitution compare to the US Constitution?

A

Tenn. Constitution expands rights and provides greater protection beyond US Constitution.

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24
Q

What is the Principle of Legality?

A

Principle of Legality: ALL CRIMES MUST BE DEFINED IN ADVANCE SO CITIZENS KNOW WHAT IS PROHIBITED AND THE PUNISHMENT.

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25
Q

What does Ex Post Facto mean?

A

Ex Post Facto means AFTER THE FACT.

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26
Q

What part of US Const. is ex post facto clause found?

A

Ex Post Facto clause is found in US Const. Art. 1, Sec. 9 & 10.

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27
Q

What part of Tenn. Const. is ex post facto clause found?

A

Ex Post Facto clause is found in Tenn. Const. Art. 1, Sec. 11.

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28
Q

What is the general principle of ex post facto?

A

Ex post facto means: If it is not a crime when committed, you can’t punish by making law later.

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29
Q

How is punishment described in the Ex Post Facto clause

A

In Ex Post Facto: cannot increase punishment after crime committed. Punishment can go down, but not up.

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30
Q

What are the levels of Burden of Proof (in order)?

A

Burden of Proof

  1. reasonable suspicion
  2. probable cause
  3. preponderance
  4. clear and convincing
  5. beyond a reasonable doubt
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31
Q

Give an application for reasonable suspicion burden of proof.

A

Reasonable Suspicion: stop and frisk

32
Q

Give an application for probable cause burden of proof.

A

Probable Cause: arrest and search

33
Q

What level of certainty is required for preponderance burden of proof.

A

Preponderance: 50.01% (more likely than not)

34
Q

Describe clear and convincing burden of proof.

A

Clear and Convincing: more than preponderance, but less than beyond reasonable doubt

35
Q

Describe beyond a reasonable doubt burden of proof.

A

BRD: highest standard. not absolute certainty, but reasonably certain.

36
Q

What is the Rule of Lenity?

A

Rule of Lenity: requires courts to construe criminal statutes strictly, and any ambiguity will be read in favor of D.

37
Q

What is the Void for Vagueness doctrine?

A

Void for Vagueness: statute must not be so vague that men of common intelligence must guess at its meaning and differ to its application.

38
Q

What does Void On Face mean?

A

Void On Face: written that reasonable persons cannot understand what is prohibited

39
Q

What are the 2 philosophies of criminal law?

A

Utilitarianism and Retributionism

40
Q

Describe the 3 main principles of the Utilitarianism philosophy?

A
  1. Deterrence - must be general and specific.
  2. Incapacitation - removing dangerous people from society.
  3. Rehabilitation - treating the offender.
41
Q

What is the main principle of the Retributionism philosophy?

A

Retributionism: criminals who CHOOSE to commit crimes deserve punishment

42
Q

T/F. Actus Reus can be a voluntary or involuntary act?

A

False. Actus Reus requires voluntary acts. Involuntary acts do not satisfy the Actus Reus.

43
Q

Do act of conscious or inconscious or both satisfy the Actus Reus?

A

Only conscious acts satisfy the Actus Reus.

44
Q

T/F. MPC includes hypnosis as voluntary

A

True. MPC includes hypnosis as voluntary.

45
Q

Name the 3 material elements of actus reus.

A

The 3 material elements of actus reuse are

1. conduct, 2. circumstances, 3. result

46
Q

What is an omission?

A

An omission is voluntarily not acting when there is a duty to act.

47
Q

When may there be an affirmative duty to act?

A

based on relationship of parties, prescribed by statute, contractual duty to perform, voluntary undertaking, creation of peril, duty of landowner.

48
Q

Give an example of an affirmative duty under creation of peril.

A

creation of peril - throwing a non swimmer in water

49
Q

Give an example of an affirmative duty under prescribed by statute.

A

prescribed by statute - duty to file returns or report child abuse

50
Q

Under MPC, is possession crimes voluntary or involuntary?

A

Under MPC and common law, possession crimes are voluntary acts.

51
Q

How does MPC describe possession crimes?

A

Under MPC, keeping possession is an omission where there is a duty to terminate possession within a reasonable time.

52
Q

Under common law, how are possession crimes described?

A

Under common law, possession crimes are the knowing taking or keeping a forbidden item.

53
Q

What does Mens Rea mean?

A

Mens Rea means guilty mind

54
Q

Can the law punish thoughts?

A

No. the law does not punish thoughts alone. There must be an act.

55
Q

How is mens rea proven?

A

Most often, mens rea is proven through inference.

56
Q

Can a person be convicted for being ‘addicted to drugs’ and why.

A

A person cannot be convicted for being addicted to drugs. A person’s status cannot be a crime.

57
Q

What are the 4 mental states of culpability?

A

The 4 mental states of culpability are:

  1. Intentional
  2. Knowing
  3. Reckless
  4. Negligent
58
Q

What is “Intentional”?

A

Intentional is the conscious objective and desire to engage in the conduct and or cause the result.

59
Q

What is “Knowing”?

A

Knowing is being aware of the conduct or the circumstance and being aware that the conduct is reasonably certain to cause the result.

60
Q

What is “Reckless”?

A

Reckless is being aware but consciously disregarding the risk. There must be a gross deviation from the standard of care of an ordinary person.

61
Q

What is “Negligent”?

A

Negligent is when a person ought to be aware that the risk exist.

62
Q

What mental state does strict liability require?

A

Strict liability requires no mental state.

63
Q

What is vicarious liability?

A

In Vicarious Liability, a person can be held liable for the offense/conduct of another under certain conditions.

64
Q

What are the 5 conditions for vicarious liability?

A
  1. the person causes another to engage in prohibited conduct
  2. person acts with intent to promote or assist in conduct
  3. benefits in the proceeds of the conduct of another
  4. solicits, directs, aides, or attempts to aid another in the conduct
  5. has a duty to prevent but fails to make a reasonable effort to prevent.
65
Q

What is the 4 part equation for a crime?

A

Actus Reus + Mens Rea + Causation + Harm = crime

66
Q

What is concurrence in criminal law?

A

Concurrence is when mens rea and actus reus must occur at the same time

67
Q

When analyzing a stature, how do you decide the intent?

A

To decide the intent of a statute, determine what social harm the legislature was trying to prevent

68
Q

What 4 things must be proven for BRD?

A
  1. conduct or result is defined by legislature
  2. the negation of any defense
  3. offense committed prior to the formal charge
  4. must prove all these to BRD
69
Q

Under what Amend. is D presumed innocent?

A

Under due process clause of 5th Amendment the D is presumed innocent.

70
Q

What are the 3 instances of 1st degree murder?

A

1st degree murder can be:

  1. intentional and premeditated killing
  2. felony murder
  3. murder by bomb
71
Q

Describe circumstances of intent for intentional and premeditated murder..

A

Intent under Intentional and premeditated murder must formed in a cooled, calmed, controlled mental state.

72
Q

Killing with a state of passion with adequate provocation is what crime?

A

voluntary manslaughter is the killing with a state of passion with adequate provocation.

73
Q

Killing with a state of passion with inadequate provocation is what crime?

A

2nd degree murder is the killing with a state of passion with inadequate provocation.

74
Q

List the 5 types of homicide in Tenn.

A
  1. 1st degree murder
  2. 2nd degree murder
  3. Voluntary manslaughter
  4. Criminally negligent homicide
  5. Vehicular Homicide
75
Q

In Tenn, can a person be charge will killing a nonviable fetus?

A

In Tenn, a person can be charge with killing a person only if the fetus is viable.

76
Q

Does Tenn. recognize the “year and a day” rule?

A

Tenn. does NOT recognize the “year and a day rule”.

1L-Crimes (3 decks)

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