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Criminal Law > Specific Crimes and Defenses > Flashcards

Specific Crimes and Defenses Flashcards

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1
Q

What is common-law murder?

A

Unlawful killing of another human being with malice aforethought.

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2
Q

How can you prove malice aforethought?

A

Malice aforethought may be proven by showing (1) intent to kill, (2) intent to cause serious bodily harm, (3) a reckless disregard for the value of human life, or (4) felony murder

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3
Q

What is first degree murder?

A

Unlawful killing of another with premeditation/delibration. Also felony murder.

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4
Q

Is felony murder first degree murder?

A

Yes

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5
Q

What is second degree murder?

A

Unlawful, non-premeditated killing of another human being with a depraved and malignant heart where the death of the victims was a distinct possibility.

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6
Q

Is first degree murder a specific intent crime?

A

Yes

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7
Q

What is the common law rule re death?

A

At common law, the victim must die within a year and a day to meet the causation element – for the death to be attributed to the D.

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8
Q

When is someone dead?

A

When doctor declares. Definition might vary by jurisdiction, but could include brain death – cessation of all brain functioning. According to the Uniform Determination of Death Act (§ 1, U.L.A. [1980]), from which most states have developed their brain death statutes, “An individual who has sustained either (1) irreversible cessation of circulatory and respiratory function, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead.” (Unborn fetus not human for purpose of murder.)

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9
Q

What are the elements of felony murder?

A

Intentional killing of a living human being caused during the attempted, actual or escape after commission of another INDEPENDENT AND INHERENTLY DANGEROUS FELONY, where death was foreseeable and felony prox cause of death.

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10
Q

What felonies qualify as predicate offenses for felony murder?

A

Burglary, arson, robbery, escape (from jail), kidnapping, rape, sex crimes other than rape

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11
Q

What is the acronym for felony murder predicate offenses?

A

BREAKRS

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12
Q

What does BREAKRS stand for

A

Burglary, robbery, escape (from prison), arson, kidnapping, rape, sexual offesnes

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13
Q

What are the important attributes of a felony murder predicate offense?

A

Must be inherently dangerous. Must be INDEPENDENT. Even if a dangerous felony, a predicate felony that merges into the murder does not support indictment for felony murder. Hence, assault and battery, even if felonies by statute, merge into murder. D would be charged with murder, not felony murder.

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14
Q

What is element of causation in felony murder?

A

Same as general causation – but for and proximate. The murder must be the natural and direct cause of the felony.

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15
Q

Is it felony murder, if during the commission of a felony, the police kill a bystander?

A

Yes, but if other felon is killed, not felony murder.

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16
Q

Can D be liable for felony murder of co-fellon?

A

Under the Redline rule, no. D not liable for death of co-felon from resistance of the victim or the police.

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17
Q

What is voluntary manslaughter?

A

Unlawful killing of a human being WITH LEGALLY SUFFICIENT PROVOCATION, and D’s act was actual and legal cause of death. D a) was provoked; b) a reasonable and sober person in D’s position would have been provoked; c) D did not have a cooling off period; and d) a reasonable person in D’s position wd not have cooled off.

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18
Q

What is sufficient provocation to support voluntary manslaughter?

A

Objective standard. 1) words alone, no matter how offensive or heinous, not sufficient provocation; 2) minor battery not sufficient; 3) serious assault may be sufficient; 4) adultery sufficient. Even tho std objective, is a trend towards taking into act some individual characteristics in determining provocation.

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19
Q

Can homicide be reduced to V manslaughter if D was not actually provoked, even if a reasonable person wd have been?

A

No. D must have been actually provoked, which is a subjective standard.

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20
Q

What standard applies to cooling off period?

A

Most Js, objective std. Bt if D cooled off more quickly than a real p wd have, then no mitigation.

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21
Q

What party has burden to show V manslaughter?

A

If gov’t is trying to prove murder, it is D’s burden to present facts sufficient to reduce to VMS, warrant jury charge.

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22
Q

What are the elements of involuntary manslaughter?

A

Unlawful killing of a human being with criminal negligence (criminally negligent homicide.) Conduct of D. is reckless or willfully bond to the risk No malice aforethought. Can also be a death that results during the commission of or flight from a misdemeanor or felony that is not encompassed by the felony-murder rule.

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23
Q

What kind of intent supports involuntary manslaughter?

A

It is a general intent crime.

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24
Q

What is misdemeanor manslaughter?

A

At common-law form of involuntary manslaughter. A death caused while commuting a misdemeanor. Can be an alternative to a felony murder.

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25
Q

What is vehicular manslaughter?

A

A death caused while operating a vehicle in a ceremonially negligent manner or while violating traffic rules.

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26
Q

What are the inchoate crimes?

A

Conspiracy (remember no merger); solicitation; attempt

27
Q

Elements of solicitation?

A

Counseling, advising, inciting, urging or commanding another to commit any crime, WHETHER OR NOT THE PERSON SOLICITED AGREES, with specific intent that the solicited person would commit crime. Crime complete at the time of solicitation. Not a defense that the crime is not completed. Not a defense that victim could not commit the crime.

28
Q

Does solicitation merge?

A

yes, solicitation merges into the target crime.

29
Q

What are the elements of attempt?

A

specific intent to bring about a criminal result AND and a significant overt act in furtherance of that intent. SPECIFIC INTENT CRIME. No defense that crime isn’t completed, but if it is, there is merger.

30
Q

What constitutes a significant overt act for attempt?

A

It brings the defendant close enough to the actual perpetration of the target crime. Mere preparation is not sufficient.

31
Q

What are common defenses to attempt?

A

1) lack of specific intent; 2) legal impossibility – what the D attempts is not a crime; 3) inherent impossibility – the overt act is inadequate to complete the criminal act under a reasonableness std.

32
Q

Is abandonment a defense to attempt?

A

At common-law, no, bc crime was complete at conceptualization and overt act. Under Model Penal Code, can be voluntary and complete abandonment.

33
Q

Is factual impossibility a defense to attempt?

A

No, the fact that an attempted crime cannot be completed due to facts unknown or mistaken by D is not a defense.

34
Q

Can a D be acquitted of attempt and the target crime? Vice versa?

A

D can be convicted of attempt and acquitted of target crime. D cannot be acquitted of attempt and convicted of target crime.

35
Q

What are the elements of conspiracy?

A

Unlawful criminal combination and voluntary agreement bet two or more persons with the specific intent to commit an unlawful act by unlawful means. Usually overt act required. Agreement may be express or implied. Must be a target offense that does not by definition require two people like adultery, bigamy or dueling. But three or more can be convicted of conspiring to accomplish the crime. No merger.

36
Q

Is overt act an element of conspiracy?

A

At common law, no overt act was required. By statute, most states now require an overt act, but usually mere preparation is sufficient (unlike attempt).

37
Q

What is the scope of liability for conspiracy?

A

Each conspirator liable for the crimes committed by the others if a) in furtherance of objectives; and b) foreseeable. Spouses can conspire.

38
Q

What are the defenses to conspiracy?

A

Factual impossibility not a defense (same with attempt and solicitatin). Abandonment is not a defense. But under MPC, complete and voluntary withdrawal of a conspirator may be an affirmative defense if there is timely notice to all conspirators and serves as an affirmative act to thwart the conspiracy. Only a defense to crimes subsequent to withdrawal.

39
Q

When does a conspiracy terminate?

A

Upon completion of the target crime.

40
Q

What happens if one conspirator is acquitted?

A

Since a conspiracy requires at least two participants, acquittal of one, mandates acquittal of other – or any scenario where only one is left.

41
Q

What are elements of larceny?

A

Larceny is a crime against lawful possession. It is a taking (control), carrying away/asportation (only slight movement needed), of the personal property, of another, with the SPECIFIC INTENT to permanently deprive that person of the property.

42
Q

What does it mean that larceny is a crime against lawful possession?

A

Means title is not an issue. Doesn’t matter if the victim does not have legal title. Can commit larceny against a thief or someone in temporary custody of property like a repair service or a bailee.

43
Q

When is crime of larceny complete?

A

Upon the taking, of course assuming intent.

44
Q

What are defenses to larceny?

A

Good faith claim of rt to property. Not returning or putting property back down. Lack of requisite intent (of course), which could be shown with: a) intent to borrow the property; pay for property that is for sale; taking to obtain repayment of debt; property lost.

45
Q

What is doctrine of continuous trespass?

A

For larceny, requisite specific intent may relate back if formed after the carrying away, provided that the intent to permanently deprive is formed.

46
Q

What are the elements of larceny by trick?

A

Obtaining mere possession (as opposed to title) of personal property of another with the SPECIFIC INTENT to permanently deprive the victim thereof by INTENTIONAL MISREPRESEANTION OF PAST OR FUTURE FACT. Misrepresentation must be material.

47
Q

What are the elements of false pretenses?

A

False pretenses, in contrast to larceny and larceny by trick, is a crime against title, not a crime against possession. The elements are obtaining actual title of personal property of another by an intentional and false statement or misrepresntaiont of past or existing material fact with the SPECIFIC INTENT OT DEFRAUD THE VICTIM.

48
Q

What else is necessary to prove a claim for false pretenses?

A

V must actually rely on the misrepresenation, such that the misrepre is the major factor in causing the V. to transfer title. Misrepresntation must regard a past or present fact, not a future scenario. D must actually pay for the goods.

49
Q

What are the elements of embezzlement?

A

Fraudulent conversion of personal (tangible) property of another by a person then in lawful possession of the property with the specific intent to materially interfere with the rights of the other.

50
Q

What are defenses to embezzlement?

A

D has claim of right in property or intends to restore THE EXACT SAME property (not equivalent property).

51
Q

What are the elements of burglary?

A

Breaking (slightest) and entering of a dwelling house (modernly any structure) of another in the nighttime (modernly any time) with the intent to commit a felony therein. Felony need not be accomplished to be guilty of B. At common law, dusk or as the sun was setting, was not nighttime.

52
Q

What are the elements of robbery?

A

Taking and carrying away (asportation) of the personal property of another from the other’s person by immediate threat, fear, intimidation, force, violence, death or physical injury to the victim or someone in his presence, WITH THE SPECIFIC INTENT TO PERMANENTLY DEPRIVE HIM OF PROPERTY. Armed aspects of robbery merely enhances penalties.

53
Q

How must the taking occur to constitute robbery?

A

Must be from the victim’s immediate presence (not necessarily on the victim). If not in presence, then EXTORTION.

54
Q

How are robbery counts counted?

A

By victim, not articles taken

55
Q

What are the elements of arson?

A

Malcious (intentional or reckless; not negligent) burning (by flame not blackening with smoke) of the dwelling house of another. General intent crime. As with burglary, modernly, dwelling has been expanded to include any structure. Also, some modern statutes do not require actual burning, just setting the fire is sufficient. Also more modernly, can be convicted for burning a structure D owns if there is a risk of hurting/harming others.

56
Q

What are the elements of assault?

A

Threatening conducts (mere words not sufficient) with the specific intent to cause reasonable apprehension of an imminent battery. Actual unwanted touching transforms assault into battery.

57
Q

What are the elements of battery?

A

Unwanted touching of another resulting in either bodily injury or offensive touching. General intent crime – only the act must be intentional and need not be with specific intent to cause harm o offense. Could result from criminal negligence such as drunk driving.

58
Q

Does transferred intent apply to battery

A

yes. If D intends to batter A and instead hits B, transferred intent.

59
Q

What are the elements of mayhem?

A

Specific intent to maim or do bodily harm to another by permanent dismemberment or disablement of a bodily part that would be useful in self defense. Injury must be permanent.

60
Q

What body parts are relevant to mayhem?

A

Eyes, hands, foot, leg, front teeth, penis

61
Q

What are the elements of receipt of stolen property?

A

Receiving actual or constructive possession and control of personal property of another known by the recipeent to have been obtained in a criminal manner with the specific intent to deprive the victim of his or her interest in the property.

62
Q

What are the elements of kidnapping?

A

Unlawful restrating on the personal liberty of another by force or show of force involving some movement or concealment of the victim. At common-lw, needed taking the victim out of the country or state.

63
Q

With respect to murder, what is causation?

A

To be guilty of murder, the defendant’s actions must be a legal proximate cause of the death. However, the defendant’s actions need only have been a substantial factor, not the only factor, in the death.

64
Q

What are the elements of rape?

A

Slightest penetration of sexual organs of female by a male against her will (without consent). Prosecutor must prove lack of consent, but Presumed incapable of giving consent due to drugging, etc. Now the laws are gender neutral. General intent crime.

Criminal Law (7 decks)

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