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Criminal Law

Additional Law Flashcards




modern rule: no merger (between felony and misdemeanor)

exception: D may not be convicted of both the solicitation of a crime and the completed crime, or both the attempt of a crime and the completed crime
Elements of a Crime
almost always: requires proof of a physical act (actus reus) and a mental state (mens rea)

physical act: must be voluntary, must be a bodily movement (slight exception: possession of contraband requires only that the contraband be within D's "dominion and control")

mental state: crime can require specific intent or general intent--most crimes are general intent

general intent: act is done with an awareness of all factors constituting the crime

specific intent: requires not only the doing of an act, but the doing of the act with a specific intent or objective
--malice: for common law murder and arson; requires a reckless disregard of an obvious or high risk that articular harm will result
Specific Intent Crimes

BAFFLE SCARF! complete with what must be intended...

(intent to...)

B urglary - commit a felony in the dwelling

A ssault - commit a battery

F irst-Degree Murder - premeditation

F alse Pretenses - defraud

L arceny - permanently deprive another of his interest in property taken

E mbezzlement - defraud

S olicitation - have the person solicited commit the crime

C onspiracy - have the crime completed

A ttempt - complete the crime

R obbery - permanently deprive another of his interest in property taken

F orgery - defraud



Strict Liability Offenses
does not require awareness of all the factors constituting the crime (i.e., D can be convicted from the mere fact that she committed the act)
M.P.C. Analysis of Fault
instead of general & specific intent, M.P.C. uses: purposely, knowingly, recklessly, and negligently

purposely: person's conscious object is to engage in certain conduct or cause a certain result

knowingly: person is aware that his conduct is of a particular nature or knows that his conduct will necessarily or very likely cause a particular result ("knowingly" also satisfies "willful")

recklessly: when a person knows of a substantial and unjustifiable risk and consciously disregards it. Mere realization of risk is not enough.

negligently: higher standard than the "reasonable person" in torts, risk must be very unreasonable
Accomplice Liability
majority view: to be guilty as an accomplice, person must give aid, counsel, or encouragement to the principal with the intent to encourage the crime--mere knowledge of the crime is usually NOT enough.

exclusions from liability:
-members of the protected class (example: a minor cannot be an accomplice to statutory rape)
-necessary parties not provided for in statute (example: if a drug statute makes the selling of drugs illegal, but does not provide for the punishment of the buyer, the buyer cannot be an accomplice to the seller)

Withdrawal: effective withdrawal from a crime before it occurs eliminates accomplice liability. To be effective:
1) repudiation is sufficient withdrawal for mere encouragement
2) if participation went beyond mere encouragement, must attempt to neutralize the assistance
Inchoate Offenses
Solicitation: elements--1) inciting, counseling, advising, urging, commanding another to commit a crime, 2) with the intent that the person solicited commit the crime.

Conspiracy: elements--1) agreement between 2 or more persons ("meeting of the minds"), 2) intent to enter into the agreement, and 3) intent by at least 2 persons to achieve the objective of that agreement; majority of states also now require an overt act. A conspirator may be held liable for crimes committed by co-conspirators if crimes were 1) committed in furtherance of the conspiracy and 2) foreseeable.

Attempt: elements--1) an act, 2) done with intent to commit a crime, that 3) falls short of completing the crime. Act must be "overt," and must be beyond mere preparation for the crime.
different tests for insanity:

M'Nagten - D does not know right from wrong
Irresistible Impulse - impulse D cannot resist (natch)
Durham - but for the mental illness, D would not have done the act
M.P.C. - combination of M'Nagten and Irresistible Impulse
--D lacked the substantial capacity to: 1) appreciate the criminality of his conduct, OR 2) conform his conduct to the requirements of the law
Voluntary Intoxication: only a defense to specific intent crimes and crimes requiring a purposeful or knowing mental state; if the intoxication is such that it destroys the necessary intent or mental state, it can be a defense. It is analyzed the same way a jurisdiction analyzes insanity.

Involuntary Intoxication: intoxication is involuntary only when resulting from taking of an intoxicating substance:
1) without knowledge of its nature
2) under direct duress imposed by another, or
3) pursuant to medical advice while unaware of the substance's intoxicating effect.
Principles of Exculpation - Justification
Rule of thumb: nondeadly force justified to avoid imminent injury or to retain property; deadly force justified only to prevent death or serious bodily injury

-Self-Defense: may use force which reasonably appears necessary to protect oneself from imminent use of unlawful force upon oneself. Deadly force justified if 1) person is without fault, 2) confronted with "unlawful force," and 3) threatened with imminent death or great bodily harm. (if not all three elements met, some states would convict of manslaughter.)
-Defense of Others: justified if person reasonably believes the party being assisted has the right to use force in his own defense
-Defense of a Dwelling: justified to prevent or terminate what is reasonably regarded as an unlawful entry; deadly force may be used only to prevent an unlawful entry made with the intent to commit a personal attack on an inhabitant, or commit a violent felony in the dwelling
-Defense of Property: deadly force may never be used
-Crime Prevention: reasonably necessary to prevent a felony or serious breach of the peace
-Use of Force to Effectuate Arrest: for police officers--nondeadly force, if reasonably necessary to effectuate arrest
-Resisting Arrest: nondeadly force may be used to resist improper arrest, even if a known police officer is making the arrest. Deadly force may only be used if person does not know that the person arresting him is a police officer.
-Necessity: person reasonably believed commission of the crime was necessary to avoid imminent and greater harm to society. Test is objective; good faith belief not sufficient.
-Public Policy: police officer's reasonable force justified when acting pursuant to a court order, law, or other official authorization.
-Domestic Authority: parents of a child, or anyone acting in loco parentis, may lawfully use reasonable force upon the child for purposes of the child's welfare.
Principles of Exculpation - Duress and Other Defenses
Duress: any crime other than murder may be excused if D reasonably believed that another person would imminently inflict death or great bodily harm upon him or a member of his family if he did not commit the crime

Mistake of Fact: defense only if it shows D lacked the state of mind required (so, irrelevant with strict liability crimes); defense to completed crime AND to intent (compare to FACTUAL IMPOSSIBILITY, which is a defense only to the completed crime and leaves open criminal liability for attempt)

Mistake of Law: generally not a defense
Exceptions: reasonably relied on official interpretation or advice (NOT JUST FROM A LAWYER); or if it negates an element of the crime (D cannot be convicted of selling a gun to a known felon if D thought the crime buyer had been found guilty of was merely a misdemeanor)

Consent usually not a defense

Entrapment: only when 1) criminal design originated with law enforcement and 2) D was not predisposed to commit crime before contact with law enforcement
Criminal Assault
1) an attempt to commit a battery, or
2) the intentional creation, by other than mere words, of a reasonable apprehension in the mind of the victim of imminent bodily harm

(if there is an actual touching, crime can only be battery)
Criminal Battery
an unlawful application of force to the person of another resulting in either bodily harm or an offensive touching

battery need not be intentional

aggravated battery: battery
1) with a deadly weapon
2) resulting in serious bodily harm
3) battery of a child, woman, or police officer
Common Law Homicides:
Voluntary Manslaughter
Involuntary Manslaughter

Statutory Homicides:
1st Degree Murder
2nd Degree Murder
Felony Murder
Common Law Murder
unlawful killing of a human being with malice aforethought

malice aforethought exists if killing was committed with one of the following states of mind:
1) intent to kill
2) intent to inflict great bodily injury
3) reckless indifference to an unjustifiably high risk to human life ("abandoned and malignant heart"), or
4) intent to commit a felony (felony murder)
Voluntary Manslaughter
a killing that would be murder but for the existence of adequate provocation

Provocation adequate only if:
1) it would arouse sudden and intense passion in the mind of an ordinary person, causing him to lose self-control (e.g., exposure to a threat of deadly force or finding spouse in bed with another is adequate)
2) D was in fact provoked
3) there was not sufficient time between provocation and killing for passions of a reasonable person to cool
4) D did not in fact cool off between provocation and killing
Involuntary Manslaughter
a killing committed with criminal negligence (D was grossly negligent) or, in some states, during the commission of an unlawful act (misdemeanor or felony not within felony murder rule)
First Degree Murder
a killing is first-degree murder if it comes under the following circumstances:
1) deliberate and premeditated (period can be very brief)
2) felony murder
3) in some states, killings performed in certain ways (e.g., by torture)

for murder in general: D's conduct must be both the cause-in-fact and the proximate cause of victim's death
Second Degree Murder
any murder which does not fit the circumstances of first degree murder
Felony Murder
any death caused in the commission of, or in an attempt to commit, a felony

must be an enumerated felony--statutes have increased these in number, but at common law, just a few (e.g., burglary, arson, rape, etc.)

limitations on felony murder liability:
-defendant must have committed the underlying felony
-felony must be distinct from the killing itself (can't get felony murder if you committed aggravated battery and the victim dies)
-death must have been a foreseeable result
-death must have been caused before D's "immediate flight" from the felony ended (once felon has reached a place of "temporary safety," subsequent deaths are not felony murder

death of co-felon not felony murder in most jurisdictions
False Imprisonment
consists of the unlawful confinement of a person without his valid consent
modern statutes often define kidnapping as unlawful confinement of a person that involves either 1) some movement of the victim, or 2) some concealment of the victim in a "secret" place
Rape/Sexual Assault
unlawful carnal knowledge without her effective consent

lack of effective consent consists of:
1) intercourse accomplished by actual force
2) intercourse accomplished by threats of great and immediate bodily harm
3) victim is incapable of consenting due to unconsciousness, intoxication, or mental condition
4) victim fraudulently caused to believe the act is not intercourse
Other Sex Offenses
Statutory Rape: carnal knowledge of a person under the age of consent; mistake as to age, for purposes of the exam, is not an excuse, as statutory rape is a strict liability crime

Incest: marriage or a sexual act between closely related persons

Bigamy: common law strict liability crime of marrying someone while having another living spouse

(note: I'm not putting the crimes of adultery, fornication, or seduction on a flashcard. I'm just not.)
consists of:
1) a taking
2) and carrying away
3) of tangible personal property
4) of another with possession
5) by trespass
6) with intent to permanently deprive that person of her interest in the property
1) the fraudulent
2) conversion
3) of personal property
4) of another
5) by a person in lawful possession of that property

(distinguished from larceny by lawful possession in element 5)
False Pretenses
1) obtaining title
2) to personal property of another
3) by an intentional false statement of past or existing fact
4) with intent to defraud the other

"larceny by trick" distinguished: with LbT, victim is tricked into giving up possession; with false pretenses, victim is tricked into giving up title
consists of:
1) a taking
2) of personal property of another
3) from the other's person or presence
4) by force or threats of immediate death or physical injury
5) with the intent to permanently deprive

distinguish from larceny: robbery involves force or the threat of force
consists of the corrupt collection of an unlawful fee by an officer under color of office

distinguish robbery: extortion may involve threats of future harm; also, taking does not have to be in the presence of the victim
Receipt of Stolen Property
consists of:
1) receiving possession and control
2) of "stolen" personal property
3) known to have been obtained in a manner constituting a criminal offense
4) by another person
5) with the intent to permanently deprive the owner of his interest in it
under many modern statutes, and the M.P.C.--larceny, embezzlement, false pretenses, robbery, extortion, and receipt of stolen property are combined and defined as the crime of "theft."
consists of:
1) making or altering
2) a writing with apparent legal significance (e.g., a K, not a painting)
3) so that it is false (representing something that it is not--NOT merely containing a misrepresentation...e.g., a fake warehouse receipt, not an inaccurate one)
4) with the intent to defraud
common law burglary consists of:
1) a breaking
2) and entry
3) of a dwelling
4) of another
5) at nighttime
6) with the intent to commit a felony in the structure
consists of:
1) the malicious
2) burning
3) of the dwelling
4) of another
Perjury and Other Offenses Involving Judicial Procedure
Perjury: intentional taking of a false oath in regard to a material matter in a judicial proceeding

Subornation of Perjury: procuring or inducing another to commit perjury

Bribery: corrupt payment or receipt of anything of value for official action

Compounding a Crime: agreeing, for valuable consideration, not to prosecute another for a felony or to conceal the commission of a felony or the whereabouts of a felon (under modern statutes, can be any crime, not just a felony)
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