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21 Cards in this Set

  • Front
  • Back
What are the three standards of proof?
Preponderance of the evidence 51%

Clear and convincing evidence 73%

Beyond a reasonable doubt 99%
What is the burden of PRODUCTION?
Coming forward with ENOUGH evidence to put a certain fact in issue.
What is the burden of PERSUASION?
The duty to CONVINCE the fact finder that the totality of evidence presented warrants accepting or rejecting the claim.
Requires state to prove every fact necessary to constitute crime charged beyond a reasonable doubt. (Government has to prove all the elements inside the definition of the M.P.C.
What are the 3 theories of punishment?


And the Mixed theory combining the two.
What are the tenants of Utilitarianism?
Rationale is that there has to be a net benefit or gain from punishing the person. (If no net gain, then no punishment.) These are standards not rules, so the discretion is left to the judge.
What are the tenants of Retributivism?
Punishment fits the crime, no undeserved punishment, (no "three strikes you're out" rule.)
No discretion by the judge, the rules define the sentencing.
What are the tenets of The Mixed Theory of Punishment?
Punishment is justified if there is a net social gain and punishment is deserved.
What does ACTUS REUS mean?
Culpable Conduct
Why does the culpable conduct have to be a voluntary act?
Because there would be proof problems, we don't want a "Police State", if thoughts were punished we'd all be guilty, Creates a problem with free will, and the harm is attenuated.
What are the Common Law Requirements of "actus reus"?
Has to involve physical or bodily movement.
Excludes thought or intentions
Words alone can be enough, i.e.

Has to be voluntary (willed or determined by actor)
Reflex/Convulsions, Unconsciousness or sleep, Movement by another, and Hypnosis are not considered voluntary acts.
What is the MPC 2.01(2)(d) definition of what is not an act?
Bodily movement that otherwise is not a product of the effort or determination of the actor, either because the actor was unconscious, hypnotized (minority position), experiences a reflex or convulsions.
What are the principles of Actus Reus under the MPC?
No thought crimes

Words alone can be actus reus (verbal threats)

Unintended consequences can be actus reus

Time Frame is involved.
What is an ACTUS REUS Omissions?
Failure to act when under legal duty to act.
What are the COMMON LAW legal duties?
Moral obligations are not enforceable by law.
Status Relationships:
Parent - Child
Contractual Duty
Creation of Risk if Aware
Seclusion (making it impossible for others to help)
Joint Enterprise (Scuba Buddy)
Landowner / Homeowner Duty
What does the MPC 2.01(3) say is a Actus Reus Omission?
When a statute says you have a duty (paying your taxes for example)
Duty otherwise impose by law
What are the Grey areas under the MPC regarding Actus Reus Omissions?
Act must be reasonably calculated, and
If act puts you at risk, you are not liable.
Actus Reus Omission: What about Possession. (In a drug case)
Possession can be actual or constructive
Most constructive possession statues require
1. Power over the object
2. Intent to exercise dominion not enough
3. Mere proximity is usually not enough
What does the MPC 2.01(4) say about possession and Actus Reus?
Possession is an act if
1. knowingly procured or received
2. was aware of control and did not terminate possession.

Knowledge of actual possession + failure to discarded = possession
When item possessed is not illegal Per Se, (e.g., possession of screwdriver as a "burglar too"), defense of innocent purpose goes to the jury.

What are the factors they should consider?
1.Proximity relevant but usually not sufficient

2. Was access exclusive or was it shared?

3. Defendant's actions
What is the MPC approach to voluntariness?
1. Reflex or convulsion
2. Unconsciousness or sleep
3. Hypnosis
4. "bodily movement not the product of effort or determination by the actor."
There is a problem when there are Non-voluntary acts which are the result of voluntary acts (DECINA)