2011 Mbe Criminal Law

Front 1

When does a state have jurisdiction over a crime?

Back 1

If any act constituting an element of the offense was committed in the state or an act outside the state that caused a result in the state.

Front 2

What theories justify criminal punishment?

Back 2

incapacitation of the criminal, special deterrence of the criminal, general deterrence of others, retribution, rehabilitation, and education of the public.

Front 3

What is a felony vs. a misdemeanor?

Back 3

Felonies are generally punishable by death or imprisonment for more than one year, all other crimes are misdemeanors.

Front 4

What is merger?

Back 4

There is no longer any merger except that one who solicits another to commit a crime may not be convicted of both the solicitation and the completed crime. Also, a person who completes a crime after attempting it may not be convicted of both the attempt and the completed crime. Conspiracy, however does not merge with the completed offense.

Front 5

What are the elements of a crime?

Back 5

A crime almost always requires proof of a physical act (acts reus) and a mental state (mens era), and concurrence of the act and mental state. It may also require proof of a result and causation (i.e. that the act caused the harmful result)

Front 6

What constitutes a physical act?

Back 6

Defendant must have either performed a voluntary physical act (bodily movement) or failed to act under circumstances imposing a legal duty to act.

Front 7

Failure to act gives rise to liability when?

Back 7

i) specific duty imposed by law; ii) defendant has knowledge of the facts giving rise to duty; and iii) it is reasonably possible to perform the duty.

Front 8

What are the specific intent crimes?

Back 8

Solicitation, Attempt, Conspiracy, First Degree premeditated murder, Assault, Larceny and Robbery, Burglary, Forgery, False Pretenses, Embezzlement

Front 9

What is the Intent necessary for malice crimes (arson and common law murder)?

Back 9

Reckless disregard of an obvious or high risk that the particular harmful result will occur.

Front 10

What are the general intent crimes?

Back 10

Battery, Rape, Kidnapping, and False Imprisonment. Defendant need not be certain that all the circumstances exist; it is sufficient that one is aware of the high likelihood that they will occur. And General Intent may be inferred.

Front 11

What are the strict liability crimes?

Back 11

Statutory Rape, Selling Liquor to Minors, and Bigamy (some jurisdictions)

Front 12

Purposely?

Back 12

Person conscious object is to engage in certain conduct or cause a certain result.

Front 13

Knowingly?

Back 13

Person is aware that his conduct is of a particular nature or knows that his/her conduct will necessarily or very likely cause a particular result. Knowing conduct satisfies a statue requiring willful conduct

Front 14

Recklessly?

Back 14

Person knows of a substantial and unjustifiable risk and consciously disregards it.

Front 15

Negligence?

Back 15

Person fails to be aware of a substantial and unjustifiable risk, where such failure is a substantial deviation from the standard of care.

Front 16

What is the mental state required for an accomplice?

Back 16

Person must give aid, counsel, or encouragement to the principal with the intent to encourage the crime. Usually mere knowledge, that a crime will result is not enough.

Front 17

What is the scope of liability of an accomplice?

Back 17

An accomplice is responsible for the crimes he did or counseled and for any other crimes committing in the course of committing the crime contemplated. So long as the crimes are probable or foreseeable.

Front 18

What are the elements of solicitation?

Back 18

Solicitation consist of inciting, counseling, advising, urging, or commanding another to commit a crime, with the intent that the person solicited commit the crime.

Front 19

What are the elements of conspiracy?

Back 19

Conspiracy consist of i) an agreement between two or more persons; ii) an intent to enter into the agreement; and iii) an intent by at least two people to achieve the objective of the agreement. Majority of states require an over act and some require just mere preparation.

Front 20

Special Note about accomplice and solicitation.

Back 20

One who is intended to be protected by statue of the crime may not be liable as principal but may be held liable as an accomplice. For example, a woman cannot be convicted of being the principal in a rape but can be found guilty as an accomplice if she aids the principal. As for solicitation, it is a defense if the accused cannot be held guilty of the completed crime for legislative purposes.

Front 21

What is the Wharton Rule?

Back 21

Under the Wharton Rule, where two or more people are necessary for the commission of the crime, the is no crime of conspiracy unless more parties participate.

Front 22

When does a conspiracy terminate?

Back 22

A conspiracy usually terminates upon completion of the wrongful objective. Unless agreed to, acts of concealment are not part of the conspiracy.

Front 23

Defenses to conspiracy?

Back 23

Factual impossibility is not a defense to conspiracy. Withdrawal from a conspiracy is not a defense because a conspiracy is complete as soon as the agreement is made and the act in the furthererance is committed.

Front 24

Effect of conspiracy agreement with person in "protected class?"

Back 24

Person within a protected class may not be guilty of the crime or a conspiracy to commit that crime. Likewise, the non protected person cannot be guilty of conspiracy if the agreement was with the protected person only.

Front 25

What is the effect of acquittal of some conspirators?

Back 25

The acquittal of ALL persons with whom a defendant is alleged to have conspired precludes conviction of the remaining defendant. NOTE: under the MPC "unilateral" approach defendant may be convicted regardless of whether other parties were acquitted.

Front 26

When does a conspiracy terminate?

Back 26

A conspiracy usually terminates upon completion of the wrongful objective. Unless agreed to in advance, acts of concealment are not part of the conspiracy.

Front 27

When is withdrawal a proper defense to conspiracy?

Back 27

Defendant is guilty of conspiracy immediately after the agreement and overt act. Thus, withdrawal is usually only a defense to crimes committed in furtherance of the conspiracy.

Front 28

What is Chain Relationship Conspiracy?

Back 28

A large conspiracy in which all parties are in treated in a single large scheme. Here, all members are liable for the acts of the others in furtherance of the conspiracy.

Front 29

What is a Hub and Spoke Relationship?

Back 29

Where a number of independent conspiracies are linked by a common member. Although the common member will be liable for all the conspiracies, members of the individual conspiracies are not liable for the acts of the other conspirators.

Front 30

What is the M'Naughten Rule?

Back 30

Defendant is entitled to acquittal only if he had a mental disease or defect that caused him to either i) not know that his act would be wrong; or ii) not understand the nature and quality of his actions.

Front 31

What is the Irrestible Impuse Test?

Back 31

Defendant is entitled to acquittal only if, because of a mental illness, he was unable to control his actions or conform his conduct to the law.

Front 32

What is the Durham (or New Hamshire) Test?

Back 32

Defendant is entitled to acquit all if the crime was the product of his mental illness. Broader test than M"Naughten and Irrestible Impulse Test.

Front 33

What is the Model Penal Code Test of Insanity?

Back 33

Defendant is entitled to acquittal if he had a mental disease or defect, and as a result, lacked substantial capacity to either: i) appreciate the criminality of his conduct; or ii) conform his conduct to the requirements of the law.

Front 34

When is intoxication voluntary?

Back 34

Intoxication is voluntary when it is the result of the intentional taking without duress of an intoxicating substance. Note: good defense to specific intent crimes. Is not a defense to crimes involving malice, recklessness, neligengce, or strict liability.

Front 35

When is intoxication involuntary?

Back 35

When the intoxication is the result from taking an intoxicating substance without knowledge of its nature, under direct duress imposed by another or pursuance to medical advice. Note: treated as a mental illness.

Front 36

What is the hot-pursuit doctrine?

Back 36

Force cannot be used to regain possession of property wrongfully taken unless the person using force is in hot pursuit of the taker.

Front 37

What are the exceptions to mistake or ignorance of the law not being a valid defense?

Back 37

If i) the statue proscribing the conduct was not published or made reasonably available prior to the conduct; ii) threre was a reasonable reliance on a statue or judicial decision; iii) in some jurisdictions, threre was a reasonable reliance on official interpretation or advice.

Front 38

What is a battery?

Back 38

Battery is an unlawful application of force to the per son of another resulting in either bodily injury or offensive touching.

Front 39

What is aggravated battery?

Back 39

Aggravated batteries are treated as felonies: i) battery with a deadly weapon; ii) battery resulting in serious bodily harm; iii) batter of a child, woman, or police officer

Front 40

What is assault?

Back 40

Assault is either i) an attempt to commit a battery or ii) the intentional creation - other than mere words - of a reasonable apprehension in the mind of the victim of bodily harm.

Front 41

What is aggravated assault?

Back 41

Aggravated assault is where a deadly weapon is used or where there was an intent to rape or maim.

Front 42

What is Murder?

Back 42

Murder is the unlawful killing of a human being with malice aforethought. Malice aforethought exist if there are no facts reducing the killing to voluntary manslaughter or excusing it AND it was commmited with either i) Intent to kill; ii) Intent to inflict great bodily injury; iii) Reckless indifference to an unjustifiably high risk to human life; or iv) Intent to commit a felony. Where there is intentional use of deadly weapon intent to kill may be inferenced.

Front 43

What is Voluntary Manslaughter?

Back 43

Voluntary manslaughter is a killing that would be murder but for the existence of adequate provocation. (provocation is adequate where sudden and intense passion in mind of ordinary person, defendant was in fact provoked, no sufficient cooling perior, and defendant did in fact not cool off.

Front 44

What is Involuntary Manslaughter?

Back 44

Killing is involuntary manslaughter where it was committed with criminal negligence.

Front 45

What is Premeditated First Degree Murder?

Back 45

If defendant made the decision to kill in a cool and dispassionate manner and actually reflected on the idea of killing, even if only for a brief second, it is first degree premeditated murder. Note: premeditated murder requires a specific intent, which may be negated by voluntary intoxication. if defendant so intoxicated that he was unable to premeditate, can only be convicted of second degree murder.

Front 46

What is the difference between First Degree Felony Murder and Felony Murder?

Back 46

First degree felony murder is for those deaths caused during felonies that are inherently dangerous to human life. Whereas, any death cause during the commission or an attempt to commit a felony is a simple felony murder.

Front 47

What is False Imprisonment?

Back 47

False imprisonment is the unlawful confinement of a person without his valid consent.

Front 48

What is Kidnapping?

Back 48

Kidnapping is an unlawful confinement of a person that involves either i) some movement of the victim, or ii) concealment of the victim in a "secret" place.

Front 49

What are the elements of Larceny?

Back 49

Larceny is: i) a taking; ii) and carrying away; iii) of tangible personal property; iv) of another that has possession; v) by trespass; vi) with intent to permanently deprive.

Front 50

What are the elements of Embezzlement?

Back 50

Embezzlement is: i) the fraudulent; ii) conversion; iii) of personal property; iv) of another; by a person in lawful possession of that property. Note: remember it is impossible for one to embezzle something that they do not rightfully possess.

Front 51

What is the offense of False Pretences?

Back 51

False pretenses is: i) obtaining title; ii) to personal property of another; iii) by an intensional false statement; iv) with intent to defraud.

Front 52

False Pretences vs. Larceny by Trick?

Back 52

If the victim is tricked into giving up mere possession the crime is larceny by trick. If the victim is tricked into giving up title the crime is false pretenses.

Front 53

What are the elements of Robbery?

Back 53

Robbery consists of: i) a taking; ii) of personal property of another; iii) from the other's person or presence; iv) by force or threats of immediate death or injury; v with the intent to permanently deprive.

Front 54

Robbery vs. Larceny

Back 54

Robbery requires that the defendant use force or threats to obtain the victim's property.

Front 55

What are the elements of Receipt of Stolen Property?

Back 55

Receipt of stolen property is: i) receiving possession and control; ii) of stolen personal property; iii) known to have been obtained; iv) by another; v) with the intent to permanently deprive. Note: actual status of property is important. If police recover stolen property and use in operation defendant may not be found to be in receipt of stolen property; however, defendant can be convicted of attempted receipt of stolen property if they intended to receive the property while believing it to be stolen.

Front 56

What are the elements of Burglary?

Back 56

Burglary is: i) a breaking; ii) and entry; iii) of a dwelling; iv) of another; v) at nighttime; vi) with the intent to commit a felony in the structure. (the intent to commit misdeamonor theft is often enough) Note: intent to commit a felony must be present at time of entry

Front 57

What are the elements of Arson?

Back 57

Arson is: i) the malicious; ii) burning; iii) of the dwelling; iv) of another. Note: many times burnings of structures other than official dwellings are sufficient. Note: Destruction of structure not required and while mere blackeneing or smoke may not be enough, charring is sufficient.