• Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key


Play button


Play button




Click to flip

93 Cards in this Set

  • Front
  • Back
Factual Cause (Conditions)
Empirical: was the criminal act factual to the result.
But for causality
Causality is empirical based on experience.
Legal Cause (Proximate)
Partly empirical but also normative.
Proximate: a cause which in natural and continuous sequence reduces the prohibitive result and without which the prohibitive result would not have resulted. No intervening force operating.
Attributive Causation (Policy)
Attribute cause in a situation where there is no formal cause. i.e. Parents in child abuse cases.
Doctrines to Break the Causal Chain
Coming to Rest: chain of events ends
Supervening or intervening cause
Free and Deliberate Action on the part of the person who was harmed
Abnormality Principle: victim behaves in a manner not normally foreseen
Probability Theory: Is the result within the risk that a felon or perpetrator would normally take under these circumstances. Bush v. Commonwealth
New Chain: set in motion by an act beyond the point where the original ends.
Free and Deliberate act by a person
Bush v. Commonwealth
1880. Shot a woman and she contracts scarlet fever at the hospital. Probability Theory.
Inchoate Crimes (3)
Relatively new. 19th century.

3 main features
1) Specific Intent 2) Some action toward completion 3) Failure to consummate the crime

Attempts: try to do something illegal but fail
Solicitation: encourage someone to commit a crime
Conspiracy: two or more people agree to commit a crime
Mens Rea, its 4 MPC types, and its defenses
Guilty mind. A lot to do with intentionality. Prerequisite mental state to be culpable of a crime.
Specific Intent: requires actor to develop specific purpose. General Intent

4 types in MPC: Purpose, Commit crime knowingly, recklessness, negligence

Defenses: Reasonable mistake of fact, Duress (under threat), necessity(would be worse off if you didn't do it)
Corpus Delecti
Body of crime
Actus Reus
Bad act. Crime has to be actually carried out. No thought crimes. Voluntary movement of the body to cause a criminal act.
Subjective Model of Attempts
Focus on the intent and purpose. Did he truly intend to carry out this act. Less emphasis on the action.
Objective Model of Attempts and 3 aspects/models
Equal emphasis on the act and closeness to completion.

1) Physical Proximity Model
2) Probable Desistance Model: the act in the normal course of events would lead to the execution of the crime barring some timely interference
3) Equivicobility Test: No other equivocal reason for the act.
Factual Impossibility
Completion of a criminal act is not possible. Not a defense. Intent present.
Legal Impossibility
Think something is a crime, but it actually isn't.
People v. Poluch
Barbering without a license. Used MPC test. Not necessary for the last deed to be committed to signify intent. Dangerous proximity to success.
People v. Rizzo
Tried to rob Rao but couldn't find him. Had weapons, had the plans. Could be abandonment before the crime was committed. Rizzo sentenced to prison but appealed. Penal Law, Section 2: An act done with intent to commit a crime, and tending but failing to effect its commission is an attempt to commit that crime. Reasonable probability the crime itself would have been committed but for timely interference.
Theory of Rational Motivation
Was the purpose to do the act or to break the law for the thrill of it? Shoplifting? Thrill of breaking the law makes you more dangerous. More likely to be repeated.
Solicitation and its Defenses
Words or the equivalence that command, urge, request, induce, procure, or entreat someone to commit a crime. Differs from "conspiracy" because there need not be an agreement of minds. Need specific intent. The Test: Must be a direct incitement to imminent lawless action. Must also be likely to occur. Always a crime in its own right. The crime itself is separate.

Book Hitman: a manual on how to kill someone and get away with it.

Defenses: Model Penal Code: complete and voluntary renunciation of prior intended purpose. Law enforcement inducement happens all the time. Ok as long as it doesn't reach entrapment.
People v. Labeau
Pyramid credit scheme. Preventive intervention. Solicitation. Difference between attempt and solicitation.
Spencer case
Attempted sodomy and endangering the welfare of a minor. Offered an 8 year old money to commit a sexual act.
Agreement or combination between or among two or more persons. An intent thereby to achieve an objective that is illegal or a legal objective by illegal means. Two elements to intent: intent to agree, intent to achieve the objective.
People v. Mills (Attempt precedence)
Felonious intent alone is not enough, but there must be an overt act shown in order to establish even an attempt. An overt act is one done to carry out the intent, and it must be such as would naturally effect that result unless prevented by some extraneous cause.

Precedence for Rizzo
Hyde v. U.S. (Attempt Precedence)
The act amounts to an attempt when it is so near to the result that the danger of success is very great.
Precedence for Rizzo
Direct Sales Co. v. US
Drug company sold large quantities of morphine over time. Mens rea that constituted conspiracy. Quantity of sales, continuity with relationship between buyer and seller, did seller take initiative/encourage the transaction, nature of the goods, etc.
Plurality of Intent in Conspiracy
Some suggest that when a person joins an enterprise that they then have the same motivations as the entire group.
In most states need an overt act, yet it doesn't have to be that big. No need for communication. Awareness can be enough. Requires 2 or more people. Merger: Solicitation can be merged with a crime. Conspiracy cannot. Can be tried separately.
Jury nullification
Letter of the law says person is guilty, but the jury finds them not guilty
Prosecutors Advantage
Rules in conspiracy cases that make prosecutors like it. Hearsay, issue of venue, circumstantial evidence, joint trial
Mullaney v. Willbur (1975) ****
Wilbur is charged with murder, convicted, and sentenced to life. Pleads affirmative defense (defense bears burden of production) of manslaughter. Defenses 1) lacked intent to kill 2) If he did have the intent then it was in the heat of passion. Jury convicts of murder. Supreme Court ruled that Maine deprived Wilbur of due process.
Malice Aforethought
intentional, unlawful killing without heat of passion or sudden impulse
3 standards of law
Preponderance of Evidence - more likely than not to be true. 50+1
Clear and Convincing - substantial probability. Higher level of proof
Beyond a Reasonable Doubt - highest level of proof. Have to show a very strong likelihood that someone committed a crime.
Patterson v. New York
Dealt with manslaughter. Expanded defense. Extreme emotional disturbance. Recommended by MPC.
Heat of Passion
Requires provocation that caused person to fly into a heat of passion and killing occurred during this time. Short time period.
Extreme Emotional Disturbance
Psychiatric in nature. . Sort of like diminished capacity or insanity. Can exist for a long period of time. Expanded defense. Defense bore burden of proof, because 1) Expansion state didn’t have to allow, 2) way state defined it, it was clear that murder did not entail the absence of extreme emotional disturbance. State did not make it an element of a crime if… ? States don’t make it a crime, legislatures do. Much more rare than heat of passion.
Borne/Borum? case ****
Coin case. Fingerprints on empty jar. Prosecution did not provide evidence as to how they got there. Borne did not take the stand. Beyond a Reasonable Doubt case. Principal contention: trial court erred in his acquittal.

Went to appeals court. Bassalan: with evidence so inconclusive, a person must have reasonable doubt. Shouldn't have been submitted to jury. Inconclusive evidence.
Bergers dissent: what are the odds the fingerprints got there any other way. Too strict a standard. Basically said court is being nitpicky.
Reasonable Doubt Test/Moral Certainty
Came out in 19th century. Reasonable doubt is one that is founded upon a tangible basis and not upon real caprice or conjecture. Must give rise to great uncertainty.

Moral Certainty: unless jury is convinced to a moral certainty of a defendants guilt then they should not convict. Used to be titled as such because wrongful conviction = eternal damnation.
Winter/Victor? v. Nebraska
Precedent: no constitutional requirement that jury be instructed what reasonable doubt is
Holland v. U.S. (1954)
Taken as a whole instructions must convey instruction of reasonable doubt to jury.
Cage v. Louisiana (1990)
Only time the Supreme Court has overturned a reasonable doubt case. Harder to defend innocence
Plea Bargaining
95%+ of all cases that end up going through the initial phases
Result of overwhelming congestion of the courts. Generally defendants will have to meet certain factors or otherwise could go to pre-trial aversion programs (AA, etc)
If it operates well it should be in the shadow of the law. Judges have less control of the sentences than they used to. Prosecutors are key.
Defense Counsel Models
Perry-Mason model: gold model. Can afford a great attorney
Second Model: You retain a counsel. Attorney's often get some uncompensated time.
Third Model: Counsel appointed by the court. Pro-bono. Very time consuming, uncommon.
Public Defender: attorney and staff are paid annual salaries. Heavy case loads.
Judge Selection
State: 21 states popular elections, 29 states appoint initially form governor but then need to be re-elected
Federal: life term
Has to be
probative: evidence tends to establish the proposition or claim for which it is authored.
Material: meant to support the outcome under applicable law

Prejudicial: would lead a jury to convict someone for the wrong reasons. i.e. prior bad acts
Types of Presumptions
Misnamed Presumptions: policy (presumption of innocence, presumption of sanity, etc)
True Presumptions: deal with inferences drawn from a fact actually proven to some other critical fact. Usually the prosecution bears the burden to prove the presumed fact
Types of True Presumptions
Permissive Presumption of Inferences:Jury may draw the inference but doesn't have to
Mandatory Presumption: jury is told it must draw the presumption, but it is rebuttable
Conclusive: Mandatory but not rebuttable. i.e. statutory rape
5 reasons for presumptions
1) reasonable natural tendency is to place burden on the party desiring change form the norm.
2) special policy considerations such as those disfavoring certain defenses
3) convenience
4) Fairness
5) Judicial estimate of the probability of the presumed fact being true. Rational connection between presumed fact and actual fact.
4 major constitutional issues with presumptions
1) Due process: does it shift burden of proof to defense?
2) Right to a jury trial
3) Right to confront adverse witnesses
4) Self-incrimination
Terra Case
Machine gun in a 1 room store. Charged for illegal possession of a machine gun. Claimed they didn't know it was there. Courts said presumption that they did was valid.
Olster County Case
Firearm in an automobile. 2 loaded handguns. Presumption does not apply if the guns are found on the person. Here they were found on the girl. Argued that this should be more likely than not true. If presumption is mandatory then has to be beyond a reasonable doubt.
Pennsylvania Cases in Felony Murder
Commonwealth v. Almeida (1949): Almeida engaged in a robbery. Officer and robbers opened fire at each other. Officer Ingling died. Proximate cause to hold Almeida guilty. Given death penalty. Appealed down. Jones Dissent = agency theory.

Commonwealth v. Thomas (1955): Felony murder applied to a co-felon in a robbery case. Shot by store owner.

Commonwealth v. Redline (1958): Accomplice killed in gun battle with police. Overturns Thomas for Felony Murder. Killing must be done by one of the felons. Distinction between police officers and innocents

Commonwealth v. Bolish (1958): Co-felon killed making a bomb. Distinguished from Redline because he caused his own death.

Smith v. Myers (1970): rejects felony murder proximate cause theory in favor of agency theory.
Agency Theory
Killing must have been done by one of the felons or an action taken in furtherance of the felony.

Jones Dissent furthers this by leaving door open for felony murder (if death fas reasonably foreseeable from the facts.
Enmund v. Florida
Felony Murder
Co-felons killed in house while he was getaway driver. S.C. gave him capital punishment. Appealed because his mens rea was not sufficient to apply capital punishment. Test: Defendant does not kill, attempt to kill, intend that a killing will occur, intend that lethal force be employed.
Tison v. Arizona
Felony Murder
Tison brothers had a father in prison for murder. Broke him out. Father kills people. Brothers charged for felony murder, executed.
Standards of Manslaughter
An excuse not a justification

1) Adequate provocation
2) Heat of Passion
3) With sudden Passion (without time to cool down)
4) Causal connection
State v. Flory
Father in law having sex with mans wife. Husband kills father in law, but not right away. Not a case of self-defense. Ordinary man test for manslaughter.
Affirmative defense. Justified (not an excuse)
1) Intent must be to defend yourself
2) Reasonable
3) Reasonable belief of imminent danger
4) Response but be proportionate to harm
Fletcher's four background aspects of self-defense
• 1) law requires reasonable belief that you are defending what is in imminent danger of death or bodily harm by using deadly force
• 2) action proportionate to danger
• 3) Individual cases can be taken into consideration
• 4) Intent must be to protect yourself
3 part test of brain activity
1) No response to painful stimulant
2) Absence of spontaneous movement or breathing
3) Absence of reflexes
Se Defendendo
Back against the wall self-defense. Excuse logic, not justification. Tightens imminence, loosens proportionality.
Individualist model
We have freedom and autonomy. Any threat to you is a threat to your individual freedom. Don't have to give an inch.
Goetz Charges
Weapons possession - NG
Criminal Possession in the 4th degree - NG
Reckless Endangerment - NG
Attempted murder of each youth - NG
Criminal Assault (4 counts) - NG

Found not guilty on criminal trial and guilty on civil trial.
MPC Self-Defense, Section 3.04
the use of deadly force upon or toward another person is justifiable when the actor believes that such force is immediate necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion = a subjective test
Just Punishment
Proportionality: got what they deserved. Loosens imminence standard.
Missile Casings Case
Standard of Guilt and Culpability
Strict liability
Defendant said his mens rea should have to be proven that he knew it was govt. property. Ruled for strict liability
Morisette v. U.S. (1952) ***
S.C. Contention that an injury can amount to a crime... ?
Examples of Mens Rea Defenses
Mistake of Fact, Insanity, Diminished Capacity,
Strict Liability Offenses
Statutory Rape, Bigamy, Leaving a pregnant wife without support
When you care for someone else. Parents can be held liable.
Willful Ignorance
Ostrich principle. stick your head in the sand
Commonwealth v. Olshefsky (1948)
Guy has dump truck with coal in it. Weighed by state. Under legal limit. Next day over it. No evidence he touched it in between. Court said fine was allowable.
Common Law
Mala en say. Wrong in themselves. Universally condemned. 2 elements are necessary: mental and physical (intent is implied)
Criminal by statute
Mala prohibita. Crimes not because they are bad, but because the legislature makes the act criminal. i.e. speeding.
Different Juvenile Terms
Prosecutor = practitioner, defendant = respondent, if guilty committed not incarcerated
Monahan Case
15 y/o committed felony murder with his father. Father given death sentence. Lawyer asked that kid be put into juvenile system and judge said no.
Juvenile Rights in 60's, 70's, 80's
Move towards victims rights. Crime wave especially among younger people.
Voluntary drunkness is not a defense to a crime. If very drunk can not be guilty of intent, but still guilty of crime. Can reduce.
Medication for Insanity Trial (4 factors)
1) How important is the trial 2) Is the medicine likely to help 3) is the medicine medically appropriate 4) does it enhance the ability of the client to communicate with their lawyer
Insanity - three things
1) Deterrence, 2) Retribution - need to understand your punishment 3) rational capacity to communicate with attorney

Also insanity is a legal term, not a medical one.
McNaughton Test (1843-now)
Presumption of sanity. Sufficient degree of reason to be responsible for their crimes until proven otherwise.

Courts stopped using it for a while, but are now using it again.

Two things it doesn't consider
1) what if you know something is against the law and what you're doing will lead to that result, but you can't control yourself. Pyromaniac?
2) Appreciation. Just deals with pure cognitive knowledge and not appreciation of the act.
Intoxication, Juvenile Justice, Insanity
People v. Gilette (1955)
Intoxication case. Attempted rape. Found guilty initially, found not-guilty in appeals. Trial court said intoxication could never be a partial excuse in a crime. Appellate court said couldn't have mens rea. If the crime you committed requires specific intent. Matter of jury decision.
Juvenile Justice
Main motivating factor behind juvenile justice is rehabilitation and reform. Due process standard lessened. Started in Chicago in 1899.
Monahan Case
16-18 year olds can be transferred to adult courts. Also can move younger for murder.
4 theories on principles of punishment
Expressionism - punishment expresses societies anger about the crime
Annulment - annuls stain of crime upon society
Fair Play - social contract theory. breaking this is free riding
Critical Theory - stance that looks at legal theory and says that it's easier for some people to abide by the social contract
Main insanity test in the 1950's. Then MPC test.
Posner Entrapment
No entrapment if the defendant had a willingness to violate the law without extraordinary inducements
Subjective Model of Entrapment
The federal law as adopted by the S.C. and the law in most states.
Government inducement, predisposition of defendant, evidence of predisposition may be used such as prior criminal conduct, prior bad acts, hearsay, etc
Objective Model of Entrapment
Minority position. Russell dissent by Steward and the position of such Justices as Roberts and Brandeis.

Were the government inducements clearly improper so as to constitute impermissible government conduct?

MPC: entrapment if the govt was employing methods of persuasion or inducement which creates a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.
U.S. v. Russell
Russell had everything to make meth but propanone which was supplied by Schapiro.
Russell wanted objective approach and exclusionary rule. Court of appeals agreed with him.

Originally convicted.
Jacobson v. U.S. (1984) + (1992)
Sting operations on child pornography.
Predisposition to act when its legal is different than predisposition when it's illegal.

O'Conner's Dissent: Defendant said he had multiple opportunities to buy the kiddie porn but O'Conner argues that there was really only one attempt made by the govt.

Latest S.C. case that deals with entrapment.
Sorrell's Case (1932)
Soldier asked for whiskey about 3 or 4 times. Other guy finally gave in and was arrested. Predisposition to commit the act was the focus of this inquiry. Subjective test.

Sorrell conviced
Sherman case (196_)
Former drug addict talking to another. One worked for govt and started asking the other for meth. Guy gave in after a while and was arrested.

Warren wrote majority: line must be drawn between unwary innocent and unwary criminal

Sherman convicted