Bar Prep: Criminal Law And Procedure

Front 1

What are the four requirements for every crime?

Back 1

1. Actus Reus
2. Mens Rea (except strict liability)
3. Concurrence
4. Causation

Front 2

What constitutes an actus reus?

Back 2

1. A voluntary, conscious act (not reflexive or unconscious)
2. An omission to act where one has a legal duty to act

Front 3

Discuss omissions and actus reus.

Back 3

Normally, a failure to act cannot be the basis for criminal liability. The exception is where the law places one under a legal duty to act.

Front 4

Five circumstances imposing a duty to act.

Back 4

1. Statute
2. Contract
3. Special Relationship
4. Voluntary undertaking
5. Creation of the risk

Front 5

Seven mens rea terms

Back 5

1. Purpose
2. Knowledge
3. Intent
4. Willfulness
5. Recklessness
6. Criminal Negligence
7. Malice

Front 6

Define the mens rea of "purpose."

Back 6

D acts with the conscious objective to engage in such conduct or cause such a result.

Front 7

Define the mens rea of "knowledge."

Back 7

D knows the nature and/or result of his conduct.

Front 8

Define the mens rea of "intent."

Back 8

D desires that his acts will cause the result or knows they are substantially certain to do so. (i.e., Purpose or Knowledge)

Front 9

Define the mens rea of "willfully."

Back 9

D acts with intent and with moral turpitude.

Front 10

Define the mens rea of "recklessly."

Back 10

D consciously disregards a substantial and unjustifiable risk that a circumstance exists or will result from his conduct. His disregard must involve a gross deviation from the standard of conduct a reasonable person would observe in the same situation.

Front 11

Define the mens rea of "criminal negligence."

Back 11

D's conduct creates a high degree of risk, of which he should be aware but is not. The deviation and degree of risk is above ordinary negligence and below wanton and willful misconduct.

Front 12

Describe the two types of intent.

Back 12

Specific intent: D intended to produce a specifically prohibited harm.

General intent: D engages in a prohibited act with some level of culpable mental state.

Front 13

List the specific intent crimes

Back 13

Inchoate crimes
Theft crimes
Burglary
Assault
Voluntary Manslaughter
Intent-to-kill murder

Front 14

List the general intent crimes

Back 14

Battery
Rape
Kidnapping
False Imprisonment
Involuntary Manslaughter
Depraved-Heart Murder

Front 15

List the malice crimes

Back 15

Arson
Common law murder

Front 16

List the strict liability crimes

Back 16

Regulatory offenses
Public welfare offenses
Morality crimes (statutory rape, bigamy)
Selling liquor to minors

Front 17

When can mistake nullify intent?

Back 17

An honest, unreasonable mistake of fact can nullify specific intent.
Only an honest and reasonable mistake of fact can nullify general intent.

Front 18

How can malice be demonstrated?

Back 18

Express: D intended to kill; established by proof he acted with purpose or knowledge regarding the death, or with intent to inflict SBI

Implied: D caused the death through extreme reckless or criminally negligent conduct manifesting a wanton disregard for the value of human life; also implied for felony murder.

Front 19

What is transferred intent?

Back 19

Where D intends to inflict harm on one victim, but actually harms another, his intent is transferred to the actual victim

Front 20

Three theories for "actual causation."

Back 20

1. But-for causation
2. Substantial factor: criminal result caused by multiple causes or parties, but D's conduct was a substantial factor in causing the result
3. Acceleration: V was going to die anyway, but D's conduct accelerated the death

Front 21

What is proximate cause?

Back 21

Proximate cause exists where the resulting harm is within the objectively foreseeable range of possibility.

Front 22

Intervening/superseding cause analysis:

Back 22

1. Was intervening cause dependent or independent?
2. If dependent, it is foreseeable unless a totally abnormal response to D's actions.
3. If independent (coincidental), it will supersede unless it was foreseeable.

Front 23

Define homicide.

Back 23

The unlawful killing of one human being by another.

Front 24

Common law definition of murder.

Back 24

The unlawful killing of another human being with malice aforethought.

Front 25

Year-and-a-day Rule

Back 25

At common law, if the victim died more than one year and one day after the D's act, D was not considered the prox cause of the death. Modern juridictions have abolished this rule or extended the time period.

Front 26

Four mental states for murder

Back 26

1. Intent to Kill
2. Intent to cause SBI
3. Depraved-Heart Murder
4. Felony Murder

Front 27

Deadly Weapons Doctrine

Back 27

An inference of intent to kill is raised by the use of an instrument calculated to produce death or SBI.

Front 28

Define depraved-heart murder.

Back 28

An unintentional killing resulting from conduct involving a wanton indifference to the value of human life and conscious disregard of an unreasonable risk of death or SBI.

Front 29

What is the "collateral" rule for felony murder?

Back 29

Most states require that the underlying felony be collateral to, or independent of, the homicide.

Front 30

Discuss "inherently dangerous" for felony murder.

Back 30

Most states include as predicate felonies both those that are inherently dangerous and those that were committed in a dangerous manner. Some states only count the former.

Front 31

Discuss "agency theory" for felony murder.

Back 31

Majority rule: no felony murder liability where a non-felon causes the death; it must be caused by one of the co-felons.

Front 32

Discuss the "Redline limitation" for felony murder.

Back 32

In minority jurisdictions where co-felons may be charged with a killing committed by a non-felon, some extend the Redline limitation, not extending liability where the killing is a justifiable or excusable homicide (e.g., where the police shoot a co-felon).

Front 33

Distinguish first-degree and second-degree murder.

Back 33

First degree murder includes intent to kill plus premeditation and deliberation, felony murder, and sometimes lying in wait, poison, terrorism, or torture.

Second-degree murder is any murder (killing with malice) that does not rise to the level of first-degree murder. This also includes felony murder where the underlying felony is not listed in the felony murder statute.

Front 34

Define voluntary manslaughter.

Back 34

An intentional killing mitigated by adequate provocation or other circumstances negating malice.

Front 35

"Adequate provocation" analysis.

Back 35

1. Reasonable provocation
2. Actual provocation
3. No cooling off period
4. No actual cooling off

Front 36

What are the main felony murder felonies?

Back 36

Burglary
Arson
Rape
Robbery
Kidnapping

Front 37

Two other mitigating circumstances that can negate malice and reduce murder to voluntary manslaughter:

Back 37

1. Imperfect self-defense (D was initial aggressor or had honest unreasonable belief self-defense was necessary)
2. Diminished mental capacity (short of insanity) (minority jurisdictions)

Front 38

Define involuntary manslaughter

Back 38

An unintentional killing resulting from unjustifiable risk creation, not sufficiently extreme to rise to the level of implied malice. Can be either recklessness or criminal negligence)

Front 39

Define misdemeanor-manslaughter.

Back 39

An unintentional killing occurring during commission or attempted commission of a misdemeanor, or of a felony that does not satisfy the felony murder requirements.

Front 40

What is criminal battery?

Back 40

The intentional, reckless, or criminally negligent unlawful application of force to the person of the victim, without legal justification or excuse.

Front 41

Common circumstances raising battery to aggravated battery:

Back 41

1. D caused SBI
2. D used deadly weapon
3. D battered a woman, child, or law enforcement officer

Front 42

What is assault?

Back 42

1. an attempted battery, or
2. intentionally causing the victim to fear an immediate battery

Front 43

Describe "attempted battery" assault.

Back 43

Committed when D actually attempts to commit a battery on V and fails. V need not be aware of the attempt or intent. D need not be factually able to complete the assault.

Front 44

Describe "fear of battery" assault.

Back 44

Committed where D acts with threatening conduct intended to cause reasonable apprehension of imminent harm to V. Mere words or conditional threats are not enough. Must have an overt act.

Front 45

Common circumstances raising assault to aggravated assault:

Back 45

1. D uses a deadly weapon
2. D acts with intent to rape or murder
3. V is a specially protected victim

Front 46

Define mayhem

Back 46

Committed where D, with intent to maim or do bodily injury, either dismembers the victim or disables his use of a body part useful in fighting. In modern law, this also includes permanent disfigurement.

Front 47

Define false imprisonment.

Back 47

Intentional, unlawful confinement of one person by another. V must be fully confined and unaware of any reasonable means of escape.

Front 48

Define kidnapping.

Back 48

An unlawful restraint of a person's liberty by force or show of force, so as to send V to another country. (Now sufficient to move V to another location or conceal V.)

Front 49

Common law rape.

Back 49

Carnal knowledge of a woman, not the wife of the accused, against her will and by force or threat of force.

Front 50

Discuss consent, force, and resistance for rape.

Back 50

Traditionally, a showing of force, and resistance, was required. Now, focus is on objective evidence of V's lack of consent. The act of sexual penetration suffices to show force. Consent is determined objectively from observable circumstances.

Front 51

Define bigamy.

Back 51

Marriage to more than one person. Strict liability crime: no mens rea required, no defense that you didn't know about the other marriage(s).

Front 52

Define incest.

Back 52

Sexual relations between individuals who are closely related. Degree of relationship varies from state to state.

Front 53

Define larceny.

Back 53

The taking and carrying away of the tangible personal property of another, with the intent to permanently deprive the owner thereof.

Front 54

What is the doctrine of continuing trespass?

Back 54

For larceny, a person who takes something without authorization intending only to "borrow" it, but then decides to keep it, it is larceny, even though they did not have the intent at the time of the initial trespass.

Front 55

Define embezzlement.

Back 55

The fraudulent conversion or misappropriation of the property of another by one who is already in lawful possession.

Front 56

Define "a taking."

Back 56

Assertion of dominion and control over the property of another when you do not have lawful possession.

Front 57

Define "conversion."

Back 57

Some action toward property that seriously interferes with the rights of the owner. Slight movement or limited use does not suffice.

Front 58

Define robbery.

Back 58

The taking and carrying away of the tangible personal property of another with the intent to permanently deprive the owner thereof, where the taking is from the person or presence of the victim and is accomplished by force or intimidation.

Front 59

Define obtaining property by false pretenses.

Back 59

A false representation of a present or past material fact by the defendant, that causes the victim to pass TITLE to his property to the defendant, who knows his representation to be false and intends thereby to defraud the victim.

Front 60

Define larceny by trick.

Back 60

A form of larceny in which D obtains POSSESSION (not title) of the property of another by means of a representation or promise he knows to be false.

Front 61

Define extortion/blackmail.

Back 61

Obtaining property by use of threats of future harm to the victim or his property.

Front 62

Elements of receiving stolen goods.

Back 62

The receiving of stolen property, known to be stolen, with the intent to permanently deprive the owner thereof.

Front 63

Elements of forgery.

Back 63

A fraudulent making of a false writing with apparent legal significance, with the intent to make wrongful use of the forged document. If the "making" is an alteration, the alteration must be material.

Front 64

Common law burglary

Back 64

The breaking and entering of the dwelling house of another in the nighttime, with intent to commit a felony therein.

Front 65

Differences between common law and modern burglary.

Back 65

At common law, the breaking required force, the entering required placing a body part inside, it had to be a dwelling, and had to be at night.
Under modern law, the breaking can be the slightest enlargement of an existing opening, the entering can be by a tool, it can be any structure, and need not be at night.

Front 66

Elements of arson.

Back 66

The malicious burning of the dwelling of another.
D need not intend to burn the dwelling, only to take an action creating a substantial risk of burning.
Some charring is required, though not total burning.
Need not be a dwelling anymore.
Can be D's own house where D maliciously burns it down

Front 67

What are the three inchoate crimes?

Back 67

1. Solicitation
2. Attempt
3. Conspiracy

Front 68

Define solicitation:

Back 68

Enticing, advising, inciting, inducing, urging, or otherwise encouraging another to commit a target offense.
Solicitor mus intend solicitee to commit the act; mere approval is not enough.
Offense is complete when solicitation is made.
If solicitee commits target offense, solicitor becomes a complicitor.

Front 69

Elements of attempt:

Back 69

1. A specific intent to bring about a criminal result
2. A significant overt act in furtherance of that intent

Front 70

What is the "overt act" requirement for attempt? What are the four standards?

Back 70

The significant overt act must go beyond mere preparation into actual perpetration.
1. At CL, D had to have completed the "last act necessary."
2. MPC: A substantial step indicating purpose to complete crime
3. Proximity Test: Focus on proximity in time and distance between D and time/place of intended crime.
4. Equivocality test: D's conduct must unequivocally indicate his intent to commit the crime.

Front 71

What are the defenses to attempt?

Back 71

Abandonment: At CL, not a defense once attempt was complete; modern law, a voluntary (not just in face of difficulties) and complete (not mere postponement) abandonment may be a defense.
Legal Impossibility: complete defense
Factual impossibility: not a defense, if offense would have been completed had facts ben as D believed them to be

Front 72

Define conspiracy.

Back 72

An agreement between two or more people to commit a crime.

Front 73

What is the actus reus requirement for conspiracy?

Back 73

At CL, the agreement was sufficient. Modernly, some overt act in furtherance of the conspiracy is required. NB: Here, the overt act can be mere preparation, unlike the overt act for attempt.

Front 74

What is Pinkerton Liability?

Back 74

Each co-conspirator is liable for the crimes of all other co-conspirators where the crimes were (1) an objectively foreseeable outgrowth of the conspiracy and (2) committed in furtherance of the conspiratorial goal.

Front 75

Two different conspiracy models.

Back 75

1. Chain Relationship: Where several crimes are committed under one large scheme in which each member knows generally of the other parties' participation and a community of interest exists, one single conspiracy results.
2. Hub-and-Spoke relationship: Where one common member enters into independent agreements with different individuals, multiple conspiracies result.

Front 76

"One-person conspiracies"

Back 76

Under CL, acquittal of one person in a 2-person conspiracy necessitated acquittal of the other.
Modern: Where one party feigned agreement, you can have a "unilateral conspiracy" and convict the other person.

Front 77

What is the Wharton Rule?

Back 77

Where the target offense requires participation of two or more people as a necessary element, those people cannot be charged with conspiracy to commit that offense. If inessential 3d party gets involved, then all three can be charged with conspiracy. (e.g., dueling)

Front 78

Defenses to conspiracy.

Back 78

Under CL and MPC, a complete and voluntary withdrawal is a defense against liability for future crimes of coconspirators, but not a defense to conspiracy itself. NB: Requires timely notice to all conspirators.

MPC also recognizes renunciation as a defense: where D withdraws and takes affirmative action to thwart success of conspiracy, it's an affirmative defense to the conspiracy itself.

Front 79

Elements of accomplice liability.

Back 79

D is liable as an accomplice if he gives assistance or encouragement or fails to act where he has legal duty to oppose the crime of another, and purposely intends to effectuate commission of the crime.

Front 80

Actus reus requirement for complicity.

Back 80

Even slight assistance or encouragement is sufficient, so long as it is actual encouragement or assistance. (MPC does not require actual, just intended.)

Front 81

Mens rea requirement for complicity.

Back 81

At CL, must intend to commit the acts of assistance or encouragement and intend to encourage/assist in commission of crime.
Minority: knowledge that one is assisting will suffice (e.g., a seller of goods who knows they will be used illegally)

Front 82

Scope of accomplice liability

Back 82

Accomplice is liable for all reasonably foreseeable outgrowths of the primary crime. Foreseeability is an objective test, so no defense that he did not personally foresee.

Front 83

Defenses to complicity

Back 83

Withdrawal:
1. At CL, D must give principal timely notice of withdrawal and nullify effect of his assistance, which cuts off future liability
2. MPC: D must EITHER render prior assistance ineffective, provide police with timely notice of principal's plan, OR make a proper effort to prevent commission of the crime.

Front 84

Common Law pleading terms for complicity

Back 84

1. Principal in the first degree: the one who performs the criminal act with requisite mental state (trigger-puller)
2. Principal in the second degree: on who aids or abets and is present at the scene
3. Accessory before the fact: Aids or abets before the offense and is not present at scene
4. Accessory after the fact: One who, with knowledge of the commission of a felony, provides aid to felon to hinder his apprehension, conviction, or punishment

Front 85

Two main categories of defenses.

Back 85

Justification defenses: what would normally be unlawful was under the circumstances not unlawful (e.g., self-defense, defense of others, defense of property, necessity)

Excuse defenses: although the act was unlawful, some disturbance of D's mental process nullifies his culpability (e.g., insanity, involuntary intoxication, duress)

Front 86

Four tests for insanity.

Back 86

1. M'Naughten Test
2. Irresistible Impulse Test
3. Durham Rule
4. MPC: Substantial Capacity Test

Front 87

M'Naughten test

Back 87

D is relieved of liability where, at time of commission of offense, he was laboring under such a defect of reason from a disease of the mind that he did not know the nature and quality of the act, or did not know what he was doing was wrong.

Front 88

Irresistible Impulse Test

Back 88

D not guilty where his mental disease kept him from controlling his conduct.

Front 89

Durham (or New Hampshire, or Product) Rule

Back 89

D not guilty if act was product of mental disease or defect.

Front 90

MPC or Substantial Capacity Test

Back 90

D not guilty if at time of act, as a result of mental disease or defect, he lacked substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law

Front 91

Intoxication as a defense

Back 91

Involuntary intoxication may serve as a complete defense, even if it doesn't negate an element, under same circumstances as insanity.

Voluntary intoxication is only a defense if it negates an element of the offense (generally only for specific intent crimes)

Front 92

Requirements for self-defense:

Back 92

Where one has reasonable belief he is in imminent danger of unlawful bodily harm, he may use that amount of forse reasonably necessary to defend himself, unless he is the initial aggressor.
Deadly force may only be used in response to an attack that threatens death or SBI.

Front 93

Requirements for defense of others

Back 93

Force is justified where necessary to defenda a 3rd person from an imminent threat of bodily harm, under same rules as self-defense.
Majority: based on reasonable judgment based on observable facts
Minority: D is in the shoes of the person he protects

Front 94

Defense of property

Back 94

Reasonable, non-deadly force is justified in defending one's property from theft, destruction or trespass where D has reasonable belief the property is in immediate danger and only proportional force is used. Deadly force is never justified in defense of property.

Front 95

Requirements for necessity defense.

Back 95

An otherwise criminal act is justified where (1) it is necessary to avoid an immediate threat of greater harm to persons or property, (2) there is no reasonable alternative to breaking the law to avoid the greater harm, and (3) D is not responsible for causing the greater harm.
Not a defense to murder unless (1) raised as defense to underlying felony in felony murder, or (2) under MPC, allowed where, e.g., D kills one person in order to save many people.