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140 Cards in this Set

  • Front
  • Back
Essential Elements of Crimes
- Act (Actus Reus)
- Mental State (Mens Rea)
- Causation
- Concurrence
Inchoate Crimes
- Solicitation
- Conspiracy
- Attempt
Defenses
- Insanity
- Intoxication
- Infancy
- Mistake
- Self-Defense
- Duress
- Entrapment
Can a crime be prosecuted where part of the act took place or where the result took place?
Both
Maximum punishment for a misdemeanor
1 year in prison
Define a physical act
An act is a voluntary bodily movement. Involuntary acts such as reflex or unconscious conduct do not count.
Three requirements for Act of Omission
1. A legal duty to act
2. Knowledge of the facts giving rise to the duty
3. The ability to help
Legal duties can be created by (5):
1. statute
2. Contract
3. Status relationship (spouse/spouse, parent/child)
4. Voluntary assumption of care
5. Creation of the peril
Requirements for Possession:
(1) Control for a period of time long enough to have an (2) opportunity to terminate possession.
Define Constructive Possession
Close enough for D to exercise DOMINION and CONTROL over the contraband
Common Law Mental States (4)
1. Specific Intent
2. Malice
3. General Intent
4. Strict Liability
Define CL specific intent
When the crime requires not just the desire to do the act, but also the desire to achieve the specific result
CL Specific Intent Crimes (11)
1. Assault
2. 1st degree premeditated murder
3. Larceny
4. Embezzlement
5. False Pretenses
6. Robbery
7. Forgery
8. Burglary
9. Solicitation
10. Conspiracy
11. Attempt
Define CL Malice
When a D acts intentionally or with reckless disregard of an obvious or known risk
CL Malice Crimes (2)
1. Murder
2. Arson
Define General Intent
The D need only be generally aware of the factors constituting the crime; he need not intend a specific result.
CL General Intent Crimes
ALL crimes against the person

i.e. battery, forceable rape, kidnapping, false imprisonment, etc
Crimes against the person
1. Battery
2. Assault
3. Murder (and all lesser included offenses)
4. False Imprisonment
5. Kidnapping
6. Rape (Forcible and Statutory)
Define Strict Liability
When the crime requires simply doing the act; NO MENTAL STATE is needed
CL Strict Liability crimes (2)
1. Public Welfare offenses
2. Statutory rape
MPC Mental States (5)
1. Purposely
2. Knowingly
3. Recklessly
4. Negligently
5. Strict Liability
Define MPC Purposely
When it is the D's conscious desire to accomplish a particular result
Define MPC Knowingly
When the D is aware of what he is doing and there is a substantial likelihood that the result will occur
Define MPC Recklessly
When the D is aware of a substantial and unjustifiable risk, AND consciously disregards that risk
Define MPC Negligently
When the D should have been aware of a substantial and unjustifiable risk.
Define MPC Strict Liability
When the crime is a violation that carries NO possibility of jail time
Causation needed for guilt
BOTH Actual and Proximate causation
Rule for Actual Causation
a D is an actual cause if the bad result would not have happened BUT-FOR the D's conduct

Exception - an "accelerating cause" is an actual cause
Rule for Proximate Causation
a D is the proximate cause if the bad result is a natural and probable consequence of the D's conduct
Effect of Intervening Causes on proximate cause
D will NOT be considered the proximate cause if an UNFORESEEABLE INTERVENING EVENT causes the bad result
Effect of Eggshell Victims on Proximate Cause
D WILL be considered a proximate cause even if the victim's pre-existing weakness contributed to the bad result.
CL Battery Elements
1. The unlawful
2. application of force to another
3. Resulting in bodily injury or offensive touching
4. With general intent
CL Assault Elements
1. Intentional creation (other than by mere words)
2. of reasonable fear in the mind of the victim
3. of imminent bodily harm
Ways to elevate to Aggravated Assault and Battery
- a weapon is used
- the victim is a child
- the intent is to commit a robbery or rape
CL Murder Elements
1. Causing Death
2. Of another person
3. with Malice Aforethought
What constitutes Malice Aforethought
- intent to kill
- intends to inflict serious bodily harm
- extreme recklessness (reckless indifference to human life / "abandoned & malignant heart")
- intentionally committing an inherently dangerous felony
Transferred Intent
When D intends to harm one victim, but accidentally harms a different victim instead, the intent will transfer to the new victim.

does NOT apply to attempts
Define CL First Degree Murder
Any killing committed with
- premeditation AND
- deliberation
Define CL Second Degree Murder
All intentional murders that are not first degree
Define CL Felony Murder and Limitations
Any killing caused during the commission of or attempt to commit a felony.

Limited by:
- D must be guilty of underlying felony
- Felony must be inherently dangerous and separate from the killing itself
- Killing must take place DURING felony or during IMMEDIATE FLIGHT
- Death must be foreseeable
- Victim can't be a co-felon
Requirements for Provocation (4)
- would arouse sudden & intense passion in the mind of a reasonable person
- D was actually provoked
- D did not have time to cool off
- D did not actually cool off
CL Voluntary Manslaughter Elements
1. An intentional killing
2. committed in the heat of passion
3. After adequate provocation
Define CL Involuntary Manslaughter
- A killing comitted with criminal negligence

OR

- A killing committed during the commission of a misdemeanor or a felony that does not qualify for felony murder.
Define MPC Murder
Killing committed:

-Purposefully or Knowingly

OR

- with extreme recklessness
Extreme recklessness is PRESUMED where a killing occurs in the course of (5):
B - burglary
R - robbery
A - arson
K - kidnapping
E - escape
S - sexual assault
Define MPC Manslaughter
Killing committed:

- Recklessly

OR

- purposefully or knowingly under the influence of extreme emotional disturbance (EED)
Define MPC Criminally Negligent Homicide
Killing committed negligently, meaning the D should have known of the substantial and unjustifiable risk of death
Elements of False Imprisonment
1. The unlawful
2. Confinement of a person
3. Without his consent

Mental State - General intent
Elements of Kidnapping
1. False imprisonment
2. that involves moving the victim or concealing the victim in a secret place

Mental State - General intent
Factors that will elevate kidnapping to aggravated kidnapping (3)
1. the purpose is to collect ransom
2. the purpose is to commit a rape or robbery
3. the victim is a child
Elements of Forcible Rape
1. Sexual Intercourse
2. Without the victim's consent
3. Accomplished by
- force
- threat of force
- when unconscious

Any amount of penetration is sufficient.

Mental State - General Intent
Elements of CL Statutory Rape
1. Sexual Intercourse
2. with someone under the age of consent

Mental State - Strict Liability
MPC distinguished from CL Statutory Rape mental state
MPC requires a mental state of negligence so that reasonable mistake as to the age can be a defense
Define CL Larceny
"Thieves Picked Charlie's Pocket Inside The Airport Terminal."

Trespassory
Taking and
Carrying away the
Tangible
Personal property
of Another, with the
Intent to
Permanently retain the property
The Erroneous Takings Rule
A taking under claim of right is never larceny, even if the D erroneously believes the property is his.
Continuing Trespass Rule
If the D wrongfully takes property without intent to steal but later forms the requisite intent, the initial trespassory taking is continued and he is guilty of larceny
Define CL Embezzlement
Conversion of the personal property of another by a personal ALREADY IN LAWFUL POSSESSION of that property, with the INTENT TO DEFRAUD.

note: intending to give back exact property in exact form does not meet intent to defraud element
Define CL False Pretenses
Obtaining title to the personal property of another by an intentional false statement, with the intent to defraud

Note: D gets title w/ false pretenses
: stmt must be of a present or past event (not a future promise
Define CL Larceny by Trick
If the D obtains only custody (not title) as a result of the intentional false statement, the crime is larceny by trick.
CL Robbery Elements
1. A larceny
2. From another's person or presence
3. by force or threat of immediate injury

Mental state - specific intent to steal
CL Forgery Elements
1. Making or altering a writing
2. so that it is false
3. With intent to defraud
MPC approach to property crimes
- Combine to create THEFT
- seriousness determined by value of property stolen
Define CL Burglary
Breaking and entering the dwelling of another at night with the specific intent to commit a felony inside.

Note: Constructive breaking counts as gaining entry through fraud, threats, or intimidation.
Define CL Arson
The malicious burning of a building.

Burning is defined as: material wasting and it must include the fiber of the building itself (i.e. not a carpet within)
Rule of Accomplice Liability
The accomplice is guilty of all crimes that he aided or encouraged AND
all other foreseeable crimes committed along with the aided crimes.
How can an accomplice WITHDRAW if he encouraged? aided?
Encouraged - must discourage the crime before committed

Aided - must neutralize the assistance or prevent the crime from happening
Define CL Accessory After the Fact
D must
- Help a principal who has committed a felony
- with knowledge that the crime has been committed AND
- with the intent to help the principal avoid arrest or conviction
Define Solicitation
ASKING someone to commit a crime, with the intent that the crime be committed.

Crime completion unnecessary
Define Conspiracy
an AGREEMENT between two or more people to commit a crime, PLUS an overt act in furtherance of the crime.

Crime completion unnecessary
Wharton Rule
When two or more people are necessary for the commission of the substantive offense, there is no conspiracy UNLESS more parties participate in the agreement than are necessary for the crime.
Can you have a one-person conspiracy in CL? in MPC?
CL - no - there must be at least two GUILTY parties

MPC - yes - a D can be convicted of conspiracy even if the others involved are acquitted
What is Pinkerton Liability?
Vicarious liability for conspiracy.

D will be liable for other crimes committed by his co-conspirators if those crimes were
- in furtherance of the conspiracy's objectives AND
- foreseeable
Define Attempt
The overt act beyond mere preparation with the specific intent to commit the underlying crime.

CL - conduct that gets very close to the commission of the crime.
MPC - conduct that constitutes a substantial step towards the commission of the crime
Is factual impossibility a defense to attempt?
No.
Is legal impossibility a defense to attempt?
Yes.
Merger Rule for Inchoate Offenses
Solicitation and Attempt merge with the completed crime.

Conspiracy does not merge and can be charged in conjunction with the completed crime.
Define the defense of Insanity
D must have a mental disease or defect at the time of the crime that render the D legally insane.
The M'Naghten Test
the D either:
- didn't know that his act was wrong OR
- didn't understand the nature of his act
The Irresistible Impulse Test
the D either
- was unable to control his actions OR
- was unable to conform his conduct
The MPC Test
the D lacked the substantial capacity to either
- appreciate the criminality of his conduct OR
- conform his conduct to the requirements of the law.
Legal Insanity can be determine in (3) ways
1. The M'Naghten Test
2. The Irresistible Impulse Test
3. The MPC Test
Voluntary Intoxication can be a defense to ______________ only.
specific intent crimes
CL Defense of Infancy age limits
At the time of the crime the D is:
- under 7 - prosecution not allowed
- under 14 - rebuttable presumption against the prosecution
- 14+ - prosecution allowed
What crimes is CL Mistake of FACT a defense to?
If it's a reasonable mistake = all crimes except strict liability

If it's an unreasonable mistake = only specific intent crimes
Rule for use of NON-deadly force
A D may use non-deadly force in self-defense if it is:
- reasonably necessary
- to protect against an immediate use
- of unlawful force against himself
Rule for use of DEADLY force
a D may use deadly force in self-defense, if he is facing an imminent threat of DEATH or SERIOUS BODILY INJURY

- can't use if D is initial aggressor unless he withdraws and communicates withdrawal or the victim escalates the non-deadly fight into a deadly one
Is retreat required in CL? in MPC?
CL - no, never

MPC - yes unless D cannot retreat safely or he is in his own home
What affect does an unreasonable mistake have on self-defense?
CL - There is no self-defense claim

MPC - mitigates liability
Defense Rule of Duress
It is a defense if the D was forced to commit a crime because of a threat, from another person, of imminent death or serious bodily injury to himself or a close family member.

EXCEPT in homicide
Define Entrapment
If the gov't unfairly tempted the D to commit the crime - very narrow due to requirement that D not be predisposed to commit crime.
Categories of government agents (2) (allowed to execute search or seizure)
1. Publicly paid police (on or off duty)
2. Private citizens IF they are acting at the direction of the police
Protected areas (4)
1. Persons (bodies)
2. Houses (incl. hotel rooms and curtilege)
3. Papers
4. Effects (purses, back packs, etc.)
Unprotected areas (8)
"Patty Achieved A Glorious Victory Over Her Opponents"

P - Paint Scrapings (from car)
A - Account records (held by bank)
A - Air space (can be seen overhead by plane)
G - Garbage left on curb
V - Voice
O - Odors (esp from car or luggage)
H - Handwriting
O - Open fields (seen in or across open fields)
To have STANDING to challenge a search or seizure the individual's _____________ privacy rights must be invaded
Personal (owned or lived in premises, owned property, etc.)

Can't challenge if it was a 3rd party whose rights were violated (i.e. found your drugs in friend's purse)
If there is a search/seizure, ask the following questions to determine if it complies with 4th Amendment warrant requirements (3)
1. Is the warrant supported by probable cause and particularity?

2. If not, did police officers rely on a defective warrant in "good faith"?

3. Was the warrant properly executed by the police?
Probable cause for Search Warrant requires:
Proof of a "fair probability" that contraband or evidence of a crime will be found in the area searched.

- hearsay is admissible for this purpose
- known or anonymous informant tip is admissible for this purpose IF police officer can corroborate
Particularity Standard for Search Warrant
Warrant must specify the place to be searched AND the items to be seized
Exceptions to officers good faith uses/saves of a defective search warrant (4)
1. warrant application so egregiously lacks in probable cause that no reasonable officer would rely on it

2. Warrant is so facially deficient in particularity that officers could not reasonably presume it to be valid.

3. The affidavit relied upon by the magistrate contains knowing or reckless falsehoods that are necessary to prob cause finding.

4. Magistrate issuing the warrant is biased in favor of prosecution.
Knock and Announce Rule
requires police to knock and announce their presence and purpose before forcibly entering the place to be searched

UNLESS officer reasonably believes that doing so would be futile or dangerous or inhibit the investigation
8 Exceptions to Warrant Requirement
ESCAPTIST

E - exigent circumstances
S - search incident to arrest
C - consent
A - automobile
P - plain view
I - inventory
S - special needs
T - terry stop
Types of Exigent Circumstances (2)
Evanescent Evidence - evidence that would disappear in the time it would take to get a warrant

Hot Pursuit of Fleeing Felon - allows police to enter home into which suspect flees. Plain view evidence found during pursuit is admissible
Scope of search incident to arrest (time and what)
Must be contemporaneous with time and place of arrest.

Can search wingspan, which includes body, clothing, and any containers within the arrestee's immediate control without regard to the offense.
Scope of automobile search incident to arrest
Interior cabin including closed by not locked containers but NOT the trunk.

Once arrestee in custody and in squad car - can only search vehicle if reason to believe it contains evidence relating to the crime for which the arrest was made.
Who prevails if co-tenants disagree on consent?
Objecting party
Rule for automobile exception to warrant requirement
Officers need prob cause to believe that contraband or evidence of a crime will be found in vehicle.

Can search entire vehicle AND may open any package, luggage or container that may REASONABLY contain the items for which there was probable cause to search.
Requirements for Plain View Exception (3)
1. Lawful access to place from which the item can be plainly seen,

2. Lawful access to the item itself, AND

3. The criminality of the item must be immediately apparent
Inventory searches most commonly occur in which two contexts?
Arrestees: when they are in jail

Vehicles: when they are impounded
Random drug testing has been approved by the SC for (3):
1. railroad employees following an impact accident

2. customs agents responsible for drug interdiction

3. Public school children who participate in any extracurricular activities
What is a Terry STOP?
A brief detention or seizure for the purpose of investigating suspicious conduct
What is a Terry FRISK?
A pat down of the body and outer clothing for weapons that is justified by an officer's belief that a suspect is armed and dangerous.
When are you seized for 4th Amendment purposes?
When a reasonable person, based on the totality of the circumstances, does not feel free to leave or to decline an officer's request to answer questions.

Consider:
- Whether the officer brandishes a weapon.
- The officer's tone and demeanor.
- Whether the individual was told she had to right to refuse consent.
Exclusionary Rule
Evidence, whether physical or testimonial, that is obtained in violation of a federal statutory or constitutional provision is INADMISSIBLE in court against the individual whose rights were violated.
What are the 3 ways to break the causal link so fruit of the poisonous tree can be used?
1. "Independent Source" doctrine - where there is a source for the discovery and seizure that is distinct from the original illegality.

2. "Inevitable Discovery" Doctrine - The evidence would necessarily have been discovered through lawful means.

3. "Attenuation" Doctine - admits derivative evidence where the D's free will has been restored through the passage of time and intervening events.
Requirements for a valid wire tap (4)
"Screen Telephone Calls Carefully"

S - Suspected persons - warrant names suspected persons whose conversations are to be overheard
C - Crime - there is prob cause that a specific crime has been committed
C - Conversations - warrant must describe with particularity which convos can be overheard
T - Time - the wiretap must be for a strictly limited time period.
When does an arrest occur?
Whenever the police take someone into custody against her will for the prosecution or interrogation.

Considered de facto arrest when police compel someone to come to police station for questioning or finger printing.
What standard of Proof is needed for an arrest?
Probable Cause
Federal challenges to exclude a confession (3)
14th Amendment - Due Process Clause

6th Amendment - Right to Counsel

5th Amendment - Miranda Doctrine
Standard for exclusion of confession under 14th Amendment Due Process Clause
Involuntariness, which means that the confession is the product of police coercion that overbears the suspect's will.
When does the 6th Amendment Right to Counsel attach?
When the D is FORMALLY CHARGED (not upon arrest)
Core Miranda Warnings (4)
- Right to remain silent
- Anything you say can and will be used against you in a court of law
- Right to an attorney
- if you cannot afford one, an attorney will be appointed for you
When are Miranda warning necessary?
- Custody

- Interrogation
A valid Miranda waiver requirements (2)
- knowing and intelligent (suspect understands the nature of the rights and the consequences of abandoning them)

- voluntary (not a product of police coercion)
Burden of Proof for a Miranda waiver
on the Prosecution by a preponderance of the evidence
Distinguish 5th and 6th Amendment right to counsel
5th Amendment right to counsel is NOT offense specific. During interrogation, once a request for counsel has been made under Miranda, ALL questioning must stop
Miranda violation evidence exclusion limitations
- can be used to impeach D testimony
- fruits are admissible
- a guilty verdict will stand if gov't can prove harmless error in that D would have been convicted without the tainted evidence
Types of Pretrial Identifications (3)
Line-ups: witness is asked to identify the perpetrator from a group.

Show-ups: one-on-one confrontation between the witness and the suspect

Photo arrays: witness asked to pick out the perpetrator from a series of photos
Distinguish 5th and 6th Amendment right to counsel regarding pretrial identifications
5th Amend - there is no right to counsel for pretrial identification procedures

6th - after formal charging, a right to counsel exists for line-ups and show-ups BUT NOT for photo arrays
Remedial measures for unconstitutional pretrial identification
- exclude witness' in court identification

OR

- include in court identification IF prosecution can show
1. witness had opportunity to view the D at the crime scene
2. certainty of the witness's identification, AND
3. Specificity of the description given to the police.
Standard of proof for pretrial detention:
Gov't must show probable cause to bind D over for trial and detain him in jail
What is a "First Appearance"?
Soon after arrest, a D must be brought before a magistrate to

- advise him of his rights
- set bail
- appoint counsel
The right to an unbiased judge means two things:
- the judge has no financial stake in the outcome of the case

AND

- the judge has no actual malice toward the D
Right to Effective counsel two-prong test
1. Counsel's performance was deficient

AND

2. BUT FOR the deficiency, the outcome of the trial would have been different (prejudice)
To validate a guilty plea, the judge must establish that it is voluntary and intelligent by:
addressing in open court and on the record:

- the nature of the charges, including the required elements of the charged offense AND
- the consequences of D's plea.
When can D withdraw his guilty plea (4 instances)
1. the plea is involuntary due to a defect in the plea-taking colloquy
2. there is a jurisdictional defect
3. the D prevails on a claim of ineffective assistance of counsel
4. the prosecutor fails to fulfill her part of the bargain
The 8th Amendment prohibits:
Cruel and Unusual Punishment

Criminal penalties must not be disproportionate to the seriousness of the offense committed.
Categories of D's the 8th Amendment prohibits death penalty against (3):
1. Defendants with mental retardation

2. Defendants who are presently insane

3. Defendants who were under 18 when the relevant crime occurred.
When does jeopardy attach during a Jury Trial? a Bench trial? a Guilty plea?
Jury trial - when the jury is sworn

Bench trial - when the first witness is sworn

Guilty plea - when the court accepts the D's plea unconditionally
Does Double Jeopardy apply to civil proceedings?
No
Define Double Jeopardy
...nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb by the same sovereign
Exceptions to Double Jeopardy (retrial permitted) (4)
1. Hung jury

2. Mistrial for manifest necessity

3. Successful appeal - unless the reversal on appeal was based on insufficiency of the evidence by the prosecution

4. Breach of a plea agreement by the D