Crim Law/procedure Mbe Foundation

Front 1

Actus Reas - The Criminal Act

Back 1

The Criminal Act must be voluntary.

Unconsciousness, sleep, or hypnosis are not voluntary.

If one has an illness (seizure or pass out), they can be held accountable if:

1. They know of the posibility of the
seizure or black out, AND
2. The last act prior to the indecent
is voluntary.

NN: Voluntary intoxication can
negate the mens rea NOT the
actus rea.

Front 2

3 Types of Crime

Back 2

1. Specific Intent - actual subjective
intent to cause a specific result
(most crimes) (willfully,
purposeful, knowingly).
2. General Intent - requires only an
intent to do the prescribed act
(BAR battery, arson, rape).
3. Strict Liability - requires no
mens rea (regulatory offenses,
food, drug, firearms, morality
crimes).

NN: Most drug crime are strict unless the statute contains specific intent language.

Front 3

Willful Blindness Rule
(an exception to specific intent crime)

Back 3

D can be criminally liable where he himself is deliberately ignorant of facts that would satisfy the mens rea requirement.

Subjective Standard

Front 4

Mistake of Law

Back 4

Is no defense

Front 5

Mistake of Fact

Back 5

Is a defense where it negates the mens rea (must be honest).

1. Specific Intent - any mistake, reasonable or unreasonable.

2. General Intent - only reasonable mistake is a defense.

3. Strict Liability - mistake of fact is no defense

Front 6

Larceny

Back 6

Trespassory taking and carrying away of the personal property of another with the intent to steal.

Front 7

Ladder Elements of Crime

Back 7

1. Actus Rea
2. Mens Rea
3. Causation
4. Defenses

Front 8

Self Defense

Back 8

1. Reasonable non-deadly force is allowed if D reasonably believes it is necessary to prevent immediate harm.

2. Deadly force is allowed to:
a. meet deadly force, OR
b. to counter a threat of serious
bodily harm.

GR: No Duty to Retreat (only applicable if deadly force is threatened).

Front 9

Arson

Back 9

Malicious burning of a dwelling house of another.

Charred - sufficient for arson.

Front 10

Voluntary Intoxication

Back 10

A defense to a specific intent crime where it negates the mens rea, but not a defense to a general intent crime (i.e. arson).

Front 11

Insanity Defense (2 types)

Back 11

M'Naghten - Cognitive (mental)

1. D does not know the nature and
quality of his act, OR
2. D does not know what he was
doing wrong.

ALI/MPC - Cognitive/Volitional (conduct)

D lacks the substantial capacity to either:

1. Appreciate the criminality of his
action, OR
2. Conform his conduct to the
requirements of the law.

Front 12

Entrapment

Back 12

Available where D is unpredisposed to commit the crime prior to contact by the police.

NN: Not a constitutional defense

Front 13

Criminal Liability for Failure to Act

(criminal negligence)

Back 13

Duty arises:

1. Statute - pay taxes
2. Contract - lifeguard has to save
life
3. Creation of victims peril - you
create a dangerous situation and
fail render aid.
4. Relationship - Parent/child,
Husband/Wife and vice versa.
5. Long term live in relationship

Front 14

4 Forms of Mens Rea

Back 14

1. Intent to Kill (1st) - specific
intent (only murder that is
specific intent).

NN: attempted murder is intent to kill, voluntary intoxication is a defense for this.

2. Intent to cause bodily harm (2nd)
3. Depraved Heart Murder (2nd) -
extreemly negligent or reckless
conduct.
4. Felony Murder (1st) - killing
occurs during the commission or
attempted commission of an
inherently dangerous felony
(BARRK).

Front 15

Voluntary Manslaughter (intentional)

Back 15

Mitigated by

1. Adequate provocation - objective
2. Mistaken justification

Front 16

Involuntary (unintentional)

Back 16

1. Gross or Criminal Negligence -
subjectively aware of the risk.
2. Misdemeanor - manslaughter -
killing occurs during a serious
misdemeanor. (assault and
battery are misdemeanors at
C/L).

Front 17

Voluntary Intoxication

What Crimes Does it Reduce

Back 17

Can reduce 1st degree murder to 2nd degree, but does NOT mitigate murder to voluntary manslaughter.

Front 18

C/L Standard for Adequacy of Provocation

Back 18

Reasonable Person Standard

Front 19

Modern Penal Code Standard of Adequacy of Provocation

Back 19

Person with a similar injury or physical condition.

Front 20

What are the Incohate Crimes?

All 3 are specific intent crimes

Back 20

Solicitation, Attempt, Conspiracy, and Accomplice liability

Front 21

Solicitation

Back 21

1. D entices, encourages, orders, or request another to commit a crime. The crime is complete at this point.

2. It merges into the target offense

3. Applies to felonies and breach of the peace misdemeanors at common law.

4. No defenses at common law
(MPC contra. renunciation).

Solicitor must intend a criminal objective.

Solicitee must know what she is doing is criminal

Not solicitation if would not be guilty of the completed crime. see 35 Foundation Book.

Front 22

Attempt

Back 22

1. Intent to commit a crime, AND
2. A substantial step in furtherance.
3. Merges into the complete offense

Defenses - Legal Impossibility - yes
Factual impossibility - No

Front 23

Defenses to Attempt

Factual v. Legal Impossibility (can't violate the statute).

Back 23

Factual - no defense - what defendant intends is a crime, but because of facts unknown to him at the time he is unable to accomplish his goal. (most common).

Legal - is a defense - even if D did all those things he intended to do, he still could not violate the statute.

Front 24

Conspiracy

Back 24

1. Agreement
2. 2 or more persons
3. Intent to achieve a criminal objective
4. Conspiracy does not merge

Withdraw is no defense
MPC contra. if D thwarts the success.

Front 25

MPC Theory of Conspiracy

Back 25

Agreement between 2 or more persons is not required, ONLY agreement by a single actor agreeing with another is needed.

NN: C/L acquittal of one frees everyone. MPC is contra.

Front 26

Accomplice Liability

Back 26

An accomplice

1. Gives aid or encouragement
2. With the intent to achieve a criminal objective.

Scope - all crimes reasonably foreseeable.

Front 27

Scope of Conspiracy

Back 27

All crimes committed in the furtherance of. (Pinkerton Crime).

You can withdraw from a Pinkerton Crime if one gives timely notice.

Front 28

Agency Theory of Felony Murder (Maj)

Back 28

A co-felon is guilty of felony murder where the killing is caused by one of the participants (co-felons).

Front 29

Parties to The Crime

Back 29

Principal in the 1st degree - commits the crime.

Principal in 2nd degree - present and intends a criminal objective.

Front 30

Battery & Assault

Back 30

Battery - unlawful application of force.

Assault (2 types)

1. Attempted Battery Type - specific intent

2. Intent to Scare - general intent

Front 31

Accessory After the Fact

Back 31

1. Knows of completed crime, AND
2. Gives aid or hinders apprehension

Front 32

Robbery (Larceny)

Back 32

1. From the person or his presence
2. By force or treats (intimidation)

Front 33

Embezzlement

Back 33

Fraudulent conversion of the personal property of another by one in lawful possession.

Front 34

Burglary

Back 34

Breaking and entering the dwelling house of another at nighttime with the intent to commit a larceny or felony therein.

Front 35

False Pretenses (Title Passes)

Back 35

False representation of a past or present material fact which causes the victim to pass title to the wrongdoer.

Front 36

Presumptions

Back 36

1. Shifts burden of production to opposing party

2. Must be accepted as true unless rebutted

3. A jury instruction creating a presumption as to an element of a crime is unconstitutional and violates due process

Front 37

Basis for Appeal

(right to jury trial & right to counsel)

Back 37

1. Right to jury trial arises where imprisonment for more than 6 months is possible.

2. Right to counsel arises for felony trial and misdemeanors where imprisonment is actually imposed, or, in the case of an indigent, where a suspended jail sentence is imposed. (violation results in automatic reversal).

Front 38

Standing

Back 38

D must have a possessory interest in the premises searched or items seized to have standing.

Front 39

Inventory Search

Back 39

A routine search to protect the arrestee's personal items and to safeguard the police from any claims of theft.

Front 40

Reasonable Expectation of Privacy

Back 40

Subjective and Objective expectation must be present.

If there is REP, then police intrusion constitutes a search.

If no REP, then police intrusion is not a search.

Front 41

Open Fields Doctrine

Back 41

1. Applies to area beyond curtilage (patio, deck)
2. No REP
3. No 4th Amend. violation
4. A view of open fields is not a search

Front 42

Consent Search

Back 42

Consent extends to all areas where a person with an apparent equal right to use or occupy the property would have joint access or control.

Front 43

Dog Sniff

Back 43

A dog sniff does not constitute a search. A positive canine alert provides probable cause to search.

Front 44

Search

Back 44

1. Must have PC
2. Must have Warrant, Unless
a. stop and frisk/investigatory stop - (reasonable suspicion)
b. search incident to arrest - (armspan rule)
c. plain view - (immediately apparent) (can't turn the TV son).
d. auto exception - (PC)
e. consent - (PC)
f. hot pursuit - (PC)
g. exigent circumstance

Front 45

Probable Cause Based on Informants Tip

Back 45

Totality of Circumstances Test

1. Reliability of Informant, AND
2. Credibility of the Informant

(balancing test)

NN: If anonymous, it must be corroborated.

Front 46

Prosecutorial Comment

Back 46

1. Pre and post arrest silence may
be used for impeachment where
Miranda warnings have NOT
been given.

2. Post Miranda silence may NOT
be used for impeachment.

Front 47

Miranda Waiver

Back 47

Totality of Circumstances

1. Competency of D, AND
2. Nature of Police conduct

(knowing, voluntary, intelligent)

Police Can Trick You, NO threats.

NN: Intoxication does not invalidate a Miranda waiver, NOR does mental illness.

Is it a police environment?

Front 48

4 Bases to Attack Admission of a Statement/Confession

Back 48

1. Voluntariness Approach - broad,
D must be able to make a free
choice free of coercion
.
2. Miranda - custodial interrogation

3. Right to Counsel - initiation of
adversarial proceeding

4. Fruit of Poisons tree - only
follows a 4th Amend. violation.

Front 49

Separate Sovereignties Doctrine

State/Federal State/Different State

Back 49

1. Retrial by separate sovereignties does not violate double jeopardy (does not constitute the same offense).

NN: The City and the State in which it sits are NOT separate sovereignties.