Criminal Law - 1L

Front 1

Utilitarian Theory of Punishment

Back 1

Forward looking, punishes for the betterment of society as a whole

Front 2

General Deterrence

Back 2

Deters others from committing the same crime as defendant.

Front 3

Specific Deterrence

Back 3

Deter defendant from committing the crime again, penalty should be severe enough to outweigh the crime

Front 4

Retributive Theory of Punishment

Back 4

Backward looking, culpability, people should get what they deserve, and when the commit a moral wrong, they should be punished. Intuitive notion.

Front 5

Positive Retributive Theory

Back 5

Culpability is sufficient for punishment (theory of punishment)

Front 6

Negative Retributive Theory

Back 6

Culpability is necessary for punishment, not sufficient

Front 7

Excessive Punishment

Back 7

Protected by the 8th Amendment, punishment doesn't match the crime (can't be put to death for rape)

Front 8

Cruel and Unusual Punishment

Back 8

1. No measurable contribution to the goals of the punishment.

2. It is grossly disproportionate to the crime

Front 9

Circumstantial Evidence for Conviction

Back 9

Conviction may be based on circumstantial evidence alone if circumstances are such that they are inconsistent with reasonable hypothetical of innocence.

Front 10

Jury Nullification

Back 10

Prosecutor has proved beyond a reasonable doubt every fact necessary for conviction, but jury does not convict. Jury ignores the facts and judge's instruction. (doesn't believe it should be a crime, police mistreated defendant, etc.)

Front 11

Principle for Vagueness

Back 11

1. No notice to the ordinary person

2. Arbitrary/ discriminatory enforcement

Front 12

Expos Facto (Illegal under the Constitution)

Back 12

1. Law makes something illegal that was legal when committed

2. Increases the penalties for a crime after committed

3. Changes the rules of evidence to make conviction easier

Front 13

General Rules of Statutory Interpretation (3)

Back 13

1. Plain Meaning

2. Context

3. Legislative History

Front 14

Statutory Vagueness

Back 14

May invalidate a criminal law under Due Process Clause. Too vague and standard less for the general public to understand the conduct it prohibits

Front 15

Rule if Lenity

Back 15

Construe statute in favor of defendant if ambiguous

Front 16

Acts Reus

Back 16

Voluntary affirmative act, conscious exercise of the will.

Front 17

Omission with a Duty

Back 17

SSCCV- Statute, Status relationship (child for parent no status), Contract duty, Created the risk/situation, voluntarily assumed care of another and so secluded the helpless person

Front 18

Mens Rea

Back 18

Mental state,

Front 19

General Intent

Back 19

Any mental state (express OR implied) in the definition of the offenses that relates solely to the conduct and/or the result that constitutes the harm (Usually crimes against persons)

Front 20

Transferred intent

Back 20

Transferring of the mens rea, only transfers the intent of what you actually intended

Front 21

Specific Intent

Back 21

Crime requires the doing of the act with a specific intent or objective. Has 2 mens reas. Look for the word "with." (Usually crimes against property)

Front 22

MPC Mens rea states of mind

Back 22

1. Purposely

2. Knowingly

3. Recklessly

4. Negligently

Front 23

Purposely

Back 23

Conscious objective to engage in certain conduct or cause a certain result

Front 24

Knowingly

Back 24

Practically certain result will happen

Front 25

Willful Blindness

Back 25

Reckless + deliberate action not to find out. (upgrades to KNOWINGLY). MPC uses it, but only some states do.

Front 26

Recklessly

Back 26

Aware of a substantial and unjustified risk that the harm will happen (default MR under MPC)

Front 27

Negligently

Back 27

Out to have been aware of substantial and unjustified risk. Deviates from the standard of care that a reasonable person would exercise.

Front 28

Intentionally (CL) translates to...

Back 28

Purposefully or Knowingly

Front 29

Maliciously (CL) translates to...

Back 29

Intentionally (Purposely, knowingly), recklessly. Ill-will towards the injured person not required.

Front 30

Strict Liability

Back 30

Exception to the mens rea requirement. Certain defenses unavailable (mistake of fact). Usually minor violations that are necessary for public welfare (speeding ticket).

Front 31

Mistake of fact in specific intent crime (CL)

Back 31

Need good-faith mistake (burning a book, but didn't know it was a book)

Front 32

Mistake of fact in general intent crime (CL)

Back 32

Need good faith AND reasonable mistake (didn't think they were burning a book, but a reasonable person would have known it was a book)

Front 33

Mistake of fact in MPC

Back 33

Elemental Analysis, does the person have the specific intent defined by the definition of the crime (thought they were selling cocaine, but turned out to be table salt, still guilty)

Front 34

Mistake of Law

Back 34

Generally, ignorance of the law is no excuse

Front 35

CL and MPC exceptions to mistake of law

Back 35

1. Statute (that turns out to be untrue)

2. Official Interpretation Opinion

3. Judicial Opinion

4. Administrative proceeding/agency

Front 36

But-For Test

Back 36

Commonly used. But for the defendant's conduct (act OR omission), the harm would not have occurred. Ask if it was necessary. If this is satisfied, don't need to use any other test

Front 37

Substantial Factor Test

Back 37

Rarely used, 2 D's acting independently and not in concert commit 2 separate acts each alone is sufficient to bring about the prohibited consequence

Front 38

Acceleration Test

Back 38

Even if result is inevitable, if defendant's act (can be non-deadly) accelerated the death, can be held liable.

**Aggravating a result (causing more pain) is not acceleration

Front 39

Pre-Emptive Cause

Back 39

Another cause preempts or prevents you from achieving your goal and this breaks causation (cause in fact issue). Not guilty, no actus reus.

Front 40

Proximate Causation

Back 40

Victim's injuries must have been the natural and direct cause of the defendant's actions. Direct causal link between the voluntary act and result.

Front 41

Intervening causes

Back 41

Intervening force comes into play after the D's voluntary act and before the harm occurs. (Act of god, 3rd party act). If natural, foreseeable, or direct consequence, D still on the hook.

Front 42

Superseding Cause

Back 42

An intervening cause which breaks the causal chain and and relieves D of responsibility. Look at foreseeability.

Front 43

Apparent Safety Doctrine

Back 43

Superseding cause. When a victim is in apparent safety, and something else happens, is not the direct and natural consequence of the D's act.

Front 44

Free Deliberate Choice

Back 44

Superseding cause. If the intervening cause is a voluntary, informed, free willed human intervening cause, responsibility shifts to the human casing the intervening act

Front 45

Intended Consequence Doctrine

Back 45

Always mention this. A jury will work backwards from the time of death, and will continue looking backward in time until it finds an intention to cause that death, then will stop looking any further back.

Front 46

1st Degree Murder (CL)

Back 46

Intentional (P,K), Deliberate, premeditated killing

Front 47

Premeditation

Back 47

Quantity of time: to think of the matter before it is executed, more than deliberation

Front 48

Deliberation

Back 48

Quality of time. To reflect and make a clear choice to act. Cold and calculated. Normally best for defense attorney to argue was not present.

Front 49

2nd Degree Murder (CL)

Back 49

Malice aforethought (express or implied), lacks premeditation or deliberation

Front 50

Express Malice (2nd Degree Murder)

Back 50

Intentional (P/K) homicide, lacks premeditation or deliberation

Front 51

Implied Malice (2nd Degree Murder)

Back 51

Abandonment and malignant heart. Reckless + Extreme indifference to human life.

Front 52

Involuntary Manslaughter

Back 52

Reckless only (aware of substantial and unjustified risk). Doesn't need extreme indifference.

Front 53

Voluntary Manslaughter

Back 53

Intentional homicide under adequate provocation (objective), heat of passion (subjective).

Front 54

Heat of passion in voluntary manslaughter

Back 54

Subjective, provocation defense is unavailable to defendant who kills after he has reasonable opportunity for the passion to cool.

Front 55

Adequate Provocation

Back 55

Objective, would it have inflamed the action of a reasonable man? Alternative is 2nd degree murder w/ express malice. In CL, words alone are never alone, in MPC, words alone can be enough.

Front 56

2 Considerations of Provocation

Back 56

1. Gravity of the provocation: reasonable person with same qualities as D (age, race, gay, etc...). Does not include qualities antithetical to American ideals (racist, homophobic, hothead, etc..)

2. Loss of self-control: Age only. Would have reasonable person of same age acted the same?

Front 57

Negligent Homicide

Back 57

Ought to have known that there was a substantial or unjustified risk that would result in death. LESS than reckless.

Front 58

Felony Murder

Back 58

Only in CL, a person is guilty of murder if he kills another person during the commission or attempted commission of any felony. All homicides committed in the furtherance of a felony.

Front 59

Elements of Felony Murder

Back 59

1. Inherently dangerous to human life in the abstract

2. Independent of the felony

3. Two approaches (Agency or Proximate Cause approaches)

Front 60

Agency Approach (Felony murder)

Back 60

Majority Rule

1. Must be an agent of the crime who causes the death

2. The acts of the primary party, are imputed to an accomplice.

Front 61

Proximate Causation Approach (Felony Murder)

Back 61

A felon may be held responsible under the felony-murder rule for a killing committed by a non-felon if the felon set in motion the acts which resulted in the victim's death

Front 62

Majority Approach to Rape

Back 62

1. Intercourse

2. Non-consensual

3. By force (physical or psychological) OR threat of force (need resistance unless prevented from resisting by threat to safety. Ex: gun to head)

Front 63

Minority Approach to Rape

Back 63

1. Intercourse

2. Non consensual (presumes consent)

Front 64

Super Minority Approach to Rape

Back 64

1. Intercourse

2. Freely given permission (words/actions)

Presume no consent. No resistance is necessary

Front 65

Attempt

Back 65

Intent to commit a specific offers. Needs MR and AR, doesn't need causation.

Front 66

Mens Rea of Attempt

Back 66

Purposely. MUST prove that the intent was to successfully commit the crime in question

Front 67

Preparation vs. Perpetration in Attempt

Back 67

Preparation is not an attempt, perpetration is. Not a clear line in between that must be crossed.

Front 68

AR for Attempt: Last Act

Back 68

Completed every step. When D has done everything in his power to commit the crime and events are out of his control (pulling the trigger)

Front 69

AR for Attempt: Dangerous Proximity Test

Back 69

Dangerously close or physically close to the intended victim or to setting in motion a chain of events that created a high probability that the crime would be completed. Look at how physically close and then temporally close. (driving to building, no attempt. In the building, attempt)

Front 70

AR for Attempt: Unequivocal Test

Back 70

Objective Standard: Reasonable person would think the defendant's actions were an attempt. Only look at actions, not words. WI only state to use this.

Front 71

AR for Attempt: Substantial Step Test (MPC)

Back 71

Focuses on what the D only did. Ex: Possession of materials near crime for no other purpose, lying in wait, possession of specially designed materials for commission of crime. Up to a jury to decide. Criminal intent must be corroborated.

Front 72

Retributive reasoning for punishing attempt

Back 72

Defendant still culpable for take steps to carry out harm

Front 73

Utilitarian reasoning for punching attempt

Back 73

Specific deterrence: if someone attempts, may try again

General deterrence: prevent others from executing these kinds of thoughts/taking action

Front 74

AR Tests for Attempt

Back 74

1. Last Act Test

2. Dangerous Proximity Test

3. Unequivocal Test

4. Substantial Step Test (MPC)

Front 75

To Defenses for Attempt

Back 75

1. Impossibility Defense

2. Abandonment of Attempt

Front 76

Impossibility Defense (Attempt)

Back 76

Pure legal impossibility, what he thinks is a crime, is not a crime at all.

Front 77

Abandonment of Attempt

Back 77

1. Voluntary

2. Complete

NOTE: can't abandon last act is done

Front 78

Conspiracy

Back 78

A partnership in criminal purposes, a mutual agreement or understanding (express or implied), between two or more persons to commit a criminal act or to accomplish a legal act by unlawful means

Front 79

Mens Rea in Conspiracy

Back 79

Specifically intend to agree to agree to commit the crime (Purposely) PLUS

1. Direct Evidence

2. Special Interests (Stake in business, only used for illegal ends, volume is disproportionate)

3. Aggravated Nature of the crime

Front 80

Actus Reas for Conspiracy

Back 80

Agreement (either express or implied) PLUS an overt act (anything that any of the conspirators do)