Study your flashcards anywhere!

Download the official Cram app for free >

  • 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

116 Cards in this Set

  • Front
  • Back
Define Retributivism as it relates to punishment theory
Backward looking punishment philosophy. Developed by Kant. Focuses on free will of actors. Requires atonement for crime, and proportionality of punishment to the offense
Define Utilitarianism as it relates to punishment theory
Forward looking punishment scheme, developed by Bentham. FOcuses on maximizing net happiness of society by avoiding punishments that do not serve to maximize utility.
What are the goals of utilitarian punishment?
Maximize society's well being through:
1.Deterrance- General to society and specific to the offender,and
2.Rehabilitation-Reform the criminal's behavior
How does cost benefit analysis affect punishment theory?
Argues that criminals engage in CBA before committing crime, and thus would take into account possible punishments when deciding whether or not to commit a crime.
Why is CBA flawed in punishement theory?
It assumes that all criminals think rationally about crimes(ignores crimes of passion, random crimes, or thrill seeking crimes)
Define Actus Reus?
The criminal act required for all crimes. Assures people will not be convicted for bad thoughts.
What is the "Proctor" problem?
When a person is convicted of thinking about committing a crime. Refers to Proctor v. State, where a conviction was for renting a building with the idea that it might later be turned into a bar.
When can criminal liability attach for failing to perform an act?
1.When the D was under a legal duty to act, and
2. When the D had necessary knowledge to act, and
3. When it would have been possible for the D to act
What are the four ways a legal duty to act can be imposed?
1.By Statute-Remaining at the scene of an accident
2.By Status-parents to kids, husbands to wives
3.By Contract-Nursing homes, day cares
4.By Seclusion- My act has placed you within my sole care.
Does the actus reus have to be voluntary?
Yes, except maybe in cases of transferred voluntariness
Define transferred voluntariness
When one the voluntariness of one act transfers to another. Epileptic's voluntary act of driving off meds transfers to his involuntary seizure that kills bystanders(Poeple v. Decina)
Define automatism
When a person commits an act because of an involuntary seizure. Epilepsy,etc.. )People v. Grant
4 examples of involuntary acts under MPC 2.01
1.A reflex or convulsion
2.Bodily movement during unconsciousness or sleep
3.Conduct resulting form hypnosis
4. Bodily movement not otherwise a prodcut of the effort/determination of the actor
What are status crimes, and why are they unconstitutional?
Status crimes are laws that punish people for certain characteristics(like being a junkie(Robinson v Ca). They are banned under the 8th amendment ban on cruel and unusual punishment
What is an ex post facto law?
A law that makes past behavior criminal retroactively. Banned under the constitution.(Rogers v Tennessee, Bouie v City of Columbia)
What are the 2 factors making a law vague?
A law is unconstitutionally vague if,
1. It is written such that ordinary people can't understand what is prohibited, and
2. It can be arbitrarily and discriminatorily applied.
What is Mens Rea?
Literally the evil mind. It is the mental requirement necessary to be convicted of all crimes except for strict liability.
What is the difference between general and specific intent?
General intent is the volitional doing of a prohibited act, while specific intent requires an intent to commit some further act or cause some further consequence beyond the prohibited act.
Idnetify the 4 levels of Mens Rea under the MPC 2.02
1. Purpose
2. Knowledge
3. Recklessness
4. Negligence
Define purpose under the MPC.
A person acts with purpose to a material element of a crime if the element involves conduct it is his object to engage in the conduct or if it requires circumstances he is aware of the circumstances or hopes that they exist
Define knowledge under the MPC
A person acts with knowledge of a material element when if the element requires a result h eis aware that it is practically certain that the conduct will cuase the result
Define willful blindness
When a person consciously chooses to remain ignorant about a situation in order to escape liability. Is equated to knowledge.
Define rescklessness under the MPC
WHen a person CONSCIOULSY disregards a substantial and unjustifiable risk. Involves a gross deviation from a law abiding citizens standard of conduct.`
Define negligence under the MPC
When a person should be aware of a substantial and unjustifiable risk. Mustbe a gross deviation.
What is the default mens rea under the MPC?
If no mens rea is isted in a statute recklessness is assumed.
What if there is only mens rea listed for one element of a offense?
Then that mens rea must be read into every element. Poor statutory construction can lead to exoneration.(People v Ryan)
What are the policy reasons for strict liability offenses?
1. Allows for extreme deterrant
2.Offers precision in enforcement
What are the concerns with strict liability?
Attaches punishment without fault.Places a stigma on person convicted for what is essentially an accident.
List the indicators for a strict liability offense
1. It is not a commonlaw offense,2. Punishment is relatively light, 3. Offense includes a complex regulatry scheme, 4. Public wlefare offense where the rights of society outweigh the rights of the D, 5. COmmercial activity
Can a crime of omission be strict liability?
No. Crimes of omission require a conscious disregard of a legal duty.
Can a mistake negate mens rea?
Usually not. A mistake of fact will very rarely exonerate a D. While a mistake of law may in some cases.
What is the difference between governing and non-governing law?
Governing law refers to the law under which the D is charged. Non-governing law refers to another law that may affect whether or not an action is illegal under governing law(People v Bray)
What are the two circumstances when a mistake of governing law may negate mens rea?
1. When the law is very complicated(US v Cheek)
2. When the case involves sincerely held religious beliefs and the death of a child(Commonwealth v. Twitchell)
Does a mistake of fact exonerate a person under the MPC?
Only if the person would not have been guilty of a crime anyway. However, it does limit liability to the crimes that the D thought they were commmiting
Is mistake of fact allowed for statutory rape?
Traditionally no. Some jurisdictions have begun to allow it(People v Guest)
Is diminished capacity allowed to negate mens rea?
In most jurisdictions eveidence of diminished capacity short of insanity is not allowed. The MPC and few jurisdcitions allow for any evidence of mental illness when it is relevant to whether or not D had the requisite mental state(Hendershott v People)
Is voluntary intoxication allowed to negate mens rea?
Only in cases that require a specific intent, and then only when the drunkeness is so much that it makes the person incapable of acting purposefully.
Does the MPC allow evidence of voluntary intoxication?
Yes. It is allowed to be introduced to negate any mens rea higher than recklessness.
Can a state include intoxication in its elements of a crime?
Yes. In Montana v Egelhoff the Supreme COurt held that a state could read its mens rea requirement to include voluntary intoxication under purpose.
What kinds of crimes require an analysis of causation?
Result crimes only
Define but-for causation
BUt-for the D's action the reuslt would not have happened.
If two people's actions combine to cuase the result are they liable?
Yes. This is the theory of CONTRIBUTING CAUSATION
If two people action's occur simultaneously and they both would have been suficient to cause the harm are they both liable?
Yes. This is the theory of CONCURRENT CAUSATION.
What is the difference between an independant intervening cause and a dependant intervening cause?
A dependant intervening cause is something not intended by the D, but it ws cuased by them. WIll not break chain of causation. INdependant IC is an action by a 3rd party that was not foreseeable to the D which will break the chain.
What are the factors of a superseding intervening cause?
1.Set in motion after the D's act
2.It was unforeseeable to the D at the time of the act
3. It was the sole major cause of the result
4. It was independant of the D's act
How do courts generally decide whether or not an action was the proximate cause of th result?
Did the result occur as the natural and foreseeable result of the D's action without any intervening causes?
Is medical negligence enough to break the chain of causation?
Not unless the negligence rises to the level of gross negligence on the part of the doctor.(US v Hamilton)
Can a D assisting in suicide be the proximate cause of a person's death?
Not unless they actually took part in the suicide.(People v Kevorkian)Providing with means is not enough unless the D owes a duty to the decedant(Persampieri v Bier)
What if a person intends to kill A,but actually kills B? are they the proxiamte cause?
Yes. INtent follows the bullet. Use transferred intent from torts. Also, don't forget that in this case D is liable for murder of B and attempted murder of A.
Define 1st degree murder
Usually includes willful, premeditated, intentional murder, and a killing committed in furtherance of a violet felony(Felony murder)
List the factors tending to show pre-meditation
1. Prior threats/conflicts with the victim
2.Self interested motive
3. The manner and circumstances of the killing
4. THe origin of the murder weapon
5. D's behavior before the killing
How long does it take to form pre-meditation?
Some courts hold that like intent it can be formed in seconds, but there must be some time. Other courts reject this and look to the manner of the killing, the motive, and the extent of planning activity.
Does the MPC treat pre-meditation as an aggravating factor?
NO. MPC 210.6 comment argues that pre-meditation should mitigate sentence because it tends to show restraint on the part of the killer.
Define voluntary manslaughter
Voluntary manslaughter is a killing commited with adequate provocation.
What are the elements of provocation under the common law?
1. It must be such that a reasonable person would lose control and act rashly
2. The D must have been actually provoked
3. The interval b/w provocation and killing must not be long enough for the passions of a reasonable person to cool
4. D must not have actually cooled off.
What are the elements of provocation under the MPC?
The MPC disregards provocation and defines any killing under the influence of extreme emotional disturbance for which there is a reasonable explanation.
What are the three possible views of the objective standard of provocation?
1. Purely objective standard
(common law view).
2. Objective standard with some of the D's characteristics (age, disability, past criminal acts)
3. Purely subjective standard that allows for viewing the circumstances as the D thought them to be. MPC 210.3(1). Allows for reasonable mistake.
Are words alone enough to provoke?
Under the common law they were not. Now some courts may allow ords if they are informative.
What were the two instances considered to always be provoking events under common law?
Battery and witnessed adultery
What are the instances now included in the list of provoking events?
Aggravated assault, painful battery, mutual combat, illegal arrest(if carried out in a dangerous way) and commission of a crime against a close family member
Does the victim need to provoke?
Under common law the answer was yes. Now courts relax this requirement in some instances.(People v Wu)
Does a court have to consider cultural differences when assessing the reasonableness of the provocation?
No. The culture must be of recognized stature and the D must have been acting in accordance with the culture. The court may also consider how long the person has been in the US, and decide not to let in the testimony.
What are the three kinds of involuntary homicide?
Involuntary manslaughter, reckless murder, and felony murder
What are the two ways involuntary manslaughtrer can occur?
1. Criminal negligence(People v Welansky)
2. Killing committed during the commission of a misdemeanor`
How does a court decide if a person has been criminally negligent?
Look at formula similar to B PL. (Probability of Harm x Gravity of harm)-(Probablitity of benefits x Gravity of benefits). If it is greater that 0 it is negligent, but courts tend to prosecute only those grossly negligent.
What is vehicular homicide?
Specially tailored statutes that increase the penalty for poor driving beyond the one imposed by IM.
Define reckless murder
An unintentional killing that involves an extreme disregard for the value of human life. Often called the abandoned and malignant heart.(Mayes v People). Aggravates IM to 2nd degree murder.
Define felony murder
Any killing committed in furtherance of a forcible felony. Allows for intent from the felony to transfer to the killing. Aggravates a killing from manslaughter to 1st degree murder.
What are the policy reasons behind felony murder?
1. Added deterrant
2. Encourage people to commit felonies more carefully(But may actually cause the opposite)
What are the three ways that felony murder has been implemented?
1. Pure felony murder rule(Ga. has this)Automatic aggravation for a killing
2. MPC 210.2=NO aggravation. Felony just presents a rebuttable presumption of recklessness
3. FM with limitations
What are the four standard limiatations on the felony murder rule?
1.Death must have been foreseeable
2. The felony must be dangerous or committed in a dangerous way
3. A felon must have directly caused the death
4. The death must have been cuased in perpetration of the felony
What is the agency theory?
Theory of felony murder that limits liability to deaths caused by the felons or people working as their agents. Elimiantes liability for deaths caused by victims or police.
What is the protected person theory?
THe PP theory limits liability for deaths only to those people protected under the law. Killing a felon is justified so they are not protected under the law.
Define the Res Gestae theory
RG holds that a person is only liable for a death committed during the course of the felony. Usually the felon must still have the loot, and not have reached a place of safety
Define the dangerous felony limitation
FM is limited to felonies that are inherently dangerous or committed in a dangerous way. For all non dangerous felonies the state can charge 2nd degree FM.
Define independant felonious purpose for FM
Felony must be distinct enough that it does not merge into the offense. Usually asssault is not distinct enough to warrant FM.(Not the case in Ga)
Differentiate betweedn justification and excuse
Justification focuses on the act by saying in some way the victim deserved to die. INcludes self defense, execution. Excuse focuses on the actor. Examples include insanity, duress, or diminished capacity.
What are the elements of a valid self defense claim?
1.Reasonable belief that force was necessary
2. Threat must be imminent
3. The attack must be unlawful
4. The force used must be proportional to the attack
5. Somes states require retreat
Is a self defense claim valid if the D was the aggressor?
Not unless they attacked ith non-deadly force and deadly force was the response, or they withdrew from the combat
When can deadly force be used?
Most states require that deadly force be used only when deadly force is threatened
Is there a duty to retreat?
In most states there is no duty to retreat. In some states it is required in cases of deadly force, but only if it is safe, and the person is not in their home or work.
Will a court consider Battered Spouse syndrome for Self Defense?
Yes. BSS can change a courts finding on imminence of the threat and the reasonableness of the reaction.
When can a police officer use deadly force ?
When it is reasonably ceratin that the person has committed a dangerous felony, or when it is necessary to avoid a substantial risk of death or serious injury. Under common law it was okay to stop the commission of a felony or anyone thought to have committed a felony
When can a person use deadly force to stop a felon?
They are allowed to use force to stop a felony but they can only use deadly force if the perosn has in fact committed a felony. No excuse for reasonable mistake.
When can a person use a spring gun?
Only when they coudl have used deadly force if they were there.(People v Ceballos) MPC forbids the use of spring guns altogether.
What are the three inchoate offenses we studied?
Attempt, solicitation, and conspiracy
What must the state show to convict for attempt?
1. Intent to commit the offense
2. An act in furtherance of the intent
What are the tests for when an attempt has ocurred?
1. Last Step test
2.Indispensable element test
3. But-for interruption test
4. Abnormal step test
5. UNequivocality test
6. Substantial step test-MPC 5.01
Can a person abandon an attempt and escape liability?
Maybe. Under common law there was no defense of abandonment but it could reduce the punishment. NOw the MPC allows for abandonment if it is voluntary, not brougt about by fear of capture or difficulty, and if it involves a complete criminal renunciation
What are the factors identified by the MPC as substantial steps?
1. Waiting for, looking for, or enticing the victim
2. Casing the crime scene
3. Possessing tools that have no legitimate use
4. Soliciting help
5. Going to the scene for no other purpose
6. Collecting tools near the crime scene
What if the attempt was impossible?
Under common law legal impossibility was a defense but factual impossibility was not.
What are the modern rules about impossible attempts?
1. Objective equivocality test-Would a reasonable person have done the act
2. Subjective approach-MPC 5.01-What did the D think they were doing? Would it have been a crime?
How are attempts punished?
Normally the punishment for an attempt is less than the completed offense. The MPC recommends the same punishment
Define solicitation
Basically it is trying to get someone else to commit a crime.
How was solicitation dealt with under the common law?
It was a misdemeanor for all crimes. Now courts limit solicitation to serious offenses only
Can a person abandon their criminal intent and escape liability?
In some jurisdictions yes. MPC recomends an affirmative defense that after solicitation a person persuaded the person not to commit the crime or prevented the commission of the crime.
How is solicitation punished?
Usually it is punished less than the target offense, but again the MPC recommends punishing the same as the target offense unless the crime is a capitol offense
Why punish conspiracy?
Conspiracy makes it more likely that a crime will be committed.
What special procedural rules apply in a conspiracy case?
The trial can be held in any venue that any act in furtherance of the conspirasy ocurrd in. Also the statements of one cospirator can be held to speak for all members of the conspiracy.
Can a person be convicted of conspiracy and the target offense?
UNder common law and he MPC no. Now most courts allow a conviction for both with consecutive sentences.
What is requireed to convict of conspiracy?
UNder common law a person only had to agree to the conspiracy. Now the court requires an agreement and an act in furtherance
What is the Blockburger rule?
Blockburger v. US established that in order for a conviction of conspiracy and the target offense there must be at least one element not required by the other crime to avoid double jeopardy(People v Verive)
Is there a defense of impossibility for conspiracy?
No, almost all sting operations would be worthless if this were the case. (People v Reccio)
Is abandonment a defense for conspiracy?
Yes, but the person will be laible for alll actions committed by all conspirators up until their abandonment. Some states require that all members are told, or that the person try to dissuade ofhter conspirators or call the cops.
What is the Pinkerton rule?
Conspirators are liable for all acts committed by co-conspirators in furtherance of the conspiracy that were reasonabley foreseeable.(US v Diaz). MPC and some jurisdictions reject this rule
When does a supplier becom liable as a member of a conspiracy?
If D knows of illegal use and intends to further the ends of the conspiracy.
How can intent be inferred from knowledge for a supplier of goods?
1. If D charges criminals more
2. If there is no legitimate use for the product
3.If the bulk of business comes from criminals or criminals are using a disproportionate amount of goods
At common law what were the varying degrees of complicity?
1. Principal in the 1st degree(helped in crime)
2. Principal in the 2nd degree(Present or constructively present at the scene
3. Accessory before the fact(helped in preparation)
4. Accessory after the fact(helped in getaway)
Is complicity a crime in itself?
NO, it is a way to impart liability on a person for aiding in a crime.
What is required for conviction for complicity?
The D must have the mens rea of necesary to commit the crime and solicited, aided or attempted to aid the perp, or failed to stop the perp when they had a duty to do so.
How far does the accomplice liabilty extend?
Traditionally accomplice was liable for all crimes committed by the perp that were reasonably foreseeable. The MPC and some jurisdcitions now limit this to only crimes that were contemplated.
Is withdrawal allowed for an accomplice?
Under common law an incitor could withdraw with words and an abettor had to take back their help from the perp. MPC states that the person must deprive their assistance of its effectiveness, call the cops or make a proper effortt to stop the commission
Can their ba an accomplice to a crime with a mens rea less than that of purpose or knowledge?
Usually not(State v Etzweiller). The MPC 206(4)gets around this by specifying that for result crimes, the person helping is guilty if they act with the same kund of culpability to the result as is sufficient for the commission of the offense
Can an accesory be punished for a different offense than the perp?
UNder common law the answer was no. Now Even if the perp was excused, justified, or lacked mens rea, the accesory may still be punished.
Define perpetration by means
WHen a person commits a crime by getting another person to do it for them(usually without their knowledge)(Muni v US, People v Sadacca)
What if the accomplice did not have the purpose of committing the crime?
They can still be convicted of criminal facilitation if they knowingly provided assistance to another in committing a crime.