Criminal Law

Front 1

Expo Facto relates to what case and means what?

Back 1

relates to Keeler case in regards to the definition of a human, and it means changing the rules of the law after the trial has begun (or something similar to that)

Front 2

Statutory Trends regarding human/murder in Keeler

Back 2

1. Fetus destroyed = murder

2. Quickened (past fifth month; kicking) = manslaughter

3. Viable = murder

-viable means if it could have lived outside of the womb.

Front 3

JX's are also split on when human "ends" (Keeler)

Back 3

Traditional: when the heart dies (no heartbeat)

Trend: when either the heart or brain dies

Front 4

JX's are also split about the time between D's act and the victim's death (Keeler):

Back 4

Traditional: gets a conclusive presumption of non-accountability if the victim dies after one year and a day.

Trend 1: D gets a rebuttable presumption of non-accountability if victim dies after three years and a day.

Trend 2: P has the burden to prove victim's death by D's action

Front 5

Points/Take-aways of Keeler:

Back 5

1. Traditional: "human begins when the fetus is born alive.
2. Trend: human begins with (1) a fetus, (2) a viable fetus, (3) a quickened fetus
3. Also the points about the JX's splits.

Front 6

Malice?

Back 6

Intent to kill, intent to commit SBI, recklessness, and felony murder.
-Intent to kill and intent to commit SBI are "specific"
-Recklessness and felony murder are "general"

Front 7

Errington points:

Back 7

1. Murder = homicide + malice
2. Four types of malice
3. Errington itself: Malice includes the intent to commit SBI.
-Errington recap: prisoners who found their friend passed out drunk on a table, and piled him with straw, and lit the straw on fire, burning him alive because he was too drunk to escape.

Front 8

King v. State issue and how is that issue evaluated?

Back 8

Issue: Does malice require recklessness?
Sub-issue: Whether recklessness requires a very high risk to human life?
-High risk is evaluated via the Mental State Program: RPP --> negligence --> gross negligence -->recklessness --> intentional.

Front 9

King's points:

Back 9

1. Malice requires recklessness

2. Recklessness is a VERY HIGH risk of death to human life.

3. Firing a gun without justification at an occupied vehicle constitutes recklessness
-guys who left the club and followed and shot at the car "to scare them" while on the highway.

Front 10

Felony Murder?

Back 10

CL: BAARK (burglary, arson, rape, robbery, and kidnapping) = 1st degree murder
All other felonies: 2nd degree murder

Front 11

Scope of the felony murder rule?

Back 11

Includes times and places, before, during, and AFTER completing the crime's elements.

Front 12

Hokenson's points:

Back 12

1. Malice for murder includes the intent to commit a dangerous felony

2. Types of malice can OVERLAP in one set of facts.
3. Felony murder conclusively presumes malice.
4. Scope and types of felony murder
-Drug store owner that had to come back to the store and wrestled the would be robber who also had a bomb and the bomb killed one of the police officers.

Front 13

Degrees of murder?

Back 13

Purely statutory; not common law
Murder is still murder; but how we hold the D accountable/punish them is what is behind the degrees.

Front 14

Premeditation and Deliberation (PAD) for first degree murder:

Back 14

Traditional: fully formed intent to kill (Drum)
Trend: weighing and reflecting (Perez)

-no time requirement for weighing and reflecting, as long as there is a chance for D to think and consider their action

Front 15

Categories of evidence that can show PAD?

Back 15

1. Planning
2. Motive
3. Manner

Front 16

Does manslaughter include malice?

Back 16

Pssshh, bro you know that its a no.

Front 17

Why does manslaughter exist?

Back 17

Basically, it is holding D accoutnable for homicide when D did not possess the MALICE necessary for murder.

Front 18

3 frames of manslaughter:

Back 18

Majority: "voluntary" and "involuntary" manslaughter (on the exam, use this)

Minority: various degrees of manslaughter, and first degree equates to voluntary manslaughter.
Stat. Trend: manslaughter only for "rule of provocation homicide"; you can mention this if you want, but stick with vol and invol because you may otherwise waste your time.

Front 19

The rule of provocation does what?

Back 19

Mitigates murder to manslaughter.

Front 20

What are the four basic elements of the rule of provocation?

Back 20

C. homicide caused by (subjective)
A. adequate provocation (objective)
S. making sufficient passion (subjective)
C. before cooling off (objective)

Front 21

What is the difference between subjective and objective under the rule of provocation elements?

Back 21

Subjective test: look at the facts for that particular case with that particular D

Objective: good ol' RPP test.

Front 22

What is a solid defense to murder?

Back 22

Voluntary manslaughter!
-always bring this up on the test, even if you're just bringing it up to dismiss it.

Front 23

Whats the difference between insulting words and information(al) words for adequate provocation?

Back 23

Insulting words, standing alone, CANNOT provide adequate provocation; BUT informational words, on the other hand, CAN provide sufficient provocation.

Front 24

Mini-Hypo: If D had sufficient passion to kill does that disregard the provocation?

Back 24

Nope! You would need the provocation to be adequate in order to make sufficient passion (remember that CASC are elements, and thus all are required to mitigate murder to manslaughter)

Front 25

Murder is _________ without ___

Back 25

homicide; JEM (justificaiton, excuse, or mitigation).

Front 26

Actus Reus and Mens Rea?

Back 26

Guilty act; guilty mind

Front 27

Timeline of provocation?

Back 27

Can occur over a period of time (multiple instances); "last straw" approach; result? adequate provocation element in voluntary manslaughter (CASC)

Front 28

What is imperfect self-defense?

Back 28

a retalitory action that is excessive (use of unreasonably deadly force in respone to a threat will likely result in voluntary manslaughter)

Front 29

What does terror have to do with CASC elements of voluntary manslaughter?

Back 29

Terror can be sufficient for making the sufficient passion element.

Front 30

Can you mitigate murder to manslaughter if that person has already committed a crime (assuming its related in time)?

Back 30

Nope! That is called the doctrine of "unclean hands"

Front 31

Defintion of Voluntary manslaughter?

Back 31

the intentional killing of another, in the heat of passion, or by excesive force in self-defense. (used as a defense for murder)

Front 32

Definition of involuntary manslaughter?

Back 32

unintentional killing of a human by:
1. Gross negligence
2. malun in se misdemeanor (misdemeanor-manslaughter rule); or
3. intentionally violating a life and limb protecting statute.

Front 33

Negligence scale?

Back 33

RPP; no risk or only a REASONABLE risk of human death.
Negligence; an UNREASONABLE risk of human death.
Gross Negligence; a HIGH risk of human death
Reckless; a VERY HIGH risk of human death

Front 34

Negligent homicide is what?

Back 34

Another label for involuntary manslaughter
(on exam stick with IM)
Why a new label? Easier on Jury's ears/consciouss to convict someone of IM if its called negligent homicide

Front 35

Legislative (statutory) trends for involuntary manslaughter/negligent homicide:

Back 35

Majority trend: gross negligence for negligent homicide (bier case)
Minority trend: mere negligence for NM
Minority trend: only allow for vehicular manslaughter for negligent homicide (e.g. DUIs)

Front 36

Does the D have to be conscious of the high risk for Gross Negligence?

Back 36

No! Negligence is always measured by the objective test (RPP)

Front 37

Assault (specific intent)?

Back 37

2 "types": 1. attempted battery (common law)
-if D almost hit or tried to hit the victim
2. Intentional apprehension (modern law)

-The victim must anticipate harmful or offensive touching (exam note: the intent to scare would be the first assault charge, and then the second assault charge is the actual hit, and then the third charge would be battery (since there was actual physical contact))

Front 38

Elements of Battery:

Back 38

Unlawful
application of harmful or offensive force
to another

requires at least general intent

Front 39

Notes on Battery:

Back 39

Indirect application of force (harmful or offensive) is STILL battery (burning, poisoning, smoke inhalation); IF done with specific intent then it also satisfies assault

Also, assault and battery are misdemeanors which cannot satisfy the intent to commit a felony therein for CL burglary.

Front 40

Aggravated assault/battery:

Back 40

a. D had the specific intent to commit murder, rape, SBI, robbery, or mayhem
or
b. D used deadly force
or
c. Victim belongs to a special status (police, firefighter, pregnant, elderly, infant)

Front 41

CL Mayhem elements:

Back 41

Malicious
maiming or disfiguring (any part of your body that would prevent you from fighting for the king; eye, hand, finger, leg, etc)
-Disfiguring (ear, nose, etc)
Of another's body

Front 42

ML Mayhem:

Back 42

common law above + specific intent
-malice part can't be recklessness since you need specific intent.

Front 43

Kidnapping elements:

Back 43

a. asportation or confinment
-asportation: the act of carrying away or removing
b. of a person
c. by force, threat, or deception
d. with unlawful intent
(will satisfy CL kidnapping (the K) for felony-murder BARRK.

Front 44

CL Burglary elements:

Back 44

a. breaking
b. entering
c. dwelling
d. of another
e. at night (defined by the ability to define facial features by natural sunlight)
f. Intent to commit a felony therein (in CL, it was only the intent present at the time of the break in)

Front 45

What does breaking require?

Back 45

Not a "physical" breaking, but some kind of physical force that enables the person to get inside.
For criminal purposes "unauthorized entry"
It is possible to have conditional authorization.

Front 46

Points of People v. Stowell:

Back 46

No breaking if D is authorized to enter
Breaking only requires unauthorized physical force
Authorization can be conditional

Front 47

People v. Dupree:

Back 47

Issue: whether breaking includes enlarging an opening?

Points:
1. "breaking" includes further raising a partially opened window
2. Dwelling includes an attached shop

3. Dwelling includes the "curtilage" (places close to dwelling)
4. Common-law burglary's "night" definition

Front 48

People v. State

Back 48

Issue: whether entry requires the person's whole body to be inside the structure?
Points:
Entry only requires a part of D's body to cross the threshold
Breaking can be shown circumstantially (without witnesses); in this case, assumed by the bodily force necessary to break in the door.

-constructive breaking: if the same tool used to do the breaking is the same crim to commit a felony, then its breaking.
-if you train a monkey or kid to do the breaking for you, they are agents of breaking
Stat burglary creates degrees by dropping many CL elements
Thus, stat burglary enlarges the scope of CL burglary (see elements on other flash card)

Front 49

Typical Statutory burglary elements:

Back 49

1. enter or remain (so D can form criminal intent after entering)
2. unlawfully or unprivileged (think unauthorized)
3. building or structure (most states require it to be big enough for a human
4. intent to commit a crime (not just a felony)

Front 50

Notes on stat and common law:

Back 50

Keep them seperated by understanding that every crime has been put into a code; awyes and judges tend to label the crimes in that codebook by either common law (from the judges) or statutory (from the legislators)
They tend to mix like the circles of hell in Dante's Inferno; Degrees of statutory burglary and the 1st degree (most serious) is usually CL burglary.

Front 51

People v. Gauze:

Back 51

Issue: whether of another includes co-habitated premises?
Points:
-you can't burgle your OWN dwelling, because it is not of another
-Even landlord and invited guests can burgle an occupants dwelling
-Fraud can vitiate/negate the occupant's consent to enter (see deceit card)
-note: if he had robbed the roommate's room then it would be burglary because he does not occupy/dwell in that room.

Front 52

Deceit and its relation to fraud (and burglary)

Back 52

Anytime you accept consent or permission, based on fraud or deceit, that fraud or deceit negates the consent that you were given.

Front 53

Common law arson:

Back 53

Malicious
Burning (consumption or at least the charring of the structure; NOT smoke damage)
Dwelling
of another

Front 54

Malice and arson?

Back 54

Malice is not limited to a specific intent to burn!

Front 55

Modern law arson:

Back 55

Malicious
Burning
of ANY building or structure, including personal property (typically over $500 worth of value)

Front 56

Common Law Larceny:

Back 56

a. trespassory
-(without consent, yo)
b. taking possession
c. carrying away (even a slight movement away)
d. of personal property
e. of another
-includes the owner's agent (cashier, etc)
f. with intent to steal

Front 57

Whats the deal with misdelivered goods, fam??

Back 57

Finders of lost property, or those that receive it by mistake, who pick it up, or accept its delivery with an innocent intent, do not commit trespass and so cannot be guilty of larceny even if later they give in to the temptation of keeping the property for themselves. BUT if they have a clue as to who it belongs PRIOR to taking it, then can be guilty of larceny.

Front 58

Larceny by trick?

Back 58

= theft by deception, a form of larceny; the consent was provided through fraud thus breaking the trespassory element.

Front 59

Robbery:

Back 59

Larceny elements PLUS force or fear against the victim or possessor of the property

Front 60

Minority view on robbery:

Back 60

If D has good faith belief that the personal property is his or hers, that belief negates the intent to steal (as long as the same property is not just its equivalent in cash), thus not robbery --> must LITERALLY think it is the same exact item as yours.

Front 61

Common Law Embezzlement elements:

Back 61

a. Conversion
-treating the property of another as yours
b. of personal property
c. of another
d. By one entrusted with the property
-. Entrust = having "care or use or disposal" of the property.
-D must have been entrusted with the property at the time of the conversion
-A keyless person is NOT entrusted with the contents of the locked box, the physical proximity to a locked box is also not entrustment.
e. with fraudulent intent

Front 62

False pretenses (for most states) elements:

Back 62

a. making a knowingly false representation
-Maj: must be a physical fact --> rep. has to exist
-Min: includes false promise --> broadens the majority view
b. chasing victim to pass title
c. Of personal property
d. with fraudulent intent

Front 63

Notes on false pretenses:

Back 63

a. False pretenses include protection of ownership rights ; the other "common law" theft crimes involve possessory rights.

b. "Title" can be money
c. The common law theft crimes are mutually exclusive; just because you committed one does not mean you did not commit the other.

Front 64

In what order to you analyze theft on the test?

Back 64

specific crime (larceny), then consolidated theft, then modern theft

-Why? Starting with the narrower definition allows you to just reference your previous reasoning for the following wider sections.

Front 65

Consolidated Theft Statutes:

Back 65

a. allows prosecution to charge "consolidated theft"; allows prosecution to make small mistakes --> bundle the crimes together as long as there was an unlawful taking, the defendant will not get acquitted.

b. P must prove all the elements of one of the theft crimes included within the statute at trial
c. If the JX has both consolidated and CL theft crime, then it logically stands that if D can be convicted under common law then they can be validly convicted under the consolidated theft statute.
-Likewise, if D is not convictable under any CL theft crime, then D is not convictable for a consolidated theft crime.

Front 66

Why Modern Theft Statutes?

Back 66

a. Goal: enlarge the scope of theft; making it easier to cover more items and making it easier for prosecutors to prove
b. How much easier? Get a valid conviction without proving all of the common law elements

Front 67

What do (some) Modern Theft Statutes do?

Back 67

a. replace "trespassory", "taking", "carrying away" with "obtaining unauthorized control.
b. can include more than "tangible" property, and can include intangible property
c. Use "of a thing of value" = real property, tangible and intangible property, contract rights, action, services, and and rights or use or enjoyment connected with those examples.

Front 68

Example of elements of a Modern Theft Statute (no single prototype):

Back 68

a. obtains unauthorized control
b. over thing a value
c. of another
d. with intent to deprive
e. and actually deprives

Front 69

Receiving (or concealing) stolen property elements:

Back 69

a. receive or conceal

b. goods known to be stolen

c. at the time it is received

d. with intent to permanently deprive the owner

e.Modern: misdemeanor v. felony- depends on value of property received

Front 70

Malicious Mischief (ITS EVERYWHERE!)

Back 70

a. Malice--> must find one form of it

b. destruction or substantial damage

c. to property

d. of another

e. misdemeanor v. felony: dependson nature or value of the property

Front 71

Computer Crimes:

Back 71

a. statutes prohibiting access of computer data w/o permission;

b. the damaging, destruction, deletion, or misuse of computer data w/o permission
i. Includes printing computer data, theft of computer services, and contamination of computer data.

Front 72

Forgery:

Back 72

a. making or materially altering
b. a document of LEGAL significance
c. that purports to be another's
d. with intent to defraud

Front 73

Typical Utterance elements (w/ Campbell's elements):

Back 73

a. filing a false instrument; OR

b. causing it to be filed; with

c. Knowledge of its false nature

ex: cashing a knowingly bad check
d. Campbell's elements:
i. Tendering a forged writing
ii. With intent to defraud

Front 74

Counterfeiting:

Back 74

a. unlawful
b. making of false money;

c. in the similitude of the genuine (similar to real/actual money)

Front 75

Extortion:

Back 75

a. Corrupt;
b. collection;
c. of a fee; OR

d. Prosecution (non-donation)

Front 76

Treason:

Back 76

a. defined by constitution;
b. breach of allegiance; AND
c. aiding; OR

d. comforting the enemy

Front 77

Perjury:

Back 77

a. False oath in judicial proceeding in regard to a material matter.

i. False oath is a willful and corrupt sworn statement w/o sincere belief in its truthfulness

Front 78

Subordination of perjury:

Back 78

a. the procurement of perjury by another

Front 79

Bribery:

Back 79

a. corrupt
b. conveyance; OR

c. acceptance;
d. of money;
e. to influence action

Front 80

Obstruction of Justice

Back 80

a. completion of injury;
b. knowledge of the completed felony;
c. aiding the felon's escape; OR

d. concealment;
e. with the specific intention to hinder apprehension

Front 81

Escape:

Back 81

a. unathorized departure;
b. of a prisoner;
c. from legal facility; OR

d. Custody;

e. without use of force
i. if force was used, it is a prison breach

Front 82

Misprision of Felony:

Back 82

a. Concealment; AND

b. Nondisclosure;

c. Of a known felony;
d. Of another

Front 83

Compounding Crime:

Back 83

a. accepting anything of value;
b. Under an agreement NOT to prosecute the known offender

Front 84

Contempt:

Back 84

a. misconduct;

b. adversely affecting the administration;

c. of a governmental function

i. may take the form of interference of a legislative body OR the court

Front 85

To Impute Criminality:

Back 85

a. Necessity of the act
b. Constitute an act?
c. Character of the act (malice)?

Front 86

What is the expanation of the first part of imputng criminality?

Back 86

a. Necessity of an act
i. Intent alone is not enough, even if the defendant had clear intent to commit a criminal act.
ii. Sometimes the actus reus is purely a factual issue: what is the EVIDENCE to show what D did?

Front 87

What is the explanation of the second part of imputing criminality?

Back 87

b. Constitute an act?

i. Affirmative action (unless its a negative act)

ii. Must be a CONSCIOUS act

-knowledge of the condition which MAY later make you unconscious counts
iii. Sometimes a prior act is the imputed conscious act (e.g. deciding to drive when you are drunk, sleepy, or unmedicated epileptic)

Front 88

What is the explanation of the third part of imputing criminality?

Back 88

c. character of the act (malice)?

i. Sometimes depends on D's intent
ii. A prior intent CANNOT conclusively presume a later intent

Front 89

Possession is special! Also elements of it!

Back 89

a. constitutionally requires knowing possession or actual knowledge
b. Elements: power and intent to control
c. Mere presence not enough to impute possession.
d. the amount of contraband in D's possession can be a conclusive presumption of trafficking.

Front 90

Attempt crimes require:

Back 90

a. specific intent to commit target offense
b. an overt act towards commission of the target offense (beyond mere preparation)

Front 91

Attempted crimes are a:

Back 91

separate crime --> validily convicted of an attempted crime AND the crime itself (you can be charged with both)
reason: society wants to deter and reform D(s) before actual commission of crimes.

Front 92

How to analyze timeframe of attempt crimes?

Back 92

Think "first in timeline" (the closer on the timeline to the target offense the more likely the defendant can be convicted of the attempted crime of THAT T.O.)

-Physical space is relevant as well --> physical impossibility --> space + time

Front 93

Split of authority on what constitutes an "overt act" for an attempt crime:

Back 93

Traditional = TOO REMOTE (looks forward at time and distance by looking towards the target offense)
Trend = substantial step test: this looks back at time towards the INTENT and considers the defendant's actions
-Defense wants to look at time and space (D may have wanted to kill them, but if they're not near them then it may be too remote to argue attempt crime.
-Prosecutor wants to argue that all of the actions leading up to the possible attempt makes it an attempt crime.

Front 94

What is the relation between recklessness and attempt crimes?

Back 94

RECKLESSNESS WILL NEVER BE SUFFICIENT FOR AN ATTEMPT CRIME; it lacks the specific intent to commit the crime.

Front 95

Attempted Murder:

Back 95

a. Murder is a heinous act
b. Elements to convict of this crime:

-the intent to commit murder
- if you are armed
- at a place where the D confidently expects the victim to be

Front 96

What are the two types of impossibility?

Back 96

Legal impossibility and Factual impossibility

Front 97

Which impossibility is the defense to attempt crimes?

Back 97

legal impossibility!

Front 98

Legal impossibility:

Back 98

a. T.O. is impossible to commit by any means OR
b. D's fully carried out plan is not a T.O. (what D is doing is not sufficient to be charged as a crime)
c. Is a DEFENSE to attempt crimes

Front 99

Factual impossibility:

Back 99

a. T.O. is impossible to commit by D's means OR

b. A fact unknown to the D prevents carrying out the D's plan.
-in other words "BUT FOR" a fact unknown D would have completed the crime.
c. NOT a defense to attempt crimes.

Front 100

Abandonement requires:

Back 100

a. Defendant stops voluntarily
i. there is a change of consciousness; cannot be a fear of getting caught. (change of consciousness must affect mens rea)

b. Prior to substantial harm

Front 101

Traditional and trend view of abandonement:

Back 101

Trad: Cannot negate a completed crime or a completed attempt crime

Trend: Allows abandonment doctrine to negate attempt crimes
a. A DEFENSE to attempt crimes --> you must show that the D had a "change of heart"

Front 102

Involuntary abandoment?

Back 102

a. External factors that are not the internal change of consciousness (ex: unanticipated difficulties, unexpected resistance, etc)
-thus, fails to satisfy the first element of stopping voluntarily

Front 103

Solicitation requires:

Back 103

a. serious (mens rea) urging or asking (actus reus)
b. of another
c. to commit a criminal act

Front 104

Five additional rules (things to remember) about solicitation:

Back 104

a. must be a criminal act for the solicitee
b. target offense does not have to be completed
c. if solicitee agrees to commit the T.O. then BOTH can be validly guilty of conspiracy. If the crime is completed the solicitor can ALSO be guilty of the T.O. (via rules of conspiracy or link of aiding and abetting)
d. Will become a LIO (of a completed conspiracy, or its completed target offense (LIOs will be discussed later)

Front 105

Legislative (Statutory) trend of Solicitation:

Back 105

Abandonment is a defense to solicitation in certain JXs (encoruage people to abandon intent prior to T.O.)

Front 106

Negative acts and imputability:

Back 106

Imputing criminality to a defendant when the defendant fails to act; in order to apply there must exist:

a. duty to act
b. failure to act
c. Knowledge of facts giving rise to duty
d. ability to act

Front 107

Key questions to ask:

Back 107

a. was there a duty?
b. to whom is the duty owed?
c. What is that duty?

Front 108

Sources of Duty (negative act stuff)

Back 108

a. Statutory
-child neglect statute (example)
b. Status relationships
-parent's duty to child // mutual duty of spouses
c. Contractual (can be implied as well as formal)
d. Voluntary assumption (plus victim's detrimental reliance)
e. Created the peril
f. Control of a dangerous being
g. Land owner.

Front 109

Trend of Negative acts:

Back 109

Arising tort law, towards recognizing more status relationships, which trigger the duty to act.