Criminal Law -- Cbx

Front 1

A common exception to the rule of coincidence in some larceny cases is the __ __ __, which provides that ...

Back 1

CONTINUING TRESPASS RULE, which provides that a defendant may be guilty of larceny if he forms the intent to permanently deprive AFTER the taking and DURING possession ONLY IF the original taking was WRONGFUL.

Front 2

The elements of embezzlement are ...

Back 2

(1) Possession of property under a trust arrangement;

(2) conversion of that property (use contrary to arrangement);

(3) with intent to defraud.

Front 3

Can borrowing be embezzlement?

Back 3

Yes... because the intent to return or replace converted property of another DOES NOT negate intent to defraud in embezzlement unless the exact same chattel (not money) is being replaced.

Front 4

For purposes of larceny and embezzlement, "Possession" requires __ and __ __.

Back 4

"Possession" requires EXTENSIVE and DISCRETIONARY CONTROL.

But if a low-level clerk gets property from third party, he has possession.

Front 5

The elements of false pretenses are ...

Back 5

(1) obtaining title to property of another;

(2) by means of a misrepresentation of either a past or present fact/intention; (not future or promises)

and

(3) with intent to defraud.

Front 6

The elements of receiving stolen property are ...

Back 6

(1) receiving (taking possession)

(2) actually stolen property (acquired by larceny or other property crime)

(3) while knowing property is stolen

and

(4) intending to permanently deprive.

Front 7

The elements of robbery by threat are ...

Back 7

(1) larceny committed

(2) by threats of IMMEDIATE PHYSICAL HARM that

(3) put the victim in ACTUAL FEAR OF THAT HARM

and

(4) the threat would cause A REASONABLE PERSON TO apprehend immediate harm.

Front 8

The elements of extortion (a.k.a. __) are ...

Back 8

BLACKMAIL...

(1) obtaining property by means of threats that

(2) either threaten something other than physical harm (e.g. embarrassment) or nonimminent physical harm (e.g., beat you tomorrow).

Front 9

For burglary, entry can be by an __ used for __ __ __ __, but not ...

Back 9

For burglary, entry can be by an INSTRUMENT used for COMMITTING THE INTENDED FELONY, but not USED FOR MERE ENTRY.

Front 10

Can burglary be effected by entry from one room to another? What about by entering an item within the dwelling, like a safe?q

Back 10

For burglary, entry may be by moving from a ROOM or AREA of a dwelling to another, but not by entering an ITEM WITHIN THE DWELLING (E.G. A WALL SAFE).

Front 11

For arson, burning requires ...

Back 11

(1) some damage (charring, not blackening)

(2) caused by flame---not mere smoke or heat---

(3) to some part of the structure itself.

Front 12

What issues must be checked for felony murder?

Back 12

Was it a dangerous felony, as defined or as applied?
Was there a causal relationship?
Had the felony already ended?
Was the felony independent of the killing?

For accomplices to the felony, was the killing in furtherance of the felony and a natural/probable result of it?

Front 13

The agency rule for felony murder provides that ...

The proximate cause theory for felony murder provides that . . .

The Redline view for felony murder provides that ...

Back 13

... the court will not apply felony murder if the fatal shot was not fired by one of the felons.

the court will apply felony murder even if a victim or police kills an innocent party.

... liability for felony murder cannot be based on the death of a cofelon.

Front 14

Involuntary manslaughter is ...

Back 14

... the intentional killing that is

(1) in the course of committing a misdemeanor; some courts require that it be malum in se, others suspend requirement of proximate cause for malum in se

or

(2) done with gross criminal negligence. MPC says recklessness which seems to be the same.

Front 15

An omission may constitute criminal liability if ...

Back 15

the defendant

(1) has a legal duty to act arising from law (criminal law, contract law, tort law-placing in peril-, etc.);

(2) had knowledge of the facts giving rise to the duty to act;

AND

(3) could have performed the duty.

Front 16

Rape is ...

Back 16

... is sexual intercourse by a male with a woman not his spouse without the woman's effective consent and by force or threat of force.

Only minority allow a reasonable mistake as to consent.

Victim is not required to do more than make reasonable resistance.

Front 17

When a victim of rape or robbery is confined or moved during the crime, what is the majority view as to whether kidnapping has occurred?

Back 17

Kidnapping does not also occur unless the confinement or movement increases the risk of harm to the victim and is not merely incidental to the crime.

Front 18

To have possession sufficient for actus reus, ...

Back 18

... the defendant must have control of the item long or be within the defendant's dominion and control long enough to have an opportunity to terminate possession, but defendant need not know item is illegal or what it is.

Front 19

The elements of liability as an accomplice are ...

Back 19

(1) participation in the offense;

(2) know the primary actor is going to commit the offense;

and

(3) want to encourage or assist the primary actor in committing it (mere knowledge insufficient without a stake).

Front 20

If a primary actor for a crime has been acquitted and the defendant is charged as an accomplice ...

Back 20

nothing has changed because the liability of participants in a crime is independent and an accomplice may be convicted even if the primary is acquitted.

Front 21

Two ways of evading accomplice liability for a crime in which Defendant participated in are. . .

Back 21

(1) the participant is a member of the class of persons protected by the crime (e.g., female participant in underage rape);

or

(2) the crime inherently involves several types of participants and only some are made liable (e.g., a buyer is not an accomp

Front 22

The elements of the crime of attempt are ...

Back 22

(1) the taking of a SUBSTANTIAL STEP towards committing a crime;

(2) with the intent to commit that act and the specific intent for that crime

Front 23

The possible defenses to the crime of attempt include ...

Back 23

... legal impossibility, but not factual impossibility

Abandonment if complete, fully voluntary, timely, not from particularized fear.

Test for impossibility: If all the facts had been as she believed, would there be a crime? If yes, it's factual; otherwise, legal.

Front 24

What are the elements of the crime of solicitation? Can it merge with other crimes?

Back 24

(1) requesting someone to commit an offense

WITH

(2) the intent that they commit that offense.

Solicitation merges with crime, attempt, and conspiracy

Front 25

Is Abandonment a defense to the crime of solicitation.

Back 25

NO DEFENSE, but MPC says yes if crime is thwarted.

Front 26

The elements of the crime of conspiracy are ...

Back 26

(1) entering explicitly or implicitly into an agreement to commit a crime

WITH
(2) intent to enter into the agreement.
(3) intent that the crime be committed. (mere knowledge is not enough. Must have a stake, at least for less serious crimes).

Often, an overt act by one member is required as well. MPC only requires it for non-serious crimes.

Front 27

What culpability do conspirators have for other crimes? What about accomplices?

Back 27

... all members of a criminal conspiracy are guilty of crimes committed by other members, according to the Pinkerton Rule (not followed by MPC or by many states, which require actual assistance) if the crimes are:

(1) committed in furtherance of the scheme;

and

(2) are a foreseeable result of the scheme.

Accomplices are guilty of crimes that are the natural and probable consequence and were in furtherance of the original crime. MPC says only if D intended to aid those crimes.

Front 28

What good does withdrawal do in a conspiracy?

Back 28

Withdrawal is a defense, if communicated to all, to the CO-CONSPIRATOR RULE but not to CONSPIRACY.

MPC says it is a defense if complete and voluntary, and successfully thwarts the crime.

Front 29

If all other alleged co-conspirators have been acquitted or its equivalent, what is true of the remaining conspirator? What if they are just not brought to prosecution?

Back 29

ACQUITTED because there could not have been a meeting of guilty minds. Not under MPC unilateral approach, though.

If others are merely not apprehended/prosecuted, nothing prevents one conspirator from being convicted alone.

Front 30

Defenses to crimes are ...

Back 30

(1) ignorance or mistake of fact;

(2) no criminal intent;

(3) ignorance or mistake of collateral legal matter involving an element of the offense;

(4) insanity;

(5) unconsciousness;

(6) intoxication;

(7) entrapment;

(8) necessity or "choice of lesser evils";

(9) Duress or coercion;

(10) Self-defense;

Front 31

Ignorance or mistake of fact will affect criminal liability only if ...

Back 31

(1) it shows defendant lacked necessary intent;

and

(2) was objectively reasonable. But the mistake need not be reasonable if SPECIFIC intent is required.

Front 32

The modern statutory mens rea definitions are ...

Back 32

(1) PURPOSE, meaning a conscious desire;

(2) KNOWLEDGE, meaning awareness of a practical certainty;

(3) RECKLESSNESS, meaning awareness of a substantial risk;

(4) NEGLIGENCE, meaning a reasonable person would have been aware of a substantial risk.

Front 33

MBE Criminal Law #105

Generally, ignorance that criminal law regards one's conduct a crime is __ __ unless ...

Back 33

NO DEFENSE unless EITHER

(1) the explicit mens rea of the crime requires knowledge that a law is being violated;

OR

(2) the defendant had an AFFIRMATIVE MISTAKEN BELIEF that conduct was not prohibited, that belief was OBJECTIVELY REASONABLE; and the de

Front 34

MBE Criminal Law #106

A mens rea of willfullness requires knowledge that the conduct ...

Back 34

... violates the law.

Front 35

Per the formal M'Naghten Rule, a defendant is entitled to acquital for insanity only if ...

Back 35

... the facts show that at the TIME OF THE CRIME

(1) he had a serious mental ILLNESS or DEFECT

(2) that IMPAIRED his REASONING abilities

(3) so that he either (a) didn't understand the NATURE OF THE CRIME or (b) didn't understand his ACT WAS WRONG.

Front 36

What is the insanity defense under the Modern Penal Code?

Back 36

D had a mental defect causing him to lack capacity to either appreciate criminality of his act or conform his conduct to the law.

Front 37

If a defendant will be acquitted for voluntary intoxication ONLY IF ...

Back 37

(1) the charged crime requires specific intent;

and

(2) the intoxication shows D lacked that intent.

Front 38

In homicide cases, the defense of intoxication can __ __, but cannot __ __ __ by ...

Back 38

In homicide cases, the defense of intoxication can DISPROVE PREDMEDITATION, but cannot REDUCE MURDER TO MANSLAUGHTER by showing not malice aforethought.

Front 39

Per modern statues, there is no voluntary intoxication defense if ...

Back 39

... RECKLESSNESS is sufficient for liability.

Front 40

What are the majority and minority approach to the entrapment defense?

Back 40

Majority/SUBJECTIVE ...

(1) D wasn't predisposed to commit crimes of the sort charged;

and

(2) the officers put the intent to commit the offense in D's mind.

Minority/Objective
POLICE ACTIVITY would case a REASONABLE AND UNDISPOSED PERSON to FORM INTENT necessary to commit the crime

Front 41

The defence of necessity or choice of evils requires that ...

Back 41

(1) D believed committing the crime would PREVENT IMMINENTLY THREATENED HARM (not economic harm);

(2) D believed this threatened harm would be GREATER than (not equal to) harm caused by committing the crime;

and

(3) BOTH of these beliefs are OBJECTIVELY REASONABLE.

Not available if D created one of the situations or killed another to save himself.

Front 42

What are three strict requirements for the defense of duress that have been loosened?

Back 42

Traditionally, duress was not available if

the charged crime is an intentional killing;
the threat was at someone else
the threat wasn't imminent.

Front 43

Per the minority approach to the defense of self-defense by deadly force, ...

Back 43

.... D must take any possible opportunity to retreat to complete safety before employing deadly force, but need not do so in one's own home (unless he was the aggressor or possibly is attacking a co-habitant) or when making an arrest or being robbed.

Front 44

Per the aggressor rule to the defense of self-defense, an aggressor may only use force in self-defense if ...

Back 44

... she has EITHER

(1) physically withdrawn from the fight

OR

(2) given notice of her desire to do so.

OR the other party has escalated the conflict and D couldn't withdraw.

Front 45

The imperfect self-defense in homicide cases requires ...

Back 45

... a D charged with murder who ACTUALLY but UNREASONABLY believed the killing was necessary for self-defense, or who was the aggressor exercising self-defense, should be CONVICTED of MANSLAUGHTER rather than murder.

Front 46

What does the defense of defense of property require? What about Recapture of Property? What about mechanical devices?

Back 46

(1) D had a reasonable belief that force was necessary to prevent unlawful interference with real or personal property;

(2) D did not use deadly force (unless there is a dangerous felon entering his dwelling);

Recapture of Property: No force to regain the property (except if in hot pursuit). MPC says he CAN use force any time if he thinks the other has no claim of right.

Mechanical devices were traditionally allowed to do whatever the owner could have done, but MPC says they can never use deadly force.

Front 47

Can withdrawal be a defense to accomplice liability?

Back 47

Yes, mere repudiation can be enough unless acts went beyond encouragement, in which case those acts must be neutralized.

Notifying police or acting to prevent crime also suffice.

Must be done before it's too late and not just from fear of getting caught.

Front 48

Are there exceptions to conspiracy even when 2 or more persons did act together in a crime?

Back 48

Wharton's Rule: There is no conspiracy liability for a crime that requires x participants unless at least x+1 participate in it. MPC: Rule not needed since D can only be charged with conspiracy OR underlying crime unless conspiracy includes some objectives not yet fulfilled.

Exception: If a statute only criminalizes the behavior of one person, both can be conspirators but NOT accomplices (e.g., sale of alcohol to a minor -- conspiracy exists).

No conspiracy when the only other member is in a class designed to be protected by the statute (transported woman).

No conspiracy if the only other member is undercover. MPC says there is.

Front 49

When may force be used to effectuate arrest?

Back 49

Police: Entitled to a reasonable mistake for non-deadly force.

Private Person:
Non-deadly: Entitled to reasonable mistake of identity, but a crime must have really been committed.

Deadly: Not entitled to any mistake

Front 50

When may force be used to resist arrest?

Back 50

Nondeadly force may be used to resist improper arrest even if officer is known to be involved. MPC says no.

Deadly force is only allowed if person doesn't know an office is involved.

Front 51

Does a mistake negate a criminal's defense?

Back 51

Traditional rule: mistake must be reasonable, taking physical situation and past experiences into account.

Modern rule: A defense can be preserved even when D is unreasonably mistaken about facts unless the mens rea for the offense is recklessness or negligence and the mistake was reckless or negligent.

Front 52

If all the principal has been acquitted or its equivalent, what is true of the accomplice? What if they are just not brought to prosecution?

Back 52

If P is acquitted, A must be as well even if in an earlier trial.

If P is just not brought to justice, A can still be convicted as long as P is factually guilty.