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78 Cards in this Set

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How does the common law define actus reus?
MPC:
“A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.”
A voluntary act or omission resulting in social harm.
How does the common law define a voluntary act?

MPC:
“The following are not voluntary acts…”:
a. reflex, seizure or convulsion
b. movement during unconsciousness or sleep
c. conduct during hypnosis
d. bodily movement that is not the product of the effort of the actor
e. “Possession is an act within the meaning of this section, if the possessor knowingly procured or received the thing possessed or was are of his control thereof for a sufficient period to have been able to terminate his possession.”
Common law voluntary act is same as MPC for exam.
How does the common law treat omissions?

MPC:
Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:
• the omission is expressly made sufficient by the law defining the offense
• duty to perform is otherwise imposed by law (see common law)
Common law omission is the same as MPC for the exam.
What are five ways a duty to act can be imposed, such than an omission can be cause for criminal liability?
1. statute
2. status/relationship
3. contractual duty
4. voluntarily assuming the care of another, so as to prevent others from helping
5. creation of the risk to another (even if created innocently)
What are the three components of the actus reus?
a. Conduct elements
b. Result elements
c. Attendant circumstances.
What is the broad conception of mens rea?
Guilty mind/culpability- D is guilty if he commits the crime with morally blameworthy state of mind.
What is the elemental/modern view of mens rea?
Refers to mental state D must have had with regard to “social harm” elements set out in definition of offense.
1. What mental state term applies to a particular element of the statute?
a. intentionally
b. wilfully
c. Recklessness
d. Negligence
How does the common law treat mens rea?

MPC:
“A person is not guilty of an offense unless he purposefully, knowingly, recklessly, or negligently, as the law may require, with respect to each offense.”
Broad meaning: morally blameworthy or culpable
Elemental meaning: particular mental state:
-Intentionally/ purposefully
-Willfully
-Recklessly
-Negligently
What does malice require, per Regina v. Cunningham?
2. MALICE REQUIRES EITHER 1) AN ACTUAL INTENTION TO DO THE PARTICULAR KIND OF HARM THAT WAS IN FACT DONE, OR 2) RECKLESSNESS AS TO WHETHER SUCH HARM SHOULD OCCUR OR NOT.
How does the common law define purposely?

MPC:
1. conscious object to cause result/engage in behavior
2. aware of attendant circumstances
Intentionally= purposely (§ 1.13(12)).
Intentionally (conscious object to achieve result, knew it was virtually certain to occur)
How does the common law define knowingly?

MPC:
1. aware of fact/aware of high probability of its existence
2. practically certain to result
Willingly = knowingly 2.02(8)
actual knowledge, or knowledge of a high probability.
How does the common law define recklessly?

MPC:
“…consciously disregards a substantial and unjustifiable risk… known to him.. gross deviation from conduct of a law-abiding person in the actor’s situation.”
Aware of taking a substantial and unjustified risk
How does the common law define negligently?

MPC:
“… should be aware of a substantial and unjustifiable risk… failure to perceive it involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.”
Deviation from the normal standard of care; creates a substantial and unjustifiable risk of social harm
According to the model penal code, if a mental state is not prescribed, what will establish the mens rea?
§ 2.02(3)- WHEN THE CULPABILITY SUFFICIENT TO ESTABLISH A MATERIAL ELEMENT OF AN OFFENSE IS NOT PRESCRIBED BY LAW, SUCH ELEMENT IS ESTABLISHED IF A PERSON ACTS PURPOSELY, KNOWINGLY, OR RECKLESSLY WITH REPSECT THERETO.
According to the common law, what must the state prove if the statute requires knowledge?
IF A STATUTE REQUIRES KNOWLEDGE, STATE MUST PROVE THAT ACCUSED HAD ACTUAL KNOWLEDGE OF CIRCUMSTANCE.
According to the MPC, what is sufficient to prove that the accused had KNOWLEDGE?
knowingly also established by purposely or by knowledge of HIGH PROBABILITY
Besides public welfare offenses, what are the two main strict liability offenses?
Statutory rape and felony murder.
How does the common law treat a mistake of fact defense?

MPC:
Mistake of fact is a defense if the mistake negatives a mental state element required in the definition of the offense, or if the law provides that the state of mind established by mistake is a defense.
*** Eliminates distinction between specific and general intent; defense inapplicable if D would be guilty of a lesser offense had facts been as he believed them to be (then conduct takes the grade and degree of that offense)
D is not guilty IF mistake of fact negates required mens rea;
Specific intent- if mistake negates specific intent, D is not guilty
General intent- if mistake of fact is UNREASONABLE, D is guilty, reasonable mistake usually a defense
SL- mistake of fact is no defense
According to the common law, mistake of law is only recognized as a defense...
WHERE SPECIFIC INTENT IS AN ELEMENT OF THE OFFENSE OR WHERE THE MISRELIED UPON LAW HAS LATER BEEN PROPERLY ADJUDICATED AS WRONG.”
How does the common law treat causation?

MPC:
1. “but for” cause




2. Proximate cause
a. Purposely/knowingly = within contemplation of the actor (foreseeability)
b. Recklessly/negligently = within risk actor is aware of or should be aware of
1. “but for the voluntary acts, would the social harm have occurred when and as it did?”


2. Proximate cause = tort like foreseeability (i.e., causally responsible for the harm)
What is common law murder?
unlawful killing of another human being with malice aforethought
What is malice aforethought?
intent to kill
intent to cause grievous bodily harm
reckless disregard for the value of human life (depraved heart; not ordinary recklessness)
in comission of a felony
What is murder according to the MPC?
unlawful killing of another human being:
purposely/knowingly, recklessly, in commission of a felony
What is common law voluntary manslaughter?
unlawful killing of another human being wihtout malice aforethough, upon suddent heat of passion due to reasonable provocation
What are the elements of a voluntary manslaughter offense?
sudden and intense passion in the mind of an ordinary person, causing him to lose self-control

provocation (threat of deadly force or spousal infidelity)

no cooling of period for reasonable person

did not cool off
Are words sufficient to provoke killing in the heat of passion under the common law?
Insults are not, but informational words are according to some jurisdictions
Are words alone enough to cause Extreme Mental or Emotional Disturbance, per the MPC?
Yes.
What is manslaughter, according to the MPC?
homicide committed recklessly or under extreme mental or emotional disturbance.
What is extreme mental or emotional disturbance?
D acted under the influence of extreme mental or emotional disturbance, and explanation or excuse must be reasonable according to a reasonable person under the circumstances D believed them to be.

NO PROVOCATION REQUIRED
What is common law involuntary manslaughter?
unlawful killing of another human being without malice aforethought, with D acting negligently or in the commission of a misdemeanor.
What is MPC negligent homicide?
same thing as common law involuntary manslaughter
What is a justification defense?
otherwise criminal act is socially acceptable and non-punishable
What is an excuse defense?
socially unacceptable, but non-punishable
What are the justifications defenses?
self-defense, necessity
What are the excuse defenses?
Duress, insanity, mistake of fact, mistake of law, intoxication
What is the offense modification defense for attempt?
legal impossibility
Is factual impossibility a defense under the MPC?
NO
Is factual impossibility a defense under the common law?
no
is inherent factual impossibility a defense under the MPC?
yes
Is inherent factual impossibility a defense under the common law?
yes
Is legal impossibility a defense under the MPC?
yes
Is legal impossibility a defense under the common law?
yes
Is a hybrid factual/legal defense valid under the MPC?
no
is the hybrid factual/legal defense valid under common law?
yes
Does the common law recognize abandonment as a defense?
Not in most jurisdictions, and not under McClosky.
Does the MPC recognize abandonment as a defense?
Yes, but renunciation must be voluntary and complete, and not a response to resistence.
How does the common law treat mistake of fact?
a reasonable mistake will excuse a general intent crime

any mistake will negative a specific intent crime.
How does the common law treat mistake of law?
only recognized for specific intent crimes or where that law has been improperly adjudicated
How does the MPC treat mistake of fact for specific intent crimes?
must negate mental state.
complete defense for specific intent crimes, but incomplete defense if guilty of a lesser crime.
not available for reckless or negligent use of force.
How does the common law treat mistake of fact for general intent crimes, if not by a standard of reasonableness?
moral wrong doctrine -would D's conduct still have been immoral if the facts had been as he believed them to be?
legal wrong doctrine- if the facts were as D believed them to be, would his conduct still be illegal? If so, convict of higher offense.
How does the legal wrong doctrine differ from the MPC treatment of mistake of fact?
If the facts were as D believed them to be, legal wrong doctrine convicts of greater offense. MPC convicts of greater offense, but punishes for lesser offense.
Describe the common law necessity defense
limited to natural forces, clean hands requirement, no legal remedy, danger must be imminent, harm caused must be less than harm avoided, good faith belief that conduct is necessary, cannot be joined with duress, limited to protect bodily integrity and property
Describe the MPC necessity defense.
not limited to natural forces, not limited to bodily inegrity and property, necessity and duress not mutually exclusive, must not have been reckless or negligent
Is duress a justification or an excuse?
Common law says justification, MPC says excuse
Is duress a defense to murder?
No under common law, yes under MPC.
Describe threat required for common law duress defense
threat of death or serious bodily injury to self or 3rd party
Describe threat required for MPC duress defense.
threat of unlawful force.
Is there a clean hands requirement for duress?
Yes, under common law.

Under MPC, must not have been reckless or negligent.
Under what circumstances does voluntary intoxication amount to a failure of proof defense under the common law?
when the crime has a specific intent element or when the defendant is passed out (no voluntary act)
Under what circumstances does voluntary intoxication amount to a failure of proof defense under the MPC?
MPC doesn't distinguish between specific and general intent crimes. It just has to negate the mens rea element. If the mens rea element specifies RECKLESSNESS, this won't be a defense, if D would have been aware if sober.
When is involuntary intoxication a defense under the common law?
For specific or general intent crimes, but not SL.
When is involuntary intoxication a defense under the MPC?
Failure of proof defense if it negates any mens rea or actus reus element of the crime.
What are the three common law tests for insanity?
M'Naghten
Irresistable impulse
durham (or products)
Describe the M'Naghten test.
at the time of committing the act, the D was suffering from a mental illness that caused a defect of reason, so that he did not know the nature and quality of his act. COGNITIVE TEST.
Descrbie the irresistable impulse test.
The D lacked the ability to control his actions, as a result of a mental illness.
Describe the Products test.
No longer in use. But for test. D is not criminally responsible if his crime was a product of mental disease or defect and would not have been comitted but for the condition.
What is the MPC test for insanity?
D is not liable:
When as a result of illness, D lacked substantial capacity to appreciate the criminality (wrongfulness) of his conduct

When, as a result of mental illness, D lacked substantial capacity to conform his conduct to the requirements of law.
What are the six common law actus reus tests for attempt?
Last act test
physical proximity
dangerous proximity
indispensible element
probable desistance
res ipsa
Describe the last act test.
The defendant performed all of the acts she believed to be necessary to commit the target offense. Strict adherence to the last act test has been abandoned to allow law enforcement agents ample opportunity to intervene and prevent crimes.
Describe the physical proximity test.
The overt act required for an attempt must be proximate to the completed crime or directly tending toward the completion of the crime or must amount to the commencement of the consummation.
Describe the dangerous proximity test.
When the acts come very near to the accomplishment of the crime, then it constitutes an attempt. The greater the gravity and probability of the offense, and the nearer the act to the crime, the stronger is the case for calling the act an attempt.
Describe the probable desistance test.
Has the potential offender reached a point at which he is unlikely to voluntarily desist from his efforts to commit the crime? If, in the ordinary and natural course of events, without interruption from an outside source, it will result in the crime intended. Has the actor passed the point of no return?
Describe the res ipsa test.
an attempt occurs when a person’s conduct, standing alone, unambiguously manifests his criminal intent.
Describe the indispensible element test.
an attempt occurs when the defendant has obtained control of an indispensable feature of the criminal plan.
What is the MPC test for actus reus of an attempt?
applies a substantial step standard, such that conduct must be “corroborative of the actor’s criminal purpose.”
What are the defenses to attempt?
Impossibility and abandonment.
Under the common law, under what circumstances does accomplice liability attach?
In general, the accomplice may be convicted of any offense committed by the primary party with the accomplice’s intentional assistance. Most jurisdictions extend liability to any other offense that was a natural and probable consequence of the crime solicited, aided or abetted.
Under the MPC, under what circumstances does accomplice liability attach?
an accomplice may only be held liable under the Code for acts that he purposefully commits.