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166 Cards in this Set
- Front
- Back
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Crimes Against the Person
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- Assault
- Battery - Mayhem - Homicide - Rape - False Imprisonment - Kidnapping |
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Mayhem
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Maining or disfiguring another WITH MALICE
MENS REA: presence of actual intent or wanton conduct ACTUS REUS: causing bodily injujry which permanently maims or disfigures another |
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Crimes against property
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- arson
- burglary - larceny - larceny by conversion - larceny by trick - false pretenses - robbery - extortion - receipt of stolen property - uttering - malicious mischief |
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Burglary (common law)
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- trespassory
- breaking & entering - of a dwelling house - of another - at night (common law only) - with the specific intent to commit a felony or larceny therein ACTUS REUS: slight intrusion into dwelling house MENS REA: specific intent to commit a felony or larceny therein |
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entrapment
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One may excuse his admitted performance of an illegal act (other than one involving serious injury) by showing that he did it at the instigation of law enforcement agent.
MAJORITY & FED: focuses on D's SUBJECTIVE DISPOSITION to commit the crime MINORITY: OBJECTIVE EFFECT of police activity on the reasonably law abiding person |
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criminal homicide
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killing of a human being by another w. criminal intent
- killing of: act or omission that causes death - a human being: baby is a human being when born alive; statutes now define "viable" fetus - by: apply proximate cause; death must occur within 1 year of criminal act (some states 3 yrs) - another: suicide is not homicide - with criminal intent: determined by D's state of mind |
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felony murder rule
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- elements of underlying felony present?
- FMR felony? - merger doctrine? - did killing occur DURING the perpetration of the felony? - was the killing FORESEEABLE RESULT of the felony? - was the killing act performed by one of the felons? + was the victim innocent? - COMMON LAW: anyone - MAJORITY: not if shot by officer; CA requires V to be innocent |
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degrees of murder
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FIRST DEGREE
- intentional criminal homicide - express malice aforethought - premeditation & deliberation SECOND DEGREE - intentional criminal homicide - express or implied malice aforethought - no premeditation/deliberation - no mitigating factors |
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voluntary manslaughter
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- intentional criminal homicide
+ no malice aforethought: - imperfect self-defense - unreasonable mistake of fact - coercion - voluntary intoxication - mental disease - anger & heat of passion |
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involuntary manslaughter
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- unintentional homicide
- no malice - intent to inflict non-serious bodily harm OR state of mind creates grossly negligent risk - misdemeanor manslaughter rule |
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misdemeanor manslaughter rule
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accident killing while engaged in non-dangerous felony or misdemeanor that is malum in se
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homicide analysis
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- actus reus
- mens rea - 1st degree murder - 2nd degree murder - voluntary manslaughter - involuntary manslaughter - defenses |
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homicide mens rea: list
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- intent to kill
- intent to inflict serious bodily injury - wantoness - felony murder rule |
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criminal procedure: issues
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- 4th Amendment: illegal detention, arrest, search or seizure?
- 5th Amendment: voluntariness, Escobedo or Miranda violation? - 6th Amendment: right to effective counsel at all critical stages of proceedings? - 8th Amendment & misc.: - right to pretrial release - probable cause hearing - speedy trial - discovery - indictment - public trial - jury trial - more |
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General Intent
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You intend to perform the actus reus
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Specific Intent
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You intent to perform the actus reus, and you've got something else in mind.
- burglary - assault - murder - attempt - conspiracy - theft - solitication |
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Crimes: list
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- solicitation
- attempt - conspiracy - battery - false imprisonment - mayhem - assault - rape - kidnapping - arson - larceny - larceny by trick - larceny by conversion - burglary - extortion - robbery - false pretenses - uttering - receiving stolen property - embezzlement - forgery |
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For each crime: analysis checklist
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- mens rea (specific/general intent)
- actus reus - general considerations - defenses |
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solicitation
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MENS REA: specific intent
ACTUS REUS: inciting another to commit any felony or misdemeanor involving breach of the peace GENERAL CONSIDERATIONS: - vicarious liability - merger: merges into conspiracy/accomplice liability - withdrawal: you remain guilty of solicitation but avoid accomplice liability |
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attempt
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MENS REA: specific intent
ACTUS REUS: an act in the direction of perpetrating an intended crime GENERAL CONSIDERATIONS: - merger: merges into consummated target offense + withdrawal: MAJORITY: doesn't excuse liability MINORITY: absolves if you permenantly and successfully abandon - impossibility: legal impossibility is an excuse; factual impossibility isn't - mistake of fact: not a defense! |
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conspiracy
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MENS REA: actual intent to combine + specific intent to achieve unlawful goal!
ACTUS REUS: Combination or agreement for an unlawful purpose |
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battery
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MENS REA: either intent or criminal negligence
ACTUS REUS: application of unlawful force to the person of another |
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false imprisonment
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MENS REA: actual intent
ACTUS REUS: use of force to confine another person |
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mayhem
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MENS REA: actual intent or wanton conduct
ACTUS REUS: maiming or disfiguring another with malice |
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assault
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"attempted battery"
MENS REA: specific intent to commit battery ACTUS REUS: - majority: act of perpetration - minority: "intentional inducement of fear" GENERAL CONSIDERATIONS: - aggravated assault: use deadly weapon or intend to murder, rape or maim - attempted assault is not a crime! (neither is skateboarding) |
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rape
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MENS REA: actual intent or criminal negligence
ACTUS REUS: sexual intercourse with a female not your wife when you know or should know it is without consent Statutory rape: strict liability, even if she consented |
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kidnapping
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MENS REA: actual intent
ACTUS REUS: false imprisonment + asportation |
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arson
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MENS REA: intent
ACTUS REUS: malicious burning of the dwelling of another |
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larceny
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trespassory taking and carrying away of another's personal property with intent to deprive him of it permenantly
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burglary (modern definition)
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MENS REA: specific intent to commit felony or larceny!
ACTUS REUS: trespassory entering of a place with unlawful intent |
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extortion
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use of threats of future harm with specific intent to induce another to relinquish property
D had lawful right to do the threatened act: not a defense! |
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robbery
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Larceny from the person or presence of another by the use of force or intimidation
- force must be designed to effectuate the taking - property must be taken from person or presence of the victim |
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larceny by trick
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use of fraud to procure a temporary delivery of mere possession of another's property with intent to deprive permanently. Requires a representation of fact which you know is false, and which you intend to cause V to give it up
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false pretenses
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MENS REA: specific intent
ACTUS REUS: - fraudulent misrepresentation - which causes V to pass title to personal property MAJORITY: past or present only! MINORITY: past, present, or future |
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uttering
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offering as genuine an instrument known to be false with intent to defraud
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receiving stolen property
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receiving of property knowing it to be stolen with specific intent to deprive the owner thereof
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embezzlement
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conversion of personal property of another by a person in lawful possession (as a result of fiduciary relationship)
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larceny by conversion
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conversion of personal property by a person in lawful possession with specific intent to DEFRAUD
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forgery
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making of a false writing having apparent legal significance with intent to defraud
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defenses: list
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- insanity
- drunkenness - entrapment - mistake - age - necessity - duress - prevention of a crime - defense of others - defense of property - defense of self |
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insanity
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- M'Naghten Rule
- Irresistible impulse - Durham Test - ALI Substantial Capacity Test - Diminished Responsibility |
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insanity defense: M'Naghten Rule
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D lacked ability at time of his actions to know WRONGFULNESS of actions & nature/quality of act
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insanity defense: irresistible impulse
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mental disease makes D incapable of controlling his conduct
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insanity defense: Durham Test
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Crime was the product of mental disease or defect
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insanity defense: ALI / MPC Test
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Mental disease causes D to lack substantial capacity to appreciate criminality of conduct or conform conduct to requirements of law
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insanity defense: diminished responsibility
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Mental illness short of insanity may be asserted in homicide case/specific intent crimes to mitigate culpability/reduce charge
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insanity defense: drunkenness
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Voluntary intoxication only a defense to specific intent crimes!
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insanity defense: mistake
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Honest mistake that negates the requisite mental state for any material element of the offense
MISTAKE OF FACT: - depends on REASONABLENESS. - specific intent crimes: unreasonable mistake of fact is a defense! MISTAKE OF LAW: not a defense unless: - government hasn't published - knowledge of law is a material element of offense |
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insanity defense: age
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Modern rule: under 13 or 14
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insanity defense: duress - murder
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Duress mitigates murder to manslaughter
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prevention of a crime
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Justified in using NON-DEADLY force which reasonably appears necessary to prevent a misdemeanor or felony constituting a breach of the peace
DEADLY FORCE: only to prevent a dangerous felony involving risk to human life |
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defense of others
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MAJORITY: reasonably believed necessary under the circumstances
MINORITY: privileged to use same amount of force as the person being protected |
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defense of property
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NON-DEADLY force reasonably necessary to prevent imminent trespass to real or personal property
DEADLY force only to prevent intrusion into home! |
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criminal defense: defense of self
duty to retreat? |
MAJORITY: no duty to retreat!
MINORITY: duty to retreat unless at home |
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Common law murder
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Homicide committed with malice aforethought:
- actual intent to kill - actual intent to inflict grave bodily injury - wantonness - state of mind for committing inherently dangerous felony |
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Felony Murder Rule: checklist
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- FMR felony?
- MERGER doctrine - elements of UNDERLYING felony - homicide occurred DURING perpetration of felony - killing FORESEEABLE result of felony? COMMON LAW: - killer can be anyone - victim can be anyone MAJORITY / CA: - killer must be co-felon - victim must be innocent |
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inherently dangerous felonies: list
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- burglary
- arson - rape - robbery - kidnapping - sodomy |
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First degree murder
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- intentional criminal homicide with malice aforethought, premeditation & deliberation
- Felony Murders - any murder committed by means of poison, torture, ambush, bomb |
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Second degree murder
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- intentional criminal homicides with malice but WITHOUT premeditation or deliberation
- includes all murders that aren't 1st degree |
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voluntary manslaughter
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intentional criminal homicide committed without malice
MITIGATING FACTORS: - imperfect self-defense - unreasonable mistake of fact - coercion - voluntary intoxication - mental disease - anger - heat of passion |
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heat of passion
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- reasonable provocation
- inadequate cooling time |
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4th Amendment issues
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- search & seizure
- detention - arrest |
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illegal detention
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- was D detained?
- officer had objective basis for believing person was engaged or about to be engaged in criminal activity - stop was temporary & no longer than necessary - Terry frisk: reasonable belief for officer safety? |
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illegal arrest?
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- was D under arrest?
- at moment of arrest, did police have probably cause to believe that D had committed crime? |
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search & seizure
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- STANDING???
- did police activity constitute a search or seizure? - valid search warrant obtained? - circumstances justified warrantless search? |
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search incident to arrest
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- lawful arrest
- SCOPE: limited to persons & areas within D's immediate reach |
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search: CONSENT
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- VOLUNTARY (totality test)
- cannot exceed SCOPE - given by someone with AUTHORITY |
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search: plain view
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Warrantless seizure of items in plain view justified if police entitled to be there
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search: exigent circumstances
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Warrantless search justified where police reasonably believe delay would:
- endanger police/public - allow destruction/removal of evidence - hot pursuit |
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search: border searches
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4th Amendment does not protect border searches.
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warrantless search: issues
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- SIA
- consent - auto search - plain view - exigent circumstances |
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electronic surveillance
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Federal warrant requirements:
- PROBABLE CAUSE that crime is or is about to be - NAMES of persons to be overheard - CONVERSATION described with particularity - limited TIME period and terminated when info obtained FALSE FRIENDS DOCTRINE: only one person in conversation needs to consent |
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5th Amendment: checklist
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- statement voluntary?
- Escobedo - Miranda |
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5th Amendment: voluntary statements
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TOTALITY OF THE CIRCUMSTANCES.
Prosecution must prove voluntariness by a preponderance of the evidence. |
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Escobedo
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Stuck informant in cell. After formal charges have been filed, can't obtain confession if you deny right to counsel.
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Miranda
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- were they ENTITLED to Miranda warning?
- D GIVEN full & adequate Miranda warning? - D intelligently & knowingly WAIVED rights? + General considerations: - statements obtained in violation of Miranda can be used to impeach! - once D invokes right to counsel, STOP - unless he initiates - public safety exception - not applicable to roadside stops, booking statements or grand jury proceedings |
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5th Amendment: lineup
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- if you've been formally charged, you have right to counsel at lineup (but not photo lineup)
- due process: ID can't be impermissibly suggestive Independent identification can cure it |
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5th Amendment: right to counsel - checklist
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Was right to counsel:
- applicable? - effective? - waived? - conflict of interest? |
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Does right to counsel apply?
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"Every critical stage of a criminal proceeding."
NOT: - grand jury - investigation proceedings - prison hearings - summary court martial |
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Inadequate counsel
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- fell measurably below the performance ordinarily expected of fallible lawyers
- affected outcome of trial |
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5th Amendment: other rights
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right to . . .
- pretrial release - probable cause hearing - speedy trial - discovery - indictment - public trial - jury trial - confrontation - cruel & unusual punishment - sentencing rules |
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right to pretrial release: test
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- nature & circumstances of offense
- weight of evidence - D's character - financial ability to make bail - whether D will appear - non-capital: BAIL REQUIRED - capital case: bail discretionary |
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right to speedy trial: test
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- reason for delay
- whether D caused delay - length of delay - whether delay was prejudicial |
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cruel & unusual punishment: test
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- only applies if already convicted
- not "grossly disproportionate" - punishment barbaric regardless of the crime? (yes please!) |
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double jeopardy: state & federal
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count as separate sovereignties; may be tried separately for state & federal crimes arising from same offense!
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double jeopardy: when attached
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jury trial: when jury sworn
bench trial: when first witness sworn |
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guilty plea
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does record show that D is aware of:
- charge and all elements - penalty - plea was VOLUNTARY - waived constitutional rights - nature and consequences of plea Involuntary plea: withdraw any time Voluntary plea: withdraw before sentence |
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Crim law checklist
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+ what crimes?
- inchoate offenses - crimes against the person - crimes against property - mens rea & actus reus - specific intent vs. general intent? - criminal procedure |
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specific intent vs. general intent
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General intent: you intended to commit the crime.
Specific intent: you intended to commit the crime, plus something else. |
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inchoate offenses
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- solicitation
- conspiracy - attempt |
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Police lie to D's lawyer prevent her from seeing him and question him anyway. Admissible?
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YES as long as D was Mirandized properly!
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If you know that there's a "very small" possibility of harm does that qualify as "knowingly" committing the tort?
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NO. Knowledge is knowledge. Recklessness is not knowledge.
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What type of intent is required for attempt?
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Specific intent.
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Which crimes merge into the completed crime?
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Solicitation & attempt
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What must you do to successfully withdraw from a conspiracy?
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You must notify the co-conspirators!
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When you stop a car do you automatically have probable cause to search the back seat?
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NO; it's not probable cause!
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Blockburger test for double jeopardy
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Two crimes do not constitute the same offense if each crime requires proof of an additional element that the other crime does not require.
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Larceny:
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taking and carrying away of tangible personal property of another by trespass with intent to deprive that person of her interest in the property permanently (or for an unreasonable time)
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Robbery:
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larceny + assault
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Is intent required to invoke accomplice liability?
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YES.
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To have a conspiracy must more than one person have the requisite intent?
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YES.
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Is it burglary if you form criminal intent AFTER you enter the house?
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NO; you have to enter WITH the intent to commit a crime.
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If a shop window on a public street is mostly obscured but there's a small opening 8 feet above the ground and the officer has to climb onto trashcans in order to peer inside does that count as plain view?
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NO.
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Plaintiff claims killing was in the heat of passion. Who has burden of proof?
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The prosecutor dummy! Always the prosecutor!!! P has burden to prove that there WASN'T heat of passion!
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If you enter with the intent to commit a crime but it's NOT REALLY A CRIME is it still burglary?
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Nope. You have to enter with the intent to commit an actual crime not just something you THINK is a crime.
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Malice aforethought:
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- intent
- reckless indifference - felony murder Thus malice can be implied from reckless indifference! |
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Is it murder if you fire into an empty building?
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Probably not if the jury buys it.
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10b-5: what is it?
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FRAUD forbids fraudulent scheme in connection with purchase/sale of security elements
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10b-5: elements
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bad acts
instrumentality of interstate commerce defendants: ANY person or corporation plaintiffs: SEC or private buyer/seller of securities |
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10b-5: bad acts
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1. misrepresentation of material information
2. trading on material inside information when a duty to disclose exists 3. tipping in connection with purchase/sale of a security 4. materiality—same as special facts 5. scienter—intent to deceive! (recklessness ok negligence not!) 6. reliance |
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16(b): what is it?
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INSIDER TRADING
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16(b): checklist
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- Who has a cause of action
- Damages - Who is liable - What transactions - Consequences |
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16(b): who has a cause of action?
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The corporation!
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16(b): damages
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Profits gained by insider
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16(b): when it applies
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only big corporations
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16(b): who is liable?
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- directors
- officers - 10% shareholders--had to own 10% before the event! |
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16(b): what transactions are covered
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buy & sell within 6 months. only stock.
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16(b): consequences
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all profits are recoverable!
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For receipt of stolen property when must you have the requisite intent?
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You must have actual intent to knowingly deprive at the time you receive the stolen goods!
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What if you rob someone but intend to give it back? Is it robbery?
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NO; intent to permanently deprive is an element of robbery. You should look at assault insted.
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If you fail to knock & announce will the evidence be excluded?
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NO. Hudson v. Michigan US 2006.
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Does an effective withdrawal absolve liability for conspiracy?
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NO. It just absolves liability for the target offense. You're still guilty of conspiracy.
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Am I awesome?
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Yes. Yes I am.
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Criminal negligence:
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When a person fails to be aware of a substantial and unjustifiable risk that circumstances exist or that a result will follow and such failure constitutes a substantial deviation from the standard of care that a reasonable person would exercise under the circumstances. Higher standard than civil negligence!
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aggravated assault
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use deadly weapon or intend to murder, rape or maim
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attempted assault
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not a crime! (neither is skateboarding)
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difference between:
- larceny by conversion - larceny by trick - false pretenses |
larceny by conversion: already had lawful possession
larceny by trick: convince them to transfer MERE POSSESSION false pretenses: convince them to transfer TITLE |
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difference between forgery and utterance
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forgery: MAKING a false document with intent to defraud
utterance: SHOWING the false document with intent to defraud |
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MISTAKE OF FACT:
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- depends on REASONABLENESS.
- specific intent crimes: unreasonable mistake of fact is a defense! |
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MISTAKE OF LAW:
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not a defense unless:
- government hasn't published - knowledge of law is a material element of offense |
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factors that can reduce murder to manslaughter
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- imperfect self-defense
- unreasonable mistake of fact - coercion - voluntary intoxication - mental disease - anger - heat of passion |
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when may a guilty plea be withdrawn?
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Involuntary plea: withdraw any time
Voluntary plea: withdraw before sentence |
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Criminal law general considerations:
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- merger
- withdrawal - impossibility - mistake of fact - vicarious liability |
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What do you need to search a car during a traffic stop?
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Probable cause!
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Attempt: Is factual impossibility a defense?
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NO.
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Is a search warrant required to search a probationer's home?
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NO. This is a federal rule!
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Insanity: who has the burden of proof?
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Defendant! That's constitutional! Level of proof can vary.
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Victim uses deadly force against an armed robber and accidentally kills an innocent bystander. Is the victim guilty?
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NO. Deadly force is justified against a felon who appears to pose a threat.
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Mistake of law regarding some other aspect of law (not the existence of the criminal statute): is it a valid defense?
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YES. Even though ignorance of the law is not!
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Mens rea for false pretenses
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specific intent to defraud!
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MBE: Assume which definition of burglary?
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COMMON LAW unless it says otherwise!
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If a statute is meant to protect a class of people, can they be found guilty under that statute?
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NO.
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Your accomplice cannot be found guilty because of a legislative exemption (statute meant to protect them). Can you still be guilty of conspiracy?
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No - not if your co-conspirator can't be guilty!
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unilateral conspiracy (MPC)
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Defendant agreed with another to commit a crime. Even if other person doesn't share the commitment!
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If intent is not an element of the crime, is mistake of fact a defense?
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NO. If intent is not required, then it doesn't matter if you knew or not. (Eg. you don't realize it's after midnight because your clock is broken - still liable!)
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valid arrest requires:
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- warrant (or good excuse)
- probable cause |
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Are you guilty of other crimes committed by co-conspirators?
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YES - if:
- committed in furtherance of the objective of the conspiracy - natural & probable consequence of conspiracy |
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If you're trying to kill someone and then they die of something else, is it still murder?
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NO. It's only murder if you actually caused their death.
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Larceny: what is required for "carrying away?"
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Any slight movement! Eg. picking it up and putting in your pocket
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Common law arson: WHERE?
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Only in the dwelling house of another!
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Accessory before the fact: is furnishing information enough?
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NO.
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Accessory after the fact
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- felony completed
- you knew - gave aid to the felon personally for the purpose of hindering the felon's apprehension, conviction or punishment |
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Larceny vs. burglary: snatching
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Larceny. If the victim doesn't have a chance to resist then it's not burglary.
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Can voluntary intoxication reduce murder to manslaughter?
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NO.
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Can voluntary intoxication reduce felony murder?
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No, but voluntary intoxication could reduce the underlying felony!
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Is recklessness enough to satisfy malice element?
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Yes!
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Is larceny a lesser included of robbery?
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YES. Can't be convicted of both larceny and robbery.
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Stipulation at preliminary hearing: how long is it good for?
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Only for the preliminary hearing! Not for the actual trial!
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accomplice
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Mens rea: INTENT
Actus reus: aid, abet, or encourage |
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Co-felon shoots & kills co-felon. Felony murder?
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NO - it's a separate crime!
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Common law: liability for failure to act
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- legal duty to act
- can physically perform the act |
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Can you be guilty of solicitation and attempt?
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NO - solicitation merges into attempt!
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Must belief be reasonable to negate specific intent?
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NO - unreasonable belief can negate specific intent!
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Forgery: mens rea
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SPECIFIC INTENT
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Common law larceny: does it apply to fixtures?
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Nope!
Larceny applies to the theft of goods and chattels, but not fixtures! |
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Can a corporation be guilty of murder/manslaughter?
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Common law: NO
Some states have passed statutes saying yes. |
