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81 Cards in this Set

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What is jurisdiction in crim law?
the authority of a sovereign to create substantive criminal law
What are the 4 categories of federal criminal jurisdiction (federal govt's power to create crimes?
(1) power over federally owned or controlled territory
(2) power over conduct occurring within a state
(3) power over US nationals abroad
(4) power over conduct on ships or airplanes
What jurisdiction does the federal govt have over federally owned or controlled territory?
fed govt has extensive power to enact general criminal codes governing conduct in DC, territories and federal enclaves
What jurisdiction does the federal govt have over conduct occurring within a state?
federal power to criminalize conduct within a state is limited by the requirement that each statute be founded upon an express or implied constitutional grant of authority
What jurisdiction does the federal govt have over US nationals abroad?
federal criminal statutes may, by express provision, reach conduct by citizens while on foreign soil
What jurisdiction does the federal govt have over conduct on ships or airplanes?
federal maritime jurisdiction extends to conduct by all person aboard American ships or aircraft when on or over the high seas or even in foreign waters or ports
What is a state's criminal jurisdiction?
every state has inherent authority by virtue of its police power to regulate its internal affairs for the protection or promotion of the health, safety, welfare and morals of its citizens
Under common law, when does a state have juridiction over a crime?
if the state is the legal situs of the crime
What is the situs of a crime?
the place where the act or omission takes place or the place of the harmful result if result is a material element of the crime
What is the modern bases for a state's criminal law jurisdiction?
A person is subject to prosecution in a state for an offense under the following conditions:
(1) when the offense is committed wholly or partly (conduct or result at to one element of the crime) within the state;
(2) when there is conduct outside the state that constitutes an attempt or conspiracy to commit an offense within the state PLUS an act within the state;
(3) When there is conduct within the state constituting an attempt, solicitation, or conspiracy to commit, in another jurisdiction, an offense that is a crime in both states; and
(4) when an offense based on the omission of performance of a duty imposed by the law of a state is committed within the state, regardless of the location of the offender
List the sources of criminal law.
- Common law crimes
- Statutory crimes
- Constitutional crimes
- Administrative crimes
- Model Penal Code
What is a common law crime?
one that is created and enforced by the judiciary in the absence of a statute defining the offense
Are there any federal common law crimes?
no, except for those provided by Congress for DC
Do states have common law crimes?
Majority have retained them either implicitly or by express retention statutes

Minority have abolished expressly or impliedly (but still keep common law defenses)
What is the primary source of criminal law?
state legislative statutes
What is a constitutional crime?
treason - levying war against the US, adhereing to enemies of the US or giving them aid and comfort

no one can be convicted unless there are two testifying witnesses to the same overt act or defendant confesses
How is an administrative crime proscribed?
administrative agency is given power by legislature to proscribe rules, the violation of which may be a criminal penalty

Note: legislature may not delegate power to determine which regulations carry penalties or the power of adjudication
List the theories that have been advanced to justify criminal punishment.
- Incapacitation (restraint)
- Special Deterrence
- General Deterrence
- Retribution
- Rehabilitation
- Education
Summarize the incapacitation theory of punishment.
While imprisoned, a criminal has fewer opportunities to commit acts causing harm to society
Summarize the special deterrence theory of punishment.
punishment may deter the criminal from committing future crimes
Summarize the general deterrence theory of punishment.
punishment may deter persons other than the criminal from committing similar crimes for fear of incurring the same punishment
Summarize the retribution theory of punishment.
punishment is imposed to vent society's sense of outrage and need for revenge
Summarize the rehabilitation theory of punishment.
imprisonment provides the opportunity to mold or reform the criminal into a person who, upon return to society, will conform her behavior to societal norms
Summarize the education theory of punishment.
publicity attending the trial, conviction and punishment of some criminals serves to educate the public to distinguish good and bad conduct and to develop respect for the law
What were the three common law classes of crimes?
treason, felonies, misdemeanors
Distinguish felonies and misdemeanors.
Felonies – all crimes punishable by death or imprisonment exceeding 1 year

Misdemeanors – all crimes punishable by imprisonment for less than one year or by a fine
Distinguish malum in se and malum prohibitum.
malum in se - a crime that is inherently evial, either b/c criminal intent is an element of the offense or b/c the crime involves moral turpitude

malum prohibitum - a crime that is wrong only b/c it is prohibited by legislation
What is an infamous crime?
At common law, all crimes involving fraud, dishonesty or the obstruction of justice

modern law expands this to include most felonies
What is the "void for vagueness" doctrine?
Supreme Court has held due process clause to require that no criminal penalty be imposed without fair notice that the conduct is forbidden
What are the two requirements for non-vagueness?
(1) Fair warning in that it must give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute
(2) No arbitrary and discriminatory enforcement in that statute must not encourage erratic and arbitrary arrests and convictions
What are the Article I limitations on state and federal crime creation?
(1) No Ex Post Facto Laws - expressly prohibited by Constitution and defined by Supreme Court as a law that operates retroactively to
- make criminal an act that when done was not criminal;
- aggravate a crime or increase the punishment therefor;
- change the rules of evidence to the detriment of criminal defendants as a class; OR
- alter the law of criminal procedure to deprive criminal defendants of a substantive right
(2) No Bills of Attainder - defined as a legislative act that inflicts punishment or denies a privilege without a judicial trial
How can you tell the difference between an ex post facto law and a bill of attainder?
ex post facto law does not deprive the offender of a judicial trial
List the rules of interpretation for criminal statutes.
(1) Plain Meaning Rule
(2) Rule of Lenity
(3) expressio uniun, exclusio alterius
(4) specific controls general; more recent controls earlier
(5) effect of repeal
What is the plain meaning rule?
when statutory language is plain and its meaning clear, the court must give effect to it even if the court feels the law is unwise or undesirable

Note: there is an exception to this rule if applying the meaning will lead to injustice, oppression or an absurd consequence
What is the rule of lenity?
Ambiguous statute must be construed strictly in favor of the defendant

An ambiguous statute is one that is capable of two or more reasonable interpretations, as opposed to a vague statute, which is not subject to any reasonable interpretation
What is the rule of expressio uniun, exclusio alterius?
the expression of one thing impliedly indicates an intention to exclude another

example: if a statute provides one exception, it impliedly excludes all others
What is the rule regarding specific controls general; more recent controls earlier?
if two statutes address the same subject matter but dictate different conclusions, the more specific statute will be applied rather than the more general

the more recently enacted statute will control an older statute
What is the rule regarding the effect of repeal?
at common law, in absence of a saving provision, the repeal or invalidation of a statute operates to bar prosecutions for earlier violates provided the prosecution is pending or not yet under way at the time of repeal (will not free from conviction or final judgment though)

a saving provision is one that states crimes committed prior to the effective date of new statute are subject to prosecution and punishment under the law as it existed at the time the offense was committed
What was the common law rule of merger?
misdemeanor merged into felony - if a person engaged in conduct constituting both, he could only be convicted of the felony
What is the current American rule regarding merger?
No merger!

Exceptions:
- merger of solicitation or attempt into completed crime
- merger of lesser included offenses into greater offenses
Describe the solicitation/ attempt merger exception.
A person who solicits another to commit a crime cannot be convicted both of the solicitation and the completed crime. Similarly, a person cannot both be convicted of an attempt and of the completed crime. A person can, however, be convicted of both conspiracy and of the completed crime.
Describe the lesser included offense merger exception.
Lesser included offenses merge into greater offenses in that one placed in jeopardy for either offense may not be later retried for the other. Nor may one be convicted of both.
What is a lesser included offense?
A lesser included offense is one that consists entirely of some, but not all, elements of the greater crime.
Is there double jeopardy if a statute provides multiple punishments for a single act?
No, imposition of cumulative punishments for two or more statutorily defined offenses, specifically intended by the legislature to carry separate punishments, arising from the same transaction and constituting the same crime does not violate the double jeopardy clause prohibition against multiple punishments for the same offense when the punishments are imposed at a single trial.
What elements of a criminal offense is a prosecution generally required to prove?
(1) Actus reus - the physical act or unlawful omission;
(2) Mens rea - the state of mind or intent of defendant at time of the act;
(3) Concurrence - the act and state of mind existed at the same time;
(4) a Harmful result was caused (both factually and proximately) by the act
What are the four common law types of parties to a felony?
(1) principals in the first degree
(2) principals in the second degree
(3) accessories before the fact
(4) accessories after the fact
What are principals in the first degree?
persons who actually engage in the act or omission that constitutes the criminal offense
What are principals in the second degree?
persons who aid, command, or encourage the principal and are present at the crime
What are accessories before the fact?
persons who aid, abet, or encourage the principal but are not present at the crime
What are accessories after the fact?
persons who assist the principal after the crime
Under the modern approach, what is a principle?
one who, with the requisite mental state, actually engages in the act or omission that causes the criminal result

anyone who acts through an innocent, irresponsible, or unwilling agent

NOTE: principal need not be present when the harm results
Under the modern approach, what is an accomplice?
one who, with the intent that the crime be committed, aids, counsels, or encourages the principal before or during the commission of the crime
Under the modern approach, what is an accessory after the fact?
one who receives, relieves, comforts, or assists another, knowing that he has committed a felony, in order to help the felon edcape arrest, trial, or conviction

NOTE: must be a felony and completed at time aid is rendered
List the offenses involving judicial procedure.
(1) perjury
(2) subornation of perjury
(3) bribery
(4) compounding a crime
(5) misprison of a felony
What is perjury?
Common law misdemeanor that consists of willful and corrupt taking of a false oath in regard to a material matter in a judicial proceeding

Materiality is an element and must be alleged in the indictment as well as proved by prosecution
NOTE: A statement is material if it might affect some phase or detail of the trial, hearing, declaration, etc
What is subornation of perjury?
consists of procuring or inducing another to commit perjury
What is bribery?
common law misdemeanor or felony under modern statutes that consists of the corrupt payment or receipt of anything of value in return for official action (either offering or taking)

NOTE: Mutual criminal intent is NOT necessary
What is compounding a crime?
common law misdemeanor that consists of entering into an agreement for valuable consideration to not prosecute another for a felony or to conceal commission of a felony or whereabouts of a felon

NOTE: Modern statutes include any crimes (not just felonies)
What is misprison of a felony?
common law misdemeanor that consists of the failure by someone other than a principal or accessory before the fact to disclose or report knowledge of the commission of a felony

NOTE: Not recognized in most jurisdictions resulting in no obligation for a person to report a crime (or if it is a crime, it requires some affirmative action in aid of the felon)
Can a witness be prosecuted for perjury for having made two false statements at the same proceeding?
If a witness makes two contradictory statements at the same proceeding and admits that one is false before the end of the proceeding, he cannot be prosecuted for having made the false statement
What is special about perjury in a civil rights action?
In a civil rights action, all witnesses (including police officers) are immune from civil liability based on their alleged perjured testimony in judicial proceedings
What are the common law elements of burglary?
(1) A breaking
(2) and entry
(3) of a dwelling
(4) of another
(5) at nighttime
(6) with the intent to commit a felony in the structure
What is actual breaking?
Requires some use of force to gain entry but minimal force is sufficient

Example: opening a closed but unlocked door
What is constructive breaking?
gaining entry by means of fraud, threat, or intimidation, or by use of the chimney
What is required to constitute a breaking?
- trespass
(consent of resident to enter is NOT
a breaking; exception: entry
consent limited to certain times or
obtained by fraud)
- of the house
(must be to effect entry into house
or some secured subportion)
- to gain entry
(not hide in or exit)
What is required to constitute entry?
placing any portion of the body inside the structure, even momentarily

insertion of a tool or inanimate object into the structure is sufficient if it is inserted for the purpose of accomplishing the felony (NOT for just gaining entry)
What is a dwelling?
a structure used with regularity for sleeping purposes

NOTE: other purposes or temporary absence of inhabitants does not affect status as dwelling
What determines "of another"
Occupancy, thus an owner can commit burglary of his own structure if it is rented and used as a dwelling by others)
What is nighttime?
period during which the countenance of a person could not be discerned by natural light
When must the intent to commit a felony exist for burglary?
at the time of entry
What are the common law elements of arson?
(1) the malicious
(2) burning
(3) of a dwelling
(4) of another
At common law, was it an offense to burn one's own dwelling for purposes of fraudulently collecting the insurance on it?
No, but it is often made an offense under modern statutes
What are the elements for common law misdemeanor of houseburning?
(1) the malicious
(2) burning
(3) of one's dwelling
(4) if the structure is situated either in a city or town OR so near to other houses as to create a danger to them
What state of mind is required for arson?
no specific intent is required but it is not sufficient if the burning was accidental or negligent

defendant must have acted with the intent or knowledge that the structure would burn, or with reckless disregard of an obvious risk that the structure would burn
What is determinative of "of another" for arson?
occupancy; ownership is immaterial
What damage is required for arson?
must be caused by fire (NOT explosion)

there must be some damage to the fiber of the wood or other combustible material

scorching - insufficient
charring - sufficient
What are the elements of common law misdemeanor of malicious mischief?
(1) malicious
(2) destruction of, or damage to
(3) property of another
What is bigamy?
traditional strict liability offense that consists of marying someone while having another living spouse

at common law, it is irrelevant if defendant reasonably believes that a divorce was valid or spouse was dead
What is battery?
unlawful application of force to the person of another resulting in either bodily injury or an offensive touching
What classification of crime is simple battery?
misdemeanor
What state of mind is required for battery?
none required; need not be intentional

negligence is sufficient