Crm

Front 1

What is jurisdiction in crim law?

Back 1

the authority of a sovereign to create substantive criminal law

Front 2

What are the 4 categories of federal criminal jurisdiction (federal govt's power to create crimes?

Back 2

(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

Front 3

What jurisdiction does the federal govt have over federally owned or controlled territory?

Back 3

fed govt has extensive power to enact general criminal codes governing conduct in DC, territories and federal enclaves

Front 4

What jurisdiction does the federal govt have over conduct occurring within a state?

Back 4

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

Front 5

What jurisdiction does the federal govt have over US nationals abroad?

Back 5

federal criminal statutes may, by express provision, reach conduct by citizens while on foreign soil

Front 6

What jurisdiction does the federal govt have over conduct on ships or airplanes?

Back 6

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

Front 7

What is a state's criminal jurisdiction?

Back 7

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

Front 8

Under common law, when does a state have juridiction over a crime?

Back 8

if the state is the legal situs of the crime

Front 9

What is the situs of a crime?

Back 9

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

Front 10

What is the modern bases for a state's criminal law jurisdiction?

Back 10

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

Front 11

List the sources of criminal law.

Back 11

- Common law crimes
- Statutory crimes
- Constitutional crimes
- Administrative crimes
- Model Penal Code

Front 12

What is a common law crime?

Back 12

one that is created and enforced by the judiciary in the absence of a statute defining the offense

Front 13

Are there any federal common law crimes?

Back 13

no, except for those provided by Congress for DC

Front 14

Do states have common law crimes?

Back 14

Majority have retained them either implicitly or by express retention statutes

Minority have abolished expressly or impliedly (but still keep common law defenses)

Front 15

What is the primary source of criminal law?

Back 15

state legislative statutes

Front 16

What is a constitutional crime?

Back 16

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

Front 17

How is an administrative crime proscribed?

Back 17

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

Front 18

List the theories that have been advanced to justify criminal punishment.

Back 18

- Incapacitation (restraint)
- Special Deterrence
- General Deterrence
- Retribution
- Rehabilitation
- Education

Front 19

Summarize the incapacitation theory of punishment.

Back 19

While imprisoned, a criminal has fewer opportunities to commit acts causing harm to society

Front 20

Summarize the special deterrence theory of punishment.

Back 20

punishment may deter the criminal from committing future crimes

Front 21

Summarize the general deterrence theory of punishment.

Back 21

punishment may deter persons other than the criminal from committing similar crimes for fear of incurring the same punishment

Front 22

Summarize the retribution theory of punishment.

Back 22

punishment is imposed to vent society's sense of outrage and need for revenge

Front 23

Summarize the rehabilitation theory of punishment.

Back 23

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

Front 24

Summarize the education theory of punishment.

Back 24

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

Front 25

What were the three common law classes of crimes?

Back 25

treason, felonies, misdemeanors

Front 26

Distinguish felonies and misdemeanors.

Back 26

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

Front 27

Distinguish malum in se and malum prohibitum.

Back 27

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

Front 28

What is an infamous crime?

Back 28

At common law, all crimes involving fraud, dishonesty or the obstruction of justice

modern law expands this to include most felonies

Front 29

What is the "void for vagueness" doctrine?

Back 29

Supreme Court has held due process clause to require that no criminal penalty be imposed without fair notice that the conduct is forbidden

Front 30

What are the two requirements for non-vagueness?

Back 30

(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

Front 31

What are the Article I limitations on state and federal crime creation?

Back 31

(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

Front 32

How can you tell the difference between an ex post facto law and a bill of attainder?

Back 32

ex post facto law does not deprive the offender of a judicial trial

Front 33

List the rules of interpretation for criminal statutes.

Back 33

(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

Front 34

What is the plain meaning rule?

Back 34

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

Front 35

What is the rule of lenity?

Back 35

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

Front 36

What is the rule of expressio uniun, exclusio alterius?

Back 36

the expression of one thing impliedly indicates an intention to exclude another

example: if a statute provides one exception, it impliedly excludes all others

Front 37

What is the rule regarding specific controls general; more recent controls earlier?

Back 37

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

Front 38

What is the rule regarding the effect of repeal?

Back 38

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

Front 39

What was the common law rule of merger?

Back 39

misdemeanor merged into felony - if a person engaged in conduct constituting both, he could only be convicted of the felony

Front 40

What is the current American rule regarding merger?

Back 40

No merger!

Exceptions:
- merger of solicitation or attempt into completed crime
- merger of lesser included offenses into greater offenses

Front 41

Describe the solicitation/ attempt merger exception.

Back 41

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.

Front 42

Describe the lesser included offense merger exception.

Back 42

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.

Front 43

What is a lesser included offense?

Back 43

A lesser included offense is one that consists entirely of some, but not all, elements of the greater crime.

Front 44

Is there double jeopardy if a statute provides multiple punishments for a single act?

Back 44

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.

Front 45

What elements of a criminal offense is a prosecution generally required to prove?

Back 45

(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

Front 46

What are the four common law types of parties to a felony?

Back 46

(1) principals in the first degree
(2) principals in the second degree
(3) accessories before the fact
(4) accessories after the fact

Front 47

What are principals in the first degree?

Back 47

persons who actually engage in the act or omission that constitutes the criminal offense

Front 48

What are principals in the second degree?

Back 48

persons who aid, command, or encourage the principal and are present at the crime

Front 49

What are accessories before the fact?

Back 49

persons who aid, abet, or encourage the principal but are not present at the crime

Front 50

What are accessories after the fact?

Back 50

persons who assist the principal after the crime

Front 51

Under the modern approach, what is a principle?

Back 51

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

Front 52

Under the modern approach, what is an accomplice?

Back 52

one who, with the intent that the crime be committed, aids, counsels, or encourages the principal before or during the commission of the crime

Front 53

Under the modern approach, what is an accessory after the fact?

Back 53

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

Front 54

List the offenses involving judicial procedure.

Back 54

(1) perjury
(2) subornation of perjury
(3) bribery
(4) compounding a crime
(5) misprison of a felony

Front 55

What is perjury?

Back 55

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

Front 56

What is subornation of perjury?

Back 56

consists of procuring or inducing another to commit perjury

Front 57

What is bribery?

Back 57

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

Front 58

What is compounding a crime?

Back 58

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)

Front 59

What is misprison of a felony?

Back 59

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)

Front 60

Can a witness be prosecuted for perjury for having made two false statements at the same proceeding?

Back 60

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

Front 61

What is special about perjury in a civil rights action?

Back 61

In a civil rights action, all witnesses (including police officers) are immune from civil liability based on their alleged perjured testimony in judicial proceedings

Front 62

What are the common law elements of burglary?

Back 62

(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

Front 63

What is actual breaking?

Back 63

Requires some use of force to gain entry but minimal force is sufficient

Example: opening a closed but unlocked door

Front 64

What is constructive breaking?

Back 64

gaining entry by means of fraud, threat, or intimidation, or by use of the chimney

Front 65

What is required to constitute a breaking?

Back 65

- 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)

Front 66

What is required to constitute entry?

Back 66

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)

Front 67

What is a dwelling?

Back 67

a structure used with regularity for sleeping purposes

NOTE: other purposes or temporary absence of inhabitants does not affect status as dwelling

Front 68

What determines "of another"

Back 68

Occupancy, thus an owner can commit burglary of his own structure if it is rented and used as a dwelling by others)

Front 69

What is nighttime?

Back 69

period during which the countenance of a person could not be discerned by natural light

Front 70

When must the intent to commit a felony exist for burglary?

Back 70

at the time of entry

Front 71

What are the common law elements of arson?

Back 71

(1) the malicious
(2) burning
(3) of a dwelling
(4) of another

Front 72

At common law, was it an offense to burn one's own dwelling for purposes of fraudulently collecting the insurance on it?

Back 72

No, but it is often made an offense under modern statutes

Front 73

What are the elements for common law misdemeanor of houseburning?

Back 73

(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

Front 74

What state of mind is required for arson?

Back 74

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

Front 75

What is determinative of "of another" for arson?

Back 75

occupancy; ownership is immaterial

Front 76

What damage is required for arson?

Back 76

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

Front 77

What are the elements of common law misdemeanor of malicious mischief?

Back 77

(1) malicious
(2) destruction of, or damage to
(3) property of another

Front 78

What is bigamy?

Back 78

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

Front 79

What is battery?

Back 79

unlawful application of force to the person of another resulting in either bodily injury or an offensive touching

Front 80

What classification of crime is simple battery?

Back 80

misdemeanor

Front 81

What state of mind is required for battery?

Back 81

none required; need not be intentional

negligence is sufficient