Mbe Crim Law 2007

Front 1

MERGER

Back 1

Generally no merger at common law. solicitation merges into the underlying offense. Conspiracy does not.
Never merge crimes w different V

Front 2

Actus reus

Back 2

Physical act by def. physical act is a voluntary bodily movement.

Front 3

Omission as “act”

Back 3

Generally no duty to act: 5 exceptions
1) Duty arise by statute. I.e. taxes
2) Contract. I.e. nurse has legal duty to act
3) Relationship between the parties. I.e. parent child, spouses.
4) Voluntary assumption of care. Cant turn back from rescue.
5) Conduct created the peril

Front 4

Four common law mental states

Back 4

1) Specific intent
(a) Qualify for defenses not avail for other crimes
2) Malice
(a) Murder & arson
3) General intent
(a) Almost all crimes are general intent, i.e. rape and battery
4) Strict liability
(a) Defenses that negate intent don’t apply

Front 5

Specific intent crime

Back 5

1) 3 Inchoate offenses
2) 1st degree murder
(a) EXAM just “murder” = 2d degree murder (malice)
3) Assault
4) Larceny & burglary
5) Forgery
6) False pretenses
7) Embezzlement

Front 6

General intent defined

Back 6

Awareness of factors constituting the crime. Def must be aware she is acting in the proscribed way and that any required circs are met.

Front 7

HT identify Strict liability statutes

Back 7

If the crime is administrative, regulatory, or a moral crime. And no state of mind on the face, then statute is strict liability offense.

Front 8

Defense to strict liability offenses:

Back 8

1) NOT mistake of fact
2) NOT absence of intent i.e. intoxication
3) NOT consent of the V
4) Maybe unconstitutional

Front 9

Accomplice liability

Back 9

1) Accomplices are liable for the crime itself and all other foreseeable crimes.
2) Accomplice liability requires physical act aiding or abetting, counsels or encourages the crime itself.

Front 10

3 inchoate offenses

Back 10

1) Solicitation
2) Conspiracy
3) Attempt

Front 11

Solicitation defined

Back 11

1) The crime of asking someone to commit a crime. As soon as they consent, its conspiracy. Solicitation merges

Front 12

Conspiracy defined

Back 12

EXAM objective must be a crime. Requires
2) Agreement
3) Intent to agree
4) And intent to pursue the unlawful objective.
5) Conspiracy DOES NOT MERGE.

Front 13

Scope of conspirator liability

Back 13

Each conspirator liable for all crimes of co-conspirator if committed w/in scope of crime and foreseeable.

Front 14

Agreement requirement for conspiracy

Back 14

1) Need not be express. Members of conspiracy need not know one another.
2) There must be a overt act in furtherance of the conspiracy.
3) Overt act can be committed by any one of the co-conspirators
(a) Just showing up is enough

Front 15

Defenses to conspiracy

Back 15

Withdrawal requires:
1) Affirmative act
2) That notifies all co-conspirators
3) In time for all to abandon
4) Defendant withdrawing must attempt to neutralize any assistance.
5) Impossibility is no defense
6) Withdraw even if adequate does not defeat liability for the conspiracy itself
7) Withdrawal if adequate will release from liability for other conspirators subsequent crimes.

Front 16

Attempt requires

Back 16

1) Attempt requires
(a) Specific intent
(b) Plus a substantial step—beyond preparation—towards the commission of the crime

Front 17

M’naughten insanity

Back 17

1) Def at time lacked ability to know wrongfulness or understand nature & quality of action

Front 18

MPC insanity

Back 18

1) Def lacked ability to conform conduct to requirements of law

Front 19

Irresistible impulse

Back 19

Def lacked capacity for self control or conform conduct

Front 20

Durham NH test

Back 20

Crime was product of mental disease or defect

Front 21

Intoxication defense

Back 21

1) Distinguish voluntary and involuntary intox
2) Voluntary intox is defense only to specific intent crimes.
(a) Addicts are voluntary intoxicated. Involuntary only where someone slips a drug in your drink or forces the booze down your throat
3) Involuntary intox and insanity are defenses to ALL CRIMES
(a) Including strict liability

Front 22

Infancy defense

Back 22

Under 7 no criminal liability
Under 14 Rebuttable presumption of no criminal liability

Front 23

Non-deadly force self defense requires

Back 23

Requires D reasonably believe force is about to be used on them.

Front 24

Deadly force in self-defense requires

Back 24

1) Deadly force in self-defense Requires D reasonably believes deadly force is about to be used on them.
2) Minority rule requires D to retreat to the wall before using deadly force in self defense
(a) Exceptions in the home
(b) Rape or robbery
(c) Or if police officer

Front 25

Defense of self defense for original aggressor

Back 25

1) Never applies, unless
(a) Originally aggressor withdraws and
(b) Communicate withdraw to the victim!

Front 26

Defense of a dwelling OR PROPERTY

Back 26

1) Deadly force may never be used solely to defend prop. I.e., spring gun, electric fence, or ELECTRIFIED TRANSFORMER!! on vacant property.

Front 27

Defense of duress (compulsion or coercion)

Back 27

Duress is a defense to all crimes cept homicide

Front 28

Mistake of fact defense

Back 28

Mistake of fact defense
Depends on mental state of the crime charged
Specific intent: Any Mistake of Fact (reasonable or unreasonable)
Malice & general intent: Reasonable Mistakes Only
Strict Liability: Never

Front 29

Consent defense

Back 29

Consent of the victim is almost never a defense. One can't consent to the commission of a crime

Front 30

Entrapment defense

Back 30

Predisposition on the part of D to commit the crime negates the defense of entrapment.

Front 31

Assault

Back 31

1) Specific intent: Intent to commit a battery
2) General intent: a threat, or intentional creation of a reasonable apprehension of imminent bodily harm

Front 32

Common law murder!

Back 32

at common law, murder is the unlawful killing of another with malice aforethought. Malice aforethought may be found on the basis of the following four mental states: 1) intent to kill; 2) intent to cause severe bodily harm; 3) reckless indifference to a severe risk to human life; or 4) intent to commit a felony.

Front 33

Homicide is murder if

Back 33

1) Intent to kill
2) Intent to do serious bodily harm
3) (depraved heart / highly reckless) intentional performance of an act with an unjustifiable high risk to human life
4) Felony murder

Front 34

Manslaughter

Back 34

1) Voluntary manslaughter
(a) voluntary manslaughter requires passion. There must be provocation.
2) Involuntary manslaughter

Front 35

Involuntary manslaughter (2 types)

Back 35

1) Killing from criminal negligence—just breach of due care?
2) Misdemeanor manslaughter
(a) Killing during misdemeanor or
(b) Un-enumerated felony

Front 36

1st degree murder

Back 36

1) See big book, Statutory modification of common law classifications

Front 37

Felony murder defenses (five)

Back 37

1) Defense to underlying felony is defense to FM
(a) I.e. voluntary intox is defense to robbery
2) Felony must be indep of killing
3) Death mst be foreseeable
4) Death caused while fleeing are FM. But once D reaches pt of temp safety, subsequent deaths not FM
5) Not liable for death of co-felon as a result of resistance by V or cops
(a) Store owner in burglary kills D1. D2 not guilty of FM
(b) But if V resists and shoots and misses D1, killing bystander, D2 guilty of FM right?

Front 38

Rape

Back 38

1) Common law requires unlawful carnal knowledge of a woman by a man not her husband w.out consent

Front 39

Common law prop crimes

Back 39

Larceny
Embezzlement
False pretences

Front 40

Common law larceny

Back 40

1) Requires a wrongful taking
2) and a carrying away (asportation)
(a) Carrying away however so slight
3) W/out consent. Consent by fear invalid.
4) And the intent to permanently deprive permanently at the time of the taking.
(a) If no intent to permanently deprive permanently at the time of the taking no larceny
(b) No larceny if you believe its urs or you have rt.

Front 41

Common Law Embezzlement

Back 41

1) Embezzler initially has lawful possession
2) And Engages in Illegal Conversion
(a) No need for carrying away
(b) No need for benefit to D
(c) Embezzler takes possession only, not title.

Front 42

False pretense

Back 42

1) D persuades owner of prop to convey title
2) On false pretense
3) Based on present or past fact
(a) Future promises not sufficient for liability

Front 43

Robbery requires

Back 43

1) Larceny (define it)
2) Plus assault
3) Take from the other’s person or his presence
(a) Presence is broad—on the prop enough
4) By force or intimidation
(a) Pick pocket insufficient, instead “your $$ or life”
(b) Imminent not future, harm. Threat of future harm=extortion

Front 44

Extortion requires

Back 44

1) 2 distinction between robbery &extortion
2) Extortion does not require taking from person or person
3) Threats are of future, not eminent, harm.

Front 45

Common law burglary requires

Back 45

Common law burglary requires
1) breaking
(a) Actual or constructive—by threat or fraud
(b) Open door alone not breaking. But push open bedroom door. Breaking
(c) Maid uses key to party in empty house. Constructive breaking
2) Entering
3) The dwelling house of another
4) At night!
5) W intent to commit a felony inside
(a) Intent must exist at time of breaking & entering

Front 46

Common law arson requires

Back 46

Common law arson requires
1) Malicious
2) Burning
(a) Not just smoke or water damage not explosion
3) Of the dwelling house
4) Of another

Front 47

5th amendment right to counsel: terminating interrogation

Back 47

Requires D unambiguously indicates wish to speak to counsel, all Q must cease. Continued Q violates 5th amendment right to counsel. Note: Miranda requests for counsel under 5th amd right. 5th amendment right to counsel is not offense specific. 6th amendment right to counsel is offense specific—atny only need be present for questioning re that attnys case.

Front 48

Pretrial ID: presence of attny required

Back 48

D has right to counsel at any post-charge lineup or showup. No right to counsel at photo id. or taking of physical evidence i.e. handwriting, fingerprint.

Front 49

5th amendment right to counsel: terminating interrogation

Back 49

Requires D unambiguously indicates wish to speak to counsel, all Q must cease. Continued Q violates 5th amendment right to counsel. Note: Miranda requests for counsel under 5th amd right. 5th amendment right to counsel is not offense specific. 6th amendment right to counsel is offense specific—atny only need be present for questioning re that attnys case.

Front 50

Pretrial ID: presence of attny required

Back 50

D has right to counsel at any post-charge lineup or showup. No right to counsel at photo id. or physical evidence i.e. handwriting, fingerprint.

Front 51

5th amendment right to counsel: terminating interrogation

Back 51

Requires D unambiguously indicates wish to speak to counsel, all Q must cease. Continued Q violates 5th amendment right to counsel. Note: Miranda requests for counsel under 5th amd right. 5th amendment right to counsel is not offense specific. 6th amendment right to counsel is offense specific—atny only need be present for questioning re that attnys case.

Front 52

Pretrial ID: presence of attny required

Back 52

D has right to counsel at any post-charge lineup or showup. No right to counsel at photo id. or physical evidence i.e. handwriting, fingerprint.

Front 53

Challenges to pretrial ID (two)

Back 53

1) Right to counsel
(a) post-charge lineup or showup. No right to counsel at photo id. or taking of physical evidence i.e. handwriting, fingerprint.
2) Due process violation pre or post charge
(a) If ID is unnecessarily suggestive and there’s substantial likelihood of miss-ID. i.e. one black guy in lineup.
3) Exclusionary rule applies—no in-court ID allowed! unless
(a) Indept source for ID i.e. at time of crime!

Front 54

Appealing Bail or preventive detention

Back 54

Bail is immediate appealable & preventative detention is constitutional

Front 55

Required use of grand jury

Back 55

1) States not required to use grand jury
(a) South & west states use Information signed by DA
2) Exclusionary rule doesn’t apply to GJ.
3) GJ proceedings secret—D has no right to appear or offer witnesses

Front 56

Right to unbiased judge

Back 56

1) Bias requires actual bias or $$ interest in case
(a) Not “D next time ur arrested I’m giving you the max sentence”

Front 57

Right to jury attaches

Back 57

1) If max authorized sentence exceeds 6 mos then right to jury

Front 58

Criminal contempt jury right

Back 58

1) If the sum of the sentences for criminal contempt exceeds 6 mos then D has right to jury.

Front 59

Number of jurors & unanimity required

Back 59

1) At least 6 jurors required. If 6 then must be unanimous
2) But no right to unanimous 12 person jury
(a) 10-2 & 9-3 required

Front 60

jury cross-section of society requirement

Back 60

1) Right to county jury pool fairly reflect cross sectn of society in that community
(a) No right to individual jury reflect cross sectn of community

Front 61

Use of preemptory challenge on the basis of race or gender

Back 61

1) Unconstitutional for either side to exercise preemptory to exclude on account of race or gender

Front 62

Right to effective assistance of counsel requires

Back 62

1) Deficient performance by counsel
2) But for such deficiency, result of proceeding would be different. Harmless error. Unless facts suggest not-guilt, probably no relief
3) ESSAY analyze the facts!

Front 63

Guilty pleas & plea bargaining (right to trial)

Back 63

1) Must be voluntary & intelligent
2) And on the record
3) D must understand the nature of the charge
4) And judge must state max possible sent and any mandatory min sentence.
5) judge must state right to plead not guilty, & that plea is waiver of jury right.

Front 64

Withdraw guilty plea requires

Back 64

1) plea was involuntary
(a) show mistake in plea making
2) lack of jxn
3) ineffective assistance of counsel
4) failure of prosecutor to keep agreed to plea bargain
5) Supreme court won’t disturb guilty plea after sentence (immune from collateral attack)
(a) Supreme Court treats plea bargain like K.

Front 65

Sentence after appeal (upon new trial)

Back 65

1) Def may not be given a harsher sent on retrial after successful appeal.
2) Usual course after successful appeal is remand for new trial.

Front 66

Death penalty

Back 66

1) Any death penalty statute that does not allow mitigating facts and circs is unconstitutional
2) automatic category for death penalty prohibited
3) State statute may not limit mitigating factors; all relevant mitigating evidence must be admissible.
4) aggravating factors justifying death must be determined by jury not judge.

Front 67

Double jeopardy attaches

Back 67

1) at a jury trial when jury is empanelled and sworn
(a) jeopardy does not apply to civil proceedings i.e. criminal and civil prosecution for smuggling & forfeiture.

Front 68

Double jeopardy exceptions

Back 68

exceptions permitting retrial
1) hung jury
2) mistrials for manifest necessity i.e. D serious illness
3) retrial after successful appeal does not violate double jeopardy
4) breach of agreed plea bargain by D
(a) when D breaches plea, plea & sent may be vacated. I.e. turns state’s then renege.

Front 69

Same offense for double jeopardy

Back 69

1) 2 crimes do not constitute the same offense if each crime requires proof of an additional element.

Front 70

Double jeopardy requires

Back 70

1) Retrial for
2) The same offense
3) By the same sovereign

Front 71

5th amendment protection against compelled testimony

Back 71

1) Any person under oath in any proceeding may assert the privilege
(a) Witness, D, V (not corporation)
(b) Civil, criminal, congressional hearing!
2) Right not asserted is waived
(a) Must assert the first time Q is asked i.e. 1st asked in civil waived if not asserted, in later hrng including criminal.

Front 72

Scope of 5th amendment protection against compelled testimony

Back 72

1) 5th amendment does not protect physical evidence, i.e. blood , hair, urine.
2) Does not apply to doc production

Front 73

Admissibility of D’s silence

Back 73

1) Unconstitutional for prosecutor to make negative comment re D’s failure to testify or Remaining silent upon Miranda warnings.

Front 74

Eliminating 5th amendment protection against compelled testimony (3 types)

Back 74

1) Grant of immunity 2 types
(a) Use & derivative use immunity
2) No possibility of incrimination i.e. SOL has run.
3) Waiver
(a) Def waives by taking the stand. W/r/t all relevant areas of legit cross