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74 Cards in this Set

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MERGER
Generally no merger at common law. solicitation merges into the underlying offense. Conspiracy does not.
Never merge crimes w different V
Actus reus
Physical act by def. physical act is a voluntary bodily movement.
Omission as “act”
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
Four common law mental states
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
Specific intent crime
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
General intent defined
Awareness of factors constituting the crime. Def must be aware she is acting in the proscribed way and that any required circs are met.
HT identify Strict liability statutes
If the crime is administrative, regulatory, or a moral crime. And no state of mind on the face, then statute is strict liability offense.
Defense to strict liability offenses:
1) NOT mistake of fact
2) NOT absence of intent i.e. intoxication
3) NOT consent of the V
4) Maybe unconstitutional
Accomplice liability
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.
3 inchoate offenses
1) Solicitation
2) Conspiracy
3) Attempt
Solicitation defined
1) The crime of asking someone to commit a crime. As soon as they consent, its conspiracy. Solicitation merges
Conspiracy defined
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.
Scope of conspirator liability
Each conspirator liable for all crimes of co-conspirator if committed w/in scope of crime and foreseeable.
Agreement requirement for conspiracy
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
Defenses to conspiracy
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.
Attempt requires
1) Attempt requires
(a) Specific intent
(b) Plus a substantial step—beyond preparation—towards the commission of the crime
M’naughten insanity
1) Def at time lacked ability to know wrongfulness or understand nature & quality of action
MPC insanity
1) Def lacked ability to conform conduct to requirements of law
Irresistible impulse
Def lacked capacity for self control or conform conduct
Durham NH test
Crime was product of mental disease or defect
Intoxication defense
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
Infancy defense
Under 7 no criminal liability
Under 14 Rebuttable presumption of no criminal liability
Non-deadly force self defense requires
Requires D reasonably believe force is about to be used on them.
Deadly force in self-defense requires
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
Defense of self defense for original aggressor
1) Never applies, unless
(a) Originally aggressor withdraws and
(b) Communicate withdraw to the victim!
Defense of a dwelling OR PROPERTY
1) Deadly force may never be used solely to defend prop. I.e., spring gun, electric fence, or ELECTRIFIED TRANSFORMER!! on vacant property.
Defense of duress (compulsion or coercion)
Duress is a defense to all crimes cept homicide
Mistake of fact defense
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
Consent defense
Consent of the victim is almost never a defense. One can't consent to the commission of a crime
Entrapment defense
Predisposition on the part of D to commit the crime negates the defense of entrapment.
Assault
1) Specific intent: Intent to commit a battery
2) General intent: a threat, or intentional creation of a reasonable apprehension of imminent bodily harm
Common law murder!
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.
Homicide is murder if
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
Manslaughter
1) Voluntary manslaughter
(a) voluntary manslaughter requires passion. There must be provocation.
2) Involuntary manslaughter
Involuntary manslaughter (2 types)
1) Killing from criminal negligence—just breach of due care?
2) Misdemeanor manslaughter
(a) Killing during misdemeanor or
(b) Un-enumerated felony
1st degree murder
1) See big book, Statutory modification of common law classifications
Felony murder defenses (five)
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?
Rape
1) Common law requires unlawful carnal knowledge of a woman by a man not her husband w.out consent
Common law prop crimes
Larceny
Embezzlement
False pretences
Common law larceny
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.
Common Law Embezzlement
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.
False pretense
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
Robbery requires
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
Extortion requires
1) 2 distinction between robbery &extortion
2) Extortion does not require taking from person or person
3) Threats are of future, not eminent, harm.
Common law burglary requires
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
Common law arson requires
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
5th amendment right to counsel: terminating interrogation
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.
Pretrial ID: presence of attny required
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.
5th amendment right to counsel: terminating interrogation
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.
Pretrial ID: presence of attny required
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.
5th amendment right to counsel: terminating interrogation
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.
Pretrial ID: presence of attny required
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.
Challenges to pretrial ID (two)
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!
Appealing Bail or preventive detention
Bail is immediate appealable & preventative detention is constitutional
Required use of grand jury
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
Right to unbiased judge
1) Bias requires actual bias or $$ interest in case
(a) Not “D next time ur arrested I’m giving you the max sentence”
Right to jury attaches
1) If max authorized sentence exceeds 6 mos then right to jury
Criminal contempt jury right
1) If the sum of the sentences for criminal contempt exceeds 6 mos then D has right to jury.
Number of jurors & unanimity required
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
jury cross-section of society requirement
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
Use of preemptory challenge on the basis of race or gender
1) Unconstitutional for either side to exercise preemptory to exclude on account of race or gender
Right to effective assistance of counsel requires
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!
Guilty pleas & plea bargaining (right to trial)
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.
Withdraw guilty plea requires
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.
Sentence after appeal (upon new trial)
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.
Death penalty
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.
Double jeopardy attaches
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.
Double jeopardy exceptions
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.
Same offense for double jeopardy
1) 2 crimes do not constitute the same offense if each crime requires proof of an additional element.
Double jeopardy requires
1) Retrial for
2) The same offense
3) By the same sovereign
5th amendment protection against compelled testimony
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.
Scope of 5th amendment protection against compelled testimony
1) 5th amendment does not protect physical evidence, i.e. blood , hair, urine.
2) Does not apply to doc production
Admissibility of D’s silence
1) Unconstitutional for prosecutor to make negative comment re D’s failure to testify or Remaining silent upon Miranda warnings.
Eliminating 5th amendment protection against compelled testimony (3 types)
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