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108 Cards in this Set
- Front
- Back
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Two general requirements for every crime
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Actus Reus and Mens Rea
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Describe Actus Reus
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a voluntary act - involuntary actions like convulsions and reflexes do not satisfy requirement
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When can omissions satisfy the actus reus requirement?
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When a legal duty to act has been imposed by statute, contract, a special relationship, creation of the peril, or voluntary assumption of a duty to act
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Four types of Mens Rea at common law
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Specific Intent
Malice General Intent Strict Liability |
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Specific Intent - define and give example
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intent to commit the act AND intent to commit the crime
Specific intent crimes include first degree murder, larceny, and all attempt crimes |
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Malice - define and give example
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Intentional or reckless disregard of an obvious or known risk
Used in murder and arson |
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General Intent - define and give example
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Intent to commit the act, BUT not necessarily any intent to commit a crime.
Rape is a general intent crime. |
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Strict Liability
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No mens rea required.
Statutory rape and bigamy are strict liability crimes. |
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Five types of Mens Rea in MPC
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Purpose
Knowledge Recklessness Negligence (Criminal Negligence) Strict Liability |
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Purpose mens rea requirement - describe
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Actual desire, or with actual intent to commit the crime
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Knowledge mens rea requirement - describe
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Awareness of the facts that satisfy the element of the crime
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Recklessness mens rea requirement - describe
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conscious disregard of a substantial and unjustifiable risk; or wantonly
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Negligence mens rea requirement - describe
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Gross negligence - failure to be aware of a substantial and unjustifiable risk
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Transferred Intent
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if a defendant had the necessary mens rea as to one victim, this mens rea is proven as to any other victim.
Example: Joe purposely shot at Victor intending to kill him, but missed and hit Sally killing her instantly. Joe is guilty of the murder of Sally, and the attempted murder of Victor. |
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Concurrent Intent
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Maryland only
If defendant shoots multiple bullets at one victim who defendant intends to kill, he may be guilty of attempted murder of any one else in the "kill zone". |
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Solicitation
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Actus Reus: inducing, urging, commanding another to commit a felony
Mens Rea: Purpose - specific intent - actual desire that the other person commit the felony Additional Elements: felony must not be completed - if it is then the crime merges Defenses: impossibility is not a defense, and one cannot withdraw either |
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Conspiracy
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Actus Reus: an agreement between two or more persons to accomplish an unlawful purpose - no overt act required, just an agreement
Mens Rea: specific intent - the purpose of the agreement is to actually achieve the objective of the agreement Additional Elements: all conspirators are guilty of the substantive crimes of others if they were committed in furtherance of the objectives of the conspiracy and were foreseeable. Defenses: Can limit liability by withdrawing; must make an affirmative act that notifies all members of conspiracy |
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Wharton rule
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If a substantive crime requires two people (adultery), there is no conspiracy unless a third person also agrees to assist.
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Attempt
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Actus Reus: an act beyond mere preparation - common law requires defendant to come dangerously close to completing crime, MPC (and MD) just requires a substantial step
Mens Rea: always specific intent Defenses: impossibility is not a defense; abandonment is typically not a defense (never in MD), but the MPC does allow abandonment if it is voluntary |
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Battery
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Actus Reus: unlawful application of force resulting in bodily injury or offensive touching
Mens Rea: general intent |
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Assault
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Actus Reus: attempted battery or intentional creation of reasonable apprehension of imminent bodily harm other then by mere words
Mens Rea: specific intent |
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Mayhem
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Actus Reus: dismemberment or disablement of a body part
Mens Rea: malice |
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Homicide
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Actus Reus: killing of a human being
Mens Rea: difference in mens rea determines which crime committed Malice = Murder No Malice = Manslaughter |
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Four ways to prove Malice
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1) Intent to kill
2) Intent to inflict great bodily harm 3) Reckless indifference to an unjustifiably high risk to human life (abandoned, depraved, or malignant heart) 4) Homicide during felony (felony-murder doctrine) |
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Felony Murder
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Homicide that occurs during commission of certain felonies
MD: Mrs. Baker felonies Felony must be independent of the killing Homicide must be during commission of felony, including the escape (until safety is reached) If homicide is committed by victim of felony or by police, most jurisdictions do not hold defendant guilty of felony murder If co-felon is the homicide victim, then no felony murder. Must have an "innocent victim". Defendant must be guilty of the felony to be guilty of felony murder, but need not be convicted (statute of limitations may have run, etc) |
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First Degree Murder
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Based on statute.
Most include any premeditated and deliberate murder, and murder by poison, torture, lying in wait, and felony murder. Premeditation: decision to kill was made in cool and dispassionate manner Deliberation: defendant must have reflected on decision to kill for "some appreciable period" Maryland: poison, lying in wait, premeditated and deliberate, plus homicide during Mrs. Baker crime |
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Mrs. Baker crimes
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Maryland felonies that give rise to felony murder charge if homicide occurs during their commission.
M - Mayhem r - Rape s - Sodomy B - Burglary a - Arson k - Kidnapping e - Escape r - Robbery |
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Second Degree Murder
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Any murder that is not first degree murder, plus in Maryland, felony murder based on a felony other than Mrs. Baker crimes as long as the felony is "dangerous to human life".
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Manslaughter
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Homicide without malice
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Involuntary manslaughter
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homicide by criminal negligence
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Voluntary Manslaughter
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homicide with adequate provocation and during the heat of passion
Homicide was intentional, but defendant was provoked by an event that would arouse sudden and intense passion in a reasonable person Discovering spouse having sex with another is not adequate in MD Words are always inadequate No cooling off period |
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Rape
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Intercourse by force or threat of force, and without consent
Resistance is not required Threat must involve immediate, serious, bodily harm Mentally incompetent or drugged victims cannot give valid consent MD Married couples: no rape unless separated for at least 3 months without separation agreement, partial divorce decree, or valid separation agreement |
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Larceny
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6 elements:
(1) taking (2) personal property (3) of another (4) with asporation, (5) trespass (even by trick), and (6) with the specific intent to permanently deprive |
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Embezzlement
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(1) Fraudulent (specific intent)
(2) conversion (3) of another's (4) personal property (5) by a person in lawful possession of said property |
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False Pretenses
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(1) obtaining title
(2) to another's property (3) by making a false statement of (4) past or present fact (5) with specific intent to defraud, and (6) reliance by the other person |
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Theft
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Maryland statutory crime that covers larceny, embezzlement and false pretenses
Covers services and improper use of another's personal property, defined as anything of value Covers intent to deprive for any length of time (would include joyriding) |
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Robbery
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Larceny by force or threat of force
The force or threat must be the reason why the victim handed over the property - pickpocketing not robbery Threat must be of immediate death or serious bodily injury. Threat to property not sufficient except threat to destroy house. Force to escape is sufficient. |
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Extortion
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Obtaining property of another by threat of violence or threat of economic harm.
Threat to file civil claim not sufficient, but criminal charges are. |
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Burglary (common law definition)
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(1) Breaking and
(2) entering (3) a dwelling (4) of another (5) at night (6) with intent to commit a felony therein |
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Burglary (Maryland distinctions)
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any building
any time any crime (not just felonies) |
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Arson (common law)
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Malicious burning of another's dwelling
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Arson (Maryland distinctions)
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Setting fire to any building, vehicle, boat or personal property
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Parties to crimes (common law)
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principal in first degree = person that performs actus reus
principal in second degree = person who aids or encourages and is present at the scene accessory before the fact = person who aids or plans but is not at scene accessory after the fact = person who helps felon escape ALL are guilty of the same crime Mens Rea - specific intent; mere knowledge or presence not sufficient |
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Parties to crimes (modern approach)
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Principal = person who performs actus reus
Accomplice or Aider or Abettor = person who encourgaes or plans crime whether at scene or not Principals and Accomplices are guilty of same crime Persons who help felon escape are guilty of obstruction of justice or harboring a fugitive Mens Rea - specific intent; mere knowledge or presence not sufficient Guilty of all foreseeable crimes |
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Can accomplice withdraw?
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yes, but to avoid conviction, accomplice must neutralize his earlier assistance
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M'Naghten test
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(1) disease of mind that caused defendant to
(2) lack the ability to know what the did was wrong, or (3) to understand the nature of his act |
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Irresistible impulse test
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(1) mental illness caused
(2) sudden urge to commit crime that (3) could not be resisted |
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MPC insanity test (and MD)
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not guilty by reason of insanity if:
(1) lacks substantial capacity to appreciate what he did was wrong, or (2) conform his conduct to requirements of the law Defendant must prove insanity by preponderance of the evidence |
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Durham test
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not guilty if unlawful act was the product of mental disease or defect
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Competence
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Defendant cannot be put on trial if at the time of trial he is unable to understand the nature of the proceedings or is unable to assist his attorney in preparation of a defense
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Involuntary intoxication defense
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complete defense to all crimes if results in defendant satisfying the insanity test
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Voluntary intoxication
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voluntary intoxication may negate specific intent, purpose or knowledge, but would not negate recklessness or negligence
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Infancy defense
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under 7 = not guilty
between 7 and 14 = rebuttable presumption that defendant was not capable of knowing wrongfulness of conduct |
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Self defense - when, how much force, retreat necessary?
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Person who is not at fault is entitled to use reasonable force to protect himself or a third person from the imminent use of unlawful force
Can use deadly force when reasonably believe imminent death or great bodily harm will result otherwise no duty of retreat in MPC MD does require retreat unless at home or victim of robbery |
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Defense of property
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non-deadly force can be used to protect dwelling if person reasonably believes force is necessary to prevent entry
Deadly force can be used to prevent entry in to dwelling if reasonable belief that intruder intends to commit a felony in the dwelling which would result in loss of life or great bodily harm, and such deadly force is unavoidable and not excessive |
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Duress defense
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requires imminent infliction of death or serious bodily harm to defendant or third person
Generally not available as defense to homicide, though Maryland does allow it to mitigate murder to manslaughter |
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Duress (Maryland distinctions)
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Maryland allows duress to mitigate murder to manslaughter
Duress is not available to gang members Duress can be defense to felony murder if underlying felony was committed under duress |
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Necessity defense
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Choice of evils
committed crime to avoid greater immediate harm |
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Entrapment
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must be
(1) government conduct that (2) created the intent to commit the crime, and (3) defendant must not have been predisposed to commit the crime |
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Search and Seizure - 4 global issues
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1. Whether a search or seizure is governed by fourth amendment
2. Whether a search or seizure with a warrant satisfies 4th amendment requirements 3. Whether a search or seizure without a warrant satisfies 4th amendment requirements 4. the extent to which evidence obtained through unlawful search and seizure is nonetheless admissible in court |
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Is search or seizure governed by 4th amendment?
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1. Was it conducted by a government agent?
2. Was it of an area or item protected by the 4th amendment? 3. Did the government agent either physically intrude or violate a reasonable expectation of privacy 4. Did the individual have standing to challenge government action? |
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Four things expressly protected by 4th amendment
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1. Persons (bodies)
2. Houses (including hotel rooms and curtilage) 3. Papers (personal correspondance) 4. Effects (purses, backpacks, etc) |
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Things not protected by 4th amendment
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Patty Achieved A Glorious Victory Over Her Opponents
Paint scrapings Account records Air space (anything viewable from above) Garbage Voice (sound of your voice) Odors (especially those from car and luggage) Handwriting Open fields (anything in plain view) |
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4 requirements for search with warrant to be in compliance with 4th amendment
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1. Was the warrant issued by a neutral and detached magistrate?
2. Is the warrant supported by probable cause and particularity? 3. If not, did law enforcement rely in good faith? 4. Was the warrant properly executed by police? |
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How much of a burden is probable cause?
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just enough evidence to show a fair probability that contraband or evidence will be found
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Requirement for use of informant for warrant
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Can be anonymous
Police must give enough corroboration to allow magistrate to make a common sense practical determination the a probable cause exits based on a totality of the circumstances |
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Knock and Announce rule
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Must knock and announce presence unless office reasonably believes doing so would be
(1) futile (2) dangerous or (3) would inhibit the investigation |
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Warrant execution Maryland distinctions
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Must be executed within 15 days
Judges cannot issue a no-knock warrant |
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Eight exceptions to warrant requirements
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ESCAPIST
Exigent circumstances Search incident to arrest Consent Automobile Plain view Inventory Special needs Terry stop |
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Search incident to arrest
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may search wingspan, which includes body, clothing, and any containers within the arrestee's immediate control
Automobile: can search interior cabin including any containers, but not trunk. Once arrestee has been secured, then car can only be searched for evidence relating to crime for which the arrest was made |
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Terry Stop
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Brief detention or seizure for the purposes of investigation
an individual has been seized if a reasonable person would not feel free to leave or to decline to answer questions Definitely a seizure if an officer brandishes a weapon, also consider tone and demeanor and whether the person was told she had the right to refuse consent Can frisk if officer reasonably believes suspect is armed and dangerous, but cannot manipulate objects during frisk |
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When can evidence obtained in unlawful search be admissible in court
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evidence can be used to impeach witness
failure to comply with knock and announce does not require suppression of evidence subsequently discovered Police action must have been deliberate, reckless or grossly negligent to exclude evidence |
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Fruit of the Poisonous Tree
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derivative or “secondary” evidence is called
“fruit of the poisonous tree” and, like “direct” evidence obtained in violation of the Fourth Amendment, it is inadmissible in the prosecutor’s case-in-chief |
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When can poison fruit be admitted?
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must show a break in causal link:
1) independent source 2) inevitable discovery 3) attenuation - time and intervening events can purge the taint |
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Four major requirements for a valid wiretap warrant
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Screen Telephone Calls Carefully
Suspected persons must be named Time must be limited Crime must be probable Conversations must be identified particularly |
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When does an arrest occur?
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whenever police take someone against their will for prosecution or interrogation and when they compel someone to come to the station for fingerprinting or questioning
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What standard of proof is required for an arrest?
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probable cause
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When do police officers need a warrant to make an arrest?
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when person is in their home
Officers can arrest in public without a warrant for a felony if they have probable cause, and for misdemeanors that were committed in their presence. |
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Three constitutional challenges to exclude a confession
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Fourteenth amendment - Due Process Clause
Sixth amendment - Right to Counsel Fifth amendment - Miranda doctrine |
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How to exclude confession under due process clause
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must show involuntariness - confession was result of police coercion that overbears suspect's will
Maryland excludes confessions that were the product of promises or inducements |
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When does 6th Amendment Right to Counsel apply?
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It attaches when defendant is formally charged, and applies at all critical stages of the prosecution including arraignment, probable cause hearings, and police interrogation.
Right does not apply to uncharged criminal activity. |
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Four core Miranda warnings
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Right to remain silent, anything you say will be used against you, right to an attorney, and one will be appointed if you cannot afford it
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When are Miranda warnings necessary?
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1) Where a reasonable person would not have felt at liberty to end interrogation and leave, AND
2) where the environment is inherently coercive |
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How is interrogation defined?
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Any conduct the police knew or should have known was likely to elicit an incriminating response.
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Requirements for a valid waiver of Miranda rights
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Must be knowing, intelligent, and voluntary
Suspect must understand the nature of the rights, the consequences of abandoning them, and must not be coerced |
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Who bears burden of proving Miranda
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Prosecution must prove rights were read by preponderance of the evidence
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How to invoke Miranda rights
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must unambiguously invoke right to remain silent
request for counsel must be sufficiently clear |
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How must police treat suspects that have invoked rights
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Officer must scrupulously honor right to remain silent, and must wait a significant period of time and obtain a Miranda waiver before reinitiating questioning
Once suspect asks for counsel, all interrogation must cease immediately Request for counsel expires 14 days after suspect is realeased |
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How can evidence obtained through Miranda violations be used?
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Statements are inadmissible in prosecutors case-in-chief, but can be used to impeach
The Physical fruits of incriminating statements voluntarily made does not need to be suppressed, nor subsequent statements made after obtaining waiver |
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What is the harmless error rule
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If evidence obtained through violation of Miranda was used at trial, the court does not need to vacate guilty verdict if government can prove the error was harmless because the defendant would have been convicted without the tainted evidence
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When is there a right to counsel at pretrial identifications
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NO Miranda right to counsel at pretrial ID
There is a 6th amendment right to counsel at POST-charging line-ups and show-ups, BUT NOT photo arrays |
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When does pretrial identification violate due process
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when so unnecessarily subjective that it creates a substantial likelihood of misidentification
State must then prove by clear and convincing evidence that the reliability of the ID outweighs its corrupting effect |
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If pretrial ID is excluded, when may witness still testify in court about identity
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If witness had opportunity to view D at crime scene, gave a specific description to police, and feels certain
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What do grand juries do? What type of hearing? Are they required?
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issue indictments
secret proceedings not required for any crime in MD |
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"First Appearance" requirements
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Soon after arrest (24 hours in MD), a defendant must be brought before a magistrate (District Court Commissioner in MD) who:
1) advises him of rights 2) sets bail (immediately appealable) 3) appoints counsel |
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What evidence must be disclosed to defendant? (Brady rule)
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All material, exculpatory evidence, and in MD, all material subject to a motion to suppress including statements made by the defendant and any pretrial identifications
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When does a defendant have a right to a jury trial?
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When maximum sentence exceeds 6 months
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How many jurors are required? MBE
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6 to 12 - need to be unanimous if only 6
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How many jurors are required in Maryland?
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12 jurors who must be unanimous, unless defendant waives right
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How to prove ineffective assistance of counsel
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1) must show performance was objectively unreasonable, and
2) trial outcome would have been different |
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What is necessary for a guilty plea to be valid?
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must be voluntary and intelligent
Judge must address in open court the nature of the charges including required elements, and the consequences of the plea |
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When may a defendant withdraw guilty plea?
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1) involuntary due to defect in plea-taking colloquy,
2) wrong jurisdiction 3) ineffective assistance 4) prosecutor fails to fulfill his part of the bargain |
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Eight Amendment standard for cruel and unusual punishment
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penalty must be grossly disproportionate to the seriousness of the crime
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For double jeopardy, when does jeopardy attach?
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jury trial: when the jury is sworn
bench trial: when first witness is sworn guilty plea: when court accepts plea unconditionally Does not apply to civil cases |
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Double jeopardy basics
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cannot be tried for same crime twice by the same sovereign
crimes are not same if each requires additional element lesser rules out greater , and greater rules out lesser fed and state are not same sovereign - state and its municipalities are same |
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Four exceptions that permit retrail
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1) hung jury
2) mistrial for manifest necessity 3) successful appeal 4) breach of plea agreement by defendant |
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Fifth amendment privilege against self-incrimination:
Who, when |
anyone
at any proceeding in which an individual testifies under oath |
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Getting around witness taking the 5th
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1) grant immunity
2) get waiver - defendant waives by taking the stand 3) statute of limitations |
