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101 Cards in this Set
- Front
- Back
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What are the mental state and act requirements for attempt?
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Specific intent and "more than mere preparation"
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What are the mental state and act requirements for conspiracy?
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Specific intent to commit a crime(felony in Texas) and intent to agree. Agreement + overt act
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What are the mental state and act requirements for solicitation?
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Specific intent to cause crime and "request, commands, or attempts to induce."
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What are the mental state and act requirements for parties?
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Specific intent to promote or assist the commission of the offense and "solicits, encourages, directs, aids, or attempts to aid" or an omission if there is a legal duty.
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When is factual impossibility a defense?
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NEVER
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Is legal impossibility a defense to attempt?
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Majority - Defense
Minority - No defense |
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Is legal impossibility a defense to conspiracy?
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Majority - No Defense
Minority - Defense |
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Is legal impossibility a defense to conspiracy?
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Not ordinarily a defense
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Is legal impossibility a defense to law of parties?
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Not directly, but always a defense if no actual crime is completed.
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When can withdrawal be used an an affirmative defense for attempt?
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When the crime is prevented
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When can withdrawal be used as an affirmative defense for conspiracy?
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When the crime is prevented
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When can withdrawal be used as an affirmative defense?
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When the crime is prevented
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Is withdrawal an affirmative defense for being charged as a party to the crime?
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No express defense in Texas, but can look to the defense for attempt.
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Can a person be convicted for attempt and the object offense attempted?
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No it's either/or
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Can a person be convicted for conspiracy and the object offense of the conspiracy?
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Majority - Yes
Minority - No |
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Can a person be convicted for solicitation and the object offense of the solicitation?
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Usually yes, unless it is a lesser included offense
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Can inchoate crimes be convicted in combination with each other?
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No
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What is the cooling period?
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An opportunity to reflect more calmly where the law expects you to make the right decision.
Make heat of passion no longer an option. |
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What are the 2 main elements for heat of passion?
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Sudden passion
Adequate cause |
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What are the factors used to determine premeditation?
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Time
Manner Statements by the killer Relationship between the killer and the victim Motive |
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What is the basic idea of felony murder?
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If in committing a felony or in fleeing from the commission of a felony you kill somebody, then its murder.
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What is the culpability for felony murder?
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Specific transferred intent from the felony
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What is Texas' approach to felony murder?
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"Clearly dangerous" act - not which felony but the way that it was done
No culpability for the killing, only culpability for the underlying felony |
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What is the merger doctrine?
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That you can't use the underlying felony assault that is inherent in every killing as your felony.
assault + death ≠ felony murder Felony + clearly dangerous act + death = felony murder |
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What is the general question for causation?
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But for your conduct this would not have occurred
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What is an independent intervening cause?
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Coincidence. Must ask if it was foreseeable.
Yes - responsible No - not responsible |
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What is a dependent intervening cause?
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Response. Must ask if it was so abnormal that it was not foreseeable.
Yes - not responsible No - responsible |
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What are the four possibilities of concurrent causation?
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2 sufficient acts that would produce the result (Texas ∆ guilty)
2 insufficient acts but together were sufficient (Texas ∆ guilty) ∆'s act was clearly sufficient and the other act was clearly insufficient (Texas ∆ guilty) ∆'s act was clearly insufficient and the other act was clearly sufficient (Texas ∆ not guilty) |
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What are the 2 essential components to mental disease and defect?
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Competency to stand trial
Insanity |
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What is competency asking?
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Does the ∆'s mental disease or defect prevent him from having a fair trial?
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What is overarching question is being asked for insanity?
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Does ∆'s mental disease or defect prevent the court from holding this person criminally liable?
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What are the 2 reasons that you would probably raise mental disease and defect as a last resort?
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Almost never works because of the difficulty to meet the burden.
Even if it works then you are still likely to be confined. |
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Do you use insanity when determining competency?
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No
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What are the two tests that Texas uses to determine competency?
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Is the ∆ able to assist in their own defense?
-or- Does the ∆ have a rational understanding of the proceedings? |
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What happens when a person is found incompetent to stand trial?
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They can be sent to a state mental facility for treatment until they are found competent. There must be periodic reviews and if the person is getting better then the state can continue treatment. If they show no signs of improvement the state must either release or bring a civil suit for involuntary commitment.
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What are the names of the four tests for insanity?
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McNaughten
McNaughten + Irresistible Impulse Durham/Product ALI/MPC |
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What is the McNaughten test for insanity and what must you determine?
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Simple right/wrong test
Whether the mental disease or defect rendered the ∆ unable to discern right from wrong. |
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What is the NcNaughten + Irresistible Impulse test and what must you determine?
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Whether the mental disease or defect rendered the ∆ unable to discern right from wrong.
Even if there was a police officer at their elbow, would they still have done the crime? |
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What is the Durham/Product test?
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∆ is not responsible for behavior if that behavior was a product of a mental disease or defect.
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What are the 2 prongs of the ALI/MPC test?
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Cognitive - Know
Volitional - Appreciate |
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What is Texas' test for insanity?
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McNaughten test and the mental disease or defect must be severe.
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What is intoxication?
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Loss or impairment of facilities by any means
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What is voluntary intoxication?
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Loss or impairment of facilities by anything that you voluntarily ingest.
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Is voluntary intoxication a defense in Texas?
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No
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When may temporary insanity from intoxication be introduced into a trial?
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Mitigation or punishment
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What is the culpability for intoxication?
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There is not one because the act of becoming intoxicated is in and of itself reckless.
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What is the test in Texas for insanity caused by intoxication?
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Same as the test for insanity. Because of intoxication you are unable to know know right from wrong.
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How will a party that has reached a mental illness because of drug use be treated?
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As having settled insanity
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What are two themes that run through defense of self, others, and property?
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Use the least amount of force necessary
We favor life over property |
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What are problems with the defense of self, others, and property?
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Was it immediately necessary?
Was it reasonable to use deadly force? |
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In the Texas Penal Code § 9, what is force?
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Non-deadly force
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In the Texas Penal Code § 9, what is deadly force?
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The force necessary to cause a person serious bodily injury or death.
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What is a weapon?
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Any means of inflicting deadly force.
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What is self defense always limited to?
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When and to the degree that the actor believes the force is immediately necessary.
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Was is the purpose of battered spouse syndrome?
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Used to educate the jury.
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What are the four justifications for the use of force
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Self defense
Defense of others Defense of property Use of force in law enforcement |
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What are the 2 approaches for defense of others in America and do they mean?
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Alter-ego - places the actor in the shoes of the person being defended and asks if that person could have used it as a defense.
TPC § 9.33 - whatever justification that person would have reasonably had. Asks if your actions are reasonable. |
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What does TPC § 9.33 (Defense of others) promote?
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Encourages the defending of other people
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According to the Supreme Court are police officers permitted to use deadly force in the apprehension of a fleeing felon?
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No because felonies are not generally punishable by death.
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Is a person justified in using force to resist an unlawful arrest?
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No
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According to TPC § 9.51, when may an officer arrest or search a person?
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If the officer believes that the arrest or search is lawful, or if the arrest is made under warrant and the officer reasonably believes the warrant to be valid.
-AND- Before the officer uses force he must manifest his purpose and identify himself as a peace officer unless he believes that identity is already known or cannot be made known |
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What are the four justifications for assault and what kind of force is allowed?
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Parent/Child
Educator/Student Guardian/Incompetent Only non-deadly force |
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What must a person satisfy to prove necessity under TPC § 9.22?
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Reasonable, immediately necessary, and imminent harm
Weighing of evils Legislature has not already considered the risk |
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What does the Texas Court of Criminal Appeals turn on when it comes to necessity?
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Whether the danger is imminent
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When is duress not available in Texas?
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When the actor intentionally, knowingly, or recklessly placed himself in the situation.
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What must the compulsion for duress be in Texas?
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Extremely high - serious bodily injury or imminent death
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Is it acceptable to kill another person when somebody is holding a loaded pistol to your head?
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No because neither are greater evils and in Texas there is no exception for murder.
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What does it mean for a crime to be inchoate?
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The completed crime hasn't happened yet
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What are the 3 inchoate crimes?
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Attempt
Conspiracy Solicitation |
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What are the requirements for attempt under TPC § 15.01?
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Specific intent to do the crime and do something but fail
Aggravated |
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Can knowing, reckless, and negligent killing be attempted?
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No
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Can you use the fact that you actually completed the crime as a defense to attempt?
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No
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How is attempt punished in comparison to the object offense?
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One degree lower
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Can felony murder be attempted? Explain
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No because the felony murder statute doesn't require intent and if there was intent to kill then its attempted murder.
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What is the main question for attempt and how is it answered?
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How far do yo have to go?
Substantial step or Last act |
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What is legal impossibility?
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If what you are doing is not a crime then it is legally impossible.
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Is legal impossibility a defense to attempt?
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Yes
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What is factual impossibility?
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A physical impediment.
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What elements are required for abandonment of an attempt?
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Must be voluntary and complete
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What are the procedural advantages of conspiracy?
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Once a conspiracy is established then only slight evidence is needed
Hear say is permissible Can be tried any place where any part of the act is committed Generally possible to be charged with the conspiracy and the crime |
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What is the heart of the conspiracy?
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The Agreement
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What is the definition of conspiracy at common law?
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An agreement to between 2 or more people to do an unlawful act or a lawful act by unlawful means
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What are the culpability and the act requirement required for conspiracy?
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Culpability - intent to agree and the intent to commit the crime that is the conspiratorial objective
Act - overt act CL - the agreement was the act |
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When is a person in a conspiracy responsible for crimes that are committed by others in the conspiracy?
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When it furthers the conspiracy
When it was foreseeable Responsible for everything within the life of the conspiracy |
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What kind of crime is conspiracy limited to in Texas?
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Felonies
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What is a bilateral jurisdiction in relation to conspiracies?
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There must be at least 2 people in the conspiracy and there must be an actual agreement.
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What is a unilateral jurisdiction in relation to conspiracies?
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Only one party has to believe that they are agreeing to a conspiracy.
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How do you show when a person providing goods and/or services to a person that he knows is in a criminal enterprise intended to be involved in the conspiracy?
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Whether the person had a stake in the nature.
A stake in the nature can be shown by: 1. Evidence of inflated prices 2. No legitimate use for goods or services 3. When volume of business is disproportionately high |
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Is legal impossibility a defense for conspiracy? Explain
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Majority - No, because there isn't must of an act needed but instead focuses on the mental state
Minority - Yes |
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How do you determine whether something was in the scope of the conspiracy?
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Look at the agreement and determine whether it was for one act or multiple acts.
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What must you look at in a wheel conspiracy?
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Whether there is a community of interest with other people in the conspiracy.
Whether you know that others are involved |
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What must you ask when there is a chain conspiracy?
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Whether other things in the chain are reasonably foreseeable and in furtherance of the crime
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What must you ask to determine whether a criminal conspiracy is finished?
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Is this action necessary to complete the criminal objective?
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What must you have done to claim renunciation as a defense under conspiracy?
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Voluntary
Complete Before obtaining objective Prevent the crime |
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Under Texas and Federal law, can you be charged with both the conspiracy and the actual crime?
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Yes
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Under the MPC, can you be charged with both the conspiracy and the actual crime?
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No it's one or the other
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What is Wharton's Rule?
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If you only have the minimum number of people required for the crime then you shouldn't be punished for both the crime and the conspiracy
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What is the 3rd party exception to Wharton's Rule?
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If you have more than the minimum necessary people for the crime then you can be charged with conspiracy and the crime
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What is solicitation?
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When a person makes an offer for a crime and the other person doesn't accept, the person who offered is guilty of a solicitation
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What happens when a person solicits another person for a crime and they accept?
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Conspiracy
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What happens when a person solicits another person for a crime and that person only pretends to accept?
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Bilateral jurisdiction - no conspiracy
Unilateral jurisdiction - conspiracy |
