Bar Exam 2015 - Criminal Law Massachusetts

Front 1

Omission as an Act

Back 1

Failure to act gives rise to liability only if:

(i) there is a legal duty to act;

(ii) the defendant has knowledge of the facts giving rise to the duty to act; AND

(iii) it is reasonably possible to perform the duty

Front 2

Specific Intent Crimes

Back 2

a. Solicitation

b. Attempt

c. Conspiracy

d. First degree premeditated murder

e. Assault

f. Larcency and Robbery

g. Burglary

h. Forgery

i. False pretenses

j. Embezzlement

Front 3

General Intent Crimes

Back 3

a. Battery

b. Rape

c. Kidnapping

d. False Imprisonment

Front 4

Malice Crimes

Back 4

a. Common Law Murder

b. Arson

Front 5

Strict Liability

Back 5

a. Statutory Rape

b. Selling liquor to minors

c. Bigamy

Front 6

Purposely

Back 6

when it is actor's conscious object to engage in certain conduct or cause a certain result

Front 7

Knowingly

Back 7

A person acts knowingly with respect to the nature of his conduct when he is aware that his conduct is of a particular nature or that certain circumstances exist.

Front 8

Recklessness

Back 8

A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a prohibited result will follow.

Front 9

Negligence

Back 9

when he fails to be aware of a substantial and unjustifiable risk, where such failure is a substantial deviation from the standard of care. Objective standard.

Front 10

Accomplice

Back 10

Person who aids or encourages principal to commit the illegal conduct.

Liable if he intended to aid or encourage crime.

Front 11

Accessory after the fact

Back 11

Person who aids another to escape knowing that he has committed a felony.

Liable for separate, less serious crime of being an accessory after the fact.

Front 12

Members of protected class

Back 12

Excluded from liability.

Front 13

Withdrawal

Back 13

A person who withdraws cannot be held guilty as an accomplice. Must occur before the crime is unstoppable.

(i) Repudiation is sufficient for mere encouragement

(ii) Attempt to neutralize assistance required if participation beyond encouragement

Front 14

SOLICITATION

Back 14

Inciting, counseling, advising, urging, or commanding another to commit a crime with the intent that the person solicited commit the crime.

Defense if: part of protected class (e.g. minor prostitute)

Front 15

CONSPIRACY

Back 15

(i) agreement b/w two or more persons

(ii) intent to enter into the agreement; and

(iii) an intent by at least two persons to achieve the OBJ of the agreement.

Requires overt act in most states (mere preparation will suffice)

Front 16

Agreement Requirement

Back 16

Modern: Unilateral. only one party must have genuine criminal intent.

Traditional: Bilateral. Must have two guilty minds.

Front 17

Wharton Rule

Back 17

Where two or more people are necessary for the commission of the substantive offense (e.g. adultery, dueling), there is no crime of conspiracy unless more parties participate in the agreement than are necessary for the crime.

Front 18

Conspiracy

Effect of acquittal of some conspirators

Back 18

Traditional: the acquittal of all persons with whom the D is alleged to have conspired precludes conviction of the remaining D.

In some modern jurisdictions following this rule, the D's conviction is allowed to stand if his conspirator is acquitted in a separate trial.

Front 19

Termination of Conspiracy

Back 19

Usually terminates upon completion of the wrongful OBJ.

Front 20

Liability for Co-Conspirator's Crimes

Back 20

Liable if the crimes (i) were committed in furtherance of the OBJs of the conspiracy and (ii) were foreseeable.

Front 21

Defenses to Conspiracy

Back 21

Factual impossibility NOT a defense.

Withdrawal: NOT a defense to the conspiracy, but may be a defense to crimes committed in furtherance of the conspiracy.

Front 22

MERGER

Back 22

The solicitor cannot be punished for both the solicitation AND the attempt / conspiracy / crime.

Front 23

ATTEMPT

Back 23

An act, done with intent to commit a crime, that falls short of completing the crime.

Proximity test: act must come dangerously close to successful completion.

MPC: "substantial step" in course of conduct planned to culminate in crime.

Cannot attempt crimes of negligence or recklessness.

Front 24

Defenses to ATTEMPT

Back 24

Factual impossibility NOT a defense.

Abandonment:

Common law: no defense

MPC: a fully voluntary and complete abandonment is a defense.

May NOT be convicted of BOTH completed crime and attempt.

Front 25

M'Naughten Rule

Back 25

D entitled to acquittal if (a) a disease of the mind; (ii) caused a defect of reason; (iii) such that the D lacked the ability at the time of his actions to either know the wrongfulness of his actions or understand the nature and quality of his actions.

Front 26

Irresistible Impulse Test

Back 26

D entitled to acquittal only if, because of mental illness, he was unable to control his actions or conform his conduct to the law.

Front 27

Durham (NH) Test

Back 27

If the crime was the product of his mental illness (i.e. crime would not have been committed but for the disease.

Front 28

MPC / ALI Insanity Test (modern trend)

Back 28

D entitled to acquittal if he had a mental disease or defect and, as a result, he lacked the substantial capacity to either: (i) appreciate the criminality of his conduct; or (ii) conform his conduct to the requirement of the law.

Front 29

Intoxication

Back 29

Voluntary: voluntary, intentional taking of a substance known to be intoxicating.

IS a defense to crimes which require purpose (intent) or knowledge if the intox prevented the D from formulating the purpose or obtaining the knowledge.

NO defense for general intent or reck/neg.

Front 30

Infancy

Back 30

<7: no liability

< 14: rebuttable presumption that child was unable to understand wrongfulness of acts

>14: treated as adults.

Modern: usually cannot be convicted under 13 or 14.

CAN be delinquent in fam/juv courts.

Front 31

SELF-DEFENSE: non-deadly

Back 31

Non-deadly force: may use such force person reasonably believes nec. to protect herself from imminent use of unlawful force upon herself. NO duty to retreat.

Front 32

SELF-DEFENSE: deadly

Back 32

(i) w/o fault; (ii) confronted with unlawful force; and (iii) reasonably believes that she is threatened with imminent death or great bodily harm.

Front 33

Duress

Back 33

It is a dDefense to crimes other than homicide that the defendant reasonably believed that another person would inflict death or great bodily harm upon him or a member of his family if he did not commit the crime.

Front 34

Mistake of Fact

Back 34

Specific intent: mistake must be reasonable.

General intent: mistake may be reasonable or unreasonable.

Front 35

BATTERY

Back 35

Unlawful application of force to the person of another resulting in either bodily injury or an offensive touching. Need not be intentional.

Aggravators: deadly weapon, serious bodily harm, or child/woman/police.

Front 36

ASSAULT

Back 36

Either:

(i) an attempt to commit a battery or

(ii) the intentional creation - other than by mere words - of a reasonable apprehension in the mind of the victim of imminent bodily harm.

Front 37

MAYHEM

Back 37

Common law: dismemberment or disablement of body part.

Modern trend: aggravated battery.

Front 38

MURDER (common law)

Back 38

The unlawful killing of another human being with malice aforethought:

(i) intent to kill

(ii) intent to inflict great bodily injury

(iii) reckless indifference to or an unjustifiably high risk to human life (depraved heart)

(iv) intent to commit a felony.

Front 39

VOLUNTARY MANSLAUGHTER

Back 39

A killing that would be murder but for the existence of adequate provocation.

Adequate if:

(i) sudden and intense passion

(ii) in fact provoked

(iii) not sufficient time for cool down

(iv) no cool down

Front 40

INVOLUNTARY MANSLAUGHTER

Back 40

Killing committed with criminal negligence (or recklessness under MPC) - or, in some states which don't have felony murder, during the commission of an unlawful act.

Front 41

FELONY MURDER

Back 41

Any death caused in the commission of, or in an attempt to commit, a felony is murder.

Front 42

FALSE IMPRISONMENT

Back 42

The unlawful confinement of a person without his valid consent. MPC requires that confinement interfere substantially with victim's liberty.

Front 43

KIDNAPPING

Back 43

Unlawful confinement of a person that involves (i) some movement of the victim, or (ii) concealment of the victim in a secret place.

Front 44

RAPE

Back 44

Unlawful penetration without consent:

(i) force

(ii) threats of great and immediate bodily harm

(iii) victim incapable of consent b/c of unconsciousness, intoxication, or mental condition; OR

(iv) the victim is fraudulently caused to believe that the act is not intercourse

Front 45

LARCENY

Back 45

(i) a taking

(ii) and carrying away

(iii) of tangible personal property

(iv) of another

(v) by trespass

(vi) with intent to permanently deprive

Front 46

EMBEZZLEMENT

Back 46

(i) the fraudulent

(ii) conversion

(iii) of personal property

(iv) of another

(v) by a person in lawful possession of that property

Front 47

FALSE PRETENSES

Back 47

(i) obtaining title

(ii) to the personal property of another

(iii) by an intentional false statement of a past or existing fact

(iv) with intent to defraud the other

Front 48

LARCENY BY TRICK

Back 48

Larceny where the victim is tricked - by a misrepresentation of fact - into giving up mere custody of property.

Front 49

ROBBERY

Back 49

(i) a taking

(ii) of personal property of another

(iii) from the other person's presence

(iv) by force or threats of immediate death of physical injury to the victim, a member of his family, or some person in the victim's presence.

Front 50

EXTORTION

Back 50

The obtaining of property by means of threats to do harm or expose information.

Front 51

RECEIPT OF STOLEN PROPERTY

Back 51

(i) receiving possession and control

(ii) of stolen personal property

(iii) known to have been obtained in a manner constituting a criminal offense

(iv) by another person

(v) with the intent to permanently deprive the owner of his interest in it

Front 52

FORGERY

Back 52

(i) making or altering (by drafting, adding, or deleting)

(ii) a writing with apparent legal significance (e.g. a contract, not a painting)

(iii) so that it is false; i.e. representing that it is something that it is not, not merely containing a misrepresentation (fake, not inaccurate)

(iv) with intent to defraud

Front 53

MALICIOUS MISCHIEF

Back 53

(i) the malicious

(ii) destruction of or damage to

(iii) the property of another

The damage or destruction must have been intended or contemplated by the Defendant

Front 54

BURGLARY

Back 54

(i) a breaking (creating/enlarging opening by force, fraud, or intimidation)

(ii) and entry (breaking the plane)

(iii) of a dwelling (sleeping purposes)

(iv) of another

(v) at Nighttime

(vi) with the intent to commit a felony w/in the structure

Front 55

ARSON

Back 55

(i) the malicious (intentional or reckless)

(ii) burning (requires damage - charring)

(iii) of the dwelling

(iv) of another