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167 Cards in this Set

  • Front
  • Back
crim v civil
crim=punishment=condemnation + consequences
why punish
retribution, utilitarian, expressive, mixed
retribution
moral blameworthiness; desert; proportional
types of utilitarian
deterrence, rehab, incapacitation
deterrence
specific: prevent individual from doing it again or general: prevent society as a whole from doing it again
rehab
educate and reinsert into society
incapacitation
keep offenders away from innocents
expressive theory
punishment is authoritatively expressing moral condemnation for the offense and thus affirming commitment to moral rule; provides social cohesion; proportional
mixed-theory
set a range based on retributive principles and then pick in that range based on util
sources of crim law
common law, statutes, mpc
principle of legality
legislativity, prospectivity, clarity, lenity
prospectivity
notice that what you are doing is a crime; must be a crime when committed
legislativity
no crime w/o law; needs to be legislatively intended to be law
clarity
statute must be clear as to what is/isn't prohibited; give chance for people to conform behavior; vague in major way
lenity
if ambiguous, rule in favor of def; vague in minor way
rule of fair import
opposite of lenity; give words their fair import w/o biasing for def or pros; just read it
year and a day rule
widely viewed as outdated so court can abolish and still not violate notice reqs
jury nullification
jury can acquit w/o regard to law or ev; but no requirement to instruct jury specifically of this power
void for vagueness
if too vague, invalid bc 1) fails to give notice to enable ordinary people to conform to law; 2) encourages arbitrary enforcement/app of law; too much discretion
thought crimes
can't punish just for thoughts; need an act to demonstrate harm
status crimes
can't be convicted for being something, only doing something; can be convicted for doing drugs, but not being a drug addict
voluntary v coerced
about mens rea; voluntary is freely chosen vs coerced like gun to head
voluntary v ungoverned
goes to actus reus; ungoverned is like a sneeze; unable to control, even when have a choice
act
muscular convulsion or bodily movement
involuntary act exception
when act involuntary but reason it is involuntary is bc of a voluntary act that has the foreseeable effect of causing involuntary acts, then can be voluntary; i.e. if when get drunk, have seizures, and get voluntarily drunk, can be responsible for seizure movements
MPC Act Req 2.01
not guilty of offense unless liability based on conduct which includes voluntary act/omission of which physically capable
2 kinds possession criminalized
of contraband (porn); or criminalized instrumentalities (guns)
actual possession
immediate physical custody of the property
constructive possession
control over property w/o immediate physical custody; can be bc of distance or through another
joint possession
possession w/ another; can occur even if one person has veto power
3 things need for possession=act
authority to control, power to control, intent to use that power
possession general rules
mere proximity is not enough; duration of control important in deciding if had authority/power to control
MPC 2.01 Possession
possession is act if possessor knowingly procured/received thing possessed or was aware of his control thereof for sufficient period to have been able to terminate possession
3 positions on harm
individual harm required, individual harm not required, harm required but it is broad
what is harm
traceable; loss of value; actual or potential; direct, concrete, directed against individs, not psychic; can't crim what is merely offensive; can be against society
omission generally
not usually an act; people have no crim law duty to prevent harm to another
when omission is an act
duty exists, capable of acting, has mens rea
where do duties arise (scrapo)
statute, contractual, relationship (parent to child, police to people), assume care voluntarily (and prevent others from helping), peril made by person, omission following act
MPC omission
not guilty of offense unless conduct includes a voluntary act or the omission to perform an act of which physically capable and 1)if law defining offense provides for it or 2) duty to act provided for
2 parts of causation
actual/factual cause (but-for) and proximate/legal cause
actual/factual cause
but-for test; but-for def's act, harm would not have occurred when it did; don't have to be only but-for cause; many can be necessary while none are sufficient; necessary=but-for
simultaneous killings but-for exception
if 2 people shoot simultaneously, both are sufficient but neither is necessary (but-for), so make exception to allow both to be guilty
proximate/legal cause
sufficient cause; morally relevant cause; do factor analysis
factors for determining prox cause
foreseeability; intervening causes; direct/indirect causes; fairness; common sense; culpability
MPC causation
conduct is cause when but for it, result wouldn't have occurred; and relationship bt conduct and result satisfies any code reqs;

if knowingly causing result is element, not met if actual result not contemplated by actor;

if reckless/neg is part of offense, no offense if not risk of which actor was aware/should've been aware; if causing result is SL element, no offense unless actual result is probable consequence of conduct
CL Mens Rea
intent (gen and spec) and wrongful disregard (reckless/neg)
general intent
intending the act regardless of intending the harm
specific intent
intending the resulting harm of actions
gen intent +
still gen intent crime; something like malice; put in statute that required along w/ the gen intent
3 aspects of crimes
conduct, result, attendant circs; must have MR for all 3
MPC purposely
conscious object to engage in conduct or cause a result AND aware of circs or hopes they exist
MPC knowingly
aware that conduct is of a nature or that circs exists AND practically certain conduct will cause a result
MPC recklessly
consciously disregards a substantial and unjustifiable risk that the material element exists, along w/ a gross deviation from the standard of conduct of law-abiding person
MPC negligence
should be aware of substantial and unjustifiable risk and has gross deviation from standard of care of reasonable person
MPC MR rules
if no MR stated, reckless is default; if MR stated for one element but not others, then apply enumerated to all; can meet the MR by proving a higher level of MR (P>K>R>N); can transfer intent from one crime to another
pure SL
no MR for whole offense
impure SL
no MR for one element of AR
welfare offenses
malum prohibitum; ok to have no MR; came about post IR;
MPC SL
only allowed for violations; still have to have some level of awareness of all elements
How to find if should read in MR
presume not unless clear Cong intent; if analogous to a CL crime, read in the CL MR; immediate instead of probable injury; reading in term hurts leg intent; lower level of punishment;
When does SL not violate DPC
small penalty, no harm to character, cong purpose supports, about a standard of reasonable care, no crime in CL
Strict Liability
person doing something at his peril; no MR needed
Mistake of Fact: CL spec intent
must be honest, but can be unreasonable; must be relevant to MR in order to negate MR
Mistake of Fact: CL gen intent
must be honest and reasonable (unless moral wrong doctrine); must negate culpability; can't just be falling below duty of care
Mistake of Fact: MPC
must be honest; must relate to MR in order to negate MR; for purpose/knowledge, can be unreasonable; for reckless/neg, must be reasonable;

if mistake is thinking committing one crime but instead are doing another, doesn't negate MR bc MR transfers; punished for lesser offense

no impact on SL crimes
moral wrong doctrine
can be guilty even if mistake of fact is honest and reasonable if act is malum in se and person does it; kind of like SL
mistake of law
mistake about legal circs in offense; usually not exculpatory; ignorance of law is not excuse
times when mistake of law exculpates
reasonable reliance on official statement from someone in authority to give it; knowledge is part of law and mistake negates that knowledge (tax laws)(but can't just be disagree w/ laws); statute defining not known to actor and wasn't made available to public (notice issues)
affirmative defenses
elements of crime already proved but some consideration makes there be no condemnation for acts
justification v excuse
justification: conduct not morally blameworthy; permitted (self-defense)

excuse: conduct not right but def isn't blameworthy for it bc of circs (insanity)
self-defense
def must show he reasonably believed and in fact believed that he was in imminent danger of unlawful, bodily harm, that force is necessary, that he is using only as much as necessary, and that he cannot retreat

if unreasonable but sincere, can help reduce sentence
MPC self-defense
unreasonable but sincere can negate crime of purpose/knowledge but not reckless/neg
defense of others
if justified to use self-defense, justified to use same force to protect others
defense of property
can't use deadly force unless there is also threat to life (i.e. if it is also self-defense); can otherwise use necessary force to get property back
law enforcement defensive force
can use deadly if have probable cause to believe suspect poses threat of serious harm; dangerousness test; must be objectively reasonable
what is the reasonableness standard for self-defense
Leidholm says it is subjective; view from standpoint of person whose characteristics are like accused's and who knows/sees what accused does

Goetz says objective notion but that objective still takes into account circs of def

either one means that more is required than just a genuine belief by def; must be reasonable, but can look at the circs
CL necessity
clear and imminent danger; D reasonably believes violation will prevent harm; no lawful alternative; harm avoided>harm done; no leg intent to contrary; clean hands; no homicide

all objective standard
MPC lesser evils 3.02
D believes violation necessary to prevent harm (subjective); no lawful alternative; harm avoided>harm done (objective); no leg intent to contrary; can commit homicide

if unreasonably believes necessary, defense for purposely/knowingly but not recklessly/neg
Duress CL
imminent threat of death or serious bodily injury to D or D's close family; D reasonably believes threat; D has no reasonable escape; clean hands; no homicide

Excuse
M'Naghten Test
at time of act D had a mental illness because of which he did not know nature and quality of his act OR could not distinguish right from wrong

cognitive
MPC Insanity Test
at time of act D had a mental disease or defect because of which he lacked substantial capacity to appreciate criminality/wrongfulness of act OR conform his conduct to law

cognitive and volitional
Irresistible Impulse Test
incorporates losing power to choose into M'Nagthen; lack ability to control actions
Product Test
excuse if unlawful act was product of mental disease or defect; but-for causation
Federal Test
at time of offense, as result of severe mental disease/defect, unable to appreciate the nature/quality of conduct OR the wrongfulness of conduct
Insanity moral wrong
it is inability to distinguish bt moral right/wrong, not legal right/wrong; can know illegal but think is moral; it is objective societal standard of moral right
deific decree
if delusionally think God told you to do it, can be considered insane bc delusion destroys right/wrong distinction
diminished capacity
acquittal or mitigation bc of mental illness even if can't win on NGI
MPC Intoxication
intox not a defense unless it negatives an element of offense; intox ev admissible to disprove P/K but not R/N

when recklessness establishes element, if unaware of risk when would've been aware when sober, unawareness immaterial

if intox not self-induced or is pathological, is AD if by reason of intox, actor lacks substantial capacity to appreciate criminality or conform conduct
pathological
intox grossly excessive in degree given amt of intoxicant, and which actor doesn't know susceptible
Voluntary Traditional CL Intox
no defense
Voluntary Revised CL Intox
has to negate spec intent; can't be used for gen intent;

not an AD; used to negate an element
Involuntary Intox
can get defense for both gen or spec; some treat as insanity; some treat as negating MR

intoxicant must cause the intent to form in order to negate MR; drugged intent is still intent
homicide definition
purpose to cause death or intent to inflict serious bodily harm or extreme recklessness w/ respect to serious risk of harm showing indifference to life or felony-murder
first-degree murder
malice plus; intentional and premeditated; or during major felony

need 2 pauses; one for premed, one for deliberation
malice
intention to cause or a willingness to undertake a serious risk of causing death, when intent is based on immoral aim
reckless murder
gross deviation from standard behavior; extreme indifference to risk of harm; awareness of substantial risk that isn't justifiable

mischievous or depraved heart
voluntary manslaughter CL
intentional killing w/o malice; heat of passion after provocation OR honest but unreasonable belief was self-defense

not sufficient cooling time; words not enough
MPC Manslaughter 210.3
under influence of extreme emotional disturbance for which there is reasonable explanation or excuse

reasonableness determined from viewpoint of person in actor's situation under circs as he believes them to be

reasonableness encompasses whether words enough or if cooling time enough
Involuntary Manslaughter CL
no intent; conscious disregard of substantial and unjustifiable risk causing death in course of crim neg accident; gross deviation from standard of care

gross crim neg
MPC Neg Homicide
lesser category; when negligence isn't gross enough to make it to manslaughter
Felony-Murder
AR is underlying felony + causing death
MR is that of underlying felony; recklessness for death presumed or unnecessary

felony must be but-for and prox cause of the death; foreseeable enough link bt felony and death
MPC Felony Murder
murder when committed recklessly w/ extreme disregard of life; reckless includes engaging in dangerous felonies
Dangerous Felony
felony inherently dangerous to life when high probability its commission will result in death

debate over whether to look at felonies in abstract or case-by-case to determine dangerousness and whether death was foreseeable
affirmative defenses to felony-murder
didn't commit homicidal act in any way; not armed w/ deadly weapon not normally carried in public; no reasonable ground to believe other participants armed; no reason to believe other participants intended to engage in conduct likely to cause death
misdemeanor manslaughter
unlawful act doctrine; like felony-murder but instead w/ misdemeanors
death-aggravated felonies
increase punishment for felony if it caused death; when F-M can't be proven
MPC Attempt 5.01
guilty of attempt if, acting w/ kind of culpability needed for crime, he :
1) purposely engages in conduct that would be crime if circs as he believes
2) does or omits to do anything w/ purpose of causing result that is element of crime
3) purposely does anything that, under circs as he believes them, is substantial step in course of conduct planned to end in crime
MPC Attempt MR
for conduct, need purpose; for results, need purpose and maybe knowledge; for circs, reckless/neg may be sufficient if sufficient for crime attempting
things that corroborate a substantial step
lying in wait; enticing vic to go to place where crime will be committed; reconnoitering the place; unlawful entry into the place; possession of materials for crime that are specially designed for it and serve no lawful use; possession of material near crime place; soliciting agent to help
2 exceptions to MPC purpose for attempt
if def believes others will die, can be charged w/ intent for them dying (blowing up plane example); don't have to have purpose for attendant circs
CL Attempt
MR: spec intent; can't attempt recklessness
AR: mere prep isn't enough; physical proximity test; act proximate to complete crime or commencement of consumption
dangerous proximity test
greater gravity and probability of offense; nearer the act to crime, better case for saying attempt
MPC renunciation of attempt
AD if abandoned effort if complete and voluntary renunciation of crim purpose

not voluntary if motivated by finding out more likely to get caught; not complete if just postponing
Old CL impossibility
just legal and factual; factual isn't defense but legal is
Modern CL impossibility
pure legal still exculpates; hybrid and factual are both not enough and distinction bt the two basically gone
MPC impossibility
just ask whether would be a crime if circs were as def believed them; put self in mind of def and see if they are guilty of attempt

can still have pure legal bc must be a crime to be guilty
pure legal impossibility
if crim law doesn't prohibit the conduct or result, can't be a crime, even if def has guilty conscience bc thinks committing crime
factual impossibility
def's intended end is crime but fails bc of factual circ unknown to him or beyond his control

empty pocket for pickpocketing
hybird legal impossibility
goal illegal but commission imposible due to factual mistake regarding legal status of some factor relevant to conduct

shooting a corpse; not a "human being" which is legal status in homicide statute
Complicity CL Doctrine
not own crime, have to be complicit in another completed crime; aid and abet in commission of crime
charged w/ the crime done by principal; can't be charged for complicity

dual MR: must intend to aid/abet and share MR for the aided crime
aid and abet
aid= assistance; abet=encouragement
must actually aid/abet; mere presence insufficient; doesn't have to be a lot of aid, but has to be actual

aid/abet doesn't have to be the cause of the crime, just help to it
MPC 2.06 Complicity
guilty if committed by person for whom legally accountable; legally accountable if are accomplice of person

accomplice if w/ purpose of promoting offense D solicits person, aids or attempts to aid in committing it OR has legal duty to prevent commission and fails

if result crime, have to share in culp and has to purposely give aid to bring about crime
Complicity termination
defense if terminated prior to commission and deprive it of effectiveness or gives warning to police or tries to stop it

need affirmative act to let others know abandoned
MR for complicity
same MR as crime and intent to bring about crime

usually can infer MR for crime from intent to aid

CL requires true purpose or willful ignorance

jur split on whether can be accomplice to reckless
Conspiracy doctrine
inchoate; agreement itself is the crime; sometimes need overt act to show agreement; overt act can be done by anyone in conspiracy

can be merged (but not in fed); can punish both for conspiracy and substantive crime
Formation of conspiracy agreement
can infer if actions show concert of action or coordinated effort

can be tacit so long as people understand and respond to it
Identical Elements Test
if all elements of one crime can be encompassed into all elements of another, then one is lesser offense of the other

take away all ev necessary to support one charge and remaining ev must be sufficient to support other
MR for conspiracy
CL: gen intent to enter agreement; spec intent to bring about goal of conspiracy

MPC: conscious design to bring about conspiracy

no conspiracy for reckless or neg crime
MPC termination of agreement
AD if actor thwarted success of conspiracy under circs showing complete and voluntary renunciation

have to advise others abandoning or tell police
Conspiracy abandonment
if abandon crim enterprise and inform all others, no longer liable for future acts of the conspiracy, but still liable for the prior acts and the agreement

MPC allows complete AD to conspiracy if thwart
Pinkerton Liability
every conspirator is liable for every act done by other conspirators in furtherance of conspiracy, provided that acts are reasonably foreseeable as necessary/natural consequences

diff jurs have diff levels of this; MPC rejects
Shopkeeper Liability
some jurs just have knowledge; others say must intend the goal of conspiracy but can infer from knowledge if
1) stake in venture; 2) no legit use for goods; 3) volume disproportionate for any legit need; 4) serious enough crime and didn't report
MPC 5.03 Conspiracy
act purposely and agree w/ other that one will engage in crim conduct; if know person conspiring w/ is conspiring w/ 3rd party, guilty of conspiring w/ 3rd; need overt act except for 1st/2nd degree felony

if guilty of conspiring to commit multiple crimes, only one conspiracy so long as all in same agreement;
RICO 4 provisions
can't use income from racketeering to invest in enterprise (laundering); can't use racketeering to acquire/control any interest in enterprise (direct involvement in biz); employee in enterprise can't have conduct through racketeering; can't conspire to do any of the above 3
Racketeering activity
engaging in various serious crimes under state/fed law

pattern=2+ acts of racketeering within 10 yr period

def doesn't have to do the 2 acts personally; just has to agree to them being done by enterprise; can infer from knowledge
enterprise
can be one person; can be partnership; informal or formal; just has to be involved in interstate commerce
Solicitation Doctrine
get someone else to do crime for you; hide behind hireling; inchoate

merges into other crimes unless person says no
CL Solicitation
same AR as MPC
MR is spec intent to bring about goal of solicitation w/ gen intent to do the soliciting

joke never enough; uncommunicated is attempt to solicit
MPC Solicitation
if, with purpose of promoting crime commission, command, encourage or request other to engage in specific conduct that would be the crime or attempt to commit crime

immaterial if fails to communicate

AD if persuades other not to do conduct if it is complete and voluntary renunciation
Corporate Agent Liability
person legally accountable for any conduct he performs in name of corp to same extent as if done in his own name

when duty to act, agent responsible for it is accountable for reckless omission

No vicarious individual liability for corporate agents
CL Corporate Entity Liability
respondeat superior; acting within scope of employment with intent to benefit corp; traditionally must be authorized/tolerated by corp (infer)

spec intent of agent can be imputed to corp

can be liable for prohibited crimes
MPC Corporate Entity Liability
corp liable when commission of offense authorized or recklessly tolerated by high managerial agent; offense must be violation in statute in which leg purpose is to impose liability AND agent acted in scope of employment

Corp can defend if supervisor showed due diligence to prevent
compliance programs
can be used to defend against liability by showing no authorization

can be imposed by pros instead of sanctions to avoid collateral consequences
responsible corporate officer doctrine
officer w/ no MR can be convicted of misdemeanor if:
1) public welfare offense
2) responsible relation to violation; responsible share
3) failed to prevent/correct violation
4) had power to prevent violation

combination of responsibility and authority; knowledge of wrongdoing not required (except if felony)
CL Larceny
trespassory taking and carrying away of personal property of another with intent to permanently deprive owner
Trespassory taking
nonconsensually taking possession

if have custody but not possession, then still is a taking when take possession as well

person must have occupation and right to property before it can be trespassorily taken
Intent to permanently deprive
flexible, but intent must be there at time take (except w/ continuous trespass rule)

can be guilty if indifferent to returning property; have to know property isn't yours
3 ways to be guilty w/o intent to deprive perm
1) intend to sell back to owner
2) intend to claim reward for finding property
3) intend to return property for refund

in all, there is substantial risk owner won't get property back; taking econ ownership for a time was enough; took some econ value
actual v constructive possession
actual=have in hands=custody
constructive=right to it=possession

if only have actual but owner retains constructive, taking=trespass
Embezzlement
no element of trespassory taking
unlawful appropriation where other person had right to the property that was temporarily entrusted to def
False pretenses
false representation with intent to defraud owner of property (title and possession) where owner surrendered property in reliance on misrepresentation

diff from larceny by trick which leads only to surrender of possession

must be induced at least in part on the fraud; can be verbal or conduct
larceny by trick
fraud vitiates consent, but only if fraud happens at time of consent

relinquish possession (but not title) based on fraud
False pretenses reliance lacking when:
1) complainant knew representation false or didn't believe it
2) didn't rely and instead investigated for self or relied on other advice (even if believed)
3) although some misreps proved, vic parted w/ property for other reasons or in reliance on other reps not false
MPC Theft- consolidation
no distinction bt larceny by trick and false pretenses; nothing said about possession, it is all about right to property; no distinction bt taking title and property

theft=unlawful taking and invasion of right to property; manner of taking irrelevant

still have to have purpose to deprive
CL rape
carnal knowledge of a woman, forcible and against her will
IL Rape statute
commit act of sexual penetration and uses force or threat of force

is a defense if victim consented to the force

lack of verbal/physical resistance is not consent

after withdraw consent, anything that happens after is nonconsensual
Traditional rape elements
vaginal penetration; exception for wife; against will (consent); forcibly (enough to cause harm); utmost resistance; must communicate nonconsent

gen intent crime w/ no MR
Modern rape elements
more about nonconsensual sex; force largely removed
no resistance or earnest resistance (which can be no resistance)

force=act of penetration

sometimes consent has to be affirmative; can be implied; others just ask if reasonable person thinks has consent
MR of rape
dual MR; gen intent to have sex; morally blameworthy state of mind w/ regard to consent (neg or maybe SL)
mistake of fact for rape
if negates the moral blameworthiness bc honestly and reasonably believed there was consent, then not guilty

not all allow mistake of fact defense
types of sentencing structures
determinate= length fixed; indeterminate= chance of parole
discretionary=allows judge to pick from range; nondiscretionary=leg specifies exact sentence
unguided=judge can choose any sentence in range; guided= leg provides guidelines on what to choose
voluntary= guidelines are just advice to judge; presumptive= judge is bound by guidelines unless gives strong reason to deviate
apprendi rule
other than criminal history, any fact that increases punishment past statutory max must be decided by jury
blakely rule
statutory max is anything judge can impose based solely on facts reflected by jury verdict

can't set max much higher than what presumptive guidelines suggest for a crime and let judge choose the higher one w/o jury proving those facts
booker rule
guidelines are only advisory and can't be binding
categorical sentencing test
look for natl consensus; look at whether makes sense against USC: does it serve goals of penal system based on culp of offender and harm of crime

typically was used for cap punish
proportionality of term-sentences test
does it cross threshold of seeming grossly disproportionate to crime? if yes, compare to other criminals within jur and to same crime in other jurs
Graham v Ewing
Graham allows the categorical sentence test for a non-cap punishment but Ewing didn't

seems like only juveniles and cap punish will get the stricter Graham test