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146 Cards in this Set
- Front
- Back
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What is Larceny?
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1. taking (exercise of actual control)
2. asportation (movement) 3. personal property 4. from possession of another 5. wrongfully - w/o permission OR w/ permission obtained by deception 6. with intent to permanently deprive |
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What do asportation and taking require?
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Asptortation requires some movement.
Taking doesn't require removal from premises, simply control of personal property |
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What is the key to larceny?
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Intent. You must, at the time of the taking, INTEND to permanently keep the property OR do something that creates a high risk that the owner will never get it back.
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What is larceny by trick?
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Possession obtained through fraud/deceit w/ the intent to unlawfully convert and doing so.
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What is the exception to the intent requirement of larceny?
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Continuing Trespass -- wrongful taking of an item w/o initial intent to deprive; intent to deprive is formed later
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What is embezzlement?
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Conversion of property with the intent to defraud and the D has possession of the property of another under a trust-type arrangement.
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Keys to embezzlement?
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Intent to defraud and lawful possession
-no movement required -no personal benefit is required |
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Is custody of property embezzlement?
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No -- it is larceny. Embezzlement requires possession and possession requires extensive and discretionary control.
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What is false pretenses?
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1. Obtaining title to property from another
2. By means of a misrepresentation of past or present fact 3. With the intent to defraud |
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What are the rules for false pretenses?
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1. Unkept promise/misrepresentation of future facts are not sufficient
2. state of mind can be a mispresented present fact 3. failure to correct a misunderstanding is sufficient if D created it |
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What is required for receiving stolen property?
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1. receiving (taking possession)
2. of property acquired by larceny or other property crime (property must be stolen) 3. knowing property is stolen 4. w/ intent to permanently deprive the owner |
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What is theft?
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Unlawfully exercising control over property of another w/o effective permission and w/ the intent to deprive the other of that property.
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What is the key to theft?
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the intent to permanently deprive
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What is robbery?
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A larceny where the property is taken by force or threat of force.
1. Force - force to obtain OR prevent victim from immediately regaining it 2. Threat must be immediate physical harm, put the victim in harm, AND cause apprehension in reasonable person. |
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What is robbery with no force?
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Pick-pocketing
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Can you have multiple robberies committed at one time?
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Yes - for each individual robbed. Not for each item taken.
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What is extortion?
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Obtaining property by means of threats.
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What is a threat when determining if a crime is extortion?
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A threat can be physical harm (not required to be imminent) or something other than physical harm.
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What is burglary?
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1. Entry -- any part of the body or instrument if the instrument is to be used to commit a crime inside
2. by breaking 3. of the dwelling of another 4. during the night 5. w/ the intent to commit a felony inside the structure |
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How have the modern statutes affected burglary?
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expands places covered, eliminate need for breaking, eliminate requirement of nighttime, expand intent
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What is arson?
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The malicious burning of another's dwelling.
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What is required of arson?
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A burning that has caused some damage (that can be minimal). There must be a fire (an actual flame) to an actual part of the structure.
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What is the analysis for criminal homicide?
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1. Did D cause death of victim?
2. Did D act w/ malice aforethought? (if yes, then murder unless adequate provocation) 3. Was there adequate provocation? If so, then voluntary manslaughter. 4. If no adequate provocation, and the D acted w/ negligence or caused the death during the commission of a misdemeanor -- involuntary manslaughter. |
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What are the different causations for homicides?
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1. Factual Causation -- but for the D's actions, the victim would not have died AS and WHEN he did
2. Year and a day rule -- being done away with by statutes 3. Proximate Caus |
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When does proximate cause come into play for homicides?
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Where there is intent to cause death but the death occurs in an unexpected way.
PC exists of the victim's death naturally results from the D's actions, even if this occurs in an unexpected manner (unless events are extremely unusual). |
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What is a superseding cause?
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An event that breaks the chain of proximate cause that must be:
1. independent of the D's actions 2. unforeseeable, AND 3. the SOLE immediate cause of death |
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What is murder?
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Killing with malice aforethought with either:
1. the intent to kill 2. intent to cause serious bodily injury 3. recklessness 4. felony murder |
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What is felony murder?
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An accidental death caused during the commission of felony that was foreseeable OR occurred during the commission of a dangerous felony.
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What is the felony murder merger rule?
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Felony murder cannot be based on felony assault or battery that causes the death of the victim (they merge into the homicide)
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What is the agency theory of bystander death under felony murder?
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If the death was caused by anyone other than the perpetrator or an accomplice, the death is not chargeable as felony murder.
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What is the proximate cause theory under the felony murder rule?
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Any killing committed during a felony, regardless of who committed it, will result in the accused being charged with the crime
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What is required for voluntary manslaughter?
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1. Objectively reasonable provocation (not just words)
2. no cooling off period 3. actually caused the D to kill the victim |
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What is involuntary manslaughter?
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A killing in the course of committing a misdemeanor or with criminal negligence.
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Liability for Omissions?
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1. D had legal duty to act that arises from all any area of law
2. D was aware of the facts giving rise to that duty 3. Performing the duty was possible 4. D had necessary intent |
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What is Rape (sexual assault)?
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sexual intercourse by a male with a woman not his spouse w/o her consent
1. fraud renders consent ineffective only if it goes to the nature of the act |
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What is kidnapping?
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Confining, restraining, or moving a person w/o authority of law.
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What do many courts look at in determining whether there was an actual kidnapping?
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Whether the confinement or movement increased the risk of harm to the victim and is not merely incidental to the other crime.
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In general, when can you be guilty of a crime?
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1. Committing it (principle)
2. Participating before or after (accessory) 3. Use an innocent agent to commit |
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What is aiding and abetting?
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Participating in an offence with the required intent to do so.
* encouragement or actual assistance, but not mere words |
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What comprises the intent requirement for aiding and abetting?
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1. knowing the principle is going to commit the offense, AND
2. intent (want/desire) to encourage or assist in doing so *look for a motive for wanting the primary actor to successfully commit the crime |
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What is sufficient to show participation in a crime?
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presence pursuant to an agreement to aid
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Can an accomplice be convicted even though the principle is acquitted?
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Yes.
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What are the exceptions to accomplice liability?
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1. The participant is a member of the class of persons protected by the crime, or
2. The crime inherently involves several types of participants and only some are made liable |
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What is an attempt?
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Doing something that constitutes a substantial step towards commission with the specific intent to commit the crime
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Does an attempt have specific or general intent?
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An attempt ALWAYS have specific intent.
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Is abandonment a proper defense for an attempt?
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Never.
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Is impossibility a defense to attempt?
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1. Legal impossibility is a defense while factual is not.
2. Legal Impossibility is only a defense in an attempt case and involves mistaken beliefs that the attempt will be successful |
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What are two examples of factual impossibility (not defenses to attempt)?
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1. Mistake about ability to commit the crime
2. Mistake about circumstances |
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Is mistake concerning the law a defense to attempt?
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Yes. An example would be where the D thinks his conduct would constitute a crime, but he is mistaken about the law.
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What is solicitation?
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enticing, encouraging or advising someone to commit an offense (even if it is rejected immediately) with the intent they commit it
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When is the crime of solicitation complete?
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Upon encouragement.
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What happens if the person agrees?
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The solicitor and person become co-conspirators unless the person is feigning agreement.
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Is renunciation a defense for solicitation at common law? What about under the MPC?
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It was never a defense at C/L but voluntary renunciation may be a defense under the MPC if the D thwarts the commission of the crime.
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What is a conspiracy?
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An agreement b/t two or more persons to achieve an unlawful purpose w/ the intent to accomplish that purpose.
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Is completion of an overt act required?
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At C/L no overt act was required for the conspiracy to be complete.
However, under the MPC and federal law it is. |
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What is the Wharton Rule?
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If a crime requires two or more participants (e.g., adultery) there is no conspiracy unless more parties than are necessary to complete it agree to commit the crime. They can still be found guilty of the underlying crime itself, however.
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What is the co-conspirator rule?
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All members of a criminal conspiracy are guilty of crimes committed by other members of that conspiracy if those crimes are both:
1. committed in furtherance of the scheme, AND 2. a foreseeable result of the scheme |
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Is withdrawal from a conspiracy a defense at common law?
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No.
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Is withdrawal from a conspiracy a defense under the federal rule?
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Yes -- but it must occur b/t the date of the agreement and the commission of the crime. Notice must be given to the others OR the police notified in a timely manner.
Upon completion of the overt act, withdrawal is no longer possible. |
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s withdrawal from a conspiracy a defense under the MPC?
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Yes -- but only if there is timely notification that is sufficient to thwart the success of the conspiracy.
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Is withdrawal a defense to the substantive crimes committed by the conspiracy?
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Yes. Notice must be given to co-conspirators or timely notification of authorities even if it is not thwarted.
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Are all members of a chain relationship conspiracy liable for the acts of the others in furtherance of the conspiracy?
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Yes -- a community of interest is formed where the activities of each member of the conspiracy resemble links in a chain (even if they don't know of each other).
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In a hub-spoke conspiracy, can some co-conspirators be found not liable for actions for the acts of other conspirators?
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Yes -- as long as they are not part of a common hub. The spoke members are not liable for the acts of the other conspirators.
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If all members of a conspiracy have been acquitted, must the defendant be acquitted?
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Yes.
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What are the specific intent crimes?
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FIAT
1. First degree murder 2. Inchoate crimes (attempt, conspiracy, solicitation) 3. Assault with intent to commit a battery 4. Theft offenses (larceny, larceny by trick, robbery, burglary, false pretenses, embezzlement, burglary) |
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Is arson or rape a specific intent crime?
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No.
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What are malice crimes?
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Reckless disregard of a high risk of harm (common law murder, arson).
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What are general intent crimes?
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Only the intent to perform an act that is unlawful. Generally acts done knowingly, recklessly or negligently.
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What are the MPC definitions for common law levels of intent (MENS REA)?
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1. Purpose -- conscious desire
2. Knowingly -- awareness of practical certainty 3. Recklessly -- awareness of a substantial risk 4. Negligently -- reasonable person standard |
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What is a strict liability crime?
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No mens rea required.
Ex: statutory rape, bigamy, regulatory crime |
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What is transferred intent?
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If D intends to injure one person and accidentally inflicts a similar injury upon another person, he will be treated as if he intended to injure the person actually harmed.
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Is mistake of fact a defense?
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Yes. If the crime is a specific intent crime then the mistake is a defense even if it is unreasonable. If the crime is a general intent or malice crime, the mistake must be reasonable to be a defense.
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Is mistake of fact a defense to strict liability crimes?
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Never -- no mens rea.
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Is mistake of law a defense?
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Not usually. It is only a defense if the D had an affirmative objectively reasonable belief that the law did not prohibit her conduct and the D relied on either:
a. a statute that is later held invalid, b. a judicial decision later overruled, or c. an official interpretation of the law by a public official. |
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Is advice of counsel a defense to mistake of law?
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No.
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What are the four tests for insanity?
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1. M'Naghten
2. Irresistable Impulse 3. Durham Rule 4. MPC Test |
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What is the M'Naghten test?
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D is not guilty if, b/c of a defect of reason due to mental disease, he did not know either:
1. the nature and quality of the act; OR 2. the wrongfulness of the act. |
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What is the M'Naghten also known as?
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The "right from wrong" test.
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What is the irresistible impulse test?
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The D is not guilty if he lacked the capacity for self-control and free choice b/c mental disease or defect prevented him from being able to conform his conduct to the law.
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What is the Durham rule for insanity?
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D is not guilty of the act was the product of his mental disease or defect and would not have been committed but for the disease or defect.
The "but for" test. |
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What is the MPC test for insanity?
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The D is not guilty if, at the time of the conduct, he, as a result of a mental disease
or defect, did not have substantial capacity to appreciate the wrongfulness of the act, or to conform the conduct to the law. *Combines M'Naghten and irresistible impulse tests. |
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Is unconsciousness a defense?
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Yes b/c it negates the voluntariness of an act.
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Is voluntary intoxication a defense?
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Yes, but only to specific intent crimes.
*can disprove premeditation but not malice aforethought |
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What does the involuntary intoxication defense require?
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The intoxication must be involuntary and it is involuntary only if:
1. D did not know the substance consumed was intoxication; OR 2. D consumed the substance under duress. (*treated as mental illness and insanity test used) |
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What is required for an entrapment defense?
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1. D predisposed to commit crimes like this; AND
2. the criminal design originated with law enforcement officers |
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What is required for a Duress defense?
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D compelled to commit crime by threat of immediate and physical harm to the D or a third person.
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Is duress a defense to an intentional killing?
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No.
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When is necessity a defense?
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1. D believed committing the crime would prevent an imminently threatened harm;
2. D believed this harm would be greater than the harm that would result from commission of the crime. 3. These beliefs were objectively reasonable. |
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When is necessity not a defense?
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When the D wrongfully created the situation OR killed another to avoid losing his own life.
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When is self-defense proper?
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1. D believed he was in imminent danger of being harmed and the force used was necessary to prevent the harm.
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When is deadly force proper?
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D reasonably believed he was threatened w/ imminent death or serious bodily injury AND the deadly force was necessary to prevent the harm.
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Is there a duty to retreat?
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No.
(*no duty to retreat in one's home) |
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Can an aggressor claim self-defense?
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Yes. But only when:
1. he has withdrawn from the fight and told the other guy as much; OR 2. the aggressor is using non-deadly force and is met with deadly force |
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What is required for defense of others?
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D believed that another person has the legal right to use force in his own defense.
*reasonable appearance of the right to use force |
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What is the general rule regarding defense of property?
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It is a defense that force was used un the reasonable belief that it was necessary to prevent unlawful interference w/ real or personal property.
(*never deadly force; and can't be used later to regain the property -- hot pursuit) |
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What happens if a D unreasonably believes deadly force was required in a killing for self defense?
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No acquittal; murder charge should be dropped to manslaughter.
*imperfect self-defense |
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What is a vicarious liability offense?
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One in which a person w/o fault may be held liable for the criminal conduct of another (usually an employee).
*limited to regulatory crimes and crimes punishable by fine only |
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What standard is strict liability and negligence judged under?
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Objective
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At common law, could a corporation commit a crime?
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No. However, the modern trend is to hold them liable for acts performed by:
1. an agent acting w/in scope of employment; or 2. corporate agent high enough in hierarchy to presume his acts reflect corporate policy |
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What is a principal and what is their criminal liability?
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The principal is the person who commits the crime or who causes an innocent agent to do so.
They are liable for the principal crime. |
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What is an accomplice and what is their liability?
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The accomplice is a person who aids or encourages the principal to commit the illegal conduct.
They are liable for the principal crime if the accomplice intended to aid or encourage the crime. |
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What is an accessory after the fact and what is their liability?
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An AAF is a person who aids another to escape knowing that he has committed a felony.
They are liable for separate, less serious crime of being an accessory after the fact. |
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Is withdrawal a defense to an accomplice charge?
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Yes, but it must occur before the crime becomes unstoppable.
1. Repudiation is sufficient withdrawal for mere encouragement. 2. Attempt to neutralize assistance is required if participants went beyond mere encouragement. *notifying the police or taking other action to prevent the crime is also sufficient. |
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Can parties be punished for both a solicitation and a completion or attempt to commit the crime?
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No.
EX: can't be held liable for solicitation AND attempt |
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When is a conspiracy completed?
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Upon completion of the wrongful objective.
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Can a D be charged with both conspiracy to commit murder and murder?
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Yes -- merger does not come into play in conspiracy.
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Can a D attempt to commit a crime of recklessness or negligence?
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No -- lack of specific intent.
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Can a defendant be convicted of an attempt and the completed crime?
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No -- it's either or, but not both.
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Who must raise the insanity issue?
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The defendant.
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Who has the burden to prove insanity? What is the standard?
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The defendant; POE.
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When can the insanity defense be raised?
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Any time.
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If the D does not raise the issue of insanity, must he submit to a court-ordered psych evaluation?
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No -- only if he raises the issue must he submit.
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When can a defendant not be tried because of his mental condition?
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1. If does not understand the nature of the proceedings against him; OR
2. He is unable to assist his lawyer in the preparation of his defense. |
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What is the common law rule regarding infancy?
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Children ages 7-14 there is a rebuttable presumption that the child was unable to understand the wrongfulness of the act.
Children aged 14 or older were treated as adults. |
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Is a threat of future harm sufficient to justify self-defense?
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No.
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When is deadly force permissible to prevent a crime?
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To terminate or prevent a dangerous felony involving risk to human life.
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When is deadly force permissible by a police officer in effectuating an arrest?
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To prevent a felon's escape AND the felon threatens death or serious harm.
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When can a private citizen use non-deadly force to make an arrest?
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When a crime has been committed and the person has reasonable grounds to believe the person arrested committed the crime.
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When can a private person use deadly force to make an arrest?
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Only when he knows the person harmed/killed was actually guilty of the offense.
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Can you use force to resist arrest?
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Yes. You can use non-deadly force to resist an improper arrest even if a known officer is making the arrest.
Deadly force may only be used if the person does not know the arresting officer is actually a police officer. |
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When may a person who is in loco parentis with respect to a child lawfully entitled to use force against that child?
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To promote the welfare of the child.
*you can spank your kid if he's being a little shit |
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When does mistake usually raised as a defense?
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For crimes that have been completed.
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When is impossibility used as a defense?
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Only when the D has failed to complete the crime b/c of his mistaken belief about the facts and is being charged with an attempt.
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Is consent a defense?
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Not usually; unless the crime requires lack of consent by the victim (e.g., rape).
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Can a person be entrapped by a private citizen, including a government agent?
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No.
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What is battery?
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an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching.
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Is battery always intentional?
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No.
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Must force be applied directly for a batter to exist?
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No.
EX: sending your dog to attack the dude. |
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What is normally treated as aggravated battery?
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1. battery with a deadly weapon
2. battery resulting in serious bodily injury |
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What is mayhem at C/L?
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dismemberment or disablement of a bodily part.
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What is involuntary manslaughter?
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A killing committed with criminal negligence.
*also during the commission of a misdemeanor in some states |
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When is a murder elevated from 2nd degree?
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When it is deliberate and premeditated.
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What the limitations on felony murder?
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1. D must have committed or attempted to commit the underlying felony (a defense that negates the underlying felony is also a defense to felony murder)
2. the felony must be distinct from the killing 3. death must have been a foreseeable result 4. death must have been caused before D's immediate flight (if you reach temporary safety, subsequent deaths are not felony murder) 4. in most states, the felon is not liable for the deaths of co-felons |
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What is rape?
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Unlawful carnal knowledge of a woman by a man, not her husband.
*today usually called 'sexual assault' *most states reject the husband can't rape his wife BS |
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When does lack of effective consent exist in regards to rape?
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1. intercourse accomplished by actual force.
2. intercourse accomplished by threat of bodily harm 3. victim incapable of consenting; or 4. victim is fraudulently caused to believe the act is not intercourse |
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Will mistake as to age prevent liability for statutory rape?
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No -- it is a strict liability crime.
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Can a larceny be committed with lost, mislaid, or abandoned property?
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Yes as to lost and mislaid property but no as to abandoned property.
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What is the difference between larceny and embezzlement?
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Rightful possession.
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If a defendant intends to restore the exact property taken, is it still embezzlement?
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No -- but it must be exact. Similar or substantially identical property will not suffice.
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What is larceny by trick?
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Victim is tricked into giving up mere custody of property.
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If the victim is tricked into giving title to personal property, what is this known as?
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False pretenses.
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What is the key to receiving stolen property?
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The property must be stolen at the time the D receives it.
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What is forgery?
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Making or altering a writing w/ apparent legal significance so that it is false with the intent to defraud.
*fraudulently obtaining the signature of another counts |
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What is malicious mischief?
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The malicious destruction of, or damage to, the property of another.
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Is a later acquired intent to commit a felony at the time of entry constitute a burglary?
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No -- the intent must be present at the time of entry.
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What is compounding a crime?
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Agreeing, for valuable consideration, not to prosecute another for a felony or to conceal the commission of a felony or the whereabouts of a felon.
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