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90 Cards in this Set

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When you have a strict liability crime, are defenses as to intention ever available?
No, because strict liability does not require intent.
What is an accomplice liable for?
An accomplice is liable for the CRIME ITSELF and for all OTHER FORESEEABLE CRIMES.
What is required to find accomplice liability?

Is there accomplice liability if someone is present, consents to the crime, seems to enjoy the crime, or does not call the police?
The person must be ACTIVELY involved in the crime.

What is an inchoate offense?
It is an incomplete offense.
(1) Solicitation
(2) Conspiracy
(3) Attempt

(2) What happens if the person agrees to do the crime?
(1) It is asking someone to commit a crime.

(2) It becomes conspiracy and the crime of solicitation disappears.
It is
(1) An agreement between two or more parties
(2) Intent to enter into an agreement
(3) Intent to achieve an unlawful objective
(4) An over act, sometimes.
Majority rule says you need some little overt act in furtherance of the conspiracy.
Minority/old rule was that you needed no act - the agreement was enough.
For CONSPIRACY, does the agreement between the parties have to be express?
NO. It can also be implied.
Does CONSPIRACY merge with the substantive offense, like solicitation does?
NO. One can be charged with conspiracy AND the substantive offense.
Is one conspirator liable for crimes committed by another conspirator?
YES, if they are
(1) Committed in furtherance of the conspiracy, and
(2) They were foreseeable, due to the conspiracy
What is the effect of the defendant saying he WITHDRAWS from a conspiracy?
The withdrawal
- ALLOWS withdrawal from other conspirators subsequent crimes, but
- does NOT ALLOW withdrawal from liability for the conspiracy itself
What is attempt?
It is
(1) Specific intent to commit the crime AND
(2) Some step beyond mere preparation for the crime
What type of intent is required for conspiracy?
- intent to agree
- intent to achieve objective must be established for each individual defendant
- the intent must be fore the SAME criminal objective
Can a defendant avoid liability by withdrawing from a solicitation?
NO. Once a solicitation is made, the commission of the crime is complete.
Do all parties to a conspiracy need to know that their plan is an illegal one?
NO. The majority rule is that the partis to a conspiracy need not have been aware that their plan was illegal.
What type of intent is required for ATTEMPT?
SPECIFIC INTENT to perform an act and obtain a result that, if achieved, would constitute a crime.
What sort of ACT does INTENT require?
It requires some overt act beyond preparation.
- traditional rule was a proximity test
- model penal code "substantial step" test
What are the defenses to intent?
(1) Impossibility of success
- factual impossibility is NOT a defense
- legal impossibility IS a defense (where defendant mistakenly believes his act was criminal)
(2) Abandonment is NOT a defense. MPC says it can be a defense VOLUNTARY and COMPLETE
What DEFENSES are available for criminal acts?
(1) Insanity
(2) Intoxication
(3) Infancy
(4) Self-defense
(5) Defense of dwelling
(6) Duress
(7) Mistake of Fact
(8) Consent of victim NEVER works
(9) Entrapment
How do you remember defenses for criminal acts?
E.D. I.S. D.I.M., C.I.?
Defense of Dwelling
Mistake of fact
What are the four tests for legal insanity?
(1) M'Naughten: defendant lacked ability to know the wrongfulness of his action or understand the nature and quality of his action.
(2) Irresistable Impulse: defendant lacked capacity for self-control and free choice
(3) Durham rule: defendant's conduct is a result of mental illness
(4) Model Penal Code: defendant lacked the ability to conform his conduct to the requirements of law
For which crimes are insanity and involuntary intoxication available as a defense?
ALL CRIMES, even strict liability crimes.
How will you remember the four types of legal insanity?
Irresistable impulse
Model Penal Code
Is a drug addict or alcoholic's intoxication "voluntary?"
Is VOLUNTARY intoxication a defense to any crime?
YES - to specific intent crimes.
What are the liability rules regarding the defense of INFANCY?
Under 7: no criminal liability
7-14: rebuttable presumption of no criminal liability

On the MBE, almost every single defense of infancy is WRONG.
When may a victim use self-defense of non-deadly force?
At ANY time he reasonably believes that force is about to be used on him.
When may a victim use deadly force in self-defense?
Majority Rule: ANY time he believes that deadly force is about to be used on him.
Minority Rule: FIRST, a duty to RETREAT. However, there are three exceptions
(1) Do not have to retreat from home
(2) Do not have to retreat if a victim of rape or robbery
(3) Do not have to retreat if a police officer
May one ever use deadly force to defend property?
Can an original aggressor ever assert the defense of self-defense?
Only in VERY NARROW circumstances. Original aggressor has to withdraw AND has to communicate to victim that he is withdrawing.
What is duress?

Is it a defense to all crimes?
Duress is when someone holds a gun to your head and says they will kill you if you do not commit some illegal act.

It is a defense to all crimes except homicide.
When is mistake of fact a defense for
(1) Specific Intent Crimes?
(2) Malice and General Intent Crimes?
(3) Strict Liability Crimes?
(1) ANY mistake, even UNREASONABLE, is a defense
(2) ONLY REASONABLE mistakes are a defense
Is consent of the victim a good defense to a crime?
NO. Consent of the victim is almost NEVER a defense in this country.

It is only a defense if it negates an element of the offense.
What is entrapment?
Entrapment occurs if the intent to commit the crime originated not with the defendant, but rather with the creative activities of law enforcement officers.
(1) The CRIMINAL DESIGN must have originated with law enforcement
(2) The dfendant must NOT have been PREDISPOSED to commit the crime prior to contact by the government
What is BATTERY?

What is the requisite intent for Battery?
An offensive touching of the person of another.

General intent.
What is aggrevated battery?
It is battery in which
(1) a deadly weapon is used;
(2) serious bodily injury is caused; OR
(3) the victim is a child, woman, or police officer
Is consent a defense to battery?
It can be a defense to simple battery.
What is ASSAULT?
It is
(1) An attempt to commit a battery; OR
(2) The intentional creation of a reasonable apprehension in the mind of the victim of imminent bodily harm
It is committed with
(1) A dangerous or deadly weapon; OR
(2) Intent to rape, main, or murder
What level of intent is required for battery?
There is a split.
(1) For assault as an attempted battery, it is a SPECIFIC INTENT crime.
(2) For assault as threat of bodily injury, it is a GENERAL INTENT crime.
Is HOMICIDE a specific intent crime?
First degree murder: YES.

Common Law murder, or Second degree murder: NO. So, voluntary intoxication and mistake of fact.
Is there any standard definition of first degree murder?
NO. So, if it appears on the MBE, they will have to give you a specific definition to work with.
What are the elements of common law murder (2nd degree murder)?
The unlawful killing of a human being with malice aforethought.

Malice is:
(1) Intent to kill (can be simple use of a deadly weapon)
(2) Intent to inflict great bodily injury
(3) Reckless indifference to an unjustifiably high risk to human life (depraved heart)
(4) Intent to commit a felony (felony murder)
What are the defenses to felony murder?
(1) A defense to underlying felony is a defense to felony murder
(2) Felony must be independent of killing
(3) Deaths must be foreseeable
(4) Deaths while feeling a felony are felony murder, but once defendant reaches some point of temporary safety deaths thereafter are not felony murder.
(5) Defendant is not liable for the death of a cofelon as a result of resistance by the victim or the police.
What are the two types of COMMON LAW MANSLAUGHTER?
Common law manslaughter is killing without malice. There are two types:
(1) Voluntary manslaughter
(2) Involuntary manslaughter
Voluntary manslaughter is an intentional killing based on adequate provocation (passion).
- provocation must have been one that would arouse sudden and intense passion in an ordinary person such that he would lose control
- defendant was IN FACT provoked
- not sufficient time to cool off
- defendant in fact did not cool off
For voluntary manslaughter, when is provocation inadequate as a matter of law?
When it is composed of "mere words."
There are two types:
(1) If criminal negligence causes the death. Criminal negligence requires a greater deviation from the "reasonable person" standard.
(2) "Unlawful act" manslaughter, where the killing is part of a misdemeanor or unnamed felony
Which felonies count toward felony murder?
(1) Murder
(2) Manslaughter
(3) Rape
(4) Sodomy
(5) Mayhem
(6) Robbery
(7) Larceny
(8) Arson
(9) Burglary
What constitutes rape?
(1) The slighted penetration
(2) At common law, marriage preempted rape
(3) No consent: force, threats, incapable of consent, fraud as to act or actor
What is statutory rape?
Intercourse with a female under the age of consent.

A mistake of age does NOT excuse the crime, since it is strict liability.
What is larceny?
Larceny is
(1) A taking
(2) and carrying away
(3) of tangible personal property
(4) of another
(5) by trespass
(6) with intent to permanently deprive the person of his interest in the property
What type of property is subject to larceny?
PERSONAL property only. NOT realty and its fixtures.

Usually not documents and instruments, unless they have indepenent value.
What degree of taking and carrying away is needed for larceny?
Taking = Control over the object.
Carrying away = slight movement of the entire object.
What sort of intent is required for larceny?
What is the important thing to remember about larceny and intent?
Intent to permanently deprive must occur AT THE TIME OF TAKING.
Embezzlement is
(1) the fradulent
(2) conversion
(3) of property
(4) of another
(5) by a person in LAWFUL POSSESSION of that property
Does embezzlement have to be for the benefit of the embezzler?
What is the biggest difference between embezzlement and larceny?
In embezzlement, the misappropriation of the property occurs while the defendant has lawful possession of it.

In larceny, it occurs generally at the time the defendant obtains wrongful possession of the property.
For embezzlement, what is conversion?
Conversion requires only that the defendant deal with the property in a manner INCONSISTENT with the trust arrangement pursuant to which he holds it. No movement or carrying away is required.
Do you have embezzlement if the defendant intended to restore the exact property taken?
No. However, you do have embezzlement if he intended to restore similar property.
It is
(1) Obtaining TITLE
(2) To the property of another
(3) Caused by an intentional false statement of past or existing fact
(4) With the intent to defraud the other
How is false pretenses different than larceny by trick?
They differ in what is obtained. If only POSSESSION of the property is obtained, the offense is larceny by trick. If TITLE is obtained, the offense is false pretenses.
What type of misrepresentations qualify as an element of false pretenses?
(1) Must be a misrepresentation of fact
(2) Must only concern present or past facts, not future occurrences.
What is ROBBERY?
It is basically larceny + assault. More specifically:
(1) A taking
(2) Of personal property of another
(3) From the other's person or presence
(4) By force or intimidation
(5) With the intent to permanently deprive him of it
It is very broadly drawn. For instance, you could tie up a farmer in his barn and take his stuff from his house and it would count.
What sort of FORCE or INTIMIDATION suffices for ROBBERY?
It must be a threat of imminent harm. Statements about future action do NOT suffice.
It is like ROBBERY, however
(1) Threats need not involve immediate or physical harm
(2) Property need not be in victim's presence
(1) A braking
(2) And entry
(3) Of the dwelling
(4) Of another
(5) At nighttime
(6) With the INTENT of committing a felony therein AT the TIME OF THE BREAKING
For robbery, what is a BREAKING?
It can be actual or constructive. Constructive breaking is gaining entry by fraud, threat, or intimidation, or, "by use of a chimney!"
For burglary, what is entry?
It is placing any portion of the body inside the structue, even momentarily. At tool is sufficient if it is for the purpose of accomplishing the felony.
What is ARSON?
(1) The malicious
(2) Burning
(3) Of the dwelling
(4) Of another
For arson, what is "burning?"
There must be a fire. Charring is sufficent, but scorching, soot, or heat damage is not sufficient.
Is ARSON a specific intent crime?
NO. It is a general intent crime with the requirement of MALICE. He must have acted with reckless disregard or intent to burn the building.
Which offenses have SPECIFIC INTENT?
(1) All THEFT offenses
(2) The inchoate offenses of solicitation, conspiracy, and attempt
(3) First degree murder
(4) Assault with intent to commit a battery
Which crimes require MALICE?
Arson and Murder
What is MALICE?
It is extreme recklessness or indifference to human life
(1) Receiving possession and control
(2) Of stolen personal property
(3) Known to have been obtained in a manner constituting a crime
(4) By another person
(5) With intent to permanently deprive the owner of his interest in the property
What is MAYHEM?
At common law, it was dismemberment or disablement of a body part.

Modern statutes usually abolish it as a separate offense and treat it as aggravated battery.
If one person solicits another to commit a crime, and the second person commits the crime, who is liable for what?
They are both liable for the actual crime. The solicitation MERGES with the crime.
If the person solicited commits acts sufficient to be liable for attempt, what is the soliciter liable for?
He is also liable for attempt.
If the person solicited agrees to commit the crime, but does not commit acts sufficient to constitute attempt, what is he liable for?
They are BOTH liable for conspiracy.
What are the requirements for the defense of consent?
(1) The consent was voluntarily and freely given
(2) the party was legally capable of consenting
(3) no fraud was involved in obtaining the consent
What is "imperfect self defense?"
Under this doctrine, murder may be reduced to manslaughter even though (1) the defendant was at fault in starting the altercation; or (2) the defendant UNREASONABLY but honestly believed in the necessity of responding with deadly force (so no self-defense)
How does causation relate to murder?
The defendant must be both the factual and proximate cause of the victim's death.
Can a defendant be liable for a homicide even if the victim dies long after the allegedly criminal act?
Yes. Traditionally, for a defendant to be liable for homicide, the death of the victim must occur within a year and a day from infliction - but most states have abolished this rule.
What are the elements of kidnapping?
False imprisonment (unlawful confinement without consent) + movement of the victim + concealment of the victim
Are you guilty of any crime if someone delivers property to you by mistake, and you keep it?
You may be guilty of larceny.
What is receipt of stolen property?
(1) Receiving possession and control
(2) Of stolen personal property
(3) Known to have been obtained in a manner constituting a criminal offense
(4) By another person
(5) With the intent to permanently deprive the owner of his interest in it

Manual posession is not necessary.
What is "uttering?"
Uttering is the crime of offering a forged instrument as genuine, the forged instrument is false, and it is done with the intent to defraud.
What is "malicious mischief?"
(1) Malicious
(2) Destruction or damage to
(3) The property of another