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crim law
Gershel
103
Law
Graduate
12/09/2009

Additional Law Flashcards

 


 

Cards

Term
Basic Elements of a Crime
Definition
1. Voluntary act (actus reus)
2. Culpable Intent (mens rea)
3. Concurrence between mens rea and actus reus
4. Causation of harm
Term
Utilitarian Theory
Definition
Greatest good for greatest number. Want to reduce future crimes, deter criminals and society.
Term
Retributive Theory
Definition
Punish moral culpability. There is no wanting to reduce crime.
Term
Corpus Delecti of Murder
Definition
1. Death
2. Criminal agency is cause of death
3. AND the person charged is person who committed crime.
Term
Intent to kill (malice aforethought)
Definition
1. desire to kill OR
2. substantially certain death will occur
Term
Felony Murder
Definition
1. killing
2. during commission or attempt of another felony.
Felonies: F-BARRK
Term
Independent Felony/Merger Limitation
Definition
felony murder rule only applies if predicate felony is independent of homicide. If not, then felony merges w/ homicide and cannot serve as basis for felony murder.
Term
Depraved Heart Murder
Definition
Extreme indifference to human life
Term
Intent to cause great bodily harm Murder
Definition
example: A hits B in knee caps w/ baseball bat, which causes B to die.
Term
Involuntary Manslaughter
Definition
1. unintentional killing
2. criminal negligence
Example: A shoots B w/ gun he truly believed was not loaded.
Term
Voluntary Manslaughter
Definition
1. Intent to kill
2. committed in heat of passion (would cause reasonable person to loose control)
3. Legally sufficient provocation (something reasonable person could not handle)
4. No cooling off period
Term
1st degree murder
Definition
1. Willful, deliberate, and premeditated (lying in wait, poisoning, etc)
2. Felony murder (F-BARRK)
Term
2nd degree murder
Definition
1. intent to cause great bodily harm murder
2. depraved heart murder
3. felony murder (other dangerous felonies).
Term
MPC Murder
Definition
1. Purposely (conduct w/ intent to cause death of another)
OR
2. Knowingly (conduct w/ knowledge that death of another is practically certain)
OR
3. Reckless + (conscious disregard of substantial and unjustifiable risk that death will result w/ extreme indifference to human life)
Term
MPC felony murder
Definition
extreme indifference to human life during commission of F-BARRK felonies where death occurs
Term
MPC Manslaughter
Definition
1. Conscious disregard of substantial and unjustifiable risk that death will result from conduct
2. OR Occurred as a result of EMED for which there is a reasonable explanation (could be subjective or objective)
Term
MPC Negligent Homicide
Definition
1. D should be aware conduct will result in substantial and unjustifiable risk of death
2. AND conduct involves gross deviation from reasonable person standard.
Term
Common Law Rape (general intent)
Definition
1. Unlawful Carnal Knowledge
2. w/ a female
3. by force
4. against her will
5. mens rea (intent to complete penetration)
Term
Common Law Statutory Rape (strict liability)
Definition
1. unlawful carnal knowledge
2. w/ a girl
3. under a certain age (<10 at common law)
4. Even if she consents
Term
MTS Rape
Definition
1. penetration
2. w/ victim
3. resistance not necessary
4. w/o permission
5. Mens rea (intent to penetrate)
Term
Common Law Battery
Definition
1. Harmful or Offensive contact
2. intent OR criminal negligence (like KOSC)
3. Causation
Term
Attempted Battery Assault
Definition
1. Intent (no criminal negligence)
2. to cause harmful or offensive contact
3. Contact does not occur (V does not need to be aware)
Term
Apprehension Assault
Definition
1. Intent or criminal negligence (like KOSC)
2. to cause apprehension of harmful or offensive contact
3. V experiences apprehension (V must be aware)
Term
Common Law Kidnapping (general intent)
Definition
1. Forcible movement or secret confinement
2. against victim's will
3. w/o lawful authority
4. Intent to cause movement or secret confinement
Term
Kidnapping by natural adoptive parent (specific intent)
Definition
1. Take/retain child >24 hours
2. away from parent/legal guardian who has custody/parenting rights
Term
Common Law Burglary (specific intent)
Definition
1. Breaking
2. Entering
3. Dwelling
4. of another
5. at nighttime
6. w/ intent to commit felony or larceny
Term
Dwelling
Definition
any structure used for human habitation and any outbuildings w/ in curtilage.
Term
Common Law Arson
Definition
1. Malicious
2. Burning
3. Dwelling
4. of another
Term
Malicious
Definition
Intent or reckless disregard (objective, reasonable person standard)
Term
Common Law Larceny (specific intent)
Definition
1. trespassory (w/o consent of possessor)
2. taking (securing dominion)
3. Asportation
4. personal property
5. of another
5. intent to permanently deprive
Term
Forms of Trespassory taking
Definition
1. Taking
2. Obtain consent by fraud (larceny by trick)
OR 3. Mistake (know about mistake and don't say anything)
Term
Custody
Definition
Has restricted right of possession
Term
Possession
Definition
Reasonably unrestricted possession
Term
Common Law Embezzlement (specific intent)
Definition
1. Fraudulent (under false pretenses)
2. conversion (manner inconsistent w/ entrusted arrangement.
3. of property
4. of another
5. by one who is already in lawful possession
6. intent
Term
False Pretenses (specific intent)
Definition
1. False representation (misrepresentation to matter of fact)
2. of a material present or past fact
3. Causes victim to pass title of property to D
4. Intent
Term
Common Law Robbery
Definition
1. trespassory
2. taking (securing dominion)
3. asportation
4. personal property
5. of another
6. w/ intent to permanently deprive
7. taken from person or person's presence
8. w/ force or fear of bodily injury
Term
When do you have a legal duty to act?
Definition
1. statute (income tax, reporting accident)
2. K w/ obligation to act (lifeguard, nurse)
3. Special relationship (parent, spouse)
4. Voluntary assumption (beginning rescue)
Term
Attempt
Definition
D must commit sufficient overt act beyond mere preparation
Merges into completed defense.
Term
MPC Test for Attempt (majority)
Definition
act or omission of act must be a substantial step in course of conduct planned to culminate in commission of crime.
Term
Common Law Test for attempt (minority)
Definition
conduct is w/in dangerous proximity of success.
Term
Actions considered to be attempt
Definition
following, lying in wait, surveillance of location where crime will be committed, possession of materials necessary for commission, attempting to coerce V to place where crime will be committed
Term
Factual Impossibility
Definition
Not a defense to attempt.
Intended goal is crime, but not committed due to factual mistake unknown to D.
Term
Inherent Factual Impossibility
Definition
Method used to accomplish crime was one that a reasonable person would view as completely inappropriate for goal (may be a defense)
Term
Legal Impossibility
Definition
Non-crime w/ guilty conscious.
Example: A produces alcohol just after prohibition has been repealed, but A thinks he is breaking law.
Term
Hybrid Legal Impossibility
Definition
illegal act, but does not meet all elements
Example: A shoots B, but B is already dead.
Term
Common Law Abandonment
Definition
If a D has required intent and gone beyond mere preparation, he may not escape liability.
Term
MPC Abandonment
Definition
could be a defense if fully voluntary and there is complete abandonment.
Term
Solicitation (specific intent)
Definition
1. D invites, requests, commands, hires, or encourages
2. another
3. to engage in criminal activity or breach peace
4. intent
Merges into crime/attempt
Term
Common Law Conspiracy (specific intent)
Definition
1. agreement
2. between 2 or more
3. to commit crime
4. intent
Does not merge
Term
Pinkerton rule for conspiracy (common law)
Definition
co-conspirators are liable for the acts committed by each other that are in furtherance of crime or reasonably foreseeable
Term
Accessory before fact
Definition
1. intentionally assists perpetrator w/ commission of offense
2. not present at commission of offense.
Term
Principal in 1st degree (perpetrator)
Definition
1. w/ mens rea required for act
2. commits actus reus or commits act through innocent instrumentality
Term
Principal in 2nd Degree
Definition
1. intentionally assists perpetrator w/ commission of offense
2. while in perpetrator's actual or constructive presence.
Term
Accessory after fact
Definition
1. crime committed by another
2. D knew of commission
3. gave aid for perpetrator to avoid apprehension, conviction, or punishment
Term
What are possible actus reus' possible for accomplice liability?
Definition
1. physical conduct
2. psychological encouragement OR
3. omission.
Term
mens rea for accomplice liability
Definition
intent OR recklessness Ex: A tells B to speed up in school zone and B hits child. A would be an accomplice.
Term
Legislative Exemption for accomplice liability
Definition
Example: A has sex w/ 12 year old girl w/ her permission. Since statute is meant to protect girl, she cannot be prosecuted under it.
Term
Abandonment for accomplice liability
Definition
D must repudiate all that is possible to prior assistance and before chain of events become possible.
Term
can an accomplice be found guilty for crimes committed by other accomplices?
Definition
Yes, if the secondary offense is a natural and probable consequence of the crime aided and abetted.
Term
determine if strict liability applies
Definition
1. Is offense civil or a "true crime"?
2. If a civil offense, has the wording of the enactment added a mens rea requirement of some nature?
3. If a true crime, has the wording of a statute eliminated the mens rea requirement (and if so, what is the effect.
3. Historical tx (has crime always been treated as strict liability?)
4. Stigma and punishment
5. Legislative intent (did it intend to make strict liability)
6. Structure of statutory scheme
Term
Under MPC, can withdrawal be a defense to conspiracy itself?
Definition
Yes, but the D would have to be able to successfully thwart crime from occurring.
Term
Intent vs. Motive
Definition
Intent: what someone meant to do.
Motive: why someone did it.
Term
Concurrence Doctrine
Definition
meeting of actus reus and mens rea
Non-example: A is thinking of way to kill B when B darts in front of his car and B is killed.
Term
Insanity (complete defense)
Definition
1. MDD at time of act
2. Causation between MDD and commission of crime
Term
M'Naghten Rule (majority view)
Definition
1. did not know nature and quality of act he was doing OR
2. he did not know what he was doing.
Term
Irresistible Impulse test (AKA volitional test)
Definition
D knows right from wrong, but is unable to control conduct.
Term
Durham Test (virtually non-existent)
Definition
would not have committed act had it not been for MDD.
Term
MPC Insanity Test
Definition
Lacked capacity, due to MDD, to:
1. appreciate wrongfulness of conduct OR
2. to conform his conduct to requirement of law.
Term
Federal Insanity Defense Reform Act
Definition
as the result of a severe MDD he was unable to appreciate:
1. the nature and quality of his conduct OR
2. the wrongfulness of his conduct.
Term
Who has burden of Proof under Federal IDRA?
Definition
Insanity is an affirmative defense under IDRA.
Term
Guilty but mentally ill (a verdict)
Definition
1. D is guilty of offense
2. D was mentally ill at time of crime
3. D was not insane at time of crime.
Term
Diminished capacity
Definition
a defendant’s abnormal mental condition, short of insanity.
Term
What are applications of diminished capacity?
Definition
1. majority: may negate mens rea of specific intent crimes.
2. MPC: can negate mens rea of any crime
3. States don't allow at all
Term
Types of involuntary intoxication (affirmative defense)
Definition
1. coerced intoxication
2. Intoxication by innocent mistake
3. Unexpected side effect from medication
4. Pathological Intoxication
Term
Pathological Intoxication
Definition
a temporary psychotic reaction, often manifested by violence, which is triggered by consumption of alcohol by a person with a pre-disposing mental or physical condition. The defense only applies if the defendant had no reason to know that he was susceptible to such a reaction.
Term
Specific intent crimes
Definition
BAFLEPAACKS: burglary, assault, false pretenses, larceny, embezzlement, pre-meditated murder, attempt, armed robbery, conspiracy, kidnapping, solicitation. 2nd degree murder, depending on language in statute.
Term
when can mistake of fact be a defense to a specific intent crime?
Definition
when it is an honestly entertained mistake
Term
when can mistake of fact be a defense to general intent or negligent crimes?
Definition
1. when mistake is honestly entertained AND
2. mistake is based on reasonable grounds.
Term
when can mistake of fact be a defense to strict liability crimes?
Definition
never!!!
Term
when can consent be a defense?
Definition
1. consent voluntarily given
2. party legally capable of consenting
3. no fraud
Term
Compulsion/duress
Definition
1. Another person issued a specific threat to kill or grievously injure the defendant or a third party
2. actor reasonably believed threat was genuine.
3. Threat was imminent AND impending
4. No reasonable escape from threat
5. actor was not at fault exposing himself to threat
Term
compulsion/duress under MPC
Definition
1. D was compelled by the use, or threatened use, of unlawful force by the coercer upon his or another person AND
2. a person of reasonable firmness in his situation would have been unable to resist the coercion
Term
Justification Defenses
Definition
focuses on act.
Examples
Self-defense
Defense of others
Defense of property and habitation
Use of lawful force
Necessity
Term
Excuse Defenses
Definition
focuses on actor
examples
compulsion
insanity
intoxication
diminished capacity
mistake of fact
mistake of law
Term
What is the general rule for use of force?
Definition
any amount of non-deadly force is privileged to prevent the commission of such an offense if it is reasonably believed to be necessary.
Term
Ceballos rule for defense of habitation
Definition
1. honest and reasonable fear
2. that felon poses threat of death or GBH
Term
MPC rule for defense of habitation
Definition
1. honest belief
2. that felon poses threat of death or GBH
Term
"make my day" defense of habitation
Definition
1. honest and reasonable fear
2. that felon might use any physical force
3. no matter how slight
Term
Police Use of Deadly Force
Definition
1. has probable cause to believe that the suspect poses a threat of death or serious physical injury to officer or others AND
2. such force is necessary to make the arrest or prevent escape
Term
Proportionality Limitation
Definition
not justified to use force that is excessive in relation to harm threatened.
Term
Aggressive doctrine limitation
Definition
Generally,one who is aggressor in encounter may not avail himself to self defense.
Term
Reasonable perception limitation
Definition
justified in using force to protect self if
1. subjectively believed force is necessary
2. AND has objectively reasonable grounds for belief
Term
Imminent threat limitation
Definition
may use self defense if
1. reasonable fear
2. of imminent threat.
Term
Reasonableness of Response Limitation
Definition
D cannot use more force that what reasonably appears to be necessary to neutralize threat.
Term
Majority rule of duty to retreat
Definition
person other than initial aggressor may use deadly force in self defense, even if could be avoided by retreating.
Term
Minority rule of duty to retreat
Definition
1. Must retreat if can do so safely unless
2. in home or place of business
Term
Common Law Imperfect Privilege of self defense or of others(mitigating circumstance to reduce crime)
Definition
cannot meet all elements required of self defense, but meets some, and this may reduce murder charge.
Term
MPC Imperfect Privilege for self defense or of others
Definition
evaluated in terms of the defendant’s subjective belief in the necessity of using the force or other material circumstances.
Term
Alter Ego Rule of Defense of others
Definition
one should step into shoes of those they are defending and if that person would have been justified in self defense.
Term
Reasonable Belief Rule of defense of others
Definition
must reasonably believe whom he is defending is not aggressor (majority rule)
Term
Elements of Entrapment
Definition
1. D was induced by to commit crime
2. by government agent
3. would not have committed crime w/o inducement
4. Government agent wanted to obtain evidence.
Term
Subjective test of entrapment
Definition
focuses on predisposition of criminal. P must prove predisposition beyond reasonable doubt.
Submitted to jury
Term
Objective (MPC) test of entrapment
Definition
focuses on police if they caused an otherwise innocent person to commit crime.
Question of law for judge
D has burden of proof by preponderance.
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