FSP Crim Law

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stac8199
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162854
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FSP Crim Law
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2012-07-17 13:20:42
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Bar Points Crim law FSP
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Crim Law from Bar Points
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  1. What is necessary to find proximate cause in the criminal context?
    harm w/in the risk created by the D conduct in crimes involving negligence or recklessness OR sufficiently similar to that intended in crimes requiring intent
  2. Is the D liable for extraordinary results?
    no
  3. It is very likely that the D will be held legally responsible when he acts alone for what reason?
    the D act is the direct cause of the harm
  4. What is necessary to break the chain of proximate cause?
    superseding intervening cause
  5. When will a dependent intervening cause supersede the D's act?
    when it is a totally abnormal response to the D act
  6. An independent intervening cause will normally supersede the D's act except in what situation?
    when the independent intervening force was foreseeable
  7. What are the general elements of a crime?
    • (1) actus reus
    • (2) mens rea
    • (3) concurrence
    • (4) causation   
  8. What is the definition of homicide?
    killing of a human being caused by another human being
  9. How was murder defined at CL?
    unlawful killing of a human being with malice aforethought
  10. What kinds of acts will satisfy the actus reus requirement for homicide?
    • (1) voluntary
    • (2) involuntary arising from a voluntary act
    • (3) omission where there is a legal duty to act
  11. How must the act cause the death of another living person?
    actually and proximately
  12. t/f - to persuade or aid another to commit suicide is a sufficient basis for murder in some jurisdictions
    true
  13. If an intervening cuase kills the V b4 the D can complete his act, what is the result of the trial?
    acquittal
  14. Where both a 3P and D together cause a V death, what is the causation question?
    whether the D act was direct or indirect cause
  15. A person who fails to prevent injury or death isn't generally criminally liable for the V condition unless what?
    he has a duty to act
  16. Can a D still be found guilty of murder where a V has an unusual condition that contributes to his death?
    yes
  17. What is the 4 different mens rea for murder?
    • (1) intent to kill
    • (2) intent to cause serious bodily harm
    • (3) depraved heart murder
    • (4) felony murder   
  18. Regarding intent to kill murder, what inference does the deadly weapons doctrine raise?
    intent to kill thru the intentional use of any instrument calculated to produce death or serious bodily injury
  19. How must intent to inflict serious bodily injury be proven?
    by examination of the surrounding circumstances including the words and behavior of the D
  20. What is depraved heart murder?
    unintentional killing resulting from conduct involving a wanton indifference to human life and a consious disregard of an unreasonable risk of death or serious bodily injury
  21. What is the definition of felony murder?
    killing proximately caused during the commission or attempted commission of a serious or inherently dangerous felony
  22. What are the felonies that qualify for felony murder at CL?
    BARRK - burglary, arson, rape, robbery, and kidnapping
  23. What are the felonies that qualify for felony murder in NC?
    • (1) burglary
    • (2) arson
    • (3) rape or a sex offense
    • (4) robbery
    • (5) kidnapping
    • (6)other felony committed or attempted with the use of a deadly weapon
    • (7) a felony that is inherently dangerou to life      
  24. In NC, if one is convicted of felony murder what degree of murder is that?
    1st degree
  25. Under NC felony murder rule, any co-felon or co-conspirator is liable if a death occurs how?
    in the course of committing the predicate felony
  26. When may the death of a co-felon not be used for felony murder in NC?
    when it is caused by a V or pursuing LEO
  27. The underlying felony must be __________ of the homicide for felony murder.
    independent
  28. What is the majority rule under the agency theory for felony murder?
    • killer must be a felon
    • there is no felony murder liability when a non-felon kills a felon or a bystander 
  29. What is the minority rule/proximate cause theory for felony murder?
    • killer can be anyone
    • felon is liable for any death that is the proximate result of the felony, whether the killer is a felon or not 
  30. What is the redline limitiation to felony murder?
    dead person must not be a felon
  31. What is the minority exception to felony murder for non-violence?
    • D must be violent
    • no liability for a non-violent co-felon (i.e. - one who isn't armed and didn't participate in or have any knowledge of the violent co-felon's intentions) 
  32. What does 1st degree murder include?
    • (1) intent to kill murder committed with premeditation and deliberation
    • (2) felony murder
    • (3) lying in wait, poison, terrorism, or torture in some jurisdictions
  33. What is 2nd degree murder?
    any murder that doesn't meet the requisite elements of 1st degree murder
  34. How does NC define 1st degree murder?
    the unlawful killing with malice, premeditation, and deliberation
  35. How does NC define 2nd degree murder?
    all other murders that don't involve malice, premeditation, and deliberation
  36. What is the definition of voluntary manslaughter?
    intentional killing triggered by adequate provocation
  37. How does NC define manslaughter?
    there is no statutory definition therefore the CL definition governs
  38. What constitutes adequate provocation?
    reasonable person would lose self-control
  39. What is imperfect self defense?
    • may mitigate murder to voluntary manslaughter
    • D was at fault in starting an altercation
    • D unreasonably but honestly believed that harm was imminent or that deadly force was nec  
  40. NC allows the reduction of murder to manslaughter where the D didn't intend to kill or seriously injure and what?
    • (1) D was at fault by starting the altercation
    • OR
    • (2) D had an honest but unreasonable belief that deadly force was nec 
  41. What is the definition of involuntary manslaughter?
    unintentional killing resulting w/o malice aforethought caused by either: (1) reckless or criminal negligence; or (2) during the commission or attempted commission of an unlawful act
  42. NC defines involuntary manslaughter as an unintentional killing of a human being w/o malice resulting from what?
    • (1) commission of an unlawful act that isn't a felony;
    • OR
    • (2) act done in an unlawful or culpably negligent way if death wasn't an unforeseeable outcome considering all the facts   
  43. Criminal negligence requires that the D conduct creates what?
    high degree of risk of death or serious bodily injury beyond the tort standard of ordinary neg
  44. What is the misdemeanor manslaughter rule?
    unintentional killing that occurs during the commission or attempted commission of a misdemenaor, which is malum in se or of a felony which isn't of the inherently dangerous type required for felony murder
  45. What is criminal battery?
    intentional, reckless, or criminally negligent unlawful application of force to the person of the V
  46. Is consent a valid defense to battery?
    when it isn't coerced or obtained by fraud
  47. Is consent a valid defense to a breach of the peace?
    no
  48. When is battery a felony in the 3rd degree?
    • (1) D causes great bodily harm or
    • (2) permanent disability or disfigurement or
    • (3) perviously been convicted of battery, aggravated battery, or felony battery 
  49. What is aggravated battery?
    • (1) D intentionally and knowingly causes great bodily harm, permanent disability or disfigurement
    • (2) D uses a deadly weapon
    • (3) V is pregnant and D knows of the pregnancy  
  50. There is no criminal assault when a reasonable person wouldn't expect what?
    imminent bodily harm
  51. To show assault under NC law there must be what?
    • (1) an attempt to commit a battery
    • OR
    • (2) an act done to frighten  
  52. For assault in NC, the act must cause a reasonable apprehension of immediate bodily harm that causes the V to do what?
    to engage in a course of action that woudln't have otherwise been followed
  53. Does NC require the present ability to carry out the act for assault?
    no all that is needed is a showing of an apparent ability to accomplish the act
  54. What is aggravated assault?
    • AWDW w/o intent to kill or with intent to commit a felony
    • 3rd degree felony
    • punishable by imprisonment up to 5 years  
  55. Under NC law, harsher punishment is given to those assaults and batteries if what?
    • (1) attemtp to inflict or does inflict serious bodily injury or uses deadly weapon
    • (2) AoF
    • (3) assault child under age 12
    • (4) assault officer or EE of state
    • (5) assault school EE or volunteer    
    • (6) assault public transit worker
    • (7) assault company police officer or campus police officer
    • (8) assault of handicapped person  
  56. In NC, is AWDW a felony or misdemeanor?
    m
  57. When does AWDW become a felony in NC?
    • (1) intent to kill
    • (2) intent to inflict serious injury
    • (3) intent to kill and inflicts serious injury  
  58. For assault, is a promise/threat of future action sufficient?
    not generally - threat must be to commit a present battery
  59. What is the CL definition of kidnapping?
    • (1) unlawful
    • (2) restraint of a person's liberty
    • (3) by force or show of force
    • (4) so as to send the V to another location   
  60. The 1st elements of kidnapping in NC is the unlaful confinement, restraint, or removal from one place to another of whom?
    • (1) any person 16 or older w/o their consent
    • (2) any person under 16 w/o parent consent 
  61. The second element of kidnapping in NC is that the confinement, restraint, or removal is for the purpose of what?
    • (1) holding the person for ransom, for use as a hostage, or for use as a shield
    • (2) facilitating the commission of a felony or the flight therefrom
    • (3) doing serious bodily harm or to terrorize the V
    • (4) holding the V in involuntary servitude   
  62. Does kidnapping in NC require asportation or movement?
    no to unlawfully confine or restrain is sufficient
  63. What constitutes 1st degree kidnapping in NC?
    • (1) V not released in safe place
    • (2) V seriously injured  
    • (3) V sexually assaulted 
  64. What is the NC and CL definition of false imprisonment?
    intentionally and unlawfully restraining or detaining another w/o their consent
  65. What is NC shopkeeper's privilege to false imprisonment?
    • (1) reasonable amount of time
    • (2) reasonable manner
    • (3) PC to believe that person has stolen merchandise  
  66. What is the CL definition of rape?
    • unlawful sexual intercourse by a male person with a femal person w/o her consent
    • penetration but not emission was required 
  67. In NC all rapes require what kind of intercourse?
    vaginal
  68. What is 2nd degree rape in NC?
    • (1) by way of force and against the will of V
    • OR
    • (2) knew or should have known V was mentally disabled, mentally incapacitated, or physically helpless 
  69. Does intercourse accomplished by mere threats rather than force constitute rape?
    it can
  70. If the V is incapable of consent, is it rape?
    yes
  71. Is the consent of the V a defense to statutory rape?
    no
  72. Engaging in a sex act with a child under 12 is what kind of offense and what is the punishment?
    • capital felony
    • punishable by life imprisonment w/o parole 
  73. Larcey requires that you obtain what?
    possession unlawfully
  74. False pretenses requires that you obtain what?
    title falsely
  75. Embezzlement requires that you do what?
    convert/misuse property entrusted to you
  76. What is the CL definition of larceny?
    trespassory taking and carrying away of the tangible personal property of another with the intent to permanently deprive the owner thereof
  77. Under NC, the carrying away element of larceny can be met by the application of the doctrine of recent possession which is what?
    if evidence shows that the D was in possession of stolen goods recently after a theft, inference that he is the thief
  78. What is required for the doctrine of recent possession to apply to larceny in NC?
    • (1) property described in indictment was stolen;
    • (2) property found in D possession was stolen; and
    • (3) possession was recently after the theft  
  79. What is shoplifting in NC?
    taking of property from a merchant that has a value of more than $200 by using an exit door, upon which has been placed a notice, sign, or poster providing information about the offense and punishment, to exit the premises of the store
  80. Is there a larceny if at the time of the taking the D intended to return the property?
    no
  81. What is embezzlement?
    conversion or misappropriation of the property of another by one who is already in lawful possession
  82. What is NC embezzlement?
    • (1) fraudulently or knowingly and willingly misapplied or converted the property of another;
    • (2) that was entrusted to the D;
    • (3) for a purpose other than that for which the D received the property from the owner  
  83. What is CL robbery?
    • (1) larceny
    • (2) from the person or presence of the V
    • (3) by force or violence OR by intimidation or the threat of violence  
  84. How does NC categorize robbery?
    CL robbery and armed robbery
  85. What is armed robbery in NC?
    • (1) committing or attempting to commit larceny
    • (2) from the person or the person's presence
    • (3) by the use or threatened use of a firearm or dangerous weapon
    • (4) that endangers or threatens the life of a person  
  86. Does NC have a taking requirement for robbery?
    • not for armed robbery, an attempt to take property is sufficient for
    • Yes for CL robbery 
  87. What are the lesser included offenses for armed robbery in NC?
    CL robbery, AWDW, larceny
  88. What is definition of false pretenses?
    • false representation of a present/past material fact by the D which causes the V to pass title to his property to the D who knows his representation to be false
    • D must know the representation is false at the time V transfers title to him and intends thereby to defraud 
  89. What does false pretenses require in NC?
    • (1) false representation of a fact or regarding a future fulfillment or event
    • (2) made with intent to deceive
    • (3) does deceive
    • (4) D obtains, or attempts to obtain, value   
  90. Since NC false pretenses doesn't require the passage of title, it overlaps with what other crime?
    larceny by trick
  91. What is larceny by trick?
    D obtains possession of personal property of another by means of a representation or promise that D knows is false at the time D takes possession
  92. What is extortion in NC?
    • threat or communication of a threat made with the interference of wrongfully obtaining:
    • (1) anything of value
    • (2) any acquaintance
    • (3) any advantage
    • (4) any immunity    
  93. What is "receiving stolen property"?
    • receiving stolen property known to be stolen with the intent to permanently deprive the owner
    • D knows or actually believes property is stolen
    • honest but unreasonable belief that property isn't stolen likely prevents conviction
  94. Does NC require actual knowledge that the property is stolen for liability under receiving stolen property?
    no- reasonable ground to believe the property was stolen will suffice
  95. What are the elements for CL burglary?
    • (1) breaking and entering
    • (2) of dwellling house of another
    • (3) in nighttime
    • (4) without consent
    • (5) with intent to commit a felony therein  
  96. What are the NC elements for burglary?
    • (1) breaking - slightest force sufficient or construcive breaking via fraud, deceit, or intimidation
    • (2) entering - slightest sufficient provided the insertion of body or tool isn't only for the purpose of breaking 
    • (3) at night
    • (4) into the dwelling house or room used as a sleeping apartment 
    • (4) intent to commit felony therein  
  97. What is the difference b/t NC 1st degree and 2nd degree burglary?
    the presence of the occupants
  98. What is CL & NC arson?
    malicious burning of the dwelling of another
  99. What is the difference b/t 1st and 2nd degree arson in NC?
    presence of occupants
  100. NC also makes the following acts a felon in relation to arson:
    • (1) burn any building or other structure
    • (2) fraudulently set fire to a dwelling house occupied by any occupant
    • (3) wantonly/willfully set fire to or burn or aid, conceal, or procure the burning of any property with intent to injure or prejudice an insurer, creditor, owner, or any other person
    • (4) firefighter or EMT is seriously injured during any arson or other burning offense   
  101. What is CL & NC solicitation?
    enticing, advising, inciting, inducing, urging, or otherwise encouraging another to commit a felony or breach of the peace
  102. How is the crime of solicitation graded in NC?
    • solicited crime is felony - solicitation is felony 2 classes below the solicited crimes
    • when recognized solicitation of misdemeanor is punishable as a misdemeanor (m assault & solicitation of obstruction of justice) 
  103. What is CL attempt?
    • (1) specific intent to bring about a criminal result
    • (2) significant overt act in furtherance of that intent

    once the target crime is committed, the attempt merges into the target crime   
  104. Why doesn't NC recognize attempted 2nd degree murder?
    b/c by definition any attempted murder is premeditated and deliberate which constitutes attempted 1st degree murder
  105. Is legal impossiblity a defense to attempt?
    yes - situation where D did all the things he intended to do but his acts didn't constitute a crime
  106. What is CL conspiracy?
    • agreement b/t 2 or more persons to commit a crime or to commit a lawful act by criminal means
    • mental state - intent to agree AND intent to achieve objective
    • majority rule - overt act required in furtherance  
  107. Does NC require an over act for conspiracy?
    no - crime is complete upon agreement
  108. Is withdrawal a defense to CL conspiracy?
    not from the conspiracy itself but maybe from co-conspirator's subsequent crimes if D communicates his withdrawal to each of the co-conspirators
  109. Under the MPC when is withdrawal a valid defense to conspiracy?
    D withdraws and thwarts the success of the conspiracy
  110. When is an individual criminally liable as an accomplice?
    • (1) gives assistance or encouragement or fails to act when he has a legal duty to oppose the crime of another
    • AND
    • (2) purposefully intends to effectuate commission of the crime 
  111. What is the definition of an accessory before the fact?
    one who aids, abets, counsels, or otherwise encourages the commission of a felony but isn't present at the scene
  112. How does NC treat accessories before the fact?
    abolished the distinction and tried as principals
  113. 3 requirements for accessory after the fact
    • (1) completed felony
    • (2) D knew of commission of felony
    • (3) D personally gave aid to the felon to hinder the felon's apprehension, conviction, or punishment  
  114. How does NC treat accessory after the fact?
    • separate, stand alone offense
    • D doesn't share in the liability for the felony already committed 
  115. Which insanity test does NC follow?
    • M'Naghten Test
    • D must prove insanity to the satisfaction of the jury 
  116. What is the M'Naghten Test for insanity?
    D was laboring under such a defect of reason from a disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, not to know that what he was doing was wrong
  117. What is the MPC test for insanity?
    as a result of mental disease or defect, D lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law
  118. What is the irresistible impulse test for insanity?
    D had a mental disease that kept him from controlling his conduct
  119. What is the durham rule for insanity?
    D unlawful act was the product of mental disease or defect
  120. What are the 4 tests for insanity?
    • (1) M'Naghten Test
    • (2) MPC test
    • (3) Irresistible Impulse test
    • (4) Durham Rule   
  121. What is diminished capacity defense?
    as a result of a mental defect short of insanity, the D didn't have a state of mind that is an element of the offense
  122. Voluntary or involuntary intoxication is a defense to a crime in what situation?
    it negates the existence of an element of the crime
  123. What is self-defense?
    • (1) reasonable belief
    • (2) imminent danger of unlawful bodily harm
    • (3) reasonably necessary force used  
  124. When may a D not assert self-defense as a defense?
    when he is the initial aggressor
  125. How can the aggressor regain the right of self-defense?
    • (1) complete w/drawal
    • OR
    • (2) escalation of force by V 
  126. NC only allows deadly force in response to what?
    • a deadly assault - fear someone is about to commit an assault insufficient
    • necessity that is real or apparent to defend self or family 
  127. Is there a duty to retreat in NC?
    • not unless the assualt isn't a felony
    • NEVER from your home, business, or MV no matter what the character of the assault 
  128. In defense of 3P, the majority rule focuses on what?
    • reasonableness of the D belief that the 3P was being unlawfully attacked
    • reasonable but mistaken belief is allows the D to claim the defense 
  129. Does NC allow the taking of a life in defense of someone that isn't family to the D under the defense of others?
    no
  130. What is defense of property?
    • (1) reasonable non-deadly force
    • (2) reasonable belief that property is immediate danger
    • (3) no greater force than nec 
  131. In NC, a person may use deadly force to defend his home or habitation against another person attempting unauthorized entry, or to terminate an intruder's unlawful entry, if:
    • (1) D reasonably believes there is either a danger of death or great bodily harm
    • OR
    • (2) D reasonably believes the entering person intends to commit a felony 
  132. What is defense of necessity?
    • (1) reasonable force
    • (2) avoid imminent injury
    • (3) natural forces
    • (4) reasonable belief nec to avoid a greater harm   
  133. What are the law enforcement defenses?
    private person may use amount of non-deadly force that reasonably appears nec to prevent the commission of a felony or a misdemeanor amounting to breach of peace

    private citizen may use same amount of deadly force as LEO only if a dangerous felony involved and person actually guilty of the crime 
  134. What is duress?
    justifies criminal conduct where D reasonably believes only way to avoid unlawful threats of great bodily harm or imminent danger is to engage in unlawful conduct
  135. What are the elements for entrapment?
    • (1) originating with LEO
    • (2) D not predisposed 
  136. What are the elements for entrapment in NC?
    • (1) but for LEO misrep, trick, persuasion, or fraud D wouldn't have committed the offense;
    • AND
    • (2) D wasn't predisposed to commit the offense

    D can't deny an essential element of the crime but may deny an element relating to intent 

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