Criminal Law

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Criminal Law
2013-02-14 17:55:36
Criminal Law

Bar exam criminal law
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  1. What two crimes merge with the crime charged
    • Only:
    • Solicitation
    • Attempt
  2. What crimes require that D had the Specific Intent to commit the crimes (10)
    • Attempt
    • Assult
    • Burglary
    • Conspiracy
    • Embezzelment
    • False Pretense
    • Larceny
    • Murder (First Degree)
    • Robbery
    • Solicitation
  3. Intent - What 2 crimes is the Intent satisfied by proving Malice
    Only requires a reckless disregard of an obvious or high risk that harm will result.  Two crimes:

    • Murder (2nd Degree)
    • Arson
  4. Intent - What is considered that a D had General Intent to commit the crime
    General Intent is inferred from the fact the crime was committed.  It is simply an awareness of the factors of the crime not necessarily the specific intent to commit the crime.
  5. General Intent - What 4 crimes require only that D had General Intent -BRIK- (remember all other crimes require Specific Intent)
    • Battery
    • Rape
    • Kidnapping
    • False Imprisonment
  6. Transferred Intent - What 3 crimes will transferred intent satisfy the intent element MAB
    • D intends to kill A, but instead kills B. D's intent to kill A is transferred to B. Applies only to:
    • Murder
    • Battery
    • Arson
  7. Strict Liability Offenses - What 3 crimes require no Intent
    • Statutory Rape
    • Selling liquor to Minors
    • Bigamy
  8. Intent - What 4 ways does the Model Penal Code define intent
    • Purposely: Concious object
    • Knowingly: Knows his conduct will likely cause a particular result
    • Recklessly: Knows of a substantial and unjustifiable risk and conciously disregards it
    • Negligentce: More than tort negligence - must have been a substantial deviation from a standard of care
  9. Intent- When do you need to have the intent to commit the crime
    Need to have the intent at the time you commit the act
  10. Accomplice Liability - What 3 ways can you be liable as an accomplice (AAE)
    • Must have intent to further a crime by giving:
    • Aid
    • Advice
    • Encouragement
    • Mere knowledge not enough (like selling gas to an arson)
  11. Accomplice - What crimes can accomplices be liable for
    Responsible, to the same extent as the principle,  for the crime he aided and any other probable or foreseeable crimes
  12. Accomplice - What does an accomplice need to do to Withdraw from the crime if he ecncouraged/aided
    Encouragement: If D encouraged the crime, can withdraw by repudiating his encouragement.

    Aided: If D aided in the crime, he needs to attempt to neutralize the crime.  Can also call the police.
  13. Inchoate Crimes- What 3 crimes are considered Inchoate Crimes - what Overt Act do each require
    • Solicitation: No overt act required
    • Conspiracy: Any small act
    • Attempt: Substantial act, close to commiting crime
  14. Solicitation- What does a person do to be guilty of Solicitation
    Inciting, Counseling, Urging another to commit a crime, with the intent that they commit the crime.
  15. Conspiracy - What 4 things does D need to do to establish a conspiracy
    • An Agreement between 2 or more
    • Intent to enter into the Agreement
    • Intent to Achieve the objective
    • Overt Act
  16. Conspiracy - How does the Wharton Rule apply to conspiracy
    If two people are needed to commit the crime, there is no conspiracy (adultry).
  17. Conspiracy - What haapens to a co-conspirator if the other is Acquited of conspiracy
    If the other conspirators are acquitted you cannot be guilty of conspiracy.  But must be acquitted, not enough that they are just not charged.
  18. Conspiracy - How can a person withdraw from a conspiracy, once withdrawn, what can they still be convicted for
    Must perform an act that notifies all of the conspirators of your withdrawl.  If you did something to assist, you need to try and neutralize.

    You are still guilty of conspiracy if you withdrawl, but may be a defense to all of the crimes commited after.
  19. Inchoate Crime - What constitutes Attempt
    Failed crime that D had intent to commit. Overt act must be substantial.

    Specific intent is required for Attempt, even if the underlying crime is only general intent.
  20. Inchoate Crime - Attempt - What is and is not a defense to attempt
    • Legal Impossibility: Is a defense, if D intended a crime that was not really a crime
    • Abandonment: Not a Defense
    • Facual Impossibility: It is not a defense that D did not have the ability to finish the crime
  21. Insanity - What are the 4 different rules that courts can choose to determine insanity (MIDA)
    • M'Naghten Rule - Not know right from wrong
    • Irresistible Impulse Test - Impulse D cant resist
    • Durham (New Hampshire) Test - "But For"
    • A.L.I. or M.P.C. - M'Naughten + Irresistable Impulse
  22. Insanity - What 2 things does the M'Naghten Rule require to show insanity
    • Must have a mental disease that caused him either:
    • 1. Not know the act was wrong; or
    • 2. Not understand the nature and quality of his actions
  23. Insanity - How is the Irresistable Impulse Test defined
    Because of Mental Illness, unable to control his actions or conform his conduct to the law
  24. Insanity - What test does the Durham Rule apply to determine insanity
    Crime was a product of a mental illness.  The crime would not have occurred "But For" the illness
  25. Insanity -  What two elements does A.L.I. require for insanity
    • Because of disease or defect lacked substantial capacity to either:
    • 1. Appreciate the Criminality of his conduct; or
    • 2. Conform his conduct to requirements of the law
  26. Mental Condition During Proceedings - What 2 ways can a persons mental condition in trial violate his due process rights
    • Due Process requires that you can't have a trial if because of mental disease:
    • 1. Can't understand the proceedings; or
    • 2. Assist his attorney in a defense
  27. Voluntary Intoxication - What intent will/not voluntary intoxication negate
    • Is a defense for specific intent crimes
    • But not general intent or malice.
  28. Intent - What intents will/not Involuntary Intoxication negate
    Involuntary intoxication can be durress, unknowingly, or Dr. prescription.  It is treated the same as insanity and a complete defense.
  29. Infancy - What age(s) will children be/not liable
    • Common law:
    • Under 7: No liability
    • 7-14: Rebuttable presumption that child was unable to understand the gravity.

    Modernly, some states won't prosecute under 14, but can be found delinquent.
  30. Justification Defenses - What 7 instances can a person justify a crime such that he will not be guilty of the crime
    • Self Defense and Others
    • Defense of Property and Dwelling
    • Arrest
    • Resisting Arrest
    • Necessity
    • Public Policy
  31. Defense- When is Arrest a defense to a crime
    • Deadly force:
    • Police: To prevent the escape of a felon who poses a danger
    • Individual: Only if the person was actually found guilty.
  32. Defense - When can you use deadly force to Resist an Arrest
    • Can use non-deadly force if you know it is a cop.
    • Deadly force if you do not know its a cop
  33. Defense - What is considered Necessity in a criminal defense
    Choosing between the greater of harms. Cannot be a defense if you created the peril.
  34. Defense - When is Domestic Authority a defense to a crime
    Parents can discipline children for promoting the child's walefare
  35. Defense - What is Durress not a defense to, and when is it a good defense
    • Not a defense to murder.
    • Always involves a threat of another person.
    • If D reasonably believes he needs to commit a crime to protect himself or his family from serious injury.  At common law, threat to property was not enough, under MPC it is a defense.
  36. Defense - When is a Mistake of Fact a valid defense, what is the level of reasonableness required
    • Is relevant to show D lacked the state of mind:
    • Specific Intent: The mistake need not be reasonable
    • Other Intents: Needs to be reasonable
  37. Defense- What can Mistake of Law be used to show 
    Not a defense. But may be argued that her mistake of law negates her intent.
  38. Defense - When is Consent a good defense, what 3 elements does it require
    Consent is not usually a defense.  But May be a defense to a minor, non-dangerous crime: 1) voluntary; 2) legally capable to consent; 3) no fraud
  39. Defense - When is Entrapment a good defense
    • 1. Initiated by the police
    • 2. Must not have been pre-disposed to commit the crime
  40. Battery - What 3 Elements are required for criminal battery
    Needs general intent that results in bodily injury or offensive touching. 

    Simple battery is a misdomeanor.  Some states have aggrivated battery which is: with a weapon, against child or woman or cop, serious bodily injury
  41. Assult - What are the two ways and each of their elements that you can be guilty of Assault
    • Either:
    • Attempt to commit a battery; or
    • Intentional creation, other than words, of apprehension of imminent bodily harm
    • Aggrivated by statute if attempted rape or a weapon
  42. Crime - What is Mayhem at common law
    An aggrivated battery that led to dismemberment of a body part.
  43. Murder - What are the 4 ways that a sufficient to show the specific intent of murder "Malice afore Thought"
    • Unlawful killing with malice afore thought.  intent:
    • Intent to kill
    • Intent to inflict great bodily injury
    • Reckless indifference to a human life
    • Intent to commit a felony
  44. Voluntary Manslaughter - To reduce murder to Voluntary Manslaughter (heat of passion) what 4 elements are required
    • Would be murder "But For" adequate provocation (Heat of Passion):
    • Provocation that would arouse sudden intense passion in an ordinary person
    • D was in fact provoked
    • Not sufficient time to cool off
    • D did not cool off
  45. What 2 situations is an Imperfect Self Defense Killing able to reduce murder charges to manslaughter
    • Some states will reduce a murder to manslaughter if D's self defense fails:
    • D was at fault for starting the altercation
    • D unreasonably but honestly believed the necessity to use deadly force
  46. Involuntary Manslaughter - What 3 instances is a homicide considered manslaughter
    • Committed with criminal negligence; or
    • Durring commission of an unlawful act
    • General Intent so Alcohol is not a defense
  47. How do some statutes classify murder into 1st degree and 2nd degree
    In some jurisdictions, murder is 2nd degree.  It becomes 1st degree if it is pre-meditated, thought about it even for a minute.
  48. Felony Murder - When can a person be liable for murder while commiting a felony, when is he not guilty
    • Caused durring commission or attempt to commit a dangerous felony: burglary, arson, rape, sodomy.
    • A defense to the crime is also a defense to felony murder.
    • Felony must be distinct from the killing, so a battery that caused death cannot be felony murder
  49. False Imprisonment - What constitutes the false imprisonment of another
    Unlawful confinement without consent.  Must be substantial and not a reasonable way out.
  50. Kidnapping - What 2 things need to happen for a kidnapping, how is kidnapping aggrivated
    Unlawful confinement with movement or concealment of the person

    Aggrivated if for ransom, children, or to commit other crimes
  51. Rape - Without consent, what 4 ways can a D be guilty of rape
    • Intercourse without permission, slightest penetration. Lack of consent:
    • 1. By force
    • 2. Threat of immediate bodily harm
    • 3. Incapable of consenting, unconcious, intoxicated
    • 4. Fraud telling that the act is not intercourse
  52. Statutory Rape - What is required to commit statutory rape
    • For exam, its strict liability and mistake of age is not a defense. 
    • If exam does not give that option, then can choose that a mistake of age will prevent prosecution
  53. Property Offenses: What are the 7 crimes associated with personal property
    • Larceny
    • Embezzelment
    • False Pretenses
    • Larceny by Trick
    • Robbery
    • Extortion
    • Receipt of Stolen Goods
  54. Property Offense - What are the 6 elements required to commit Larceny
    • 1. Taking
    • 2. Carring Away
    • 3. Personal Property
    • 4. Of Another
    • 5. By trespass
    • 6. Intent to permenantly deprive - at time of taking
  55. Property Offense - When do you commit Larceny by a Continuing to keep property, when is it not Larceny
    If D wrongfully takes with intent to give back but then decides to keep it, then it becomes larceny.

    But, if you were given it lawfully but then decided not to give it back, it will not become larceny.
  56. Property Offense - What are the 5 elements of Embezzelment
    • 1. Fraudulent Intent
    • 2. Conversion (using property in way not authorized)
    • 3. of Personal Property
    • 4. of Another
    • 5. by Person in Lawful Possession
  57. Property Offense - When do D's actions make the act not Embezzelment
    It is not embezzelment if D intends to restore the exact property.  But if he intends to restore similar property, like money, it is still emezzelment.
  58. Property Offense - What are the 4 elements necessary to commit larceny by False Pretenses
    • 1. Obtaining Title
    • 2. to Personal Property of another
    • 3. by Intentional False Statement
    • 4. with Intent to Defraud
  59. Property Offense - What is the primary difference between Larceny by False Pretenses and Larceny by Trick
    False Pretenses you get title to the property.  Larceny by trick, you only acquire possession of the property.

    Example: Larceny by trick, you have someone lend you their car and you do not give it back.  Whereas False pretense you tell them you will pay $5,000 for the car and you get them to give you the title.
  60. Property Offenses - What are the 5 elements of Robbery
    • 1. Taking
    • 2. of Anothers Property
    • 3. From their person or prescence
    • 4. By force or threat of immediate harm
    • 5. Intent to permenantly deprive

    V must feel threatened, not just annoyed for burglary.  But if V doesnt feel threatend can still be attempted Robbery.
  61. Property Offenses - What actions constitue Extortion
    Obtains property by threat of future harm or exposure
  62. Property Offenses - What are the 5 elements necessary to be convicted of Receipt of stolen property 
    • 1. Receive possession or control
    • 2. of Stolen personal property
    • 3. Known to have been obtained in a criminal manner - at time he received it
    • 4. by Another person
    • 5. Intent to permenantly deprive
  63. Offenses Against Habitation - What 6 elements are required at common law to commit Burglary
    • 1. Breaking - force, fraud, intimidation
    • 2. Entry
    • 3. of Dwelling - Sleeping purposes
    • 4. of Another
    • 5. At Night time
    • 6. Intent to commit a felony- at time of breaking
  64. Offenses Against Habitation - What are the 4 elements required at common law to be guilty of Arson
    • 1. Malicious (intentional or reckless disregard)
    • 2. Burning (some charring, not just smoke)
    • 3. of Dwelling - other structures
    • 4. of Another