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84 Cards in this Set

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Essential elements of a crime
(1) Actus Reus
(2) mens Rea
(3) caustion
(4) concurrence
liability for the conduct of others
accomplice liability
inchoate offense
solicitation, conspiracy, attempt
Defenses
(1) insanity
(2) voluntary intoxication
(3) infancy
(4) Mistake
(5) self defense
(6) Necessity
(7) Duress
(8) entrapment
Jurisdiction
A crime may be prosecuted where: (a) an act that was part of hte crime took place, or (b) the result took place
Burden of proof
the prosecution must prove each element of the crime beyond a reasaonble doubt.
Burden on proof for defesnes
(NY)
(1) Defenses- the prosecution must disprove beyond a reasoanble doubt.
(2) Affirmative defenses- the D must prove by a preponderance of the evidence.
Classification of crimes
Felony- a crime that is punishable by more than a year in prison.
Misdemeanor- a crime for which the maximum punishment may not exceed 1 yr.
Actus Reus
Can be either "commissions" or "omissions".
(1) Commissions- All bodily movements are physical acts that can be the basis for criminal liability, provided they are voluntary. Involuntary movements that are not considered criminal "acts": (a) one that is not a product of the actors volition- being pushed, (b) sleep walking or otherwise unconscious conduct, (c) a reflex or convultion.
(2) Omissions- a failure to act can also be the basis for criminanl liability, provided: (a) there is a legal duty to act- (i) by statute, (ii) by contract, (iii) by a status relationship: parent-child, spouse-spouse, (iv) by voluntary assumption of care- starts rescuing, must continue, especially if it stopped others from helping, (v) by creation of the peril.(2) knowledge of the facts giving rise to the duty, and (3) the ability to help.
Mens Rea
Common law
Specific intent and defenses.
(1) specific intent- crime requires not only the desire to do the act, but the desire to achieve a specific result. (i) assault, (ii) first degree premeditated murder, (iii) larceny, (iv) embezzlement, (v) false pretenses, (vi) robbery, (vii) forgery, (viii) burglary, (ix) solicitation, (x) conspiracy, (xi) attempt.
Defenses: (a) voluntary intoxication, (b) unreasoanble mistake of fact.
Mens Reas common law
(1) specific intent
(2) malice
(3) general intent
(4) strict liability
Common law. Mens rea
Malice and cl crimes
when a D acts intentionally, or with reckless disregard of an obvious or known risk.
crimes: (1) murder, (2) arson
Common law, mens rea.
General intent and crimes
The D need only be generally aware of the factors constituting the crime, he need not intend a specific result. - jury can usually infer simply from the doing of the specific act.
Crimes: (1) battery, (2) forcible rape, (3) false imprisonment, (4) kidnapping
Common law. Mens rea

Strict Liability and crimes
when the crime requires simply doing the act; no mental state is needed.
Crimes: (1) public welfare offenses- regulatory or morality offenses that typically carry smal penalities- selling alcohol to minor, selling contaminated food, corrupting the morals of a minor.
(2) statutory rape- having sex with someone i under the age of consent.
NY Mental states
(1) Intent- MPC "Purpose"
(2) knowledge
(3) recklessness
(4) neglient
(5) strict liability
NY mens rea
Intent
When it is the D's conscious desitre to accomplish a particualr result. (what he wants to do).
NY Mens rea

Knowledge
(1) When the D is aware of what he is doing.
(2) with respect to a result, when the D is aware that it is practically certian that his conduct will cause that result.
NY mens rea

Recklessness
when the D is aware of a substantial and unjustifable risk and consciously disregards that risk.
NY mens rea

Negligence
When the D shoudl have been aware of a substantial and unjustifable risk.
NY Mens rea

Strict liabiltiy
no mental state required.
Elements of a crime-

Causation
(1) acutal (but for) causation. A D is the acutal cause if the bad result would not have happened but for the D's conduct. EXCEPT- an accerlerating cause is an actual cause.
(2) proximate (or legal) cause- A D is a proximate casue if the bad act is a natural and probable consequence of the D's condcut. (a) intervening causes- D will not be considered a proximate cause if an unforeseeable interveneing event causes the bad result, (b) eggshell victims- D will be consdiered a proximate cause even if the victims preexisting weakerness contributed to the bad result.
*need both types of causation for liability.
Elements of the crime

Concurrence
The D must have the required mental state at the same time as he engages in the culpable act.
Issues arise most frequently with: (a) larceny and (b) burglary.
Assault and battery
Common law
CL: Assault: (A) the unlawful (B) application of force to another, (C) resulting in either: (1) bodily injury, (2) offensive touching. (D) mental state is general intent.
CL Battery: (a) as an attempted battery- swing and miss, (b) (1) the intentional creation (2) other than by mere words, (3) of a reasonable frea in the mind of the victim, (4) of immient bodily harm. -fake punch- (c) mental state is specifc itnetion for assualt.
Assault in NY
NY- Assault: (1) intentaionally causing, (2) physical injury, (3) to antoher person.

1st: 2nd degree plus a weapon.
2nd: intentionally causing serious physical injury.
3rd: intentionally causing non-serious injury.
-they all require injury, there is no offensive touching assault. There is no battery.
Attempted assualt requires the intent to assault, creating a reasoanble apprehension is called menacing.
NY- guess the degree
aggravating factorsq
(1) weapons
(2) injury- (a) physical injury- substantial pain, (b) serious physical injury- permanent/life threatening injury.
(3) quantity- money/drugs.
Homicide-
Year and a day
CL: Death must occur within a year and a day of the homicidal act.
NY: death may occur at any time.
CL Murder
CL Murder:
(1) causing the death, (2) of another person, (3) with malice aforethought.
malice aforethought- (A) Intent to kill, (B) intent to inflict serious bodily injury, (C) extreme recklessness, meaning reckless indifference to human life, or having a depraved and maligant heart. (D) though the intentional commission of a dangerous felony
Intent to kill murder: the intentional use of a deadly weapon creates an inference of an intent to kill
Transferred intent
If a D intends to harm one victim, but accidentally harms a different victim instead, the defendants intent will transfer from the intended victim to the action victim. EXCEPT: transferred intent does not apply to attempts, only to crimes with completed harms.
MPC/ Majority rule
Murder 1
(A) Any killing with (1) premeditation and (2) deliberation.
(B) Felony murder- if felonies are enumerated.
Murder 1 NY
(a) An intent to kill, and (b) D is more than 18 years old, (c) at least one aggravating factor: (i) victim is a law enforcement officer engaged in official duties at the time of killing, (ii) D committed a murder for hire, (iii) felony murder where victim was intentionally killed, (iv) killing for the purpose of witness intimidation, (v) there was more than 1 victim intentionally killed in the same criminal transaction.
Murder 2 in NY
(a) intentional killing that does not qualify for first degree.
(b) highly reckless killing demonstrating a depraved indifference to human life by engaging in conduct that creates a grave risk of death, generally involving more than one victim. (if only 1 generally need torture).
(c) felony murder where victim is not a co-felon and is killed intentionally.
Felony murder
Any killing caused during the commission of or attempt to commit a felony.
(1) D must be guilty of the underlying felony.
**NY- D need not be convicted of the underlying felony, as long as there is sufficient evidence that he committed it.
(2) the felony must be inherently dangerous- (NY enumerates BRAKES) (i) Burglary, (ii) Robbery, (iii) Arson, (iv) Kidnapping, (v) escape, (vi) Sexual assualt.
(3) the felony must be seperate from the killing itself (assualt and battery cant be underlying crimes).
(4) the killing must take place during the felony or the immediate flight from the felony. Once the felon reaches a place of temporary saftey, the felony ends.
(5) the death must be foreseeable.
(6) the victim must not be a co-felon.
(3) vicarious liability- if one of the co-felons causes the death, all of the other co-felons are guilty of felony murder. This applies even if the actual killing was committed by a third person (cops), so long as one of the felons is a proximate cause of the death.
**NY non-slayer defense: Affirmative defense (1) the D did not kill the victim, (2) the D did not have a deadly weapon, (3) the D had no reason to believe that his co-felons had deadly weapons, and (4) the D had no reason to believe that his co-felons inteded to do anything that was likely to result in death.
Voluntary manslaughter
CL:
(1) an intentional killing, (2) committed in the heat of passion, (3) after adequate provaction.
Adequate (objectively) provaction- (a) it woudl arouse a suddent intense passion n the mind of a reasonable person. Ex: (i) serious assualt/battery, (ii) presently witnessed adultary, (iii) unlawful restraint. Words alone are inadequate. (b) the D was acutally provoked, (c) D did not have time to cool off, (d) D did not actually cool off between provation and killing.
NY: EED.
An intentional killing committed under the influence of a reasaonble and extreme emotional distrubance. **This is an affirmative defense to Murder 2- must be proven by a preponderance of the evidence.
CL involuntary manslaughter
(1) a killing committed with criminal negligence, or
(2) a killing that was committed duringa crime that does not qualify for felony murder (misdemeanor manslaughter)
NY manslaughter
1st degree: (A) EED, or (B) intent to cause serious physical injury.
2nd degree: (A) recklessness.
NY Criminally negligent homicide
killing with criminal negligence.
NY Aggravated homicide.
(1) when the victim of a homicide is a police officer killied in the line of duty. or
(2) When the D, over the age of 18, causes the death of a child under 14 in an especially cruel and wanton manner.
False imprisonment
CL: (1) the unlawful, (2) confinement of a person, (3) without his consent, (4) general intent crime.
NY- "unlawful" imprisonment
2nd degree: (1) unlawfully (2) restraining someone, (3) without their consent, (4)with knowlege that the restriction is is unlawful.
1st Degree: second plus a risk of serious phyiscal injury.
Kidnapping
CL:
(1) false imprisonment, (2) that involves either moving the victim or concealing the victim in a secret place.
*NY
2nd degree: abducting someone.
1st degree: second degree plus: (a) abduction for ransom, (b) restraint of the victim for more than 12 hours with the intent to rape, injure, or rob the victim, or (c) death of the victim.
Rape
(1) sexual intercourse, (2) without the victims consent, (3) accomplished by: (a) force, (b) threat of force, (c) when the victim is unconscious. (4) genearl intent.
Statutory rape: (1) sexual intercourse, (2) with someone under the age of consent.
(A) Majority rule- strict liability.
(B) MPC/Minority rule: a reasaonble mistake of age is a defense.
**NY- age of consent is 17
Larceny
"Theives picked charlies pocket insdie the airport terminal"
(1)Trespassory Taking and Carrying away the Tangible Personal propety of Another with the Intent to Permanently retain the property.
Trespassory- wrongful/unlawful
Taking and carrying away- property must be moved.
Tangilbe personal property- did someone else have lawful custody at the time of the taking? (If D has lawful custody- cannot be guilty, if he doesnt, can be guilty, even if he owned it).
with the intent to permanently retain the property- if D intends to give the property back, the taking is not a larceny.
(2) Erroneous takings- a taking under a claim of right is never larceny, even if the D erroneously bleives the property is his.
(3) continuing trespass- if a D wrongfully takes property, but wihtout the intent to steal, he will not be guilty of larceny. But if the D later forms the intent to steal, the inital tresspassory taking is considered to have contineud and he will be guilty of larceny.
Embezzlement
(1) Conversion of the personal property of anotehr by a person already in lawful possession of that property, with the intent to defraud.
(2) specific intent to defraud.

Possession- more than mere custody, requires the authority to exercise some discretion over it
False pretenses
obtaining title to the personal property of another by an intentional false statement, with the intent to defraud.

*larcency they get only custody, not title/owernship

false statement- must be of a past or present event, not a future promise.
Larceny by trick
custody (not title) as a result of the intentional false statement
Robbery
(1) A larceny
(2) from anothers person or presence,
(3) by force or threat of immediate injury.
(4) specific intent to steal
presence- some location reasaonbly clsoe to the victim. (other rooms in the house)
force- any amount sufficent to overcome resistance- (i) snatching a chain off neck, (ii) snatching a handbag. but NOT pickpocketing.
threats- need immediate injury. If its a threat of future harm, its extortion/blackmail.
NY Larcency
Any crime that would be larceny, embezzlement, false pretenses, or larency by trick.

1st degree: more than $1M.
2nd degree: mor than $50K.
3rd degree: more than $3k.
4th degree: more than $1K.
petit: lesser amounts.
NY robbery
3rd: forcible stealing.
2nd: forcible stealing and: (a) D is aided by someone actually present, (b) victim is injured, or (c) a car is stolen.
1st: forcible stealing plus: (a) victim is seriously injured,or (b) the D uses or displays a firearm.
affirmative defense- if the D can prove the gun was unloaded or inoperable, the crime is reduced to robbery 2.
possession offenses
(1) control for a period of time long enough to have an (2) opportunity to terminate possession. (a) Constructive possession- contraband need not be in D's actual possession, so long as it is close enough for him to exercise dominion and control over it.
(3) knowledge of the possession and the character of the item possessed.
NY:
drugs- criminal possession of a controled substance.
weapons- criminal possession of a weapon (must be loaded and operable). (a) the presence of a gun in a vehicle creates a presumption that all occupants of the vehicle possessed the gun.
stolen property- criminal possession of stolen property
CL Burglary
breaking and entering the dwelling of another at night with the intent to commit a felony inside.
breaking- creating or enlarging an opening by at least minimal force. (a) can be constructive breaking- entry through fraud, threats, intimidation.
entry- some part of D's body must enter the building
dwelling- a structure where someone regularly sleeps
of another- cant burg your own home
intent to commit felony- specific intent crime (rape, rob, steal, assult, kill).
MPC- many states dont require breaking, or at night, or dwelling
NY Burglary
3rd deg: (1) entering or remaining, (2) unlawfully, (3) in a building, (4) with the intent to commit a crime inside.
2nd: burg 3 plus: (a) building is a dwelling, (b) non-participant is injured, or (c) d carries weapon.
1st: D knows he is burglarizing a dwelling plus: (a) non-participant is injured, or (b) D carries a weapon.
accomplice liability definitions
principal- person who commits the crime.
accomplice- aids or encourages the principal, with the intent that the crime be committed.
**NY- accomplice need not specifically intend that the crime be committed, it is enough if the accomplice specifically intends to aid the principals conduct, and otherwise has the mental state required for the principals crime. (can be an accomplice to neg or reck).
Scope of accomplice liablity
accomplice is guilty of: (1) all crimes he aided or encouraged (just as though he did it), and (2) all other foreseeable crimes committed along with the aided crime.
When a person is NOT an accomplcie
(1) Mere presence at the scene of the crime does not make someone an accomplice; he or she must activley aid or encourage the principal.
(2) mere knowledge of the crime does not make someone an accomplice, must intend to aid or encourage. ***NY- mere knowlege can make someone guilty of criminal facilitation.
(3) victims of crime cannot be accomplices, since they are consdiered members of a protected class.
Accomplice liability

Withdrawal
(1) an accomplcie who only encouraged the principal may withdraw simpy by discouraging the crime (before its committed)
(2) An accomplice ho actually helped the principal must either neutralize the assitance or prevent the crime from happening (including notify authority)
**NY "renunication"
(1) accomplice must make a substantial effort to prevent the commission of a crime, (2) renunciation is an affirmative defense.
Accomplice liability

Accessory after the fact
D must (1) help a principal who has committed a felony, (2) with knowlege that the crime has been committed, and (3) with the intent to help the principal avoid arrest or conviction.
**other states- obstruction of justice, hindering a fugitive, ***NY- hindering prosecution.
Inchocate offenses
(1) attempt, (2) conspiracy, (3) solicitation.
Solicitation
asking someone to commit a crime, with the intent that the crime be committed.
mental state: specific intent
The crime is in the asking, it doesnt matter if the person agreed or committed the crime.
Conspiracy
(1) An agreement between two or more people to commit a crime, plus an overt act in furtherance of the crime.
(2) overt act: any act, even if merely preparatory. (CL typically did not require).
(3) Mental state: specific intent.
Completion is unncessary- the essence of the crime is the agreement.
Can a conspiracy have only one person
CL: there must be at least 2 guilty minds, both of whom acutally agree to commplish the conspiracy's objectives. If the other parites are aquitted, the last remaining defendant cannot be convicted. ***NY/MPC- Unilateral approach- a D may be guilty of conspiracy even if the toher parties are aquitted or were just pretending to agree.
Conspiracy

The Wharton Rule
When 2 or more people are necessary for the comission of the substantive offense, there is no more conspiracy unless more parties participate in the agreement than are necessary for the crime. **NY uses this rule.
Conspiracy

Pinkerton (vicarious) liability
CL: in additon to conspiracy, a D will be liable for other crimes committed by his co-conspirators, so long as those crimes: (A) were in futherance of the conspiracy's objective, and (B) were foreseeable.
**NY- No vicarious liability for ne who merely conspires and does not particpate in a crime committed by a co-consipirator.
Conspiracy

Impossibility
Impossibility is never a defense to a charge of conspiracy.
Attempt
(1) An overt act BEYOND mere preperation
(a) CL and NY: condcut that gets very close to the comission of the crime (NY calls it "dangerous proximity").
(b) MPC/Majority- condcut that consistutes a substantial step towards the commission of a crime, provided that condcut strongly corroborates the actors criminal purpose.
(2) Specific intent to commit the underlying crime. (a) you cannot attempt unintentional crimes, since you cannot intend to do something unintentional ; there is no attempt for (i) reckless crimes, (ii) negligence crimes, (iii) felony murder.
Attempt

Impossibility
(1) factual- it is impossible to complete the crime because of some physical or factual condition unknown to the D. This is never a defense to attempt.
(2) Legal impossibility- (a) CL: it is a defense to attempt. (b) NY- not a defense to attempt.
Inchoate Offenses

Withdrawal
(1) CL: Withdrawal is not a defense. EXCEPT: once D withdraws from a CONSPIRACY, he will not longer be vicariously liable for crimes committed by his co-conspirators after her left the conspiracy. However, D is still guilty of conspiracy and of all foreseeable crimes committed by his co-conspirators before he left the conspiracy.
(2) **NY/MPC- Withdrawal can be a defense, but only if the D (a) compeltely and voluntarily renoounces the solicitation, conspiracy, or attempt, and (b) the renunciation is based on a change of heart, not a fear of failing or being caught.
Inchoate offenses

Merger
(1) solicitation and attempt merge with the completed crimes. **NY- solicitation does not merge.
(2) conspiracy does not merge.
Defenses

Insanity- CL
(1) D must have a mental disease/defect.
(2) tests: (a) M'Naghten (majority)- not guilty if either: (i) the D did not know that his act was wrong, or (ii) did not understand the nature of his act.
(b) Irresistable impulse test- If D either: (i) was unable to control his actions, or (ii) was unable to conform his conduct to the law.
(c) The MPC test (minority): if the D lacked the substantial capacity ot either (i) appreciate the criminality of his conduct, or (ii) conform his conduct to the requirements of the law.
Defenses-

Insanity- NY
D must prove he or she lacked the substantial capacity to either (a) understand the nature of his act, or (b) appreciate the wrongfulness of his conduct.
Defenses-

Intoxication
CL: Can be a defense to specific intent crimes only (not malice, general intent, or strict liability). Requires such severe prostration of the faculites that the D cannot form the requisite specific intent.
**NY- (1) can be a defense to intent crimes and knowledge crimes, if the intoxication prevents the D from fromign the required state of mind.
Defenses

Insanity
CL: (a) if under 7, prosecution not allowed, (b) if under 14, rebuttable presumption against prosecution, (c) if 14+ prosecution allowed.
**NY: (A) if under 13, prosecution as an adult not allowed, rather juvenile delinquent in family court. (B) If 13, can be prosecuted as adult for murder 2. (C) if 14/15- proesecute as adult for serious crimes against person/property, (D) if 16 + prosecution as adult allowed.
Defenses

Mistake of fact- CL
(1) Mistake of fact-
(a) specific intent- any mistake, even unreasonable, is a defense.
(b) malice or general intent- only a reasonable mistake is a defense.
(c) strict liability- mistake is never a defense.
((( reasoanble mistake is defense to any crime, unreasoanble mistake only specific intent)))
Defenses

Mistake of fact- NY
mistake of fact is a defense if it negates the required mental state.
(a) for purpose, knowledge, or recklessness- any mistake, even unreasaonble, is usually a defense.
(b) for negligence, only a reasonable mistake will be a defense.
(c) for strict liability crimes, mistake of fact will never be a defense, no matter how reasoanble it is.
Defenses

Mistake of law
Generally, not a defense.
EXCEPT: if the statute specifically makes knowledge fo the law an element of the crime.
Defenses

Self defense- (non deadly force)
A D may use nondeadly force in self-defense it if is: (1) reasonably necessary, (2) to protect against an immediate use, (3) of unlawful force against himself.
Defenses

Self-defense (deadly force)
A D may use deadly force in self defense, if he is facing an imminent threat of death or serious bodily injury.
(A) initial aggressor rule- A D may not use deadly force if he is the initial aggressor, except: (i) if he withdraws from the fight and communicates that withdrawal to the other person, or (ii) the victim suddenly escalates the nondeadly fight into a deadly one. **NY- initial aggressor must withdraw before deadly force, even if it suddenly escalates.
(B) retreat rule- (i) majoirty- no retreat required, (ii) NY/minority- retreat is required unless (1) D cannot retreat in complete saftey, or (2) D is in his home/castle.
Self defense and mistake
(1) resonable mistake- complete defense.
(2) unreasonable mistake- (a) CL/**NY- no defense at all. (b) Minority/MPC- mitigates liability. "imperfect self defense"- an unreasaonble beleif in the need to use deadly force in self defense will mitigate murder to voluntary manslaughter.
Use of force to prevent a crime
(1) nondeadly force may be used to prevent any crime.
(2) Deadly force may only be used to prevent a felony risking human life.
Use of force to defend other
A D may use deadly force to protect others just the same as he could use it to defend himself.
Use of force to defend property
Deadly force may not be used to defend property. However, deadly force may be used to prevent a burglary if the defendant is inside his/her home.
use of force in resisting arrest
If the D knows or reasoanbly should know that the person performing the arrest is a police officer-
(1) majority rule- if the arrest is unlawful the the D may use non-deadly force to resist the arresting officer.
(2) **NY- force may not be used to resist arrest, even an unlawful one, unless the arresting officer uses excessive force.
Use of deadly force by law enforcement
An officer my use deadly force only when doing so is reasonable under the circumstances.
Defense

necessity/choice of evils
CL: it is a defense to criminal conduct if the D reasaonbly beleived that his conduct was necessary to prevent a greater harm. EXCEPT cannot be a defense to homicide.
(2) **NY-(a) the harm to be avoided must be greater than the harm caused. Can be a defense to homicide.
Defense

Duress
it is a defense if the D was forced to commit a crime because of a threat, from another person, of imminent death, or serious bodily harm to himself or a close family member. EXCEPT: cannot be a defense to homicide.

**NY- duress can be a defense to homicide.
Defense

Entrapment
If the government unfairly tempted the D to commit a crime.
(a) the criminal design originated with the governemnt, and (b) the D was not predisposed to commit the crime.