CRIMINAL LAW Flashcards page 1
CRIMES
Types & Elements
Types of crimes:
Felonies - punishable by death or imprisonment for
more than one year.
Misdemeanors - most other crimes other than felonies.
Common Elements:
Actus Reus (A.R.)
Mens Rea (M.R.)
Concurrence
Causation
ACTUS REUS
Includes: voluntary acts or the results achieved.
Excludes: mere thoughts, involuntary acts (sleepwalking), and
status or condition (addiction).
Application:
Possession Crimes: require dominion, control, and
knowledge of possession of the item. Knowledge of
illegality not required.
Omissions (failure to act): if duty to act is imposed by
statute, court order, close blood relationship, contract,
creating victim’s peril, or undertaking rescue.
Vicarious liability: eliminates requirement that
defendant act personally. Usually applied to employers,
principals, and car owners.
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MENS REA
Defendant’s state of mind which concurs with his
actus reus to establish criminal conduct.
Degrees of Mens Rea:
1. Specific Intent (purposeful): intent to achieve a
particular result. Specific intent crimes include:
degree murder, voluntary manslaughter,
burglary, inchoate crimes, and theft offenses.
1st
2. General Intent (knowing): mere intention to
commit the act.
3. Recklessness: awareness and disregard of a
known, substantial and unjustifiable risk.
4. Negligence: actor should have known of the
substantial and unjustifiable risk of the activity
engaged in.
TRANSFERRED INTENT
Transferred intent is a legal fiction which holds a
defendant liable for intending to cause harm to a particular person or property, but
mistakenly harming some other person or property.
Also applicable when an intended harm occurs in an
unintended way.
Only applies to those crimes where a particular result is an
element of the crime. Does not apply to criminal attempts.
When defendant’s intent is “transferred” from the intended to
the actual victim, the proximate cause between the act and the
result is established.
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STRICT LIABILITY CRIMES
reference to mens rea.
Strict liability crimes are crimes defined without
Culpability rests solely on committing the prohibited
act.
Statutory creations, usually applied in areas of:
public morals
health and safety.
Mistake of law or fact is irrelevant to strict liability crimes.
Examples: statutory rape, child pornography, and food
protection statutes and ordinances. Felony murder could be
considered a form of strict liability.
CONCURRENCE
Temporal concurrence between the actus reus and
mens rea is usually required. Mens rea must coincide in such a
way as to cause or actuate the actus reus.
With a series of acts resulting in the prohibited conduct, courts
often view it as one continuous transaction for purposes of
concurrence.
The concurrence requirement operates to insulate a defendant
from greater liability when the actual harm caused is far worse
than defendant’s intent.
The “egg shell” theory of torts is inapplicable to crimes
(except in homicide cases).
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CRIMINAL CAUSATION
Required for all crimes except inchoate crimes.
Factual & Proximate Cause Defendant’s conduct (actus reus) must cause the prohibited
result. Both cause-in-fact and legal cause must be shown.
Factual Cause (cause-in-fact): there are 2 kinds
1. “But for” D’s conduct, the harmful result would
not have occurred.
2. Substantial factor - D’s conduct was a
substantial factor in the result, although another’s
conduct was sufficient by itself to bring about the
result.
Proximate Cause (legal cause): determined by policy
considerations. Connection between conduct and harmful result
cannot be too remote. Year-and-a-day rule applied to
homicides (3 years in California).
INTERVENING FACTORS
Intervening factors can break the chain of causation,
depending upon how they are classified.
Independent (coincidental), unforeseeable intervention
breaks the chain of causation.
Dependent, foreseeable interventions will not be found
to break the chain of causation.
To break causation, they must be unusual, unforeseeable, and
the injury suffered must be different from that intended by
defendant.
Failure of a third party to intervene or resue the victim never
breaks the causation chain.
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EXCUSES TO CRIMES
Defenses to Crimes include excuses and justifications
Excuses to crimes include:
1. Mental Incapacity
(insanity and diminished capacity)
2. Infancy
3. Intoxication
4. Mistake
5. Duress or Coercion
6. Consent
7. Entrapment
INSANITY
A legal conclusion bases upon medical evidence which
overcomes the presumption of D’s competence and responsibility. Some states place the
burden of proof on the defendant.
M’Naghten Rule (right/wrong test): D had a mental disease
or defect such that he did not understand the “nature and
quality” of his act, or did not know that the act was wrong.
Used by half the states. Psychopathic personality doesn’t count
because it’s not considered a mental disease.
Irresistible Impulse: factors which lead to a “substantial
impairment” of D’s ability to control himself.
Durham Rule: unlawful act was the “product” of mental
disease or defect. Rarely used today.
ALI/MPC test: if “as a result of mental disease or defect, D
lacks substantial capacity either to appreciate criminality of
his conduct or to conform his conduct to the requirement of
law”. Not included is “merely repeated anti-social conduct.
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INSANITY DISTINGUISHED
distinguished from:
Insanity as a defense to a crime should be
Competency to stand trial: measured by D’s ability to
understand the proceedings against him and assist counsel in
his defense.
Commitment: following acquittal because of a finding of not
guilty by reason of insanity.
Insanity at time of execution: no state permits execution of
insane persons.
Diminished Capacity: a defense of mental impairment not
rising to the level of insanity. Includes voluntary intoxication.
Negates requirement of specific intent, premeditation, and
malice aforethought. Reduces culpability to a less severe
offense. Abolished in Ca.
INFANCY
Criminal capacity of children under common law is:
Under 7: conclusive presumption against criminal
capacity.
7-14: rebuttable presumption against capacity
overcome by a showing of malice of awareness of the
wrongful conduct.
Over 14: treated the same as adults.
Modern statutes fix varying ages as cut-offs between the adult
criminal court system and the juvenile court system.
Note: see Criminal Procedure card #37-CrP for rights of
juvenile defendants.
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INTOXICATION
INTOXICATION
Voluntary:
Not per se a defense to a criminal charge. Rather,
evidence of voluntary intoxication is admissible to show
that D did not form specific intent, when specific
intent is the requisite mens rea for the charged crime.
Involuntary:
If impairment is only slight, can be used to negate
formation of specific intent.
If impairment is great and approximates temporary
insanity, involuntary intoxication is a complete
defense, regardless of the mens rea required.
MISTAKE
Of Law and Of Fact
the
_______________
IMPOSSIBILITY
to be.
Mistake of Fact: an honest and reasonable
mistake of fact may excuse conduct provided
conduct would not have been illegal or morally
wrongful under the facts as D supposed them
Mistake of Law: mistake or ignorance of law, even if
reasonable, will not excuse an otherwise criminal act
or omission unless it is traceable to information from a
high level of the executive, legislative, or judicial
branches.
Impossibility: (see also card #24 -attempt)
Legal impossibility is always a defense.
Factual impossibility is no defense in cases
where, had the facts been as the defendant
believed them to be, there would have been a
crime. However, defendant may be guilty of
attempt.
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DURESS or COERCION
Acting under an imminent threat from another to
inflict death or serious bodily harm is an excuse.
Not available where the coerced act involves serious violence,
rape, or criminal homicide.
With homicide, duress may negate premeditation and
deliberation, mitigating the crime.
Never held to excuse intentional homicide, but Model Penal
Code urges adoption of duress as an excuse.
CONSENT
as an element (e.g. rape).
An excuse for crimes which require lack of consent
Excuses acts which do not entail serious injury to the victim
(battery, but not mayhem or homicide).
Not effective where obtained by force, threat of immediate
injury, or fraud
ENTRAPMENT
criminal activity.
Argues that a law enforcement agent instigated the
Not applicable to crimes involving serious physical
injury.
Federal courts and most states use a subjective
“predisposition” test, voiding the defense if predisposition can be shown.
Some states use an objective test, focusing on the
police
conduct to see if an innocent person would have been induced
to commit the crime.
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JUSTIFICATIONS
1. Public and Domestic Authority
2. Self-defense
3. Defense of Others or of Property
4. Crime Prevention
5. Necessity
PUBLIC &
DOMESTIC AUTHORITY
Public Authority:
state authorization to do various acts, such as
execution, war, law enforcement.
Domestic Authority:
parents and school officials may inflict reasonable
non-deadly force upon children to achieve discipline.
SELF-DEFENSE
Non-deadly force is permitted when reasonably
necessary to prevent an imminent physical attack.
Aggressors forfeit this defense unless and until:
1. victim responds to non-deadly attack with
deadly force, or
2. aggressors withdraw from the encounter and
communicate the withdrawal to the adversary.
Deadly force is permitted only where it reasonably appears
necessary to prevent death or serious injury, or to prevent the
commission of a violent felony or escape of a violent felon.
Deadly force is permitted if suspect inflicted or threatened to
inflict serious physical harm (Tenn. v. Garner). The imperfect
defense of an honest but unreasonable belief in the need for
deadly force usually results in a voluntary manslaughter
conviction.
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DEFENSE OF OTHERS
DEFENSE OF PROPERTY
Defense of Others:
May use a reasonable amount of non-deadly or
deadly force to defend a victim against physical attack,
provided that the victim would be so privileged to act.
A good faith reasonable mistake of fact is a defense for
an intervenor who harms an innocent party.
Defense of Property:
Reasonable, non-deadly force to prevent imminent
trespass to real or personal property is permitted.
Deadly force is only permitted when a dwelling is
involved.
CRIME PREVENTION
NECESSITY
Crime Prevention
An excuse when non-deadly force is used which
reasonably appears necessary to prevent a misdemeanor
or felony constituting breach of the peace. Deadly force
can be used to prevent a violent felony.
Necessity
Invasion of the real or personal property rights of
another is permitted where physical forces of nature
make it necessary in order to avoid an even greater
evil. Necessity is never an excuse for homicide.
CRIMINAL LAW Flashcards page 11
INCHOATE CRIMES
Solicitation
Attempt
Conspiracy
SOLICITATION
another to commit a crime.
Solicitation is enticing, advising, or encouraging
AR - instigation, not mere encouragement
MR - specific intent to solicit the commission of a
crime
Vicarious liability applies. Solicitor will be an accomplice if an
attempt or the crime itself occurred.
Merges with accomplice or conspirator liability if in fact the
person solicited commits the crime pursuant to the agreement
with the solicitor.
Withdrawal is ineffective as to the solicitation offense, but
may negate accomplice liability.
CRIMINAL LAW Flashcards page 12
ATTEMPT
Attempt is a substantial but unsuccessful effort,
coupled with specific intent, to commit a crime.
Merges into the completed substantive crime. Must find a
substantial overt act.
Impossibility:
1. factual impossibility is no defense.
2. legal impossibility may be a defense in some
jurisdictions to attempt crimes.
Note on impossibility: M.P.C. and many states (including Ca.)
Make no distinction between legal and factual impossibility.
Neither is a defense to attempt where, had the facts been as the
defendant believed them to be, there would have been a crime
(applies also to conspiracy).
Abandonment: a defense only if done far enough from crime
completion, not in fear of immediate apprehension.
CONSPIRACY
An agreement between two or more persons to
commit an unlawful act (or of a lawful act in an unlawful manner).
AR - an agreement (even if informal and without
knowledge of all parties involved). Most states require
an overt act (less than required for attempt) in
furtherance of the conspiracy in addition to initial act of
agreeing.
MR - intent to agree, plus the specific intent to
achieve the unlawful result.
A separate offense that does not merge with completed
substantive crime. Separate prosecution & punishment.
Wharton’s Rule provides that when a crime necessarily
involves two parties (adultery, incest, bigamy, dueling), only
substantive offense (not conspiracy) can be charged unless
there are more than 2 participants.
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CONSPIRACY
Vicarious Liability
Vicarious liability for criminal acts committed by coconspirators is an important aspect of conspiracy.
The ‘46 Pinkerton case holds that all co-conspirators are liable
for all substantive crimes committed by any one co-conspirator
“in furtherance” of the conspiracy, but the crimes must be
“reasonably foreseeable” as a “natural consequence” of the
agreement.
Under the M.P.C., renunciation of the conspiracy is a possible
defense, but only if conspiracy is actually thwarted.
Most states do not recognize the abandonment defense, but
allow withdrawal to start the statute of limitations running.
NON-HOMICIDE CRIMES
1. Assault
2. Battery
3. Mayhem
4. Rape
5. Statutory Rape
6. False Imprisonment
7. Kidnapping
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ASSAULT
An attempted battery, or intentionally causing
apprehension of immediate battery.
AR - a menacing act or gesture (not merely a verbal
threat)
MR - specific intent to do an act which would
amount to battery or specific intent to
produce fear of an immediate battery.
Can escalate to a felony by “aggravated assault” statutes
requiring either the use of weapons or the intent to commit
other specified felonies like rape or robbery.
Note re CA.: simple assault, assault with a deadly weapon, and
assault with a deadly weapon against a police officer are
general intent crimes (by case law), therefore, voluntary
intoxication is not a defense.
BATTERY
of another.
The intentional bodily injury or offensive touching
AR - the slightest touching, even if indirect, of the
person or things about the person.
MR - general intent.
Note: many jurisdictions permit recklessness or negligence to
suffice as mens rea.
MAYHEM
Maiming or disfiguring another, with malice.
AR - causing bodily injury which permanently
maims or disfigures.
MR - malice, including specific intent or wanton
conduct.
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RAPE
STATUTORY RAPE
Rape is non-consensual sexual intercourse with a
woman other than the defendant’s wife.
AR - penetration without consent
MR - general intent
Husbands can be charged with conspiracy or accomplice
liability. Some modern statutes (including CA.) Allow
husbands to be charged with rape.
Statutory rape: a strict liability crime of having consensual
sexual intercourse with an under-age female. A small number
of states, like CA., permit an “honest and reasonable belief”
that the victim was over-age. Consent is no defense.
FALSE IMPRISONMENT
another person.
Intentional use of force or the threat of force to confine
AR - force and confinement
MR - specific intent
Force includes physical barriers, threats, and even a show of
authority (badge or uniform).
Confinement includes any significant interference with a
person’s freedom of movement.
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KIDNAPPING
False imprisonment with asportation.
AR - force, confinement, and asportation
MR - specific intent
Asportation need not be extensive.
If asportation does not significantly increase the risk of harm to
the victim the trend is to limit the crime to false
imprisonment (a misdemeanor).
Can be accomplished by fraud.
HOMICIDE CRIMES
Unlawful killing of another person. Classified as:
1. Murder:
1st Degree Murder intent to kill plus premeditation:
deliberation; poison; torture; ambush; bomb; lying-inwait; or, felony murder.
2nd Degree Murder by specific intent to kill or general
intent to do an act almost certain to produce death;
intent to do serious bodily harm; wanton or reckless
conduct (“depraved heart” murder).
2. Voluntary Manslaughter: intentional homicide with
mitigating factors such as provocation with no time to
cool off (sudden quarrel, heat of passion).
3. Involuntary Manslaughter: no intent to kill, but
recklessness or gross negligence.
CRIMINAL LAW Flashcards page 17
MURDER
malice.
Murder is an unjustifiable homicide committed with
AR - homicide
MR - malice, including actual intent to kill; intent
to inflict grave bodily harm; wanton behavior;
imputed malice via the felony murder rule.
First Degree Murder includes:
1. Murders committed with specific intent to kill
plus premeditation and deliberation,
2. Felony murders based upon statutorily
enumerated felonies, and
3. Murder committed by certain methods (poison,
torture, ambush, or bomb).
Second Degree Murder is intentional murder without
premeditation, wanton murders, felony murders involving
or
inherently dangerous felonies not listed under 1st degree
murder, or intent-to-do-great-bodily-injury.
FELONY MURDER
The felony murder rule is used when the death of a victim is
proximately caused by acts committed by a felon during the perpetration of a dangerous or
enumerated felony (arson, robbery, burglary, rape, mayhem).
If required mens rea for the underlying felony is shown,
“malicious” state of mind is imputed to a person in the
process of committing the felony, resulting in a murder charge.
Things to watch:
1. crime being committed must be statutorily
enumerated (1st degree) or “inherently dangerous”
(2nd degree),
2. Proximate cause (no unforeseeable intervening acts
or consequences?),
3. “Perpetration” commences with attempt and ends
with escape,
4. Death must be caused by the felon or agent of felon
(not by victim or police).
CRIMINAL LAW Flashcards page 18
MANSLAUGHER
Voluntary & Involuntary
under
passion, emotional
Voluntary Manslaughter: an international criminal
homicide committed without malice because done
circumstances of provocation (heat of
upset, or sudden quarrel).
AR - homicide
MR - specific intent to kill, seriously injure, or
create a very high risk of either.
Note: a failed (unreasonable) self defense results in a finding of
voluntary manslaughter.
Involuntary Manslaughter: unintentional homicide without
malice.
AR - homicide
MR - gross or criminal negligence, including intent
to inflict non-serious bodily harm.
Some states adopt misdemeanor-manslaughter rules,
comparable to felony- murder rules, where underlying
misdemeanor is likely to cause death.
BURGLARY
Burglary, at common law, was the trespassory
breaking and entering of the dwelling house of another at night with intent to commit a
felony therein.
AR - breaking, including raising unlocked windows and
entrance by fraud, trick, or threat. Physical entry can be
by instrument. Includes structures within the “curtilage”
of the main house and business structures, if slept in.
MR - intent to make nocturnal intrusion and specific
intent to commit any felony or petty larceny once
inside. The actual felony need not be accomplished.
Modern statutes loosen elements: daytime and other structures
included, no actual breaking necessary.
CRIMINAL LAW Flashcards page 19
ARSON
of another.
Arson is the malicious burning of the dwelling house
AR - dwelling is the same as for burglary. Burning
requires some charring, but substantial
damage is not required.
MR - malice. Either intent to burn or reckless
burning. Does not include accidental or
merely negligent acts.
PERSONAL PROPERTY
CRIMES
PERSONAL PROPERTY CRIMES:
1. Larceny
2. Embezzlement
3. False Pretenses
4. Robbery
5. Extortion
6. Receiving Stolen Property
7. Forgery
8. Uttering
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LARCENY
LARCENY BY TRICK
deprive
Larceny is the trespassory taking and carrying away
of another’s personal property with the intent to
him of it permanently.
AR - Taking is against possession. Carrying away
may involve only slight movement, but
requires
some removal. Victim may be mere
possessor,
not necessarily owner.
MR - Actual intent to carry off another’s property
plus specific intent to deprive him of it
permanently. Specific intent can be formed
after the taking. Finders can commit the crime
they have a reasonable clue to the loser’s
identity or whereabouts.
if
Larceny by trick is a form of larceny where owner of property
is induced to voluntarily part with possession by fraud, trick, or
deception.
EMBEZZLEMENT
rightfully possessed property.
Embezzlement is the fraudulent conversion of
AR - an act which seriously interferes with the
owner’s rights.
Acts include: spending, selling, seriously
damaging the item, giving it away, or refusing to
return it. An embezzler is usually one to whom
an item has been entrusted.
MR - specific intent to act fraudulently formed only
after receiving possession legally.
Note: intent to deprive permanently is not required.
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FALSE PRETENSES
False pretenses is the act of obtaining possession and
title by false representations of past or present material facts.
AR - obtaining title by means of an untrue
statement. The representation must be
factually untrue and partially relied upon by
the victim.
MR - a known false misrepresentation.
Note: must show that the victim intended to pass title as well
as possession. If only possession is given up, the crime is
larceny by trick.
ROBBERY
Robbery is larceny of personal property from the
person or presence of another by use of force or intimidation.
AR - larceny plus presence of the victim and use of
force or intimidation.
MR - same as for larceny, including specific
intent.
Any force sufficient to constitute a battery or assault suffices so
long as it is more than necessarily involved in taking the
item itself.
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EXTORTION
Extortion is the use of a threat other than one
of immediate physical injury for the purpose of acquiring another’s property (real or
personal) or for the purpose of inducing another to perform a service.
AR - making a threat to cause future physical injury,
or to cause present or future harm to property or
reputation.
MR - specific intent to acquire the property of another.
RECEIVING
STOLEN PROPERTY
stolen.
Receiving Stolen Property is receiving personal
property knowing or having reason to know it to be
AR - receiving property which is stolen.
MR - knowledge and intent to deprive
permanently.
Knowledge need be no more than a correct belief that the
property was in some manner stolen. Stolen character may be
inferred from the circumstances. This is a specific intent crime.
CRIMINAL LAW Flashcards page 23
FORGERY
or apparent legal significance.
Forgery is the making of a false writing having actual
AR - writing, typing, or printing a new document, or
altering an existing writing.
MR - intent to make a false writing and the specific
intent to use it to defraud.
The writing itself must be false, and it must be one that has
actual or apparent legal significance, as opposed to intrinsic,
historical, or artistic value.
UTTERING
be false with intent to defraud.
Uttering is offering as genuine an instrument known to
Many states absorb this activity into the crime of
forgery.
Where uttering is a separate offense, it is not essential that the
document be honored.
CRIMES AGAINST MORALITY Crimes Against Morality include:
1. Adultery - sexual intercourse by a married person with
someone other than the spouse.
2. Fornication - sexual intercourse between unmarried
persons.
3. Illicit cohabitation - open and notorious living together
by an unmarried couple.
4. Bigamy - entering into a “marriage” while one is already
legally married.
5. Incest - intercourse or marriage to a close blood
relative.
6. Seduction - sexual intercourse by a male with a
previously chaste woman induced by a false promise of
marriage.
7. Sodomy - seriously deviate or unnatural sexual practices
between two persons, or a person and an animal.
CRIMINAL LAW Flashcards page 24
CRIMES AGAINST JUSTICE
Crimes against Justice or Government
1. Misprison
2. Compounding
3. Perjury
4. Bribery
5. Escape
6. Rescue
7. Breach of the Peace
8. Unlawful Assembly
9. Riot
PARTIES TO CRIMES
4 common law classifications of parties to crimes:
1. Principal in the 1st Degree - perpetrator who
performs the acts constituting the crime.
2. Principal in the 2nd Degree - an on-the-scene
aider present to assist, encourage, or facilitate the
action of the perpetrator.
3. Accessory Before the Fact - offers pre-crime
encouragement or solicitation.
4. Accessory After the Fact - a post-crime aider
who assists perpetrators in avoiding apprehension
conviction. Wives and close relatives are
usually exempt.
or
Parties share vicariously for any criminal act reasonably
necessary to complete the target crime.
Note: at common law principals had to be convicted
first
before accessories could be found guilty. Modernly,
#’s 1-3 are all considered principals.