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96 Cards in this Set

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What are the four ways to get a ∆ in the CL Murder Box?
1- Intent to Kill

2- Intent to do great bodily harm, which resulted in death

3- Depraved Heart Murder

4- Felony-Murder Rule
Cite a case that was an example of a Depraved Heart Murder.
The Banks case: In this case the ∆ shot a gun that he knew was working and loaded into parts of a train that he knew were occupied. Court held that even though he had no intention of killing, he consciously disregarded a very high risk.
Cite a case that was a non-example of a Depraved Heart Murder.
The Hardie case. The ∆ pointed and pulled the trigger of a gun at his neighbor that he believed was inoperable. Court held it could not be proved that he consciously disregarded a very high risk.
What are the five inherently dangerous felony's that would put the ∆ in the felony-murder box if he killed someone?
(Barrk)
Burglary
Arson
Robberty
Rape
Kidnapping
What mens rea is sufficient to convict the ∆ of a felony murder?
You only need to prove that the ∆ intended to commit the felony and that death occurred as a result.
The CL felony-murder rule mainly follows what theory of punishment?
It mainly follows a utilitarian theory because it will generally & specifically deter individuals from committing inherently dangerous felonies by sending the message that if someone dies, even when the ∆ had no life-endangering mens rea, he will be guilty of murder.
What case would NOT be an example of the felony-murder rule and why?
The Ireland case (man shoots wife case) ∆ left the room and returned with a gun to kill his wife. Court reasoned that allowing assault with a deadly weapon to trigger the felony-murder rule would render almost every criminal homicide Murder because almost every homicide involves assault with a deadly weapon.
What are the three elements of the felony-murder rule?
1- Intent to commit the felony

2- The felony was inherently dangerous

3- Caused a death as a result of the felony
What is the retributive argument against the felony-murder rule?
They would argue that the "shooter" had a different moral culpability than the "get-away driver." Thus each person involved wasn't getting the "just desserts" that he deserved.
If a ∆ committed Arson and someone was killed during the commission of the arson, what is the only element that the prosecution would need to prove?
Prosecution would only need to prove the intent to commit the arson was malicious and that is it. The ∆ will be guilty of a felony-murder.
To be convicted of 1st Degree Murder, what three elements MUST the prosecution prove?
That the murder was:

1- Willful
AND
2- Deliberate
AND
3- Premeditated
What is a good case that gives an example of 1st Degree Murder?
The perez case (guy kills his neighbor)

∆ went back into the kitchen after his knife broke to get another knife.
Under the MPC what standard would we instruct the jury on when trying a EEMD case?
(Subjective Standard)
We would instruct the jury to take into account the ∆'s unique situation. His actions would be judged from the viewpoint from an actor in HIS position.

***Under CL it is purely an objective standard
Is the ∆'s identity as the perpetrator an element of the corpus delicti?
NO...there only needs to be a honest, debatable question of fact for the prosecutor to charge a person for the crime.
May circumstantial evidence be used to prove the corpus delicti?
Yes...if the circumstantial evidence is enough to prove beyond a reasonable doubt the crime.
Does the prosecution need to produce a dead body to prove the corpus delicti? What case is a good example?
NO. The baby case is a good example. The woman accidentaly or voluntarily dropped the baby off the bridge into a running river. The baby was only a few weeks old, the cap was found on the bank of the river, the river was swift, and the baby was never seen or heard from again. It's reasonable to assume the baby died as a result of the fall.
There are three elements of a depraved heart murder. Must the prosecution prove all three? Or just One?
He must prove ALL three.
1-knowingly created or consciously disregarded
2-a very high risk that great bodily harm or death would occur to human life
3- without justification, provocation or excuse
What common characteristics do the five inherently dangerous felonies all share?
They are each sufficiently independent of the act of killing. Killing is not an essential part of committing the felony.
What is the fundamental difference between depraved heart murder and criminal negligence?
In a depraved heart murder the act is done KNOWINGLY or with a conscious disregard of a very high risk. (shooting into a home with cars in the driveway and lights on)

In criminal negligence the possible outcome isn't known. (shooting into an abandoned home)
What is the appropriate standard of review that an appellate court should use when reviewing a claim by a convicted ∆ that there was insufficient evidence?
The Judge will review the evidence in a light most favorable to the PROSECUTION. This is done to show due respect to the jury that already made a decision based on the evidence presented.
Give five examples of a depraved heart murder?
1- shooting into a car on a highway
2- throwing a brick off the top of a building onto a crowded street
3- doing wheelies in a crowded shopping mall parking lot
4- shooting a loaded gun into a moving train
5- shooting a gun into a house that is all lit up with cars in the driveway.
List an example of a MPC criminal negligence case?
Hardie - The case where the ∆ pointed and pulled the trigger of a gun that he thought was unloaded at his neighbor.

**this is also considered CL involuntary manslaugher
If the jury concludes that legally adequate provocation was present..what CL crime would the ∆ be guilty of?
He would be guilty of voluntary manslaughter
What are the retributive arguments for supporting the division of murder into degrees?
To ensure that each ∆ received his "just desserts" for his individual moral culpability.
Would supporters of the utilitarian theory more strongly support an objective view or subjective view?
Objective view because they are concerned about the greater good of people and the prevention of repeat incidences. Therefore, they would be more concerned about what the reasonable person would do and how to deter that rather than this one particular person.
What mens reas must the prosecution prove the ∆ had in order to convict him of some form of CL murder?
Malice Aforethought!
*intent to kill
*intent to do great bodily harm
*depraved heart
*felony-murder rule
What four elements MUST be proved in order to charge a ∆ with CL involuntary manslaughter?
1- reasonably foreseeable
2-high degree of risk
3- unreasonable & socially unacceptable
4- substantial departure from reasonable person standard

**Hardie case--guy shot neighbor with gun he didn't think worked.
What three elements must the prosecution prove to establish CL voluntary manslaughter?
1-heat of passion
AND
2-Legally adequate provocation
AND
3-no reasonable cooling off period
What four questions should we ask when determining whether a ∆ had legally adequate provocation to put him in the CL voluntary manslaughter box?
1- Was ∆'s reaction consistent with human nature? (Retributive)

2- Was the situation so intense that deterrence is unlikely to work? (Utilitarian)

3- If we accept this case, will it open the floodgates? (Utilitarian)

4- Look at the Culture (gay couple- this is not always a factor)
Can mere words be legally adequate provocation when charging a ∆ with CL voluntary manslaughter?
Only in certain circumstances. Grugin case (father is told that his 13 yr. old daughter was raped)

**the son-in-law painted a picture of the act, which is similar to actually witnessing it.
When the ∆ raises an insanity defense, the PROSECUTOR can ask the judge to instruct on WHAT?
Guilty but mentally ill

*Prosecutor's want this to avoid a finding of not guilty by reason of insanity.
What elements must the prosecution prove in order to get a guilty but mentally ill verdict?
1- The ∆ must be guilty of the crime

2- ∆ is mentally ill, but the causational link is missing.

~the disease did not impact the ∆ in the way that the insanity test requires.
What sort of punishment does a guilty but mentally ill verdict carry?
~A person found guilty but mentally ill will be subject to the full range of punishment for whatever crime they were convicted of?
What is a good HYPO for a guilty but mentally ill example?
~ think about a schizophrenia on a good day. On a day when their in remission, they would be guilty but mentally ill.
A diminished capacity defense will be used by the defense when the ∆ has what?
This defense applies where the ∆ has some less serious mental illness.

**It is sufficient to negate a necessary specific intent.....
What is the utilitarian argument for the diminished capacity defense?
They don't like it. They say it will open the floodgates because anyone can say they had a diminished capacity.

**The states that do accept this defense limit it to to specific intent crimes.
Give a hypo that will mitigate 1st degree murder down to 2nd.
The brother eating pizza with his mom, who then went outside and stabbed his big brother. By arguing diminished capacity, it negated the pre-meditation element.
What is the MPC version of diminished capacity?
EMED...it mitigates down to manslaughter.
Using voluntary intoxication as a defense is limited to what type of crimes?
Because of the moral culpability associated with the ∆'s state of mind, voluntary intoxication is limited to specific intent crimes only.

**Can't be applied to 2nd degree or manslaughter charges...these are general intent.
What are the two CL elements of voluntary intoxication?
1- must be a specific intent crime

2- ∆ must be so intoxicated that he is incapable of forming the necessary specific intent.

**Non Example: Cooper case: ∆ drove threw rush hour, shot from behind his back and took a hostage...2nd element not met!
What would a prosecutor say to a ∆ charged with manslaughter who was trying to raise voluntary intoxication as a defense?
The evidence is irrelevant and inadmissible because this is a general intent crime.
What are inchoate crimes?
Crimes where, the mens reas is the specific intent to commit the planned crimes.
Why was the felony-murder rule NOT used in the Ireland case?
In the Ireland case, the homicide involved assault with a deadly weapon and almost all homicides involve this.

*To extend the felony-murder rule to these cases would effectively make all criminal homicides murder.

*It would eliminate the degrees of murder and manslaughter charges.
Common Law Involuntary Manslaughter is the same as what MPC charge?
Common Law Involuntary Manslaughter is the same as MPC criminal negligence.
What is the actus reus of common law rape?
(1) unlawful carnal knowledge (2) any penetration however slight.
What is the difference between criminal assault and a criminal battery?
Battery requires contact
What is the basic mens rea difference between a criminal assault and a criminal battery?
*Assault requires intent

*Battery can be proved through criminal negligence
What are the two different kinds of criminal assault?
(1) attempted but unsuccessful battery

(2) reasonable apprehension assault, which is the intent to create a reasonable apprehension of a reasonable battery
Does burglary require proof that the ∆ successfully completed the intended felony?
NO

*Peace & Security are invaded the moment the ∆ breaks and enters. When he takes one step over the threshold the burglary is complete
If the ∆ asks & lies to gain possession of property, and that induces the victim to hand over the property what crime can this be?
larceny by false pretenses

OR

larceny by trick
If the VICTIM only intended to convey possession, the charge is what?
If the victim only intended to convey possession, the charge is larceny by trick
If the VICTIM only intended to convey title, the charge is what?
If the victim only intended to convey title, the charge is false pretenses.
If the ∆ takes property unlawfully, but intends to return it within a reasonable time, but is caught before the property has been returned, can the ∆ be convicted of CL larceny?
NO...you need the requisite mens rea.

**kids taking a car for a joy ride
In cases involving a mistaken transfer of the property, what critical fact will determine whether the taking is trespassory?
If the ∆ knew of the mistake at the time of the transfer, we have a trespass and it can be larceny.
To be charged with embezzlement, the ∆ must have what at his job?
He must have substantial discretion and control over certain property and then wrongfully convert the property contrary to the authorization given
Which lets the police intervene at an earlier point in time? dangerous proximity test OR MPC substantial step?
?
What is the mens rea that the prosecution must prove in order to convict a ∆ of a criminal attempt?
?
Can a ∆ be convicted of attempted murder based on proof that he or she consciously disregarded a very high risk without provocation, justification or excuse?
?
What is the fundamental difference between the M'Naghten test and the Irresistible Impulse test?
?
What is the fundamental difference between the M'Naghten and Irresistible Impulse test and the MPC substantial capacity test?
?
Is the guilty but mentally ill verdict a defense OR a prosecution tool?
It is a prosecution tool, because the ∆ will still be on the hook for the crime
When should a prosecutor use the guilty but mentally ill instruction?
When the defense is trying to raise an insanity defense, the prosecution should ask for a guilty but mentally ill instruction.
Why is intoxication more morally culpable than insanity?
Intoxication is usually voluntary. the ∆ did it to himself. the ∆ can't help being insane.
What crimes for test purposes are classified as specific intent crimes and what is the specific intent required for each one?
1- Incohate crimes

2- premeditated murder

3- burglary

4- All theft offenses, except embezzlement

5- rape

6- kidnapping

7- robbery

***Look these up again
What is the general rule as far as whether ignorance or mistake of law will be a valid defense to a criminal charge?
?
What are the 3 exceptions to the general rule used in ignorance or mistake of law?
?
What are the two rationales behind the defense of compulsion?
(1) absence of free will (so they lack moral culpability and deterrence can't work)

(2) the crime the ∆ committed was the lesser of two evils
What are the four limitations that MUST be met when using a compulsion defense?
1- ∆ was faced with death or GBH

2- the threat was immediate and continuing

3- ∆'s objective view must be reasonable under the circumstances

4- ?
What case showed an example of deadly force being used to protect personal property? And, is this allowed?
Emmons case (the repo man shot in the leg)

No..deadly force can't be used to protect personal property. Even a felons life is more important that your personal property
What sort of crime must the perpetrator be engaged in for the use of deadly force to be justifiable?
The crime must be dangerous and atrocious felonies.
What are the four different views of deadly force?
?
What were the only restrictions that the CL imposed on the use of deadly force to stop a fleeing felon?
(1)

(2)
What are the 6 limitations of the right to use deadly force in self-defense?
?
Under what circumstances can the initial aggressor regain his or her right to use deadly force in self-defense?
?
What do we mean by the excessive force limitation?
?
What defense can be used when all the elements of self defense aren't met?
When self defense doesn't work, the defense can always try imperfect privilege.
Rape is a general intent crime....so, how can someone be convicted?
*If the ∆ acted recklessly or was criminally negligent in determining whether or not she consented.

****INTENT to have intercourse is required. If ∆ didn't intend to have intercourse he can't be convicted.
If a ∆ is NOT aware he's having intercourse, for example he's too drunk...will he still be guilty of rape or statutory rape?
NO...whether your in a general intent jurisdicition or strict liability jurisdiction, the answer is the same.

*the ∆ has to be aware that he's having intercourse to be convicted.
Define Larceny
Larceny is the trespassory taking and carrying off (however slight) of personal property known to be another's with the intent to permanently deprive the owner,

*If the ∆ changes his mind later and gives it back he's still guilty of LARCENY.
How is a killing intentional?
A killing is intentional if the ∆ desired or knew to a substantial degree of certainty that it would result from his act.
How is a killing deliberate & premeditated?
A killing is deliberate and premeditated if the ∆ was capable of reflecting upon it with a cool mind and did in fact do so.

**if a ∆ planned to do something that he "hoped" would kill someone..that is intentional, deliberate, and premeditated.
What is a trespassory taking?
A trespasory taking is the acquisition of possession contrary to the rights of the owner and without the owner's consent.
Define carrying off as it pertains to larceny?
Carrying off occurs when the ∆ moves the property, even slightly, with the intention of exercising dominion over it.
How would a ∆ be guilty of a criminal attempt?
A ∆ is guilty of a criminal attempt when with the specific intent to bring about a criminally prohibited result, he comes substantially close to bringing it about.
Define Embezzelement.
Embezzelment is the criminal conversion of personal property by one in lawful custody of that property.
Statutory rape is a strict liability crime...what is the only intent required?
The intent to have sexual intercourse.
How may a ∆ be guilty as an accessory or accomplice to a crime?
A person is guilty as an accessory or accomplice to a crime if he intentionally aids, abets, or facilitates the commission of the crime.

*Standing by silently does NOT constitute this UNLESS the ∆ is ready, willing, and able to render assistance in its commission if needed....look to the facts.
Are ATTEMPTED crimes specific intent crimes or general intent crimes?
All attempted crimes are specific intent crimes.

*Murder may be committed without the INTENT to kill, but attempted murder may NOT.

**If the ∆ believes someone to already be dead, and then does something that actually kills him...he can't be guilty of attempted murder.
What is the COMMON LAW definition of arson?
CL arson is defined as the intentional or malicious burning of the dwelling of another.

*Any burning which chars some actual part of the structure is sufficient to result in a conviction.
A ∆ intends something when?
A ∆ intends a particular consequence if she desires or know to a substantial degree of certainty that it will occur.
define criminal conspiracy?
A criminal conspiracy is an agreement to commit a crime and is complete when two or more persons make such an agreement.

*If someone assists with the crime, he isn't guilty of conspiracy if he didn't agree with them that he would help.
Does the failure to act lead to criminal responsibility?
NO..UNLESS it violated a legal duty to act.

**a lifeguard has a duty to save people who are drowning..if her hours are 9-5. After 5 she no longer has a duty to act.
a ∆ who kills someone on the mistaken belief that she was using self defense will be found not guilty of any criminal homicide if her belief was??
If her belief was REASONALBE

*if her belief was unreasonable she will be found guilty of voluntary manslaughter and not murder!
If the ∆ takes a pen without permission or knowledge of the pen owner and carry's it off with the intention of returning it in a week or two, would he be guilty of a larceny?
NO...He didn't have the intent to permanently deprive the pen owner of the pen.

**same goes for kids who take a car for a joy ride and then return it.
What is a robbery?
Robbery is a larceny committed with physical force or threat.
How would a ∆ obtain property by false pretenses?
Larceny by false pretenses:

*with the intent to cause the victim to transfer title to personal property, the ∆ makes a fraudulent misrepresentation which causes the victim to do so.

~I tell you these mushrooms are "magic" to get you to buy them, when really they're only shitake!