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Criminal Law
For the Feb 2008 Cal Bar Exam
| Question | Answer |
|---|---|
| Crimes Against the Person | - Assault - Battery - Mayhem - Rape - False Imprisonment - Kidnapping |
| Mayhem | Maining or disfiguring another WITH MALICE MENS REA: presence of actual intent or wanton conduct ACTUS REUS: causing bodily injujry which permanently maims or disfigures another |
| Crimes against property | - arson - etc. |
| Burglary | - trespassory - breaking & entering - of a dwelling house - of another - at night (common law only) - with the specific intent to commit a felony or larceny therein ACTUS REUS: slight intrusion into dwelling house MENS REA: specific intent to c |
| Defenses | - insanity - drunkeness - entrapment - mistake - age - necessity - duress - prevention of a crime - defense of others - more |
| insanity | Where mental illness has a certain prescribed effects on one's mind, acts otherwise criminal are excused. - M'Naghten Rule - Irresistible Impulse - Durham Test - ALI - Diminished responsibility |
| M'Naghten Rule | Insanity defense: disease of mind causes a defect such that D lacks ability to know wrongfulness of actions and nature/quality of act |
| insanity: Irresistible impulse | D incapable of controlling conduct |
| Durham test | Crime is product of mental disease or defect (insanity defense) |
| ALI insanity defense | D lacks substantial capacity to appreciate criminality of conduct |
| Crimes Against the Person | - Assault - Battery - Mayhem - Rape - False Imprisonment - Kidnapping |
| Mayhem | Maining or disfiguring another WITH MALICE MENS REA: presence of actual intent or wanton conduct ACTUS REUS: causing bodily injujry which permanently maims or disfigures another |
| Crimes against property | - arson - etc. |
| Burglary | - trespassory - breaking & entering - of a dwelling house - of another - at night (common law only) - with the specific intent to commit a felony or larceny therein ACTUS REUS: slight intrusion into dwelling house MENS REA: specific intent to commit a f |
| Defenses | - insanity - drunkeness - entrapment - mistake - age - necessity - duress - prevention of a crime - defense of others - more |
| insanity | Where mental illness has a certain prescribed effects on one's mind, acts otherwise criminal are excused. - M'Naghten Rule - Irresistible Impulse - Durham Test - ALI - Diminished responsibility |
| M'Naghten Rule | Insanity defense: disease of mind causes a defect such that D lacks ability to know wrongfulness of actions and nature/quality of act |
| insanity: Irresistible impulse | D incapable of controlling conduct |
| Durham test | Crime is product of mental disease or defect (insanity defense) |
| ALI insanity defense | D lacks substantial capacity to appreciate criminality of conduct |
| Diminished responsibility | Insanity defense: mitigates culpability |
| entrapment | One may excuse his admitted performance of an illegal act (other than one involving serious injury) by showing that he did it at the instigation of law enforcement agent. MAJORITY & FED: focuses on D's SUBJECTIVE DISPOSITION to commit the crime MINORITY |
| criminal homicide | killing of a human being by another w. criminal intent - killing of: act or omission that causes death - a human being: baby is a human being when born alive; statutes now define "viable" fetus - by: apply proximate cause; death must occur within 1 year o |
| felony murder rule | - FMR felony? - merger doctrine? - elements of underlying felony present? - did killing occur during the perpetration of the felony? - was the killing FORESEEABLE RESULT of the felony? - was the killing act performed by one of the felons? + was the victi |
| degrees of murder | FIRST DEGREE - intentional criminal homicide - express malice aforethought - premeditation & deliberation SECOND DEGREE - intentional criminal homicide - express or implied malice aforethought - no premeditation/deliberation - no mitigating factors |
| voluntary manslaughter | - intentional criminal homicide + no malice aforethought: - imperfect self-defense - unreasonable mistake of fact - coercion - voluntary intoxication - mental disease - anger & heat of passion |
| involuntary manslaughter | - unintentional homicide - no malice - intent to inflict non-serious bodily harm OR state of mind creates grossly negligent risk - misdemeanor manslaughter rule |
| misdemeanor manslaughter rule | accident killing while engaged in non-dangerous felony or misdemeanor that is malum in se |
| homicide analysis | - actus reus - mens rea - 1st degree murder - 2nd degree murder - voluntary manslaughter - involuntary manslaughter - defenses |
| homicide mens rea: list | - intent to kill - intent to inflict serious bodily injury - wantoness - felony murder rule |
| criminal procedure: issues | - 4th Amendment: illegal detention, arrest, search or seizure? - 5th Amendment: voluntariness, Escobedo or Miranda violation? - 6th Amendment: right to effective counsel at all critical stages of proceedings? - 8th Amendment & misc.: - right to pretrial |
| homicide mens rea: issues | - intent to kill - intent to inflict serious bodily injury - wantoness - felony murder rule |
| General Intent | You intend to perform the actus reus |
| Specific Intent | You intent to perform the actus reus, and you've got something else in mind. - burglary - assault - murder - attempt - conspiracy - theft - solitication |
| Crime checklist | - solicitation - attempt - conspiracy - battery - false imprisonment - mayhem - assault - rape - kidnapping - arson - larceny - larceny by trick - larceny by conversion - burglary - extortion - robbery - false pretenses - uttering - receiving stolen prope |
| For each crime: analysis checklist | - mens rea (specific/general intent) - actus reus - general considerations - defenses |
| solicitation | MENS REA: specific intent ACTUS REUS: inciting another to commit any felony or misdemeanor involving breach of the peace GENERAL CONSIDERATIONS: - vicarious liability - merger: merges into conspiracy/accomplice liability - withdrawal: you remain guilty of |
| attempt | MENS REA: specific intent ACTUS REUS: an act in the direction of perpetrating an intended crime GENERAL CONSIDERATIONS: - merger: merges into consummated target offense + withdrawal: MAJORITY: doesn't excuse liability MINORITY: absolves if you permenantly |
| conspiracy | MENS REA: actual intent to combine + specific intent to achieve unlawful goal! ACTUS REUS: Combination or agreement for an unlawful purpose |
| battery | MENS REA: either intent or criminal negligence ACTUS REUS: application of unlawful force to the person of another |
| false imprisonment | MENS REA: actual intent ACTUS REUS: use of force to confine another person |
| assault | "attempted battery" MENS REA: specific intent to commit battery ACTUS REUS: - majority: act of perpetration - minority: "intentional inducement of fear" GENERAL CONSIDERATIONS: - aggravated assault: use deadly weapon or intend to murder, rape or maim |
| rape | MENS REA: actual intent or criminal negligence ACTUS REUS: sexual intercourse with a female not your wife when you know or should know it is without consent Statutory rape: strict liability, even if she consented |
| kidnapping | MENS REA: actual intent ACTUS REUS: false imprisonment + asportation |
| arson | MENS REA: intent ACTUS REUS: malicious burning of the dwelling of another |
| larceny | trespassory taking and carrying away of another's personal property with intent to deprive him of it permenantly |
| extortion | use of threats of future harm with specific intent to induce another to relinquish property D had lawful right to do the threatened act: not a defense! |
| robbery | Larceny from the person or presence of another by the use of force or intimidation - force must be designed to effectuate the taking - property must be taken from person or presence of the victim |
| larceny by trick | use of fraud to procure a temporary delivery of mere possession of another's property with intent to deprive permanently. Requires a representation of fact which you know is false, and which you intend to cause V to give it up |
| false pretenses | MENS REA: specific intent ACTUS REUS: - fraudulent misrepresentation - which causes V to pass title to personal property MAJORITY: past or present only! MINORITY: past, present, or future |
| uttering | offering as genuine an instrument known to be false with intent to defraud |
| receiving stolen property | receiving of property knowing it to be stolen with specific intent to deprive the owner thereof |
| embezzlement | conversion of personal property of another by a person in lawful possession (as a result of fiduciary relationship) |
| larceny by conversion | conversion of personal property by a person in lawful possession with specific intent to DEFRAUD |
| forgery | making of a false writing having apparent legal significance with intent to defraud |
| defenses: checklist | - insanity - drunkenness - entrapment - mistake - age - necessity - duress - prevention of a crime - defense of others - defense of property - defense of self |
| insanity defense: M'Naghten Rule | D lacked ability at time of his actions to know WRONGFULNESS of actions & nature/quality of act |
| insanity defense: irresistible impulse | mental disease makes D incapable of controlling his conduct |
| insanity defense: Durham Test | Crime was the product of mental disease or defect |
| insanity defense: ALI Substantial Capacity Test | Mental disease causes D to lack substantial capacity to appreciate criminality of conduct or conform conduct to requirements of law |
| insanity defense: diminished responsibility | Mental illness short of insanity may be asserted in homicide case/specific intent crimes to mitigate culpability/reduce charge |
| insanity defense: drunkenness | Voluntary intoxication only a defense to specific intent crimes! |
| insanity defense: mistake | Honest mistake that negates the requisite mental state for any material element of the offense MISTAKE OF FACT: - depends on REASONABLENESS. - specific intent crimes: unreasonable mistake of fact is a defense! MISTAKE OF LAW: not a defense unless: - go |
| insanity defense: age | Modern rule: under 13 or 14 |
| insanity defense: duress - murder | Duress mitigates murder to manslaughter |
| prevention of a crime | Justified in using NON-DEADLY force which reasonably appears necessary to prevent a misdemeanor or felony constituting a breach of the peace DEADLY FORCE: only to prevent a dangerous felony involving risk to human life |
| defense of others | MAJORITY: reasonably believed necessary under the circumstances MINORITY: privileged to use same amount of force as the person being protected |
| defense of property | NON-DEADLY force reasonably necessary to prevent imminent trespass to real or personal property DEADLY force only to prevent intrusion into home! |
| criminal defense: defense of self | MAJORITY: no duty to retreat! MINORITY: duty to retreat unless at home |
| Common law murder | Homicide committed with malice aforethought: - actual intent to kill - actual intent to inflict grave bodily injury - wantonness - state of mind for committing inherently dangerous felony |
| Felony Murder Rule: checklist | - inherently dangerous felony? - merger doctrine - elements of underlying felony - homicide occurred during perpetration of felony - killing foreseeable result of felony? COMMON LAW: - killer can be anyone - victim can be anyone CA: - killer must be co- |
| inherently dangerous felonies: list | - burglary - arson - rape - robbery - kidnapping - sodomy |
| First degree murder | - intentional criminal homicide with malice aforethought, premeditation & deliberation - Felony Murders - any murder committed by means of poison, torture, ambush, bomb |
| Second degree murder | - intentional criminal homicides with malice aforethought but WITHOUT premeditation or deliberation - includes all murders that aren't 1st degree |
| heat of passion | - reasonable provocation - inadequate cooling time |
| criminal procedure: checklist | - 4th Amendment - 5th Amendment - 6th Amendment - Other |
| 4th Amendment issues | - illegal detention - illegal arrest - illegal search & seizure |
| illegal detention | - was D detained? - officer had objective basis for believing person was engaged or about to be engaged in criminal activity - stop was temporary & no longer than necessary - Terry frisk: reasonable belief for officer safety? |
| illegal arrest | - was D under arrest? - at moment of arrest, did police have probably cause to believe that D had committed crime? |
| search & seizure | - STANDING??? - did police activity constitute a search or seizure? - valid search warrant obtained? - circumstances justified warrantless search? |
| search incident to arrest | - lawful arrest - limited to persons & areas within D's immediate reach |
| search: CONSENT | - voluntary (TOTALITY TEST) - cannot exceed scope - given by someone with authority |
| search: plain view | Warrantless seizure of items in plain view justified if police entitled to be there |
| search: exigent circumstances | Warrantless search justified where police reasonably believe delay would: - endanger police/public - allow destruction/removal of evidence - hot pursuit |
| search: border searches | 4th Amendment does not protect border searches. |
| warrantless search: issues | - SIA - consent - auto search - plain view - exigent circumstances |
| electronic surveillance | Federal warrant requirements: - probable cause that crime is or is about to be - name persons to be overheard - conversation described with particularity - limited period and terminated when info obtained FALSE FRIENDS DOCTRINE: only one person in conver |
| 5th Amendment: checklist | - statement voluntary? - Escobedo - Miranda |
| 5th Amendment: voluntary statements | TOTALITY OF THE CIRCUMSTANCES. Prosecution must prove voluntariness by a preponderance of the evidence. |
| Escobedo | Stuck informant in cell. After formal charges have been filed, can't obtain confession if you deny right to counsel. |
| Miranda | - were they entitled to Miranda warning? - D given full & adequate Miranda warning? - D intelligently & knowingly waived rights? + General considerations: - statements obtained in violation of Miranda can be used to impeach! - once D invokes right to cou |
| 5th Amendment: lineup | - if you've been formally charged, you have right to counsel at lineup (but not photo lineup) - due process: ID can't be impermissibly suggestive Independent identification can cure it |
| 5th Amendment: right to counsel | Was right to counsel: - applicable? - effective? - waived? - conflict of interest? |
| Does right to counsel apply? | "Every critical stage of a criminal proceeding." NOT: - grand jury - investigation proceedings - prison hearings - summary court martial |
| Inadequate counsel | - fell measurably below the performance ordinarily expected of fallible lawyers - affected outcome of trial |
| 5th Amendment: other rights | right to . . . - pretrial release - probable cause hearing - speedy trial - discovery - indictment - public trial - jury trial - confrontation - cruel & unusual punishment - sentencing rules |
| right to pretrial release: test | - nature & circumstances of offense - weight of evidence - D's character - financial ability to make bail - whether D will appear - non-capital: BAIL REQUIRED - capital case: bail discretionary |
| right to speedy trial: test | - length of delay - reason for delay - whether D caused delay - whether delay was prejudicial |
| cruel & unusual punishment: test | - only applies if already convicted - not "grossly disproportionate" - punishment barbaric regardless of the crime? (yes please!) |
| double jeopardy: state & federal | count as separate sovereignties; may be tried separately for state & federal crimes arising from same offense! |
| double jeopardy: when attached | jury trial: when jury sworn bench trial: when first witness sworn |
| guilty plea | does record show that D is aware of: - charge and all elements - penalty - plea was VOLUNTARY - waived constitutional rights - nature and consequences of plea Involuntary plea: withdraw any time Voluntary plea: withdraw before sentence |
Created by:
koppie
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