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Criminal Law

For the Feb 2008 Cal Bar Exam

QuestionAnswer
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 on 2008-02-04



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