For the Feb 2008 Cal Bar Exam
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| Crimes Against the Person | - Assault
- Battery
- Mayhem
- Rape
- False Imprisonment
- Kidnapping
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| 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
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| Crimes against property | - arson
- etc.
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| 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
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| Defenses | - insanity
- drunkeness
- entrapment
- mistake
- age
- necessity
- duress
- prevention of a crime
- defense of others
- more
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| 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
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| 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
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| insanity: Irresistible impulse | D incapable of controlling conduct
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| Durham test | Crime is product of mental disease or defect (insanity defense)
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| ALI insanity defense | D lacks substantial capacity to appreciate criminality of conduct
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| Crimes Against the Person | - Assault - Battery - Mayhem - Rape - False Imprisonment - Kidnapping
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| 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
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| Crimes against property | - arson - etc.
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| 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
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| Defenses | - insanity - drunkeness - entrapment - mistake - age - necessity - duress - prevention of a crime - defense of others - more
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| 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
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| 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
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| insanity: Irresistible impulse | D incapable of controlling conduct
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| Durham test | Crime is product of mental disease or defect (insanity defense)
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| ALI insanity defense | D lacks substantial capacity to appreciate criminality of conduct
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| Diminished responsibility | Insanity defense: mitigates culpability
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| 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
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| 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
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| 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
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| 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
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| voluntary manslaughter | - intentional criminal homicide + no malice aforethought: - imperfect self-defense - unreasonable mistake of fact - coercion - voluntary intoxication - mental disease - anger & heat of passion
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| involuntary manslaughter | - unintentional homicide - no malice - intent to inflict non-serious bodily harm OR state of mind creates grossly negligent risk - misdemeanor manslaughter rule
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| misdemeanor manslaughter rule | accident killing while engaged in non-dangerous felony or misdemeanor that is malum in se
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| homicide analysis | - actus reus - mens rea - 1st degree murder - 2nd degree murder - voluntary manslaughter - involuntary manslaughter - defenses
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| homicide mens rea: list | - intent to kill - intent to inflict serious bodily injury - wantoness - felony murder rule
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| 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
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| homicide mens rea: issues | - intent to kill - intent to inflict serious bodily injury - wantoness - felony murder rule
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| General Intent | You intend to perform the actus reus
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| Specific Intent | You intent to perform the actus reus, and you've got something else in mind. - burglary - assault - murder - attempt - conspiracy - theft - solitication
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| 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
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| For each crime: analysis checklist | - mens rea (specific/general intent) - actus reus - general considerations - defenses
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| 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
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| 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
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| conspiracy | MENS REA: actual intent to combine + specific intent to achieve unlawful goal! ACTUS REUS: Combination or agreement for an unlawful purpose
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| battery | MENS REA: either intent or criminal negligence ACTUS REUS: application of unlawful force to the person of another
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| false imprisonment | MENS REA: actual intent ACTUS REUS: use of force to confine another person
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| 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
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| 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
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| kidnapping | MENS REA: actual intent ACTUS REUS: false imprisonment + asportation
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| arson | MENS REA: intent ACTUS REUS: malicious burning of the dwelling of another
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| larceny | trespassory taking and carrying away of another's personal property with intent to deprive him of it permenantly
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| 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!
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| 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
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| 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
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| 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
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| uttering | offering as genuine an instrument known to be false with intent to defraud
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| receiving stolen property | receiving of property knowing it to be stolen with specific intent to deprive the owner thereof
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| embezzlement | conversion of personal property of another by a person in lawful possession (as a result of fiduciary relationship)
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| larceny by conversion | conversion of personal property by a person in lawful possession with specific intent to DEFRAUD
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| forgery | making of a false writing having apparent legal significance with intent to defraud
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| defenses: checklist | - insanity - drunkenness - entrapment - mistake - age - necessity - duress - prevention of a crime - defense of others - defense of property - defense of self
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| insanity defense: M'Naghten Rule | D lacked ability at time of his actions to know WRONGFULNESS of actions & nature/quality of act
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| insanity defense: irresistible impulse | mental disease makes D incapable of controlling his conduct
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| insanity defense: Durham Test | Crime was the product of mental disease or defect
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| 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
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| insanity defense: diminished responsibility | Mental illness short of insanity may be asserted in homicide case/specific intent crimes to mitigate culpability/reduce charge
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| insanity defense: drunkenness | Voluntary intoxication only a defense to specific intent crimes!
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| 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
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| insanity defense: age | Modern rule: under 13 or 14
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| insanity defense: duress - murder | Duress mitigates murder to manslaughter
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| 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
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| defense of others | MAJORITY: reasonably believed necessary under the circumstances MINORITY: privileged to use same amount of force as the person being protected
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| 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!
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| criminal defense: defense of self | MAJORITY: no duty to retreat! MINORITY: duty to retreat unless at home
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| 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
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| 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-
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| inherently dangerous felonies: list | - burglary - arson - rape - robbery - kidnapping - sodomy
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| First degree murder | - intentional criminal homicide with malice aforethought, premeditation & deliberation - Felony Murders - any murder committed by means of poison, torture, ambush, bomb
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| Second degree murder | - intentional criminal homicides with malice aforethought but WITHOUT premeditation or deliberation - includes all murders that aren't 1st degree
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| heat of passion | - reasonable provocation - inadequate cooling time
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| criminal procedure: checklist | - 4th Amendment - 5th Amendment - 6th Amendment - Other
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| 4th Amendment issues | - illegal detention - illegal arrest - illegal search & seizure
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| 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?
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| illegal arrest | - was D under arrest? - at moment of arrest, did police have probably cause to believe that D had committed crime?
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| search & seizure | - STANDING??? - did police activity constitute a search or seizure? - valid search warrant obtained? - circumstances justified warrantless search?
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| search incident to arrest | - lawful arrest - limited to persons & areas within D's immediate reach
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| search: CONSENT | - voluntary (TOTALITY TEST) - cannot exceed scope - given by someone with authority
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| search: plain view | Warrantless seizure of items in plain view justified if police entitled to be there
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| search: exigent circumstances | Warrantless search justified where police reasonably believe delay would: - endanger police/public - allow destruction/removal of evidence - hot pursuit
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| search: border searches | 4th Amendment does not protect border searches.
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| warrantless search: issues | - SIA - consent - auto search - plain view - exigent circumstances
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| 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
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| 5th Amendment: checklist | - statement voluntary? - Escobedo - Miranda
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| 5th Amendment: voluntary statements | TOTALITY OF THE CIRCUMSTANCES. Prosecution must prove voluntariness by a preponderance of the evidence.
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| Escobedo | Stuck informant in cell. After formal charges have been filed, can't obtain confession if you deny right to counsel.
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| 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
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| 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
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| 5th Amendment: right to counsel | Was right to counsel: - applicable? - effective? - waived? - conflict of interest?
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| Does right to counsel apply? | "Every critical stage of a criminal proceeding." NOT: - grand jury - investigation proceedings - prison hearings - summary court martial
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| Inadequate counsel | - fell measurably below the performance ordinarily expected of fallible lawyers - affected outcome of trial
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| 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
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| 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
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| right to speedy trial: test | - length of delay - reason for delay - whether D caused delay - whether delay was prejudicial
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| cruel & unusual punishment: test | - only applies if already convicted - not "grossly disproportionate" - punishment barbaric regardless of the crime? (yes please!)
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| double jeopardy: state & federal | count as separate sovereignties; may be tried separately for state & federal crimes arising from same offense!
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| double jeopardy: when attached | jury trial: when jury sworn bench trial: when first witness sworn
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| 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
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