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135 Cards in this Set
- Front
- Back
What are the essential elements of criminal responsibility?
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1) act or omission(actus reus);
2) mental state (mens rea); and 3) concurrence of act and mental state. 4) Causation |
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What is the actus reus?
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1) Voluntary bodily movement; or
2) Omission under a legal duty to act. |
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What are 3 typical forms of involuntary acts?
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1) conduct not the product of one's own volition
2) Reflexive or convulsive acts 3) Acts when unconscious or asleep |
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When can D be held liable for an omission?
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1) There is a legal duty to act
2) D has knowledge of the facts giving rise to the duty to act; and 3) D has the ability to help |
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What 5 situations can give rise to a DUTY to act?
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1) Statute
2) Status Relationship 3) Contract 4) Voluntary Assumption of Care 5) Creation of the Peril |
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What are the 4 levels of Common Law (CL) Mental States?
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1) Specific Intent
2) Malice 3) General Intent 4) Strict Liability |
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What constitutes specific intent?
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Specific objective or intent to engage in the crime
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What are the 11 Specific Intent Crimes?
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BAFFLE SCARF (my really weird mnemonic)
B - Burglary A - Assault F - Forgery F - False Pretenses L - Larceny E - Embezzlement S - Solicitation C - Conspiracy A - Attempt R - Robbery F - First Degree, Premeditated Murder |
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What constitutes malice?
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Acts that are intentional or with reckless disregard of an obvious or known risk that a particular harm will result
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What are the important malice crimes?
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1) Common law murder
2) Arson |
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What constitutes general intent?
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General awareness of factors constituting a crime (knowing the actions and circumstances)
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What are important general intent crimes?
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Battery
Rape Kidnapping False Imprisonment (crimes against the person) |
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What constitutes Strict liability?
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One that does not require intent/awareness of all of the factors constituting the crime. (ie, no intent required... just doing the act is enough)
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What are the 2 strict liability categories?
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1) Public Welfare Offenses
2) Statutory Rape |
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What is the NY/MPC Standard for mental states?
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1) Intentionally
2) Knowingly 3) Recklessly 4) Negligently 5) Strict Liability |
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When does a person act knowingly?
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When a D is aware that his conduct is of a particular nature or knows it is very likely to cause a result.
"willfully" = "knowingly" ** equivalent to common law malice |
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When does a person act intentionally in NY?
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When D's conscious objective is to engage in certain conduct or cause a certain result.
** purposely = to common law specific intent |
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When does a person act recklessly?
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When D knows of a substantial and unjustifiable risk and consciously disregards that risk; knowing about that risk, yet not caring
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When does a person act negligently?
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When D should have known about a substantial and unjustifiable risk, where such failure is a substantial deviation from the standard of care. (objective standard)
Being stupid |
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What is Actual Causation?
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But for the D's conduct, would the victim have suffered the injury/died/etc.?
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What is Proximate Causation?
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Is the bad result a natural and probable consequence of D's conduct?
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What is the significance of concurrence?
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D must have the required mental state when he engaged in the act
(usually comes up in Larceny) |
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Who are the parties to the crime under most modern statutes?
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1) Principle (person who commits the offense)
2) Accomplice (person who aids or encourages the principal - active involvement) 3) Accessory (person who aids another to escape, knowing he has committed a felony) |
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What is the scope of accomplice liability?
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He is responsible for:
1) the crimes he committed or encourage the principal to do; and 2) any other foreseeable crimes committed by the principal in the course of committing the crime contemplated |
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What is the liability of an accessory?
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Liable for separate, less serious crime of being an accessory after the fact.
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What mental state is required to be liable as an accomplice?
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Most jurisdictions require that the person acted with the intent to encourage the crime.
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If principal is not prosecuted, can the accomplice still be prosecuted under CL and NY?
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YES
** In NY, accomplice cannot benefit from principal's defense that negates mental state |
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Under CL, what is necessary for withdrawal by an accomplice to be an effective defense?
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1) Renunciation if party merely encouraged;
2) Affirmative Attempt to neutralize assistance or notifying the police is required otherwise; |
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Under NY, what is necessary for withdrawal by an accomplice to be an effective defense?
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Accomplice must make substantial effort to stop the crime from happening even if all he did was encourage the crime in order to withdraw
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What is the NY Accomplice/Witness Rule?
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D cannot be convicted of a crime based on uncorroborated testimony of accomplice
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What are the inchoate crimes?
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1) Solicitation
2) Conspiracy 3) Attempt |
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What is solicitation?
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Inciting, counseling, advising, urging, or commanding another to commit a crime, with the specific intent that they do it
**The crime is in the asking |
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Is withdrawal a defense to solicitation?
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NO
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Does the crime of solicitation merge under CL?
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YES; cannot be punished for solicitation & attempt/conspiracy/crime committed
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What is conspiracy?
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1) An agreement between two or more people
2) with intent to enter into that agreement 3) with the intent to achieve the objective of the agreement/commit the crime 4) An overt act in furtherance (NY Rule) |
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What is necessary for an agreement in a conspiracy?
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The parties must agree to accomplish the same objective by mutual action.
CL - actual meeting of two guilty minds, not just pretending to go along with it NY - unilateral approach that D can be convicted of conspiracy even if just pretending to agree |
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Under CL, What is the effect of acquittal of some conspirators?
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If all conspirators are acquitted, the last one must be, too.
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What is Conspirator liability?
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As general rule, each conspirator is liable for all crimes of co-conspirators in furtherance of the conspiracy IF those crimes were foreseeable
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Under NY, what is the effect of acquittal of some conspirators?
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If all conspirators are acquitted, the last one can still be prosecuted
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Under Common Law, can a person conspire with an undercover police officer?
(As opposed to in NY) |
Generally No, because only one D intended that the crime be completed.
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What intent is required for conspiracy?
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Specific intent to:
1) agree 2) achieve the object of the conspiracy. |
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When does the conspiracy terminate?
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Upon completion of the wrongful objective.
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Is withdrawal a defense to conspiracy in CL?
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NO, there is no withdrawal for inchoate offenses in CL. but may be a defense to crimes in furtherance of the conspiracy and the target crime.
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Does the merger doctrine apply to conspiracy?
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NO, there is no merger
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What is attempt?
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1) An overt act
2) Done with intent to commit a crime 3) That falls short of completing the crime/gets dangerously close to the commission of the crime **Dangerous Proximity - Attempt needs something more than overt act needed for conspiracy |
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What is the mental state required for attempt?
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An attempt always requires a specific intent.
**Regardless of the intent necessary for the completed offense |
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What will constitute an overt act for attempt?
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D must commit an act beyond mere preparation, as measured by the proximity test or the substantial step test.
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What is the substantial step test for attempt?
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For attempt, the act must be a substantial step in a course of conduct planned to culminate in the commission of the crime that strongly corroborates criminal purpose (modern view)
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Is impossibility of success a defense to attempt?
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Factual impossibility is not. (eg, couldn't rob someone because they had no money)
Legal impossibility is a defense. (eg, it isn't a crime to do what D intended). |
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Is abandonment a defense to attempt?
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NO, Abandonment is not a defense if D had the intent and did the dangerous proximity act.
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Does the merger doctrine apply for attempt under NY or CL?
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YES, attempt merges with the completed crime.
**In NY, Solicitation and Conspiracy do not merge! |
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What are the defenses negating criminal capacity?
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1) Insanity
2) Intoxication 3) Infancy |
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What are the tests used to determine whether D was so mentally ill (due to Mental Disease or Defect - MDoD) as to be acquitted?
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1) M'Naghten Rule
2) Irresistible impulse test 3) Durham test 4) MPC Test |
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What is the M'Naghten rule for insanity?
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D is not responsible if, as result of MDoD, D didn't know the act was wrong or didn't understand the nature and quality of his actions
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What is the irresistible impulse test?
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D is unable to control his actions nor unable to conform his conduct to law due to MDoD
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What is the Durham test for insanity?
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D's Criminal Act is the product of the MDoD
**This is always wrong answer |
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What is the MPC test for insanity?
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D lacked the substantial capacity to either appreciate the criminality of his conduct or conform his conduct to the requirements of law
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What is the NY test for Insanity?
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D must lack the substantial capacity to know or appreciate either the nature and consequences of his conduct OR that his conduct was wrong
**Combo of M'Naghten and MPC |
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Who bears the burden of proof on sanity?
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D must raise the issue of insanity. Affirmative defense, so D bears the burden of proving his disabilities
**In NY, all D's are presumed sane |
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What is the defense of involuntary intoxication?
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Defense to all crimes - intoxication against your will or without your knowledge
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What is the defense of voluntary intoxication?
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Defense to specific intent crimes IF intoxication prevents D from forming required intent; someone drunk on their own volition
NY: can be a defense to crimes of intent or knowledge if intoxication negates it; NOT recklessness or negligence |
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What is the CL rule regarding the defense of infancy?
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If D is under the age of 7, no responsibility
If D is under the age of 14, there is a rebuttable presumption against criminal responsibility If D is 14+, considered adult |
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What is the NY rule regarding the defense of infancy?
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If D is 13, can be prosecuted for 2nd D Murder
If D is 14/15, can be prosecuted for serious crimes against property If D is 16+, can be prosecuted for anything |
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What are the 5 common Justification Defenses?
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1) Self Defense
2) Duress 3) Entrapment 4) Mistake of Law 5) Mistake of Fact |
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What are the 3 factors for determining use of force for self-defense?
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1) Degree of force used (deadly or non-deadly?)
2) Immediacy of Threat 3) D's Status as an Aggressor |
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When may a person use non-deadly force?
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If reasonably necessary to protect against an immediate use of unlawful force against himself
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Is there a duty to retreat under CL?
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NO
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Is there a duty to retreat under NY?
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YES, You must retreat if you can in complete safety, unless you are in your own home or if you were the initial aggressor
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When may a person use deadly force in NY or CL?
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If it is reasonably necessary to protect against an immediate use of unlawful force against you +
1) The imminent threat MUST be a threat of death or serious injury 2) MUST be without fault /not start the fight or withdraw from initial aggressor status if you did start the fight 3) In NY, Retreat if you can! In CL, you don't have to retreat |
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When may the aggressor of the fight use self-defense?
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Only if:
1) He effectively withdraws from the altercation and communicates desire to do so; or 2) Victim suddenly escalate a minor fight into a deadly altercation and he has no chance to withdraw |
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What is the defense of Duress?
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It is a defense to a crime other than a homicide that the D reasonably believed that another person would imminently inflict death or great bodily harm upon him or a member of his family.
**NY Affirmative Defense, can be used as defense to Homicide |
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What is the defense of Entrapment?
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Unfair temptation when the criminal design originated with the police & D was not predisposed to commit the crime
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When is Mistake of Law a Defense?
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Never a defense unless statute specifically makes knowledge of the law an element of the offense
Ignorance of the Law is NOT an excuse |
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When is Mistake of Fact a defense?
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Relevant to criminal liability only if it shows that D lacked the state of mind required for the crime.
**mistake need only be a reasonable one for non-specific intent crimes **NY: it is a defense only if it negates the required mental state |
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What is CL Battery?
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1) Unlawful application of force to the person of another,
2) resulting in either bodily injury or an offensive touching. ** Need not be intentional and need not be directly applied |
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What is CL Assault?
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Either
1) an attempt to commit a battery, or 2) the intentional creation other than by mere words of a reasonable apprehension in the mind of the victim of immediate bodily harm |
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What is NY Assault and its 3 degrees?
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Intentional injuring another person
1st D -> serious physical injury with a weapon 2nd D -> serious physical injury 3rd D -> physical injury |
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What are the 3 CL categories of homicide?
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1) Murder
2) Voluntary Manslaughter 3) Involuntary Manslaughter |
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What is Murder?
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The unlawful killing with malice aforethought.
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What constitutes malice aforethought? (4 mental states)
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1) Intent to kill;
2) Intent to inflict great bodily injury; 3) Extreme Recklessness / Reckless indifference to an unjustifiably high risk to human life / Abandoned and Malignant Heart; or 4) Felony Murder - Intent to commit a felony |
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What is CL voluntary manslaughter?
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An intentional killing committed after adequate provocation
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What are the 4 elements of adequate provocation?
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1) Aroused sudden & intense passion in the mind of an ordinary person
2) D actually provoked 3) No cooling off period 4) D must not have, in fact, cooled off |
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What is CL involuntary manslaughter?
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A killing committed with criminal negligence OR a killing committed during a crime (misdemeanor)
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What are the 2 types of NY Homicide?
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1) Intentional Killings
2) Unintentional Killings |
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What are the 3 levels of intentional killings in NY?
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1) 1st Degree Murder
2) 2nd Degree Murder 3) 1st Degree Manslaughter |
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What are the 3 forms of NY 2nd Degree Murder?
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1) Intentional Murder
2) Highly Reckless/Depraved Indifference Murder (unintentional) 3) Felony Murder |
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What are the special circumstances used to bump up the charge to 1st D Murder in NY?
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1) Murder of a police officer
2) Witness intimidation 3) Murder for hire 4) During a serious felony 5) Judge 6) Torture Murder 7) In escape from a life sentence 8) Serial Killer 9) Terrorist Acts |
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What is (intentional) 1st Degree manslaughter in NY?
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Extreme emotional disturbance; intentional killing committed under the influence of a reasonably extreme emotional disturbance
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What are the 4 levels of unintentional killings in NY?
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1) Depraved Indifference Murder/Highly Reckless Murder
2) 1st D Manslaughter 3) Basic Recklessness 4) Criminally Negligent Homicide |
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What is Depraved Indifference Murder?
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Extreme Recklessness, utter disregard for human life from multiple people exposed to risk of death OR unintentional killing in a particularly brutal way
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What is (unintentional) 1st D Manslaughter in NY?
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Intent to cause serious physical injury that actually kills another
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What is Criminally Negligent Homicide?
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D should have been aware of what he was doing
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What is Basic Recklessness?
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Conscious disregard of a substantial risk, which causes the death of another person
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What is CL Felony Murder?
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Any death caused during the commission of or attempt to commit a felony
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What are the 6 limitations to CL Felony Murder?
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1) D must be guilty of the underlying felony
2) Felony must be "inherently dangerous" 3) Felony must be separate from the killing itself (Independent Felonious Purpose Rule) 4) Killing must be during the felony OR during immediate flight after 5) Death must be foreseeable 6) Dead person cannot be one of the felons |
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What is NY Felony Murder? (list 6 felonies)
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Murder committed during 6 felonies:
1) Burglary 2) Robbery 3) Kidnapping 4) Arson 5) Rape or sexual abuse 6) Escape |
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What is CL False Imprisonment?
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1) unlawful confinement of a person
2) without his valid consent |
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What is CL Kidnapping?
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The false imprisonment that involves moving the victim or concealing the victim in a secret place
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What is NY Kidnapping and its 1st D?
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Abduction of someone
1st Degree -> ransom, restraint with intent to injure, OR if victim dies during the event |
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What are the basic theft crimes?
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1) Larceny
2) Embezzlement 3) False Pretenses |
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What is CL Larceny?
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The trespassory taking
and carrying away of personal property of another with the intent to permanently deprive the owner of property |
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Is taking under a claim of right considered larceny?
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NO
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What is CL Embezzlement?
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The fraudulent conversion
of personal property of another by a person already in lawful possession of that property |
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What is CL False Pretenses?
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Obtaining title
to the personal property of another by an intentional false statement with the intent to defraud |
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What is Larceny by Trick?
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If the victim is tricked into giving up possession of something, not title
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The only basic theft crime in NY is what?
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Larceny, measured by amount of money stolen!
3rd D - $30,000 |
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What are the Violent Theft Crimes?
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1) Robbery
2) Extortion |
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What is CL Robbery?
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Taking of property from another's presence by force or threat of force with intent to steal
Larceny from another's person or presence by force or threat of immediate injury |
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What is CL Extortion?
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Robbery where the threat is a future injury
Blackmail - when the threat is of embarrassment |
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What is NY Robbery and its 3 degrees?
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The forceable stealing of property
3rd D - basic 2nd D - aided by another actually present OR victim is injured OR property stolen is a car 1st D - seriously injuring the victim OR using a LOADED FIREARM |
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What are the crimes against Habitation?
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1) Burglary
2) Arson |
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What is receipt of stolen property?
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1) Receiving possession and control;
2) Of "stolen" personal property; 3) Known to have been obtained in a manner constituting a criminal offense; 4) By another person; 5) With the intent to permanently deprive the owner of his interest in it. **Note, intent and act must be concurrent (eg, you must know it's stolen when you take it.) |
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What is forgery?
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1) Making or altering (by drafting, adding, deleting);
2) A writing with apparent legal significance; 3) So that it is false; (i.e., representing that it is something that it is not) 4) With intent to defraud. **No one need actually be defrauded. If 3rd person is caused to sign but doesn't realize he's signing, it's forgery. If he realizes he's signing it, it's not forgery. |
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What is possession of stolen property?
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Receiving stolen property and knowingly possessing it
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What is uttering?
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Offering a forged instrument with intent to defraud
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What is CL Burglary?
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1) A breaking (creating or enlarging an opening by at least minimal force, fraud, or intimidation);
2) And entering (placing any portion of the body or any instrument used to commit the crime into the structure); 3) Of a dwelling (a structure used with regularity for sleeping purposes, even if used for other purposes such as conducting a business); 4) Of another (ownership is irrelevant; occupancy by someone other than defendant is all that is required); 5) At nighttime; 6) With the intent to commit a felony inside (felony need not be carried out to constitute burglary) |
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When must the intent to commit a felony be present for burglary under CL?
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At the time of entry.
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What is CL Arson?
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1) The malicious (i.e., intentional or with reckless disregard of an obvious risk);
2) Burning (requiring some damage to the structure caused by fire); 3) Of the dwelling; 4) Of another. **Charring of wallpaper is considered arson, but not smoke damage **MBE Q's often assume that arson extends to structures other than dwellings. |
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Will an explosion constitute arson?
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NO, the damage must be caused by fire
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What is NY Burglary and its 3 degrees?
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3rd D -> entering or remaining unlawfully in a building with intent to commit a crime inside
**May be at night, may be a dwelling, no concurrence problem, any crime is OK 2nd D -> someone gets injured that didn't participate in the burglary OR weapon OR if it is a dwelling 1st D -> D must KNOW he is burglarizing a dwelling AND injury OR weapon |
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What is NY Arson? (4 degrees)
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4th D -> reckless burning of a structure
3rd D -> intentional burning of a structure 2nd D -> intentional burning if D KNEW or should have known someone was inside 1st D -> 2nd D & an explosive or incendiary device is used |
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When does an accomplice have an affirmative defense to felony murder?
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if:
(1) he did not commit or aid in the commission of the homicidal act; (2) he was not armed with a deadly weapon or substance; (3) he had no reasonable grounds to believe others were armed with deadly weapons or substances; and (4) he had no reason to believe any participant intended to engage in conduct likely to result in death. |
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In NY, if your co-conspirator is a police officer, can you still be guilty of conspiracy if all elements are met?
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YES. Even though he is a police officer and arguably cannot agree to the conspiracy, NY holds that lack of intent or capacity on the part of the co-conspirator is no defense to the charge. Especially when the sole co-conspirator is a police officer
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Which insanity defense is this?
D is not responsible if, as a result of mental disease or defect, D did not know the act was wrong or did not understand the nature and quality of his actions |
M'Naghten Test
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Which insanity defense is this?
D lacked the substantial capacity to know or appreciate either the nature and consequences of his conduct OR that his conduct was wrong |
NY Test
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Which insanity defense is this?
The Criminal Act is the product of mental disease or defect |
Durham Test
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Which insanity defense is this?
D is unable to control his actions or conform his conduct to law due to mental disease or defect |
Irresistible Impulse Test
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Which insanity defense is this?
D lacked the substantial capacity to either appreciate the criminality of his conduct or conform his conduct to the requirements of law |
MPC Test
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Under NY Law, can D be guilty of conspiracy when the co-conspirator is a police officer?
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YES. Lack of intent or capacity on the part of a co-conspirator is no defense to the charge of conspiracy, especially including when the sole conspirator is a police officer
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What kind of defense is entrapment?
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Affirmative defense
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Can you withdraw from inchoate offenses under CL?
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NO, but if you try, you are no longer vicariously responsible for crimes committed as part of a conspiracy
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Can you withdraw from inchoate offenses under NY law?
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YES, but it is very hard. Only by renunciation if you voluntarily and completely renounce it and prevent the crime from happening
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What do Factual and Legal Impossibility relate to?
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Attempt
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What situation arises when it is impossible to commit a crime because of circumstances beyond your control?
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Factual Impossibility
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What situation arises when what D thought he was doing was not even illegal?
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Legal Impossibility
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