criminal law exam 1

Criminal Law

what constitutes a crime and what punishment can be imposed for committing crimes

Criminal procedure

puts substantive criminal law into action. It is concerned with the processes used to bring criminals to justice, beginning with police investigation and continuing throughout the process of administering justice

General Deterrence

attempts to deter all members of society from engaging in criminal activity.

Specific deterrence

seeks to deter individuals already convicted of crimes from committing crimes in the future

Incapacitation

also referred to as restraint, is the third purpose of criminal punishment. Incapacitation does not seek to deter criminal conduct by influencing people’s choices, but prevents criminal conduct by restraining those who have committed crimes (prison)

Rehabilitation

another purpose for punishing offenders. The theory of rehabilitation is that if the criminal is subjected to educational and vocational programs, treatment and counseling, and other measures, it is possible to alter the individual’s behavior to conform to social norms.

Retribution

punishment through the criminal justice system is society’s method of avenging a wrong.

Restitution

courts occasionally order offenders to compensate their victims for their actual losses ($$$)

Restoration

focuses on healing victims and restoring the offender to the community.

Common law

Oldest form of criminal law from England, original 13 colonies era

Stare Decisis

Letting judicial decisions stand

Ordinances

laws enacted by city, county, and other local governments. Most ordinances are administrative or civil. But most municipalities are also empowered by their states to make criminal laws.

Police Power

Constitutional authority of the states tp regulate for the health and welfare of people

Supremacy Clause

The U.S. Constitution is the Supreme Law of the Land

Commerce Clause

Congress can regulate sales/trades of goods and services across state lines and international borders

Utilitarianism

Making people feel like justice has been served

Sources of Criminal Law

legislation, judicial, administration, constitution, model penal code

Model Penall Code

A proposed criminal code prepared jointly by the Commission on Uniform State Laws and the American Law Institute.

Mens rea

the mental of a crime. It is often defined as “a guilty mind” or possessing a criminal intent. The state of mind required to be criminal liable for a certain act.

General Intent

The desire to commit a prohibited act but not the outcome of that act

Specific Intent

An intent to commit the exact crime charged or the precise outcome of the act, intended to commit the crime.

Scienter

knowingly; with guilty knowledge

Constructive Intent

Did not intent to but was in a bad mental state and was reckless.

Transferred Intent

The principle that if an unintended illegal act results from the intent to commit a crime, that act is also a crime.

Model Penal Code States of Mind

Purposeful, Knowing, Reckless, Negligent

Malum in Se

Inherently evil crimes such as murder, rape,

Malum Prohibitum

a crime we “made up” such as embezzlement, tax fraud

Strict Liability

minor violations, punished by fines and not incarceration.

Vicarious Liability

Legal responsibility for the acts of another person because of some relationship with that person.

Corporate Liability

The liability of a corporation for the acts of its directors, officers, shareholders, agents, and employees.

Injunctions

A judge’s order to a person to do or to refrain from doing a particular thing

Subjective Intent

Facts, inferences, presumptions (hard to prove)

Objective Intent

judging a person’s intention by their onward words and actions (easier to prove)

Negligence

Under the MPC, a defendant acts negligently when the resulting harm or material element of a crime occurs because of the defendant has taken a substantial and unjustifiable risk, even if the risk is not perceived, so long as the risk involves a gross deviation from the standard of conduct that a law-abiding person would observe.

Recklessness

Indifferences to the safety and rights of others and the consequences

Actus reus

the physical part of a crime; the act engaged in by the accused. Voluntariness, thoughts, personal status, and possession as an act

Actus Reus vs Mens Rea

only requires a voluntary choice of movement. No evil intent is required to have an act; that is a question of mens rea.

Actus reus: omission as acts

Failure to act when required such as moral duty to report or to act that is imposed by statute, by relationship, by contract, assumption of duty, creating danger

Legal Cause

The proximate cause of an injury

Proximate cause

The legal cause of an accident. the injury is not necessarily the closest thing in time or space to the injury, and not necessarily the event that set things in motion, because “proximate cause” is a legal, not a physical concept.

foreseeability

The degree to which the consequences of an action shouldhave been anticipated, recognized, and considered beforehand. Nothindsight.

intervening cause

A cause of an accident or other injury that will remove the blame from the wrongdoer who originally set events in motion.

Year and a Day Rule

Common law that a person could not be charged with murder if the victim did not die within one year and one day after the act took place

Concurrence

the joining of mens rea + actus reas. The mens tea must be the cause of the actus reas

Attendant circumstances

Facts or conditions that must be proven, along with the mens rea and actus reus, for a defendant to be convicted

Offense analysis

the assignment of a single mens rea to an offense

Element analysis

The assignment of separate mens rea to each element of an offense

Lesser included offense

A crime whose elements are found completely within the elements of a more serious crime. If the more serious offense is proven, the lesser included offense merges into it and only the more serious offense is punished.

Merger

When a person is charged with two crimes (based on exactly the same acts). one of which is a lesser included offense of the other. The lesser crime merges because of double jeopardy

Predicate Offense

An act or offense that is an element of another crime (ex. breaking AND entering)

Double Jeopardy

can’t be tried for the same crime twice.

Homicide

the killing of one human being by another

Express Murder

Unlawful killing of a human being with malice aforethought

Implied Murder

When the defendant intended to cause serious harm and death resulted

Deadly weapon doctrine

A rule that permits juries to infer an actor’s intent to cause the death of a victim when an instrument or death has been used in a manner that is likely to cause death or serious bodily injury

Felony murder

All co-felons are responsible for all homicides that occur during their crime, regardless of who committed the homicide and their individual mens rea.

Manslaughter

less severe than murder, involving the wrongful but non malicious killing of another person

Communicable disease and murder

Deliberately infecting someone, hopping they could become serious ill from it.

Provocation

An act by a victim that reasonably causes another to respond with violence, mitigating a crime

Common Law vs MPC on murder

CL used express murder and MPC adopted murder, manslaughter, and negligent homicide

First-degree murder

The highest form of homicide. The killing of another person with malice and premeditation, cruelty, or done during the commission of a major felony is typically murder in the first degree.

Second degree murder

Murder without premeditation

Suicide in Common Law

used to be criminalized, it is criminal to encourage or aid another to commit suicide. varies by states on assisted suicide. Typically punished less severely than murder

Assault

awareness, reasonable apprehension of danger or harmful physical contact.

Battery

Intentional, offensive, harmful touching without consent

Mayhem

The crime of violently, maliciously, and intentionally giving someone a serious permanent wound. In some states, a type of aggravated assault. Once, the crime of permanently wounding another (as by dismemberment) to deprive the person of fighting ability.

Corpus Delicti

“The body of the crime.” The material substance upon which a crime has been committed; for example, a dead body (in the crime of murder) or a house burned down (in the crime of arson).

How to prove battery?

it must be shown that a contact was made. Making contact is not necessary to prove an assault. However, it is possible to have both an assault and a battery.

Aggravated assault/battery

the actor is engaged in committing another crime

Rape

the crime of imposing sexual intercourse by force or otherwise without legally valid consent

Common law elements of Rape

sexual intercourse with a woman, not the man’s wife and committed without the victim’s consent and by using force

Rape

a gender neutral act, depending on states, some sex acts are covered/not covered and without consent

Nonforcible Rape

Statutory rape, intercourse with a minor

Rape Shield Laws

A state law that prohibits use of most evidence of a rape (or other sexual crime) victim’s past sexual conduct at trial.

Megan’s Law

Requires sex offenders to register with local law enforcement agencies. Then registration information is available to the public.

Sodomy

seen as “unnatural” sex acts, prohibited in most statements, disagreement around enforcing this law between consenting adults

Kidnapping

Taking away and holding a person illegally against their will by force. Unlawful taking and confinement and asportation of a person

False Imprisonment

Lesser included offense of kidnapping. The unlawful restraint by one person of the physical liberty of another by the use of threat or force without authority. Absence of asportation is an element.

True threat

Speaker knowingly, purposefully, or recklessly intends to communicate a serious expression of an intent to commit unlawful violence to someone or a group that would cause serious bodily harm or death. Not protected by the first amendment

Stalking

Repeatedly harassing, threatening, lying in wait, or conducting surveillance of another person that leads to physical harm.

Cyberstalking

the crime of using commmunication technology to transmit obscene, abusive, or harassing language intended to harass or threaten another person

Standards for regulating speech by SC

If it is likely to result in imminent lawlessness and the speaker intends to cause that lawlessness

Arson

The malicious and unlawful burning of a building.

Burglary

Any unlawful entry of any structure for purpose of committing a felony or stealing

Trespassing

The unlawful touching of the personal property of another or entry into another’s real property

Criminal Mischief

The criminal offense of intentionally destroying another person’s property

Larceny

The trespassers taking and carrying away of personal property of another with the intent to permanently deprive the owner of possessing

Embezzlement

Conversion of personal property ($$$) of another by one who has acquired a lawful profession with an intent to defraud the owner

Conversion

The process of stealing property that is obtained lawfully

false pretenses

A lie told to cheat another person out of his or her money or property. It is a crime in most states, though the precise definition varies.

Receiving Stolen Property

The criminal offense of getting or concealing property known to be stolen by another

Robbery

The illegal taking of property from the person of another by using force or threat of force.

Extortion or Criminal Coercion

To acquire property or money using threats of harm to person, property, or reputation.

Sextortion

The use of sexual images of a person to commit extortion.

Mail and Wire Fraud

Devise or intend to devise a scheme to defraud and the use of mail (wire, radio, television) for the purpose of executing, the scheme related to false pretenses.

Racketeer Influenced and Corrupt Organization Act (RICO)

A broadly applied federal law that creates certain racketeering offenses that include participation in various criminal schemes and conspiracies and that allows government seizure of property acquired in violation of the act.

To establish a RICO violation, the US must prove that the:

• Defendant received money or income

• from a pattern of racketeering activity

• invested that money in an enterprise (business)

• which operates in interstate commerce or affects interstate commerce

Forfeiture

A deprivation of money, property, or rights, without compensation, as a consequence of default or the commission of a crime.

Money Laundering

Channeling money through legitimate businesses in order to hide profits by criminal enterprise