Acing Criminal Law
Author:
Burkoff, John M.
Edition:
3rd
Copyright Date:
2017
24 chapters
have results for Acing Criminal Law
Conclusion: General Examination Tips 5 results
- Now that you have had a chance to look at the full set of checklists for each of the specific topics that you have covered or will be covering in criminal law, please consider some nuggets of general advice to help you ace your criminal law examination:
- It’s over. Don’t waste time talking with your classmates about the exam. You’ll just create more unnecessary anxiety for yourself. Focus on the next exam; or, if criminal law is your last exam, celebrate being done.
- On the exam, law professors are not simply looking for students to apply the law they have been taught to a given set of facts to achieve a result. In addition to demonstrating that ability, superior exam takers also demonstrate a depth of understanding that goes beyond their mere recognition of and facility with the black-letter law rules. The recognition of what lies behind difficult questions and reference to underlying policies is the mark of a good answer.
- First-year law school exams are often competitive affairs in the sense that one’s performance is evaluated against the performance of other students. As a result, simply knowing the material and properly applying the law to the facts may not be enough for you to excel where your peers can do the same thing.
- Do not neglect information regarding the basic policy underpinnings or implications of various legal principles learned in the course. These policies often are important in equipping you with the ability to resolve tough questions at the margins of the law, and they provide you with the rationales you need to have at hand to explain particular legal outcomes.
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Acknowledgments 1 result
Introduction 5 results
- So, what are you waiting for? Get out there and ace Criminal Law!
- The purpose of this book is to present you with a comprehensive set of checklists pertaining to each of the topics typically covered in a substantive criminal law course. The checklists are meant to provide you with a tool that facilitates the analysis of criminal law problems. Each chapter focuses on a different topic, typical and illustrative exam-type problems are posed and analyzed to illustrate just how the checklists can be used to resolve such problems. Each chapter concludes with a section entitled “Points to Remember” to recapitulate key points that you need to remember when answering exam questions. A concluding chapter provides some final thoughts on preparing for and taking exams generally. At the end of the book there is an Appendix that presents condensed “mini-checklists” for each topic. You may find these useful during the time crunch of an exam when you need quick access to the full range of major concepts that are pertinent to an issue.
- You should use this book to assist yourself in developing your own analytical process for addressing and answering the questions you will face on your examinations. The steps outlined in the checklists presented here can provide you with a map for how you should proceed when evaluating any given legal issue relating to criminal law. Funneling your analysis through the checklist will also improve the chances that your answer will fully display a reasoned analysis while also arriving at a sound conclusion. But these checklists can only be used effectively if you have a thorough understanding of the substantive material.
- This book does not attempt to explain substantive criminal law rules and doctrines in any great detail; rather, it seeks merely to organize these rules and doctrines into a dynamic tool that you can use to apply legal principles to typical fact patterns that you might face on exams. You should, of course, use these checklists in conjunction with your own course materials, particularly your class notes and your outlines, to prepare for your exams. Use of these checklists should enhance your ability to write reasoned and sound responses to examination questions. Further, these checklists should be helpful in putting the course material in perspective and providing a clearer picture of how the concepts you are learning should be integrated into a legal analysis. Finally, you should make sure to modify these checklists according to the areas of emphasis and coverage of your professor.
- Unfortunately, personal outlines often do no more than provide a restatement of various principles of law or doctrine organized by topic. It remains for you to take those doctrines and apply them to the fact patterns presented on exams. That process of applying legal principles to facts is a large part of what exams and lawyering are all about; knowing the relevant law is only half (oftentimes less than half) of the battle. So why are you and your fellow students devoting all of this time and energy into developing these miniature volumes on the course material and not putting more energy into developing a tool that could help guide your legal analysis or problems presented on exams?
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Chapter 1. Nature of Criminal Law 36 results (showing 5 best matches)
- Criminal vs. civil law.
- Common law roots
- Criminal law is different from civil law due primarily to stigma of criminal conviction and possibility of incarceration.
- s—the criminal law was but is no longer based upon the English Common Law.
- In 1962, the American Law Institute adopted a model Crimes Code called the Model Penal Code (MPC). The MPC provisions are not good law in and of themselves. Indeed, some provisions were never adopted by any state, and others are outdated by now. But many states have enacted significant portions of the MPC as a part of their own Crimes Codes, and many courts continue to refer to MPC provisions and commentary in interpreting criminal statutes. As a result, the MPC remains an important reference point for understanding criminal law in the United States.
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Chapter 14. Justification Defenses 28 results (showing 5 best matches)
- Indeed, Sealey’s actions were acts of civil disobedience. People who knowingly violate the criminal law to demonstrate their moral, ideological, religious or political sentiments should expect that they will have to face the punishment that the criminal law imposes as a result of their knowing violation of those laws.
- Justification defenses are criminal law defenses permitted in order to allow a person to make an appropriate response to certain external events. Excuse defenses, in contrast,
- Necessity is judged using an objective test: was the criminal conduct reasonably necessary? A person’s subjective belief that it was in fact necessary to avoid a greater evil is not controlling. The focus is upon what a reasonable person in those circumstances would believe.
- Consent of the victim is a valid justification defense for some, but by no means all, criminal offenses.
- —was the criminal conduct reasonably necessary?
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Chapter 3. Mens Rea 31 results (showing 5 best matches)
- Criminal vs. civil.
- It is important to be able to distinguish between recklessness and negligence in the criminal law. Most significantly, the concept of recklessness contains a subjective element, i.e. the accused must have “ ” disregarded a “substantial and unjustifiable” risk in order to have acted recklessly. Negligence in the criminal law, on the other hand, is strictly an objective concept, i.e. to be negligent, the accused
- Most regulatory criminal offense like this one are strict liability offenses. It is perfectly lawful for legislatures to enact criminal statutes that do not contain mens rea elements. If, indeed, this statute is strict liability, it doesn’t matter why Xylon broke the law, i.e. whether or not it had a blameworthy intent. It only matters that the corporation did in fact violate the law, as it readily concedes that it did.
- Because we normally associate blameworthiness with the existence of some level of criminal intent, most crimes do require proof of a mens rea, particularly most serious criminal offenses. However, at least one very serious criminal offense, statutory rape, is usually a strict liability offense.
- To establish that a crime has been committed, the prosecutor ordinarily must prove beyond a reasonable doubt that the accused acted with a particular “mens rea” (or culpable mental state), as required by law. The traditional view has long been that a person should not be found guilty of a serious criminal offense unless he or she possessed such a blameworthy mens rea. Indeed, the more blameworthy the mens rea, typically, the more serious the crime that the accused person has committed.
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Chapter 4. Mistake 27 results (showing 5 best matches)
- The general rule is that mistake of law is no defense to criminal conduct. If an accused person commits a criminal act believing that it is not criminal, that is simply no defense to a criminal charge.
- In contrast, an accused person’s mistaken belief about the applicable law that applies to his conduct—a mistake of law—is not a good mens rea defense to a criminal charge.
- A mistake of fact defense is one way of trying to negative the mens rea element of a criminal offense. A criminal defendant might argue that he or she did not act intentionally (when intentional conduct is the required mens rea) because it was not his or her conscious desire to commit the criminal act or obtain the criminal result at issue. Chapter 3 (Mens Rea). A defendant using a mistake of fact defense is arguing further that the required mens rea did not exist because he or she honestly believed—mistakenly—that circumstances existed that did not make the act criminal (or, at least, not the criminal offense that was actually charged).
- The police officer who stopped Schwartz and issued him a criminal traffic citation told him that that was not the law and that he faced a $250 fine for making an improper left turn.
- Yes, depending however upon the terms of the underlying criminal statute. This slight change in the facts from Problem 4.2 makes this a mistake of fact case rather than a mistake of law case.
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Chapter 2. Actus Reus 22 results (showing 5 best matches)
- Criminal statutes do not usually require people to help other people, even other people who are in trouble. For example, even if a person has ample means to help someone who is homeless or who has been in a car accident, he or she has no obligation that is enforceable at criminal law to come to that person’s assistance. Similarly, someone who can swim (but does not have a duty to act, like a lifeguard) is not responsible at criminal law for his or her failure to come to the aid of a drowning swimmer.
- mean that people are not responsible for failing to follow criminal laws of which they are unaware. That is the law. holding applies only to excuse failures to act in the rare cases where a person is not reasonably on notice that a criminal or regulatory statute may exist to govern his or her conduct.
- Is Kelley responsible at criminal law for his death? Is she guilty of some form of homicide, for example?
- Here, Kelley did not do something to her father; rather, she failed to do something. She failed to give him sufficient food and hydration and medication to live. But, as in the preceding problem, this is an omission, a failure to act, and omissions are not ordinarily held to be culpable at criminal law. Unless, however, some exception to the general rule exists.
- Someone who cannot swim, for example, has not committed a crime when he or she does not try to jump in a pool and rescue a drowning swimmer. This is true even if the drowning swimmer is the person’s child and, hence, a legal duty to act exists based upon that status relationship. A person is not required by the criminal law to take steps of which the person is not physically capable. However, that same person—watching his or her drowning child—might have committed a crime by failing to do something that he or she was physically capable of doing, e.g. calling for help.
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Chapter 5. Causation 25 results (showing 5 best matches)
- But most jurisdictions use more stringent tests than the civil law, requiring a demonstration of a closer causal link than in tort law. This is because a criminal conviction results in the imposition of punishment, including incarceration often, rather than the award of mere economic damages as in tort law.
- The tort law legal causation test is “proximate cause.” A minority of jurisdictions use this same test (or at least this same name) to assess legal causation in criminal law.
- Legal causation test stricter in criminal law than tort law.
- Multiple actors may be the but for cause of the same criminal result. Where multiple mortal wounds, but for test met if actors acted at same time; mixed law if acted successively.
- Such criminal law legal causation tests are often referred to by such names as “efficient cause,” “main cause,” and “direct cause” tests. But invariably, they include some consideration both of what the actor should have reasonably foreseen might occur when he or she acted, as well as the presence of unforeseeable intervening or supervening causes that may have occurred and led more directly to
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Copyright Page 1 result
Acing 1 result
Chapter 6. Accomplice & Vicarious Liability 33 results (showing 5 best matches)
- The law in most jurisdictions is that an accomplice may not successfully withdraw or renounce his or her criminal intention after a criminal act has already taken place. But this is a defense in a few jurisdictions if it occurs before the criminal act, and the actor keeps the crime from occurring. MPC § 2.06(6) provides for just such a defense where the actor “(i) wholly deprives [the assistance] of effectiveness in the commission of the offense; or (ii) gives timely warning to the law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense.”
- Chapter 8 (Conspiracy), are held responsible under the criminal law for the reasonably foreseeable actions of their co-conspirators undertaken in furtherance of the conspiracy. This rule is often called the “
- A person may be convicted of a crime vicariously, i.e. on the basis of another person’s criminal conduct for which the first person is held responsible by law even though he or she was not directly involved in it.
- —criminal conviction may be based upon another person’s criminal conduct.
- Given an appropriate statute (and there is one under the federal Food, Drug and Cosmetic Act), a corporate officer can be held vicariously responsible for the criminal acts of a subordinate corporate agent or employee. But such vicarious liability cannot attach where the corporate officer can demonstrate that he or she was powerless to prevent the criminal activity from occurring.
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Appendix. Mini-Checklists 78 results (showing 5 best matches)
- —the criminal law was but is no longer based upon the English Common Law.
- NATURE OF CRIMINAL LAW
- —“[a] person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.”
- —criminal conviction may be based upon another person’s criminal conduct.
- Criminal System
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Chapter 15. Excuses 33 results (showing 5 best matches)
- are criminal law defenses that are accepted because the person acting is deemed not to be blameworthy for some appropriate reason. Justification defenses
- MPC § 4.01(1) provides that “[a] person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.”
- —“[a] person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.”
- Insanity is a complete defense to any criminal charge. Diminished capacity is a way of negativing the mens rea of a specific criminal offense or mitigating its severity which usually can be made out with a lesser showing of mental disorder than is necessary to establish insanity.
- A claim of entrapment can be used as a complete defense to criminal charges when an accused person establishes that his or her criminal activity was actually the product of significant government encouragement.
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Chapter 12. Homicide 26 results (showing 5 best matches)
- A common law rule of evidence used in most jurisdictions, the corpus delicti rule, prohibits the admission of an accused person’s confession at a criminal trial until the prosecution first introduces independent evidence that the crime described in the confession actually occurred.
- A number of jurisdictions have enacted homicide crimes that apply strictly to deaths that occurred while an accused person was driving a car and violating an applicable traffic law. Depending on the jurisdiction, such crimes might have either a recklessness or (civil or criminal) negligence mens rea.
- The mens rea showing required for involuntary manslaughter varies significantly by jurisdiction. In many jurisdictions, the mens rea required is “gross negligence” (sometimes called “criminal negligence”).
- MPC § 210.4—and some jurisdictions—criminalize the separate offense of negligent homicide. In a jurisdiction where involuntary manslaughter requires proof of recklessness (rather than criminal negligence), the separate crime of negligent homicide creates a lesser level of homicide which applies to those killings that occur merely as a result of an accused person’s criminal negligence.
- Model Penal Code (MPC) § 210.2(1)(b) provides in relevant part that “criminal homicide constitutes murder when. . . it is committed recklessly under circumstances manifesting extreme indifference to the value of human life.” The MPC calls this type of homicide “depraved heart murder.”
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Table of Contents 6 results (showing 5 best matches)
Chapter 8. Conspiracy 17 results (showing 5 best matches)
- In many jurisdictions, co-conspirators are held responsible under the criminal law for the reasonably foreseeable actions of their co-conspirators undertaken in furtherance of the conspiracy. This rule is often called the “
- Some law professors and judges argue that conspiracy should not be a crime as it often overlaps with attempt and solicitation, and with completion of the offense that was the aim of the conspiratorial agreement. Many commentators also argue that the “sweep” of the conspiracy offense is too broad, netting relatively minor players and treating them as equal co-conspirators with criminals whose culpability is much greater.
- A corporation—acting through its employees or agents—may be a party to a criminal conspiracy with another person or another corporation. Two or more agents or employees of the same corporation may also—through their conspiratorial acts—create a criminal conspiracy.
- A withdrawal is not complete if a conspirator stops conspiring to commit one criminal objective while continuing to try and accomplish another criminal objective.
- In federal criminal law, the “Racketeer Influenced and Corrupt Organizations Act,”
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Chapter 10. Assault 15 results (showing 5 best matches)
- At common law (and in some jurisdictions still today), a person committed a criminal assault where he or she intentionally placed another person in actual and reasonable fear of an imminent battery.
- Additionally, some other aggravated assault statutes punish assaults which are committed upon a particular category of victims, such as children, the elderly, police officers, or firemen. Still other aggravated assault statutes punish more severely assaults that are predicates to more serious criminal acts, e.g. assault with intent to rape or assault with intent to murder. And, as yet another example, some aggravated assault statutes punish more severely assaults that are committed in a particular way, e.g. while the perpetrator was carrying a gun or driving a vehicle.
- common law assault and common law battery, as discussed). Often simple assault is treated as a misdemeanor and aggravated assault as a felony.
- Under the common law, assault and battery were separate and distinct crimes. Today, following the lead of the Model Penal Code (MPC), most jurisdictions have merged these separate crimes into one simple assault offense.
- At common law (and in some jurisdictions still today), a person committed the crime of battery by intentionally touching another person against that person’s will, thereby injuring him or her.
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Chapter 7. Attempt 22 results (showing 5 best matches)
- The abandonment defense is, however, available only under certain specific conditions. MPC § 5.01(4) provides, for example, that “it is an affirmative defense that [the accused] abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. . . [R]enunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor’s course of conduct, that increase the probability of detection or apprehension or that make more difficult the accomplishment of the criminal purpose. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim.”
- A good abandonment defense is generally based upon proof of an actor’s internal decisions not to persist in criminal conduct. The defense is inapplicable where the abandonment was instead prompted by external changes in the circumstances of the criminal conduct which increased the risks involved or motivated the actor to postpone the conduct until a more propitious time or to target another person.
- As to the mens rea of attempt, King had the intent to commit the specific crime of possession of marijuana. As to actus reus, arguably, he came close to accomplishing that criminal goal (the test in a minority proximity jurisdiction), and certainly he took a substantial step toward the criminal conduct as he tried his best to actually purchase marijuana (substantial step test is the majority approach).
- It was arguably not voluntary as he did not desist due strictly to his own internal decision not to continue his criminal conduct, but rather because he was prompted by an unanticipated external change in the circumstances (she told him she was having her period and that made commission of the criminal offense less desirable to him). And his withdrawal and desistance was clearly not complete here. Parkerman made it clear that he would try it again (“Next time, baby!”).
- Attempt is one of three common inchoate offenses: attempt; conspiracy; and solicitation. See Chapter 8 (Conspiracy) & Chapter 9 (Solicitation). An inchoate offense is a criminal offense committed by a person who is trying to commit another crime (the choate offense).
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Chapter 9. Solicitation 14 results (showing 5 best matches)
- A renunciation is not complete if the person making it abandons the solicitation of one criminal objective while continuing to solicit the accomplishment of another criminal objective.
- After a criminal solicitation has occurred, some jurisdictions (and the MPC) permit a person to defend against a solicitation charge by proving that he or she completely and voluntarily renounced his or her original criminal intention and thereafter prevented the commission of the crime by the person solicited. This renunciation defense is similar to that recognized for the inchoate offense of conspiracy.
- Chapter 7 (Attempt) & Chapter 8 (Conspiracy). An inchoate offense is a criminal offense committed by a person who is trying to commit another crime (the choate offense).
- Nor is it solicitation to simply express one’s approval of another person’s criminal intentions. But the crime of solicitation can be committed where a person does not personally initiate discussion of the commission of a crime, but nonetheless expressly encourages someone else who has already decided to commit it to do so.
- The act element of solicitation includes conduct that falls short of the conduct necessary—a conspiratorial agreement—to establish a criminal conspiracy.
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Chapter 13. Theft 28 results (showing 5 best matches)
- Robbery is a separate criminal offense under the MPC and in jurisdictions with consolidated theft crimes.
- —failure to return rental property criminal.
- Theft law is quite different today than it was at common law. Common law theft crimes had a very narrow and limited application, and often consisted of a set of complicated and arcane elements. In contrast, modern theft crimes tend collectively to cover significantly more larcenous conduct and to have clearer and less confusing elements.
- The MPC addressed the common law’s confusing array of convoluted theft crimes by “consolidating” the most common separate crimes at common law into one single, inclusive theft offense. This consolidated theft-crime approach is followed today in a majority of states.
- Common law.
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Chapter 11. Sex Crimes 30 results (showing 5 best matches)
- A common criticism of the absence of consent requirement is that, in practice, it means that the victim must prove that he or she did not consent to the sex act in question. We do not have that sort of requirement with any other criminal offense in the Crimes Code, e.g. we do not make robbery victims prove that they did not consent to the taking of their wallets.
- Common law rape.
- Common law evidentiary requirements.
- At common law and until relatively recently, a husband could not rape his wife as a matter of law. In large part, this immunity stemmed from the outdated and sexist belief that a wife had no grounds to refuse her husband’s demands that she engage in sexual intercourse with him.
- Chapter 10 (Assault), with the additional required element of proof of a specified sexual component. The applicable law defining and relating to rape and other sex crimes has changed significantly in recent years.
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West Academic Publishing’s Law School Advisory Board 10 results (showing 5 best matches)
- Distinguished University Professor, Frank R. Strong Chair in LawMichael E. Moritz College of Law, The Ohio State University
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Professor of Law, Yale Law School
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
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- Publication Date: July 6th, 2017
- ISBN: 9781683288084
- Subject: Criminal Law
- Series: Acing Series
- Type: Exam Prep
- Description: This study aid features an innovative method of content organization. It uses a checklist format to lead students through questions they need to ask to fully evaluate the legal problem they are trying to solve. It also synthesizes the material in a way that most students are unable to do on their own, and assembles the different issues, presenting a clear guide to procedural analysis that students can draw upon when writing their exams. Other study aids provide sample problems, but none offer the systematic approach to problem solving found in this book.