Abrogated
Elimination of a rule of law by a court (when a legislature eliminates a rule of law, it is called "repealed"; when a court eliminates a rule of law, it is called "abrogation").
Actus reus
Criminal act.
Affirmative defense
I did the actus reus, but I am not guilty.
Agreed statements of fact
The State and the Defendant agree to the existence of a fact (sometimes referred to a stipulation of fact).
Allegata
That which is alleged.
Back end" of malice
That portion of malice that is rebuttably presumed to exist (lack of justification, lack of excuse, and lack of mitigation) based on evidence of the actus reus and a specific intent to kill or do serious bodily harm.
Bifurcated insanity proceeding
Case in which guilt-innocence phase and insanity phase (NCR phase) are bifurcated.
Blockburger
Analysis that treats a lesser included offense as the same offense as the greater offense into which it merges for sentencing purposes.
Burden of production, prima facie case, & sufficiency of the evidence
Prosecution's evidentiary requirement in order to be eligible to have the fact finder (judge or jury) deliberate on that count and render a verdict.
Burden of persuasion
Requirement of the moving party (prosecution as to elements and prosecution or defense as to affirmative defenses) to persuade the finder of fact by the requisite burden of persuasion, which for the prosecution is beyond a reasonable doubt.
Burden of proof
Combination of burden of production and burden of persuasion.
Bursting the bubble
Generating an issue, with sufficient evidence, of that which was otherwise rebuttably presumed against the generator.
Chilling effect
An indirect intrusion upon a constitutional right.
Circumstantial evidence, permissible inferences of fact, & inferred fact
Evidence other than direct evidence to establish a fact.
Competency to stand trial
Possessing the ability to understand the nature and object of the proceedings and the ability to rationally and factually assist counsel.
Concurrent intent
With intent to kill Victim A, shoots at Victim A's "kill zone," killing or wounding other victims.
Concurrent sentence
Serving multiple sentences at one time.
Concurring opinion
The opinion that agrees with the disposition of a case, but not with the rationale.
Statutory Construction
Conjunctive
In the aggregate; "and;" means all items are needed
Constructive
The legal fiction that, even though something is not so, it will be treated as if it were so (e.g., constructive possession).
Corpus delecti
The body of the crime (sometimes the term is used to mean the elements of the offense (actus reus and mens rea) and sometimes referred to as the body of the crime, plus the criminal agency of the Defendant).
Count
One offense of that charged in one count, accounting for whether there were multiple criminal transactions and whether there were multiple units of criminality.
Custody
Legal interest in personal property that is less than possession.
Deception
Knowing misrepresentation.
Diminished capacity
Partial insanity (only applies to specific intent offenses, and does not apply at all in Maryland).
Statutory Construction
Disjunctive
In the alternative; "or;" means any 1 is sufficient
Duplicity
Charging document that is defective because it charges two or more offenses in one count.
Statutory Construction
Ejusdem generis
Statute with a "laundry list" that is open-ended (e.g., A, B, C, and things like A, B, and C) means list is not closed & includes other items of the same kind as items on the list
Specific list, followed by a general term
Elements
Actus reus and mens rea or, alternatively, actus reus, mens rea, and criminal agency.
Enterprise liability
Liability of an entity (e.g., corporation, business association, partnership, and not liability of an individual).
Statutory Construction
Expressio unius, exclusio alterius
Expression of one thing (or more than one thing) is the exclusion of other things (e.g., A, B, and C) means list is closed
Expression of 1 (or some) means exclusion of others
Specific list, not followed by a general term
Fault liability
Liability requiring a mental state.
Felony
A high-level crime.
Flagship offense
Greatest offense under Blockburger.
Generating an issue
Bursting the bubble" with evidence that places an issue before the fact finder that had been rebuttably presumed against the generator.
Statutory Construction
In Pari Materia
Statutes that address the same subject matter should be construed together
Inchoate
Preparatory.
Inference of fact
All facts that implicitly flow from direct evidence, e.g., testimony that a gun was fired at close range at the head of a person = direct evidence; the shooter intended to cause death or serious bodily harm = inference of fact.
Insanity
Not criminally responsible by reason of insanity.
Insufficient funds
Not enough funds to cover an issued check and all other outstanding checks.
Judicial gloss
Judicial interpretation of enacted law.
Judicial notice
Court's acceptance, without requiring proof, of a well known and indisputable fact.
Jurisdiction
Power of a court over a matter, such as "subject matter jurisdiction," "juvenile jurisdiction," or "personal jurisdiction.
Juvenile
Individual below the age of adult criminal capacity.
Knowledge
Actual knowledge or knowing, practically certain, or willfully blind; constructive knowledge of should have known.
Larceny
Larceny by Trick
Common Law Crime Against Property (Possession - Custody)
Actus Reus: Taking and carry away tangible personal property of value from another's superior possessory interest by actual trespass (larceny) or constructive trespass (trick)
Mens Rea: Specific int
Legally inconsistent verdict
Not guilty" on a lesser included offense and "guilty" on a greater offense.
Statutory Construction
Legislative history
Written explanation of what a legislative body intended in enacting legislation.
Lucri causa
Not necessary to prove that the Defendant received or intended to receive goods in false pretenses.
Malum in se
Conduct that is inherently wrong.
Mala prohibita
Conduct that is not inherently wrong, but is prohibited solely because the legislature makes it a crime.
Mens rea
Mental state, scienter, guilty mind, criminal mind, criminal intent, or criminal culpability.
Merger doctrine
Sentence for a lesser included offense is absorbed into the sentence for a greater offense arising from the same transaction.
Misdemeanor
Low-level crime.
M'Naghten test
Insanity under the test of whether the Defendant had the ability to understand the criminality of the conduct.
Mullaney
Due process requirement of placing the burden of production on the prosecution and placing the burden of persuasion on the prosecution beyond a reasonable doubt.
Mullaney jurisdiction
Jurisdiction that places the burden of persuasion on the prosecution to disprove affirmative defenses.
Multiplicity
Charging document that is defective because it charges the same offense in multiple counts.
No fault liability
Criminal liability not requiring a criminal mental state.
Objective fault
The existence of a criminal mental state in the mind of a theoretical Defendant, whether or not that mental state actually exists in the mind of the Defendant in question.
Patterson jurisdiction
Jurisdiction that places the burden of persuasion on the Defendant to prove affirmative defenses.
Personal Jurisdiction / Territorial Jurisdiction
Power of a court over a Defendant for an act committed in that jurisdiction.
Personal jurisdiction in state courts is based on territorial jurisdiction (i.e., situs or locus of offense)
MD requires "essential," "key," or "vital" element in MD
Territorial
Permanent / Fixed / Settled condition
Alcohol or drug use that has reached the level of insanity, both when the alcohol or drugs are in the Defendant's system and when they are no longer in the Defendant's system.
Pinkerton rule
Entering into a conspiracy constituting commission of the substantive crime itself as an accessory before the fact.
Statutory Construction
Plain on its Face
For statutes with no ambiguity & only 1 possible meaning, apply everyday meaning to everyday words, phrases, & grammar
Use common sense approach; non-legal dictionaries
Apply common law meaning & stare decisis to common law terms of art (e.g., burglary)
A
Possession
Actual or constructive dominion and control.
Presumption of innocence
Another way of stating that the State bears the burden of production and burden of persuasion in a criminal case.
Probata
That proven.
Read in
The process of interpreting a statute that is silent as to mental state as having a mental state and not being a statute of strict liability.
Required Evidence Test
An analysis of the legal elements of a crime, and not an analysis of the facts of a crime, when determining whether one offense merges into another offense.
Juvenile Jurisdiction
Reverse Waiver / Transfer
Waiver
Reverse Waiver: Transferring a case from criminal court jurisdiction to juvenile court jurisdiction. Defendant has burden by preponderance of evidence and Circuit Court may not assume allegations are correct.
Waiver: Transferring a case from juvenile juri
Rule of Consistency
Conspiracy
Only applies when conspirators are tried jointly.
The acquittal of all but one conspirator requires the acquittal of the final conspirator (since there cannot be a conspiracy of one person).
There can be only one conspirator guilty if there are
Separation of powers
The three branches of government (legislative, executive, and judicial), with each branch separate in terms of functions and powers.
Statutory Construction
Severability
If one portion of a statute is unconstitutional, declare that portion of the statute unconstitutional, and sever or vacate that portion of the statute, and maintain the constitutional part of the statute.
If cannot be severed, the entire statute must be v
Situs / Locus
Location of a criminal offense.
Specific intent
Committing an act with the plan or purpose for that act to result in another act (e.g., the general intent of firing a gun with the specific intent that that act result in death).
Stipulations as to testimony or physical evidence
The State and the Defendant agree that there is evidence of that to which they have stipulated, but they do not necessarily agree that those facts actually exist.
Strict liability
Liability based solely on a criminal act with no criminal mental state required.
Sua sponte
On the trial court's own motion.
Subject matter jurisdiction
Power of a court to hear a given matter.
MD District Court: non-jury court of limited jurisdiction, with exclusive jurisdiction over (a) motor vehicle laws & State Boat Act, & (b) misdemeanors less than 3 years or less than $2,500
MD District Court & Circ
Subjective fault
The existence of a criminal mental state in the mind of this Defendant and not in the mind of a theoretical Defendant.
Thayer-Wigmore Rebuttable Presumption of Law
Shifting the burden or production from the State to the Defendant as to a few rebuttably presumed elements and as to all affirmative defenses.
Transaction
One criminal episode.
Transferred intent
Kill Victim B with no intent to kill Vitim B, but with intent to kill Victim A.
Trespass
Wrongfulness.
Unemancipated
Individual who has not yet reached the age of 18.
Unit of offense or criminality
One criminal act or one criminal count in a charging document.
Venue
County in which a crime occurred and where the case should be tried.
Which county: determined on territorial theory (i.e., situs of offense)
Burdens: venue rebuttably presumed, & defendant has the burden of production to present evidence to generate an is
Vicarious liability
Liable for the act of another person based solely on the relationship to that person.
Wilful blindness
Deliberate indifference.
Winship
The due process requirement of placing the burden of production and the burden of persuasion on the prosecution beyond a reasonable doubt.
Attempt
Inchoate Crime
Actus Reus: Substantial step, beyond mere preparation, toward commission of the substantive crime(s) attempted.
Mens Rea: Specific intent to accomplish the substantive crime(s) attempted.
Criminal Agency:
Withdrawal and Factual Impossibilit
Solicitation
Inchoate Crime
Actus Reus: Ask or induce another to commit the crime of _____ (must be a felony or breach of peace misdemeanor).
Defendant's efforts to solicit must be sufficiently clear to permit reasonable solicitee to understand (1) what is being asked
Conspiracy
Inchoate Crime
Actus Reus: Agreement to commit offense (minority & federal jurisdictions require an overt act in addition)
Criminal act is the illegal agreement, which need not be formal, written, or even spoken, as parties may tacitly agree to commit unl
Wharton's Concert of Action Rule
If substantive offense requires 2 individuals as a matter of law, then at least 3 individuals needed for conspiracy (e.g., dueling, adultery)
Plurality Requirement
Conspiracy
Must have number of individuals required for substantive offense plus at least one other individual (representing conspiracy)
Generally, a minimum of 2 individuals needed for conspiracy.
If substantive offense requires 2 individuals as a matter
Conspiracy Unit of Offense
Each "illegal community of interest" equals one conspiracy. Consider whether multiple conspiracies took place, and whether it is a chain conspiracy, wheel conspiracy, or hub-spoke conspiracy.
One agreement is one conspiracy regardless of number of crimes
Conspiracy Penalty
Maximum sentence for each conspiracy is same penalty as penalty for crime to which defendants conspired; if conspiracy involves multiple crimes, use the crime with the greatest penalty to determine the penalty for conspiracy (even if defendant found not g
Conspirator Liability
Conspirators deemed to be agents of each other, & are liable for all substantive offenses committed by co-conspirators (even if conspirator did not know or agree to co-conspirators committing those crimes), as long as the substantive offense was (1) fores
Continuing Trespass Theory
Theft - Crimes Against Property
If there is any wrongfulness in taking (e.g., taken with honest but unreasonable mistake of fact), any subsequent formations of required mens rea is deemed to coincide at time of actus reus
MR/MRS LAMB
Common law offenses
murder, rape, manslaughter, robbery, sodomy, larceny, arson, mayhem, & burglary
Sixth Amendment
Right to Jury Trial
When federal penalty exceeds six months or when MD statute penalty exceeds 90 days
In MD, if defendant requests a jury trial when District Court has subject matter jurisdiction, the case is transferred to Circuit Court because there ar
Assimilative Crimes Act (ACA)
For federal enclaves in states (e.g., military installations, federal buildings, national parks & forests), if "gap" in federal law, under ACA, federal law adopts state criminal law of state where federal enclave is
Statutory Construction
Construe Statutes as a Whole
Use plain meaning of words
Read statute as a whole to ensure no word, clause, sentence, or phrase is rendered surplusage, superfluous, meaningless, or nugatory
Rule of Lenity
If legislative intent cannot be determined, under rule of lenity, interpret statute most favorable to Defendant
Statutory Construction
Statutes Void for Vagueness
Statute too ambiguous to determine its meaning is unconstitutionally void for vagueness because due process requires statutes (1) provide fair warning & notice, (2) not be susceptible to arbitrary & discriminatory enforcement by police, prosecutors, & jud
Statutory Construction
Presumption of Legislative Awareness
Legislators deemed to know the law & judicial gloss on enacted law
Re-enactment, without change, after appellate opinion, is deemed to agree with court's interpretation
Quick legislative response that changes language (particularly striking change of expr
Statutory Construction
Strict or Narrow Interpretation
Statutes in derogation of common law: interpret ambiguity favorably to retaining common law
Criminal statutes: interpret criminal statutes favorably to defendant, unless legislation expressly provides for liberal construction
Statutory Construction
Presumption of Constitutionality
Construe statutes to avoid constitutional questions
Statutory Construction
Special Statutes Over General Statutes
If two statutes conflict, special statute controls over general statute
When "special over general" and "later over earlier" conflict, "earlier-special" statute controls over "later-general" statute
Statutory Construction
Later Statutes Over Earlier Statutes
If 2 statutes conflict, the later-enacted statute controls over the earlier-enacted statute because the legislature is deemed to know existing laws
When "special over general" and "later over earlier" conflict, "earlier-special" statute controls over "lat
Statutory Construction
Compare Statutes
Compare statute & court rule with same or similar law or rule in other jurisdictions or at common law
If identical or substantially similar as judicially glossed, "borrowed statutes doctrine" assumes that the borrowing state borrowed the judicial gloss
Statutory Construction
Compare Earlier Versions / Bills
Amendment, revision, or re-enactment, without relevant change, likely means approval of the earlier version, as interpreted; however, a change of expression in the current version, particularly a striking change of expression, means change in legislative
Statutory Construction
Generally
The process the court uses to determine legislative intent behind enacted law
Statutory Construction
Compare with Common Law or Terms of Art, as Judicially Evolved
More closely the statute or court rule parallels common law words or terms of art, more likely legislature intended to adopt the common law meaning
Statutory Construction
Mandatory vs. Discretionary Language
Mandatory language (a) includes "shall," "must," or negative language (e.g., "shall not," "must not," or "may not"); & (b) provides sanction for non-compliance (but statute may be mandatory even without sanction for non-compliance); "should," "may," or no
Statutory Construction
Plural vs. Singular
Singular means plural & plural means singular
Statutory Construction
Gender
Reference to 1 gender includes reference to the other
Statutory Construction
Verb Tense
Present tense words include future tense
Tenth Amendment
Powers not delegated to federal government are reserved to states
Double Jeopardy
Double jeopardy bars multiple prosecutions for same conduct by same sovereign
2 governments with concurrent powers may both prosecute same conduct (i.e., federal government & state government, 2 states, federal government & Native American tribunal)
State
Affirmative Act Offense
Situs of affirmative act offense is where prohibited conduct occurs
For murder & manslaughter, situs is where death blow inflicted (not where victim dies)
Failure / Omission to Act Offense
Situs of omission to act offense is where defendant should have acted
Required Result Offense
Situs includes where defendant intended act to take place, even if not entering the jurisdiction (e.g., kidnapping when detaining child outside MD, with intent to deprive custodial parent in MD)
Juvenile Jurisdiction
Generally
Person under certain age not subject to criminal jurisdiction, but subject to juvenile jurisdiction for conduct that would be criminal if committed by adult, but which is only delinquent when committed by a juvenile
Juvenile Jurisdiction
Step 1: Determining Criminal Court vs. Juvenile Court
If started as Adult in Criminal Court:
18-year-old - always adult
16-year-old - adult with possibility of transfer to juvenile court for (a) kidnapping, (b) 2nd degree murder, (c) voluntary manslaughter, (d) 2nd degree rape, (e) 2nd & 3rd degree sex offen
Juvenile Jurisdiction
Step 2: Keep, Waive, or Transfer Jurisdiction
If started as Adult in Criminal Court:
Defendant must decide whether to stay as adult or transfer / reverse waive to juvenile court. Burden is on defendant by preponderance of evidence to prove defendant is eligible for transfer. Ages 14-17, all offenses
Juvenile Delinquency Proceedings
Merits: relaxed rules of evidence in non-jury proceeding to determine whether evidence establishes beyond a reasonable doubt that juvenile committed acts that would be crime if adult
Disposition: If found delinquent, decide whether juvenile needs guidance
Embezzlement
Common Law Crime Against Property (Possession - Possession)
Actus Reus: Conversion tangible personal property of value after lawfully obtaining possession
Mens Rea: Specific intent to fraudulently obtain tangible property of value while in possession
Mens
False Pretenses
Common Law Crime Against Property (Title)
Actus Reus: Obtaining title to tangible personal property of value by material misrepresentation of a past or present fact detrimentally relied on by victim
Mens Rea: Specific intent to fraudulently obtain title t
Receiving Stolen Goods
Common Law Crime Against Property
(second generation of larceny, embezzlement, or false pretenses)
Actus Reus: Receiving actual or constructive possession of tangible personal property of value
Mens Rea: (1) Actual knowledge that tangible personal propert
Theft by Unauthorized Control
Statutory Crime Against Property
(replaces larceny and embezzlement)
Actus Reus: Obtaining unauthorized control of property
Mens Rea: Specific intent to deprive another of property through unauthorized control
Wilfully/knowingly obtaining, abandoning, usi
Theft by Deception
Statutory Crime Against Property
(replaces false pretenses)
Actus Reus: Obtaining control of property
Mens Rea: Specific intent to deprive another of property by deception
Wilfully / knowingly using deception of material fact past, present, or future fact
Theft by Criminal Possession / Possession of Stolen Goods
Statutory Crime Against Property
(replaces receiving stolen goods)
Actus Reus: Possessing (actual or constructive) property obtained through unauthorized control
Mens Rea: Specific intent to deprive another of property by criminal possession
Possessing w/
Misappropriation by Fiduciary
Statutory Crime Against Property
Actus Reus: Entrusted fiduciary used property other than as intended
Mens Rea: (1) Willful, and (2) specific intent to fraudulently misappropriate property
Wilfully & fraudulently
Money/thing of value
Belonging to another
Statutory Theft Defenses
Statutory defenses to theft are found in �7-110(c) & involve lack of mens rea. They are: (1) good faith claim of right; (2) honest belief of right to obtain or exert control; (3) property belonged to Defendant's spouse with whom Defendant resided at time
Continuing Theft Offense
Theft can be a single offense, continuing crime.
The State may aggregate the value of all property stolen pursuant to a scheme or continuing course of conduct to determine whether theft should be misdemeanor or felony.
Statutory Theft Value
Theft can be charged over $1,000 (felony), under $1,000 (misdemeanor w/max. 18 mos.), or under $100 (misdemeanor w/max. 90 days).
Value is an element of the offense. Valuation over $1,000 must be alleged and proven beyond a reasonable doubt. If not proven
Bad Check by Insufficient Funds
Statutory Crime Against Property
Actus Reus: (1) Passing negotiable instrument with insufficient funds, and (2) payment is refused
Mens Rea: (1) Actual knowledge of insufficient funds, and (2) specific intent that payment be refused
Check: Defendant passe
Bad Check by Stopped Payment
Statutory Crime Against Property
Actus Reus: (1) Stopping payment on a negotiable instrument, and (2) payment is refused
Mens Rea: Specific intent that payment be refused
Check: Defendant passed/signed a non-postdated check
Obtaining property/services: De
Common Law Forgery
Statutory Crime Against Property
Actus Reus: False making or materially altering a writing of apparent legal significance
Mens Rea: Specific intent to defraud
Making: Defendant made false writing
Altering: Defendant altered writing
Writing: Writing appear
Common Law Uttering
Statutory Crime Against Property
Actus Reus: Passing or attempting to pass a forged instrument
Mens Rea: (1) Actual knowledge that instrument is forged, and (2) specific intent to defraud
Presenting/passing: Defendant presented/ passed/attempted to pass a
Statutory Forgery
Statutory Crime Against Property
Actus Reus: False making or materially altering a statutorily enumerated document
Mens Rea: Specific intent to defraud
Writing: Writing appeared to be valid legal document (e.g., deed, will, power of attorney, promissory n
Statutory Uttering
Statutory Crime Against Property
Actus Reus: Passing or attempting to pass a statutory forged instrument
Mens Rea: (1) Actual knowledge that instrument is forged, and (2) specific intent to defraud
Presenting/passing: Defendant presented/ passed/attempted