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MBE Bar Studies > Crim Law > Flashcards

Crim Law Flashcards

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1
Q

Actus Reus

A

A required component of every common law crime, along
with mens rea
D must perform a voluntary physical act, i.e., a voluntary
bodily movement

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2
Q

Mens Rea

A

The mental element required at the time a crime was committed
• A required component of every common law crime, along
with actus reus

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3
Q

Specific Intent

A

D must have a specific intent or objective to commit the given crime
» Specific intent must always be proven; never inferred
» Mistake of fact and voluntary intoxication are available defenses

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4
Q

General Intent

A

D must be aware of his actions and any attendant circumstances
» May be inferred from the act itself
» Note — most crimes are general intent crimes

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5
Q

Malice Intent

A

D acts with reckless disregard or undertakes an obvious risk, from which a harmful result is expected
» Applies to arson and common law murder

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6
Q

Actual Causation

A

But for D’s conduct, the result would not have occurred
» For homicide and manslaughter, any act by D that
hastens victim’s death is a cause-in-fact, even if death
is already inevitable

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7
Q

Proximate Cause

A

The actual result is the natural and probable consequence of D’s conduct, even if it did not occur exactly as expected
» Superseding factors break the chain of causation
» Intervening acts must be entirely unforeseeable to shield D from liability (e.g., victim’s refusal of medical treatment, third-party medical negligence — both are foreseeable and D is liable)

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8
Q

Specific Intent Crimes

A 
Attempt
Larceny & Robbery
Forgery
False Pretenses
Embezzlement
Conspiracy
Assault
Burglary
First-degree murder
Solicitation
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9
Q

Accomplice

A

One who aids, encourages, or counsels principals committing a crime, with the intent to encourage its commission
• Mere presence at the crime is not enough; there must be some assistance

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10
Q

Accomplice Liability

A

Accomplice is liable for the original crime and other

foreseeable crimes committed by the principles in its furtherance

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11
Q

Withdrawal - Accomplice

A

D can effectively withdraw before the crime is committed or becomes unstoppable
» D must negate or repudiate initial aid or encouragement

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12
Q

Accessory After the Fact

A

Different than accomplice liability
• Involves helping someone escape or avoid apprehension
• Gives rise to a separate, lesser charge of obstruction of justice

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13
Q

General Intent Crimes

A

1) Battery
2) Rape
3) Kidnapping
4) False imprisonment

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14
Q

Malice Crimes

A

1) Common law murder (malice aforethought)

2) Arson

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15
Q

Strict Liability Crimes

A

1) Statutory rape
2) Regulatory crimes
3) Administrative crimes
4) Morality crimes (e.g., bigamy, polygamy)

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16
Q

Transferred Intent

A

D may be held liable if he intends the harm caused, but causes it to a different victim or object than intended
• Often applies to homicide, battery, and arson
» Does not apply to attempt
• Defenses and mitigating circumstances may also be
transferred

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17
Q

Effect of Transferred Intent

A

D is usually charged with two crimes:
1) Attempt (to commit the originally intended crime)
2) The actual resulting crime
• E.g., D intends to shoot A, but kills B; D can be charged with
the attempted murder of A and the actual murder of B
» Note — merger does not apply because there are
different victims

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18
Q

Solicitation

A

Inciting, urging, or otherwise asking another to commit a crime with the intent that they commit the crime
• No affirmative response from the solicited party is required
Merges with offense.

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19
Q

Defenses to Solicitation

A

Very few defenses apply to solicitation
• Refusal by the solicitee is not a defense
• Impossibility and withdrawal are not defenses
• MPC allows renunciation as a defense, but common law does not
» Most jurisdictions follow the common law approach

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20
Q

Conspiracy

A

An agreement between two or more people to commit a crime

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21
Q

Elements of Conspiracy

A

1) An agreement between two or more people
» I.e., a “meeting of the minds”
» Express agreement is not required
» Parties do not need to know of each other’s existence
2) Intent to enter into the agreement
3) Intent to commit the target crime or pursue the unlawful
objective
4) An overt act in furtherance of the target crime
» Any slight act will suffice under most modern statutes
» Not a required element at common law

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22
Q

Defenses to Conspiracy

A

Impossibility is not a defense to conspiracy

• Withdrawal is not a defense to conspiracy but may be a defense to liability for co-conspirators’ subsequent crimes

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23
Q

Co-Conspirator Liability

A

Each conspirator is liable for co-conspirators’ crimes that are:

1) Foreseeable, and
2) Committed in furtherance of the conspiracy

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24
Q

Acquittal of Co-Conspirators

A

If all alleged co-conspirators are acquitted, no party can be convicted of conspiracy
• However, a person can be convicted of conspiracy even if his co-conspirators have not been found or charged

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25
Q

Withdrawal from Conspiracy

A

One cannot withdraw from the conspiracy itself
» One can withdraw from co-conspirators’ subsequent
crimes, including the target offense of the conspiracy
• Affirmative act required — withdrawal is effective when the
withdrawing party makes an affirmative act that notifies his
co-conspirators he is withdrawing
• Must be timely — withdrawal must give enough time for coconspirators to abandon plans for the target offense
• The withdrawing party must attempt to neutralize the effect
of any assistance he provided to the original conspiracy

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26
Q

Attempt

A

An act, done with the intent to commit a crime, that constitutes
an overt or substantial step towards committing the crime but falls short of completing the crime
• I.e., an incomplete act that would be a crime if completed

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27
Q

Overt Act Attempt

A

D must commit an act beyond mere preparation
• Substantial step — D must take a substantial step towards
committing the target crime

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28
Q

Defenses to Attempt

A

Legal impossibility
• Legal impossibility is a defense
• Factual impossibility is not a defense
• Abandonment is not a defense — liability for the attempt
arises once D commits an overt act concurrently with the
intent to commit a crime (i.e., D will be liable for attempt of a
given crime before he can abandon the crime)

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29
Q

Merger

A

Merger concerns the relationship between an inchoate offense and its completed substantive offense
• When merger applies, the inchoate offense (e.g., attempt)
merges into the target offense, prohibiting D from being
prosecuted for both crimes

Only Solicitation and Attempt and FMR

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30
Q

Insanity

A

Depending on jurisdiction, one of four tests is used to determine whether D was so mentally ill when he committed a crime that he should be entitled to acquittal
• A defense to all crimes, regardless of the intent requirement

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31
Q

Four Insanity Tests

A

M’Naghten
Irresistible Impulse
MPC
Durham

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32
Q

M’Naghten Test

A

D doesn’t know right from wrong
» Due to a mental disease or defect, at the time of the
offense D lacked the ability to know the wrongfulness of his conduct or understand the nature and quality of
his act

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33
Q

Irresistible Impulse Test

A

D acted due an irresistible impulse

» Due to a mental illness, D was unable to control his actions or conform his conduct to the law

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34
Q

MPC Insanity Test

A

Combination of M’Naghten & Irresistible Impulse
» As a result of D’s mental disease, D lacked the capacity
to either appreciate the criminality of his conduct or
conform his conduct to the requirements of the law

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35
Q

Durham Test

A

But for his mental illness, D would not have acted

» D’s conduct was the product of a mental illness

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36
Q

Infancy Defense

A

A defense to criminal liability for minors
• Under 7 years old — no criminal liability
• 7-14 years old — rebuttable presumption against criminal
liability

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37
Q

Diminished Capacity Defense

A

A defense based on D’s mental defect
• Available if D can show that he has some mental defect
short of insanity that prevented him from forming the mental state required for the crime
• Usually limited to specific intent crimes

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38
Q

Due Process Defense

A

The Due Process Clause forbids D from being tried, convicted, or sentenced if, as a result of his mental disease or defect, D is unable to either:

a) Understand the nature of the proceeding brought against him, or
b) Assist his lawyer in the preparation of his defense

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39
Q

Voluntary Intoxication

A 
A defense to specific intent crimes
• Voluntary intoxication = D chose to consume an intoxicant
» Alcoholics and addicts are voluntarily intoxicated
• Not available if D becomes intoxicated in order to commit
the crime (i.e., “liquid courage”)
• Only a defense to specific intent crimes
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40
Q

Involuntary Intoxication

A

A defense to all crimes

• Arises when D was given an intoxicant without her knowledge or forced to consume an intoxicant

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41
Q

Self Defense

A

May be used in response to imminent threats of unlawful force

42
Q

Non-Deadly Force

A

May be used if D:
1) Is not at fault (i.e., not the initial aggressor); and
2) Reasonably believes it necessary to protect himself from imminent unlawful force
• Note — the amount of force permitted depends on the nature of the provoking offense; it must generally be proportionate

43
Q

Deadly Force

A

May be used if D:
1) Is not at fault (i.e., not the initial aggressor); and
2) Is confronted with unlawful force that threatens imminent
death or great bodily harm
• No duty to retreat under majority rule
» Minority rule requires retreat if safely possible

44
Q

Self Defense Initial Aggressor

A

Available if either:
a) Initial aggressor effectively withdraws before the need for
self-defense arises and communicates his desire to do so; or
b) Victim of the initial aggression suddenly escalates a minor
dispute into a deadly altercation

45
Q

Defense of Others

A

Same rules apply as for self-defense

• D can defend another if D reasonably believes the person he is protecting could have legally defended himself

46
Q

Defense of Dwelling

A

Only non-deadly force may be used
• Only non-deadly force is allowed to prevent or terminate an unlawful entry or attack on one’s dwelling
• Deadly force may be used to protect oneself or others, but
never to protect property alone

47
Q

Defense of Property (not dwelling)

A
  • Non-deadly force may be used to prevent unlawful interference with possessions or trespass on property
  • Must first request that the perpetrator stop the interference
48
Q

Recovery of Property Defense

A

Force may not be used to regain possession of property
wrongfully taken, unless one is in immediate pursuit of the
wrongful taker
» E.g., if a thief steals A’s suitcase at the airport curb,
A can only use reasonable force if he is immediately pursuing the thief to recover his suitcase

49
Q

Necessity Defense

A

A valid defense when commission of a crime is
reasonably necessary to avoid an imminent and greater injury
to society
• Objective test — commission of the crime must be reasonably necessary; good faith alone is insufficient
• Exceptions — necessity is not available if:
a) Crime committed results in the death of another
b) D originally caused the circumstances giving rise to
the necessity

50
Q

Duress Defense

A

A valid defense to a crime D committed under reasonable belief that the crime was necessary to prevent death
or serious bodily harm to D or a member of D’s family
• E.g., someone points a gun at D and threatens to kill him if he
does not rob a bank
• Exception — duress is not a defense to homicide crimes

51
Q

Consent Defense

A

A valid defense when victim consents to the crime
• Almost never available, unless the crime is a minor assault or
battery, or requires non-consent as an element (e.g., rape)
• Consent must be given freely by a party capable of consenting

52
Q

Entrapment

A

An available defense to criminal liability if a law enforcement
agent has induced D to commit a crime

53
Q

Elements of Entrapment

A

1) Criminal design originated with law enforcement
» Criminal design = idea or plan for the crime
2) D was not otherwise predisposed to commit the crime
» D must have no criminal predisposition
» Law enforcement providing an opportunity for a person to commit a crime is not, by itself,
entrapment

54
Q

Mistake of Law

A

Almost never a defense
• Lacking awareness or knowledge that an act constitutes a crime, even if reasonable, is not a defense to that crime
• Exceptions — very rare
1) Reasonable reliance on an invalid statute
2) The crime itself requires knowledge of the law

55
Q

Mistake of Fact

A

Available as a defense only if it negates a requisite intent element (i.e., mens rea) for the crime

Specific intent - Any mistake of fact is a defense
Malice & general intent - Only a reasonable mistake of fact is
a defense
Strict liability (i.e., no
intent) - Mistake of fact is never a defense
56
Q

Assault

A

1) Assault as a threat — general intent crime
» Intentional creation of victim’s reasonable apprehension of imminent bodily harm
» If assault involves touching, it is considered battery
2) Assault as an attempted battery — specific intent crime
» Specific intent crime because it involves attempt

57
Q

Battery

A

An unlawful application of force to the person of another resulting in bodily injury or offensive touching
» I.e., a completed assault

58
Q

CL Rape

A

Unlawful carnal knowledge of a woman by a man other than her husband, without effective consent
• The slightest penetration is sufficient to complete the crime

59
Q

ML Rape

A

Lack of “effective consent” exists if:
1) Intercourse is accomplished by force or threat of immediate
bodily harm
2) Victim is incapable of consenting due to lack of capacity
» E.g., unconsciousness, intoxication, or some mental
condition
3) Victim is fraud

60
Q

What does not constitute rape?

A

Fraud or trickery alone does not constitute rape
• There must be penetration without contemporaneous consent or capacity to consent
» E.g., convincing someone you plan on marrying them in order to have intercourse is not rape

61
Q

False Imprisonment

A

The unlawful confinement of a person without their consent
» Consent cannot be obtained through coercion, threat,
or deception

62
Q

Kidnapping

A

The unlawful confinement of a person that involves either:

a) Some movement of the victim; or
b) Concealment of the victim in an unknown, hidden, or secret location

63
Q

CL Murder

A

The unlawful killing of another human with malice aforethought

64
Q

Malice Aforethought

A

arises when no mitigating facts reduce
the killing to a lesser crime and D commits the killing with one of
the following mental states:

Intent to Kill
Intent to inflict GBI
Depraved Heart
FMR

65
Q

Depraved Heart

A

A killing committed with

reckless indifference to an unjustifiable risk of human life

66
Q

First Degree Murder

A

arises if a killing is either:
1) Deliberate & premeditated — D must have killed in
a dispassionate manner and must have considered or
reflected on his killing, even if only momentarily
2) Killing during an enumerated felony

67
Q

Second Degree Murder

A

Any homicide not arising to

first-degree murder

68
Q

FMR

A

A killing that occurs during the attempt or commission of
certain enumerated felonies
• Intent to commit felony murder = the intent necessary to commit the underlying felony

69
Q

FMR Felonies

A

BARRK

Burglary
Arson
Robbery 
Rape
Kidnapping
70
Q

Voluntary Manslaughter

A

A killing resulting from an adequate provocation (heat of passion killing) or imperfect self-defense

71
Q

Adequate Provocation Elements VM

A

1) Provocation would cause sudden and intense passion in an ordinary person, causing him to lose self-control
2) D was in fact provoked (i.e., D actually lost control)
3) There was insufficient time for an ordinary person
to cool off between the provocation and the killing
» Very subjective and fact-based
4) D did not cool off between the provocation and the killing
• Note — adequate provocation is not a defense to murder
» But it can be a mitigating factor that reduces a murder
charge to voluntary manslaughter

72
Q

Imperfect Self Defense Elements VM

A

If D murders while acting in self-defense, his criminal liability can be reduced to voluntary manslaughter if either:
a) D initiated the altercation that required self-defense, or
b) D unreasonably believed deadly force was necessary
• Note — not recognized in all jurisdictions

73
Q

Involuntary Manslaughter

A

A killing committed with criminal negligence or during the commission of an unlawful act not constituting felony murder

74
Q

Criminal Negligence IM

A
  • Arises if D is grossly negligent

* E.g., D is texting while driving and hits and kills a pedestrian in a crosswalk

75
Q

Larceny

A

The taking and carrying away of another’s tangible personal property without consent (i.e., trespassory) and with the intent to permanently dispossess the person of the property

76
Q

Taking Larceny

A

Obtaining control or possession
» If D already has possession at the time of the taking, it
is not larceny (but may give rise to embezzlement)

77
Q

Carrying Away Larceny

A

The slightest movement will suffice

78
Q

Without Consent Larceny

A

Against victim’s free will (i.e., by trespass)

» The use of fraud or duress negates consent

79
Q

Intent to Permanently Deprive Larceny

A

must exist during taking
» Specific intent crime — not larceny if D takes property
as security for a debt owed or believing it belongs to D
» Permanently = for an unreasonable period of time
» Continuing trespass — when one borrows property with the intent to return it, but later keeps it; larceny arises at the moment D decides not to return the property

80
Q

Lost Items Larceny

A

Larceny can arise if the true owner is known or ascertainable and D decides to keep the property (must be lost or misplaced; larceny cannot arise for abandoned property)

81
Q

Embezzlement

A

Fraudulent conversion of another’s personal property by one in lawful possession

82
Q

Fraudulent Conversion Embezzlement

A

D uses another’s property beyond the scope of or inconsistent with D’s possessory rights

83
Q

Lawful Possession Embezzlement

A

D must have lawful possession at the time of conversion

84
Q

False Pretenses

A

Obtaining title to another’s property using false statements of past or existing fact, with intent to defraud

85
Q

Elements of False Pretenses

A

1) Obtaining title
» Obtaining ownership, not mere possession
2) By false statements
» Must be an intentional false statement
3) Of past or existing fact
» Misrepresentation regarding a future event is not sufficient
4) Intent to defraud
» Victim must be deceived or act in reliance on the false statement in passing title to D

86
Q

Larceny by Trick

A

Obtaining possession of another’s personal property using false statements of past or existing fact
» Larceny by trick — D acquires possession but not title

87
Q

Receipt of Stolen Property

A

Receiving possession and control of personal property known to have been illegally obtained, with the intent to permanently deprive the owner of her interest in it

88
Q

Elements of Receipt of Stolen Property

A

1) Receipt of possession and control
» Physical possession is not required — D can have possession or control by designating the property’s location or arranging to sell it for the original thief
2) Of stolen personal property
» Property must have been stolen when D receives it and D must know or have reason to know it was stolen

89
Q

Forgery

A

Creating or altering a written document with purported legal significance to be false, with the intent to defraud

90
Q

Creating or Altering Forgery

A

E.g., drafting, adding, or deleting from a document’s

contents

91
Q

Legal Significance Forgery

A

A document that carries legal value (e.g., a check or

contract, but not a painting)

92
Q

False Forgery

A

Modifying the document into something it is not; changing its legal significance, not just changing it to be inaccurate

93
Q

With Intent to Defraud Forgery

A

» Specific intent crime

» Note — actually defrauding somebody is not required; the mere intent to defraud is sufficient

94
Q

Robbery

A

The wrongful taking of another’s personal property from his person or presence by force or threat of injury, with the intent to permanently deprive. Threats of future harm are insufficient.

95
Q

Extortion

A

Obtaining property through threats of future harm or exposing information

96
Q

Burglary

A

Breaking and entering into the dwelling house of another at nighttime with the intent to commit a felony therein
Note — on the MBE, where modern rules for burglary conflict with common law elements, apply modern rules

97
Q

Breaking Burglary

A

Can be actual or constructive
» Actual — opening or enlarging (e.g., opening unlocked
door)
» Constructive — entry by threat, force, fraud, or duress
» Entering with consent or through a wide open door is
not a breaking

98
Q

Arson

A

The malicious burning of the dwelling house of another

99
Q

Burning Arson

A

Requires some damage to structure caused by fire
» Damage from smoke, water, or explosions is not
sufficient at common law

100
Q

Dwelling House Arson

A

Structure where someone lives
» Common law requirement
» Note — On MBE it can be a non-residential structure

101
Q

Damages for Arson

A

Must be charring or something more
• Discoloration, blackening, or other lesser damage is
insufficient

MBE Bar Studies (8 decks)

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