Criminal Law

Question 1

Actus Reus

Answer 1

The act required to commit a given crime
- A required component of every common law crime, along with mens rea.

To satisfy the actus reus requirement-
- D must perform a voluntary physical act i.e. a voluntary bodily movement.

Omission- a failure to act can constitute actus reus if:
1. D had a specific legal duty to act.
2. D had knowledge of facts giving rise to the duty, and
3. it was reasonably possible for D to perform the duty.

Question 2

Mens rea

Answer 2

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

Forms of mens rea:
1. Specific intent: D must have the 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.
2. General Intent- 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

3. Malice- D acts with reckless disregard or undertakes an obvious risk, from which a harmful result is expected
   - applies for arson and common law murder.

Strict liability- no mens rea required
- no intent or awareness is required for strict liability crimes
-arises with administrative, regulatory, or morality crimes.

Question 3

Model Penal Code Mens rea standard

Answer 3

MBE questions occasionally invoke language from the MPC’s fault standard. Thus, it is important to know these definitions:

Purposely: (subjective standard)
Intent
A person acts purposely when his conscious objective is to engage in certain conduct or cause a certain result.

Knowingly (subjective standard)
A person acts knowingly when he is aware that his conduct is of a particular nature or knows that his conduct will necessarily or very likely cause a particular result.

Recklessly (subjective standard)
A person acts recklessly when he knows of a substantial and unjustifiable risk and consciously disregards it.

Negligence (subjective standard)
A person acts negligently when he fails to become aware of a substantial and unjustifiable risk

Note- mbe generally tests common law, unless otherwise instructed
- if the mbe does not tell you which law to apply, when in doubt, apply common law.

Question 4

Major Crimes and requisite mens rea

Answer 4

General intent
Battery
Assault
Kidnapping
False imprisonment

Specific Intent
Attempt
Larceny & robbery
Forgery
False pretenses
embezzlement
conspiracy
assault
burglary
first-degree murder
solicitation

Malice
common law murder
Arson

Strict liability
Statutory rape
regulatory crimes
administrative crimes
morality crimes (bigamy, polygamy)

Question 5

Concurrence and causation

Answer 5

Concurrence requirement- D’s criminal act and the requisite mens rea for the crime must occur simultaneously
- Ex: D plans on murdering victim at her home- D is not guilty of murder if he accidentally runs over victim with his car before reaching her house.

Causation requirement- D’s conduct must be both the cause-in-fact and the proximate cause of the crime committed.
1. Cause-in-fact- but for D’s conduct, the result would not have occurred
- Ex: for homicide and manslaughter, any act by D that hastens victim’s death is a cause-in-fact, even if death is already inevitable.

2. Proximate cause- the actual result is the natural and probably consequence of D’s conduct, even if it did not occur exactly as expected
   -supervening factors break the chain of causation
   -intervening acts must be entirely unforeseeable to shield D from liability (victim’s refusal of medical treatment, third-party medical negligence- both are foreseeable and D is liable.

Note- causation issues often arise in homicide crimes on the mbes.

Question 6

Transferred Intent Doctrine

Answer 6

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.

Effect of the transferred intent Doctrine:
1. D is usually charged with 2 crimes
a. attempt to commit the originally intended crime); and
b. the actual resulting crime.
-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 b/c there are different victims

Question 7

Merger

Answer 7

Merger concerns the relationship between either:
a) an inchoate offense and its competed substantive offense, or
b) an offense and its lesser included offense

When merger applies, the two offenses merge, prohibiting D from being prosecuted for both crimes.

Inchoate offenses- only applies to solicitation and attempt
-Merger prevents D from being convicted of both solicitation/ attempt and other target offense.
~D completes a burglary after attempting it; D cannot be convicted of both attempt and burglary
-Does not apply to conspiracy (D can be convicted of conspiracy to commit a given crime and the crime itself)

Lesser included offenses- D cannot be convicted of a target crime and a letter included offense
1. Lesser included offense= consists of same but not all elements as the greater crime
2.D robs V, but during the robbery D’s accomplice kills V; D can be convicted of felony murder but not the lesser included robbery offense.
3. Note- also barred by double jeopardy

Note- crimes with different victims never merge.

Question 8

Accomplice Liability

Answer 8

To be liable as an accomplice, one must:
1. Aid, counsel, or encourage principal before or during the crime.
2. with the intent
a. to assist the principal, and
b. that the principal commit the crime.

Scope of liability- accomplice is liable for the crimes he committed or counseled and any other probably or foreseeable crimes committed

Defenses and exceptions to accomplice liability:
1. Withdrawal: accomplice can avoid liability by withdrawing from a crime before the principal commits it; accomplice must:
a. repudiate prior aid or encouragement;
b. do all that is possible to counteract the prior assistance; and
c. do so before the chain of events is in motion and unstoppable
2. Member of a protected class- those protected by a criminal statute are not liable as accomplices
- minor-victims in statutory rape cases are not liable as accomplices to statutory rape.
3. Parties not provided for in the statute- a purchaser of drugs cannot be an accomplice to the seller.

Accessory after the fact: different than accomplice liability
1. involves helping a known felon escape arrest, trial, or conviction.
2. gives rise to a separate, lesser charge of obstruction of justice.

Question 9

Solicitation

Answer 9

Encouraging another to commit a crime with the specific intent that the crime be committed.
-Inciting, urging, or otherwise asking another to commit a crime with the intent that they commit the crime
a. no affirmative response from the solicited party is required.

Merges with the target offense- solicitation is complete when D asks solicitee to commit the felony
a. if solicitee agrees, it gives rise to conspiracy and the solicitation merges with the conspiracy (the only crime remaining is conspiracy)
b. does not matter if the solicited party is convicted or if the solicited crime was impossible to commit.

Defenses- very few defenses apply to solicitation
1. refusal by the solicitee is not a defense
2. impossibility and withdrawal are not defenses.
MPC allows renunciation as a defense, but common law does not
Renunciation is
1. the defendant must voluntarily and completely renounce his criminal intent
2. the defendant must convince the person that was solicitated not to act or prevent the crime from being committed.

If the defendant tricks an innocent party that is not considered solicitation.

Question 10

Conspiracy

Answer 10

An agreement between two or more parties to commit a crime or objective by criminal means

Elements:
1. an agreement between 2 or more people
a. a “meeting of the minds”; express agreement not required
b. parties do not need to know of each other’s existence
2. Intent to enter into an agreement.
3. Intent to commit the target crime or pursue the unlawful objective.
4. an overt act in furtherance of the target crime.
- not a requirement at common law

Unilateral conspiracy- at common law, two or more people must have criminal intent, but MPC allows only one party
-under MPC, D may be convicted of conspiracy with another party who was an undercover police officer
-unless otherwise instructed, apply common law rule.

Termination- conspiracy ends upon completion of the target crime.

Defenses- impossibility is not a defense to conspiracy
-withdrawal is generally not a defense to conspiracy but may be a defense to liability for co-conspirator’s subsequent crimes.

Question 11

Co-conspirator liability & withdrawal

Answer 11

Pinkerton Rule:
Each conspirator is liable for co-conspirators’ crimes that are:
1. foreseeable, and
2. committed in furtherance of the conspiracy.

Withdrawal:
1. Under common law, one cannot withdraw from the conspiracy itself
- MPC allows withdrawal if the withdrawing party thwarts the conspiracy (by stopping it or notifying police)
2. Subsequent crimes- one can withdraw from co-conspirators’ subsequent crimes, including the target offense of the conspiracy
3. Affirmative act required- withdrawal is effective when the withdrawing party makes an affirmative act that notifies his co-conspirators to abandon plans for the target offense.
4. Must be timely- withdrawal must give enough time for co-conspirators to abandon plans for the target offense
a. the withdrawing party must attempt to neutralize the effect of any assistance he provided to the original conspiracy.

Question 12

Attempt

Answer 12

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

Overt act- D must commit an act beyond mere preparation
a. D must take a substantial step towards committing the target crime
b. under common law standards, attempt requires an act that is dangerously close to success.

Intent- D must specifically intend to commit a particular crime

Defenses- legal impossibility is a defense to attempt
a. factual impossibility is not a defense
-Factual impossibility is where the defendant intends to commit a crime, but because of factual circumstances outside the defendant’s control, the crime is not committed.
b. Abandonment is not a defense- under majority rule, liability for attempt arises once D commits an overt act concurrently with the specific intent to commit a crime (D is liable for attempt before he can abandon the crime)

Question 13

Capacity Defense: Insanity

Answer 13

Legal insanity is a defense to all crimes, regardless of the intent requirement
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.

Four Legal Insanity Tests
1. M’Naghten- 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.

2. Irresitible Impulse- D acted due an irresistible impulse
   -Due to mental illness, D was unable to control his actions or conform his conduct to the law
3. Model Penal Code- combination of M’Naghten and 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.
4. Durham- but for his mental illness, D would not have accted
   -D’s conduct was the product of a mental illness

Note: MBE questions will indicate which test applies.

Question 14

Capacity defense: Infancy, diminished capacity, and due process considerations for mental deficiencies

Answer 14

Infancy- a defense to criminal liability for minors
-under 7- no criminal liability
-between 7 and 14- rebuttable presumption against criminal liability

Diminished capacity- a defense 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.

Due process & D’s mental condition during trial
-The due process clause forbids D from being tried, convicted or sentences if, as a result 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.

Capital punishment- D cannot be executed if he is incapable of understanding the nature and purpose of the punishment at the time of execution.

Question 15

Capacity Defense- Intoxication

Answer 15

Voluntary intoxication- a defense to specific intent crimes
a. voluntary intoxication= D chose to consume an intoxicant
-alcoholics and addicts are voluntarily intoxicant
b. not available if D becomes intoxicated in order to commit the crime
c. only a defense to specific intent crimes.

Involuntary intoxication- a defense to all crimes
a. arises when D was given an intoxicant without her knowledge or forced to consume an intoxicant
b. An intoxicant is taken involuntarily if taken:
1. w/o knowledge of its nature,
2. under direct duress imposed by another person, or
3. pursuant to medical advice without notice of its intoxicating effect
-may be treated as a mental illness if, b/c of the intoxication, D satisfies the relevant jurisdiction’s insanity test.

Question 16

Justification Defense: Self-Defense

Answer 16

May be used in response to imminent threats of unlawful force

Non-deadly force- may be used if D:
1. is not at fault (not the initial aggressor); and
2. reasonably believes it necessary to protect himself from imminent unlawful force.
- no duty to retreat
-Note: the amount of force permitted depends on the nature of the provoking offense; generally, it must be proportionate.

Deadly force- may be used if D:
1. is not at fault (not the initial aggressor); and
2. reasonably believes he is confronted with unlawful force that threatens imminent death or great bodily harm
- no duty to retreat under majority rule

Self-Defense by an initial aggressor- 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.

Defense of others- 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.

Question 17

Use of force to effectuate arrest and crime prevention

Answer 17

Police use of force to effectuate arrest:
a. Non-deadly force: is permissible to reasonably effectuate an arrest
b. deadly force is permissible to prevent the escape of a fleeing felon who poses a threat of death or serious bodily harm.

Citizens use of force to effectuate arrest
a. Non-deadly force is permissible if the crime was actually committed and there is reasonable belief that the person arrested was the perpetrator.
b. Deadly force is permissible to prevent the escape of a person who actually committed a felony and threatens human life.

Crime prevention
a. Non-deadly force is permissible to prevent a serious breach of the peace.
b. Common law- Deadly force is permissible to prevent commission of any felony
c. Modern law- deadly force is permissible to terminate or prevent a dangerous felony involving a serious risk of human life.

Question 18

Defense of dwelling or other property

Answer 18

Defense of dwelling
a. non-deadly force- allowed to prevent or terminate an unlawful entry or attack on one’s dwelling
b. Deadly force- may be used if person reasonably believes :
1. force is necessary to prevent attack on oneself or others by a person who made or attempted violent entry, or
2. force is necessary to prevent entry by a person who intends to commit a felony in the dwelling.

Defense of property(non-dwelling)- deadly force is not allowed
a. non-deadly force may be used if reasonably necessary to defend against unlawful interference with possessions or trespass on property.
b. Need to use force must reasonably appear imminent
-ex. force not permitted if request to desist is sufficient.

Recovery of property- force may not be used to regain property wrongfully taken, unless one is in immediate pursuit of the wrongful taker.
-D steals A’s purse; A can only use reasonable force to recover purse if she is immediately pursuing D.

Question 19

Necessity, Duress, Consent

Answer 19

Necessity- valid defense if D believed his conduct was reasonably necessary to avoid an imminent and greater injury to society.
a. Objective test- D’s commission of the crime must be reasonably necessary; good faith alone is insufficient.
b. Exceptions- necessity is not available if:
1. crime committed results in the death of another, or
2. D caused the events giving rise to the necessity

Duress- 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
-someone points a gun at D and threatens to kill him if he does not rob a bank
-Threat must come a person to a person or third party
Exception- duress is not a defense to homicide crimes.

Consent- consent of victim is generally not a defense, but may be available if it negates an element of the offense.
a. never available for certain offenses (statutory rape)
b. Requirements- must be established that:
1. consent was voluntarily and freely given;
2. party was legally capable of consenting; and
3. no fraud was involved in obtaining consent.

Question 20

Entrapment

Answer 20

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

Elements:
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 predisposition to commit the given crime prior to his contact with law enforcement
-Law enforcement providing opportunity for D to make a sale

Note- a very narrow defense; rarely effective b/c it is negated by any predisposition on D’s part
-As a result, it is unlikely to be a correct MBE answer

Question 21

Mistake of law or fact

Answer 21

Mistake of law- almost never a defense
a. lacking awareness or knowledge that an act constitutes a crime, even if reasonable, is not a defense to that crim
b. Exceptions- very rare
1. reasonable reliance on an invalid statute
2. the crime itself requires knowledge of the law

Mistake of fact- available as a defense only if it negates a requisite intent element for the crime.

Note- mistake includes ignorance.

Specific intent= any mistake of fact is a defense
Malice and general intent= only a reasonable mistake of fact is a defense
Strict liability= mistake of fact is never a defense.

Question 22

Assault and Battery

Answer 22

Assault- placing a person at reasonable apprehension as of an immediate impending battery

Assault- 2 theories of assault at common law:
1. Assault as a threat- general intent crime
-intentional creation of victim’s reasonable apprehension of imminent bodily harm
-words alone are usually insufficient

2. Assault as an attempted battery- specific intent crime
   -Specific intent crime b/c it involves attempt.

Battery- an unlawful application of force to the person of another resulting in bodily injury or offensive touching
- a completed assault
-general intent crime

Note- under modern statutes, both assault and battery have “aggravated” counterparts, which usually arise when the assault or battery is carried out with the use of a weapon.

Question 23

Rape

Answer 23

Common law- unlawful sexual intercourse of a man and woman, without the woman’s consent, who is not her husband

Modern Statutes-
-often referred to as sexual assault
-the slightest penetration is sufficient to complete the crime
-Marital status insignificant
~ most states have abolished element of marital status
-Lack of effective consent- exist if
a. penetration is accomplished by force or threat of immediate bodily harm.
b. victim is incapable of consenting due to lack of capacity (unconsciousness, intoxication), or
c. victim is fraudulently caused to believe the act is not intercourse

Note: fraud or trickery alone does not constitute rape
-there must be penetration without contemporaneous consent or capacity to consent
-convincing someone you plan on marrying them in order to have intercourse is not rape.

Question 24

False imprisonment and kidnapping

Answer 24

False Imprisonment
1. The unlawful confinement of a person without their consent
-consent cannot be obtained through coercion, threat, or deception.

Kidnapping
1. 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.

Note- false imprisonment can become kidnapping if the victim is moved and or concealed.

Question 25

Murder

Answer 25

The unlawful killing of another human with malice aforethought.

Malice Aforethought- arises when no mitigating facts reduce the killing to a lesser crime and D commits the killing with one of the following mental states:
1. Intent to kill
2. Intent to inflict great bodily injury
3. Depraved heart- a killing committing with reckless indifference to an unjustifiable risk of human life.
4. Felony murder- a killing caused during the attempt or commission of an inherently dangerous or statutorily enumerated felony
a. intent required- the intent necessary to commit the underlying felony
b. statutorily enumerated felony- statute dictates that a killing resulting from the crime constitutes felony murder

Aforethought= premeditation
a. no amount of time is to short to reflect or conjure up a plan.
b. Premeditated crimes:
1. torture
2. use of explosions
3. poison
4. lying in wait.

Causation- D’s act must be both the actual and proximate cause of the victim’s death
-Any act by D hastening the victim’s death, even if already inevitable, is considered a cause.

Question 26

Statutory Modifications to common law murder

Answer 26

Most jurisdictions classify murder crimes into various “degrees” by statute

First degree murder- arises if a killing is either”
a. Deliberated and premeditated- D must have killed in a dispassionate manner and must have considered or reflected on his killed, even if only momentarily
-specific intent crime- voluntary intoxication and mistake of fact are valid defenses.
b. Felony murder- killing during an enumerated felony
-many states list felonies that may serve as the basis for felony murder.

Second Degree murder- a homicide not arising to first degree.

Note- if first-degree murder is not mentioned as a possibility in MBE question or answer choices, assume the question involves second degree, which is often the “default murder” on the mbe.

Question 27

Felony Murder

Answer 27

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.

Felonies allowing for felony murder
1. Inherently dangerous Felonies
a. Burglary
b. Arson
c. Robbery
d. Rape
e. Kidnapping
2. Statutorily enumerated felonies
-a criminal statute states that a killing occurring during its commission constitutes felony murder

Limitations on liability for felony murder
1. D must be guilty of the underlying felony
-valid defenses to the underlying felony are also defenses to felony murder.
2. The underlying felony itself must be independent of a killing
-involuntary manslaughter cannot be felony murder.
3. Victim’s death must be a foreseeable result (proximate cause) of the felony
4. Victim’s death must be caused before D reaches a place of temporary safety.
5. D is not liable for the death of a co-felon killed by police or the original victim in majority of states.

Approaches to Causation in Felony Murder Cases
1. The agency approach
a. the homicide is done by 1 felon
b. in furtherance of the felony
c. all co-felons are deemed responsible.
- if a security shoots a felon; cofelons are not responsible.
- If security accidentally shoots an innocent party- felons are not responsible; except for if a felon is holding the innocent party as a shield than only that felon is responsible.

2. Proximate cause approach
   a. Death proximately caused by the Defendant.
   b. The defendant can be charged with murder
   - security kills 1 felon= other felons responsible.
3. Provocative Act Doctrine-
   a. The defendant created a dangerous atmosphere
   b. a homicide occurred
   c. that defendant is liable for murder

Question 28

Voluntary Manslaughter

Answer 28

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

Adequate provocation- required elements:
1. Provocation would cause sudden and intense passion in an ordinary person, causing him to lose self-control.
2. D was in fact provoked (D actually lost control)
3. There was insufficient time for an ordinary person to cool off between the provocation and the killing
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 mitigating factor that reduces a murder charge to a manslaughter.

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

Question 29

Involuntary Manslaughter

Answer 29

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

Criminal negligence
-Arises if D is grossly negligent
-ex: D is texting while driving and hits and kills a pedestrian in a crosswalk.

Commission of an unlawful act- killing caused by an unlawful act may be involuntary manslaughter.
1. Misdemeanors- for involuntary manslaughter to arise from a killing caused by a misdemeanor, the misdemeanor must either be
a. inherently wrongful act, or
b. death must be the foreseeable or natural consequence of the act.
2. Felonies- any killing caused during the commission of a felony not giving rise to felony murder will be at least involuntary manslaughter

Question 30

Larceny

Answer 30

The taking and caring away personal property of another with the intent to permanently deprive.

Elements:
1. Taking: obtaining control or possession
-if D already had possession at the time of the taking, it is not larceny.
2. carrying away: the slightest movement will suffice
3. without consent: against victim’s free will
- the use of fraud or duress negates consent
4. intent to permanently dispossess- 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.

Finding a lost item- 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 abandonment property)

Question 31

Embezzlement

Answer 31

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

Elements:
1. Fraudulent conversion: D uses another’s property beyond the scope of, or inconsistent with, D’s possessory rights
2. By one in lawful possession- D must have lawful possession at the time of conversion.

Distinguished from Larceny- both involve obtaining property through misappropriation, but circumstances of the taking differ:
-Embezzlement= conversion of property in D’s rightful possession.
-Larceny= taking property not in D’s possession
Special issues refuting embezzlement:
1. intent to restore: if D takes property with the intent to restore the exact property, no embezzlement has occurred.
- must be the exact same property; not even different monetary bills of equal value will suffice.
2. Claim of right- like larceny, embezzlement will not arise if the misappropriation is made under a claim of right to the property (D believes the property belongs to him)

Question 32

False pretenses and larceny by trick

Answer 32

False pretenses- obtaining title to another’s property using false statements of past or existing fact, with intent to defraud
Elements:
1. obtaining title:
- obtaining ownership not mere possession
2. by false pretenses
- 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.

Larceny by trick- obtaining possession of another’s personal property using false statements of past or existing fact

Larceny by trick= d acquires possession
False Pretenses= D acquires title.

Question 33

Receipt of Stolen Property

Answer 33

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.

Elements:
1. Receipt of possession and control
-physical possession 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.
3. Known to have been illegally obtained by another
- D must know or have reason to know property is stolen
4. With intent to permanently deprive the owner of his interest.

Note- beware of “sting” situations: if police and the true property owner know of or arranged D’s receipt of stolen property, it is not truly stolen
- D can be convicted of attempted receipt of stolen property if she intended to receive property, believing it to be stolen.

Question 34

Forgery

Answer 34

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

Elements:
1. Creating or altering
-drafting, adding, or deleting from a document’s contents
-also includes offering a forged document as genuine even if D did not create the forged document.

2. A document with purported legal significance
   - a document that carries legal value (a check or contract, but not a painting)
3. to be false
   -modifying the document into something is not; changing its legal significance, not just changing it to be inaccurate.
4. with intent to defraud
   - specific intent crime
   -note- actually defrauding somebody is not required; the mere intent to defraud is sufficient.

Question 35

Robbery and extortion

Answer 35

Robbery: taking and carrying away personal property from the owner’s immediate presence through threat or force with the intent to permanently deprive.

Robbery= assault or battery + larceny
Victim’s person or presence- interpreted broadly
Force or threat of injury- a small force or threat will suffice
-threat of injury must be to victim, a member of her family, or a person in her presence.
-victim must give up the property b/c she feels threatened or harmed.
-threats of future harms are insufficient
Larceny v robbery- robbery required force or threats to obtain victim’s property, whereas larceny does not

Extortion- obtaining property through threat of future harm or exposing information.

extortion v robbery- extortion does not require a taking from the victim’s person or presence
-extortion involves threats of future, rather than immediate harm.

Question 36

Burglary

Answer 36

Common Law: Breaking and entering into the dwelling house of another at night with the intent to commit a felony or theft therein.
Modern Law: Entering the protected structure of another with the intent to commit a crime.

Element:
1. Breaking- can be actual or constructive; must be trespassory
-actual= opening or enlarging
-constructive= entry by threat, force, fraud, or duress
-trespass required- entering with consent or through a wide open door is not a breaking.
-breaking not required under many modern statutes

2. Entering- placing any portion of the body or the instrument used for the breaking inside the dwelling.
3. of another- ownership is irrelevant; occupancy will suffice.
4. at nighttime- common law requirement
   -not required under modern law
5. With the intent to commit a felony therein
   -modern statutes include misdemeanor thefts
   -felony need not be completed; D must merely intend to commit a crime at the time of the breaking and entering
   -intent acquired after entering is insufficient

On MBE, apply modern rules unless otherwise instructed.