Criminal Law

Question 1

Define Actus Reus

Answer 1

An Actus Reus is the voluntary physical act (i.e. bodily movement) required to commit a given crime.

It is a required component of every common law crime along with mens rea.

Question 2

Omission as Actus Reus

Answer 2

A failure to act can constitute an actus reus IF:

(1) D had a specific 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 3

Define Mens Rea

Answer 3

The mental element required AT THE TIME a crime was committed (i.e. the intent element).

There are three forms of mens rea that differ by crime:
(1) Specific Intent
(2) General Intent
(3) Malice

Note that in cases of Strict Liability and Vicarious Liability, there is not a mens rea requirement.

Question 4

Specific Intent (Mens Rea)

Answer 4

D must have a specific intent or objective to commit the given crime (i.e. they acted intending to commit the crime).

Specific intent can never be inferred; it must be proven.

D can raise the defenses of mistake of fact and voluntary intoxication against Specific Intent crimes.

(1) Attempt
(2) Larceny & Robbery
(3) Forgery
(4) False pretenses
(5) Embezzlement
(6) Conspiracy
(7) Assault
(8) Burglary
(9) First Degree Murder
(10) Solicitation

Question 5

General Intent (Mens Rea)

Answer 5

D must be aware of his actions and any attendant circumstances.

General intent can be inferred from the act itself.

(1) Battery
(2) Rape
(3) Kidnapping
(4) False Imprisonment

Question 6

Malice (Mens Rea)

Answer 6

D acts with reckless disregard or undertakes an obvious risk which expectedly leads to a harmful result.

(1) Arson
(2) Common Law Murder

Question 7

Strict Liability

Answer 7

Crimes where there is no intent or awareness requirement (i.e. no mens rea requirement)

(1) Statutory Rape
(2) Regulatory Crimes
(3) Administrative Crimes
(4) Morality Crimes (bigamy/polygamy)

Question 8

Vicarious Liability

Answer 8

When a person who did not commit a crime is held liable for the criminal conduct of another.

Same as respondeat superior arising with relation to employment or business associations.

Question 9

MPC Mens Rea Standards

Answer 9

Subjective Standards:

(1) Purposely (i.e. acting purposely with the conscious objective to engage in certain conduct or cause a certain result)

(2) Knowingly (i.e. acting with the awareness that certain conduct is particular or is very likely to cause a particular result)

(3) Recklessly (i.e. consciously taking substantial or unjustifiable risk)

Objective Standard:

(1) Negligence (i.e. fails to become aware of a substantial or unjustifiable risk)

Note: MBE usually tests common law and will specify when to use MPC.

Question 10

Concurrence Requirement

Answer 10

D’s criminal act (Actus Reus) and the requisite intent (Mens Rea) for the crime must coincide.

i.e. D intends to murder P at P’s home, but then accidentally runs P over on the way there. Not Murder because the act and intent did not coincide.

Question 11

Causation Requirement

Answer 11

D’s conduct must be BOTH the cause-in-fact and the proximate cause of the crime committed.

Note: MBE often tests Causation when it comes to homicide crimes.

Question 12

Cause-in-fact

Answer 12

but for D’s conduct, the result would not have occurred.

Note: Homicide/Manslaughter - hastening an inevitable death is enough

Question 13

Proximate Cause

Answer 13

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 (i.e. refusal of medical treatment or negligence by a third party doctor are foreseeable).

Question 14

Transferred Intent Doctrine

Answer 14

D intended the harm caused but caused it to a different victim/object than intended.

Applies re: homicide, battery, and arson. (NOT ATTEMPT!)

D can typically be charged with an Attempt on P1 and the resulting crime to P2 (via transferred intent).

Defenses and mitigating circumstances may also be transferred.

Question 15

Merger Doctrine

Answer 15

two crimes merge prohibiting D from being prosecuted separately for each.

(1) Inchoate offense and its completed substantive offense. (Solicitation and Attempt but NOT Conspiracy)

or

(2) An offense and its lesser included offense (i.e. Felony Murder during a Robbery precludes being charged with Robbery)

Question 16

Accomplice Liability

Answer 16

An accomplice is liable for the crimes he committed or counseled and any other probable or foreseeable crimes committed.

To be liable as an accomplice one must:

(1) Aid, counsel, or encourage the principal before or during the commission of the crime

(2a) With the intent to assist the principal; and

(2b) With the intent that the principal commit the crime

Question 17

Accomplice Liability Defenses/Exceptions

Answer 17

Accomplice liability does not apply where:

(1) Accomplice withdraws before the principal commits IF the accomplice:

(a) repudiates prior aid/encouragement,
(b) do everything possible to counteract prior aid/encouragement and,
(c) do so BEFORE the chain or events is in motion and unstoppable.

(2) Accomplice is a member of a protected class (i.e. minor victim of a statutory rape)

(3) Accomplice is a party not provided for in statute (i.e. purchaser of drugs)

Question 18

Accessory after the fact

Answer 18

Different than accomplice liability because it relates to actions taken after the commission of the crime (i.e. assisting in escape of known felon).

Gives rise to the crime of obstruction of justice.

Question 19

Solicitation

Answer 19

Inciting, urging, or otherwise asking another to commit a crime with the intent that they commit it.

Completed once D asks the solicited to commit the felony. No affirmative response is required, but if they agree it becomes a conspiracy.

Refusal is not a defense.

Impossibility/Withdrawal are not defenses.

MPC allows renunciation but Common Law does not (majority).

Question 20

Conspiracy (elements)

Answer 20

an agreement between two or more people to commit a crime or unlawful objective.

Elements:
(1) agreement between two or more people (i.e. meeting of the minds)

(2) Intent to enter into agreement

(3) Intent to commit the crime

(4) An overt act in furtherance of the target crime***

Note:
Common Law requires both parties to have criminal intent but MPC allows unilateral for cases re: undercover officers.

Conspiracy ends upon completion of the target crime.

Question 21

Co-Conspirator Liability

Answer 21

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

(1) Foreseeable; and
(2) Committed in furtherance of the conspiracy

Question 22

Withdrawal from Conspiracy

Answer 22

Under Common Law, one cannot withdraw from the conspiracy itself but MPC allows withdrawal if the withdrawing party thwarts the conspiracy.

Elements:
(1) Subsequent crimes can be withdrawn from including the target offense of the conspiracy.

(2) An affirmative act that notifies co-conspirators of withdrawal is required.

(3) Withdrawal must be timely (i.e. given enough time for co-conspirators to abandon plans).

(4) The withdrawing party must attempt to neutralize the effect of any assistance he provided to the original conspiracy.

Question 23

Attempt

Answer 23

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 completion.

The overt act must be beyond mere preparation. (Dangerously close to success under common law)

Defenses:
(1) Legal impossibility (NOT Factual Impossibility)
(2) Abandonment is NOT a defense.

Question 24

Insanity

Answer 24

Legal insanity is a defense to all crimes regardless of their level of intent requirement. There are four legal insanity tests: M’Naghten, Irresistible Impulse, MPC, and Durham.

Question 25

M’Naghten Insanity Test

Answer 25

Due to a mental illness or defect, D does not know right from wrong at the time of the act.

Question 26

Irresistible Impulse Test

Answer 26

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

Question 27

MPC Insanity Test

Answer 27

As a result of D’s mental disease, D lacked the capacity to either appreciate the criminality of his conduct or conform it to the requirements of the law.

Question 28

Durham Insanity Test

Answer 28

but for his mental illness, D would not have acted

Question 29

Infancy Defense

Answer 29

Minors under 7 years of age have no criminal liability.

Minors aged 7 to 14 have the rebuttable presumption against criminal liability.

Question 30

Diminished Capacity Defense

Answer 30

If D can show that he has some mental defect short of insanity that prevented him from forming the intent required for the crime. (typically only limits specific intent)

Question 31

Due Process & D’s mental condition (at trial)

Answer 31

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

(1) understand the nature of the proceeding, or
(2) assist his lawyers in preparation of his defense.

Question 32

Capital Punishment & D’s mental condition

Answer 32

D cannot be executed if he is incapable of understanding the nature and purpose of punishment AT THE TIME OF EXECUTION.

Question 33

Voluntary Intoxication Defense

Answer 33

Defense to Specific Intent crimes.

D chose to consume an intoxicant. Includes addicts. Not available if D consumed the intoxicant for “liquid courage.”

Question 34

Self-Defense (non-deadly force)

Answer 34

Non-deadly force may be used if D:

(1) D is not the initial aggressor (not at fault)
(2) D reasonably believes it necessary to protect himself from imminent unlawful force
(3) D has no duty to retreat
(4) D’s force is proportional to the provoking offense.

Question 34

Involuntary Intoxication

Answer 34

A defense to ALL crimes.

D unknowingly or unwillingly consumed an intoxicant.

Requirements:
(1) Without knowledge of the intoxicant’s nature
(2) Under direct duress imposed by another, or
(3) Pursuant to medical advice without notice of its intoxicating effect

Treated as a mental illness.

Question 35

Self-Defense (deadly force)

Answer 35

Deadly force may be used if D:
(1) D is not the initial aggressor (not at fault)
(2) D is actually confronted with unlawful force; and
(3) D reasonable believes he is confronted with unlawful force that threats imminent death or great bodily harm
(4) Majority does not impose a duty to retreat.

Question 36

Self-Defense (by initial aggressor)

Answer 36

available if either:

(1) The initial aggressor effectively withdraws before the need for self-defense arises and communicates his desire to do so, or

(2) The victim of the initial aggression suddenly escalates a minor dispute into a deadly altercation.

Question 37

Defenses of others

Answer 37

Self-defense rules apply when D is defending another even if D reasonably believes the person he is protecting could have legally defended himself.

Question 38

Police use of force to effectuate arrest

Answer 38

Non-deadly force is permissible to reasonably effectuate arrest

Deadly force is permissible to:
(1) prevent escape of a fleeing felon; and
(2) the fleeing felon poses a threat of death or serious bodily harm

Question 39

Citizen use of force to effectuate arrest:

Answer 39

Non-deadly force is permissible if:
(1) Crime was actually committed; and
(2) Reasonable belief the person to be arrested committed it

Deadly force is permissible only if:
(1) Person to be arrested was actually guilty of the offense for which the arrest was made and the DF was used to:
(a) prevent the escape of the fleeing felon; and
(b) fleeing felon poses a threat of death or serious bodily harm

Question 40

Use of force in Crime Prevention

Answer 40

Non-deadly force is permissible to prevent a serious breach of the peace

Under Common Law, Deadly force is permissible to prevent the commission of a felony

Under the MPC, Deadly force is permissible to:
(1) terminate or prevent a dangerous felony; and
(2) felony threatens a serious risk to human life

Question 41

Use of force in the Defense of Dwelling

Answer 41

Non-deadly force is allowed to prevent or terminate an unlawful entry or attack on one’s dwelling

Deadly force may be used if one reasonably believes:

(1) Force is necessary to prevent an 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

Question 42

Use of force in the defense of property (non-dwelling)

Answer 42

Non-deadly force may be used if reasonably necessary to defend against unlawful interference with possessions or trespass on property.

Force is not permitted if the request to desist is sufficient

Deadly force is not allowed

Question 43

Use of force in the Recovery of property

Answer 43

Use of force is not allowed to regain property wrongfully taken unless one is in immediate pursuit of the take.

Question 44

Necessity Defense

Answer 44

Necessity is a valid defense if D believed his conduct was reasonably necessary to avoid an imminent and greater injury to society

Objective standard. Good faith alone is insufficient.

Exceptions: Necessity is not available if either:
(1) Crime committed results in the death of another, or
(2) D caused the events giving rise to the necessity

Question 45

Duress Defense

Answer 45

Duress is a valid defense to a crime if 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.

Exception: Not a defense to intentional homicide crimes

Question 46

Consent Defense

Answer 46

Consent of a victim is generally not a defense but may be available if it negates an element of the offense.

Requirements:
(1) Consent was voluntary and freely given;
(2) Party was legally capable of consenting; and
(3) No fraud was involved in obtaining the consent.

Question 47

Entrapment Defense

Answer 47

Entrapment is an available defense if law enforcement has induced D to commit a crime.

Elements:
(1) Criminal design (i.e idea or plan) originated with law enforcement
(2) D was not otherwise predisposed to commit the crime prior to contact with law enforcement.

Note that law enforcement providing an opportunity to commit a crime is not by itself entrapment (i.e. buying drugs)

Narrow and rarely effective defense b/c it is negated by any predisposition.

Question 48

Mistake of Law Defense

Answer 48

Lacking awareness or knowledge that an act constitutes a crime, even if reasonable, is not a defense to that crime. (almost never a valid defense)

EXCEPT, on very rare occasions such as:

(1) reasonable reliance on an invalid statute
(2) mistake or ignorance negates an element of a crime that requires knowledge of the law

Question 49

Mistake of Fact Defense

Answer 49

available as a defense only if it negates a requisite intent element for the crime.

Specific Intent - any mistake of fact is a valid defense

Malice / General Intent - only a reasonable mistake of fact is a defense

Strict liability - mistake of fact is never a defense

Question 50

Assault as a threat

Answer 50

General intent crime whereby D intentionally creates victim’s reasonable apprehension of imminent bodily harm (words alone typically insufficient)

Question 51

Assault as an attempted battery

Answer 51

Specific intent crime whereby D attempts to commit a battery against victim.

Question 52

Battery

Answer 52

General intent crime whereby D commits an unlawful application of force to the person of another resulting in bodily injury or offensive touching. (i.e. a completed assault).

Question 53

Aggravated Assault/Battery

Answer 53

An assault or battery committed with the use of a weapon (created by modern statutes).

Question 54

Common Law Rape

Answer 54

unlawful carnal knowledge of a women by a man other than her husband, without effective consent

Question 55

Modern Rape Statutes

Answer 55

“Sexual Assault” whereby marital status is insignificant

The slightest penetration is sufficient to complete the crime.

Lack of consent:

(1) Penetration accomplished by force or threat of immediate bodily harm,
(2) The victim is incapable of consenting due to lack of capacity, or
(3) Victim is fraudulently caused to believe the act is. not intercourse.

Question 56

False Imprisonment

Answer 56

The unlawful confinement of a person without their consent.

Consent cannot be obtained via coercion, threat, or deception.

Question 57

Kidnapping

Answer 57

The unlawful confinement of a person that involves either:
(1) Some movement of victim (asportation)
or
(2) Concealment of the victim in an unknown, hidden, or secret location

Question 58

Common Law Murder

Answer 58

The unlawful killing of another human with malice aforethought

Question 59

Malice Aforethought

Answer 59

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 (i.e. reckless indifference to an unjustifiable risk to human life)
(4) Felony Murder

Causation - D’s act must be both the actual and proximate cause of the death (includes hastening inevitable death)

Question 60

Felony Murder

Answer 60

a killing caused during the commission or attempt of an inherently dangerous or statutorily enumerated felony where the victim’s death was a foreseeable result (i.e. proximate cause) of the felony

Intent to commit the underlying felony is required

Statutorily enumerated means the statute dictates that killing resulting for the crime constitutes felony murder. Common crimes include: burglary, arson, rape, robbery, and kidnapping.

Note: does not include deaths of a co-felon killed by police or original victim in majority of states

Question 61

Statutory 1st Degree Murder

Answer 61

arises if a killing is either:

(1) Deliberate & premeditated (Specific Intent) - D killed dispassionately and considered/reflected on the act before even if only momentarily.

or

(2) Felony Murder - enumerated by statute

Question 62

Statutory 2nd Degree Murder

Answer 62

a homicide not arising to first-degree murder

Note: often referred to as “default murder” on the MBE.

Question 63

Voluntary Manslaughter

Answer 63

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

Question 64

Adequate Provocation (Voluntary Manslaughter)

Answer 64

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 (actually lost control)

(3) There was insufficient time for an ordinary person to cool off

(4) D did not cool off in between provocation and killing

Not a defense to murder but reduces from murder to voluntary manslaugther.

Question 65

Imperfect Self-Defense (Voluntary Manslaughter)

Answer 65

If D murders while acting in self-defense can be reduced if:

(1) D initiated the interaction that required self-defense, or
(2) D unreasonably believed deadly force was necessary

Question 66

Criminal Negligence (Involuntary Manslaughter)

Answer 66

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

Criminal Negligence arises if D is grossly negligent (I.e. texting while driving through a crosswalk)

Question 67

Commission of an unlawful act (Involuntary Manslaughter)

Answer 67

A killing caused by an unlawful act may give rise to involuntary manslaughter

Misdemeanor if:
(1) Act was inherently wrongful (i.e. malum in se), or
(2) Death was a foreseeable or natural consequence of the misdemeanor act (i.e. malum prohibition)

Felonies if:
any killing caused during the commission of a felony not giving rise to felony murder will be at least involuntary manslaughter

Question 68

Larceny

Answer 68

The taking and carrying away of another’s personal property without consent with the intent to permanently dispossess the person of the property

Elements:

(1) Taking - D must obtain control (cannot already control then its embezzlement)

(2) Carrying Away - slightest movement

(3) Without Consent - without the victim’s free will (i.e. by trespass). Note fraud/duress negates consent and will lead to larceny by trick instead.

(4) Intent to permanently dispossess - during the taking. SPECIFIC INTENT. Permanently = unreasonable length.

Question 69

Embezzlement

Answer 69

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

Elements:

(1) Fraudulent Conversion - D’s use of another property beyond the scope of or inconsistent with D’s possessory interest.

(2) By one in lawful possession - D must have lawful possession at the time of conversion.

If D has intent to restore EXACT property = no embezzlement (doesn’t work with non-fungible items like money).

If D believes the property belongs to them (claim of right) Embezzlement not possible (same as larceny).

Question 70

False Pretenses

Answer 70

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

Elements:
(1) Obtaining title (not mere possession)
(2) By False Statements (intentional)
(3) Of past or existing fact (future event NOT enough)
(4) Intent to defraud (i.e. to steal)

Question 71

Larceny by Trick

Answer 71

Obtaining possession of another’s personal property using false statements of past or existing fact.

distinguish possession vs. title for false pretenses.

Question 72

Receipt of Stolen Property

Answer 72

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)

(2) Of Stolen personal property

(3) Known (by D) to have been illegally obtained by another

(4) With intent to permanently deprive the owner of his interest

Note: a “sting” situation where Owner knows the property set someone up then its not truly stolen. this would only be an attempt.

Question 73

Forgery

Answer 73

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

Elements:

(1) Creating or altering (includes offering forged doc)

(2) A document with purported legal significance (check or contract but NOT a painting)

(3) To be false (modifying it into something it is not; changing legal significance)

(4) With intent to defraud (specific intent)

Question 74

Robbery

Answer 74

wrongful taking of another’s personal property from his person or presence by force or threat of injury, with the intent to permanently deprive

Robbery = (Assault or Battery) + Larceny

Force may be small and directed at person or member of family or person in presence. A threat of future harm is insufficient.

The element of force is what distinguishes Robbery from Larceny.

Question 75

Extortion

Answer 75

Obtaining property through threats of future harm or exposing information.

Unlikely Robbery, Extortion does not require a taking from the victim’s person or presence (immediate v. future).

Question 76

Burglary

Answer 76

Trespassory breaking and entering into the dwelling house or another at nighttime with the intent to commit a felony therein.

Elements:
(1) Breaking - actual or constructive (i.e. opening a door or entering by threat/force/fraud/duress. Key is trespassory (i.e. without consent). [NOTE: Many modern statutes have removed this requirement]

(2) Entering - placing any portion of the body or the instrument used for the breaking inside the dwelling.

(3) Of another - ownership irrelevant, focused on occupancy.

(4) At nighttime - common law requirement written away in modern statutes

(5) With intent to commit a felony therein - modern statutes include misdemeanor. Felony need not be completed merely the INTENT but it must be AT THE TIME OF THE BREAKING/ENTERING.

Apply modern rules on MBE

Question 77

Arson

Answer 77

The malicious burning of the dwelling of another.

Elements
(1) Malicious - intent or extreme recklessness
(2) Burning - requires some damage to structured caused by the fire
(3) Dwelling - someone lives there (common law requirement - can be nonresidential)
(4) Of another

Damages must be charring or more. Discoloration / blackening insufficient.