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Bar Exam > Criminal Law > Flashcards

Criminal Law Flashcards

1
Q

What type(s) of causation must be established to prove a homicide? Define each.

A
  1. Actual causation: The victim would not have died but for the defendant’s act.
  2. Proximate causation: The death caused by the defendant’s conduct is foreseeable as the natural and probable result of the conduct.
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2
Q

Under the modern rule, in most jurisdictions, what are the three possible parties to a crime?

A

(1) A principal

(2) An accomplice

(3) An accessory after the fact

Note: Conspirators are not a distinct party to a crime because they are treated as a principal, are all held to the same degree of criminal liability, and are guilty regardless of whether the crime is actually committed or not.`

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3
Q

What must be proven to convict a defendant of a strict liability crime?

A

Proof of the actus reus is sufficient for a conviction.

Strict liability crimes are often regulatory in nature, relate to public health and safety, and feature relatively light penalties.

Note: A strict-liability crime does not require a mens rea.

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4
Q

What is the difference between the agency theory and the proximate cause theory when a bystander is killed during the commission of a felony murder?

A

Agency theory (majority rule): the felon will not be liable for the death of a bystander caused by a felony victim or police officer, because neither is the felon’s agent.

Proximate cause theory: liability for a bystander’s death may attach to the felon because the death is a direct consequence of the felony.

Note: On the MBE, apply the agency theory unless instructed otherwise.

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5
Q

When is murder reduced to voluntary manslaughter due to an imperfect defense?

A

When the defendant argues that his deadly force was necessary in defense of himself or others, but

(i) the defendant started the altercation or

(ii) the defendant unreasonably and honestly believed in the necessity of using deadly force.

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6
Q

What are the four common-law elements of battery?

A

Battery is the:

(i) Unlawful;

(ii) Application of force;

(iii) To another person;

(iv) That causes bodily harm to that person or constitutes an offensive touching.

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7
Q

What is the difference between a felony and a misdemeanor?

A

Felony: Punishable by death or imprisonment for more than one year

Misdemeanor: Punishable by imprisonment for one year or less, or by a fine, or by both

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8
Q

What is a “cooling off” period for purposes of a voluntary manslaughter charge?

A

The “cooling off period” is the time immediately following the provocation and before the killing. If there was sufficient time between the provocation and the killing for a reasonable person to cool off, then murder is not mitigated to manslaughter, even if the defendant did not actually cool off.

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9
Q

Describe the independent felony requirement for felony murder.

A

To be guilty of felony murder, a felony independent of the death must have occurred. For example, a battery that causes the victim to die might be a felony, however it is not independent of the victim’s death, therefore, in a majority of states a felony murder charge would be inappropriate.

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10
Q

What are the six common-law elements of burglary?

A

(i) Breaking and;

(ii) Entering;

(iii) Of the dwelling;

(iv) Of another;

(v) At nighttime;

(vi) With the specific intent to commit a felony therein.

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11
Q

What are the four common-law elements of rape?

A

Rape is:

(i) Unlawful;

(ii) Sexual intercourse;

(iii) With a female;

(iv) Against her will by force or threat of immediate force.

Note: Rape is a general-intent crime. Additionally, most modern statutes are gender-neutral and have replaced the force requirement with lack of consent.

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12
Q

What are the four elements of common-law arson?

A

(i) Malicious;

(ii) Burning;

(iii) Of the dwelling;

(iv) Of another.

Note: Remember that arson is a malice crime, not a specific-intent crime.

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13
Q

What are the three elements of common-law solicitation?

A

Solicitation is the:

(i) Enticing, encouraging, requesting, or commanding of another person;

(ii) To commit a crime;

(iii) With the intent that the other person commits the crime.

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14
Q

What is depraved-heart murder?

A

Depraved-heart murder is a killing that results from reckless indifference to an unjustifiably high risk to human life. The majority rule requires the defendant to be aware of the danger involved.

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15
Q

What is the difference between malum in se and malum prohibitum?

A

Unlawful acts can be categorized as malum in se and malum prohibitum.

Malum in se means wrong in itself or inherently dangerous, whereas malum prohibitum refers to wrongs that are merely prohibited, but not inherently immoral or hurtful. A defendant who commits a malum in se act knows the act is criminal, therefore possess sufficient knowledge to be guilty of a criminal act. Malum prohibitum wrongs resulting in homicide generally do not lead to an involuntary manslaughter conviction unless the defendant was willful or criminally negligent.

Note: Assault and battery are popular examples of malum in se crimes. Parking violations or failure to obtain a license constitute malum prohibitum acts.

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16
Q

What four states of mind qualify as malice aforethought?

A
  1. Intent to kill;
  2. Intent to cause serious bodily injury;
  3. Reckless indifference to human life;
  4. Intent to commit a felony.
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17
Q

What are the three common-law categories of homicide?

A

(i) Homicide justified by law;

(ii) Criminal homicide; and

(iii) Excusable homicide.

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18
Q

What are the five most common inherently dangerous felonies associated with felony murder?

A
  1. Burglary
  2. Arson
  3. Rape
  4. Robbery
  5. Kidnapping
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19
Q

What is an accomplice, and what is an accomplice’s criminal liability?

A

An accomplice is a person who, with the requisite mens rea, aids or abets a principal prior to or during the commission of a crime.

An accomplice is responsible for the crime to the same extent as the principal.

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20
Q

What are the six elements of common-law larceny?

A

Larceny is the:

(i) Trespassory;

(ii) Taking and;

(iii) Carrying away;

(iv) Of the personal property;

(v) Of another;

(vi) With the intent to permanently deprive that person of the property (i.e., intent to steal).

Note: Larceny is a specific-intent crime.

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21
Q

What are the two types of criminal assault, and are they general- or specific-intent crimes?

A

“Attempted battery” assault: The defendant takes a substantial step toward the commission of a battery; this is a specific-intent crime.

“Fear of harm” assault: The defendant intentionally places another in apprehension of imminent bodily harm; this is a general-intent crime.

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22
Q

What kind of “adequate provocation” may reduce a murder charge to voluntary manslaughter?

A

A situation that could inflame the passion of a reasonable person to the extent that it could cause that person to momentarily act out of passion rather than reason.

Note: A serious battery, a threat of deadly force, or discovery of adultery by a spouse constitutes adequate provocation. Usually mere words, such as taunts, do not.

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23
Q

What are the four defenses to felony murder?

A
  1. A valid defense to the underlying felony
  2. The felony was not an independent felony
  3. Death was not a foreseeable result or a natural and probable consequence of the felony
  4. Death occurred after the commission of the felony and the ensuing flight from the scene of the crime
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24
Q

(1) When can an honest mistake of fact serve as a valid defense?

(2) What can a mistake of law serve as a valid defense?

A

(1) Any mistake of fact that negates the required criminal intent can be a defense to specific-intent crimes, but a mistake of fact must be reasonable to be a defense to a general-intent or malice crime.

(2) A mistake of law is only a valid defense if (i) the defendant relied on a court decision/administrative order or official interpretation; (ii) a statutory definition of a malum prohibitum crime was not available before the defendant’s conduct; or (iii) an honestly held mistake of law negates the required intent or mental state.

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25
Q

What are the four elements of kidnapping?

A

Kidnapping is the:

(i) Unlawful;

(ii) Confinement of a person;

(iii) Against that person’s will;

(iv) Coupled with either the movement or the hiding of that person.

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26
Q

(1) When is impossibility a defense to an attempt charge?

(2) When is abandonment a defense to an attempt charge?

A

(1) When the act intended is a legal impossibility (i.e., the intended act is not a crime); not when the act is factually impossible to commit.

(2) Generally and at common law, the defense of abandonment is available until the defendant has completed the actus reus.

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27
Q

What are the three usual statutory elements of the crime of receiving stolen goods?

A

It requires:

(i) Receiving control (not necessarily possession) of stolen property;

(ii) Knowledge that the property is stolen; and

(iii) Intent to permanently deprive the owner of the property.

Note: Knowledge that the property is stolen must coincide with the act of receiving the property.

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28
Q

What if a defendant who is adequately provoked kills someone other than the provoker due to a reasonable mistake of fact?

A

If a defendant who has been adequately provoked accidentally kills the wrong person, the defendant will be guilty of voluntary manslaughter if that would have been the defendant’s crime had the defendant killed the provoker.

If the defendant intentionally kills an innocent bystander, then the defendant will be guilty of murder.

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29
Q

What is bribery under (1) the common law, and (2) the modern law.

A

(1) Common law: A misdemeanor involving the corrupt payment of something of value for the purpose of influencing the action of an official in the discharge of his public or legal duties.

(2) Modern law: Can be a felony and may extend to persons who are not public officials. Mutuality is not required.

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30
Q

What are the four categories of specific-intent crimes? (Think FIAT)

A

(i) First-degree murder;

(ii) Inchoate offenses (attempt, solicitation, conspiracy);

(iii) Assault with intent to commit a battery; and

(iv) Theft offenses (larceny, larceny by trick, false pretenses, embezzlement, forgery, burglary, robbery).

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31
Q

Define common-law murder.

A

The unlawful killing of another human being with malice aforethought.

Note: Remember that common-law murder is a malice crime, not a specific-intent crime.

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32
Q

What are the elements of the irresistible-impulse test for insanity?

A

The defendant is not guilty if he lacked the capacity for self-control and free choice because mental disease or defect prevented him from being able to conform his conduct to the law.

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33
Q

Under the common law and the MPC, is renunciation a defense to solicitation?

A

Common law: Renunciation was no defense to solicitation.

MPC: Voluntary renunciation may be a defense, provided the defendant thwarts the commission of the solicited crime.

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34
Q

In states that draw a distinction between an accessory before the fact and a principal in the second degree, what is the distinction?

A

An accomplice who is physically or constructively present during the commission of the crime is a principal in the second degree. An accomplice who is neither physically nor constructively present during the commission of the crime, but who possesses the requisite intent, is an accessory before the fact.

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35
Q

What is the year-and-a-day rule with regard to homicide causation?

A

If a victim survived a battery or assault for more than a year and one day, it was presumed that the cause of death was NOT that of the defendant.

The “year-and-a-day rule” is a common law rule that is no longer followed by the majority of jurisdictions.

36
Q

How far must property be moved to satisfy the asportation requirement of larceny?

A

The carrying away requirement (or asportation) is satisfied by even a slight movement of the property, e.g., inches. Furthermore, a defendant can be guilty of larceny even if the property is returned to the place from which it was taken or to its rightful owner.

37
Q

What is the effect of withdrawal on liability for the conspiracy itself (three approaches)?

A

Common law: Withdrawal never a defense

Federal/Majority rule: May only withdraw after the agreement but before an overt act has been committed, by (i) communicating notice of his intent not to participate to the other potential co-conspirators or (ii) informing the police about the agreement.

MPC/Minority view: May only withdraw by acting voluntarily to “thwart the success” of the conspiracy.

38
Q

Define statutory rape.

A

Statutory rape is sexual intercourse with a person under the age of consent. It is a strict-liability crime with respect to the age of the victim, and neither consent by the underage victim nor a defendant’s reasonable mistake of fact concerning the victim’s age is a defense.

39
Q

Define perjury.

A

Perjury involves the willful act of falsely promising to tell the truth, either verbally or in writing, about material matters that affect the outcome of a case.

40
Q

Under the majority and MPC rules, what elements are added to and/or removed from the common-law elements of conspiracy?

A

The Majority/MPC rules:

(i) Add the requirement of an overt act in furtherance of the conspiracy (but the MPC does not apply this requirement if the conspiratorial crime is a felony); and

(ii) Remove the requirement of “two or more persons,” allowing unilateral conspiracies.

41
Q

What are the two elements of a criminal attempt?

A

An attempt requires:

(i) A substantial step toward the commission of a crime; coupled with

(ii) The specific intent to commit the crime.

Note: Conduct does not constitute a substantial step if it is in mere preparation; the act must be conduct that tends to effect the commission of a crime. Additionally, note that attempt is a specific-intent crime, regardless of the intent required for attempted crime itself (even for strict liability crimes).

42
Q

Name and define four mental states defined by the MPC.

A

Purposely—Defendant’s conscious objective is to engage in the conduct or to cause a certain result.

Knowingly/willfully—Defendant is aware or knows that the result is practically certain to occur based on his conduct.

Recklessly—Defendant acts with a conscious disregard of a substantial and unjustifiable risk.

Negligently—Defendant should be aware of a substantial and unjustifiable risk that a material element of a crime exists or will result from his conduct (i.e., a gross deviation from the standard of care)

43
Q

What are the five elements of embezzlement?

A

Embezzlement is the:

(i) Fraudulent;

(ii) Conversion;

(iii) Of the property;

(iv) Of another;

(v) By a person who is in lawful possession of the property.

44
Q

Can the owner of property be guilty of larceny regarding that property?

A

Yes. The owner of property can be guilty of larceny when someone other than the owner is entitled to current possession of the property.

45
Q

What are the elements of the Durham test for insanity?

A

The unlawful act was the product of the defendant’s mental disease (i.e., the “but for” test).

46
Q

What is the main difference between larceny by trick and false pretenses?

A

Under larceny by trick, the defendant obtains possession. Under false pretenses, the defendant obtains title.

47
Q

What are the four elements of common-law conspiracy?

A

Common-law conspiracy is:

(i) An agreement;

(ii) Between two or more persons;

(iii) To accomplish an unlawful purpose;

(iv) With the intent to accomplish that purpose.

Note: Conspiracy is a specific-intent crime, and the agreement can be implied from conduct demonstrating an intent to jointly achieve a shared criminal objective.

48
Q

When is consent obtained by fraud a valid defense to the offense of rape, and when does it provide no grounds for defense?

A

Consent obtained by fraud in the inducement is a valid defense.

Consent obtained by fraud in factum (i.e., regarding the nature of the act itself) is not a valid defense.

49
Q

What is the test for insanity under the MPC?

A

The defendant is not guilty if, at the time of the conduct, he, as a result of a mental disease or defect, did not have substantial capacity to appreciate the wrongfulness of the act or to conform his conduct to the law.

Note: This test combines the irresistible-impulse test and the M’Naghten test.

50
Q

Under modern law, what inchoate crimes merge?

A

Solicitation and attempt merge with the completed crime.

Conspiracy does not merge with the completed crime.

Note: A defendant may be concurrently prosecuted for, but not convicted of, more than one inchoate offense designed to culminate in the commission of the same crime.

51
Q

What are malice crimes, and what common-law crimes fall into this category?

A

These crimes require reckless disregard of a high risk of harm. They do not require the defendant to act with ill will toward the victim.

Common-law murder and arson are malice crimes.

52
Q

When is involuntary intoxication a valid defense to a crime?

A

Involuntary intoxication is a defense when the intoxication serves to negate an element of the crime, including specific as well as general intent crimes and malice crimes. Involuntary intoxication may also be a defense to a strict liability crime by negating the required actus reus (i.e., voluntary act).

53
Q

What is voluntary manslaughter?

A

Homicide committed with malice aforethought, but also with mitigating circumstances (e.g., “heat of passion” or imperfect defense).

54
Q

What are the five most common inherently dangerous felonies that can give rise to a felony murder charge?

A

BARRK:

  1. Burglary,
  2. Arson,
  3. Robbery,
  4. Rape and
  5. Kidnapping
55
Q

What is an accessory after the fact?

A

A person who aids or assists a felon to avoid apprehension or conviction after commission of the felony; the person must know a felony has been committed, and is only liable for a separate crime.

56
Q

What are the three requirements for an accomplice to legally withdraw and avoid accomplice liability?

A

The accomplice must:

(i) Repudiate prior aid;

(ii) Do all that is possible to countermand prior assistance; and

(iii) Do so before the chain of events is in motion and unstoppable.

57
Q

In what two circumstances can a killing give rise to a charge of involuntary manslaughter?

A

(i) A killing committed in the commission of a malum in se (wrong in itself) misdemeanor; or

(ii) A killing committed in the commission of a felony that is not statutorily treated as first-degree felony murder or second-degree murder.

58
Q

What is the continuing trespass rule relating to larceny?

A

The continuing trespass rule considers a situation where the taking was done without permission, but without the intent to permanently deprive. However, at some time after the initial taking, the defendant forms the intent to permanently deprive the owner. Under this rule, the trespass is considered to continue in order for the criminal act to coincide with the criminal intent, resulting in larceny.

59
Q

What two elements are added to common-law larceny to establish a robbery?

A

A robbery is a larceny

(i) from the person or presence of the victim, and

(ii) achieved by force or intimidation.

60
Q

How can a defendant limit his liability as a co-conspirator for the substantive crimes that are the subject of the conspiracy?

A

By withdrawing from the conspiracy at any time after it is formed by

(i) giving notice to his co‑conspirators or

(ii) timely advising legal authorities of the existence of the conspiracy.

Note: There is no requirement that the defendant thwart the conspiracy.

61
Q

What is the usual definition of first-degree murder?

A

First-degree murder is a statutory offense, and is generally defined as (i) a deliberate and premeditated murder, or (ii) felony murder.

62
Q

What are the elements of the M’Naghten test for insanity?

A

The defendant is not guilty if, because of a defect of reason due to a mental disease, the defendant did not know either (i) the nature and quality of the act or (ii) the wrongfulness of the act.

63
Q

Why is “heat of passion” important when considering a defendant’s culpability for murder?

A

If the defendant presents sufficient evidence that the killing was committed in the heat of passion, then the defendant is guilty of voluntary manslaughter rather than murder. This is important because manslaughter generally receives a lesser sentence than murder.

Note: Voluntary manslaughter is a separate crime from murder, rather than a lesser degree. Murder is reduced to manslaughter in the event of heat of passion as an element needed for murder (malice) has been disproven.

64
Q

What is an actus reus?

A

It is either a voluntary, affirmative act or an omission (failure to act) that causes a criminally proscribed result.

65
Q

When, on the MBE, should you consider degrees of murder?

A

When the fact pattern supplies a statute.

Note: Degrees of murder do not exist at the common law. Under modern statutory rules, murder is generally divided into two degrees: first-degree and second-degree murder.

66
Q

What is involuntary manslaughter?

A

Unintentional homicide committed:

(i) With criminal negligence (or recklessness under the MPC); or

(ii) During an unlawful act

67
Q

What crime results when a person intends to cause grievous bodily harm but actually ends up killing someone?

A

Murder.

A defendant is guilty of intent to inflict serious bodily harm regardless of whether the defendant intended to kill the victim, as long as the defendant intended to cause serious injury to the victim. That intent to cause serious injury provides the malice required for murder.

68
Q

Can someone be guilty of larceny for taking stolen property from a thief?

A

Yes. The taking of stolen property from a thief can constitute larceny unless the taker has a superior possessory interest in the property.

69
Q

Is the defendant liable for felony murder when a co-felon is killed during the commission of a felony?

A

No. A defendant is not guilty of felony murder when the defendant’s co-felon is justifiably killed by a victim or police officer.

70
Q

When is voluntary intoxication a valid defense to a crime?

A

Voluntary intoxication is a defense to a specific intent crime if the intoxication prevents the formation of the required intent. Under the MPC, it is a defense to crimes requiring a mental state of purposefully or knowingly when the intoxication prevents forming that mental state.

Note- Voluntary intoxication is not a defense to crimes involving malice, recklessness, or negligence.

71
Q

For burglary, can a breaking still occur after a defendant enters a dwelling with consent?

A

Yes, if the defendant subsequently enters another part of the dwelling structure (e.g., opening a closet door or wall safe) without consent. However, merely opening an object within a dwelling (e.g., a desk drawer, trunk, box) is not a breaking.

72
Q

Can a person burglarize a building while it is open to the public?

A

No.

73
Q

Is duress or necessity a defense to murder?

A

No.

74
Q

Can a defendant be required to prove an affirmative defense by any degree of proof?

A

Yes, defendant can bear the burden of persuasion on an affirmative defense (e.g., insanity, self-defense).

75
Q

Define criminal negligence.

A

Criminal negligence is a grossly negligent action that puts another person at a significant risk of serious bodily injury or death. It requires more than ordinary tort negligence, but less than the conduct required for depraved-heart murder. Under the Model Penal Code, criminal negligence is a defendant’s reckless act which is a gross deviation from the standard of conduct that a law-abiding person would observe in the defendant’s situation when the defendant was actually aware of the risk his conduct posed.

76
Q

At common law, can a conspirator be convicted of conspiracy if all other conspirators are acquitted at the same trial?

A

No.

77
Q

What’s the Pinkerton Rule?

A

The Pinkerton Rule holds all conspirators liable for any foreseeable crimes committed by a coconspirator in furtherance of the conspiracy—regardless of whether they had knowledge of those crimes.

78
Q

Is bigamy a strict liability crime?

A

Yes.

79
Q

Define conversion.

A

Conversion is the inappropriate use of property, held pursuant to a trust agreement, which causes a serious interference with the owner’s rights to the property.

80
Q

Define false pretenses.

A

The defendant obtains title to the property of another person through reliance of that person
on a false representation of material fact made by the defendant with the intent to defraud

81
Q

If kidnapping occurs incident to the commission of another offense, how is the movement prong implicated?

A

For a kidnapping to occur incident to the commission of another offense, the movement of the victim must be more than is necessary to complete the other offense.

82
Q

Define forgery.

A

Forgery is (1) the making of a false writing of apparent legal significance with (2) the specific intent to defraud. “Making” includes creating a document, altering a document, or fraudulently inducing another to sign a document when that person is unaware of the significance of the document.

83
Q

What is the minimum required mental state under the MPC if a statute does not specify the requisite mental state?

A

Recklessness– the conscious disregard of a substantial and unjustified risk that: a material element exists or the material element will result from the defendant’s conduct.

84
Q

Define the crime of obtaining property by false pretenses.

A

The crime of obtaining property by false pretenses occurs when a person: 1) knowingly misrepresents a past or existing material fact, 2) does so with the specific intent to defraud, and 3) thereby obtains title to the property of another.

85
Q

What is the intent to defraud?

A

Intent to defraud is the intent to induce the owner of the property to permanently part with it. Therefore, such intent does not exist if the defendant either (1) believes that they have the right to appropriate the property or (2) intends to and is able to return the property.

Bar Exam (11 decks)

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