Criminal Law and Procedure

Question 1

Key principle #1:

Answer 1

Know the basic elements of a crime—act, intent, causation and concurrence. Causation has been tested twice on the MEE (both times combined with murder), and both times causation was
present.

Question 2

Causation requirements:

Answer 2

Causation requires showing that the defendant’s acts were both the actual and proximate cause of the outcome. Proximate cause is present if the outcome was foreseeable. (J2012, J2007)

Question 3

What is accomplice liability and what does it require?

Answer 3

A person is guilty as an accomplice if he assists or encourages the principal with dual intents: (1) the intent to assist the primary party, and (2) the intent that the primary party commit the offense charged. Remember a person is not liable for accomplice liability—they are liable for the crime committed through the theory of accomplice liability. (J2012)

Question 4

Introduction to murder:

Answer 4

State: “In order to be guilty of murder, the defendant must have the mens rea of malice aforethought which is satisfied in most jurisdictions with intent to kill (first-degree), with knowledge that his acts would kill (first-degree), with intent to inflict great bodily harm (second-degree), or with reckless disregard of an extreme risk to human life (second-degree).”

Question 5

First-degree murder:

Answer 5

This is the intent to kill with premeditation and deliberation. Some states follow the rule that premeditation and deliberation require proof of a cool mind capable of reflection and some period of reflection. Other states follow the view that premeditation and deliberation can occur in an instant and can be inferred from circumstantial evidence (e.g., using a deadly weapon). (S2020)

Question 6

Second-degree murder:

Answer 6

This is satisfied by the intent to inflict great bodily harm or by acting with reckless disregard of an extreme risk to human life (depraved heart murder). (Note: it is also the catchall—i.e., when an act constitutes “murder” but is not quite first-degree.)

▪ Note that the requirement for depraved heart murder usually requires that the defendant acted recklessly and that the defendant’s conduct shows a “high degree of indifference to the value of human life.” (J2007)

Question 7

Felony murder:

Answer 7

This applies to any killing that occurs during the commission of a felony, an attempt to commit a felony, or a flight from a felony. The felony must be inherently dangerous, and the purpose of the felonious conduct must be independent of the homicide. (S2020)

Question 8

Voluntary manslaughter:

Answer 8

An intentional killing of a human being without malice aforethought committed in the heat of passion due to adequate provocation. (S2020)

Question 9

Involuntary manslaughter (misdemeanor manslaughter):

Answer 9

The defendant causes the death of another human being by engaging in conduct that creates an unreasonable risk of death or serious bodily injury. The majority view is that the defendant must have acted “recklessly.” Some states say that “gross negligence” is enough. (J2015, J2012)

Question 10

Key principle #4:

Answer 10

The only inchoate crime that has been tested on the MEE is attempt. Know that the mens rea is “intent” and the actus reus requires “acts beyond mere preparation.”

Question 11

Proving attempt:

Answer 11

To prove attempt, the prosecution must prove two elements: (1) The defendant intended to commit the crime, and (2) the defendant’s acts went sufficiently beyond “mere preparation” to commit the crime. (The common law uses the words “dangerously close” to the crime, whereas the Model Penal Code requires that the defendant’s conduct is a “substantial step” toward the crime and corroborative of his criminal intent.) In most states, abandonment is not a defense to attempt. (J2009)

Question 12

Key principle #5:

Answer 12

Be familiar with criminal defenses that have been tested on Criminal Law MEE questions.

Question 13

Duress:

Answer 13

The defendant commits a crime because there was a threat or use of force by another
which caused a reasonable fear that, if the defendant did not perform the crime, either he or a third person would suffer imminent death or serious bodily injury. One cannot use duress as a defense to an intentional homicide. (J2015)

Question 14

Insanity:

Answer 14

The majority of states use the M’Naghten test. The defendant must prove he suffered a disease of the mind that caused a defect of reason, and as a result he lacked the ability to know the wrongfulness of the actions or understand the nature and quality of his actions. (F2018, J2015)