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FRO Rules > Criminal Law MBE > Flashcards

Criminal Law MBE Flashcards

1
Q

Actus reus

A

(i) a voluntary, affirmative act, or (ii) an omission (failure to act), causing a criminally proscribed result

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2
Q

Voluntary act

A
  • Physical and voluntary
  • Unconscious/asleep/under hypnosis—not voluntary
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3
Q

Failure to act when a duty exists

A
  • Imposed by statute (e.g., the obligation to file a tax return)
  • Contract (e.g., a lifeguard saving a drowning person)
  • Special relationship (e.g., a parent’s duty to her child or the duty to one’s spouse)
  • Detrimental undertaking (e.g., leaving a victim in worse condition after treatment)
  • Causation (e.g., failing to aid after causing a victim’s peril)
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4
Q

Mens rea

A

—a guilty mind or legally proscribed mental state (no mens rea for strict-liability crimes)

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5
Q

Specific-intent (SI) crimes

A

—the defendant (D) has a subjective desire, specific objective, or knowledge to accomplish prohibited result (FIAT):

  • First-degree murder
  • Inchoate offenses
  • Assault with intent to commit battery
  • Theft offenses
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6
Q

Malice crimes

A

CL murder, arson

  • Reckless disregard of a high risk of harm
  • Does not require D to act with ill will toward victim
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7
Q

General-intent crimes

A

(e.g., battery, rape, kidnapping, and false imprisonment)

  • Require the intent to perform an unlawful act
  • Intent—purposely, knowingly, recklessly, or negligently
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8
Q

Transferred Intent

A

o When D acts with intent to cause harm to one person or object and that act directly results in harm to another person or object

o Applies only to “bad aim” cases (not mistaken identity)

o Usually confined to homicide, battery, and arson

o Not for attempted crimes (only completed crimes)

o MPC—transferred intent not specifically recognized, but liability is recognized when purposely, knowingly, recklessly, or negligently causing a particular result is an element of an offense.

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9
Q

MPC Purposely

A

D’s conscious objective is to engage in the conduct or to cause a certain result

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10
Q

MPC Knowingly/willfully

A

D is aware or knows that the result is practically certain to occur based on the conduct

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11
Q

MPC Recklessly

A

D acts with a conscious disregard of a substantial and unjustifiable risk

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12
Q

MPC Negligently

A

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

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13
Q

Strict-liability crimes

A

(e.g., statutory rape, bigamy, regulation of food and drugs)

  • No mens rea; proof of the actus reus is sufficient for conviction
  • Generally disfavored; there must be clear legislative intent to dispense with the mens rea
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14
Q

Vicarious liability

A
  • No actus reus by D; imposes criminal liability on D for the actus reus of a third party
  • Generally limited to regulatory crimes; punishment generally limited to fines
  • Corporations—may be vicariously liable when the act is performed by a high-ranking corporate agent who likely represents corporate policy
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15
Q

Causation

A

D’s conduct must cause the particular result or circumstance

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16
Q

Mistake as a defense

A

may negate criminal intent if an “honest mistake”

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17
Q

Mistake of fact

A

o CL—a defense to specific-intent crimes, even if unreasonable; a defense to general-intent or malice crimes, only if reasonable

o MPC—serves as a defense if it prevents prosecution from establishing the required state of mind for a material element of a crime

o Strict liability—no defense

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18
Q

Mistake of law

A

—not valid under CL;

only valid under MPC if:
o An honestly held mistake of law negates required intent or mental state
o D relied on court decision/administrative order or official interpretation
o Statutory definition of malum prohibitum crime not available before conduct

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19
Q

Principal

A

—the person whose acts or omissions are the actus reus of the crime; must be actually or constructively present at the scene of the crime

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20
Q

Accomplice

A

—a person who, with the requisite mens rea, aids or abets a principal prior to or during the commission of the crime

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21
Q

Principal in the second degree

A

an accomplice who is physically or constructively present during the commission of the crime

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22
Q

Accessory before the fact

A

an accomplice who is neither physically nor constructively present during the commission of the crime, but who possesses the requisite intent

  • Responsible for the crime and all other crimes that are the natural and probable consequences of the accomplice’s conduct
  • To withdraw, an accomplice must:
    o Repudiate prior aid,
    o Do all that is possible to countermand prior assistance, and
    o Do so before the chain of events is in motion and unstoppable.
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23
Q

Accessory after the fact

A
  • Aids or assists a felon to avoid apprehension or conviction after commission of the felony
  • Must know that a felony was committed
  • Only liable for a separate crime (e.g., “obstruction of justice” or “harboring a fugitive”)
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24
Q

Insanity - M’Naghten

A
  • M’Naghten—D did not know either (i) the nature and quality of the act, or (ii) the wrongfulness of the act, because of a defect of reason due to mental disease (“right from wrong” test)
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25
Q

Insanity - Irresistible impulse

A
  • Irresistible impulse—D lacked capacity for self-control and free choice due to mental disease or defect (inability to conform conduct to the law)
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26
Q

Insanity - Durham

A
  • Durham—the unlawful act was the product of D’s mental disease or defect (“but for” test)
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27
Q

Insanity - MPC

A
  • MPC (combines M’Naghten and irresistible impulse)—at the time of the conduct, D lacked substantial capacity to appreciate the wrongfulness of the act or to conform his conduct to law, as a result of mental disease or defect
28
Q

Voluntary Intoxication

A

o Intentional taking of a substance known to be intoxicating

o Need not intend actual intoxication

o A defense to SI crimes if it prevents the formation of the required intent

o MPC—a defense to crimes with a mental state that is “purposely” or “knowingly” and the intoxication prevents the formation of that mental state

29
Q

Involuntary Intoxication

A

o Taken without knowledge of the intoxicating nature, or under duress

o A defense when intoxication negates an element of a general-intent, specific-intent, or malice crime; may be a defense to a strict-liability crime by negating the voluntary act

30
Q

Homicide

A

—the killing of a living human being by another

31
Q

Murder

A

the unlawful killing of another living human being with malice aforethought

  1. Malice—can be shown by any one of the following:
  • Intent to kill—conduct that is the legal cause of death + intent to kill
  • Intent to do serious bodily injury—intent to do serious bodily injury + unintentional killing
  • Reckless indifference to human life—results from reckless indifference to an unjustifiably high risk to human life + unintentional killing (“depraved heart”)
  • Intent to commit a felony—proximately caused by and during the commission or attempted commission of an inherently dangerous felony + unintentional killing (felony murder)
32
Q

Felony murder rule

A
  • Unintended and foreseeable killing proximately caused by and during the commission or attempted commission of an inherently dangerous felony

Most common: BARRK—burglary, arson, robbery, rape, and kidnapping

  • The prosecution must establish the underlying felony and that D committed that felony
  • Agency theory (majority position)—D is not liable for a bystander’s death caused by a felony victim or police officer
  • Proximate cause theory (minority position)—a bystander’s death falls under FMR because the death is a direct consequence of the felony
  • D is not liable for a co-felon’s death by a victim or police officer
  • Does not encompass death occurring after flight from the scene of the crime
33
Q

First-degree murder

A
  • Deliberate and premeditated murder; or
    o After forming the intent to kill, D had time for reflection
    o Specific-intent crime (specific-intent defenses are available to D)
  • Felony murder
34
Q

Second-degree murder

A

(malice crime)—committed with the necessary malicious intent (common-law murder), or the default category if not first-degree murder

35
Q

Voluntary manslaughter

A

—homicide committed with malice aforethought, but also with mitigating circumstances

  1. “Heat of passion”
    * Murder committed in response to a situation that could inflame a reasonable person (e.g., serious battery, threat of deadly force, but usually not mere words)
    * NOT a defense, but it reduces murder to voluntary manslaughter
    * If there was sufficient time between the provocation and the killing for a reasonable person to cool down, then murder is not mitigated to manslaughter
    * Transferred provocation applies if D misidentified her provoker or accidentally kills the wrong person
  2. Imperfect defense
    * Many states reduce murder to voluntary manslaughter if D started the altercation or unreasonably believed in the necessity of using deadly force
36
Q

Involuntary manslaughter

A

an unintentional homicide committed with criminal negligence or during an unlawful act

  1. Criminal negligence—grossly negligent action (or inaction when there is a duty to act) that puts another person at a significant risk of serious injury or death
  2. Unlawful act—a killing committed during the commission of:
    * A malum in se misdemeanor (e.g., assault, battery), or
    * A felony that is not treated as first-degree felony murder or second-degree murder
37
Q

Larceny (6)

A
  • Trespassory;
  • Taking and;
  • Carrying away;
  • Of the personal property;
  • Of another;
  • With the specific intent to permanently deprive the owner of the property.
38
Q

Larceny by trick (3)

A
  • Larceny;
  • Accomplished by fraud or deceit;
  • That results in the conversion of the property of another.
39
Q

Forgery (4)

A
  • Making;
  • Of a false writing;
  • With apparent legal significance; and
  • With the intent to defraud.
40
Q

Embezzlement (5)

A
  • Fraudulent;
  • Conversion;
  • Of the property;
  • Of another;
  • By a person who is in lawful possession of the property.
41
Q

False Pretenses (5)

A
  • Obtaining title to the property;
  • Of another person;
  • Through the reliance of that person;
  • On a known false representation of a material past or present fact; and
  • The representation is made with the intent to defraud.
42
Q

Robbery (3)

A
  • Larceny;
  • From the person or presence of the victim;
  • By force or intimidation.
43
Q

Extortion (4)

A
  • The taking of money or property from another by threat
  • Making the threat (not obtaining the property) is the essence of the crime (majority view)
  • The threat need not be of immediate harm or of a physical nature
  • The property need not be on the victim or in his presence
44
Q

Burglary (common law) (6)

A
  • Breaking and;
  • Entering;
  • Of the dwelling;
  • Of another;
  • At nighttime;
  • With the specific intent to commit a felony therein.
45
Q

Arson (common law) (4)

A
  • Malicious;
  • Burning;
  • Of the dwelling;
  • Of another.

Note: The MBE has not always been consistent with regard to this definition.

The MPC includes any intentional fire/explosion intended to destroy a building or occupied structure, or destroying/damaging property to collect insurance

46
Q

Possession offenses

A
  • D exercises dominion and control over a prohibited object or substance
  • D is not required to be aware that possession of the object is illegal
  • Duration of possession—must be for a period long enough to have provided D with an opportunity to cease such dominion and control
47
Q

Receipt of Stolen Property (3)

A
  • Receiving control of stolen property;
  • Knowledge that the property is stolen; and
  • Intent to permanently deprive the owner of the property.
48
Q

Battery (4)

A
  • Unlawful;
  • Application of force;
  • To another person;
  • That causes bodily harm to that person or constitutes an offensive touching.
49
Q

Assault

A
  • An attempt to commit a battery; or
  • Intentionally placing another in apprehension of imminent bodily harm.
50
Q

Mayhem

A

a common-law felony battery that causes the dismemberment or permanent disfigurement of a person

51
Q

Kidnapping (4 - 4th has 2 parts)

A
  • Unlawful;
  • Confinement of a person;
  • Against that person’s will;
  • Coupled with either:
    o The movement; or
    o The hiding of that person.
52
Q

False imprisonment (3)

A
  • Unlawful;
  • Confinement of a person;
  • Without consent.
53
Q

Rape (4)

A
  • Unlawful;
  • Sexual intercourse;
  • With a female;
  • Against her will by force or threat of immediate force.

Most modern statutes are gender-neutral and have replaced the force requirement with lack of consent; the required intent is negated if D reasonably believes that the victim’s lack of resistance indicates consent

54
Q

Inchoate crimes

A

specific-intent crimes

CATS
Conspiracy
Attempt
Solicitation
[Merger]

55
Q

Merger

A

D may be tried, but not punished, for (i) solicitation and the completed crime; (ii) attempt and the completed crime; (iii) under the MPC, more than one inchoate offense (but conspiracy and attempt do not merge under the CL)

56
Q

Solicitation

A
  1. Enticing, encouraging, requesting, or commanding another person;
  2. To commit a crime;
  3. With the intent that the other person commits the crime.
  4. Renunciation (MPC)—voluntary renunciation may be a defense if D thwarts the commission of the solicited crime
57
Q

Conspiracy

A
  1. An agreement;
  2. Between two or more persons (bilateral conspiracy);
  3. To accomplish an unlawful purpose;
  4. With the intent to accomplish that purpose.
  5. Unilateral conspiracy—may be formed when only one party actually agrees (majority and MPC; not recognized under common or federal law)
  6. Overt act
    * Common law—no overt act required
    * Majority/federal law/MPC
    o Require a lawful or unlawful overt act in furtherance of the conspiracy, but
    o MPC does not require an overt act if the conspiratorial crime is a first- or seconddegree felony
  7. Scope—a conspirator is liable for conspiracy and the co-conspirators’ substantive crimes committed in furtherance of the conspiracy (Pinkerton Rule)
  8. Withdrawal
    * Liability for conspiracy
    o Federal/majority rule—withdrawal is possible after the agreement and before the commission of an overt act, but D must give notice to co-conspirators or give timely notice to police
    o MPC/minority rule—subsequent withdrawal is possible only if D acts voluntarily to “thwart the success” of the conspiracy
    * Liability for substantive crimes—for this purpose, D may withdraw by giving notice to his co-conspirators or timely advising legal authorities of the existence of the conspiracy even though such an action does not thwart the conspiracy
58
Q

Attempt

A
  1. A substantial step toward commission of crime (beyond mere preparation); coupled with
  2. The specific intent to commit the crime.
  3. Factual impossibility—not a defense (legal impossibility is a defense)
  4. Abandonment—not a defense after completion of actus reus (substantial step or dangerous proximity)
  5. If the crime is completed, the attempt merges into the completed crime (D may be charged with both, but may be convicted of only one)
59
Q

Mistake of fact defense

A
  • A viable defense, if the mistake is a reasonable one
    o Consider D’s physical characteristics, experiences, and knowledge
  • An unreasonable mistake is only a defense to specific-intent crimes
60
Q

Self-defense

A

one who is not the aggressor is justified in using reasonable force against another person to prevent immediate unlawful harm to himself

  • Reasonable force—may be used to prevent immediate unlawful harm
  • Deadly force—may be used in self-defense only if reasonably necessary to:
    o Prevent death or serious injury, or
    o Prevent the commission of a serious felony involving a risk to human life
  • Nondeadly force—may be used to repel nondeadly force
  • Retreat
    o No self-defense duty to retreat before using nondeadly force, deadly force in home, or (majority view) deadly force elsewhere
    o Minority view—retreat is required if it can be safely accomplished
  • Imperfect self-defense (when a killing in self-defense is not justified)—reduces murder to voluntary manslaughter
  • Aggressor’s right to use self-defense—an initial aggressor may gain the right to act in self-defense if:
    o The aggressor’s nondeadly force was met with deadly force, or
    o The aggressor, in good faith, withdrew from the altercation and communicated that fact to the victim.
61
Q

Defense of others

A

—the right to defend others exists under the same circumstances in which self-defense would be acceptable

62
Q

Defense of property

A
  • Reasonable steps, including nondeadly force, may be used to protect property
  • D must reasonably believe that the real property is in immediate danger of unlawful trespass or that personal property is in immediate danger of being carried away
  • Force cannot be unreasonably disproportionate to the perceived harm
  • Generally, deadly force is not OK in defending property—only OK to prevent forcible entry into a dwelling if the occupant reasonably believes that the intruder intends to commit a felony inside
  • Deadly mechanical devices cannot be used to protect property
63
Q

Arrest

A
  • Police can use reasonable force to make a lawful arrest
  • Police can use deadly force only if the suspect is a threat to the officer or third parties
  • Resisting unlawful arrest—D may use nondeadly force to resist an unlawful arrest (never deadly force)
64
Q

Duress

A
  • A third party’s unlawful threat that causes D to reasonably believe that the only way to avoid death or serious bodily injury to himself or another is to violate the law, and that causes D to do so, allows D to claim the duress defense
  • Not a defense to intentional murder
65
Q

Necessity

A
  • Forces of nature (not human actions) caused D to commit what would otherwise be a crime
  • Not a defense if D set the natural forces in motion (e.g., set a fire) or if there is a reasonably apparent noncriminal alternative
66
Q

Consent

A
  • Not a defense unless it:
    o Negates a required element of the crime, or
    o Precludes the harm sought to be avoided by the crime.
  • Consent must be:
    o Voluntarily and freely given;
    o Involve no fraud; and
    o Be given by one who is competent to consent.
67
Q

Entrapment

A
  • The crime is induced by a government official or agent; and
  • D was not predisposed to commit the crime.

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