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Bar Exam: Outline > Criminal Law (MBE/MEE) > Flashcards

Criminal Law (MBE/MEE) Flashcards

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MBE flashcards
1
Q

Actus Reus

A
  • Either (i) a voluntary, affirmative act, or (ii) an omission (failure to act), causing a criminally proscribed result
  • Must be a concurrence of D’s mens rea with the actus reus such that the mens rea causes the actus reus
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2
Q

Voluntary Act

A
  • Must be a physical act that is voluntary (i.e., willed by the defendant/had motor control over the moment)
  • Involuntary: Unconscious/asleep/under hypnosis
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3
Q

Failure to Act

A

A failure to act can constitute the actus reus when a duty exists:
* Imposed by statute (e.g., obligation to file tax return)
* Contract (e.g., lifegaurd saving a drowning person)
* Special relationship (e.g., parent’s duty to her child or duty to one’s spouse)
* Detrimental undertaking (e.g., leaving victim in worse condition after treatment)
* Causation (e.g., failing to aid after causing victim’s peril) (ex. lifeguard failing to save friend after friend had gone swimming based on lifeguard’s assurance that it was safe to do so)

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4
Q

Mens Rea: Specific-Intent

A

Requires D has a subjective desire, specific objective, or knowledge to accomplish prohibited result. Applicable crimes under common law (FIAT)
* First-degree murder
* Inchoate Crimes (e.g., conspiracy, attempt, solicitation)
* Assault with attempt to commit battery
* Theft Offenses (e.g., larcency, embezzlement, forgery, burglary, robbery)

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5
Q

Mens Rea: Malice

A
  • Requires D acts with a reckless disregard of a high degree of harm.
  • Applicable Crimes: Arson and murder
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6
Q

Mens Rea: General-Intent

A
  • Requires the intent to perform an unlawful act
  • MPC: Acts done knowingly, recklessly, or negligently
  • Applicable Crimes: Battery, rape, kidnapping, false imprisonment, etc.
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7
Q

Transferred Intent

A
  • When D has requisite mens rea for committing a crime against Victim A, but actually commites crime against Victim B, law transfers intent from Victim A over to Victim B.
  • Applies only to “bad aim” cases, not mistaken identity
  • Does not apply to attempted crimes, only completed crimes (usually homicide, battery, arson)
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8
Q

Mens Rea: MPC

A
  • Purposely
  • Knowingly
  • Recklessly
  • Negligently
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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

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 and acts in a way that grossly deviates from the standard of care of a reasonable person in the situation

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13
Q

Strict Liability

A
  • No mens rea requirement; proof of actus reus is sufficient for conviction
  • Generally disfavored; limited to statutory/regulatory offenses (e.g., regulation of food and drugs) and moral offenses (e.g., statutory rape or bigamy)
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14
Q

Vicarious Liability

A
  • Imposes criminal liability on D for the actus reus of a third party
  • Corporations may be vicariously liable when act is performed by high-ranking corporate agent who likely represents corporate policy
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15
Q

Mistake of Fact: Common Law

A
  • Specific-intent crimes: Defense to specific-intent crimes, even if unreasonable;
  • General-intent crimes: defense to general-intent or malice crimes only if reasonable
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16
Q

Mistake of Fact: MPC

A

Serves as defense if it prevents P from establishing required state of mind for a material element of offense

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17
Q

Mistake of Law: Common Law

A

Not valid under common-law; ignorance of the law is no excuse

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18
Q

Mistake of Law: MPC

A

Only valid under MPC if:
* Reliance on high-level government interpretations;
* Lack of notice of malum prohibitum crimes;
* MIstake of law that goes to an element of specific-intent crime

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19
Q

Principal

A
  • Person whose acts or omissions are the actus reus of the crime
  • Must be actually or constructively present at scene of crime
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20
Q

Accomplice

A
  • Person who aids or abets principal prior to or during crime with the intent of assisting the principal to commit the crime
  • Liability: Liable for any crimes that are the natural and probable consequences of the accomplice’s conduct
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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

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23
Q

Accomplice: Repudiation

A

To withdraw, an accomplice must:
* Repudiate prior aid,
* Do all that is possible to countermand prior assistance, and
* Do so before the chain of events is in motion and unstoppable

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24
Q

Accessory after the Fact

A
  • A person who aids a felon to avoid apprehension after the felony is committed
  • To be guilty, person must know the felony was committed
  • Only liable for a separate crime
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25
Q

Insanity: M’Naghten Rule

A

D did not know either the:
* (i) nature and quality of the act, or
* (ii) wrongfulness of the act

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26
Q

Insanity: Irresistible Impulse Rule

A
  • D lacked capacity for self-control and free choice due to mental disease or defect
  • Unable to conform conduct to law
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27
Q

Insanity: Durham Rule

A

Crime would not have been committed but-for D’s mental disease or defect

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28
Q

Insanity: MPC Rule

A

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

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29
Q

Insanity Defense: Constitutional Requirements

A
  • A state is not constitutionally required to recognize any form of an insanity defense
  • If a state does recognize an insanity defense, it is constitutionally permissible to shift the burden to the accused to prove it as an affirmative defense
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30
Q

Intoxication: Voluntary

A
  • Person intentionally ingests substance, knowing it is an intoxicant
  • Defense (Common-Law): Only to specific-intent crimes if intoxication prevents formation of required mens rea
  • Defense (MPC): Defense that require purpose or knowledge, and intoxication prevents formation of that mental state
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31
Q

Intoxication: Involuntary

A
  • Taken without knowledge of intoxicating nature, or under duress
  • Defense: Can be valid defense to specific-intent, general-intent, and malice crimes when it negates mens rea necessary for crime
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32
Q

Homicide

A
  • Killing of a living human being by another human being
  • Must be actual causation and proximate causation
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33
Q

Homicide: Causation

A

Actual Causation: But-for causation

Proximate Causation: D’s act is a foreseeable cause of the victim’s death
* Independent actions by a third person are generally not a foreseeable cause, but negligence is generally foreseeable

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34
Q

Common-Law Murder

A

The unlawful killing of another human being with malice aforethought. Malice can be shown by:
* Intent to kill;
* Intent to do serious bodilly injury;
* Reckless indifference to human life (“depraved heart murder”); or
* Felony murder

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35
Q

Common-Law Murder: Depraved-Heart Murder

A

Reckless indifference to an unjustifiably high risk to human life

36
Q

Common-Law Murder: Felony Murder

A
  • Unintended but foreseeable killing proximately caused by and during commission or attempted commission of an inherently dangerous felony
  • Crimes (BARRK): Burglary, arson, robbery, rape, kidnapping
37
Q

Felony Murder: Agency Theory vs. Proximate Cause Theory

A
  • Agency Theory (Majority): D is not liable for a bystander’s death caused by a felony victim or police officer
  • Proximate Cause Theory (Minority): Bystander’s death falls under felony murder rule because death is direct consequence of felony

Note: D is not liable under either theory for the death of a co-felon if a victim/police officer kills the co-felon. Instead, those are considered justifiable homicides.

38
Q

First-Degree Murder

A

Typically defined as either a:
(1) Deliberate and premeditated murder; or
* Deliberate: D made decision to kill in cool and dispassionate manner
* Premeditated: D had time to plan and reflect on idea of killing (mere second is sufficient)
* Specific-intent crime

(2) Felony murder

39
Q

Second-Degree Murder

A

Statutory version of common law murder defined as a homicide committed with necessary malicious intent
* Intent to kill;
* Intent to do great bodily injury;
* Depraved-heart murder; or
* Felony murder

40
Q

Voluntary Manslaughter

A

Murder committed in response to adequate provocation and no time to cool off
* Provocation: A reasonable person would have been, and D was, provoked by victim’s actions (e.g., discovery of adultery, serious battery).
* Cooling off: Must not have been sufficient time for a reasonable person to cool off, and D did not cool off, between provocation and killing.

Note: Words alone do not constitute adequate provocation

41
Q

Transferred Provocation

A
  • If D misidentifies provoker or kills wrong person due to a reasonable mistake of fact, D can be guilty of voluntary manslaughter.
  • Doesn’t count if D intentionally killed a third party due to provocation by provoker
42
Q

Voluntary Manslaughter: Imperfect Defense

A

If D uses self-defense and kills another person but was unreasonable in doing so (e.g., used excessive force, improper use of self-defense), murder can be mitigated down to voluntary manslaughter

43
Q

Involuntary Manslaughter

A

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

44
Q

Involuntary Manslaughter: Criminal Negligence

A

Grossly negligent action (or inaction when there is a duty) that puts another person at a signficant risk of serious bodily injury or death

Note: MPC requires D was actually aware of the risk of his conduct.

45
Q

Involuntary Manslaughter: Unlawful Act

A

D commits an unlawful act that does not give rise to felony murder and a death occurs as a result

46
Q

Larceny

A

Requirements:
* (i) Trespassory taking and carrying away of the personal property of another,
* (ii) without consent,
* (ii) with the specific intent to permanently deprive the owner of the property at the time of the taking (stolen property taken from thief can usually constitute larceny)

Note: Factual impossibility is not a defense to larceny.

47
Q

Larceny by Trick

A

Requirements:
* (i) Larceny;
* (ii) Accomplished by fraud or deceit;
* (iii) resulting in conversion of the property to another

48
Q

Embezzlement

A

Fraudulent conversion of the property of another by a person who is in lawful possession of the property (e.g., not acquired by fraud)

Note: The amount of embezzlement is measured by the value of the property at the time of the conversion.

49
Q

Forgery

A

Requirements:
* (i) Making of a false writing;
* (ii) with apparent legal significance, and
* (iii) with intent to defraud

50
Q

False Pretenses

A

Requirements:
* (i) Obtaining title to the property of another;
* (ii) Through the reliance of that person;
* (iii) On a known false representation of a material fact; and
* (iv) The representation is made with an intent to defraud

51
Q

Robbery

A

Robbery = Larceny + Assault:
* (i) Larceny;
* (ii) From the person or presence of the victim;
* * (iii) By violence or putting the victim in fear of imminent physical harm (i.e., threat to damage or destroy property not sufficient)

Note: Threat of immediate serious physical injury need not be made against victim himself, but may be made against another person who is present when threat is made. Threatened party need not be related to victim.

52
Q

Extortion

A

Taking of money or property from another by threat
* Involves threats of future harm, including non-physical harm

53
Q

Common-Law Burglary

A

Requirements:
* (i) Breaking and entering of the dwelling of another;
* (ii) at nighttime;
* (ii) with the specific intent to commit a felony therein

Consent: If D gains entry to dwelling by consent, breaking can still occur if D breaks into part of dwelling where D lacks consent to be.

Note: Can be convicted of burgary even if you fail the underlying felony.

54
Q

Common-Law Arson

A

Requirements:
(i) Malicious burning;
(ii) of the dwelling of another
* Requires damage to structure of building, not it’s contents

Note: MPC includes any intentional fire intended to destroy a building/occupied structure or destroy property to collect insurance

55
Q

Possession Offenses

A

D exercises dominion and control over a prohibited object or substance
* D not required to be aware possession of substance is illegal, but must be aware the substance is within his dominion and control
* D must possess long enough to have had an opportunity to cease such dominion and controls

56
Q

Reciept of stolen Property

A

Requirements:
* (i) Receiving control of stolen property;
* (ii) Knowledge that property is stolen; and
* (iii) intent to permanently deprive owner of the property

57
Q

Perjury

A

Requirements:
* (i) Person knows what they are saying is false;
* (ii) Person intends to say something that is false; and
* (iii) Falsity must go to a material matter

Note: Subornation of perjury is when a person persuades someone else to commit perjury.

58
Q

Bribery

A

Corrupt payment of value for purposes of influencing an official in the discharge of his official duties
* Modern law allows bribery charge even if person bribed is not public official

59
Q

Battery

A

Requirements:
* (i) Unlawful application of force to another person;
* (ii) That causes bodilly harm or constitutes an offensive touching

Note: Does not require actual physical contact

60
Q

Assault

A

Either:
* An attempt to commit a battery; or
* Intentionally placing another in apprehension of imminent bodily harm

61
Q

Mayhem

A

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

62
Q

Kidnapping

A

Requirements:
* (i) Unlawful confinement of another person against that person’s will;
* (ii) coupled with either movement or hiding of that person

Note: If kidnapping occurs incident to another crime, movement must be more than what is necessary for commission of crime to be liable for separate offense.

63
Q

False Imprisonment

A

Unlawful confinement of a person without consent

64
Q

Rape: Common-Law

A

Requirements:
* (i) Unlawful sexual intercourse;
* (ii) with a female;
* (iii) against her will by force or threat of immediate force

65
Q

Rape: Modern Statutes

A

Most modern rape statutes are gender-neutral and require lack of consent rather than the force requirement

66
Q

Merger

A

D cannot be convicted of two crimes when those two crimes merge into one. Two categories of merger:
* (i) Lesser-included offenses; and
* (ii) Merger of an inchoate and a completed offense (other than conspiracy)

Note: D can be prosecuted for, but not convicted of, more than one inchoate offense based on conduct designed to culminate in commission of same crime (ex. soliciation and attempted kidnapping).

67
Q

Solicitation

A
  • Occurs when an individual intentionally invites, requests, or commands another person to commit a crime
  • If person agrees, crime is a conspiracy
  • Merger doctrine applies
  • Renunciation (MPC): May be a defense if D thwarts commission of solicited crime
68
Q

Attempt

A

A substantial step toward commission of crime, beyond mere perpeation, coupled with the specific intent to commit the crime.
* Merger doctrine applies
* Impossibility: Legal impossibility is a defense; factual impossibility is not

Note: Attempt requires specific intent to commit crime. This applies even when the target crime (e.g., statutory rape) is a strict liability offense that does not require proof of a particular mental state. Still will need to have specific intent to commit crime. For example, can’t be convicted of attempt to commit murder if basis is depraved-heart murder because you didn’t specifically intend to commit the killing.

69
Q

Common-Law Conspiracy

A

Requirements:
* (i) An agreement between two or more persons (bilateral conspiracy) to accomplish an unlawful purpose;
* (ii) With specific intent to agree and commit the criminal objective

Note: If one party jokingly agrees, doesn’t consitute actual intent to commit the criminal objective

70
Q

Conspiracy: Chain Conspiracy

A
  • Conspiracy can exist among individuals who do not know each other if there is a community of interest in achieving objective of conspiracy
  • Established by chain relationship
71
Q

Conspiracy: Overt Acts

A
  • Common Law: No overt act required
  • Majority/federal law/MPC: Require an overt act in furtherance of the conspiracy, but MPC does not require if conspiratoral crime is a first- or second-dgree felony

Note: The overt act need not be completed by the defendant; just a member of the conspiracy

72
Q

Conspiracy: Unilateral Conspiracy

A
  • Majority/MPC: Conspiracy may be formed when only one party actually agrees, including an undercover agent
  • Common Law: Not recognized
73
Q

Conspiracy: Pinkerton Liability

A

A conspirator is liable for conspiracy and co-conspirators’ substantive crimes committed in furtherance of the conspiracy

74
Q

Withdrawal from Conspiracy: Liability for Conspiracy

A

Majority rule: After agreement but before an overt act has been committed, person may avoid criminal liability by either:
* Communicating notice of intent not to participate to other co-conspirators; or
* Informing police about agreement

Minority/MPC: Withdrawal only possible if D acts voluntarily to “thwart the success” of the conspiracy

75
Q

Withdrawal from Conspiracy: Liability for Substantive Crimes

A

D may withdraw by:
* Giving notice to his co-conspirators, or
* Timely advising legal authorities of the existence of the conspiracy

76
Q

Wharton Rule

A

If a crime requires 2+ participants, there is no conspiracy unless more parties than are necessary to complete the crime agree to commit the crime

77
Q

Self-Defense

A
  • Use of reasonable force against another person to prevent immediate unlawful harm to himself
  • Non-deadly force may be used to repel non-deadly force
78
Q

Self-Defense: Deadly Force

A

May be used in self-defense only if reasonably necessary to:
* Prevent death or serious injury, or
* Prevent serious felony involving risk to human life

79
Q

Self-Defense: Retreat

A

No obligation to retreat before:
* using nondeadly force,
* deadly force in home, or
* deadly force elswhere (majority view; minority requires retreat if it can be safely accomplished)

80
Q

Self-Defense: Aggressor’s Right

A

An initial aggressor may gain right to act in self-defense if:
(i) Aggressor’s non-deadly force was met with deadly force; or
(ii) Aggressor withdrew from altercation in good faith and communicated that to the victim.

81
Q

Defense Of Others

A

Right to defend others exists under same circumstances in which self-defense would be acceptable

82
Q

Reasonable Force to Protect Another From Self-Harm

A

A D is privileged to use reasonable force against an individual to protect that individual from self-harm when:
* the individual is unable to understand the nature and consequences of his/her actions and
* D reasonably believes that the individual is about to commit an act likely to cause death or serious bodily harm to him/herself

Note: May include acts that otherwise would be battery or false imprisonment

83
Q

Defense of Property

A

Right to use non-deadly proportionate force to protect property if D reasonably believes:
* real property is in danger of unlawful trespass,
* or personal property is in immediate danger of being carried away

Note: Can only use deadly force if occupant reasonably believes intruder intends to commit a felony inside.

84
Q

Arrest

A
  • Police can use reasonable force to make a lawful arrest, and D may use nondeadly force to resist unlawful arrest
  • Police can use deadly force if suspect is threat to officer or third parties
  • A civilian has a self defense of arrest when using reasonable force to arest a person who has committed ac rime in the civilian’s presence
85
Q

Duress

A

A third party’s unlawful threat causes a D to reasonably believe that the only way to avoid death or serious bodily injury to himself or another is to violate the law

Note: Not a defense to intentional murder.

86
Q

Necessity

A

Forces of nature (not human actions, or the D’s actions) caused D to commit what would otherwise be a crime (i.e., the “lesser of two evils”)

87
Q

Entrapment

A

Defense if:
* (i) Crime is induced by government agent; and
* (ii) D not predisposed to commit the crime

Note: Requiers participation of governmental official or agent, or someone working on their behalf

Bar Exam: Outline (16 decks)

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