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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)

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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

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.

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.

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

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

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

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

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 is illegal
* D must possess long enough to have had an opportunity to cease such dominion and control

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)

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

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: Overt Acts

A
  • Common Law: No overt act required
  • Majority/federal law/MPC: Require an overt act in furtherane of the conspiracy, but MPC does not require if conspiratoral crime is a first- or second-dgree felony
71
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
72
Q

Conspiracy: Pinkerton Liability

A

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

73
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

74
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

75
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
76
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

77
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)

78
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.

79
Q

Defense Of Others

A

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

80
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.

81
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
82
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.

83
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”)

84
Q

Entrapment

A

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

bar exam: outline (15 decks)

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