Criminal Law & Procedure

Question 1

Actus Reus

Answer 1

• The act required to commit a given crime.
• A required component of every common law crime, along with mens rea.
• REQUIREMENT: voluntary physical act
• To satisfy the actus reus requirement, D must perform a voluntary physical act, i.e. a voluntary bodily movement.

Question 2

Omission as actus reus.

Answer 2

A failure to act can constitute actus reus if:

1. D had a specific legal duty to act;
2. D had knowledge of facts giving rise to the duty; and
3. It was reasonably possible for D to perform the duty.

Question 3

Mens Rea

Answer 3

The mental element required at the time a crime was committed. A required component of every common law crime, along with actus reus.

Question 4

Forms of mens rea

Answer 4

Intent requirements differ by crime:

1. specific intent - D must have a specific intent or objective to commit a given crime: specific intent must always be proven; never inferred. Mistake of fact and voluntary intoxication are available defenses.
2. general intent - D must be aware of his actions and any attendant circumstances: May be inferred from the act itself. NOTE: most crimes a general intent crimes.
3. malice - D acts with reckless disregard or undertakes an obvious risk, from which a harmful result is expected - Applies to arson and common law murder.

Question 5

Strict liability

Answer 5

no intent or awareness is required for strict liability crimes (i.e. no mens rea requirement): arises with statutory rape, administrative, regulatory, or mortality crimes.

Question 6

Model Penal Code Mens Rea Standards

Answer 6

MBE questions occasionally invoke language from the MPC’s fault standards. Thus, it is important to know these definitions:

PURPOSELY (subjective)
KNOWINGLY (subjective)
RECKLESSLY (subjective)
NEGLIGENCE (objective)

NOTE: MBE generally tests common law unless otherwise instructed. Though the MBE usually tells you which law is applicable, when in doubt, apply common law.

Question 7

PURPOSELY

Answer 7

(subjective): A person acts purposely when his conscious objective is to engage in certain conduct or cause a certain result.

Question 8

KNOWINGLY

Answer 8

(subjective): A person acts knowingly when he is aware that his conduct is of a particular nature or knows that his conduct will necessarily or very likely cause a particular result.

Question 9

RECKLESSLY

Answer 9

(subjective): A person acts recklessly when he knows of a substantial and unjustifiable risk and consciously disregards it.

Question 10

NEGLIGENCE

Answer 10

(objective): A person acts negligently when he fails to become aware of a substantial and unjustifiable risk.

Question 11

(Major Crimes & Requisite Mens Rea)

General Intent:

Answer 11

General Intent:

1. Battery
2. Rape
3. Kidnapping
4. False imprisonment

Question 12

(Major Crimes & Requisite Mens Rea)

Specific Intent

Answer 12

Specific Intent:

1. Attempt
2. Larceny & Robbery
3. Forgery
4. False pretenses
5. Embezzlement
6. Conspiracy
7. Assault
8. Burglary
9. First-degree murder
10. Solicitation

Question 13

(Major Crimes & Requisite Mens Rea)

Malice

Answer 13

Malice:

1. Common law murder
2. Arson

Question 14

(Major Crimes & Requisite Mens Rea)

Strict Liability

Answer 14

Strict Liability:

1. Statutory rape
2. Regulatory crimes
3. Administrative crimes
4. Morality crimes (bigamy, polygamy)

Question 15

Concurrence

Answer 15

D’s criminal act and the requiste intent (i.e. mens rea) for the crime must occur simultaneously.

E.g. D plans on murdering victim at her home - D is not guilty of murder if he accidentally runs over victim with his car before reaching her house.

Question 16

Causation

Answer 16

D’s conduct must be both the cause-in-fact (actual cause) and the proximate cause of the crime committed.

NOTE: Causation issues often arise in homicide crimes on the MBE.

Question 17

Cause-in-fact (actual cause)

Answer 17

But for D’s conduct, the result would not have occurred.

NOTE: Homicide and manslaughter - any act by D that hastens victim’s death is a cause-in-fact, even if death is already inevitable.

Question 18

Proximate cause

Answer 18

The actual result is the natural and probably consequence of D’s conduct, even if it did not occur exactly as expected.

SUPERSEDING FACTORS - break the chain of causation
INTERVENING FACTORS - must be entirely unforeseeable to shield D from liability (e.g. with victim’s refusal of medical treatment, third party negligence - both are foreseeable and D is liable)

Question 19

Transferred intent doctrine

Answer 19

D may be held liable if he intends the harm caused, but causes it to a different victim or object than intended.

Most often applies to homicide, battery and arson.

Does NOT apply to attempt.

Defenses and mitigating circumstances may also be transferred.

EFFECT: Under transferred intent, D is usually charged with two crimes:

1. Attempt (to commit the originally intended crime) AND
2. The actual resulting crime.
   e. g. D intends to shoot A but kills B; D can be charged with the attempted murder of A and the actual murder of B

NOTE: Merger does not apply because there are different victims.

Question 20

Merger

Answer 20

Under the merger doctrine, two or more offenses merge, prohibiting D from being prosecuted separately for each crime.

• Merger concerns the relationship between either a) an inchoate offense and its completed substantive offense, or b) an offense and its lesser included offense.

Question 21

Merger of Inchoate Offenses

Answer 21

Only applies to solicitation and attempt.
Merger prevents D from being convicted for both solicitation/attempt and the target offense.
e.g. D completes a burglary after attempting it; D cannot be convicted of both attempt and burglary.
Does not apply to conspiracy (i.e. D can be convicted of conspiracy to commit a given crime and the crime itself).

Question 22

Merger with Lesser Included Offenses

Answer 22

D cannot be convicted of a target crime and a lesser included offense.
Lesser included offense = consists of same but not all elements as the greater crime.
e.g D robs V, but during the robbery D’s accomplice kills V; D can be convicted of felony murder but not the lesser included robbery offense.

NOTE: This is also barred by double jeopardy.
NOTE: Crimes with different victims never merge.

Question 23

Accomplice Liability

Answer 23

Requirements: to be liable as an accomplice, one must:

1. Aid, counsel, or encourage principal before or during the crime…
2. With the intent
   a. to assist the principal AND
   b. that the principal commit the crime.

Scope of Liability: Accomplice is liable for the crimes he committed or counseled and any other probable or foreseeable crimes committed.

Question 24

Defenses and exceptions to accomplice liability.

Answer 24

Accomplice liability does not apply where: