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CA BAR MBE Missed Questions > CrimLaw > Flashcards

CrimLaw Flashcards

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1
Q

Can you commit larceny on a thief who has just stolen property?

A

Yes, unless you had a superior possessory interest.

Otherwise, stolen property taken from a thief can still count as larceny!

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2
Q

Can someone withdrawal from the conspiracy following an overt act?

A

No! Modern view is that the crime is complete the moment an overt act in furtherance has been completed by either co-conspirator.

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3
Q

Can an honest mistake of fact, whether reasonable or not, be a defense to a specific intent crime?

A

Yes, even if the mistake was unreasonable; just needs to be honest!

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4
Q

What are common specific intent crimes?

A

1) Burglary

2) Robbery

3) Assault

4) Murder

5) Attempt

6) Conspiracy

7)Theft crimes (embezzlement, larceny, false pretenses, forgery)

8) Solicitation

BRAM ACTS

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5
Q

What are common general intent crimes?

A

1) Battery

2) Rape

3) Kidnapping

4) False Imprisonment

5) Manslaughter

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6
Q

What is the imperfect self-defense defense?

A

Occurs when a defendant (who is not the aggressor) acted on an unreasonable, but honest belief.

This reduces the murder to voluntary manslaughter.

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7
Q

What does involuntary manslaughter require?

A

Defendant can be convicted when they act with criminal negligence - reckless action that puts another person at significant risk of injury or death.

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8
Q

How can attempt affect the mens rea requirement?

A

Even for general intent crime, attempt is a specific intent crime.

Therefore, an attempted general intent crime will look at whether the individual had the specific intent to act.

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9
Q

Does a failure to act constitute “actus reus” on which criminal liability can be predicated?

A

No, unless you share a special relationship with the individual you failed to help.

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10
Q

What sort of mens rea intent is required for common law murder?

A

CL Murder is a malice crime.

This means that mistake of fact or voluntary intoxication is NOT A DEFENSE

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11
Q

For the purposes of robbery, could force include giving a victim a drug to induce unconsciousness?

A

Yes!

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12
Q

For the purposes of felony murder, what constitutes an **inherently dangerous felony?

A

1) Burglary

2) Arson

3) Rape

4) Robbery

5) Kidnapping

BARRK!

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13
Q

How is one guilty of the crime of **possession of an illegal substance?

A

Requires that the defendant exercise control over the substance.

Generally, finding the substance on the person is sufficient to show control. But if you were not aware of the drug, then you likely were not exercising control.

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14
Q

MBE TIP: When you have facts that suggest someone is guilty of robbery and assault/battery, what should you remember?

A

That assault and battery are lesser crimes, and therefore merge into the robbery!

Even if it was only attempted robbery!

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15
Q

What are defenses to attempt crimes?

A

1) Impossibility

2) Abandonment

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16
Q

What is the impossibility defense re: attempt?

A

Legal: Intended act would not be criminal if completed

Factual: Unknown condition prevents completion of intended crime. NOT A DEFENSE

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17
Q

What is the abandonment defense re: attempt?

A

Majority/Common Law: Attempt complete once overt act is committed; no defense at all

Minority/MPC: Voluntary and Complete withdrawal from crime

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18
Q

Is the use of force to prevent a crime a valid defense for criminal battery?

A

Yes, depending on the level of force used!

Deadly Force: Only to prevent a serious felony with imminent death or bodily harm

Nondeadly Force: To prevent commission of lesser felony or breach-of-the-peace misdemeanor.

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19
Q

What is the MPC test for insanity?

A

Defendant is not guilty by reason of insanity if, at the time of conduct:

1) Was under influence of mental disease or defect

2) As a result, did not have substantial capacity to appreciate wrongfulness or conform to the law

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20
Q

Can a claim of right to property be used to justify the crime of robbery?

What about for larceny?

A

No, because even if it negates the mens rea for specific intent (honest but reasonable mistake), the use of force of intimidation is improper and means no claim of right.

Such a defense would work for larceny though!

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21
Q

What is the crime of false pretenses?

A

1) Obtaining title to property (including money)

2) Of another person

3) Through reliance of that person on misrepresentation of material fact

4) With intent to defraud

22
Q

What is the crime of larceny by trick?

A

1) Obtaining POSSESSION of property

2) Of another person

3) Through reliance of that person on misrepresentation of material fact

4) With intent to defraud

23
Q

In regards to common law arson, what sort of damage to the dwelling is required?

A

Any sort of physical damage, such as charring.

Smoke damage alone is insufficient.

24
Q

What is the majority approach as to voluntary intoxication as a defense?

A

Defense to specific intent crimes only

Defendant must prove that intoxication prevented formation of intent

25
Q

What is the MPC approach as to voluntary intoxication as a defense?

A

Defense to crimes where mental state is:

1) Purposefully: Acted with conscious objective to engage in conduct or cause result

2) Knowingly: Had awareness that conduct is of nature required by crime or practical certainty of it’s results

Defendant must prove that intoxication prevented formation of mental state

26
Q

What is the minority view of voluntary intoxication as a defense?

A

No defense at all

27
Q

Who is an accessory after the fact?

A

1) Knowingly aids and assists felon

2) With the purpose of avoiding apprehension or conviction

3) After commission of felony

28
Q

What is the M’Naghten test for insanity defenses?

A

As a result of mental disease, defendant did not know either

1) Nature and quality of act

2) Wrongfulness of the act

Does not apply to sociopathic or psychopathic criminals

29
Q

May the owner use deadly force in protecting property?

A

NO!

Even if reasonably believe that property is being stolen! Never deadly force!

30
Q

Is a cheek swab considered a search?

A

Yes!

Therefore, usually allowed if individuals were arrested with probable cause.

31
Q

Eight Amendment **Excessive Bail Clause*

A

Requires that bail cannot be excessive.

In other words, it cannot be set higher than a reasonable calculated amount to ensure defendant’s presence.

There is no specific dollar amount as to what is excessive.

32
Q

Can a defendant’s due process right be violated by a pre-accusation delay?

A

Yes!

33
Q

Can individuals with mental or intellectual disabilities be executed under the 8th Amendment?

A

No!

34
Q

What are the requirements of attempt?

A

1) Specific intent to commit a crime

2) Either

  • Common Law: **Dangerous Proximity*
  • MPC: Substantial Act in Furtherance
35
Q

If an accomplice must have the intent to further the principal’s crime, can such intent be inferred?

A

Yes!

For example, the intent can be inferred if the accomplice has a personal stake in the commission of the crime.

36
Q

For causation, what are the two types that could demonstrate actual cause?

A

1) But For

2) Substantial Factor

37
Q

MBE TIP: If something does not appear to be a “but for” cause, what should you consider?

A

Ask whether it could be a substantial factor!

38
Q

What are the four types of insanity defenses?

A

1) M’Naghten: Mental illness prevented defendant from

  • Understanding nature of quality of act
  • Knowing actions were wrong

2) Irresistible Impulse: Mental illness prevented defendant from

  • Controlling actions
  • Conforming to Law (i.e. was compelled to do criminal act)

3) Durham/New Hampshire: Defendants criminal actions were product of mental illness

4) MPC: Mental illness prevented defendant rom

  • Appreciating criminality of act
  • Conforming to Law (i.e. was compelled to do criminal act)
39
Q

How may a party withdrawal as an accomplice?

A

1) Repudiate prior aid

2) Do all that is possible to revoke prior assistance

3) Do so before the crime begins to occur and is unstoppable

A mere change of heart, a flight from the crime scene, an arrest by law enforcement, or an uncommunicated decision to withdraw is ineffective.

40
Q

Regarding robbery, if you threaten or use force, where must that force be directed too?

A

The threat or actual use of force has to be directed to the victim, close family member, or another person present!

I.E. threat to a dog does not count!

41
Q

What is the Burton Rule?

A

Determines when co-defendant’s out of court statements are permitted. Admissible if:

1) Co-defendant testifies

2) Statement redacts or removes reference to defendant

3) Statement used to rebut claim or confession and jury is instructed as such

However, in joint trials, allowing an out of court statement by a non-testifying co-defendant violates the Confrontation Clause.

42
Q

May a dwelling be abandoned for the purposes of robbery?

A

No! The home cannot be abanadoned.

43
Q

Under the MPC, if a statute does not state a mens rea requirement, what is the default?

A

Recklessly!

44
Q

For larceny, when must the party possess the intent to permanently deprive?

A

At the time of the original taking.

If you suddenly intended to keep something you took, it is not larceny.

45
Q

What is the Pinkerton Rule?

A

A conspirator may be convicted of both the offense of conspiracy and all substantive crimes that are made by other co-conspirators in furtherance of the conspiracy.

46
Q

When may a party avoid liability for the crime of solicitation?

A

1) Crime requires more than one participant (i.e. sale of drugs)

2) Criminal state imposes liability only on one participant

3) Solicitating party is the person the law was intended to protect.

47
Q

When may a criminal defendant waive their 6th amendment rights and then engage in self representation?

A

Trial court MUST CONFIRM with defendant that defendant:

1) Knows nature of charges, ranges of punishment, and disadvantages of self-representation

2) Is not forced to choose between incompetent counsel and self-representation.

48
Q

Under the modern view, what is first degree murder?

A

1) Intentional and Premeditated Killing

2) Killing is committed during a common law felony

OR!!!!!!!!!!!!!!!

3) Killing results from a heinous act

49
Q

Regarding depraved heart murder, what is the majority rule regarding knowledge of human safety?

A

In the majority and MPC rules, defendant must actually realized the danger to huma life or safety.

Must be as a result of an obvious or unjustifiabilty high risk that causes death or serious bodily injury.

50
Q

What are the requirements for false imprisonment?

A

1) Unlawful: Not consented too or allowed by law

2) Confinement: Person cannot go or is forced to remain where they dont want to be

3) Without consent

  • If consent ask if it is valid or was it thru duress?
51
Q

What does the 6th Amendment Right to Jury require, both federally and in states?

A

1) At least six members

2) Reach a unanimous vote

3) Any criminal proceeding where possible sentence is more than 6 months

If not, conviction is unconstitutional

CA BAR MBE Missed Questions (8 decks)

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