MBE BASELINE CRIM LAW AND CRIM PRO Flashcards
CRIM LAW: Other Crimes; Crimes Against Property
What is required for a D to be convicted of larceny under the common law?
Common law larceny requires the SPECIFIC intent to permanently deprive the person who owns the property of the property that is taken.
The intent to permanently deprive must be present at the time of the taking.
If the D intends only to borrow the property with the ability to return it at the time of borrowing, the take does not constitute a larceny because the D lacked the intent to permanently deprive the owner of the property.
Voluntary intoxication may prevent the formation of the required intent in specific intent crimes, but if the D never had the specific intent to permanently deprive the person of his/her property in the first place, –no need to prove intoxication.
CRIM LAW MBE: General Principles; Parties to a Crime; Accomplice Liability
What is the mental state necessary under the MPC and majority rule for accomplice liability?
Under the majority and MPC rule, an accomplice is a person who , with the purpose of promoting or facilitating the commission of the offense, aids or abets a principal PRIOR to or during the commission of the crime.
Mere knowledge that another person intends to commit a crime and mere presence on the scene are not enough to make a person an accomplice.
Note: An accomplice may be convicted of a crime even if the principal is not tried, not convicted, has been given immunity from prosecution, or is acquitted.
CRIM LAW MBE: Homicide; Types of Homicide
Define the crime of first degree murder.
First degree murder is the unlawful killing of another human being that is premeditated and deliberate.
CRIM LAW MBE: Homicide; Types of Homicide
Define common law murder.
Common law murder is 2nd degree murder. Common law murder is the unlawful killing of another human being with MALICE AFORETHOUGHT.
Malice aforethought includes the following mental states:
1. intent to kill
2. intent to do serious bodily injury
3. reckless indifference to an unjustifiably high risk
to human life (depraved heart); or
4. intent to commit certain felonies (felony
murder)
CRIM LAW MBE: Homicide; Types of Homicide
What is required for a D to be found guilty of voluntary manslaughter, when there has been an unlawful killing of another human being?
For a D to be found guilty of voluntary manslaughter, there must be adequate provocation arousing a sudden or intense passion in the mind of an ordinary person.
The D must suffer a loss of control, must not have sufficient time to cool off, and must in fact not have regained self-control before the killing of the victim.
Words alone are not adequate, no matter how provocative.
CRIM LAW MBE: Homicide; Types of Homicide
What is required for a D to be found guilty of only involuntary manslaughter when there has been an unlawful killing of another human being?
For a D to have the charge dropped down to involuntary manslaughter instead of murder, the D must show that the homicide was committed with criminal negligence or during an unlawful act.
If the act was intentional, there is no involuntary manslaughter
CRIM LAW MBE: Homicide; Types of Homicide
How is depraved heart murder defined under the common law?
Depraved heart murder is an UNINTENTIONAL killing committed with RECKLESS INDIFFERENCE to an unjustifiably high risk to human life.
Lower than depraved heart murder: Involuntary manslaughter is criminal negligence.
Voluntary manslaughter: acting in the heat of passion –also is a lesser finding than manslaughter
Premeditated murder: If no showing of intent to kill and no planning of the killing beforehand, then no premeditated murder.
CRIM LAW MBE: General principles; Parties to a Crime
When does a D qualify as an accomplice thereby becoming a party to the crime?
Under the majority and MPC rule, an accomplice is a person who, with the purpose of promoting or facilitating the commission of the offense, aids or abets a principal prior to or during the commission of a crime.
An accomplice to the crime can be convicted of the crime, even if he was not involved in the principal’s criminal actions.
An accomplice is responsible for the crime to the same extent as the principal.
An accomplice that is neither physically nor constructively present during the commission of the crime, but who possesses the requisite intent is an accessory before the fact.
Mere knowledge that another person intends to commit a crime is not enough to make a person an accomplice.
Also, the mere fact that the principal was convicted of murder is not sufficient to convict the alleged accomplice. His liability as an accomplice must be established.
CRIM LAW MBE: Inchoate crimes; Conspiracy; Specific Intent Crimes; Rules for Withdrawal
What is the rule for conspiracy?
Conspiracy is an agreement between two or more persons to accomplish an unlawful purpose with the intent to accomplish that purpose.
Under the majority rule, a conspiracy does not exist UNTIL AN OVERT ACT has occurred, and withdrawal is possible between the date of the agreement and the commission of the overt act.
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CRIM LAW MBE: Inchoate crimes; Conspiracy and Withdrawal Rules
What is the timeframe for an effective withdrawal from a conspiracy? What is required of the party to effectively withdraw from the conspiracy?
Withdrawal is possible between the date of the agreement and the overt act.
In order to withdraw, notice must be communicated to the other co-conspirators, or the police must be advised of the existence of a conspiracy in a timely manner.
Upon completion of the overt act, the conspiracy is formed and withdrawal is no longer possible.
CRIM LAW MBE: Inchoate crimes; Conspiracy and Withdrawal Rules
To legally withdraw from a conspiracy, what is required?
An accomplice is responsible for the crime to the same extent as the principal. To legally withdraw (and therefore avoid liability for the substantive crime), the accomplice must repudiate prior aid or do all that he can to negate the prior assistance before the crime is put into motion.
A mere change of hear after the crime is put into motion is ineffective, as notification to the legal authorities must be timely and directed toward preventing others from committing the crime.
A party can be found guilty as a co-conspirator and an accomplice.
CRIM LAW MBE: Other crimes; Crimes against Property
What is required for a D to be convicted of robbery?
Robbery is larceny from the person or his immediate presence by force or intimidation. Robbery is larceny which requires the D to take and carry away the property of the person.
An attempt is a substantial step towards the commission of a crime coupled with the intent to commit the crime.
Threats to the victim - might be assault but double jeopardy prevents him (the D) from being convicted of this underlying lesser-included offense of robbery.
Larceny, assault and battery all merge into robbery or attempted robbery as lesser-included offenses.
Attempted robbery would be the most serious offense that D could be convicted of–if the robbery did not have a taking and carrying away of the property of the victim.
CRIM PRO MBE: 6th Amendment Right to Counsel
What does the D need to prove if he seeks to suppress his statement as a violation of his Sixth Amendment rights?
The Sixth Amendment right to counsel applies at all critical stages of a prosecution, after formal judicial proceedings have begun. The right automatically attached when formal judicial proceedings have begun, whether that be a post-arrest initial appearance before a judicial officer, or by way of formal charge, preliminary hearing, indictment, information or arraignment.
Once that right attaches, the D is entitled to the presence of counsel during the interrogation. Police interference with that right most likely constitutes a violation of the Sixth Amendment right. There is no requirement imposed on the D to specifically invoke his right right to counsel, as is required under the Fifth Amendment.
The Sixth Amendment right to counsel can be waived at any time so long as the relinquishment of the right is voluntary, knowing and intelligent. Thus, the presence or absence of the D’s attorney is not determinative of whether any waive of his Sixth Amendment right to counsel would be valid.
In a Fifth Amendment context, once an individual in custody asserts the Fifth Amendment right to counsel, no subsequent waive is valid in a police-initiated interrogation unless counsel is present.
CRIM PRO MBE: Post trial considerations; Double Jeopardy
What does the Double Jeopardy provision protect against?
The Double Jeopardy provision protects against a second prosecution for the same offense after either an acquittal or a conviction.
Under the Blockburger rule, whether charges constitute the same offense depends on whether each charge requires proof of an element that the other does not.
CRIM PRO MBE: 4th Amendment: Application to Arrest, Search and Seizure
Explain the plain view doctrine.
In situations in which there is a reasonable expectation of privacy ( in a suspect’s house), a police officer may seize an item in plain view of the officer without a search warrant, as long as (i) the officer is on the premises for a lawful purpose; and (ii) the incriminating character of the item is immediately apparent.
