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bar exam > MBE Criminal Law > Flashcards

MBE Criminal Law Flashcards

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MBE flashcards
1
Q

Actus Reus

A

A voluntary, affirmative act or omission causing a criminally proscribed result

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2
Q

Voluntary Act

A

Physical and Voluntary

Unconscious/Asleep/Hypnosis don’t count

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3
Q

Duties to Act

A
  1. By statute
  2. Contract
  3. Special Relationship
  4. Detrimental Undertaking
  5. Causation
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4
Q

Types of Mens Rea

A

Specific Intent
Malice
General Intent

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5
Q

MPC Mens Rea

A

Purposely
Knowingly/Willfully
Recklessly
Negligently

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6
Q

Specific Intent Crimes

A

FIAT

First-Degree Murder
Inchoate Offenses
Assault with Intent to Commit Battery
Theft Offenses

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7
Q

Malice Crimes (CL)

A

Murder
Arson

Involves reckless disregard of a high risk of harm

Requires only a criminal act without excuse, justification, or mitigation

Intent can be inferred from accomplishing the act

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8
Q

General Intent Crimes

A

All the others not Specific or Malice

Only the intent to perform the unlawful act is required

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9
Q

When Transferred Intent Applies

A

Yes: usually homicide, battery, arson

No: attempted crimes

Applies to “bad aim” cases but not “mistaken identity”

MPC doesn’t recognize specifically, but liability recognized when purposely, knowingly, recklessly, or negligently causing a result is an element of an offense

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10
Q

Strict Liability Crimes

A

Statutory Rape; Bigamy; Regulation of Food/Drugs

Generally disfavored; must be clear legislative intent

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11
Q

Vicarious Liability Crimes

A

Generally limited to regulatory crimes with punishment limited to fines

Think corporations being liable for actions of high-ranking corporate agents representing corporate policy

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12
Q

Causation Requirements for Crimes

A

If required, the mens rea must cause the actus reus, which must cause the particular result that is unlawful

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13
Q

Mistake of Fact

A

May negate criminal intent (if “honest”)

Defense to specific intent crimes even if unreasonable

Defense to general intent or malice crimes but must be reasonable

Never a defense for strict liability crimes

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14
Q

Mistake of Law

A

Generally not an excuse
3 exceptions:
1. Reliance on high-level government interpretations
2. Lack of notice
3. Mistake of law going to an element of a specific intent crime (FIAT)

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15
Q

Accomplice Liability

A

Majority/MPC: Must act with the intent of assisting the principal to commit the crime
Minority: intentionally or knowingly aided/caused another to commit an offense

Even approving bystanders aren’t accomplices

Liable for both the planned crime and any other foreseeable crimes occurring in the course of the criminal act

Can be criminally liable even if they couldn’t be the principal or the principal can’t be convicted

Exception: someone protected by statute can’t be an accomplice in violating it (e.g., underage person not an accomplice to statutory rape)

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16
Q

Aiders/Abettors Liability

A

Individuals who aid or abet a defendant to commit a crime may be guilty of conspiracy (in addition to accomplice liability) if there was an agreement to commit the crime and an overt act was taken in furtherance of it

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17
Q

Criminal Facilitation

A

A person who is not guilty of the substantive crime (because of lack of intent) can be guilty of the lesser offense of criminal facilitation for assisting

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18
Q

Accessory Before the Fact

A

Accomplice neither physically nor constructively present during the crime but possesses the requisite intent

To Withdraw, Must:

  1. Repudiate prior aid;
  2. Do all that is possible to countermand prior assistance; and
  3. Do it before the chain of events is in motion/unstoppable
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19
Q

Accessory After the Fact

A

Aids/assists a felon to avoid apprehension or conviction after commission of the felony

Must know a felony was committed

Only liable for a separate crime (obstruction, etc.)

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20
Q

Insanity Defense Tests

A

4 Tests

  1. M’Naghten - D didn’t know either the nature/quality of the act OR the wrongfulness of it due to mental disease
  2. Irresistible Impulse - D lacked capacity for self control/free choice due to mental disease
  3. Durham - unlawful act was the product of D’s mental disease
  4. MPC - combines M’Naghten and Irresistible Impulse - at the time, D lacked substantial capacity to appreciate wrongfulness of the act or conform conduct to law because of mental disease
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21
Q

Intoxication Defense

A

Voluntary: intentional taking of substance known to intoxicate (need not intend actual intoxication)
Defense to Specific Intent (only if preventing intent formation)
Defense to MPC crimes “purposely” or “knowingly” that prevents formation of mental state

Involuntary: taken without knowledge or under duress
Negates elements of general intent, specific intent, and malice crimes

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22
Q

Murder (CL)

A

Unlawful killing of another living human being with malice aforethought

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23
Q

Malice

A
  1. Intent to kill
  2. Intent to do serious bodily injury
  3. Reckless indifference to human life (“depraved heart”)
  4. Intent to commit a felony (felony murder)
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24
Q

Felony Murder Rule

A

Unintended and foreseeable killing proximately caused by and during the commission or attempted commission of an inherently dangerous felony

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25
Q

Inherently Dangerous Felony

A

BARRK

Battery
Arson
Robbery
Rape
Kidnapping
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26
Q

When is a Defendant liable for another’s death during a felony?

A

Bystander by Police/Victim
Majority: Agency Theory; No
Minority: Proximate Cause Theory; Yes

Co-Felon by Police/Victim: No

Death occurring after flight from the scene of the crime isn’t included(?)

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27
Q

Statutory Murder

A

First Degree: deliberate and premeditated OR had time for reflection after forming intent
Specific Intent Crime
Includes Felony Murder

Second-Degree: necessary malicious intent (CL murder) or default if not first-degree
Malice Crime

28
Q

Voluntary Manslaughter

A

Homicide committed with malice aforethought but also mitigating circumstances

“Heat of Passion” - not a defense but reduces murder to voluntary manslaughter; might not work if there’s enough time to cool down

Transferred provocation applies (D misidentified provoker or killed the wrong person)

Can be reduced from murder if D started altercation or unreasonably believed in needing deadly force

29
Q

Involuntary Manslaughter

A

Unintentional homicide committed with criminal negligence or during an unlawful act

30
Q

Criminal Negligence

A

Grossly negligent action (or inaction with a duty to act) that puts another at significant risk of serious injury or death

31
Q

Unlawful Act for Involuntary Manslaughter

A

Malum in Se misdemeanor (assault, battery) OR

Felony that isn’t a first-degree felony murder or second-degree murder

32
Q

Larceny

A
  1. Trespassory
  2. Taking and
  3. Carrying away
  4. Of the personal property
  5. Of another
  6. With the specific intent to permanently deprive the owner of the property
33
Q

Larceny by Trick

A
  1. Larceny
  2. Accomplished by fraud or deceit
  3. That results in the conversion of the property of another
34
Q

Forgery

A
  1. Making;
  2. Of a false writing;
  3. With apparent legal significance; and
  4. With the intent to defraud
35
Q

Embezzlement

A
  1. Fraudulent
  2. Conversion
  3. Of the property
  4. Of another
  5. By a person who is in lawful possession of the property
36
Q

False Pretenses

A
  1. Obtaining title to the property;
  2. Of another person;
  3. Through the reliance of that person;
  4. On a known false representation of a material past or present fact; and
  5. The representation is made with the intent to defraud
37
Q

Robbery

A
  1. Larceny
  2. From the person or presence of the victim
  3. By force or intimidation
38
Q

Extortion

A

The taking of money or property from another by threat

Making the threat (not obtaining the property) is the essence of the crime (majority view)

The threat need not be of immediate harm or physical

Property need not be on the victim or in his presence

39
Q

Burglary (CL)

A
  1. Breaking and;
  2. Entering;
  3. Of the dwelling;
  4. Of another;
  5. At nighttime;
  6. With the specific intent to commit a felony therein
40
Q

Arson

A
  1. Malicious
  2. Burning
  3. Of the dwelling
  4. Of another

(MBE not always consistent with this definition)

41
Q

Possession Offenses

A

Defendant exercises dominion & control over a prohibited object/substance

No requirement that Defendant knows it’s illegal

Duration: must be long enough to provide Defendant with an opportunity to cease dominion/control

42
Q

Receipt of Stolen Property

A
  1. Receiving control of stolen property;
  2. Knowledge that it’s stolen; and
  3. Intent to permanently deprive the owner of the property
43
Q

Battery

A
  1. Unlawful
  2. Application of force
  3. To another person
  4. Causing bodily harm or an offensive touching
44
Q

Assault (2 Types)

A

Attempt to Commit a Battery (specific intent)

Intentionally placing another in apprehension of imminent bodily harm (general intent)

45
Q

Mayhem

A

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

46
Q

Kidnapping

A
  1. Unlawful
  2. Confinement of a person
  3. Coupled with either: (a) the movement or (b) the hiding of that person
47
Q

False Imprisonment

A
  1. Unlawful
  2. Confinement of a person
  3. Without consent
48
Q

Rape

A
  1. Unlawful
  2. Sexual Intercourse
  3. With a female
  4. Against her will by force or threat of immediate force

(most modern statutes are gender neutral and replace “force” with lack of consent)

49
Q

Inchoate Crimes

A

Solicitation
Conspiracy
Attempt

50
Q

Merger

A

A defendant may be tried, but not punished, for:

  1. Solicitation + completed crime
  2. Attempt + completed crime
  3. more than one inchoate offense (MPC)

Conspiracy and attempt do not merge under CL

51
Q

Solicitation

A
  1. Enticing, encouraging, requesting, or commanding another person
  2. To commit a crime
  3. With the intent that the other person do so

Renunciation (MPC): voluntary renunciation may be a defense if Defendant thwarts the commission

52
Q

Conspiracy (CL)

A
  1. An agreement
  2. Between two or more persons (bilateral)
  3. To accomplish an unlawful purpose
  4. With the intent to accomplish that purpose

No overt act required

53
Q

Conspiracy (MPC/Federal/Majority)

A

Allows for unilateral conspiracies

Requires a lawful or unlawful overt act in furtherance of the conspiracy

MPC doesn’t require overt acts if the conspiratorial crime is a first- or second-degree felony

54
Q

Pinkerton Rule

A

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

55
Q

Withdrawal from a Conspiracy

A

Federal/Majority: withdrawal is possible after agreement but before the overt act; Defendant must give notice to co-conspirators or to police

MPC/Minority: possible only if Defendant acts voluntarily to thwart the success of the conspiracy

56
Q

Attempt

A
  1. A substantial step toward the commission of a crime; coupled with
  2. The specific intent to commit the crime

Factual impossibility: not a defense (legal impossibility is)

Abandonment: not a defense after substantial step taken (CL)

Merges with completed crime

57
Q

Specific Defenses

A 
Self-Defense
Defense of Others
Defense of Property
Arrest
Duress
Necessity
Consent
Entrapment
58
Q

Self-Defense/Defense of Others

A

Non-aggressor may use reasonable force against another to prevent immediate unlawful harm to himself or others

Imperfect self defense can reduce murder to voluntary manslaughter

Aggressor may if own non-deadly force was met with deadly force or if they withdrew and told the victim

59
Q

Duty to Retreat

A

Majority: no duty to retreat before using nondeadly force, deadly force in home, or anywhere you’re legally allowed to be

Minority: retreat required if safely accomplishable

60
Q

Defense of Property

A

Nondeadly force is ok; Deadly force is not ok (unless occupant in a dwelling reasonably believes intruder intends to commit a felony inside)

Can use reasonable steps to protect property but must believe the real property is in immediate danger of unlawful trespass or personal property is in immediate danger of being carried away

61
Q

Arrest

A

Police can use reasonable force to make a lawful arrest

Police can use deadly force only if suspect is a threat to officer/third parties

Defendants can use non-deadly force (never deadly) in resisting unlawful arrest

62
Q

Duress

A
  1. Third party’s unlawful threat causing Defendant to reasonably believe the only way to avoid death/serious bodily injury to himself/another is to violate the law; and
  2. The belief causes Defendant to do so

Not a defense to intentional murder

63
Q

Necessity

A

Forces of nature (not human) caused Defendant to commit what would otherwise be a crime

Not a defense if Defendant set the natural forces in motion (e.g., set a fire) or if there’s a reasonably apparent noncriminal alternative

64
Q

Consent

A

Not a defense unless it:

  1. Negates a required element of the crime; or
  2. Precludes the harm sought to be avoided by the crime

Must be

  1. Voluntarily and freely given;
  2. Involve no fraud; and
  3. Be given by one who is competent to consent
65
Q

Entrapment

A
  1. Crime is induced by a government official/agent; and

2. Defendant was not predisposed to commit the crime

bar exam (9 decks)

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