MBE Criminal Law Flashcards
JURISDICTION AND ACTUS REUS
For ANY crime you are going to need Jurisdiction and Actus Reus
1) Jurisdiction
The United States - crimes that occur:
- ANYWHERE within the bounds of the U.S.
- on ships and planes
- overseas by U.S. nationals abroad (even if legal in foreign country)
States -
- Crimes occuring IN WHOLE or IN PART inside the State
- conspiracy to commit a crime if overt act occured inside the State
- act outside the state if attempt to commit crime inside state
2) Actus Reus – There must be some physical act (speech)
- thoughts are not crimes
Voluntary Acts
- Having motor control over the act.
- Involuntary act does not satisfy the actus reus requirement
Failure to Act
- Failure to comply with a stautory duty
- Special relationship
- Voluntarily assuming a duty of care that is cast aside
- Causing a danger and then failing to mitigate harm to victim
MENS REA > Common Law
SPECIFIC INTENT – commited the actus reus with the intent of causing the criminal result
fiat (crimes)
- First degree murder
- Incohate crimes (conspiracy, attempt, solicitation)
- Assault with attempt to commit a battery
- Theft offenses (larceny, embezzlement, forgery, burglary, robbery)
defenses
- any intoxication and
- (honest or reasonable) mistake of fact
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MALICE – The defendant realizes the risk and acts anyway. Reckless disregard of a high degree of harm.
MAlice crimes
- Murder
- Arson
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GENERAL INTENT – The intent to perform an ACT, act is unlawful.
- Generally, acts done knowingly, recklessly, or negligently under the Model Penal Code (MPC) are general-intent crimes.
- battery, kidnapping, rape, and false imprisonment.
Defenses
- Involuntary intoxication
- reasonable mistake of fact
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Strict Liability – no state of mind requirement; the defendant must merely have committed the act
- Statutory/Regulatory offenses
- Morals offenses (statutory rape; bigamy)
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STATUTES – read it carefully for mens rea language.
- “With intent to…” = Specific Intent crime
- “Knowingly or recklessly….” = General Intent crime
- No mens rea language = Consider Strict liability
The mens rea applicable to one material element is applicable to all material elements unless a contrary purpose plainly appears. (If a statute does not state the culpable mind applicable to all material elements of the crime)
MENS REA > Model Penal Code
Hierarchy of mental states:
1) Purpose—highest level of culpability
2) Knowledge
3) Recklessness
4) Negligence—lowest level of culpability
STATUTES
- If a statute does not state the culpable mind applicable to all material elements of the crime, then the mens rea applicable to one material element is applicable to all material elements unless a contrary purpose plainly appears.
- Under the MPC, If there is no requisite mens rea stated, it is established if the defendant acted at least RECKLESS.
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1) PURPOSELY – The defendant’s CONSCIOUS OBJECTIVE is to engage in the conduct or to cause a certain result
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2) KNOWINGLY or WILLFULY – Requires that the defendant be aware that his conduct is of the nature required to commit the crime and that the result is practically certain to occur based on his conduct
- Difference from purposely: Does not need to affirmatively want/intent for that result
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3) RECKLESSLY – Requires the defendant to act with a CONSCIOUS DISREGARD of a substantial and unjustifiable risk that constitutes a gross deviation from the standard of conduct of a law-abiding person
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4) NEGLIGENTLY – The defendant 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 same situation
Transferred Intent Doctrine
- mens rea for committing a crime against Victim A, but actually commits the crime against Victim B
Vicarious Liability
- A corporation can be liable for the actions of its high-level employees or the Board of Directors.
Accomplice Liability
Accessories After the Fact
Accomplice Liability –
Principal – Principal; 1st degree – Performs criminal act with requisite intent or uses innocent agent to commit criminal act
Accomplice (Modern View)– An accomplice intentionally aids or encourages the principal before or during a crime with the specific intent that the crime be completed. Liable for Target & foreseeable crimes
- NOTE: Even slight aid or assistance to the principal—even when that assistance is not ultimately necessary to complete the crime.
Common Law
- i) Principal 2nd Degree – Present at crime & aids/encourages principal with intent that principal commit crime
- ii) Accessory BEFORE the fact – Not present at crime but aids/encourages principal with intent that principal commit crime
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Defenses and exceptions — accomplice liability does not apply where:
Withdrawal — accomplice can avoid liability by withdrawing from a crime before the principal commits it; accomplice must:
- Repudiate prior aid or encouragement;
- Do all that is possible to counteract the prior aid; and
- Do so before the chain of events is in motion and unstoppable
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Accessories After the Fact – Liability: Independent Crime
1) Knowledge of completed crime and
2) doing something to escape arrest, trial, or conviction.
- Not guilty of underliying completed crime
- would be guilty of a separate crime as an accessory after the fact
DEFENSES > Negating Mens Rea
Mistake
Mistake of LAW – NEVER a defense
3 exceptions:
- reliance on high level government interpretations (NOT attorneys)
- lack of notice of law
- Mistake of law that negates the D’s SPECIFIC INTENT
Mistake of FACT – Mistake of fact may negate criminal intent but it must be an “honest mistake.” Determine whether the crime is a
- Specific Intent crime (FIAT) - ALWAYS a defense
- General Intent crime - REASONABLE mistakes ONLY
- Strict Liability crime - NEVER a defense
DEFENSES > Negating Mens Rea
Intoxication
Involuntary intoxication – ALWAYS A DEFENSE
- Doesn’t realize that she received an intoxicating substance (e.g., “date rape” drugs);
- Is coerced into ingesting a substance; or
- Has an unexpected or unanticipated reaction to prescription
medication
Voluntary Intoxication – Applies ONLY to SPECIFIC INTENT crimes (FIAT) and only if it prevented the defendant from forming the mens rea
- Not a valid defense if the defendant got drunk in order to commit the crime
MPC
- only a defense to crimes for which a material element requires purpose or knowledge and the intoxication prevents the formation of that mental state.
- NOT a defense for RECKLESS conduct (general intent crimes)
DEFENSES > Negating Mens Rea
Insanity
Four Different Tests:
M’Naghten Test – Defendant either did not know the nature of the act or did not know that the act was wrong because of a mental disease or defect
Irresistible Impulse – Defendant has a mental disease or defect that prevents the defendant from controlling himself
Durham Rule – Defendant would not have committed the crime but for his having a mental disease or defect (rarely used because so defendant-friendly)
Model Penal Code Due to a mental disease or defect, the defendant did not have substantial capacity to appreciate the wrongfulness of his actions or to conform his conduct to the law
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Majority—the Defendant has the burden of proving insanity either by a preponderance of the evidence OR clear and convincing evidence
- Minority allows D to bring in evidence of insanity and then the burden of persuasion shifts to the prosecution to prove sanity beyond a reasonable doubt.
INCOHATE Crimes >
Solicitation
(Merger)
Solicitaion
- Encouraging, enticing, motivating, offering, requesting, another person to commit a crime
- with the SPECIFIC INTENT for them to do so (no joke/bluff)
If other person AGREES
- crime becomes CONSPIRACY
If crime actually COMPLETED
- the solicitation charge will merge into the COMPLETED OFFENSE.
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Specific Intent Crime
- LOOK OUT: soliciation of a general intent crime, requires specific intent because one of the elements for attempt is criminal intent.
Specif Intent Crimes – FIAT crimes
- Incohate Crimes (Solicitation)
INCOHATE Crimes >
Conspiracy
1) COMMON LAW
- 1) Two or more people AGREE to commit a crime
- 2) with the SPECIFIC intent to do so (no joke/bluff)
(no overt act required)
Withdrawal – NOT A DEFENSE
- Withdrawal is generally not a defense to conspiracy
- but may be a defense to liability for co-conspirators’ subsequent crimes
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2) Model Penal Code Jurisdicitons Unilateral theory of Conspiracy / Modern Conspiracy Statutes (overt act)
- 1) One person agrees to commit a crime
- 2) with the specific intent to do so (no joke/bluff)
- 3) OVERT ACT in furtherance of the conspiracy
Withdrawal
- Can withdraw from conspiracy if you provide notice to all co-conspirators or to law enforcement PRIOR TO ANY OVERT ACT
- Defendant can limit his liability for substantive crimes by informing the other conspirators of withdrawal or timely advising legal authorities.
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SCOPE of CONSPIRACY – each co-conspirator can be convicted both of:
- conspiracy; AND
- ALL substantive crimes committed by any other conspirator acting in FURTHERANCE of the conspiracy
Relationships of co-conspirators
- Chain Conspiracy: Co-conspirators are engaged in an enterprise consisting of many steps; each participant is liable for the substantive crimes of his co-conspirators.
- Spoke-Hub Conspiracy: Involves many people dealing with a central hub; participants are not liable for the substantive crimes of their co-conspirators because each spoke is treated as a separate agreement rather than one larger general agreement
Specific Intent Crimes – FIAT crimes
- Incohate Crimes (Conspiracy)
INCOHATE Crimes >
Attempt
(+Merger)
Attempt
1) SPECIFIC INTENT to commit a particular criminal act
2) Commits an ACT in furtherance of that crime, but
- Dangerous Proximity Test (COMMON LAW) – Defendant performs act sufficiently close to completing crime—eg, act indispensable to crime’s success, act close in time or physical proximity to crime
- Substantial-Step Test (MPC) – Defendant’s conduct exceeds mere preparation & strongly corroborates defendant’s criminal intent—eg, surveilling place where crime is to occur
3) the crime was NOT COMPLETED
- Merger: If the underlying crime WAS completed, attempt merges into the underlying crime and the individual would be charged with the actual crime, not attempt
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Defenses to Attempt
Abandonment – When a person completely and voluntarily turns away from a crime before completing it. Abandonment is NOT voluntary if it is motivated by:
- a desire to avoid detection
- a decision to delay the commission until a more favorable timeor
- the selection of another similar objective or victim.
Legal Impossibility – NOT Factual
- Legal – intended act would not be criminal even if completed
- Factual (no defense) – unknown condition prevents completion of intended crime (thought she was selling cocaine but it wasn not cocaine. Still an attempt to sell cocaine)
Specific Intent Defenses
- Lack of mens rea for underlying offense
- ANY intoxication
- mistake of fact (honest or reasonable)
Attempt is a SPECIFIC-INTENT crime even when the completed offense is only a general intent crime.
- LOOK OUT: attempt or soliciation of a general intent crime, requires specific intent because one of the elements for attempt is criminal intent.
Specif Intent Crimes – FIAT crimes
- Incohate Crimes (Attempt)
Merger
Two categories of merger:
1) Lesser included offenses
- Lesser-included offense —an offense in which each of its elements appears in another completed offense, but the other offense has something additional. greater offense prevails.
- Larceny > Robbery
- Assault > Robbery
- Larceny + Assault or Battery > Robbery
2) Merger of Incohate and Completed crime
- Attempt — A defendant who actually commits a crime cannot also be convicted of attempt that crime.
- Attempted Robbery > Felony Murder
- Solicitation — Merges into the completed offense
HOMICIDE > General
Homicide: The killing of a living human being by another human being.
- Suicide is not homicide;
- Assisting someone to commit suicide can be a homicide.
- consent is not a defense to any type of homicide
Causation: there must be a causal relationship between the defendants actions and what happened to the victim
- actual causation – “but for” cause of the death and
- proximate causation – foreseeable test: death is the natural and probable result of the conduct. (future negligence is foreseeable; independent actions by a third person are generally not foreseeable)
HOMICIDE > Murder - 4 types
A) Specific Intent Crime (FIAT)
First-Degree Murder
- Intent to murder is Deliberate and Premeditated
- or a killing that results during the commission of an inherently dangerous felony (i.e., felony murder is frequently classified as first-degree murder)
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B) COMMON LAW MURDER – MALICE AFORETHOUGHT
- divides murder from manslaughter
- arises when no mitigating facts reduce the killing to a lesser crime and D commits the killing with one of the following mental states:
1) INTENT TO KILL
- The defendant acted with the desire that the victim end up dead.
- Intent need not be premeditated; it can be formed in the moment before the killing.
2) Intent to Inflict SERIOUS BODILY INJURY
- intended to hurt the victim badly, and the victim died.
- not considered malice aforethought
3) FELONY Murder
- Death resulting from commission of dangerous felony (BARRK)
- burglary, arson, rape, robbery, kidnapping
- Majority—agency theory: A defendant is only responsible for crime/killing done by themselves or their own “agents.” Including when one of two co-felons kills the other during the commission of a dangerous felony.
- NOT responsible for the resister/police officer’s killing.
4) Depraved Heart
- Reckless Disregard of Human Life.
- Defendant must realize that his conduct is really risky but need not have any intent to kill someone.
- Majority and MPC—defendant must actually realize that there is a danger
- Minority—a reasonable person would have recognized the danger
Reckless = malice, malicious
HOMICIDE > Manslaughter - 2 types
1) Voluntary – INTENTIONAL killing resulting from Adequate Provocation, heat of passion, no time to cool off OR “extreme emotional disturbance”
adequate provocation
- requires the provocation would cause sudden intense passion in an ordinary person
- Generally, a serious battery constitutes adequate provocation.
2) Involuntary – UNINTENTIONAL; NEGLIGENT killing
- misdemeanor offense killings
- criminal negligence
NEVER pick “intent” - thats MURDER
Malice aforethought - divides murder from manslaughter
Homicide: presence v. absence of people
- example: dropping a bowling ball from top of building at 1 pm with people around vs. 3 am with no one around.
1pm - Depraved heart murder - People are present (knew or should have known death would occur; reckless behavior)
3am - Involuntary manslaughter - No people are present (negligent behavior)
Specific Intent Crimes v. General Intent Crimes
Specific Intent Crimes: criminal intent is necessary
- We make it harder to prove that a defendent had a specific intent to commit the crime and therefore we allow more defenses to go to the mental state
Defenses
- any intoxication
- honest or reasonable mistake of fact
General Intent Crimes: no criminal intent necessary
- only need intent to commit the ACT
Defenses
- involuntary intoxication
- reasonable mistake of fact
Specific intent - intent to COMMIT CRIME
General intent - intent to ACT
Specific Intent Crimes: Larceny
1) TRESPASSORY taking away of personal property
2) with the INTENT to PERMANENTLY deprive
- Trespassory defendant must NOT be legally entrusted with the property (no initial consent)
- Taking back your own property is not larceny
- Larceny can be committed against a thief of property
- taking away – slightest movement
- larceny arises at the moment the D has possession and decides not to return the property.
- continuing trespass theory: when one first takes the property with the intent to return it, but later decides to permanently deprive the owner. At that moment, it is larceny.
Specific Intent Defenses
- intoxication (any type)
- mistake of fact (honest or reasonable)
Specif Intent Crimes – FIAT crimes
- Theft Crimes (larceny)
Specific Intent Crimes: Embezzlement
Initially in lawful possesion, then convert to own use
* HOLDING/PROTECTION of property initially
Specific Intent Defenses
- intoxication (any type)
- mistake of fact (honest or reasonable)
Specif Intent Crimes – FIAT crimes
- Theft Crimes (embezzlement)
Specific Intent Crimes:
1) Larceny By Trick
2) False Pretenses
1) Taking POSESSION of the property of another by misrepresention of fact
- by: causation connection
- Default answer on the test unless clear false pretenses
2) Obtaining TITLE of property by misrepresentation of fact
- (i) obtaining title (ownership rather than possession)
- (ii) by false misrepresentations of past or existing fact
- (iii) with the intent to defraud
Specific Intent Defenses
- intoxication (any type)
- mistake of fact (honest or reasonable)
Specif Intent Crimes – FIAT crimes
- Theft Crimes (larceny by trick)
Specific Intent Crimes: Robbery
Robbery = Larceny + Assault
1) Trespassory taking away of personal property
2) with FORCE / INTIMIDATION
Force/Intimidation
- taking must be from the victims person or in their presence, even if they are unconscious.
- Must actually intimidate person. If person knows they are not serious or if they are not otherwise intimidated, not robbery
Trespasssory
- Taking back your own property is permitted
Specific Intent Defenses
- intoxication (any type)
- mistake of fact (honest or reasonable)
Specif Intent Crimes – FIAT crimes
- Theft Crimes (robbery)
Specific Intent Crimes: Forgery
At common law (and in most jurisdictions), forgery occurs when a person:
- makes (ie, creates or alters) a false document of apparent LEGAL significance
- with the intent to defraud.
Documents of legal significance include checks, letters of recommendation, wills, diplomas, and other instruments that can effectuate one’s intent to defraud.
- But such documents must have value beyond their own existence. Therefore, forgery cannot stem from instruments of mere social significance like historical documents and artwork
Specific Intent Crimes: Extortion
1) Taking of personal property
2) Involves threats of future harm
- (including non-physical harm)
Specif Intent Crimes – FIAT crimes
- Theft Crimes (extortion)
Specific Intent Crimes: Burglary
Common Law Elements: Unless the question tells you otherwise, apply the common law definition of burglary on the MBE
1) Breaking, entering
- Breaking: any opening, enlarging, of entryway
- Entering: any part of the body breaking the plane of dwelling
2) the dwelling of another @ night
- Dwelling: anywhere someone lives
- Can also be a seperately secured room after lawfully entry of a dwelling
3) with INTENT to commit a Felony
- Intent to commit a Felony The MOMENT they enter.
- Doesn’t matter if you change mind after entering.
- retrieving your own property NOT a felony
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Under the majority and MPC approaches –burglary is more broadly defined
- unlawful entry
- of another’s building or structure
- with the specific intent to commit a crime therein
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Specific Intent Defenses
- intoxication (any type)
- mistake of fact (honest or reasonable)
Specif Intent Crimes – FIAT crimes
- Theft Crimes (burglary)
General Intent Crimes: Assault
2 types
1) ATTEMPTED Battery – (FIAT crimes)
- If a defendant has taken a substantial step toward completing a battery but fails
- It is a SPECIFIC-INTENT crime because it is an ATTEMPT;
specific-intent defenses are available
- any intoxication;
- any mistake of fact
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2) Placing another in imminent apprehension of harmful contact
- WORDS ALONE NOT ENOUGH. Need some evidence that you can do what you are threatening
General Intent Defenses
- involuntary intoxication
- reasonable mistake of fact
General Intent Crimes: Battery
Unlawful application of force
- Contact without permission
- Accident? doesn’t matter. No intent is needed for criminal battery.
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General Intent Defenses
- involuntary intoxication
- reasonable mistake of fact
General Intent Crimes: Rape
Common-law rape: The MBE will not likely test on common-law rape because the elements have been relaxed or eliminated in most modern statutes.
- Unlawful Sexual intercourse
- With a female
- Against her will by force or threat force
Modern rape statutes
- Gender-neutral
- Require lack of consent rather than force
General Intent Defenses
- involuntary intoxication
- reasonable mistake of fact
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Statutory Rape
- Regulatory morals offense that involves consentual sexual intercourse with a person under the age of consent
- Statutory rape is a strict liability offense
- So long as the defendant knows that he is having sex, he cannot claim ignorance or mistake about the victim’s age.
strict liability
- no state of mind requirement;
- the defendant must merely have committed the act
General Intent Crimes: Kidnapping
Kidnapping
- Unlawful
- confinement of another person
- Against that person’s will
- Either by moving or hiding the victim
Kidnapping incident to other offenses
- For a kidnapping to occur incident to the commission of another offense (e.g., robbery), the movement of the victim must be more than is necessary to complete the other offense.
General Intent Defenses
- involuntary intoxication
- reasonable mistake of fact
General Intent Crimes: Arson
Common Law
- Malicious (RECKLESS)
- burning
- of the dwelling of another
Malice
- Intent to act in a way that will cause burning, or is substantially likely to do so
Burning
- Mere scorching (i.e., discoloration due to heat) of the walls, smoke damage, and burning of the dwelling’s contents (furniture) are all insufficient
MBE modern trend
- Any structure. Does not need to be a dwelling
- no damage needed to the structure of the building
- smoke/explosions can satisfy “burning”
- burning your own home is arson.
Perjury
PERJURY
Willful act of falsely promising to tell the truth, either verbally or in writing, about material matters
- The person must know what they are saying is false,
- must intend to say something that is false,
- and the falsity must go to a material matter.
Subornation of Perjury
- A person persuades someone else to commit perjury, such as paying someone to testify falsely
Bribery
BRIBERY
Common law: – Corrupt payment of something of value for purposes of influencing an official in the discharge of his official duty
Modern law – Allows a bribery charge even if the person being bribed is not a public official
- Offering a bribe and receiving a bribe are both felonies.
- Recall that a person can be convicted of bribery even if the person could not “be bribed.”
Recieving Stolen Property
The crime of receiving stolen property requires that:
- the defendant receives stolen property that he knows was obtained through a criminal offense with the intent to permanently deprive the owner of his interest in the property.
- The property must be actually stolen at the time of receipt by the defendant.
Defenses: Legal Impossibility vs. Factual Impossibility
Legal Impossibility = ALWAYS a defense
- Elements are not met, not a crime.
- “No matter what I did, it did not amount to a crime”
Factual Impossibility = NEVER a defense
- “Facts were not what I thought, but still committed the crime”
DEFENSES
Intoxication
Specific-intent crimes (FIAT or MPC statute with “purposely”)
- Can use either voluntary or involuntary intoxication as a defense, if the defendant could not maintain the state of mind necessary for the offense.
- Unless D became intoxicated in order to commit the crime or to raise the defense
General-intent crimes
- Can use only involuntary intoxication as a defense
Mistake of Fact
Specific-intent crimes
- ALL mistakes of fact are potential defenses, even unreasonable mistakes.
General-intent crimes
- Only REASONABLE mistakes of fact may be used as a defense.
Insanity
- Involves a defendant who, because of a mental disease or defect, is unable to conform his conduct to the law.
Self-Defense
- Non-Deadly force– A victim is entitled to use non-deadly force any time he REASONABLY fears imminent unlawful harm.
- Deadly force – A victim is entitled to use deadly force only if he REASONABLY believes that deadly force will be used against him, or under the MPC, reasonably believes that the crime will result in serious bodily injury.
- Retreat Doctrine Jurisdictions Must retreat if safely possible. ONLY APPLIES to using Deadly Force. No duty to retreat if using non-deadly force. Assume NO duty to retreat unless specifically told
Imperfect Self Defense – UNREASONABLE belief, but HONEST
- if the defendant’s belief that the other person’s actions represent an immediate threat is UNREASONABLE but honest, the defendant is entitled to assert “imperfect self-defense,” which reduces his crime from murder to voluntary manslaughter.
Defense of Others
- An individual has the same right to defend other individuals against a criminal that she has to defend herself.
Defense of Property
- Right to use only non-deadly force to protect property
Duress
- Defendant claims he committed a crime only because he was threatened by a third party and reasonably believed that the only way to avoid death or injury to himself or others was to commit the crime.
Necessity
- Available in response to natural forces; i.e., it is the lesser of two evils
