MBE Criminal Law Flashcards
Mistake-of-LAW (not fact) is a defense only if
1) defendant relied on a COURT DECISION/ADMIN. ORDER
OR OFFICIAL interpretation;
2) a STATUTORY DEFINITION OF MALUM PROHIBITUM CRIME was NOT AVAILABLE before the defendant’s conduct;
OR
3) its HONEST and NEGATES the required INTENT or MENTAL STATE
*Malum Prohibitum = “Wrong because Prohibited” … an act that is not inherently wrong/evil but is by statute prohibited (e.g. gambling, possession of certain substances)
What is bribery under (1) the common law, and (2) the modern law
(1) Common law:
MISDEMEANOR involving the CORRUPT PAYMENT of something of VALUE for the PURPOSE of INFLUENCING the an OFFICIAL’S ACTIONS in the discharge of his PUBLIC/LEGAL duties;
(2) Modern law:
Can be a FELONY and may extend to persons who are NOT PUBLIC OFFICIALS
- Mutuality NOT required
Name and define four mental states defined by the MPC.
1) PURPOSEFULLY–def. has conscious objective to engage in the conduct or cause certain result to occur
2) KNOWINGLY/WILLFULLY–def is aware or know that certain result practically certain to occur based on his conduct
3) RECKLESSLY–def has conscious disregard of a substantial + unjustifiable risk
4) NEGLIGENTLY–def should be aware that a substantial + unjustifiable risk that a material element of a crime exists or will result from his conduct (i.e. a GROSS deviation from the standard of care)
What are the (3) common law categories of HOMICIDE?
1) Homicide justified by law;
2) CRIMINAL Homicide;
3) EXCUSABLE Homicide
What is the year-and-a-day rule with regard to homicide causation?
Battery or Assault victim survived a for > 1 yr and 1 day –> it was presumed that the cause of death was NOT the defendant
*no longer followed by MAJORITY of jxs
For ATTEMPT, is mere preparation enough to constitute a substantial step?
No
When is MURDER reduced to VOLUNTARY m/s due to an imperfect defense?
When defendant argues his DEADLY force was NECESSARY in defense of himself or others, but
1) defendant started the altercation OR
2) defendant UNreasonably and honestly believed in the necessity of using deadly force
Whats the diff in the result for Agency theory vs. Proximate cause theory for liability for the death of a bystander?
AGENCY (MAJORITY rule): the felon will NOT be liable for the death of a bystander caused by a felony VICTIM or POLICE OFFICER, because neither is felon’s agent
PROXIMATE CAUSE theory: liability for a bystander’s death MAY attach to the felon because the death is a DIRECT consequence of the felony
Note: On the MBE, apply the AGENCY theory unless instructed otherwise
What are the (2) types of assaults and are they specific-intent or general-intent?
1) “Attempted battery” assault: The defendant takes a substantial step toward the commission of a battery; (SPECIFIC)
2) “Fear of harm” assault: The defendant intentionally places another in apprehension of imminent bodily harm
(GENERAL)
Define the M’Naghten Rule
Defendant is not guilty if b/c of a defect of reason due to a mental disease, he did not know either:
1) NATURE or QUALITY of the act
OR
2) the WRONGFULNESS of the act
What are the elements of the Durham test for insanity?
The unlawful act was the product of the defendant’s mental disease
(i.e. the “But For” test)
In what two circumstances can a killing give rise to a charge of involuntary manslaughter?
1) killing committed in the commission of a malum in se (wrong in itself) MISDEMEANOR;
OR
2) A killing committed in the commission of a FELONY that is not STATUTORILY TREATED as 1st degree felony murder or 2nd degree murder
What is the “Cooling Off” period
“Cooling Off” period = time AFTER provocation but BEFORE the killing
If sufficient time between the two events for a REASONABLE PERSON to cool off, defendant will be charged with murder rather than voluntary m/s, even if he did not cool off
Accomplice definition and Accomplice liability
Accomplice has specific intent to aid or abet a principal PRIOR to or DURING commission of a crime
A/L –> Liable to same extent as the Principal
Can someone be guilty of larceny for taking stolen property from a thief?
Yes.
Unless the taker has a superior possessory interest in the property
What are the five elements of embezzlement?
1) FRAUDULENT;
2) CONVERSION;
3) of the PROPERTY;
4) of ANOTHER:
5) by a person who is in LAWFUL possession of the property
When is voluntary intoxication a valid defense to a crime?
to SPECIFIC intent crime–> if it prevents forming the required intent
Under MPC, it is a defense to crimes requiring mental state of PURPOSEFULLY or KNOWINGLY/WILLFULLY when the intoxication prevents forming the mental state
Note- NOT a defense to crimes involving MALICE, RECKLESSNESS, or NEGLIGENCE
Arson is a _____ crime and is defined as
MALICE crime (NOT SPECIFIC intent)
1) MALICIOUS;
2) BURNING;
3) of the DWELLING;
4) of ANOTHER
What are the four defenses to felony murder?
1) Valid defense to UNDERLYING felony;
2) Felony was NOT an INDEPENDENT felony (e.g. aggravated assault);
3) Death was NOT a foreseeable result/or consequence of the Felony;
4) Death occurred AFTER the commission of the Felony and the ensuing flight from the scene of the crime
Statutory Rape defined as
1) Sexual Intercourse;
2) With a person UNDER the AGE OF CONSENT
*Strict Liability offense w/ respect to the age element
–> No defense for consent of underage victim
–> No defense for Mistake-of-fact as to age
What are the four elements of common-law conspiracy?
1) an agreement;
2) between 2 or more ppl;
3) to accomplish UNLAWFUL purpose;
4) with INTENT to accomplish the purpose
(SPECIFIC intent)
If it is LEGALLY IMPOSSIBLE for a certain act to be a felony, but a suspect who otherwise satisfies all elements of a Burglary, honestly believes that what he intends to do is a felony, can he still be convicted of Burglary?
No, because the act would not constitute a felony, so he does not satisfy Burglary.
Mistake or ignorance of the law is generally not a valid defense.
However, it is a defense when an honestly held mistake of law negates the required intent (e.g., specific intent) or mental state (e.g., purposefully) for a material element of the crime
Does stolen property taken from a thief can constitute larceny?
Yes, unless the second “thief” has a superior possessory interest (i.e. is “stealing” property that belongs to them)
The Brady violation occurs whether failure to disclose is
willful or inadvertent
*Unconstitutional only if there was prejudice.
Brady is grounds for reversal or a new trial if the defendant can prove that:
(i) the evidence was favorable because it is impeaching or exculpatory;
and
(ii) prejudice resulted, meaning earlier disclosure of the evidence would have created a reasonable probability of a different outcome
(COMMON LAW) DANGEROUS-PROXIMITY TEST
Under the DANGEROUS-PROXIMITY TEST, an act occurs when
the defendant is SO CLOSE to completing the target crime that it is essentially UNSTOPPABLE
*E.g. man hiring undercover cop to kill his wife and showing up at the bar to pay the cop before the crime is not enough for ATTEMPTED murder charge
2 parties A and B agree to rob a bank and drive over to the bank and get out. Unbeknownst to A, B pulls out a gun in the Bank–that A didn’t know B had–and pulls it on the Teller.
What crime can A be convicted of?
Conspiracy to commit Armed Robbery
Conspiracy to Commit Robbery
Either
Neither
Conspiracy to Commit Robbery
This is talking about what they agreed to the CONSPIRED crime being
A only had the specific intent/agreement to commit robbery not armed robbery
Conspiracy = 1) agreement w/ SPECIFIC INTENT to commit a crime 2) an overt act
When a criminal statute is protecting a type of person (e.g., a statutory rape statute that protects minors), there is NO crime of
“CONSPIRACY” between the protected party and the targeted defendant
An out-of-court identification procedure is improper if it is unnecessarily suggestive, which this procedure (involving just one photograph and the detective’s leading statement) plainly was
However, the prosecution has the opportunity to succeed in getting the testimony admitted if
he or she can demonstrate the RELIABILITY of the IN-COURT identification
Under the modern view, kidnapping is:
1) The *INTENTIONAL and
2) UNLAWFUL confinement
3) of another;
4) against that person’s will (eg, by force, threat, or fraud)
5) coupled with either MOVING or HIDING that person
(only a short distance to satisfy movement requirement)
*GENERAL INTENT to commit act that is unlawful, not specific
Confinement occurs when the victim’s freedom of movement is significantly restricted
– It is not enough that the victim is prevented from taking a path or entering an area; — the victim must be prevented from leaving an area or compelled to go somewhere the victim does not want to go
– Additionally, the victim need only be moved a short distance to satisfy the movement requirement.
If a defendant had been indicted, can the prosecution’s make a deliberate attempt to elicit incriminating statements from the defendant without counsel present?
No. Indictment means his Sixth Amendment right to counsel had attached, this is unconstitutional.
The difference between an accessory before the fact and a principal in the second degree is
PRESENCE
An accomplice who is PHYSICALLY OR CONSTRUCTIVELY PRESENT DURING COMMISSION OF CRIME –> Principal in 2nd degree
(e.g. a getaway driver some distance from the scene is deemed constructively present and will be P in 2nd degree)
An accomplice who is not physically/constructively present but who possesses the requisite intent –> an accessory before the fact.
An accomplice who is PHYSICALLY OR CONSTRUCTIVELY PRESENT DURING COMMISSION OF CRIME is a
An accomplice who is not physically/constructively present but who possesses the requisite intent
ACCESSORY BEFORE the fact
(rather than Principal in 2nd degree)
True or False:
The cruel and unusual punishment clause of the 8th amendment prohibits imposing the death penalty on a person with a severe intellectual disability.
True, this is someone w/ an IQ of less than 70.
