MBE Criminal Law

Question 1

Mistake-of-LAW (not fact) is a defense only if

Answer 1

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)

Question 2

What is bribery under (1) the common law, and (2) the modern law

Answer 2

(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

Question 3

Name and define four mental states defined by the MPC.

Answer 3

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)

Question 4

What are the (3) common law categories of HOMICIDE?

Answer 4

1) Homicide justified by law;
2) CRIMINAL Homicide;
3) EXCUSABLE Homicide

Question 5

What is the year-and-a-day rule with regard to homicide causation?

Answer 5

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

Question 6

For ATTEMPT, is mere preparation enough to constitute a substantial step?

Answer 6

No

Question 7

When is MURDER reduced to VOLUNTARY m/s due to an imperfect defense?

Answer 7

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

Question 8

Whats the diff in the result for Agency theory vs. Proximate cause theory for liability for the death of a bystander?

Answer 8

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

Question 9

What are the (2) types of assaults and are they specific-intent or general-intent?

Answer 9

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)

Question 10

Define the M’Naghten Rule

Answer 10

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

Question 11

What are the elements of the Durham test for insanity?

Answer 11

The unlawful act was the product of the defendant’s mental disease
(i.e. the “But For” test)

Question 12

In what two circumstances can a killing give rise to a charge of involuntary manslaughter?

Answer 12

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

Question 13

What is the “Cooling Off” period

Answer 13

“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

Question 14

Accomplice definition and Accomplice liability

Answer 14

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

Question 15

Can someone be guilty of larceny for taking stolen property from a thief?

Answer 15

Yes.
Unless the taker has a superior possessory interest in the property

Question 16

What are the five elements of embezzlement?

Answer 16

1) FRAUDULENT;
2) CONVERSION;
3) of the PROPERTY;
4) of ANOTHER:
5) by a person who is in LAWFUL possession of the property

Question 17

When is voluntary intoxication a valid defense to a crime?

Answer 17

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

Question 18

Arson is a _____ crime and is defined as

Answer 18

MALICE crime (NOT SPECIFIC intent)

1) MALICIOUS;
2) BURNING;
3) of the DWELLING;
4) of ANOTHER

Question 19

What are the four defenses to felony murder?

Answer 19

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

Question 20

Statutory Rape defined as

Answer 20

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

Question 21

What are the four elements of common-law conspiracy?

Answer 21

1) an agreement;
2) between 2 or more ppl;
3) to accomplish UNLAWFUL purpose;
4) with INTENT to accomplish the purpose

(SPECIFIC intent)

Question 22

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?

Answer 22

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

Question 23

Does stolen property taken from a thief can constitute larceny?

Answer 23

Yes, unless the second “thief” has a superior possessory interest (i.e. is “stealing” property that belongs to them)

Question 24

The Brady violation occurs whether failure to disclose is

Answer 24

willful or inadvertent

*Unconstitutional only if there was prejudice.

Question 25

Brady is grounds for reversal or a new trial if the defendant can prove that:

Answer 25

(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

Question 26

(COMMON LAW) DANGEROUS-PROXIMITY TEST

Under the DANGEROUS-PROXIMITY TEST, an act occurs when

Answer 26

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

Question 27

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

Answer 27

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

Question 28

When a criminal statute is protecting a type of person (e.g., a statutory rape statute that protects minors), there is NO crime of

Answer 28

“CONSPIRACY” between the protected party and the targeted defendant

Question 29

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

Answer 29

he or she can demonstrate the RELIABILITY of the IN-COURT identification

Question 30

Under the modern view, kidnapping is:

Answer 30

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.

Question 31

If a defendant had been indicted, can the prosecution’s make a deliberate attempt to elicit incriminating statements from the defendant without counsel present?

Answer 31

No. Indictment means his Sixth Amendment right to counsel had attached, this is unconstitutional.

Question 32

The difference between an accessory before the fact and a principal in the second degree is

Answer 32

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.

Question 33

An accomplice who is PHYSICALLY OR CONSTRUCTIVELY PRESENT DURING COMMISSION OF CRIME is a

Question 34

An accomplice who is not physically/constructively present but who possesses the requisite intent

Answer 34

ACCESSORY BEFORE the fact

(rather than Principal in 2nd degree)

Question 35

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.

Answer 35

True, this is someone w/ an IQ of less than 70.