MBE - Criminal Law Flashcards
What are the essential elements of crimes?
(a) Act requirement
(b) Mental State
(c) Causation
(d) Concurrence principle
D, in CA fills out a false insurance claim and mails it to CT. D may be prosecuted for insurance fraud in ____?
CA - where act took place AND
CT - where result took place.
On MBE, what is the burden of proof for elements of crime?
Prosecution must prove each element beyond a reasonable doubt.
What are the requirements for a crime to be classified as a felony?
Punishable by death or imprisonment for more than 1 year.
What are the requirements for a crime to be classified as a misdemeanor?
Punishable by a fine and/or imprisonment for no more than 1 year.
True or False: Culpable acts can be either commissions (physical acts) or omissions (failure to act)?
True.
What are some involuntary movements NOT considered criminal acts?
(1) one that is not produce of actor’s volition
(2) Sleepwalking
(3) Reflex or convulsions
What are the requirements for an omission to be the basis of criminal liability?
(1) Legal duty to act (via statute, contract, status relationship, voluntary assumption of care, or D is creation of peril).
(2) Knowledge of facts giving rise to duty
(3) Ability to help
What are the four common law mental states?
(1) Specific Intent
(2) Malice
(3) General Intent
(4) Strict Liability
What is the definition of specific intent?
Crime which requires not just the desire to do that ACT< but also the desire to achieve a specific result.
What are the specific intent crimes?
Assault
1st Degree Premeditated Murder
Larceny Embezzlement False Pretenses Robbery Forgery Burglary
Solicitation
Conspiracy
Attempt
What are the only two defenses available for specific intent crimes?
(a) Voluntary intoxication
(b) Unreasonable mistake of fact
What is the definition of malice?
Mental State - when a D acts intentionally or with reckless disregard of an obvious or known risk.
What are the common law malice crimes?
Murder AND arson.
What is the definition of general intent?
Mental state - D need only be generally aware of the factors constituting the crime, he need not intend the specific result.
EX: battery, forcible rape, false imprisonment, kidnapping
What are two types of strict liability crimes?
Strict liability = crime requires simply doing the act, no mental state is needed.
PUBLIC WELFARE offenses –> regulatory offenses that implicate public health or safety.
STATUTORY RAPE –> having sex with someone under the age of consent.
What two types of causation are required to sufficiently prove elements of a crime?
(1) Actual (But For) Causation
(2) Proximate Causation
V is walking down street when D pulls gun on him and yells, “this is a stick up” and then takes V’s wallet. Standing in the same spot, moments later V is struck by lighting and killed.
Is D actual cause of V’s death?
YES.
But for the stick up, V would not have been standing in that spot.
A stabs V causing fatal wound that will kill V in 5 minutes. One minute later, D walks by and shoots V in head, killing him instantly.
Is D an actual cause of V’s death?
YES.
D’s conduct is an accelerating cause of V’s death, which qualifies as actual cause.
V is walking down street when D pulls gun on him and yells, “this is a stick up” and then takes V’s wallet. Standing in the same spot, moments later V is struck by lighting and killed.
Is D a proximate cause of V’s death?
No.
Being struck by lightning is an unforeseeable intervening event.
What is the rule regarding proximate causation?
D is proximate cause if the bad result is NATURAL AND PROBABLE consequence of D’s conduct.
However, D will not be considered a proximate cause if an unforeseeable intervening event causes the bad result.
Yet, D will be considered proximate cause even if V’s preexisting weakness contributed to bad result (Egg shell V).
V is walking down street when D pulls gun on him and yells, “this is a stick up” and then takes V’s wallet. Standing in the same spot, moments later V is struck by lighting and killed.
Is D criminally liable for V’s death?
No, criminal liability requires both actual and proximate cause.
D shoots V, but wound is not fatal. V goes to hospital, but as results of blood-clotting disorder, V dies on operating table.
Is D a proximate cause of V’s death?
Yes.
Eggshell victim - does not matter V had preexisting weakness.
What is common law battery?
The unlawful, application of force to another, resulting in either bodily injury OR an offensive touching.
Mental state = general intent
What is common law assault?
Versions: (1) attempted battery or (2) reasonable apprehension.
The intentional creation, other than by mere words, of a reasonable apprehension of imminent bodily harm.
MS = specific intent
What are the common law homicide crimes?
(1) Murder
(2) Voluntary Manslaughter
(3) Involuntary Manslaughter
What is the definition of common law murder?
Causing the death of another person with malice aforethought.
MS = malice aforethought satisfied by any of four following mental states:
(i) intent to kill
(ii) intent to inflict serious bodily harm
(iii) extreme recklessness
(iv) intentional commission of inherently dangerous felony
What are two special rules regarding intent to kill murder?
(1) Deadly weapon rule
(2) Transferred Intent
What is the deadly weapon rule?
Special rule regarding intent to kill murder.
The intentional use of a deadly weapon creates an inference of a deadly weapon.
Deadly weapon = any instrument used in a manner likely to produce death or serious bodily injury.
What is transferred intent
Special rule for intent to kill murder.
If D intends to harm one victim, but accidentally harms a different victim instead, the D’s intent will TRANSFER from the intended victim to the actual victim
D shoots at D, intending to kill him. A ducks and D’s bullet hits and kills V.
(a) Is D guilty of V’s murder?
(b) Is D guilty of any crime with respect to A?
(a) YES. The intent to kills A transfers to V.
b) YES. Attempts murder bc D intends to kill A (two victims, so no merger
What is the exception to the transferred intent doctrine?
Transferred intent does not apply to ATTEMPTS, only to crimes w/ completed harms.
D shoots at A, intending to kill him. A ducks, and D’s bullet hits V, wounding but not killing him.
(a) is D guilty of attempted murder of A?
(b) is D guilty of attempt murder of V?
(a) YES. D intended to kill A.
(b) NO. BC V didnt die, the harm was incomplete as to him, the intent to kill A does not transfer to V.
What is the definition of felony murder?
Any killing caused during the commission of or attempt to commit a felony.
True or false: D must be guilty of the underlying felony to be liable for felony murder?
True
True or False: a common limitation on felony murder is that the felony must be inherently dangerous?
True.
True of False? To alleged felony murder, the killing can take place anytime after the felony, even after the felon reaches a place of safety (hide out), as long as its reasonable and could include a co-felon.
FALSE FALSE FALSE.
(a) The killing must take place during the felony or during IMMEDIATE FLIGHT from the felony. Once the felon reaches a place of temporary safety, the felony ends.
(b) The death must be foreseeable.
(c) The victim must not be a co-felong
How does vicarious liability apply to felony murder?
Proximate cause theory: In most states, if one of the co-felons proximately causes the victim’s death, ALL OF THE OTHER CO-FELONS will be guilty of felony murder, even if the actual killing is committed by a 3P.
This is majority view.
Minority view = agency theory, where felony murder only applies if killing made by co-felon.
On the MBE, what are the statutory variations for murder?
Most states have created two degrees of murder by statute:
1st Degree murder –> any killing committed with PREMEDITATION and DELIBERATION.
2nd Degree murder –> all other intentional murders, including depraved heart murder and intent to inflict serious bodily harm murder (where exists).
What is the definition of common law voluntary manslaughter?
An intentional killing, committed in the HEAT OF PASSION, upon adequate provocation.
Four common law requirements:
(1) Provocation was objective adequate
(2) D was actually provoked
(3) D did not have time to cool-off
(4) D did not actually cool-off
What does it mean for “provocation to be objectively adequate” regarding voluntary manslaughter?
Provocation would arose SUDDEN AND INTENSE PASSION in the mind of a reasonable person.
Under common law, what are the two types of involuntary manslaughter?
Killing committed with Criminal negligence, or
Killing committed during the commission of a crime.
D shoots V in leg, hoping to prevent V from competing in figure skating championship. To D’s surprise, V dies.
What NY homicide has D committed?
1st degree manslaughter (intent to inflict serious physical injury).
As D is cleaning gun, his friend V sits next to him. Although D knows the gun is pointed at V and loaded, D continues to clean firearm. Gun fires accidentally, killing V.
What NY charges?
2nd degree manslaughter (Reckless killing).
D is cleaning gun and thinks its unloaded, however there is one gun in chamber. Gun fires accidentally, killing V.
What NY charges?
Criminally negligent homicide.
What is aggravated homicide?
Victim of homicide is a police officer in the line of duty.
What are the elements of common law false imprisonment?
Unlawful
confinement of a person
without his consent
MS = general intent
What are the elements of “unlawful” imprisonment in NY?
2nd Degree = Unlawfully, restraining someone, without their consent. MS = general intent
1st degree = above + risk of serious physical injury.
What are the elements of common law kidnapping?
False imprisonment + either moving the victim or concealing the victim in a secret place.
MS = general in
What are the elements of kidnapping in NY?
2nd degree –> abducting someone
1st degree –> above + ransom; restraint for more than 12 hours with intent to rape, injure or rob; OR the death of victim.
True or false: If the victim is killed accidentally during kidnapping, the resulting charge is 2nd degree (felony) murder.
True.
True or false: If the victim is killed intentionally during a kidnapping of the 1st degree, resulting charge is 1st degree (felony) murder.
True.
What are the elements of forcible rape?
Sexual intercourse, w/o victim’s consent, accomplished by (a) force, (b) threat of force, or (c) when victim is unconscious.
MS = General Intent
What are the elements of statutory rape?
Sexual intercourse with someone under the age of consent.
MS = strict liability. (Minority rule - reasonable mistake of age = defense)
What is the age of consent in NY?
17.
D must be at least 21 and victim must be 16 or younger.
What are the common law elements of larceny?
“Thieves Took Carmen’s Purse And Isaac’s Portfolio.”
Trespassory Taking and Carrying away the Personal Property of Another, with the Intent to Permanently retain the property.
True or False: If D intends to give property back (which was previously taken from another) then the taking is STILL considered larceny.
False.
Taking is not larcenous.
True or False: If D had lawful custody of property, he cannot be guilty of larceny for taking it (even if D doesn’t own it).
True.
Conversely, D can be guilty of larceny for taking his own property, if someone else had lawful custody of the property when D took it.
True or false: A taking under a claim of right is always larceny, even if the D erroneously believes the property is his.
False - this is the opposite of the erroneous takings rule.
A taking under a claim of right is NEVER larceny, even if DD erroneously believes the property is his.
D takes V’s phone from V’s bag without permission planning to return the phone once he has used it. After using however, D decides that V’s phone is so nice, he’s going to keep it - is D guilty of larceny?
Yes. D’s conduct constitutes a continuing trespass under these circumstances.
What is the common law definition of embezzlement?
Conversion of the personal property of another by a person already in lawful possession of that property, with the intent to defraud.
MS = specific intent to defraud
Key difference from larceny –> D must already have lawful possession of the property before the taking can be considered embezzlement.
What is the distinction between possession and mere custody (generally for property theft offenses)?
Possession involves more than mere custody. It requires the authority to exercise some discretion over the property
A trustee sipons off trust money and donates the money to her favorite charity, what charge?
Embezzlement.
A bank security guard wrongfully takes $1,000 from the bank’s vault, what charge?
Larceny
The guard lacks the discretionary authority over the money in the vault that is necessary for embezzlement.
Curator sells a $50,000 painting under his care without the owner’s permission. Curator intends to buy the painting back after doubling the proceeds by gambling. But he loses all the money, is this larceny or embezzlement or neither?
NEITHER.
The curator’s intent to return the painting negates the specific intent necessary for both larceny and embezzlement.
What are the elements of common law false pretenses?
Obtaining title to the personal property of another by intentional false statement, with the intent to defraud.
Key difference from larceny – D gets only custody of the property, in false pretences, the D gets title meaning ownership.
D says to Victor, “If you give me your cell phone, I will give you $100 cash tomorrow.” D had no intention of paying money. V agrees to deal. Is D guilty of false pretenses?
No. Promises of future conduct are insufficient for false pretenses.
How is false pretenses distinguished from larceny by trick?
If D obtains only custody (not title) as a result of the intentional false statement, then the crime is larceny by trick, not false pretenses.
Under false pretenses, D OBTAINS TITLE via false statement.
What are elements of common law robbery?
Larceny +2
Larceny PLUS from another’s person or presence by force or threat of immediate injury.
MS = specific intent to steal
True or False: Picking a man’s pocket equals sufficient force to qualify is a robbery.
False.
