MBE Final Review Flashcards
Specific intent (SI) crimes definition
subjective desire, specific objective, or knowledge to accomplish prohibited result
Specific intent (SI) crimes list
FIAT
First-degree murder
Inchoate offenses
Assault with intent to commit battery
Theft offenses
Malice crimes
list
CL murder & arson*
*subject to transferred intennt
Malice crimes
elements
Reckless disregard of a high risk of harm
Requiring only criminal act without excuse, justification, or mitigation
General intent crimes
list
battery*, rape, kidnapping, and false imprisonment
General intent crimes
elements
Intent—knowingly, recklessly, or negligently
To perform an act that is unlawful
o Transferred intent (unintended victim rule)—usually confined to homicide, battery, and arson
mistake defenses
list
mistake of fact
mistake of law
mistake of fact
o Negates criminal intent (if honest)
o Defense to specific intent crime even if unreasonable mistake
o Defense to general intent/malice crime only if reasonable
Mistake of law
o Only valid if relied on court order/administrative order or official interpretation
o Statutory definition of malum prohibitum crime not available before conduct
o Honestly held mistake of law negates required intent
Parties to Crime
list
- Accomplice liability
2. Accessory after the fact
Accomplice liability
elements
liability
how to withdraw
Aids/abets principal prior to/during crime with intent for crime to be committed
Liable for crime & all natural and probable consequences
To withdraw accomplice must:
o Repudiate prior aid
o Countermand prior assistance or timely notify legal authorities
o Do so before chain of events set in motion and unstoppable
Accessory after the fact
elements
liability
Aids felon to avoid apprehension after felony committed
Must know felony was committed
Only liable for separate crime (“obstruction of justice” or “harboring a fugitive”)
Insanity defense theories
list
M’Naghten
Irresistible impulse
Durham
MPC
M’Naghten insanity defense
elements
D didn’t know nature/quality of act or wrongfulness of act because of defect due to mental disease (“right from wrong” test)
Irresistible impulse insanity defense
elements
Lacked capacity for self-control and free choice due to mental disease or defect—inability to conform conduct to the law
Durham insanity defense
elements
Unlawful act was product of D’s mental disease/defect (“but for” test)
MPC insanity defense
elements
o Combines M’Naghten and irresistible impulse
o At time of conduct, D lacked substantial capacity to appreciate wrongfulness of act or conform conduct to law as a result of mental disease or defect
Intoxication defense
list
Voluntary
Involuntary
Voluntary Intoxication defense
elements
o Intentional taking of known intoxicating substance
o Need not intend actual intoxication
o Defense to SI crimes if it prevents required intent
Involuntary Intoxication defense
elements
o Taken without knowledge or under duress
o Negates element of general intent, specific intent, or malice crime
Types of Homicide
Murder
Statutory Murder
Voluntary manslaughter Involuntary manslaughter
*subject to transferred intent
Types of Murder (which is a type of homicide)
Murder
Statutory Murder
*subject to transferred intent
Types of Manslaughter (which is a type of homicide)
Voluntary manslaughter
Involuntary manslaughter
*subject to transferred intent
Voluntary manslaughter
defintion
“Heat of passion”
Murder committed in response to situation that would inflame a reasonable person (serious battery, threat of deadly force, but usually not words)
NOT a defense but can reduce murder to voluntary manslaughter
If there was sufficient time between provocation and killing for a reasonable person to cool down, murder not mitigated to manslaughter
*subject to transferred intent
Involuntary manslaughter
defintion
unintentional homicide committed with criminal negligence or during an unlawful act
1. Criminal negligence
Reckless action (or inaction when there is a duty to act) putting another at significant risk of injury/death
2. Unlawful act
Malum in se misdemeanor
Killing during felony that isn’t first-degree felony murder or second-degree murder
*subject to transferred intent
Murder
basic definition
unlawful killing of a human being committed with malice aforethought
*subject to transferred intent
Murder
4 ways to “get there”
- Intent to kill
- Intent to do serious bodily injury
- Depraved heart murder
- Felony murder rule (FMR)
*subject to transferred intent
Intent to kill (way to get to murder, which is a homicide)
elements
Conduct that is the legal cause of death + intent to kill
*subject to transferred intent
Intent to do serious bodily injury (way to get to murder, which is a homicide)
elements
Serious bodily injury + unintentional killing
*subject to transferred intent
Depraved heart murder (way to get to murder, which is a homicide)
elements
Reckless action manifesting extreme indifference to human life
*subject to transferred intent
Felony murder rule (FMR) (way to get to murder, which is a homicide)
elements
Unintended and foreseeable killing proximately caused by/during commission or attempted commission of inherently dangerous felony (BARRK—burglary, arson, robbery, rape, & kidnapping)
D must be guilty of underlying felony
Bystander death falls under FMR under proximate cause theory if direct consequence of felony
D not liable for co-felon death by victim/police
Does not encompass death occurring after flight from scene of crime
*subject to transferred intent
First-degree (Statutory Murder, which is a homicide)
definition/elements
Specific intent crime—deliberate/premeditated (after forming intent to kill D had time for reflection) or FMR
*subject to transferred intent
Second-degree (Statutory Murder, which is a homicide)
definition/elements
necessary malicious intent (common law murder) or default category if not first degree
*subject to transferred intent
Inherently dangerous felony
BARRK—burglary, arson, robbery, rape, & kidnapping
Crimes against property
list
- Larceny
- Forgery
- Embezzlement
- False pretenses
- Robbery
- Extortion
- Burglary (Common Law)
- Arson
- Receipt of stolen goods
Larceny (crime against property)
elements
Trespassory—without owner’s consent Taking—removal to another’s control Carrying away—slight movement enough Of personal property—not real property Of another With specific intent to permanently deprive owner of property—at time of taking
Forgery (crime against property)
elements
Fraudulent Making of False writing With apparent legal significance Intent to defraud
Embezzlement (crime against property)
elements
Fraudulent Conversion Of property Of another By person in lawful possession of property
False pretenses (crime against property) elements
Obtaining title to property
Of another
Thru reliance of that person
On known false representation of material past/present fact
Representation made with intent to defraud
Robbery (crime against property)
elements
Larceny
By force or intimidation
When taking of property is from person/presence of victim
Extortion (crime against property)
elements
Taking of money/property from another by threat
Threat need not be physical or of immediate harm
Property need not be on person or in presence of victim
Threat is the essence of the crime (majority view)
Burglary (Common Law) (crime against property)
elements
Breaking and Entering of Dwelling Of another At nighttime With the specific intent to commit a felony therein
Arson (crime against property)
elements
Malicious burning
Of the dwelling
Of another
Definition not strictly applied on MBE
Receipt of stolen goods (crime against property)
elements
Receiving control
Of stolen property
With knowledge that it is stolen, and
Intent to permanently deprive
Crimes against the person
list
- Battery
- Assault
- Kidnapping
- False imprisonment
- Rape
Battery (crime against the person)
elements
Unlawful Application of force To another person That causes bodily harm to that person or Constitutes an offensive touching
Assault (crime against the person)
elements
An attempt to commit a battery or
Intentionally placing another in apprehension of imminent bodily harm
Kidnapping (crime against the person)
elements
Unlawful Confinement of a person Against that person’s will Coupled with either o Movement, or o Hiding of that person
False imprisonment (crime against the person) elements
Unlawful
Confinement of a person
Without consent
Rape (crime against the person)
elements
Unlawful
Sexual intercourse
With a female
Against her will by force or threat of immediate force
o No force requirement under most modern statutes
o Required intent negated if reasonable belief that lack of resistance was consent
Inchoate crimes (specific-intent crimes) list
- Solicitation - merger
- Conspiracy
- Attempt - merger
Solicitation (Inchoate, specific-intent crime)
elements
Enticing, encouraging, or advising another person
To commit a crime
With the intent the other person commits the crime
o Voluntary renunciation may be a defense if D thwarts commission of the solicited crime
Conspiracy (Inchoate, specific-intent crime)
elements
agreement to accomplish an unlawful purpose plus intent to accomplish that purpose
Agreement—oral is enough and can be inferred from Ds’ actions
Unilateral conspiracy—not valid under common law/majority rule, but MPC allows it (minority rule)
Specific intent—intent to agree (can be inferred from conduct) and commit the criminal objective (knowledge not enough)
Overt act
o Common law—no overt act required
o Majority/federal law/MPC—require legal/illegal overt act in furtherance of the conspiracy
Scope—conspirator liable for conspiracy and co-conspirators’ substantive crimes in furtherance of conspiracy (Pinkerton Rule)
Impossibility
o Factual impossibility not a defense
o Legal impossibility OK
Withdrawal
o Federal/majority rule—withdrawal possible between date of agreement and commission of overt act but must give notice to co-conspirators or give timely notice to police
o MPC /minority rule—subsequent withdrawal OK only if timely notification allows police to thwart success of conspiracy
Attempt (Inchoate, specific-intent crime)
elements
Substantial step toward commission of crime
o Beyond mere preparation
o Coupled with specific intent to commit the crime
Factual impossibility not a defense (legal impossibility OK)
Abandonment not a defense after substantial steps are taken (CL)
If crime completed, attempt is merged into completed crime
Defenses
list
A. Generally
1. Mistake of fact
B. Specific defenses
- Self-defense
- Defense of others
- Defense of property
- Arrest
- Duress
- Necessity
- Consent
- Entrapment
Mistake of fact (general defense)
elements
Viable defense if mistake reasonable
o Consider D’s physical characteristics, experiences and knowledge
Unreasonable mistake only applied to specific-intent crime
Self-defense (specific defense)
elements
Reasonable force—OK to prevent immediate unlawful harm
Deadly force—OK in self-defense only if reasonably necessary to:
o Prevent death/serious injury
o Prevent serious felony
o Apprehend fleeing felon who may endanger safety of community
Non-deadly force—OK to repel non-deadly force
Retreat
o No self-defense duty to retreat before using non-deadly force, deadly force in home, or (majority view) deadly force elsewhere
o Retreat required if it can be safely accomplished (minority view)
Imperfect self-defense (killing in self-defense not justified)
o Reduces murder to voluntary manslaughter
Aggressor’s right to use self-defense
o OK when aggressor’s non-deadly force was met with deadly force, or
o When aggressor in good faith withdrew from altercation and communicated it to victim
Defense of others (specific defense)
elements
Right to defend others exists under the same circumstances in which self-defense would be acceptable
Defense of property (specific defense)
elements
Reasonable steps OK, including non-deadly force
D must reasonably believe real property is in immediate danger of unlawful trespass or that personal property in immediate danger of being carried away
Force cannot be unreasonably disproportionate to perceived harm
Generally, deadly force not OK in defending property—only OK to prevent forcible felony in dwelling
Mechanical devices cannot be used to protect property
Arrest (specific defense)
elements
Police can use reasonable force to make lawful arrest
Deadly force only if suspect is a threat to the officer or third parties
Resisting unlawful arrest
o D may use non-deadly force in resisting unlawful arrest
o Deadly force never OK
Duress (specific defense)
elements
D violated law because third party’s unlawful threat caused D to reasonably believe death/harm to himself or another could only be avoided by violating the law
Not a defense to intentional murder
Necessity (specific defense)
elements
Natural forces of nature (not human actions) caused need to commit what otherwise would be a crime
Not a defense if D set the natural forces in motion or if there was a non-criminal alternative
Consent (specific defense)
elements
Not a defense unless:
o Consent negates required element of crime or
o Precludes harm sought to be avoided by crime
Consent must be:
o Voluntary
o Involve no fraud
o Be given by one who is competent to consent
Entrapment (specific defense)
elements
Criminal offense planned and induced by police/government agent
D was not predisposed to commit crime
