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126 Cards in this Set

  • Front
  • Back
-sometime "willfully"
∆ is aware that his conduct is of that nature
aware that certain circumstances exist.
4 common law mental states
1. Specific Intent
2. Mailce
3. General Intent
4. Strict Liability
Specific Intent Crime
a specific intent includes an actual subjective intent to cause the proscribed result.
Major Specific Intent Crimes?

False Pretenses
Larceny [by trick]
Premeditated [intent to kill] Murder
Voluntary Manslaughter
Describe a malicious
To be guilty of a malice crime, ∆
must act with a reckless disregard of a high risk that harm will occur.
-depraved heart murder
Describe a general intent
A general intent crime requires merely an intent to do the proscribed actus reus.

Negligence or recklessness is sufficient for general
intent crimes.

The concept of "motive" is substantively immaterial to the determination of intent to commit a criminal act.

***-battery--UNLESS a statute changes it s.i. crime on MBE
-false imprisoment
Specific intent v. General Inent
(1)GI--intent is presumed from the act itself
SI--intent cannot be presumed

(2) some defenses are available fro SI but not for GI e.g. VIntox, unreasonable mistake of fact

MPC disregards GI v. SI
Strict Liability Crimes
Actus Reus is enough--no mens rea requirement.

e.g. statutory rape; speeding; bigamy; adultery
Strict Liability--Mens Rea?
Exception not the rule. even in crimes where there is no mens rea, there is a mens rea requirement unless there is clear legislative intent not to require a mens rea?
Strict Liability--Defenses
Entrapment; involuntary actus reus; mechanical failure.

"Good Faith"
Strict Liability--Vicarious Liability
if statute is strict liability, and imposes liability on supervisors as well as the direct violator, doctrine of vicarious liability precludes owner from defense that he was unaware of the violation
Elements of a crime
1. Actus Reus
2. Mens Rea
3. concurrence of 1 and 2
4. causal connection
5. harm
Actus Reus--basic definition
voluntary criminal act

can be a positive act or an omission

usually results in social harm [or intending to cause harm]
Actus Reus--Voluntary Affirmative Acts
person must be engaged in conscious and volitional movement i.e person's brain was engaged

examples of involuntary--seizures, in a state of unconsciousness, sleep or automatism, under some jurisdictions hypnosis

unless you have knowledge of your condition and it is reasonably foreseeable that the result would occur?
Actus Reus--Omissions--generally
-usually a ∆ not guilty for failing to act even is the omission causes harm and the harm could have been prevented at no risk to ∆'s personal safety
Actus Reus--Omissions--when is there a duty to act?

1. statutorily defined duty i.e. file taxes
2. status relationship i.e. duty of care to a child from a parent
3. contractual agreement i.e. babysitter/caretaker
4. voluntarily assuming the care of another i.e. good samaritan takes injured cyclist into home, tells others she will call for help, but doesn't
5. ∆ created the risk

EXCEPTION---> when fulfilling the duty will cause harm to the "∆"
Actus Reus--Status Crimes
unconstitutional unless acting illegally i.e. an alcoholic arrested for public drunk.

under 8th amendment clause against cruel and unusual punishment.
State must prove that ∆'s act was:
1. cause in fact of the result
2. criminal proximate cause of the result
Cause in Fact/Actual Cause
courts apply a but for test.

would the same result have happened in the exact same way without ∆'s conduct?
Criminal Proximate cause
An act is the criminal proximate cause of all the natural and probable consequences of the act.

Causation--Intervening Causes--Factors
1. nature of the IC
2. was IC forseeable?
3. Who had control over IC[independent or dependent]
4. How much harm did the IC contribute?
5. Policy arguments in favor of/against breaking the causal chain
Describe the requirements
of concurrence of the
mens rea and actus reus
elements of a crime.
It is not only necessary that the defendant's criminal intent occur at the time he commits the criminal act, but the mental state should
also actuate, or put into action, the act or omission.

The mens rea and actus reus elements concur when the factors which ultimately cause the result are set in motion with the requisite mens rea.

X breaks into Y's home to recover his (X's) television set
(which X had loaned to Y). If, once inside, X sees and
decides to steal Y's gold watch, X is guilty of larceny.
However, no burglary has occurred. X did not enter Y's
home intending to commit a larceny (i.e., there was no
intent to take the property "of another").
X implants poison into a cupcake which she knows will
be eaten by Y. Before the item is consumed, X changes
her mind. She tries frantically to warn Y, but is unable to
do so. Although X did not desire Y's death when the
cupcake was eaten, X has committed murder.
IC and medmal
doctor must be reckless or intentional in order break the chain of causation
Hom--Common Law Homicide--definition
unlawful killing of another human being with malice aforethought
Hom--Elements--actus reus
to kill or can be an omission i.e. allowing a child to starve to death.
any willful murder; if ∆ had a cool moment of thought, even for a sceond then purposely kills victim, ∆ is guilty of premeditated killing
Hom--Elements--when does death occur?
when the brain ceases to function or when respiratory system/heart stops?
First Degree Murder
All Killings that take place with premeditation and deliberation


Killing occurring during commission of dangerous felonies

--N.B. deliberation can be formed in an instant

--s.i. crime so voluntary intoxication and unreasonable mistake of fact defenses are available.

***on MBE if question does not specify 1st degree murder, then you are dealing with Malice crimes
Second Degree Murder
Person Intends to inflict serious bodily harm and death results


Depraved Heart: ∆ is aware of an extreme risk to human life and ignores that risk
Types of Murder
1. Intent to Kill
2. Intent to inflict serious bodily harm
3. "Depraved Heart" Murder--extremely reckless disregard for the value of human life.
4. Felony Murder
Hom--Depraved Heart--elements
1. ∆ must realize that conduct poses risk to human life
2. ∆'s recklessness is particularly extreme or gross.
Felony Murder--Def
∆ kills another person, even accidentally, during the commission or the attempted commission of a felony

"constructive murder" b/c intent to commit felony substitutes the intent to kill or cause grievous bodily harm.
Felony Murder--felonies that typically lead to it
Felony Murder Rule--Limitations
-∆ must be guilty of the underlying felony

-Felony must be distinct from the killing itself

-death must have been a foreseeable result

-death must have been caused before ∆'s "immediate flight" if ∆ has reached a place of temporary safety, then subsequent deaths are not felony murder.

-not liable for death of co-felons
FMR--Proximate Cause theory
∆ responsible for any death that occurs during commission of felony regardless of whether the felon directly caused the death AS LONG AS the death is sufficiently related to the ∆'s conduct.

e.g. using an innocent bystander as a human shield who is then shot/killed by non-felon
FMR--Agency Theory
felon only responsible for death of a victim if the death is directly caused by one of the felons--Majority approach
FMR--killing by a non felon
1. Who did the killing?
2. Who was killed?
3. Did it further the felony?

1. Agency Theory
2. Proximate Cause Theory
Unlawful Act Doctrine/Misdemeanor Murder--def
unintentional killings committed during an unlawful act, not amounting to a felony, automatically constitutes manslaughter.

e.g. ∆ violates a saftey ordinace resulting in his rotweilers killing innocent bystander

some courts limit this rule to:
1. inherently dangerous unlawful acts. i.e. malum in se rather than malum prohibitum regulatory purpose versus the protection of the safety of others


apply doctrine of merger
unlawful killing of another human being without malice--lesser included defense for purposes of double jeopardy
1. VM--heat of passion after sufficient provocation
2. IM or Negligent Homicide--reckless killings or those committed by grossly negligent behavior
3. Misdemeanor Manslaughter
VM--when applied
1. provocation (heat of passion)
2. Extreme emotional disturbance
3. imperfect self-defense
Vm--Heat of Passion--def examples
1. ∆ acted in actual heat of passion
2. legally adequate provocation
3. inadequate time for ∆ to "cool off"--this time is loosely defined.
VM--legally adequate elements (categorical approach)
1. aggravated assaults
2. observations of adultery by a spouse
3. illegal arrest
4. mutual combat
5. attacks against a close family member
VM--legally adequate elements (Reasonable person approach)
whether there was an act of provocation that would have inflamed a reasonable person to act at that moment without due deliberation or reflection, but out of passion
VM--inadequate cooling off time
1. long smoldering reaction
2. rekindling doctrine
VM--inadequate cooling off time--long smoldering reaction
delayed response still acceptable if ∆ can show his emotions continued to smolder for hours or even days
VM--inadequate cooling off time--rekindling doctrine
∆, even though he may have cooled off after the initial provocative act, heat of passion was rekindled by some kind of reminder of victim's provocation
extreme mental or emotional disturbance
1. ∆ must have acted under influence of extreme emotional disturbance
2. must be a reasonable explanation or excuse
VM--EED--reasonable explanation or excuse
determined from the viewpoint of the person under the circumstances as he believes them to be.
the unintentional killing of another without malice and while engaged in either: (1) an unlawful act not amounting to a felony and not naturally tending to cause death or great bodily harm; or (2) a lawful act with reckless disregard for the safety of others).

homicides caused by mere recklessness or criminal negligence

a killing without due caution and circumspection to such a degree that the ∆'s behavior warrants criminal punishment.

basically ∆ does not realize the risk, but a reasonable person would have realized the risk so it is up to a jury to decide whether the behavior is so gross as to warrant punishment
Voluntary Act v. Mens Rea
mens rea= actor's state of mind re: social harm of the offense.
voluntariness applies to the act that cause the harm

e.g. ∆ fires a bullet at a tree but π walks in front of bullet. Voluntary act but lacks requisite mens rea requirement
Doctrine of Transferred Intent
When a ∆ intends to commit one crime accidentally commits another or intends to kill one person and accidentally kills another, the ∆ is just as culpable as if the ∆ had accomplished the intended crime.

there must be a connection between the two crimes i.e. malum in se v. malum prohibitum
Accomplice Liability--Generally
a person is guilty as an accomplice if the person:

1. Assists, counsels or encourages another before or during the commission of a crime


2. Intent that crime be committed


person is a member of the class of people the statute is designed to protect i.e. child labor; statutory rape

**absent a statute MERE KNOWLEDGE that a crime MAY RESULT from the aid provided is INSUFFICIENT for accomplice liability
Accomplice Liability--MBE tips
-person aided does not have to know of the assistance he received in order for accomplice to be liable

-alleged accomplice need not have been convicted, state must prove that target crime was actually committed

-∆ responsible for criminal acts of another whom he aided, abetted or facilitated provided that the consequences are REASONABLY FORESEEABLE in terms of acts ∆ intended to aid or abet.
Aiding and Abetting
one who aids, counsels, or encourages another in the commission of a crime
who is PRESENT when crime is committed
is generally guilty of aiding and abetting
∆ is a member of a class sought to be protected by the statute that has been violated
Accomplice Liability--Exception
No criminal liability if the alleged accomplice is a member of the class of people the statute is designed to protect.
-e.g. statutory rape/child labor.
V can't be held liable under theory of accomplice liability.
Accomplice Liability--Withdrawal
accomplice may withdraw if he:

1. makes a timely repudiation and takes sufficient steps to neutralize any assistance or material he has provided before the commission of the crime can no longer be prevented.
Crim--Accomplice Liability--labels
1. Principal in 1st degree
2. Principal in 2nd degree
3. Accessory before the fact
4. Accessory after the fact
Crim--Accomplice Liability--labels--Principal in 1st degree
actual perpetrator of the crime--bank robber
Crim--Accomplice Liability--labels--Principal in 2nd degree
aided and abetted principal by being present or nearby[constructively present]
-lookout man
Crim--Accomplice Liability--labels--Accessory before the fact
person who helped to prepare for the crime, but did not participate in the actual commission of the crime.

--cased the bank, but not present during robbery
Crim--Accomplice Liability--labels--Accessory after the fact
person who knowingly assists a felon in avoiding arrest, trial, or conviction.
--someone offers to hide loot
Crim--Accomplice Liability--using innocent as an instrument
innocent is not guilty..

but principal is guilty if he willfully causes an act to be done, which if directly performed by him or another would be an offense against the U.S. is punishable as principal
Crim--Accomplice Liability--Mens Rea
∆ must
1. intentionally engage in the acts of assistance, and
2. act with the level of culpability required in the definition of the offense in which one assisted.


when ∆ knows his acts may assist in the commission of a crime


has the specific purpose of having them succeed
Crim--Accomplice Liability--Mens Rea--Negligent or reckless crimes
∆ must have purpose to assist and must be negligent regarding the results
1. intentionally taking and carrying away
2. personal property in the possession or presence of another
3. with out consent [trespassory]
4. with the INTENT to permanently deprive the person of the property i,e, INTENT to Steal=mens rea

-it is possible to commit larceny of your own property if another person, such as a bailee, has superior title at the time.
Theft--Larceny--Trespassory taking
taking personal property of another without their consent


in the absence of a justification for the non-consensual taking

aka "asportation"

You can commit larceny of your own property if the other person i.e… bailee has superior possession at the time.
Theft--Larceny--property that is in possession of another
must be tangible personal property

abandoned property not personal
Theft--Larceny--Intent to permanently deprive the person of their property
unauthorized borrowing of a lawnmower i.e. is not larceny

**intending to use the chattel in a manner that involves a SUBSTANTIAL RISK of DAMAGE or LOSS is sufficient for intent to permanently deprive

another example, joyriding
Theft--Larceny--grades of offense CL v. MPS
Cl--grand or petty depending on OBJECTIVE value of property

MPC--grand if value is greater than or equal to $500; petty of less than $500
Theft--Larceny by Trick

1. taking possession of the property of another
2. by knowingly making false representations w.r.t. material facts
3. with an intent to defraud
Theft--False Pretenses Def--elemtents and distinction v. Larceny
∆ obtains title to goods or money through acts of deceit or misrepresentations

***π must actually rely on the misrepresentation to be actionable. (BUT ∆ can be found guilty of attempted false pretenses where the π calls bullshit)


1. taking title and possession of the property of another
2. by knowingly making false representations w.r.t. material facts
3. with an intent to defraud

distinguished from larceny b.c involves passing of title
Theft--Embezzlement--def and elements
fraudulent conversion of another's property by a person in lawful possession of that property.

--i.e.uses the property in a manner that manifests the intention of permanently depriving the person of their property

title does not pass
-thus they are lessor included offenses

1. taking of property
2. from victim's person or presence
3. by force or intimidation
4. with the intent to permanently deprive V of his property
Theft--Receiving stolen goods
∆ receives possession and control of personal property known to have been stolen 2. by another 3. with the intent to permanently deprive owner of his interest in the property
1. Breaking and entering
2. of the dwelling place of another
3. at night
4. With the intent to commit a felony inside
open a closed door or window with force or otherwise

**-constructive breaking if it occurs by means of fraud
cross plane of house or dwelling no matter how slight
Burglary--dwelling place
includes vacation homes or temporarily vacated homes

-extends to curtilage
unable to make out ∆'s features by natural light

-not usually tested on MBE unless facts go out of their way to tell you it is/isnt nighttime.
Burglary--Intent to commit felony
must exist at time of ENTRY
Mailicious burning of a dwellinghouse of another

-requires intent or depraved heart/superrecklessness

-need damage by fire, not just smoke

i.e. charring of some kind
Inchoate crimes--defined
∆ has not actually completed the crime/ target offense
Doctrine of Merger
Lesser included offenses normally merge into a conviction for a greater offense.

Double Jeopardy does not preclude conviction of lessor crimes.

-solicitation merges into 1. conspiracy and 2. completed offense

-attempt merges into conviction of completed crime

-conspiracy DOES NOT merge into a conviction of the target crime.
when ∆ with the intent to commit a criminal offense, engages in conduct that:
constitutes the beginning of the perpetration of, rather than mere preparation for, the target offense.


-where a person solicited proceeds far enough to constitute attempt, then solicitor is liable for ATTEMPT

-IF ATTEMPT crime is COMPLETED, then can merged into CONSPIRACY
Inc--Attempt--Complete v. Incomplete
complete--∆ unsuccessful in bringing about desired result i.e. shoots but hits the wrong target

incomplete--∆ does some acts, but then desists or is prevented from continuing by an extraneous factor
Inc--Attempt--defense --renunciation
Complete Renunciation

Abandon efforts before the crime is

voluntarily abandon his criminal efforts

Exactly the same in TN
whenever a ∆ recruits, encourages, directs, counsels, or encourages another person to commit a crime.

-doctrine of merger applies; specific intent crime
Inc--Solicitation-actus reus
-purely verbal
Inc--Solicitation--mens rea
SI crime. ∆ must have purpose to promote or facilitate commission of crime. basically can't be joking...
Inc--Solicitation v. Attempt
1. attempt requires some act be taken toward commission of crime i.e. substantial step, whereas solicitation can occur much earlier

2. Sol involves a 3P

3. Att involves greater sentence b/c ∆ has done more towards actually completed the crime.
1. Renunciation
2. First Amendment Defense
Inc--Solicitation-Renunciation Defense
-no ∆ under common law
-under MPC, can renounce if ∆
1. completely and voluntarily renounces her criminal intent, and

2. either persuades the solicited
party not to commit the offense or otherwise prevent him from committing the crime.

-does not merge into the completed offense unlike attempt/solicitation
DEFINITION--an agreement by 2 or more persons to commit a crime.
-i.e. 1 person cant be insane

∆ must:
1. agree to commit a crime
2. with the intent to have the crime succeed
3. OVERT ACT (mere preparation will suffice)

-withdrawal will not get ∆ off hook for conspiracy but may serve as a valid defense to subsequent crimes
PROVIDED THAT requirements of WITHDRAWAL have been met:
1. affirmative act that notifies members of the conspiracy
2. must be done in time for them to have OPPORTUNITY TO ABANDON plas
3. no requirement to go to POLICE on MBE

-usually acquittal of the other party to a conspiracy doe snot apply where other party is charged with a lessor offense or is no longer being prosecuted.

-all conspirators are liable for all FORESEEABLE crimes that occur within the scope of conspiracy.
Conspiracy--Actus Reus
to agree to commit the crime
-can be express or implied
-can be liable for acts committed by the conspiracy before "joining"
Conspiracy--Mens Rea
1. intent to form an agreement
2. with the purpose to commit a crime
Conspiracy--Pinkerton Rule
a conspirator is responsible for all acts of his co-conspirators during the course of and in furtherance of the conspiracy, even if he is unaware of the other acts.
Conspiracy--Wharton Rule
if it is impossible to commit the substantive offense without coperative action, the preliminary agreement b/t the parties to commit the offense is not an indictable conspiracy.

therefore bigamy, adultery, dueling would need to include at least three people
Conspiracy--Bilateral v. Unilateral***
CL--bilateral [2 guilty minds]

MPC--unilateral, one of the conspirators can be a feigned conspirator i.e. undercover agent.
Affirmative Defenses--Types
Even is π has proven all of the elements of a crime beyond a reasonable doubt, there is either (1) a justification or (2) an excuse for the ∆'s behavior, therefore the ∆ is not guilty of the offense charged.

NO BURDEN of PROOF for ∆ wrt element of a crime.
Aff Defenses--Justification
committing the crime is justified to avoid even greater harm or to further a societal interest, based on the circumstances.

focuses on the act itself
Justification defenses--types
1. Self-Defense
2. Defense of Others
3. Defense of Property/Home
4. Law enforcement
5. Necessity?
Self Defense
-person who is WITHOUT FAULT may use such force as reasonably appears necessary to protect himself from IMMINENT use of UNLAWFUL force upon himself

-Deadly force allowed when threatened with IMMINENT DEATH or SERIOUS BODILY HARM

-reasonableness standard(always see it in the answer choice)

-retreat if available not required unless ∆ is the initial aggressor
-initial aggressor can rgain his right to SD EITHER:
1. by withdrawing and COMMUNICATING withdrawal to th other person
2. when the other person suddenly escalates a minor fight into one involving deadly force without giving the aggressor opportunity to retreat.
Use of Deadly Force to Effectuate Arrest
Law Enforcement: only to prevent escape of felon risking human life

Private Citizen: only to prevent escape of person who ACTUALLY COMMITTED felony
Imperfect SD
if a ∆ has an honest but unreasonable fear that his victim is placing him in imminent danger of deadly force, then might be entitled to get charge reduced from homicide to VM.
Defense of 3P
Two rules:

1. Majority--If ∆ reasonably believes that deadly force is necessary to defend the 3P from imminent, unlawful and deadly force attack.

2. Minority--shoe-stepping
--defense fails unless 3P would have had the right to use SD
Defense of Property

Exactly the same in TN
typically, must seek judicial redress unless you are in hot pursuit. Still, non-deadly force must be used. Further, some jurisdictions require that the property owner demand that the "aggressor" desist.
Necessity--elements applied
Lesser of 2 evils defense

1. ∆ faces a choice of evils [usually between immediate physical harm and committing a crime]

2. There are no apparent legal alternatives

3. There is an imminent harm

4. ∆ chooses the lesser evil [usually determined by judge, not the jury]

5. ∆ did not create the necessity

6. No contrary legislative intent i.e. congress can not have ruled that
Excuse defenses--types
1. Duress
2. Intoxication [voluntary v. involuntary]
3. Insanity
4. Diminished capacity
5. Imperfect Self-Defense
6. Mistake of Law
7. Infancy
8. Entrapment
Aff Defenses--Excuse
defense focuses on the actor whose conduct is socially undesirable but ∆ is not criminally responsible.
Excuse Defenses--Duress v. Necessity
different from necessity in that the duress excuse is based on human threats/coercive circumstances and necessity is based on non-human/natural circumstances
1. Imminent threat
2. of serious death or bodily harm
3. against ∆ or close relative/friend
4. creates such fear that a man of ordinary courage and fortitude person would yield
5. ∆ did not create the situation
--cannot be raised in ∆ to homicide
generally no defense
definition--ingestion of any foreign substance that disturbs the actor's mental or physical capacities--to the extent that there is a prostration of the ∆'s facilities--can be sufficient to defend against a hightened mens rea in a SI crime but generally not allowed for GI crimes.
Excuse--Intoxication--Involuntary--types applied
A complete defense if it causes the ∆ to commit a crime he otherwise would not have committed.
1. unwitting--i.e. rufied
2. coerced--forced to take LSD
3. pathological--effect of drug reaction

can't be foreseeable on part of ∆
Excuse--Status Defenses
A person cannot be prosecuted for merely being an addict or alcoholic
Did ∆ lack the substantial capacity to either:

1. appreciate wrongful nature of conduct


2. conform conduct to the law
Insanity-Common Law--M'Naughton--
Did ∆ know right from wrong?
Insanity---Competency to stand trial
if ∆ is incompetent at time of trial, then he may not be tried

mentally competent if he has sufficient ability
1. to consult with attorney


2. to rationally understand the proceedings
Mistake of Fact--Definition and applied
∆ did not have necessary mens rea for the crime because ∆ made a mistake or was ignorant of a fact that he must have known in order to be found guilty of the charge.

much more likely to succeed in a SI crime.
Mistake of Fact--SI Offense
applied--Despite the ignorance or mistake, did the ∆ know enough to be guilty of the crime?
Mistake of Fact--GI Offense
∆ is not guilty of GI crime if his mistake of fact was reasonable.
Mistake of Law

Exactly the same in TN
∆ must establish:

1. Criminal Plan originated with Law Enforcement officer


2. ∆ was not predisposed to commit the crime.
Assault v. Battery
BATTERY=unless statute changing it is a general intent crime
-unlawful or reckless application of force upon another. not intent to injure dont need SI to injure.

1. attempted battery
2. intentional creation (other than by mere words) of a reasonable apprehension in the mind of the V of IMMINENT bodily harm
-SI and substantial step-->therefore SI rules apply but not to battery
statutorily described state of mind
when a culpable state of mind is specified by an offense without indicating to which element it applies, the state of mind applies to ALL MATERIAL ELEMENTS of the offense
a contrary purpose appears in the statute
1. making or altering
2. of a false instrument
3. with intent to defraud
Receiving Stolen Property
1. receiving possession and control
2. of "stolen" personal property
3. known to have been obtained in a manner constituting a criminal offense
4. by another person
5. with the intent to permanently deprive the owner of his interest in the property

-once stolen property is recovered by the police on the owner's behalf, it loses its "stolen" status.
-if police know about the sale of stolen property but allow it to happen, then the ∆ can be found guilty.