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84 Cards in this Set

  • Front
  • Back
  • 3rd side (hint)
States w/Jurisdiction over a crime
A state acquires jurisdiction if either the conduct or the result happened there
Hypo: J, standing in CA, shoots a high-powered rifle across state lines into AZ and skills someone. Which state has jurisdiction?
Both, CA b/c the conduct occurred there and AZ b/c the result happened there
Merger, general rules and exception
Generally, there is no merger of crimes (if you commit 2 crimes, you can be charged w/both)

BUT, solicitation and attempt do merge into the substantive offense. **Note: Conspiracy does NOT merge into the substantive offense.
Essential Elements of a Crime
1. An Act - can be any bodily movement but must be voluntary; and
2. The requisite mental state
Examples of Conduct which does not meet the voluntary act requirement
a. Conduct which is not the product of your own volition (being pushed e.g.)
b. A reflexive or convulsive act like having an epileptic seizure; or
c. An act performed while you are unconscious or sleeing (e.g. sleepwalking) **Note: If you start the act while awake and fall asleep, it's a voluntary act, e.g. if you start driving then fall asleep, --> still liable
Omission as an act, general rule
Generally, there is no duty to rescue, but sometimes there is a legal duty to act.
Five circumstances giving rise to a legal duty to act
1. By statute (e.g. requirement to file tax returns)
2. By contract (e.g. a lifeguard or nurse has a legal duty to act)
3. Because of the relationship of the parties (e.g. A parent has a duty to protect children, spouses have a duty to protect one another)
4. Because you voluntarily assume a duty of care and then fail to adequately perform it; and
5. Where your conduct creates peril (e.g. You push someone into a pool and they can't swim)
Hypo: A bunch of people are standing around & see a guy drowning, D steps forward and says he'll save him. D swims out, sees the guy and turns around. Does D have any criminal liability?
Yes, b/c D voluntarily assumed a duty of care (by promising to save V) and failed to adequately perform it.
Four Common Law Mental States of a Crime
1. Specific Intent Crimes
2. Malice Crimes
3. General Intent Crimes; and
4. Strict Liability Crimes
11 Specific Intent Crimes
1. Solicitation
2. Conspiracy
3. Attempt
4. First Degree Murder
5. Assault
6. Larceny
7. Embezzlement
8. False Pretenses
9. Robbery
10. Burglary; and
11. Forgery
Significance of a crime being categorized as a specific intent crime
Specific intent crimes qualify for add'l defenses not available for other types of crime
Two Malice Crimes
1. Murder; and
2. Arson
**Note: if the exam refers to "murder" and does not specify degree, it means common law murder (2nd degree)
General Intent Crimes, definition
Everything that is not a specific intent crime or malice crime or strict liability crime (duh)

Examples: Rape and Battery
Hypo: D wants to kill a woman wearing a Barney shirt, fires his gun at her. His shot misses and hits the woman in the Dora shirt. Is D guilty of murder?
Yes, b/c of the doctrine of transferred intent. His intent to kill the Barney woman is transferred to govern the killing of the Dora woman

Side 3 question: Can D be charged w/2 crimes?
Yes, there are always 2 crimes in a transferred intent hypo. In this hypo, there is attempted murder of the Barney woman and murder of the Dora woman.

There is no merger b/c there are 2 victims.
Strict Liability Crimes,
a. definition and
b. how to identify
a. Strict liability crimes are no intent crimes
b. If the crime is in the administrative, regulatory or morality area and there are no adverbs in the statute such as knowingly, willfully or intentionally, then the statute is meant to be a no intent crime of strict liability
Hypo: D tried to have sex w/a minor who looked older and told him she was 22. If he is charged under a statute which reads: "Whoever shall commit an act affecting the morals of a minor under 16 shall be deemed guilty of corrupting a minor and shall be punished, can he claim that he is not guilty b/c he did not intend to corrupt a minor.
No, this statute is a strict liability crime. The crime is in the morality area, and the statute does not include any adverbs req. D's knowledge or intent.
If D is charged w/corrupting a minor, a strict liability crime in the jurisdiction, can he claim that he was intoxicated as his defense?
No, voluntary intoxication is only a defense to specific intent crimes, and for strict liability crimes, D's state of mind is irrelevant as long as he was legally sane.
Accomplice liability, general rules
1. Accomplices are liable for the crime itself and all other foreseeable crimes
2. Defendants are not liable as accomplices merely b/c they are present when a crime is being committed, even if by being present it seems they are consenting to the crime; and
3. Defendants are not liable as accomplices just by being present even if they do not call the police
Inchoate, dictionary definition
Incomplete
Solicitation, definition
Asking someone to commit a crime (the crime of solicitation ends when D asks)
**Note: Under the common law, it is not necessary that the person agree to commit the crime

Question for side 3, what if the person agrees to commit the crime w/D?
The solicitation merges and the only crime left when they agree to do it is conspiracy.
Conspiracy, elements (3)
Conspiracy is
1. An agreement
2. With an intent to agree and
3. An intent to pursue an unlawful objective
Hypo: George and Kramer break into Kramer's house, take his silverware and pawn it. Is this a conspiracy?
No, b/c it's not unlawful for Kramer to go into his own house and take his own property.
Conspiracy at Common Law, merger
Conspiracy does NOT merge w/the substantive offense at common law
Conspiracy at Common Law, Liability for co-conspirators' crimes
Each conspirator is liable for ALL the crimes of co-conspirators if those crimes were
a. committed in furtherance of the conspiracy and
b. foreseeable
Conspiracy at Common Law, Agreement requirement
The agreement does not have to be expressed. You don't need any written or spoken words of agreement.
Conspiracy, Overt Act requirement (majority & minority rules)
1. Majority rule - to be liable for conspiracy, there must be an agreement plus an overt act in furtherance of the conspiracy
Side 3: Overt act, general rule
2. Minority rule and common law - To be liable for conspiracy, you only need the agreement itself
**Note: For the MBE, the default rule to answer the question is the majority rule, the question will specify if they want you to use the minority rule
An overt act is any little act in furtherance of the conspiracy, including merely showing up at the place you agreed to rob or making a phone call to recruit others into the conspiracy
Conspiracy at Common Law, Impossibility
Impossibility is no defense to conspiracy
Conspiracy at Common Law, withdrawal
Withdrawal, even if it is adequate, can never relieve D from liability for the conspiracy itself. D can withdraw from liability for the other conspirators' subsequent crimes.
Conspiracy at Common Law, acquittal of co-conspirators for conspiracy
At common law, a conspiracy requires 2 guilty parties, thus the acquittal of ALL persons w/whom D is alleged to have conspired precludes D's conviction for conspiracy.
Hypo: X & Z agree to break into A's house and steal a painting. They were arrested and charged w/conspiracy to commit larceny. At his trial, X testified that he agreed to the plan in order to catch Z, who he suspected was a thief and that he had anonymously alerted police to the crime beforehand. If the jury believes X, can he be held liable?
No, b/c he did not intend to commit the unlawful act (larceny) and he did not intend to agree w/Z.
Attempt, general rule
Attempt is a specific intent plus a substantial step beyond mere preparation in the direction of the commission of a crime
Three Defenses for crimes based on Criminal Capacity
1. Insanity
2. Intoxication; and
3. Infancy
Four Tests for Insanity
1. M'Naghten Rule
2. Irresistible Impulse
3. Durham Rule; and
4. Model Penal Code

Side 3, state the tests
1. M'Naghten - At the time of his conduct, D lacked the ability to know the wrongfulness of his actions or understand the nature and quality of his actions
2. Irresistible Impulse - D lacked the capacity for self-control and free choice
3. Durham Rule - D's conduct was a product of mental illness
4. Model Penal Code - D lacked the ability to conform his conduct to the requirements of the law
Voluntary intoxication, definition and availability as a defense
Voluntary intoxication = self-induced intoxication
**Note: Addicts and alcoholics are always voluntarily intoxicated

Voluntary Intoxication is only a defense to specific intent crimes
Hypo: After drinking heavily, Barney breaks into Homer's house. Homer comes toward him, and Barney punches him, knocking Homer out. Barney gets in his car, speeds away, and is pulled over for speeding. Will Barney's voluntary intoxication be a defense to burglary?
Yes, b/c burglary is a SI crime, & voluntary intoxication is a defense to SI crimes.
Involuntary intoxication, definition and availability as a defense
Involuntary intoxication - unknowingly being intoxicated (e.g. someone slipping a drug into your drink) or becoming intoxicated under duress

Involuntary intoxication is a defense to all crimes
Infancy, rules
1. Under age 7, no criminal liability
2. Under age 14, rebuttable presumption of no criminal liability
Self-defense w/non-deadly force, rule
A victim may use non-deadly self-defense anytime the victim reasonably believes that force is about to be used on them
Self-defense w/ use of deadly force, rules
1. Majority rule - A victim can use deadly force in self-defense anytime V reasonably believes that deadly force is about to be used on them
2. Minority rule - a victim is req. to retreat if it is safe to do so.
**Always assume the question is asking about majority rule

Side 3 question: If the question specifies that you are in a "retreat" jurisdictions, three exceptions to the duty to retreat:
1. No duty to retreat from your home
2. No duty to retreat if you are the victim of a rape or a robbery; and
3. Police officers have no duty to retreat
Original Aggressor and Self-defense, rule
To get back the defense of self-defense, the original aggressor must:
a. Withdraw, and Communicate that withdrawal; OR
b. If the other person escalates a minor fight into one involving deadly force w/o giving the other person the chance to withdraw
Hypo: D, a worker in a metal working shop, had long been teasing V. One day V responded by picking up a metal bar and attacking D. D could have escaped. Instead, he blocked V's blow and struck V which caused V's death.
Can D be held liable for V's death?
No, b/c the question did not specify that D was in a retreat jurisdiction or to use the majority rule.
D had no duty to retreat and reasonably believed that deadly force was about to be used on him when V attacked him w/the metal bar.
Defense of a dwelling, rule
Deadly force may never be used solely to defend your property
Hypo: John is going on vacation and loads up a spring gun at his front door to be triggered and shoot intruders when the door is opened. Bob breaks in and the gun kills him. Is John liable?
Yes, deadly force can't be used to defend property.
Duress, availability as a defense
Duress is a defense if:
a. the person acts under the threat of imminent infliction of death or great bodily harm; and
b. that belief is reasonable

Side 3 question - Duress is a defense to all crimes except:
Homicide
Mistake of fact, general rule
Mistake of fact is a defense only when the mistake negates intention (thus it is never a defense to a strict liability crime)
Mistake of fact, reasonableness rule
1. For general intent or malice crimes - mistake has to be reasonable to be a defense
2. For specific intent crimes - a mistake of fact is a defense, no matter how ridiculous the mistake is
Mistake, availability as a defense depending on the mental state of the crime:
1. Specific intent
2. Malice/General intent
3. Strict liability
1. Any mistake, reasonable or not is a defense
2. Reasonable mistake is a defense
3. Mistake of fact is never available as a defense
Consent, rules
1. Consent of V is generally no defense
2. The defense of consent is almost never a defense to a crime in U.S.
Entrapment, rules
1. The criminal design must have originated w/law enforcement officer, and
2. The defendant must not have been predisposed to commit the crime
Battery, definition
A completed assault
Battery, touching requirement
Touching only has to be offensive
Battery, mental state req.
Battery is a general intent crime
Assault, definition
An attempt to commit a battery; or
The intentional creation - other than by mere words - of a reasonable apprehension of imminent bodily harm
Aggravated Assault, definition
Aggravated assault = assault plus:
1. Use of a deadly or dangerous weapon; or
2. W/the intent to rape, maim, or murder
First-Degree Murder, definition/elements
A premeditated killing.
1. V must be human (and dead).
2. D must have acted w/the intent or knowledge that his conduct would cause death.
First-degree murder, Felony Murder, definition
Any killing - even an accidental one - committed during the course of a felony (enumerated)
Defenses to Felony Murder
1. If D has a defense to the underlying felony, then he has a defense to felony murder
2. If D is not charged w/a felony other than the killing
3. Deaths caused while fleeing from a felony are felony murders, BUT if D reaches a point of temporary safety, deaths caused thereafter are NOT felony murders
4. D is not liable for the death of a co-felon as a result of resistance by V or the police
Hypo: Brangelina hold up a convenience store. Angelina is drunk. During the hold up, Brad shoots the store owner. Is Angelina guilty of felony murder?
No, b/c voluntary intoxication is a defense to specific intent crimes and robbery is a SI crime.
Hypo: D robs a bank. The next day, as he's taking the money to the next location, he runs down and kills a pedestrian. Felony murder?
No, D had reached a point of temporary safety.
Hypo: Simon and Paula rob a convenience store w/guns drawn. The owner shoots at Simon and hits and kills a bystander. Are S & P liable for felony murder?
Yes, felony murder includes any killing, even accidental, in course of committing a felony.
S & P rob a convenience store w/guns drawn. The owner shoots Simon. Is Paula guilty of felony murder?
No, Ds are not liable for felony murder for the death of a co-felon as a result of the victim's resistance.
First Degree Murder, Killing a Police officer, elements
1. D must know the victim is a law enforcement officer, and
2. V must be acting in the line of duty
Second-degree murder
**Note: If you see "murder" w/o a degree given, the examiners mean common law murder, or 2nd degree murder

Reckless indifference to an unjustifiably high risk to human life (depraved heart or "extreme indifference to human life")
**Note: NOT heat of passion murder
Voluntary Manslaughter, definition and elements
Killing in the heat of passion resulting from an adequate provocation by V

The provocation must be one that would arouse sudden and intense passion in the mind of an ordinary person causing him to lose self-control

There must not have been sufficient time b/w the provocation and killing for the passion of a reasonable person to cool.

D must not have, in fact, cooled off, before committing the murder.
Involuntary manslaughter, two types
1. A killing of criminal negligence (e.g. falling asleep at the wheel)
2. Misdemeanor manslaughter - killing someone while committing a misdemeanor or an unenumerated felony.

Side 3, explain unenumerated
Felony murder statutes list the felonies which ground F-M liability. Killing someone while committing a felony not on that list --> misdemeanor manslaughter/involuntary manslaughter
Rape, one thing to know
The slightest penetration completes the crime of rape
Statutory rape, mental state requirement
It's a strict liability crime, consent of V and mistake of fact are no defense
Larceny, elements
Common law larceny requires a wrongful taking (stealing) and a carrying away (aka asportation)
Larceny, asportation req.
The slightest moving of the property is enough for purposes of the bar exam
Common law Larceny, intent requirement
The intent to deprive the owner permanently must exist at the time of the taking or it is not common law larceny
Common law Larceny, mistaken belief
Taking the property in the belief that it is yours or that you have some right to it is NOT common law larceny
Embezzlement, elements
Embezzler has lawful possession followed by an illegal conversion

Side 3:
Embezzlement, MBE hints
1. Common embezzler
2. Benefit
1. A trustee is often the embezzler on the MBE
2. Embezzler does not have to get the benefit
Hypo: A trustee takes money from a trust for the purpose of donating it to charity and in fact does. Liable for embezzlement?
Yes, b/c an embezzler does not have to receive the benefit.
False pretenses, elements
D persuades the owner of property to convey title by false pretense (false representation).

Side 3:
False Pretenses, MBE hints:
1. Conveyance of title
2. False representation vs. false promise
1. Conveyance of title is a hint for a false pretenses question
2. False representation can be as to a past or present fact, but a false promise to do something in the future cannot ground liability for false pretenses
Robbery, elements (4)
1. Taking of personal property of another
2. From the other person's presence
3. By force or threat
4. With the intent to permanently deprive him of it

Notes for MBE
1. Presence requirement
2. Violence or threat req.
3. Threat req.
1. The presence requirement is very broadly drawn and would even cover a farmer tied up in his barn and taking things from his house.
2. For violence or threat, things such as ripping a necklace from a person's neck is sufficient.
3. The threat must be a threat of imminent harm (e.g. "Your money or your life).
Hypo: Don sees Jeff at work and says "Give me money or I will beat you up tomorrow morning at our staff meeting." Is Don guilty of robbery?
No, it's not a threat of imminent harm (but might be extortion).
Hypo: Matt needs money for his gambling habit. On the way to the track, he picks Rex's pocket, taking his wallet, using money to bet on the dog races. Robbery?
No, b/c no threat or violence
Hypo: Carl is walking down the street w/his hand in his paper bag. As Lenny approaches from the opposite direction, he stops Lenny and pushes the paper bag into Lenny's ribs, saying "I've got a gun. Give me all your money." He does not actually have a gun but was using his finger. Armed robbery?
Yes, b/c using a simulated deadly weapon is sufficient to be "armed."

Note: notes are also simulated deadly weapons (e.g. "I have a bomb")
Extortion, rule
Extortion = knowingly seeking to obtain property or services by means of a future threat, i.e. blackmail

Side 3, Differences b/w extortion and robbery
1. You don't have to take anything from the person or be in his presence to commit extortion
2. Extortion involves threats of future harm
Burglary, rule
Breaking and entering of a dwelling of another *at night* with the intent to commit a felony.

Side 3: **Note: "At night" requirement
MBE tests on common law crimes, and that was a weird English rule
Burglary, breaking requirement, types
1. Actual breaking - involving some force
2. Constructive breaking - by fraud or threats (e.g. getting a job to clean someone's house, using your key to host a big party at their place)

Side 3, Notes on MBE actual breaking:
It's not a breaking to walk through a wide open door or window. BUT if someone pushes open an interior door in the house then a breaking exists.
Burglary elements, more specific description
1. Entering
2. Dwelling
3. Intent req.
1. Entering - occurs when any part of the body crosses into the house
2. Dwelling - must be the dwelling house of another, cannot be a barn or commercial structure
3. Must be w/intent to commit a felony therein; that intent must exist at the time of the breaking an entering or it is NOT common law burglary
Hypo: Jack breaks into Jill's house b/c he wants a place to sleep. A few hours later, he decides to steal a Picasso painting inside. Is he guilty of common law burglary?
No, b/c he did not have the intent to commit a felony therein when he broke in
Arson, elements
Malicious burning of the dwelling house of another

Side 3: MBE Notes
1. Only applies to burning, not smoke damage
2. Has to be a dwelling, cannot be a barn and it can't be a business (weird common law req.)
3. Common law arson cannot exist if you burn your own house. It must be the dwelling house of another