Criminal Law- Mbe

Front 1

Who has jurisdiction to adjudicate a crime?

Back 1

Situs of Crime:
i)Place where conduct of crime occurred, OR
ii) Place where result of crime occurred

Front 2

Where does JD lie with crimes of omission?

Back 2

JD lies where the act should’ve been performed

Front 3

When can you merge crimes?

Back 3

Generally, no merger of crimes. But, for the MBE remember:
-Solicitation and attempt merge into substantive offense.
-Conspiracy does not merge with the completed offense.

Front 4

Elements of a crime

Back 4

a) Actus reus (guilty act) OR an omission
b) Mens Rea (guilty mind)
c) Concurrence (both AR and MR existed at the same time); and
d) Harmful result and causation (harmful result caused by Δ’s act)

Front 5

Act

Back 5

Any bodily movements. Except:
i) Conduct not product of one’s own volition
ii) Reflexive or convulsive acts (seizures)
iii) Acts performed while unconscious or asleep (sleepwalking)

Front 6

Legal duty to rescue

Back 6

There is NO legal duty to rescue, UNLESS:
(1) Statute says so
(2) Contract says so
(3) Relationship requires it (parents/spouses)
(4) You voluntary assume a duty of care and then fail to perform
(5) Your conduct creates the peril

Front 7

Mental States for crimes

Back 7

a) Specific Intent —qualifies for additional defenses that are not available for other kinds of crimes.
b) Malice—Recklessness or extreme indifference to human life
c) General Intent (catch-all category)
d) Strict Liability (no-intent crimes)

Front 8

What are the only two malice crimes in the MBE?

Back 8

Murder and Arson

Front 9

What are the Specific Intent Crimes?

Back 9

a) Solicitation
b) Conspiracy
c) Attempt
d) First degree murder (MBE will tell you if it’s first degree murder.)
i) “Murder” alone= CL murder/2nd degree murder= malice crime). Cannot use additional defenses used for SI crimes.
e) Assault
f) Larceny
g) Embezzlement
h) False pretenses
i) Robbery
j) Burglary
k) Forgery

Front 10

What are the General Intent Crimes?

Back 10

All other crimes not mentioned unless it qualifies for strict liability

Front 11

Transferred Intent

Back 11

Describes the fact that intent can be transferred between victims, between torts, or both.

Front 12

What are accomplices liable for?

Back 12

Accomplices are liable for
i) Crime itself and
ii) All other foreseeable crimes

Front 13

What are the inchoate offenses?

Back 13

Inchoate (committed prior to or in preparation for a more serious offense) offenses:
a) Solicitation
b) Conspiracy
c) Attempt

Front 14

What is solicitation?

Back 14

a) Asking someone to commit a crime
b) Solicitation becomes a crime when you ask someone to commit a crime
c) If the person agrees to do it, the crime is no longer solicitation but conspiracy
d) Solicitation then merges into the conspiracy and only conspiracy remains

Front 15

What is conspiracy?

Back 15

Express or implied agreement between two or more people to commit an unlawful act, followed by an overt act

Front 16

What's an overt act?

Back 16

An act from which criminal intent can be inferred.
i) Majority View (CL): ANY act, however slight, in furtherance of the conspiracy (e.g., showing up at the site of the intended crime)
ii) Minority View: (MBE will tell you if it’s a minority JD) —rests on the agreement alone and no overt act required.

Front 17

Liability of conspirator and co-conspirators

Back 17

Each conspirator is liable for all crimes of co-conspirators IF
i) Foreseeable and
ii) Committed in furtherance of the conspiracy
iii) Various people can be part of a conspiracy even though they don’t know each other, and the agreement does not have to be express

Front 18

What is an adequate withdrawal from Conspiracy?

Back 18

Three requirements:
(1) Cease acts: Δ must cease to commit acts in furtherance of the conspiracy.
(2) Communicate withdrawal: the Δ must communciate his withdrawal to ALL co-conspirators in time for them to cease to commit acts in furtherance of the conspiracy.
(3) Take action: Withdrawing Δ must take some action to stop the conspiracy and prevent the commission of future crimes.

Front 19

What happens if Δ adequately withdraws from Conspiracy?

Back 19

If a conspirator succesfully withdraws, he is not liable for future crimes committed by other co-conspirators. However, even if adequate withdrawal, Δ cannot withdraw from the conspiracy once committed.

Front 20

Attempt

Back 20

Specific intent PLUS substantial step beyond mere preparation (mere preparation is NOT enough) in the direction of the commission of a crime

Front 21

What are the four Insanity Defense tests?

Back 21

(1) McNaughton Rule:
At time of his conduct, Δ lacked ability to know wrongfulness, or Δ unable to understand the nature and quality of her actions

(2) Irresistible Impulse Test:
Δ lacked capacity for self control and free choice

(3) Durham Rule:
Conduct was the product of mental illness

(4) Model Penal Code:
Δ lacked ability to conform his conduct to the requirements of law

Front 22

Insanity as a defense

Back 22

Insanity is a defense to ALL crimes

Front 23

Intoxication as a defense

Back 23

(1) Voluntary Intoxication (self-induced intoxication)
- Addicts and alcoholics
- Defense only applies to specific intent crimes (not to general intent or malice crimes)

(2) Involuntary Intoxication
- Where party is boozed up without his/her knowledge
- Treated like mental illness
- Defense to ALL crimes (included SL crimes)

Front 24

Infancy as a defense

Back 24

a) Under 7 = NO criminal liability
b) Under 14 = rebuttable presumption of NO criminal liability

Front 25

Self Defense: Non-deadly force

Back 25

A victim may use non-deadly force any time that he
i) Reasonable believes
ii) Force is about to be used on them

Front 26

Self Defense: Deadly Force

Back 26

Majority Rule for Deadly Force—A victim may use deadly force any time that he
i) Reasonable believes
ii) Deadly force is about to be used on them

Minority Rule for Deadly Force: Retreat Jurisdictions (MBE must tell you)
i) Victim must retreat if possible before using deadly force unless:
(1) You’re in your own home
(2) You’re being raped or robbed
(3) You’re a police officer

Front 27

Original aggressors using self-defense theory

Back 27

VERY RARE—don’t let original aggressors have a self-defense theory unless:
ii) Aggressor withdraws from using force AND
iii) Communicates his withdrawal to original victim

Front 28

Deadly force to defend dwelling

Back 28

Deadly force can NEVER be used solely to defend property

Front 29

Duress & Necessity as defenses to crimes

Back 29

Both are defense to all crimes except homicide.

a) Duress—“I’ll kill you if you don’t rob that store”
b) Necessity—criminal conduct as a result of pressure from natural forces to avoid harm to society

Front 30

Mistake of Fact (didn’t know acts constituted a crime) Defense

Back 30

-Specific Intent crimes: ANY Mistake, whether reasonable or unreasonable can be a defense.

-Malice & General Intent: Reasonable Mistakes only to be a defense

-Strict Liability: Mistake is NEVER a defense!

Front 31

Victim's Consent as a Defense

Back 31

Consent of the victim is NEVER a defense

Front 32

Entrapment Defense

Back 32

Constituted by a law enforcement agent inducing a person to commit an offense that the person would otherwise have been unlikely to commit.

However, there is no entrapment where a person is ready and willing to break the law and the government agents merely provide what appears to be a favorable opportunity for the person to commit the crime.

Front 33

Define murder

Back 33

Malice crime. A homicide is murder if Δ has one of these four intents:
i) Intent to kill
ii) Intent to cause great bodily harm
iii) Reckless indifference to an unjustifiable high risk to human life –“depraved heart” murder
iv) Intent to commit felony murder

Front 34

Voluntary Manslaughter

Back 34

a) PASSION killing—no time to cool off
b) EXTREME provocation

Front 35

Involuntary Manslaughter

Back 35

a) Killings from criminal negligence

b) Misdemeanor manslaughter (killing during commission of misdemeanor or unenumerated felony)`

Front 36

Ways MBE tests "First Degree Murder"

Back 36

a) Says “First Degree Murder”
b) Gives you a statute

Front 37

Felony Murder

Back 37

Death during the commission of a felony that is either enumerated or inherently dangerous

Front 38

Defenses to Felony Murder

Back 38

a) Δ must be guilty of the underlying felony. If Δ has a defense to underlying felony, he has a defense to felony murder.

b) Felony must be other than the killing (i.e., manslaughter or battery cannot be the underlying felony)

c) Death must be foreseeable (usually is)

d) Death must come during the commission of a felony or while fleeing from a felony and lasts until Δ reaches a temporary place of safety. Once Δ reaches tps, felony murder ceases and any deaths consequently caused are not felony murders

e) “Red Line” View: Δ NOT liable for the death of a co-felon as a result of resistance by victim or police pursuit

Front 39

Define Rape

Back 39

a) Unlawful carnal knowledge with woman without her consent

b) Slightest penetration completes the crime of rape

c) Victim's consent IS a defense

Front 40

Statutory Rape

Back 40

a) Strict liability crime

b) No consent, no mistake of fact defenses

Front 41

Larceny

Back 41

Specific intent crime.

-Elements:
i) Wrongful taking (stealing)
ii) Carrying away (however slight)--asportation
iii) Personal property
iv) Of another
v) Without consent (consent by fear or fraud is not consent)
vi) With the intent to permanently deprive owner of property
vii) Intent must exist at the time of the taking
viii) Possession only, title does not pass

-Taking property in the belief that it is yours or that you have some right to it is NOT larceny

Front 42

Embezzlement

Back 42

a) Lawful possession (E.g., trustee of trust fund)
b) Followed by illegal conversion (use of property in a way inconsistent w/ terms of trust)
c) Embezzler need not benefit personally
d) Possession only, title does not pass

Front 43

False Pretenses

Back 43

(1) a false representation (2) of a material past or existing fact -not future fact- (3) which the person making the representation knows is false (4) made for the purpose of causing (5) and which does cause (6) the victim to pass title (7) to his property

Front 44

Robbery

Back 44

Robbery = Larceny + Assault.

-A taking
-Of personal property of another
-Taken from the person or his presence (presence defined broadly)
-Against the will of victim
-By violence or fear of imminent harm (not future harm; future harm is extortion)


Pick-pocketing is NOT robbery

Front 45

Extortion

Back 45

In extortion, the victim is threatened to hand over goods, or else damage to their reputation or other harm or violence against them may occur -in the future.

Need not take from person or his presence

Front 46

Burglary

Back 46

(1) Breaking and (2) entering (3) the dwelling house (4) of another (5) at night (6) with the intent to commit a felony therein (at common law, not assault, not battery)

Front 47

When does intent must exist in a burglary?

Back 47

Intent must exist at the time of the breaking and entering

Front 48

What constitutes a breaking in a burglary?

Back 48

i) Actual--involving some force, however slight; OR
(1) If Δ walks in open door is not a breaking, but if Δ opens any other door inside then breaking

ii) Constructive—by threats or fraud
(1) E.g., Maid has key and uses key to come in

Front 49

Arson

Back 49

(1) Malicious burning of (2) the dwelling house (3) of another

Front 50

What is a malicious burning?

Back 50

i) Required damage caused by FIRE—not explosions, water damage, or smoke damage

ii) There must be a material wasting of the fiber of the building by the fire. Mere blackening or discoloration by heat is not enough.