Mbe Criminal Law (Barbri July 2009)

Front 1

[Intro]

What are the 3 sources of law on the MBE?

1

Back 1

-Common Law

-MPC

-Majority Statutory Rules

Front 2

[Intro]

What the 4 essential elements of proving ANY crime?

1

Back 2

-Actus Reus

-Mens Rea

-Causation

-Concurrence of act and mental state

Front 3

[Intro]

What are the three Incoate offenses?

1

Back 3

**SAC

-Solicitation

-Attempt

-Conspiracy

Front 4

[Intro]

What are the 6 defenses to crimes?

1

Back 4

IIISED

-Insanity
-Intoxication
-Infancy
-Self-defense
-Entrapment
-Duress

Front 5

[Preliminary matters - Jurisdiction]

Where must a crime be prosecuted?

2

Back 5

Anywhere where the ACT took place or the RESULT took place

Front 6

[Preliminary matters - Burden of Proof]

What's the burden of proof for prosecution?

2

Back 6

Beyond a reasonable doubt

Front 7

[Preliminary matters - Burden of Proof]

What's the burden of proof for defenses?

2

Back 7

**Burden on PROSECUTION to DISPROVE each element of the defense Beyond a reasonable doubt

EXCEPT: Insanity - burden is on the D

Front 8

[Preliminary matters - Classification of Crimes]

What is considered a felony, and what is considered a misdemeanor?

2

Back 8

Felony = > 1 year

Misdemeanor = anything 1 year or less

Front 9

[Essential Elements - Physical Act: Requirement]

What is a sufficient act to satisfy "actus reus"?

3

Back 9

ANY Voluntary bodily movement

NOTE: Not when someone else moves you, or unconsciousness

Front 10

[Essential Elements - Physical Act: Omissions]

What are the basic elements that must be met before a FAILURE to act is enough to satisfy "actus reus"?

3

Back 10

-Legal duty

-Knowledge of facts giving rise to the duty

-Ability to help

Front 11

[Essential Elements - Physical Act: Omissions]

What 5 ways can there be a legal duty to act?

3

Back 11

-Statute
-Contract (babysitter)
-Status (parent/spouse)
-Voluntary assumption
-Creation of peril

Front 12

[Essential Elements - Physical Act: Possession]

What are the two types of possession?

4

Back 12

-Actual
-Contructive

Front 13

[Essential Elements - Physical Act: Possession]

What is enough to there to be actual possession?

4

Back 13

-Control, for a long enough period for there to be

-An opportunity to terminate possession

Front 14

[Essential Elements - Physical Act: Possession]

What is enough to there to be constructive possession?

4

Back 14

-Dominion

-Control

Front 15

[Essential Elements - Mental States: Common Law]

What are the 4 common law mental states?

4-5

Back 15

-Specific intent
-Malice
-general intent
-strict liability

Front 16

[Essential Elements - Mental States: Common Law]

What are the 11 specific intent crimes?

4

Back 16

-Assault
-1st Degree Premeditated Murder
-Larceny
-Embezzlement
-False Pretenses (larceny by trick)
-Robbery
-Forgery
-Burglary
-Solicitation
-Conspiracy
-Attempt

Front 17

[Essential Elements - Mental States: Common Law]

What is the definition of the "malice" common law mental state?

5

Back 17

Acting intentionally or w/ reckless disregard of an obvious or known risk

Front 18

[Essential Elements - Mental States: Common Law]

What are the two malice common law crimes?

5

Back 18

-Murder
-Arson

Front 19

[Essential Elements - Mental States: Common Law]

What is the definition of the "general intent" common law mental state?

5

Back 19

General awareness of the factors of the crime

Can be inferred simply by doing the act!

Front 20

[Essential Elements - Mental States: Common Law]

What are the 4 general intent common law crimes?

5

Back 20

-Battery
-Kidnapping
-Rape
-False Imprisonment

Front 21

[Essential Elements - Mental States: Common Law]

What are the two times of strict liability common law crimes?

5

Back 21

-Public welfare crimes (alcohol to minors)

-Statutory rape

Front 22

[Essential Elements - Mental States: Common Law Mistake]

What is the effect of mistake of fact on common law crimes?

6

Back 22

Acts to negate mental state

Front 23

[Essential Elements - Mental States: Common Law Mistake]

What effect of any mistake on a specific intent crime?

6

Back 23

Mistake will be a defense, even if mistake was unreasonable

Front 24

[Essential Elements - Mental States: Common Law Mistake]

What effect of any mistake on a general intent or malice crime?

6

Back 24

Mistake will be a defense, BUT only if it's a reasonable mistake

Front 25

[Essential Elements - Mental States: MPC]

Definition of purposely

7

Back 25

Contious object to accomplish

Front 26

[Essential Elements - Mental States: MPC]

Definition of Knowingly

7

Back 26

Awareness of actions

Front 27

[Essential Elements - Mental States: MPC]

Definition of Recklessly

Back 27

Aware of a substantial and unjustifiable risk

Front 28

[Essential Elements - Mental States: MPC]

Definition of negligently

7

Back 28

D SHOULD have known (but didn't) of the risk

Front 29

[Essential Elements - Mental States: MPC Mistake]

Under the MPC, a mistake of fact, even an unreasonable one, will work to negate which mental states?

7

Back 29

Purposely, knowingly, and Recklessly

Front 30

[Essential Elements - Mental States: MPC Mistake]

Under the MPC, a reasonable mistake of fact, will work to negate which mental states?

Back 30

Purposely, knowingly, Recklessly, and Negligently

Front 31

[Essential Elements - Causation]

What two types of causation are needed to prove a crime?

8

Back 31

Actual and proximate

Front 32

[Essential Elements - Causation: Actual]

Test for actual causation
and EXCEPTION

8

Back 32

"But for cause"

EXCEPTION: accelerating cause is enough

Front 33

[Essential Elements - Causation: Proximate]

What's required for proximate cause?

8

Back 33

D is prox cause if bad result is a natural and probable consequence of D's conduct

Front 34

[Essential Elements - Causation: Proximate]

Effect of Eggshell victim?

9

Back 34

Still guilty

Front 35

[Essential Elements - Causation: Proximate]

Effect of Unforeseeable intervening event? (lightning strike after mugging)

9

Back 35

NOT guilty

Front 36

[Essential Elements - Concurrence]

Test for concurrence

9

Back 36

Must have mental state at the same time as the act

(Issue w/ larceny and burgary)

Front 37

[Against Person/Assault & Battery - Common Law]

Common law definition of battery, including mental state

10

Back 37

-Application of force
-Resulting in either injury or offensive touching

Mental state: General intent

Front 38

[Against Person/Assault & Battery - Common Law]

Common law definition of assault, including mental state

10

Back 38

TWO VERSIONS!!!

Version 1: Attempted battery (swing and miss)

Version 2:
-Intentional creation (more than words)
-Of reasonable fear
-Of imminent bodily harm

Mental state: SPECIFIC INTENT (wants to create fear/intimidation)

Front 39

[Against Person/Homicide - Year+Day Rule]

What is the year + day rule?

11

Back 39

At common law, Death of victim must occur w/i year + day

(MPC does NOT have this rule)

Front 40

[Against Person/Homicide - Common Law]

Common law murder definition, including mental state

11

Back 40

-Causing death of another
-With malice aforethought

MENTAL STATE can be one of FOUR possibilities:

-Intent to kill
-Intent to inflict great bodily harm (inferred from deadly weapon!)
-Extreme recklessness (malignant heart)
-Felony murder

Front 41

[Against Person/Homicide - Common Law]

What's the transferred intent rule?

12

Back 41

If D intends to harm one victim, but accidentally harms another, will be guilty of attempt to kill one, and intent will transfer to actual victim as well (only applies to completed harms)

Front 42

[Against Person/Homicide - Common Law]

Common law definition of voluntary manslaughter

13

Back 42

-Intentional killing of another
-In the heat of passion
-After adequate provocation
-Without time to cool off

Front 43

[Against Person/Homicide - Common Law]

Common law definition of INvoluntary manslaughter

13

Back 43

-Killing w/ criminal negligence, OR

-Killing during commission of a NON-felony

Front 44

[Against Person/Homicide - Common Law]

Name 3 of the 6 Limitations of Felony Murder

14

Back 44

-D must be guilty of the underlying felony
-Felony must be inheritly dangerous
-Felony must be separate from killing itself
-Actually during the felony or immediate flight
-Killing must be IN FURTHERANCE of felony
-Victim must not be co-felon

Front 45

[Against Person/Homicide - MPC]

6 limitations of felony murder under MPC

15

Back 45

Only felony murder if during commission of "BRAKES" crimes:

-Burglary
-Robbery
-Arson
-Kidnapping
-Escape
-Sexual Assault

Front 46

[Against Person/Homicide - MPC]

MPC definition of intentional manslaughter

15

Back 46

Similar to 'heat of passion' voluntary manslaughter under common law

-reasonable extreme emotional disturbance

Front 47

[Against Person/Homicide - MPC]

MPC definition of involuntary manslaughter

15

Back 47

Reckless killing (aware of risks and contentiously disregards of them)

Front 48

[Against Person/Confinement]

Definition of false imprisonment, with mental state

16

Back 48

-Confinement +
-W/o consent

MENTAL STATE: general intent

Front 49

[Against Person/Confinement]

Definition of kidnapping, with mental state

16

Back 49

-False imprisonment +
-Moving or concealing victim

MENTAL STATE: general intent

Front 50

[Against Person/Sex]

Definition of rape, with mental state

17

Back 50

-Sex
-W/o consent
Done by:
-Force
-Threat of force, OR
-During victim's unconsciousness

MENTAL STATE: general intent

Front 51

[Against Person/Sex]

Definition of statutory rape, with mental state

17

Back 51

-Sex
-W/ someone under age of consent

MENTAL STATE: strict liability

Front 52

[Against Property/Theft - Common Law]

General rule for mental state required for property crimes

18

Back 52

SPECIFIC INTENT!

Front 53

[Against Property/Theft - Common Law]

Definition of larceny, including mental state

18

Back 53

-W/o permission
-Taking (includes MOVING)
-Property OF ANOTHER (no right to legal possession)
-Intent to PERMANENTLY deprive

MENTAL STATE: specific intent to steal

Front 54

[Against Property/Theft - Common Law]

What is the erroneous takings rule?

18

Back 54

Taking under a claim of right (thought property was his)

Front 55

[Against Property/Theft - Common Law]

Effect of taking w/ intent to return, then later intent to keep

19

Back 55

Concurrance problem

"Continuing trespass" exception -- will be larceny at the time D decided to keep

Front 56

[Against Property/Theft - Common Law]

Definition of embezzlement, including mental state

19

Back 56

-Conversion of property
-Already in lawful possession

Mental state: specific intent to steal/defraud

Front 57

[Against Property/Theft - Common Law]

Definition of false pretenses, including mental state

20

Back 57

-Obtaining TITLE (permanent dominion)
-False statement about PAST or PRESENT event

MENTAL STATE: specific intent to defraud

Front 58

[Against Property/Theft - Common Law]

Definition of larceny by trick, including mental state

20

Back 58

-Obtaining something under the auspices of mere POSSESSION (lease, temporary -- ex: will take $ to another person)
-False statement about PAST or PRESENT event

MENTAL STATE: specific intent to defraud

Front 59

[Against Property/Theft - Common Law]

Definition of robbery, including mental state

21

Back 59

-Larceny
-from person OR PRESENCE
-By force or threat of IMMEDIATE injury (force must be enough to overcome resistance)

MENTAL STATE: specific intent to steal

Front 60

[Against Property/Theft - Common Law]

Definition of extortion, including mental state

21

Back 60

-Larceny
-with threat of FUTURE INJURY

MENTAL STATE: specific intent to steal

Front 61

[Against Property/Theft - Common Law]

Definition of black mail, including mental state

21

Back 61

-Larceny
-with threat of EMBARASSMENT

MENTAL STATE: specific intent to steal

Front 62

[Against Property/Theft - Misc]

Definition of receipt of stolen property, including mental state

22

Back 62

-Receiving possession
-Of stolen property

MENTAL STATE: with KNOWLEDGE that property was stolen

Front 63

[Against Property/Theft - Misc]

Definition of forgery, including mental state

22

Back 63

-Making/altering a writing
-So that it is false

MENTAL STATE: specific intent to defraud

NOTE: the mere act of making the writing is the crime -- don't have to give it to anyone

Front 64

[Against Property/Theft - Misc]

Definition of uttering, including mental state

22

Back 64

-offering as genuine
-forged instrument

MENTAL STATE: specific intent to defraud

Front 65

[Against Property/Theft - Misc]

Definition of malicious mischief, including mental state

22

Back 65

-destroying or damaging someone else's property

MENTAL STATE: malice

Front 66

[Against Property/Habitation - Burglary]

Definition of burglary, including mental state

23

Back 66

-Breaking (minimal force)
-Entering
-Home (where someone sleeps)
-Of another
-At night

MENTAL STATE: with INTENT TO COMMIT A FELONY INSIDE

Front 67

[Against Property/Habitation - Arson]

Definition of arson, including mental state

24

Back 67

-Burnging of a building (Scorching IS enough)

MENTAL STATE: Malice (MPC recklessness)

Front 68

[Accomplice Liability - Definitions]

What must person to do become an accomplice, including mental state

25

Back 68

ACT: - aid or encourage

MENTAL STATE: - intent crime be committed

Front 69

[Accomplice Liability - Scope]

Scope of accomplice liability

25

Back 69

Full vicarious liability for all crimes

-aided and encouraged, AND
-all crimes foreseeable

Front 70

[Accomplice Liability - Scope]

What people are NOT accomplices?

26

Back 70

-Mere presence (must actually help)
-Mere knowledge (must have intent)
-Members of protected class

Front 71

[Accomplice Liability - Scope]

How can an accomplice withdraw?

26

Back 71

Encourager: Just discourage

Aider: must neutralize assistance of prevent by calling cops

Front 72

[Accomplice Liability - Accessory after the fact]

What's the definition of an accessory after the fact, including mental state

27

Back 72

-Help felon
-With knowledge of past crime

MENTAL STATE: specific intent to help felon avoid arrest

Front 73

[Inchoate]

What are the 3 Inchoate crimes?

27

Back 73

-Solicitation
-Attempt
-Conspiracy

Front 74

[Inchoate - Solicitation]

Definition of solicitation, including mental state

27

Back 74

-Asking someone to commit a crime

MENTAL STATE: Specific intent that crime be done

NOTE: mere asking is enough!

Front 75

[Inchoate - Conspiracy]

Definition of conspiracy, including mental state

27

Back 75

-Agreement b/w 2 or more people to commit a crime
-Overt act (mere preparation is enough)

MENTAL STATE: Specific intent to accomplish objective (meeting of minds - TWO GUILTY MINDS)

NOTE: Crimes is the AGREEMENT

Front 76

[Inchoate - Conspiracy]

Rule for vicarious liability for co-conspirators

28

Back 76

Co-conspirators subject to vicarious liability if:

-acts in furtherance of conspiracy's objection
-acts were foreseeable

Front 77

[Inchoate - Attempt]

What two elements must exist for there to be an attempt

29

Back 77

An act + mental state

Front 78

[Inchoate - Attempt]

What act is required for attempt?

29

Back 78

And act in furtherance of a crime

Front 79

[Inchoate - Attempt]

What act in furtherance must there be under MPC and under common law?

29

Back 79

MPC: substantial step

Common law: dangerously close

Front 80

[Inchoate - Attempt]

What mental state is required for attempt?

30

Back 80

Specific intent to commit the crime

Front 81

[Inchoate - Doctrines: Withdrawal]

What effect does withdrawal have on Inchoate crimes?

32

Back 81

Common law:
-NONE -- b/c inchoate crimes are committed by the agreement/attempt/asking
-However, withdrawal with stop any new vicarious liability for co-conspirators

MPC:
-D must voluntarily and completely renounce
-Renouncement must b/c change of heart, not fear of getting caught

Front 82

[Inchoate - Doctrines: Merger]

What inchoate crimes are merged, and which aren't?

32

Back 82

Conspiracy - NOT merged

Attempt and solicitation - ARE merged

Front 83

[Defenses - Capacity]

What are the 3 capacity defenses?

34

Back 83

3 "I"s

-Insanity
-Intoxication
-Infancy

Front 84

[Defenses - Capacity: Insanity]

What is the first requirement for ANY insanity defense?

34

Back 84

D must have mental disease or defect

Front 85

[Defenses - Capacity: Insanity]

NAME the 4 different insanity tests (don't give definitions)

34

Back 85

-M'Naughten
-Irresistible impulse
-Durham
-MPC

Front 86

[Defenses - Capacity: Insanity]

M'Naughten test

34

Back 86

-Doesn't know right from wrong

Front 87

[Defenses - Capacity: Insanity]

Irresistible impulse test

34

Back 87

Impuse can't resist

Front 88

[Defenses - Capacity: Insanity]

Durham test

34

Back 88

But for illness, would not have done

Front 89

[Defenses - Capacity: Insanity]

MPC test

34

Back 89

M'Naughten OR Irresistible impulse:

-Doesn't know right from wrong, OR
-Impulse can't resist

Front 90

[Defenses - Capacity: Insanity]

Distinguish insanity from incompetence

34

Back 90

Insanity: insane at time of crime

Incompetence: insane at time of trial (result if trial is postponed)

Front 91

[Defenses - Capacity: Intoxication]

What effect of INvoluntary intox?

35

Back 91

-Defense to ANY crime
-Treat like insanity

Front 92

[Defenses - Capacity: Intoxication]

What effect of voluntary intox?

35

Back 92

Only negates specific intent crimes (property crimes)

NOT a defense to arson or murder

Front 93

[Defenses - Capacity: Infancy]

What are the age levels for infancy under the common law and under the MPC?

35

Back 93

Common Law:
- <7 = no prosecution
- 7-13 rebuttable presumption against prosecution
- 14 + up: prosecution allowed

MPC:
- <16 no criminal prosecution
- 16 or 17: juvenile court only

Front 94

[Defenses - Other]

What are the other 3 defenses?

36

Back 94

-Self-defense
-Duress
-Entrapment

Front 95

[Defenses - Other: Self-defense]

Rule for allowed to use NON-deadly force

36

Back 95

-Reasonably necessary
-Protect against immediate use
-against unlawful force

Front 96

[Defenses - Other: Self-defense]

Rule for allowed to use deadly force

36

Back 96

-Reasonably necessary
-To protect against imminent threat of death or serious injury
-Not the initial aggressor

Front 97

[Defenses - Other: Self-defense]

What's the exception to the not initial aggressor requirement?

36

Back 97

-Initial aggressor withdraws and communicates withdrawal

OR

-The victim escalates a non-deadly fight into a deadly fight

Front 98

[Defenses - Other: Self-defense]

What is the common law and majority rule for retreat?

37

Back 98

Majoirty rule: Retreat is NOT required

Common law: Retreat required unless:
-D cannot retreat in complete safety
-D is in his home (castle doctrine)
-D is defending against any felony risking human life

Front 99

[Defenses - Other: Self-defense]

What if D is mistaken about need for self-defense?

37

Back 99

Reasonable mistake - can use self-defense

Unreasonable mistake at common law = murder

Unreasonable mistake under MPC = "imperfect self-defense" = voluntary manslaughter

Front 100

[Defenses - Other: Self-defense]

What level or force may be used to resist an UNLAWFUL arrest under MPC, and under common law?

38

Back 100

Common law: Non-deadly force

MPC rule: NO force, unless cop is using excessive force

Front 101

[Defenses - Other: Self-defense]

What level of force may a private person use to prevent a crime?

38

Back 101

Can use NONDEADLY to prevent ANY crime

Can use DEADLY to prevent a felony risking human life

Front 102

[Defenses - Other: Self-defense]

What level of force may a private person use to apprehend a criminal?

--

Back 102

Can use NONDEADLY if crime was ACTUALLY committed + reasonable grounds

Can use DEADLY if person killed was ACTUALLY GUILTY

Front 103

[Defenses - Other: Duress]

What are the elements of duress (and exception)

38

Back 103

D was forced to commit a crime under threat of imminent death or serious bodily harm

EXCEPTION: Duress is NOT a defense to homicide

Front 104

[Defenses - Other: Entrapment]

What are the elements of entrapment

38

Back 104

-Plan originated w/ Gov't (easy to prove)
-D was not predisposed (extremely hard to prove)

NOTE: Under PA law the focus is ONLY on conduct of police - NOT if D was predisposed

PA test is to objectively look at cops conduct to see if one who is INNOCENTLY disposed would have done it