South Dakota 2011 Criminal Law Mbe

Front 1

Jurisdiction

Back 1

State of the
1. Conduct
2. Result

Front 2

Merger of Crimes

Back 2

Generally: no merger

EXCEPTIONS:
1. Solicitation
2. Attempt

Front 3

The Act

Back 3

1. ACT
-- voluntary bodily movement
-- can't be involuntary like seizure or unconscious

Front 4

Legal Duty to Rescue (5 circumstances)

Back 4

1. Statute (taxes)

2. Contract (lifeguard)

3. Relationship b/w Parties (parent/child)

4. Voluntary Assumption, must adequately perform it

5. Where your conduct created the peril

Front 5

Specific Intent Crimes

Back 5

1. Solicitation

2. Conspiracy

3. Attempt

4. First Degree Murder
-- "murder" by itself is always a malice crime

5. Assault

6. Larceny

7. Embezzlement

8. False Pretenses

9. Robbery

10. Burglary

11. Forgery

Front 6

Malice Crimes

Back 6

Two Types:
1. Murder
2. Arson

Front 7

General Intent Crimes

Back 7

All crimes not mentioned as specific intent or malice are included here

Exception: strict liability crimes (rape, battery)

Front 8

Transferred Intent Doctrine

Back 8

Intent to commit one crime transferred to other crimes and other persons

X intends to shoot A, but misses and shoots B.

ALWAYS 2 crimes in Transferred Intent HYPOS
-- Above, X is guilty of murdering B, and attempting to murder A
-- Always 2 victims

Front 9

Strict Liability--No Intent Crimes

Back 9

Any defense that negates intention in other crimes is INAPPLICABLE to these crimes

If the crime is administrative, regulatory, or in the area of morality AND you don't see adverbs (knowingly, wilfully, intentionally) then it is S/L

Front 10

Mental States and the MPC

Back 10

1. Purposely: when it is the conscious objective to engage in certain conduct or cause a certain result

2. KNOWINGLY: when actor is aware that conduct will very likely cause the result

3. RECKLESSLY: when actor consciously disregards a substantial or unjustifiable risk

4. NEGLIGENTLY: when actor fails to be aware of a substantial and unjustifiable risk

Front 11

Accomplice Liability

Back 11

1. Accomplices AID, ADVISE, or ENCOURAGE the principa in commission of crime

2. Accomplices MUST have the requisite intent that the crime be committed

3. Accomplices are liable for THE CRIME ITSELF and ALL OTHER FORESEEABLE CRIMES

4. MUST be an act of participation

Front 12

Withdrawal of Accomplice

Back 12

1. Encouraged the Crime: must repudiate the encouragement

2. Aided by Assisting Principal: must do anything possible to NEUTRALIZE the assistanc

3. Alternative: CALL THE POLICE

Front 13

Inchoate means...

Back 13

incomplete.

3 Inchoate Offenses: solicitation, conspiracy, attempt

Front 14

SOLICITATION

Back 14

RULE: Solicitation is asking someone to commit the crime
-- Ends and is complete when you ask

COMMON LAW: not necessary that the person agrees to commit the crime
-- AGREEMENT FORMS CONSPIRACY and MERGES

Factual Impossibility is NOT a defense

Front 15

CONSPIRACY

Back 15

1. RULE:
-- Conspiracy is an agreement with intent to agree and an intent to pursue an unlawful objective

2. DOES NOT MERGE

3. LIABILITY FOR CO-CONSPIRATORS:
-- Each liable for all crimes if committed
a. in furtherance of conspiracy, AND
b. foreseeable

4. AGREEMENT REQUIREMENT
-- Can be implied from conduct
-- BUT if one is feigning agreement, the other cannot be guilty of conspiracy

5. OVERT ACT REQUIREMENT
-- Majority: must be agreement AND OVERT ACT in furtherance
-- Minority: agreement is enough
-- If an act is required: any little act, even preparation, counts

6. FACTUAL IMPOSSIBILITY IS NOT A DEFENSE

7. WITHDRAWAL
-- Not a defense to liability for conspiracy
-- Can cut off liability from other foreseeable acts in furtherance by co-conspirators

8. TWO GUILTY PARTIES AT COMMON LAW
-- if one is acquitted, the other can't be guilty
-- Under MPC: unilateral OK

Front 16

ATTEMPT

Back 16

1. RULE:
a. specific intent, and
b. overt act in furtherance

2. Overt act must be a SUBSTANTIAL STEP; mere preparation not enough

LEGAL IMPOSSIBILITY = DEFENSE
FACTUAL IMPOSSIBILITY = NO DEFENSE

Front 17

INSANITY DEFENSES

Back 17

1. M'Naughten: At the time of the conduct, D lacked the ability TO KNOW THE WRONGFULLNESS of his actions or UNDERSTAND THE NATURE AND QUALITY of his actions

2. Irresistable Impuls: D lacked the CAPACITY FOR SELF CONTROL AND FREE CHOICE

3. Durham Rule: D's conduct WAS A PRODUCT OF MENTAL ILLNESS

4. MPC: D lacked ABILITY TO CONFORM CONDUCT TO LAW

Front 18

INTOXICATION DEFENSES

Back 18

VOLUNTARY: defense to ONLY specific intent crimes
-- Addicts are always voluntarily intoxicated

INVOLUNTARY: unknowingly becoming intoxicated or intoxication due to duress
-- Defense to ALL CRIMES and is a form of INSANITY

Front 19

INFANCY DEFENSES

Back 19

1. Under age 7: no criminal liability

2. Under age 14: rebuttable presumption of no criminal liability

Front 20

SELF DEFENSE

Back 20

NON-DEADLY FORCE:
-- May be used any time victim REASONABLY BELIEVES that force is about to be used on him

DEADLY FORCE
-- Majority: May be used when victim REASONABLY BELIEVES it is about to be used on him
-- Minoity: victim must RETREAT if possible, unless
a. your home
b. rape or robbery victim
c. police have no duty to retreat

ORIGINAL AGGRESSOR AND SELF DEFENSE
-- To get back the ability to claim self defense, original aggressor must:
a. withdrawal, AND
b. communicate the withdrawal
Exception: if the victim of the initial aggression suddenly escalates a minor fight into one involving deadly force leaving no opporunity to w/d

DEFENSE OF OTHERS
-- Can be raised if actor REASONABLY BELIEVES the person assisted would have had the right to use the force in his own defense
-- Majorty: need NOT be a special relationship b/w defender and defended

Front 21

DEFENSE OF A DWELLING

Back 21

Deadly force may NEVER be used to protect property, including the home

Front 22

DURESS DEFENSE

Back 22

Rule: Duress is a defense if
a. person acts under threat of imminent infliction of death or great bodily harm
b. that belief is reasonable
-- Threats or harm to third person are sufficient

DURESS IS A DEFENSE TO ALL CRIMES EXCEPT HOMICIDE

Front 23

NECESSITY DEFENSE

Back 23

Rule: No crime if the conduct is a result of natural forces and the D reasonably believes his conduct was necessary to avoid great societal harm (flood, tornady)

Necessity: natural forces
Duress: human threat

Front 24

MISTAKE OF FACT DEFENSE

Back 24

Rule: only a defense when mistake negates INTENT
-- Mistake must be REASONABLE to be a defense of malice or general intent crime
-- ALWAYS defense to specific intent crime (on bar exam)
-- NEVER defense to S/L crimes

Front 25

CONSENT DEFENSE

Back 25

Consent of the victim is generally NOT a defense

Front 26

ENTRAPMENT DEFENSE

Back 26

Rule:
1. criminal design must have originated with Police, AND
2. D must NOT have been predisposed to commit the crime

Front 27

BATTERY

Back 27

RULE: unlawful application of force to the person resulting in bodily injury or offensive touching

-- Criminal negligence is enough; need not be intentional

-- Force need not be applied directly

-- GENERAL INTENT CRIME

Front 28

ASSAULT

Back 28

Rule: Attempt to commit a battery
-- intentional creation of reasonable apprehension of imminent bodily harm
-- Actual Touching = battery
-- No touching = assault

Front 29

AGGRAVATD ASSAULT

Back 29

Assault plus one of
a. use of deadly or dangerous weapon
b. intent to rape, mame, or murder

Front 30

HOMICIDE, GENERALLY

Back 30

DEFINITION:
-- unlawful killing of another human being with MALICE AFORETHOUGHT

4 STATES OF MIND
a. Intent to kill
b. Intent to Inflict Great Bodily Harm
c. Reckless Indifference to Unjustifiably High Risk to Human Life (depraved heart)
d. Intent to Commit a Felony (felony murder)

CAUSE-IN-FACT: D's conduct must be the cause in fact (but for) the death

PROXIMATE CAUSE: D is responsible for all results that occur as a NATURAL AND PROBABLE CONSEQUENCE OF HIS CONDUCT, even if he didn't anticipate the exact outcome

Front 31

FIRTS DEGREE MURDER

Back 31

1. PREMEDITATED KILLING
-- Victim must be human
-- D must have acted with INTENT or KNOWLEDGE that conduct would cause death

2. FELONY MURDER
-- Any killing committed during felony (even accidents)
--DEFENSES
a. Defense to underlying felony is defense to the felony murder
b. The felony must be a crime other than the murder
c. Deaths must be foreseeable
d. Deaths caused while fleeing count, until D reaches temporary safety
e. D is NOT liable for death of a co-felon

3. HOMICIDE OF A POLICE OFFICER
-- D must know the V is law enforcement
-- Officer must be acting in line of duty

Front 32

SECOND DEGREE MURDER

Back 32

1. DEPRAVED HEART
-- killing done with reckless indifference or unjustifiably high risk to human life

2. ALL OTHER MURDERS NOT CLASSIFIED AS FIRST DEGREE

Front 33

MANSLAUGHTER

Back 33

VOLUNTARY MANSLAUGHTER
1. Killing in the heat of passion resulting from an adequate provocaton
2. Provocation must arouns sudden/intense passion in ordinary person causing loss of self-control
3. No time to cool off
4. D in fact did not cool off

INVOLUNTARY MANSLAUGHTER
1. Killing of CRIMINAL NEGLIGENCE
2. Misdemeanor Manslaughter: killing someone while committing a misdemeanor or an "unenumerated felony" (i.e. felony but not listed as felony-murder type of offense)

Front 34

FALSE IMPRISONMENT

Back 34

Rule: Unlawful confinement of a person without valid consent
-- If an alternative route is available, confinement element will not be met
-- Consent is a defense

Front 35

KIDNAPPING

Back 35

Rule: confinement of a person that involves ASPORTATION or CONCEALMENT of the V in a secret place

Front 36

RAPE

Back 36

For the bar, only need to know: slightest penetration completes the crime

Front 37

STATUTORY RAPE

Back 37

S/L crime, so consent and mistake of fact are NOT good defenses

Front 38

LARCENY

Back 38

AT COMMON LAW, REQUIRES:
a. Wrongful Taking
b. Carrying Away (Asportation)
c. Property of Another
d. by Trespass (without permission)
e. with Intent to Permanently Deprive

OTHER COMMON LAW NOTES:
-- SLIGHTEST MOVEMENT is enough
-- Intent to deprive owner permanently must exist AT THE TIME of the taking
-- If you believe the property is yours = NOT common law larceny

Front 39

EMBEZZLEMENT

Back 39

Rule: Fraudulent conversion of property of another

NOTES FOR THE MBE
-- Embezzler always has lawful possession at first, followed by an illegal conversion
-- On MBE: trustee is often embezzler
-- Don't have to carry it away
-- Don't have to receive the benefit

Front 40

FALSE PRETENSES

Back 40

Rule: D persuades owner of property to convey TITLE by false pretenses (false representation)

NOTES FOR THE MBE:
-- Conveyance of TITLE is the focus
-- The false representation could be present or past
-- A false promise to do something IN THE FUTURE cannot ground liability for false pretenses

DISTINGUISH:
-- Larceny by Trick: if only POSSESSION of the property is obtained, the offense is larceny by trick
-- False Pretenses requires TITLE

Front 41

ROBBERY

Back 41

Rule:
a. taking of personal property from another's presence
b. by force or threat
c. with intent to deprive permanently

NOTES FOR MBE:
-- Presence requirement is VERY broadly drawn, includes someone tied up in another room/building
-- Ripping a necklace or watch off of the other person is enough
-- The threat ("$$ or your life") must be a threat of IMMINENT HARM
-- Look out for the SIMULATED DEADLY WEAPON (hand in paper bag, note to teller that you have a bomb)

Front 42

EXTORTION

Back 42

Rule: knowingly seeking to obtain property or services by means of a future threat

DIFFERENCE B/W EXTORTION AND ROBBERY:
-- Don't have to take anything from other's presence to be extortion
-- Future harm for extortion, imminent harm for robbery

Front 43

BURGLARY

Back 43

Rule
a. breaking and entering
b. of dwelling of another
c. at night
d. with intent to commit a felony therein

NOTES FOR THE MBE:
-- "Breaking": can be actual (force) or constructive (fraud/threats)
-- Actual Breaking: have to at least push open an interior door, can't be wide open door or window
-- Constructive Breaking: fraud or threat
-- "Entering": occurs when any part of the body crosses into the house
-- "Dwelling house of another": cannot be a barn or commercial structure
-- "At night": common law requirement
-- "intent to commit felony therein": must exist at the TIME OF THE B&E

Front 44

ARSON

Back 44

Rule: Malicious burning of the dwelling of another
-- Malice: no specific intent requied, can be RECKLESS DISREGARD of obvious risk that it will burn

NOTES FOR THE MBE:
-- Only applies to burning, not smoke damage
-- At common law, couldn't be a barn or business, had to be dwelling
-- NOTE: the MBE will often assume that the jurisdiction's arson law applies to structures other than dwellings