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97 Cards in this Set

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Crimes punishable by Death or Imprisonment EXCEEDING one year.
Crimes punishable by imprisonment of One year or Less, or punishable only by fine.
What are the Elements of a Crime?
1) Actus Reus: (Guilty Act) - A physical act or unlawful omission by the Defendant.

2) Mens Rea: (Guilty Mind) - The state of mind or intent of the Defendant at the time of his act.

3) Concurrence: The physical act and mental state existed at the same time.

4) Harmful Result & Causation: A harmful result caused (both actually and proximately by D's act.
What is required to constitute the requirement of a "physical act?"
Act = Bodily Movement

Act must be Voluntary.

Not an act if:
Reflex or Convulsion
Act performed while unconscious or asleep

*Unless the defendant knew they may become unconscious, fall asleep, or have a seizure.
When can an Omission be an "Act?"
3 Requirements:

1) Legal duty to act created by:
* Statute
* Contract
* Relationship
* Assumption of Care
* Creation of Peril
2) Knowledge of facts giving rise to a duty.

(3) Reasonably possible to perform the act

Ex: Parent who can't swim is not under a duty to save their drowning child. (Unless they threw them in the pool as a punishment.)
Mental State:

Specific Intent
The definition of the crime requires the act be with a specific intent or objective.

Mental State:

Malice :(
Applies to common-law Murder & Arson

* Created to remove the ability of the Defendant to rely on specific intent defenses.

Prosecution needs only show:
Defendant recklessly disregarded an obvious or high risk that particular harmful result would occur.
Mental State:

General Intent
Generally all crimes require "general intent."

General Intent = an awareness of all the factors constituting the crime.

**Motive is not the same as intent.
**Motive is immaterial

***Jury CAN infer general intent because the defendant performed the Act.
Mental State:

Strict Liability
**Does not require awareness of all factors required to commit the crime.

* Certain defenses such as mistake of fact are not available in specific intent crimes.

Ex: Bigamy
Mental State:

MPC Analysis of Fault
* Eliminates common law Specific Intent / General Intent distinction.

Four MPC categories of Mental State:

1) Purposely - conscious object to engage
2) Knowingly - aware conduct is of a certain nature or that certain circumstances exist.
3) Recklessly - consciously disregards a substantial and unjustifiable risk which is a gross deviation from the standard of care.
4) Negligence - fails to be aware of a substantial and unjustifiable risk, which is a substantial deviation from the standard of care.
What are the Inchoate Crimes (Preparation Crimes)?
1) Solicitation

2) Conspiracy

3) Attempt

* committed prior to & in preparation for what may be a more serious offense.

1) Inciting, counseling, advising, inducing, urging, or commanding

2) another

3) to commit a felony

4) with the Specific Intent that person commit the crime.

1) 2 or more persons

2) Intent to enter agreement

3) Intent to achieve the objective of the agreement
- An act which, although done with the intent of committing the crime, falls short of completing the crime.

What is BATTERY?
Unlawful application of force to another resulting in bodily injury or offensive touching.
What is ASSAULT?

1) An attempted battery


2) intent to place another in imminent apprehension of harmful bodily contact
What are the common law categories of Homicide?
1) Murder

2) Voluntary Manslaughter

3) Involuntary Manslaughter
What are the elements of common law Murder?
1) The unlawful killing

2) with Malice Aforethought
* intent to kill
* intent to inflict great bodily injury
* reclkess indifference to an unjustifiably high risk to human life (depraved heart).
* intent to commit a felony (felony murder).
What are the elements of common law Voluntary Manslaughter?
A killing in the heat of passion.
(murder with adequate provocation).

Provocation = Objective Standard
* lose self control
* Timing / Cooling
What are the two types of common law Involuntary Manslaughter?
Involuntary Manslaughter by:

Criminal Negligence: death caused by criminal negligence (requires more than civil neg.)

"Unlawful Act" Manslaughter: a killing caused by an unlawful act
Two types: Misdemeanor manslaughter - death in the course of the commission of a misdemeanor.

Felony: a killing caused during the commission of a felony that does not qualify as a felony murder case.
What determines the degree of Murder when defined by statute?
In Most States:
* there are two degrees of muddier, 1st and 2nd degree.

All murders are SECOND DEGREE unless the prosecution proves any of the following, which would make it 1st degree.

1) Deliberate & Premeditated

2) First degree felony murder - (arson, robbery, burglary, rape, kidnapping, mayhem) BARRKM

3) Some statutes make it 1st degree based on how the killing was performed:
Lying in wait, poison, torture etc...
What is Felony Murder?
A killing, even an accidental one, committed during the course of a felony is murder.
What gives a State jurisdiction over a crime?
Generally a state has jurisdiction over a crime if:

1) any act constituting an element of the offense was committed in the state.

2) an act outside the state caused a result in the state.

i.e. if either the Conduct or the Result happened in the state.
Hypo: Jay, standing in California, shoots a high-powered rifle across state lines into Arizona and kills someone.

Which state has jurisdiction over the crime?
Answer: Both States

California because the conduct happened there.

Arizona because the result happened there.
What is Merger?
Merger is when one crime "merges" into another, so a person cannot be charged with both.
When does MERGER apply?
Generally, there is no merger in American Law.


Solicitation and Attempt do merge into the substantive offense.

Note: Conspiracy does not merge, so you can be convicted of conspiring to do something and doing it.
Hypo: You are standing waiting for a bus when someone pushes you into a third person, who then falls in format of the bus, is run over and killed. Would you be held criminally liable?

Your movement was not voluntary and therefore cannot satisfy the ACT requirement.
You see a man flailing the the lake, as if he is about to drown. You tell everyone that you'll save the person, but when you swim out, you see it's your worst enemy and decide to let them drown.

Do you have any criminal liability for not rescuing the man?

Although you generally would have no duty to rescue someone (you could have stayed on the shore and laughed), you will be liable for your failure to act if you assume a duty of care and fail to adequately perform it.
For the Bar Exam, what is important to know about Specific Intent crimes?
Specific Intent crimes qualify for additional defenses:

1) Voluntary Intoxication

2) Unreasonable mistake of fact
What are the Specific Intent crimes?
First Degree Murder
False pretenses
On the Bar Exam, what are the Malice Crimes and what does a malice crime require?

Malice crimes require a Reckless disregard of a high risk harm will occur.

I want to kill a person who is talking in the movie theater. I pull out a gun and fire it at the person but miss and hit someone else.

Am I guilty of murder?

The intent to kill the person who was talking is transferred to the person who I actually shot, so the Mental State is present for the person who was killed even though I intended to kill the person who was talking. (TRANSFERRED INTENT)
What is always present in any case where Transferred intent is used?
If transferred intent is used, the person will always also be guilty of attempt.

You are guilty of attempted murder of the person you missed with your bullet and murder of the person you actually hit.
What is important about Strict Liability crimes on the Bar Exam?
No defense that negates intention will be a defense to a strict liability crime because they don't require any intent.

What are the MPC mental states?
Purposely: One acts when it is his conscious object to negate in certain conduct or cause a certain result.

Knowingly: One acts aware that is conduct will very likely cause the result.

Recklessly: One consciously disregards a substantial or unjustifiable risk.

Negligently: One acts, aware of a substantial and unjustifiable risk.
What is the definition of an accomplice?
One who:
1) aids
2) advises, or
3) encourages
...the principal in the commission of the crime charged.

For what are accomplices liable?
1) The crime itself

2) ALL other FORESEEABLE crimes
Neuman is standing outside a bank. A van screeches to a halt and five men in masks run into the bank. Neuman pulls out a bag of popcorn and watches the masked men as they shoot guns in the air and rob the bank. Neuman laughs as he watches and never calls the police.

Is Neuman liable as an accomplice?
Answer: NO.

There has to be some sort of active participation.
What are the Inchoate offenses?


What is Solicitation?
Asking someone to commit a crime.

Solicitation is complete when you ask, the crime doesn't have to be committed.

If the person you solicit agrees to commit the crime, you have a conspiracy and the solicitation merges and the only crime left is conspiracy.
What is conspiracy?
Conspiracy is an agreement:

- with an intent to agree; and
- an intent to pursue an unlawful objective

***The majority rule is that there must be some Overt Act in furtherance of the conspiracy.***
For what crimes are co-conspirators liable for?
Co-conspirators are liable for ALL the crimes of conspirators if those crimes were committed in furtherance of a conspiracy and were foreseeable.
Is factual impossibility a defense to conspiracy?
Can a conspirator Withdrawal from the conspiracy, and if so what is the result?

If a conspirator withdrawals from the conspiracy he is still liable for the conspiracy, because the crime was completed when the agreement was made, but he will no longer be liable for any co-conspirator's crimes committed after the withdrawal.
What is different about conspiracy at common law and under the UPC?
Common law requires two guilty parties.
i.e. one criminal and a cop will not do.

Under the UPC there can be a unilateral conspiracy.
What is required for Attempt?
Specific intent to commit a crime.

An overt act in furtherance of the crime.
- the overt act must be a substantial step.

i.e. Attempt occurs when someone actually tries to complete a crime but fails.
Are there any defenses to Attempt?

Legal impossibility is a defense to attempt. (you thought it was illegal but it's not).

Factual impossibility Is NOT a defense. (you wanted to rob someone but they have no money).
What are the tests for insanity?
M'Naghten Rule

Irresistible Impulse

Durham Rule

Model Penal Code
What is the M'Naghten rule for insanity?
At the time of his conduct, Defendant lacked the ability to know the wrongfulness of his actions or understand the nature and quality of his actions.
What is the Irresistible Impulse test for Insanity?
Defendant lacked the capacity for self control and free choice.
What is the Durham Rule for Insantity?
The Defendant's conduct was a product of mental illness.
What is the MPC approach to insanity?
Defendant lacked the ability to conform his conduct to the requirements of the law.
When is Volutary Intoxicatin a defense to a crime (on the Bar Exam)?
ONLY for Specific Intent crimes.
After drinking heavily, Barney breaks into Homer's house to steal Homer's TV. Homer sees this and rushes toward Barney. Barney then punches Homer, knocking him out. Barney takes Homer's TV, gets in his car, speeds away, and is pulled over for speeding a few blocks away.

What will Barney be convicted of?
Battery (a general intent crime), for hitting Homer.

Speeding (a strict liability crime)

...but not Burglary, because burglary is a specific intent crime. Burglary requires a specific intent to commit a felony in the person's house. Voluntary intoxication is a defense to a specific intent crime, so Barney can use it as a defense to the mental state required.
- what do you need to know for the bar exam?
Under age 7 -- no criminal liability

Under age 14 -- rebuttable presumption of no criminal liability
When may Non-Deadly Self Defense be used?
A victim may use non-deadly self-defense any time the victim reasonably believes that force is about to be used on him.
When may Deadly force be used in Self-Defense?
Deadly force may be used in self-defense any time the victim reasonably believes that deadly force is going to be used on him.

Majority (no duty to retreat)

Minority (duty to retreat)
- No duty to retreat in minority jurisdiction if:
- In your home
- If you are the victim of Rape of Robbery
- If you are a police officer
When may a defendant use "defense of others" as a defense?
If he reasonably believed the person assisted would have had the right to use the force in his/her own defense.
When may deadly force be used in defense of you property?
What crimes will Duress be a defense to?
All crimes except homicide.
What is the defense of Necessity?
Conduct that would otherwise be criminal is justifiable if, as a result of pressure from NATURAL FORCES, the defendant reasonably believes that his conduct was necessary to afford a greater societal harm.

ex: flood, hurricane, fire

**Different from duress because duress is pressure from a person and necessity is pressure from natural forces**
Under what circumstances will Mistake Of Fact be a defense?
Only when the mistake negates intention.

- Must be a reasonable mistake for malice or general intent crimes.

- ANY mistake, no matter how unreasonable will be a defense to specific intent crimes.

- Mistake is NEVER a defense to strict liability crimes.
When is the conduct of a police officer entrapment?
If the criminal design originated with law enforcement officers, and

the defendant was not predisposed to commit the crime.
What is the crime of Battery?
Unlawful application of force to a person resulting in either:

1) Bodily Injury

2) Offensive Touching
What mental state is required for Battery?
Battery is a General Intent crime.
What are the two ways to commit Assault?
1) An attempted Battery

2) The intentional creation -- other than by mere words -- of a reasonable apprehension of imminent bodily harm.
What is Aggravated Assault?
Assault + either:
1) Use of a deadly or dangerous weapon; or
2) the intent to Rape, Maim, or Murder
When you see "murder" on the bar exam, what type of murder is it?
Unless it says otherwise, "murder" on the bar exam means common law or 2nd degree murder.
What is the definition of Murder?
The unlawful killing of another human being with malice aforethought.
When does malice aforethought exist for Murder?
If a person has:

1) Intent to Kill
2) Intent to inflict great bodily harm
3) A reckless indifference to an unjustifiably high risk to human life
4) Intent to commit a felony
What are the causation requirements for Homicide?
The acts of the defendant must be the cause in fact and the proximate cause of the victim's death.

Cause in Fact: But for the defendant's conduct the death would not have occured

Proximate Cause: The result of the defendant's conduct (the death) was a natural and probable consequence of the defendant's actions, even if he did not anticipate the exact manner in which it would occur.
What is First Degree Murder?
(Premeditated Murder)

The victim must be both Human and Dead.

The defendant must have acted with intent or knowledge that his conduct would cause death.
What is Felony Murder?
Any killing - even an accidental killing - committed during the course of a felony.

**If the Defendant has a defense to the underlying felony, then he has a defense to felony murder.

Brad and Angie hold up a convenience store. Angie is drunk. During the hold up, Brad shoots and kills the convenience store owner. Is Angie guilty of felony murder?

Angie has a defense to the underlying felony.
Robbery is a specific intent crime, and intoxication, even if voluntary is a defense to a specific intent crime.

Felony Murder: Other stuff
The felony committed must be a felony other than the killing itself.

The deaths must be foreseeable.

Deaths caused while fleeing from a felony are murders, BUT once the defendant has reached a point of temporary safety, deaths caused after are not felony murders.

Deaths of a co-felon, caused by resistance of the victim or the police are not felony murders.

Simon and Paula go in to rob a convenience store with guns drawn. The store owner shoots at simon and hits and kills a bystander. Would Simon and Paula be guilty of felony murder?

Robbery is a felony.

It is foreseeable that a shop owner would shoot in an effort to protect himself and accidentally hit someone else, so the death is foreseeable.

Spencer and Heidi hold up a convenience store with guns drawn. The store owner pulls out a gun and shoots and kills Spencer. Is Heidi guilty of felony murder?
What is required for Homicide of a Police officer to constitute 1st degree murder?
1) The defendant must know the victim is a law enforcement officer; and

2) The victim must be acting in the line of duty.
What constitutes 2nd Degree murder?
1) Depraved Heart murder
- a killing done with reckless indifference to an unjustifiably high risk to human life

2) Murders that are not classified as first-degree murders (not done premeditated or felony murder).
What is Voluntary Manslaughter?
Killing in the heat of passion resulting from adequate provocation.

Provocation must be one that would arouse sudden and intense passion in the mind of an ordinary person such to cause him to lose control.

Must not have been sufficient time to cool off; and

Defendant must not have in fact cooled off between provocation and killing.
What is Involuntary Manslaugter?
A killing of Criminal Negligence.


Misdemeanor manslaughter - killing someone while committing a misdemeanor or an unenumerated felony.
What is False Imprisonment?
Unlawful confinement of a person without his valid consent.

**Must not be a known route of escape or there is no confinement.**

**Consent to the confinement precludes it from being false imprisonment.**
What is Kidnapping?
Confining another person that involves movement of the person or confinement of the victim in a secret place.
What do you need to know about Rape for the MBE?
The slightest penetration is enough to complete the crime of rape.
What is Statutory Rape?
Statutory Rape is a strict liability crime with a person under the statutory age of consent.

Consent of the victim is no defense.

Mistake of fact is no defense.
What are the Property Crimes?
False Pretenses

Burglary (crime against Habitation)
Arson (crime against Habitation)
What is Larceny?
1) wrongful taking, and
2) carrying away (asportation) of
3) property of another
4) by trespass (without permission)
5) with intent to permanently deprive
For common law Larceny:

How much movement is needed to qualify as a "taking away" or asportation?
On the bar exam, the slightest movement is enough.
For common law Larceny:

When must the intent to deprive exist?
The intent to deprive must exist at the time of the taking or it is not common law larceny.

Taking property in the belief that it is yours, or that you have some right to it, is not common law larceny.
What is Embezzlement?
The Fraudulent Conversion of the Property of Another


- The embezzler always has Lawful Possession followed by an illegal conversion.
- A trustee is often the MBE embezzler
- You don't have to "carry away" to be an embezzler
- The embezzler doesn't have to get the benefit (he could give it to charity)
What is False Pretenses?
The defendant persuades the owner of property to convey title by making false representations.

**Conveyance of Title is key**

**False representation can be about a past or present fact**

**A false promise to do something in the future is not false pretenses**

**If only possession is obtained, the crime is larceny by trick and not false pretenses.**
What is the difference between Larceny by Trick and False Pretenses?
Larceny by trick involves only receiving possession by false misrepresentations.

False Pretenses involves gaining TITLE by false misrepresentations
What is Robbery?
1) The taking of the personal property of another

2) by Force or Threat

3) with the intent to permanently deprive him of it.

**Threat must be of imminent harm, ripping a necklace off neck is enough for Force**
Carl is walking down the street with his hand in a paper bag. As Lenny approaches from the opposite direction, Carl stops Lenny and pushes the paper bag into Lenny's ribs. "I've got a gun in here. Give me all of your money or I'll shoot you." Carl grabs the money and is arrested two blocks later by a nearby police officer, who discovers that Carl did not have a gun in the paper sack, but was using his finger to poke Lenny in the ribs.

Is Carl guilty of armed robbery?

A simulated deadly weapon is enough.
What is Extortion?
Knowingly seeking to obtain property or services by means of a future threat.

**Different from robbery because threats are of future harm, not imminent harm**
**Don't have to take anything from the person or his presene to be extortion**
What is Burglary?
1) Breaking, and
2) Entering of
3) the Dwelling House
4) of Another
5) an Night
6) with the Specific Intent to commit a Felony therein.

**Breaking can be Actual (opening a door) or Constructive (by fraud or threat).**
**Entering can be any part of the body crossing into the house**
**Dwelling House means it can't be a business or barn**
**Intent to commit a felony must exist at the time of the breaking and entering**
(coming in to sleep and later deciding to steal is not Burglary)
What is Arson?
1) Malicious Burning of
2) the Dwelling
3) of Another

**Only burning, not smoke damage**
**Some MBE questions attempting to test issues such as malice will assume it applies to other buildings for that question**