Criminal Law For Mbe

Front 1

If the defendant obtains only _____________________ as a result of the intentional false statement,
the crime is “larceny by trick,” not false pretenses.

Back 1

custody (not title)

Hint: look for victim’s consent being given.

Front 2

4 essential elements of crimes are:

Back 2

actus reus
mens rea
causation
concurrence (requisite mental state at time act committed)

Front 3

3 inchoate offenses

Back 3

solicitation
conspiracy
attempt

Front 4

8 defenses

Back 4

Insanity
Voluntary Intoxication (only avail. for specific intent crimes)
Infancy
Mistake of Fact (only avail. for specific intent crimes)
Self Defense
Necessity
Duress
Entrapment

Front 5

A failure to act can be the basis for criminal liability, provided all of these 3 requirements are satisfied:

Back 5

(1) Duty to act (by statute, contractual, by relationship such as parent/child or spouse/spouse, by voluntary assumption of care, or creation of the parol).
(2) Knowledge of the facts giving rise to the duty (ie., you know kid is drowning).
(3) Ability to help (ex., mom can’t swim to save son from drowning).

Front 6

Name the 11 specific intent crimes.

Hint, 2 are crimes against the person, 6 are property crimes, 3 are inchoate crimes.

Back 6

Assault & First Degree Pre-Meditated Murder

Larceny

Embezzlement
False Pretenses
Robbery
Forgery
Burglary
Solicitation & Conspiracy & Attempt

Front 7

What are the 2 defenses that are available only for specific intent crimes:

Back 7

Voluntary Intoxication
Unreasonable mistake of fact.

Front 8

What does it mean to act with “Malice"

Back 8

Intentional act or reckless disregard of an obvious or known risk.

Front 9

What are 2 malice crimes?

Back 9

Murder and Arson

Front 10

What are general intent crimes?

Hint: There are 4, and they are all against the person.

Back 10

Battery
Forcible Rape
False Imprisonment
Kidnapping

Front 11

If one must act with specific intent, they must have had not just the desire to do the ACT but also the desire to . . .

Back 11

achieve the specific result.

Front 12

When the crime requires general intent, the D need only be _____________ of the factors constituting the crime; he need not intend a specific result.

Back 12

generally aware

Front 13

When the crime is a strict liability crime, when is liability triggered?

Back 13

The commission of the criminal act; no mental state is needed.

Front 14

What are the 4 MPC mental states?

Back 14

Purpose
Knowledge
Recklessness
Negligence

Front 15

For MPC, the defendant acts purposely when it is his ____________________________________________ to achieve a particular result.

Back 15

conscious desire

Front 16

For MPC knowledge, the defendant acts knowingly when he is _____________ of what he is doing. With respect to a result, the defendant acts knowingly when he is aware that it is ________________________________________ that his conduct will cause that result.

Back 16

aware

practically certain (even though not absolutely certain)

Front 17

For MPC Recklessness, the defendant acts recklessly when he is aware of a substantial and unjustifiable risk, and ____________________________________ that risk.

Back 17

is aware but consciously disregards

Front 18

For MPC negligence, the defendant acts negligently when he _______________________________________________________ of a substantial and unjustifiable risk.

Back 18

should have been aware

Front 19

A criminal D must be the but-for and proximate cause of the criminal result.

A defendant is a proximate cause if the bad result is a _____________ and ____________________________ consequence of the defendant’s conduct.

Back 19

natural and probable

Front 20

D will not be considered a proximate cause if an
_______________ ________________________ event causes the bad result.

Back 20

unforeseeable intervening

Front 21

Concurrence Principle: The defendant must have the required ___________________________ at the same time as he engages in the _____________________________________.

Back 21

mental state

culpable act

Front 22

Battery is the unlawful
1. application of ____________________ to another,
2. resulting in either
a) ___________________________________ or
b) an _________________________________.

Back 22

1. force

2. a) physical injury or b) offensive touching.

Front 23

Assault may be proven by an attempted battery (a swing and a miss) or by the intentional creation other than by mere words of a _____________ ______________ in the mind of the victim of ____________ bodily harm.

It requires ___________ intent.

Back 23

reasonable apprehension

imminent

specific

Front 24

Murder is the killing of a human being with malice aforethought. What are the 4 types of malice aforethought?

Back 24

(1) intent to kill
(2) intent to inflict serious bodily injury but victim ultimately dies
(3) intent to commit a dangerous felony (BARRK) and an unintentional killing results
(4) depraved heart (unintentional killing that results from D’s reckless conduct).

Front 25

Felony murder includes an unintentional killing that results from commission of a serious or inherently dangerous felony. What are the 4 felonies?

Hint: BARRK

Back 25

Burglary
Arson
Robbery
Rape
Kidnapping

Front 26

What is the agency theory of liability for felony murder?

Back 26

Felon is only responsible for the deaths that he causes or his accomplices cause.

Felon is NOT responsible for the deaths caused by the victim or police.

Front 27

A depraved heart killing is a subset of murder defined as the unintentional killing that results from D’s _____ ______ conduct, which is shown by an indifference to ____ _____

Back 27

Extremely Reckless.

Human life.

Front 28

What are the 3 types of manslaughter?

Back 28

(1) voluntary manslaughter

(2) involuntary manslaughter

(3) misdemeanor manslaughter (commission of misdemeanor assault or battery)

Front 29

Voluntary (intentional) killing is where the D acts w/ ____________ ______________.

Back 29

adequate provocation

Front 30

Involuntary manslaughter is an unintentional killing resulting from D’s __________ ____________ conduct.

Back 30

criminally negligent.
This is distinguished from depraved heart murder (a subset of murder) where the murder results from D’s reckless conduct.

Front 31

Person is privileged to use _________ ________ in self defense if person is threatened with bodily injury or harm.

Back 31

reasonable force

Front 32

Person is privileged to use _____ ______ in self defense if person is threatened with imminent serious bodily injury or death.

Back 32

deadly force

*This is an MBE favorite!

Front 33

For the insanity defense, what are the 3 requirements for the M’Naughton rule?

Note - the 3rd requirement can be satisfied by two options.

Back 33

(1) Disease of the mind
(2) Caused a defect of reason
(3) Which left the D at the time of his actions lacking the ability to either:
     (a) Know the wrongfulness of his actions; OR
     (b) Understand the nature and quality of his actions.

Front 34

If a defendant intends to harm one victim, but accidentally harms a different victim instead, the defendant’s intent _______ from the intended victim to the actual victim.

Back 34

transfers.

*MBE Favorite, most commonly tested for murder, but also applies to other crimes like battery and arson.

Front 35

In most jurisdictions, it is a defense to felony murder if the death was not ______________.

Back 35

Foreseeable.

Front 36

Under a proximate cause theory of felony murder (applicable in MOST states), if one of the co-felons
proximately causes the victim’s death, all of the other co-felons will be guilty of felony murder, even if the actual killing is committed by a _____________________________.

Back 36

third party (e.g., a bystander, a police officer).

Front 37

In some states, the agency theory of felony murder applies, which means the felony murder doctrine applies only if the killing is committed by one of the _______________.

Back 37

co-felons.

Front 38

The three 3 elements for voluntary manslaughter are:
(1) A killing committed ______________________________
(2) in the _________________________________________
(3) upon ______________________________________________.

Back 38

(1) intentionally
(2) heat of passion
(3) adequate provocation.

Front 39

3 examples of objectively adequate provocation at common law are:
(a) serious____________________or____________________
(b) presently witnessed_______________________

Back 39

(a) assault or battery
(b) adultery

Front 40

If a D catches his wife in bed with another man and immediately begins plotting the murder of the other man and murders the man a week later, will the husband have committed voluntary manslaughter?

Back 40

No - because he had time to cool off between the provocation and the killing.

Front 41

An unintentional killing during the commission of a crime to which felony murder does not apply is called involuntary manslaughter.

Under the common law, the D must have acted with _________ ________.

Under MPC (the modern trend), the D must have acted __________________.

Back 41

criminal negligence

recklessly.

CL standard is higher level than MPC.

Front 42

False imprisonment is the:

(1) The _______________________________
(2) _________________________ of a person
(3) without his or her___________________.

Back 42

unlawful
confinement
consent

Front 43

Kidnapping is the unlawful confinement of a person without his/her consent (the elements of false imprisonment) PLUS: either ____________ the victim or _____________ the victim in a secret place.

Back 43

Moving the victim
or
secluding the victim.

Front 44

Under the common law, statutory rape requires what kind of mental state?

Back 44

None! Its a strict liability offense.

Front 45

Under the MPC, what is a defense to statutory rape?

Back 45

A reasonable mistake of age.

Front 46

What are the 7 elements of Larceny?

Hint: Thieves Took Carmen’s Purse and Isaac’s Portfolio

Back 46

Trespassory (wrongful or unlawful)
Taking and
Carrying Away
Personal Property
of Another [who had lawful custody] with the
Intent to
Permanently retain the property.

Front 47

Embezzlement is the conversion of personal property of another by a person already in ________ ___________ of that property, with the intent to _________.

Back 47

lawful possession (more than mere custody - the person has authority to exercise some discretion over the property)

defraud

Front 48

What is the key difference between embezzlement and larceny?

Back 48

To constitute embezzlement, a D must have lawful possession of the property that he misappropriates.

Front 49

What does it mean to have “lawful possession?"

Back 49

Its more than mere custody - it requires the authority to exercise some discretion over the property.

Front 50

Larceny involves taking _________ of property.
Embezzlement involves misappropriating property in one’s ________ ___________.
False pretenses is obtaining _________ of property.

Back 50

Larceny: CUSTODY of property.
Embezzlement: LAWFUL POSSESSION of property.
False pretenses: TITLE or OWNERSHIP

Front 51

False pretense is obtaining title to personal property of another by an ___________ __________ __________, with the intent to defraud.

Back 51

intentional false statement.

Front 52

The “false statement” requirement of the crime of false pretenses requires that the statement be of a ___________ or __________ event, not a ___________ promise.

Back 52

Past or present

future

Front 53

If the defendant obtains only custody (NOT title) as a result of an intentional false statement, the crime is _________ ___ _______, NOT false pretenses.

Back 53

Larceny by trick.

Front 54

Robbery is a [7 elements of larceny] from someone else’s person or presence by force or threat of ____________ ____________.

Back 54

7 Elements of Larceny: a trespassory taking and carrying away with the personal property of another with the intent to permanently retain the property.

IMMEDIATE INJURY

Front 55

When does the commission of forgery occur?

Back 55

When the making or altering of a writing so that it is false. The D need not cash the check - the alteration or making triggers the crime.

Front 56

Common law burglary is the _________ and ___________ the dwelling of another ____ ____________ with the intent to commit a _________ inside.

Back 56

breaking and entering

at night

felony

Front 57

Can one commit burglary if instead of breaking in, the D gains entry through fraud, threats, or intimidation?

Back 57

Yes - this is known as constructive breaking.

Front 58

Burglary requires the _________ intent to steal, rob, rape, assault, etc.

Back 58

specific

Front 59

States have modified three of the common law elements of burglary - which 3?

Back 59

breaking
dwelling
nighttime

Front 60

Common law arson is the ________ burning of a building.

Back 60

Malicious.

Front 61

For common law arson, “burning” requires a ________ _________ and scorching is not enough, but charring is.

Back 61

material wasting.

Front 62

For arson, is it enough that the carpet or furniture inside a building has been burned?

Back 62

No. It must be the building itself that burns, but it could be the walls (not the whole building).

Front 63

When a statute criminalizes the possession of contraband (e.g., drugs, stolen property, child pornography), “possession” means:
____________________ for a period of time long enough to have an opportunity
to terminate ________________________________.

Back 63

control

possession.

Front 64

For possession of contraband, the contraband need not be in the defendant’s actual possession, so long as it is close enough for him to exercise
_________________________ and ________________________ over it.

Back 64

dominion and control.

Front 65

The requisite mental state for possession of contraband is ___________ of the possession and of the character of the item possessed.

Back 65

Knowledge.

Front 66

Receiving stolen property requires _____ that personal property has been obtained criminally by another with the intent to permanently deprive the owner of his interest in the property.

Back 66

Knowledge.

Front 67

An accomplice is one who _________ assists the principal and intends the principal commits the substantive/underlying offense and actually _______, _______ or _____________ the principal _________ or _________ the commission of the crime.

Back 67

Intentionally

aids, counsels, or encourages

before or during

Front 68

For accomplice liability involving a store clerk or other sale of ordinary goods, is it enough that someone knows that a crime may result from the aid he is providing?

Back 68

No. Mere knowledge is not enough.

Front 69

How can an accomplice avoid criminal liability before the crime is committed?

Back 69

The accomplice can WITHDRAWAL, though the manner in which this is done depends on how he assisted the principal.
(ie., if encouraged, then he must repudiate the encouragement before crime is committed; if aided then he must neutralize the assistance or prevent the crime from happening such as calling the police).

Front 70

A person who helps a principal who has already committed a felony knowing that the crime has been committed and intends to help the principal avoid arrest or conviction is guilty of . . .

Back 70

accessory after the fact.

Front 71

When a corporate agent engages in criminal conduct, the
corporation and the agent may be held criminally liable, provided the agent is acting:
a) _______________________________________ the corporation; and
b) ________________________________________ of his or her office.

Back 71

on behalf of

within the scope

Front 72

Asking someone to commit a crime, with the intent that the crime be committed is . . .

Back 72

solicitation.

Front 73

For solicitation, must the crime be completed?

Back 73

No - the asking triggers criminal liability and it does not matter whether the person asked actually agrees or if the crime is actually committed.

Front 74

Conspiracy is the agreement between ____________ to commit a crime plus an _________ ________ in furtherance of the crime.

Back 74

two or more people

overt act

Front 75

An “overt act” for conspiracy liability can be any act even if merely ___________ performed by __________ of the co-conspirators.

Back 75

prepatory

any

Front 76

The mental state required for conspiracy is the specific intent to enter into an _____________ and to accomplish the __________ of the conspiracy.

Back 76

agreement

objectives

Front 77

For conspiracy, is criminal liability avoided if the underlying crime objective is not carried out?

Back 77

No.

agreement + overt act = crime of conspiracy committed.

Front 78

Can you have a one-person conspiracy at:

 

-common law?

-under MPC?

Back 78

No. CL requires at least 2 people.

Under MPC a D may be guilty even if the other parties are acquitted or were just pretending to agree.

Front 79

Vicarious “Pinkerton” Liability means that:
In addition to conspiracy, a defendant will be liable for other crimes committed by his co-conspirators, so long as those crimes:
(1) were committed in __________________________ of the conspiracy’s objective, and
(2) were __________________________________.

Back 79

furtherance

foreseeable

Front 80

Under the common law, attempt is proven by showing the defendant’s conduct was __________ _________ to commission of the crime.

Under the MPC (the majority rule), the defendant must engage in conduct that constitutes a __________ _____ towards the commission of the crime, provided that the conduct __________ ___________ the actor’s criminal purpose.

Back 80

Common law: Dangerously Close

MPC: Substantial Step; strongly corroborates.

Front 81

All inchoate offenses require ____________ intent to commit the underlying crime.

Back 81

specific

Front 82

Because you cannot attempt unintentional crimes (since you cannot intend to do something unintentional) there are no attempt versions of 3 crimes . . .

Back 82

recklessness crimes
negligence crimes
felony murder.

Front 83

The only instance a defendant can use withdrawal, renunciation, or abandonment as a defense is for _____________ crimes.

Back 83

CONSPIRACY.

(however, D will still be guilty of conspiracy and of all foreseeable crimes committed by his co-conspirators prior to his withdrawal).

Front 84

Solicitation and attempt merge with the completed crime; however __________ does not merge.

Back 84

CONSPIRACY.

(this is a bar exam favorite!)

Front 85

Under the MPC test for insanity (which is used in only a minority of jurisdictions), a defendant must establish that he lacked the substantial capacity to EITHER:

Back 85

appreciate the wrongfulness of his conduct

OR

conform his conduct to the requirements of the law.

Front 86

For a defendant to raise the insanity defense, he must have been insane ______________.

Back 86

at the time of the crime.

Front 87

For incompetency defense, defendant must show that at the time of the __________, he cannot EITHER . . . .


If he D is successful, the trial is ______________.

Back 87

trial (NOT crime).

understand the nature of the proceedings against him
OR
assist his lawyer in the preparation of his defense.

Postponed until D regains competency.

Front 88

If at the time of the crime, D is less than ________ years old, prosecution is NOT allowed.

Back 88

7

Front 89

If at the time of the crime, D is less than ____________ years old, there is a rebuttable presumption AGAINST prosecution.

Back 89

14.

Front 90

If at the time, D is ______ or older, prosecution is allowed.

Back 90

14.

Front 91

A _______________ mistake of fact can e a defense to any crime except a crime of strict liability.

Back 91

reasonable

Front 92

A ___________________ mistake of fact will be a defense only to specific intent crimes.

Back 92

unreasonable.

Front 93

Under the “Initial Aggressor” Rule, a defendant may not use deadly force if he is the initial aggressor – that is, the person who started the fight. But, the initial aggressor can “regain” his right to use deadly force in self-defense if:
(a) He _____________________ from the fight and communicates that withdrawal to the other person; OR
(b) the victim suddenly __________________________ a non deadly fight into a deadly one.

Back 93

withdraws

escalates

Front 94

If a D is mistaken about the need to use unlawful force in self defense, a reasonable mistake will be a _______________. In most jurisdictions, an unreasonable mistake is _____________.

Back 94

complete defense

not a defense at all.

Front 95

(1) Nondeadly force may be used, if reasonably necessary, to prevent any
serious ____________________________________.

(2) Deadly force may only be used to prevent a felony risking _________________________________.

Back 95

breach of the peace

human life

Front 96

The defense of necessity is unavailable if:
(1) D causes the death of another person to protect ___________________;or

(2) D is ________________ in creating a situation that creates a choice of evils.

Back 96

property

at fault

Front 97

Duress is a defense to criminal conduct if the defendant was ____________ to commit a crime because of a threat, from another person, of ______________ death or serious bodily injury to himself or a close family member.

Back 97

coerced

imminent

Front 98

Duress can never be a defense to ___________.

Back 98

Homicide.

Front 99

If a defendant believes that the government unfairly tempted him to commit a crime, he may claim entrapment. To prevail on the defense, the defendant must prove that:
a) the criminal design ________________________ with the government, and
b) he/she was not __________________________ to commit the crime.

Back 99

originates

predisposed

Front 100

Police officers are generally entitled to use whatever force is reasonably required, including deadly force, to apprehend or prevent the escape of a felon who poses a threat of ......

Back 100

serious bodily harm to the officer or others.