1
Q
Elements required to prove a crime
A
- Actus Reus (voluntary, physical act);
- Mens Rea (mental state);
- Concurrence (requisite mens rea must exist at the time of the actus reus); and
- Causation (cause-in-fact/actual + proximate cause)
2
Q
What are the 3 categories of mens rea under common law?
A
- Specific intent;
- General intent;
- Negligence or recklessness
3
Q
What type of intent do specific intent crimes require?
A
Intent to cause a specific outcome
4
Q
What do general intent crimes require?
A
D intended to commit the criminal act
⚠️ Note: Unlike specific intent, general intent crimes do not require subjective intent to bring about a certain result; only to commit the act itself
5
Q
Differentiate between purposely and knowingly
A
Purposely: D desires to produce a specific result
Knowingly: D is aware that a specific result is almost certain to occur
Ex. If Max shoots Brianne at close range and kills her, he has acted “purposely”
However, if Max means to kill Brianne, and he places a bomb in the car that he knows is carrying both Brianne and Adam, it is unlikely he could be charged with “purposely” killing Adam, but will likely be charged with “knowingly” killing Adam
6
Q
What are the 4 categories of mens rea under the MPC?
A
- Purposely (subjective)
- Knowingly (subjective)
- Recklessly (subjective)
- Negligently (objective)
7
Q
Define
doctrine of transferred intent
A
If D intends to harm one party but inadvertently harms another party, D’s original intent will be“transferred” to the actual victim
8
Q
What are two tests to determine whether actual cause exists?
A
- “But for” causation: Criminal result would not have occurred “but for” D’s act; or
- Substantial Factor: D’s acts were a substantial factor in causing the criminal result (e.g. D’s acts shorten V’s life or speeds up their inevitable death)
⭐️ The decision whether to use the “but for” test or “substantial factor” test is state specific.
9
Q
Is D still liable if there is a foreseeable intervening event?
A
Yes, D will likely still be liable because the causal chain has not been broken.
Ex. Carly pushes Max while ice skating, and Max falls and breaks his hip on the ice. Causation exists because it is forseeable that Max would fall on the ice if pushed.
10
Q
Define
superceding cause
A
Unforeseeable intervening cause.
Absolves D of liability if both the act and the injury are unforeseeable.
For example, D punches V on the arm, after which V returns home, uninjured. That night, a burglar breaks into V’s home and and shoots V in the arm. Causation for the gunshot does not exist for D.
11
Q
Elements of larceny
A
- Trespassory taking of personal property;
- In another’s possession;
- With intent to permanently deprive the owner thereof
12
Q
Elements of embezzlement
A
- Fraudulent;
- Conversion;
- Of property;
- Of another;
- By someone in lawful possession of the property
13
Q
Elements of theft by false pretenses
A
- Obtaining title to the property of another;
- Through reliance of that person;
- On a known false representation of material past or present fact; and
- That representation is made with the intent to defraud
14
Q
Elements of larceny by trick
A
- Obtaining possession of property owned by someone else;
- Through fraud or deceit;
- With intent permanently deprive
15
Q
Elements of robbery
A
- Larceny (the unlawful taking of another’s property with the intent to permanently deprive);
- From the person of another;
- By force or threat of force
16
Q
Distinguish theft by false pretenses from larceny by trick
A
Theft by false pretenses: D gains possession AND title of the object
Larceny by trick: D only gains possession of the object
17
Q
Elements of extortion
A
- Taking of money or property from another;
- By threats of future harm to the victim or her property
18
Q
Elements for receipt of stolen property
A
- Receiving control of stolen property;
- With the knowledge that it is stolen;
- With the intent to deprive the owner thereof
19
Q
Elements of forgery
A
- Making of a false writing;
- With apparent legal significance;
- With the intent to defraud
20
Q
Elements of common law burglary
A
- Breaking;
- Entering;
- Into the dwelling;
- Of another;
- At nighttime;
- With specific intent to commit a felony therein
⚠️ Note: Most jurisdictions have dropped the requirement that the crime occur at nighttime.
21
Q
Elements of common law arson
A
- Malicious;
- Burning;
- Of the dwelling;
- Of another
22
Q
Define
assault
A
- Unsuccessful attempt to commit battery (“attempted-battery assault”); or
- Placing another in apprehension of immediate harm (“apprehension assault”)
23
Q
Elements of criminal battery
A
- Unlawful;
- Application of force;
- To another person;
- That causes bodily harm OR constitutes offensive touching
24
Q
What are the common defenses to battery?
A
- Valid consent;
- Self-defense or defense of others; or
- Necessary to prevent a crime
25
Elements of **false imprisonment**
1. Unlawful;
2. Confinement of V;
3. Without V's consent
26
Elements of **kidnapping**
1. Unlawful;
2. Confinement of V;
3. Against V's will; and
4. V is either moved or hidden
27
Elements of **common law** **murder**
1. **Unlawful killing**;
2. Of a **human being**;
3. With **malice** aforethought
28
How is **malice** established?
Either with:
* Intent to kill (*express)*;
* Intent to inflict grievous bodily harm (*implied)*;
* Reckless disregard for human life (*implied)*; or
* Intent to commit a felony (*implied)*
29
Elements of **depraved heart murder**
1. **Reckless** or **grossly negligent** conduct;
2. That creates an **extreme risk to others**; and
3. Demonstrates a **wanton indifference to human life**
30
Elements of **felony murder**
1. **Unintentional** and **foreseeable killing**;
2. Proximately caused **during the attempt, commission, or flight** from;
3. An **inherently dangerous felony**
31
What are **inherently dangerous felonies**?
Felonies that create a **substantial risk of death** or **serious bodily harm.**
Common: "BARRK"
* **B**urglary
* **A**rson
* **R**obbery
* **R**ape
* **K**idnapping
* Also, felonious escape (MPC only)
## Footnote
Inherently dangerous felonies can be identified by statute and/or through case law
32
What is the **majority** rule on felony murder **co-felon liability**?
**Agency/"in furtherance of" approach:** A co-conspirator is liable for **all killings** by co-felons
## Footnote
For example, if one co-felon shoots and kills a bank patron during the commission of a robbery, all co-felons are liable
33
Does **common law** or **MPC** recognize **degrees** of murder?
No, degrees are only recognized in **statutes**
## Footnote
⚠️ Note: If you see degrees on an MBE question, look for an appropriate statute in the question
34
# Define
first degree murder
Killing that is **premeditated and deliberate** and some **felony murders**
## Footnote
⭐️ Specific intent crime
35
# Define
second-degree murder
Killing with malice but **without premeditation and deliberation**
36
What are types of **second-degree murders**?
* Murders **without premeditation**
* Murder resulting from intent to cause **serious bodily harm**
* Murders committed with **reckless indifference to human life**
* **Some felony murders** not otherwise classified as first degree
37
# Define
**voluntary** manslaughter
An intentional killing that has been **downgraded** due to mitigating factors such as:
* Adequate provocation ("heat of passion");
* Imperfect self-defense; or
* Diminished capacity
38
Elements needed to prove "**heat of passion**" manslaughter
1. D acted in response to provocation that would have lead an **ordinary, reasonable-person** to lose self control;
2. There was **insufficient** time to cool off (*subjective standard*); and
3. D had **not cooled off** and was "**in the heat of passion**" at the time of the killing
39
# Define
involuntary manslaughter
* Killing committed with **gross negligence (criminal)**; or
* Killing during the commission of a **misdemeanor** or other **unlawful act**
40
# Define
imperfect self defense
Used as a partial defense to murder when D is not entitled to the complete defense because of an **honest, but unreasonable mistake** as to the necessity of D's actions
41
# Define
inchoate crimes
"Incomplete" crimes
* Attempt
* Conspiracy
* Solicitation
42
Elements of common law **solicitation**
1. Enticing, advising, requesting, or otherwise encouraging someone else;
2. To commit a crime;
3. With the intent the other person commits the crime
43
When is solicitation **complete**?
**As soon as** the D entices or encourages someone to commit a crime.
## Footnote
The other person *does not need to agree* to commit the crime
44
Distinguish between **solitication** and **attempt**
Solicitation: mere **encouragement or enticement**
Attempt: **substantial steps** taken to prepare for crime
45
What is the mens rea and actus reus for **attempt?**
**Mens rea:** Specific intent to commit the underlying crime
**Actus reus:**"Overt act" in furtherance of that intent
46
What are the **3 tests** to determine if there has been an **overt act** for an **attempt**?
1. Substantial Step (MPC)
2. Dangerous Proximity Test (majority):
3. Equivocality Test (minority)
47
Is **renunication** (withdrawal) a defense to attempt?
Only if:
1. D **voluntarily** withdraws;
2. **Before completion** of the crime
48
What is the **impossibility** defense to attempt?
Argues that even though D did everything he could to complete the offense, **external circumstance**s thwarted his ability to successfully complete it
49
What is **factual** impossibility and is it a successful defense to attempt?
Occurs when D is **unable** to complete a crime, but **if the facts had been what D supposed them to be**, the act would have been a crime.
**Never** a valid defense to attempt.
## Footnote
Ex. Max wants to buy meth from Ian, but Ian sold him cornstarch instead. Since Max thought that he was buying meth, the fact that he was sold cornstarch is not a valid defense.
50
What is **legal impossibility** and is it a valid defense?
Arises when the D **thinks they are committing a crime**, but their actions are **actually lawful**.
It is a **valid** defense.
51
Elements of **conspiracy**
1. **Intentional** **agreement** between two or more persons;
2. To commit an **unlawful act** or a lawful act by **unlawful means**; and
3. An **overt act** in furtherance of the unlawful act (only required for half the states and the MPC)
52
Are D's liable for the crimes committed by their **co-conspirators**?
Under the Pinkerton Doctrine of Liability, co-conspirator is liable for crimes that are:
1. **Foreseeable**; and
2. Committed in **furtherance** of the conspiracy
53
# Define
Wharton's Rule
If the target offense **requires two or more people,** then a conspiracy charge cannot be brought.
## Footnote
For example, there can be no conspiracy for adultery or dueling because these crimes require at least two participants to occur.
54
Under **common law**, is **withdrawal** or **abandonment** a defense to conspiracy?
**No**, the conspiracy is **complete as soon as the parties make an agreement.** Even calling the police and stopping the conspiracy will not serve as a valid defense.
55
When is an individual criminally **liable** as an **accomplice**?
If individual:
1. **Aids, abets, or encourages** principal to commit a crime;
2. With the **intent to assist** the principal; and
3. With the **intent for the principal to commit the crime**
56
When will the accomplice be liable for crimes by the principal that he **did not aid or abet**?
If:
1. Crime is a "**natural and probable**" outgrowth of the original crime; and
2. Crime is **in furtherance** of the original crime
## Footnote
⚠️ Note: MPC only allows accomplices to be charged with crimes they directly **intended**
57
# Define
accessory after the fact
One who aids or abets a principal after commission of the crime. There must be:
1. A **completed** felony;
2. **Actual knowledge** of the felony by the accessory; and
3. **Affirmative steps** taken by the accessory to personally give **aid** to the felon to hinder the felon's apprehension, conviction, or punishment
58
Distinguish **accomplice** vs. **principal**
**Accomplice:** Assists or encourages the commission of the crime, but does not do the act itself
**Principal:** Commits the actus reus
59
What are **justification/excuse** defenses?
Argues that D's conduct was **justified** under the particular facts of the case. Includes:
* Self-defense;
* Defense of others;
* Defense of property;
* Necessity;
* Duress;
* Crime prevention, arrest and to prevent escape; and
* Entrapment
60
Elements of **M'Naghten** test
1. D suffered from a **mental disease** or defect in reasoning; and
2. D was unable to understand the **"nature and quality"** of his act **OR** that what he was doing was **wrong**
61
# Define
Irresistible Impulse test
D is **incapable of controlling his behavior**
## Footnote
⭐️ Many states use both M’Naghten & the irresistible impulse test
62
Elements for **duress** defense
1. **Imminent threat** by third party;
2. Of **serious great bodily harm or death;**
3. That **reasonably** causes D to become fearful;
## Footnote
⚠️ Note: Duress is not allowed as a defense for **homicide**
63
Elements of **self-defense**
1. D **honestly and reasonably** believed;
2. That he was subject to an **imminent unlawful use** or **threat of force**; and
3. D used **proportional** force to defend himself
64
When can **first aggressors** claim self-defense?
1. They have completely **withdrawn, communicated** that to V, and V **reattacks/continues attacking**; or
2. They used nondeadly force and V responded with **deadly force**
65
When can D invoke a **defense of others** claim?
If D:
1. **Reasonably** believed V was in **imminent danger** of great bodily harm;
2. Used force **proportional** to prevent the harm; and
3. **Reasonably** believed V would have had a **right of self-defense**
66
When is the **defense** **of property** allowed?
**Non-deadly force** is justified if:
1. D has a **reasonable belief** that the property is in **imminent danger;** and
2. D did not use **more force** than what was necessary to prevent the interference
67
Elements to the **defense of necessity**
1. **Immediate threat of greater harm** to persons or property **unless D commits the act**;
2. **No reasonable alternative** to breaking the law; and
3. D is **not responsible** for causing the intial harm
## Footnote
⚠️ Note: Economic necessity is not valid justification
68
Is **consent** a valid defense?
Yes, only if:
* Consent is an **element** of the crime; or
* Consent is for **non-serious bodily harm** that occurs during a **lawful athletic activity or competition**
**AND**
* The consent was **voluntarily** given by a person with **legal capacity** to consent
69
Is **mistake of law** a valid defense?
Generally not. Only successful in extremely rare circumstances if:
* D **reasonably relied** on a **statute that is invalid**; or
* Crime **requires knowledge of the law itself** (ex. crime requires D to "willfully" violate it; often applies to complicated tax laws)
70
Is **mistake of fact** a valid defense?
Only if the mistake prevented D from having the **requisite *mens rea*** for the crime
## Footnote
⚠️ Note: Mistake can be either reasonable or unreasonable
MBE Rapid Fire
flashcards
Decks in class (8)
# Cards
