MBE Rapid Fire - Criminal Law

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)

Specific intent;

General intent;

Negligence or recklessness

Intent to cause a specific outcome

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

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

Purposely (subjective)

Knowingly (subjective)

Recklessly (subjective)

Negligently (objective)

If D intends to harm one party but inadvertently harms another party, D’s original intent will be“transferred” to the actual victim

“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.

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.

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.

Trespassory taking of personal property;

In another’s possession;

With intent to permanently deprive the owner thereof

Fraudulent;

Conversion;

Of property;

Of another;

By someone in lawful possession of the property

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

Obtaining possession of property owned by someone else;

Through fraud or deceit;

With intent permanently deprive

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

Theft by false pretenses: D gains possession AND title of the object

Larceny by trick: D only gains possession of the object

Taking of money or property from another;

By threats of future harm to the victim or her property

Receiving control of stolen property;

With the knowledge that it is stolen;

With the intent to deprive the owner thereof

Making of a false writing;

With apparent legal significance;

With the intent to defraud

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.

Malicious;

Burning;

Of the dwelling;

Of another

Unsuccessful attempt to commit battery (“attempted-battery assault”); or

Placing another in apprehension of immediate harm (“apprehension assault”)

Unlawful;

Application of force;

To another person;

That causes bodily harm OR constitutes offensive touching

Valid consent;

Self-defense or defense of others; or

Necessary to prevent a crime

Unlawful;

Confinement of V;

Without V's consent

Unlawful;

Confinement of V;

Against V's will; and

V is either moved or hidden

Unlawful killing;

Of a human being;

With malice aforethought

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)

Reckless or grossly negligent conduct;

That creates an extreme risk to others; and

Demonstrates a wanton indifference to human life

Unintentional and foreseeable killing;

Proximately caused during the attempt, commission, or flight from;

An inherently dangerous felony

Felonies that create a substantial risk of death or serious bodily harm.

Common: "BARRK"

Burglary

Arson

Robbery

Rape

Kidnapping

Also, felonious escape (MPC only)

Inherently dangerous felonies can be identified by statute and/or through case law

Agency/"in furtherance of" approach: A co-conspirator is liable for all killings by co-felons

For example, if one co-felon shoots and kills a bank patron during the commission of a robbery, all co-felons are liable

No, degrees are only recognized in statutes

⚠️ Note: If you see degrees on an MBE question, look for an appropriate statute in the question

Killing that is premeditated and deliberate and some felony murders

⭐️ Specific intent crime

Killing with malice but without premeditation and deliberation

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

An intentional killing that has been downgraded due to mitigating factors such as:

Adequate provocation ("heat of passion");

Imperfect self-defense; or

Diminished capacity

D acted in response to provocation that would have lead an ordinary, reasonable-person to lose self control;

There was insufficient time to cool off (subjective standard); and

D had not cooled off and was "in the heat of passion" at the time of the killing

Killing committed with gross negligence (criminal); or

Killing during the commission of a misdemeanor or other unlawful act

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

"Incomplete" crimes

Attempt

Conspiracy

Solicitation

Enticing, advising, requesting, or otherwise encouraging someone else;

To commit a crime;

With the intent the other person commits the crime

As soon as the D entices or encourages someone to commit a crime.

The other person does not need to agree to commit the crime

Solicitation: mere encouragement or enticement

Attempt: substantial steps taken to prepare for crime

Mens rea: Specific intent to commit the underlying crime

Actus reus:"Overt act" in furtherance of that intent

Substantial Step (MPC)

Dangerous Proximity Test (majority):

Equivocality Test (minority)

Only if:

D voluntarily withdraws;

Before completion of the crime

Argues that even though D did everything he could to complete the offense, external circumstances thwarted his ability to successfully complete it

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.

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.

Arises when the D thinks they are committing a crime, but their actions are actually lawful.

It is a valid defense.

Intentional agreement between two or more persons;

To commit an unlawful act or a lawful act by unlawful means; and

An overt act in furtherance of the unlawful act (only required for half the states and the MPC)

Under the Pinkerton Doctrine of Liability, co-conspirator is liable for crimes that are:

Foreseeable; and

Committed in furtherance of the conspiracy

If the target offense requires two or more people, then a conspiracy charge cannot be brought.

For example, there can be no conspiracy for adultery or dueling because these crimes require at least two participants to occur.

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.

If individual:

Aids, abets, or encourages principal to commit a crime;

With the intent to assist the principal; and

With the intent for the principal to commit the crime

If:

Crime is a "natural and probable" outgrowth of the original crime; and

Crime is in furtherance of the original crime

⚠️ Note: MPC only allows accomplices to be charged with crimes they directly intended

One who aids or abets a principal after commission of the crime. There must be:

A completed felony;

Actual knowledge of the felony by the accessory; and

Affirmative steps taken by the accessory to personally give aid to the felon to hinder the felon's apprehension, conviction, or punishment

Accomplice: Assists or encourages the commission of the crime, but does not do the act itself

Principal: Commits the actus reus

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

D suffered from a mental disease or defect in reasoning; and

D was unable to understand the "nature and quality" of his act OR that what he was doing was wrong

D is incapable of controlling his behavior

⭐️ Many states use both M’Naghten & the irresistible impulse test

Imminent threat by third party;

Of serious great bodily harm or death;

That reasonably causes D to become fearful;

⚠️ Note: Duress is not allowed as a defense for homicide

D honestly and reasonably believed;

That he was subject to an imminent unlawful use or threat of force; and

D used proportional force to defend himself

They have completely withdrawn, communicated that to V, and V reattacks/continues attacking; or

They used nondeadly force and V responded with deadly force

If D:

Reasonably believed V was in imminent danger of great bodily harm;

Used force proportional to prevent the harm; and

Reasonably believed V would have had a right of self-defense

Non-deadly force is justified if:

D has a reasonable belief that the property is in imminent danger; and

D did not use more force than what was necessary to prevent the interference

Immediate threat of greater harm to persons or property unless D commits the act;

No reasonable alternative to breaking the law; and

D is not responsible for causing the intial harm

⚠️ Note: Economic necessity is not valid justification

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

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)

Only if the mistake prevented D from having the requisite mens rea for the crime

⚠️ Note: Mistake can be either reasonable or unreasonable