Crim Law BAR

Question 1

State acquires juries. over a crime if either THE CONDUCT OR THE RESULT happened in that state.

Answer 1

!

Question 2

MERGER - no merger of crimes.

If you commit 2 crimes, you are convicted of both crimes.

Answer 2

EXCEPT… Solicitation and Attempt - do merge into the substantive offenses.

If you complete that crime, you cannot be convicted of attempting to commit that crime.

**Conspiracy does NOT merge into the substantive offense. You CAN be convicted of conspiring to do something and doing it.

Question 3

Essentials Elements of Crime…

Answer 3

A) An Act
B) An Ommission as an act
C) Mental State

Question 4

Act = any bodily movement, but act must be VOLUNTARy.

Answer 4

These DO NOT qualify for criminal liability:

• conduct which is not the product of your own volition
• a reflexive or convulsive act (seizure = no crime liability)
• act performed while unconscious or asleep

Question 5

An Ommission as an Act (failure to do something)

Answer 5

No legal duty to Rescue, but sometimes legal duty to act…

Question 6

Legal Duty to Act can arise in one of 5 circumstances….

Answer 6

1) By Statute (file your tax returns)
2) By Contract (lifeguard or a nurse has a legal duty to act)
3) Relationship between the parties (parent duty to protect children; spouse to spouse)
4) You voluntarily assume a duty of care and then fail to adequately perform it.
5) Your conduct created the peril.

Question 7

Four common law mental states of a crime…

Answer 7

1) specific intent
2) Malice
3) General Intent
4) Strict Liabiility

Question 8

Specific Intent Crimes include….

Answer 8

Students Can Always Fake a Laugh, Even For Ridiculous Bar Facts

1) Solicitation (inchoate offense)
2) Conspiracy (inchoate offense)
3) Attempt (inchoate offense)
4) First Degree Murder
5) Assault
6) Larceny (property)
7) Embezzlement (property)
8) False pretenses
9) Robbery
10) Burglary
11) Forgery

Question 9

Specific intent crimes will qualify for Additional Defenses not available for other types of crime….

Answer 9

Addn’l Defenses include:

• Voluntary Intoxication
• Unreasonable Mistake of Fact

Question 10

Malice Crimes…. only 2…

Requires ‘Reckless Indifference’

Answer 10

1) Murder (common law murder, 2nd degree = ‘murder’ on bar)

2) Arson

Question 11

General Intent = big catch all category

Answer 11

All crimes not mentioned so far are general intent unless they qualify for Strict Liability.

Rape and Battery = Gen. Intent.

Question 12

Strict Liability - No Intent Crimes

Answer 12

Any defense that negates intent cannot be a defense to the no intent crime of strict liability.

If crime is administrative, regulatory, or morality area and you don’t see any ADVERBS in the statute such as ‘knowingly’ ‘willfully’ or ‘intentionally’ then the Statute is meant to be a NO INTENT crime of STRICT LIABILITY.

Question 13

Mental State and the Model Penal Code…

Answer 13

PURPOSELY - one acts purposely when it is his Conscious Objective to engage in certain conduct or cause a certain result.

KNOWINGLY - one acts knowingly when he is AWARE that his conduct will very likely case the result.

RECKLESSLY - one acts recklessly when he Concsiously disregards a substantial and unjustifiable risk.

NEGLIGENTLY - one acts negligently when he fails to be aware of a substantial and unjustifiable risk.

Question 14

Accomplice Liability = one who aids, advises, or encourages the principal in the commission of the crime charged.

Aid - Advise - Encourage

Answer 14

Accomplices must also have the requisite INTENT that the crime be committed.

Accomplices are liable for the Crime itself and all other foreseeable crimes.

Question 15

Accomplices and Withdrawal..

If the person encouraged the crime, the person must REPUDIATE the encouragement.

Answer 15

If person aided by providing assistance to principal (giving materials), he must do everything possible to NUETRALIZE this assistance (attempting to retrieve the materials).

An alternate means to withdrawing is to contact the police.

Question 16

Inchoate offenses means an incomplete offense. 3 types:

Answer 16

1) Solicitation

2) Conspiracy

Question 17

Solicitation: Rule - asking someone to commit a crime. Crime ends when you ask them.

Answer 17

Under common law, it is not necessary that the person solicited agree to commit the crime.

If person asked to commit the crime agrees to it, then it becomes a conspiracy and the solicitation merges and the only crime left when the other person agrees to do it is CONSPIRACY.

Factual Impossibility is no defense.

Question 18

Conspiracy: Rule - (i) an agreement (ii) with an intent to agree and (iii) an intent to pursue an unlawful objective.

Answer 18

Conspiracy does NOT merge with the substantive offense.

You CAN be convicted of conspiring to do something and doing it (ex: robbery and conspiracy to commit robbery).

Liability for co-conspirators’ crimes - each conspirator is liable for ALL the crimes of coconspirators if those crimes were committed in furtherance of the conspiracy and were foreseeable.

Question 19

Agreement required for conspiracies need not be expressed, intent can be inferred from conduct.

Bilateral and Unilateral appraoch

Answer 19

Bilateral approach = Traditional, common law, required 2 guilty parties. IF one party is merely faking agreement, othe rperson cannot be guilty of conspiracy.
— Acquittal of all persons with whom a D is alleged to have conspired Precludes Conviction of the remaining D under this approach

Unilateral = Modern MPC approach requires only that one person have a genuine criminal intent.

Question 20

Overt Act Requirement

Majority rule: in order to ground liability for conspiracy there must be an AGREEMENT PLUS some OVERT ACT in furtherance of conspiracy.

*Any little Act will do to be an overt act in furtherance of conspiracy, even an act of mere preparation (go buy a black ski mask).

Answer 20

Minority rule/common law: grounded liability for conspiracy with the Agreement itself.

Notes on the MBE regarding majority and minority rules - always apply the majority rule

Question 21

Factual impossibility is NO defense to conspiracy.

Answer 21

Withdrawal, even if it is adequate, can never relieve the D from liability for conspiracy itself.

D can withdraw from liability for other conspirators’ subsequent crimes, but he cannot withdraw from this conspiracy.

Question 22

Attempt..

Rule: Specific INtent PLUS an OVERT ACT in furtherance of the crime.

Answer 22

For purposes of attempt, the overt act must be a SUBSTANTIAL STEP in furtherance of the commission of the crime; thus, mere preparation cannot ground liability for attempt.

Question 23

Defenses of Abandonment:

Majority Rule - once D has taken a substantial step toward committing the crime, abandonment is NEVER a DEFENSE.

Answer 23

MPC allows for this defense only if it is fully voluntary and a complete renunciation of criminal purpose.

Question 24

LEGAL impossibility is a defense to attempt.

Answer 24

FACTUAL impossibility is NOT a defense

Question 25

Defenses for crimes based on criminal capacity.

Answer 25

• Insanity
• Intoxication
• Infancy

Question 26

Insanity - 4 Trigger Phrases that are tied to the 4 tests for insanity defense:

Answer 26

1) M’Naghten Rule - at time of his conduct, D lacked ability to know the wrongfulness of his actions or understand the nature and quality of his actions.
2) Irresistible Impulse - D lacked the capacity for self control and free choice.
3) Durham Rule - D’s conduct was a product of mental illness.
4) Model Penal Code - D lacked the ability to conform his conduct to the requirements of the law.

Question 27

Intoxication

Voluntary and Involuntary

Answer 27

Voluntary Intoxication - Defense on the bar exam only to specific intent crimes (and no other kind of crime).

*Addicts and Alcoholics are always Voluntarily Intoxicated

Involuntary Intoxication - 1) unknowingly being intoxicated or 2) becoming intoxicated under duress.
*something slipped into drink (you didn’t low what or what the effects are)

• you are forced to drink
• Involuntary Intox is a form of Insanity. Thus, it is a defense to ALL CRIMES.

Question 28

Infancy

2 rules..

Answer 28

1) Under age of 7 = NO criminal liability

2) Under age of 14 = Rebuttable Presumption of no criminal liability.

Question 29

Principles of Exculpation and Other Defenses

Answer 29

1) Self Defense
2) Defense of a Dwelling
3) Duress
4) Necessity
5) Mistake of Fact

Question 30

Self Defense

Non-deadly force may be used any time the victim REASONABLY BELIEVES that force is about to be used on him

Answer 30

DEADLY FORCE

Majority: may use deadly force in self defense anytime the victim reasonably believes that DEADLY FORCE is about to be used against him.

Minority: Victim required to retreat if safe to do so. BUT only if the examiners tell you in ‘retreat’ or minority juris.
3 Exceptions to duty to retreat:
1) no duty to retreat in your home
2) no duty to retreat if you are victim of rape or robbery
3) police officers have no duty to retreat

Question 31

Original Aggressor and Self Defense…

Answer 31

to return to Self Defense, must

1) Withdraw and
2) Communicate that withdrawal

if the victim of the inital aggressoin suddenly escalates a minor fight into one involving deadly force w/o giving aggressor opp. to withdraw, the original aggressor may use force in his own defense (including deadly force if reasonable).

Question 32

Defense of Others

Rule: A D can raise defense of others if he reasonably believes that ht eprson assisted would have ahad the right to use force in his own defense.

Answer 32

MAJORITY RULE:

there need NOT be a special relationship between the D and the person whose defense he acted.

Minority rule: special relationship required.

Question 33

DEFENSE of a DWELLING

Rule…

Answer 33

Deadly force may NEVER be used solely to defend your property

Question 34

DURESS…

Rule: Duress is a defense to a criminal act if…

1) the person acts under threat of iminent infliction of death or great bodily harm, AND
2) that belief is reasonable.

Answer 34

Threats to harm a 3rd person may also suffice to establish the defense of duress.

***Duress is a defense to all crimes except homicide.

Question 35

NECESSITY

Rule: conduct that would otherwise be criminal is justifiable if, as a result from Natural Forces (hurricane, tornado, flooding), the D reasonably believes that his conduct was necessary to avoid a great societal harm

Answer 35

NOTE: Duress involves a HUMAN threat.

NECESSITY involves pressure from natural forces.

Question 36

MISTAKE OF FACT

Rule: Defense only when the mistake Negates Intention.

Mistake has to be reasonable to be a defense to a malice or general intent crime.

Answer 36

BUT on the BAR, any mistake, no matter how ridiculous, is a defense if hte D is charged with a SPECIFIC INTENT crime.

Mistake of fact is NEVER a defense to STRICT LIABILITY crimes.

Question 37

Availability of Mistake of FAct Defense…

Answer 37

Specific intent crimes: any mistake at all a defense, reasonable or unreasonable.

Malice/Gen Intent = reasonable mistakes only.

Strict Liability = NEVER a defense.

Question 38

Mistake of Fact as defense = D never has the intent to commit the crime.

Answer 38

Factual Impossibility, the D has the intent to commit the crime, but it is impossible to do so b/c of the factual circumstnaces.

Question 39

CONSENT….as a defense….

Answer 39

Consent of victim is generally NO DEFENSE.

Question 40

Entrapment…as a defense…

Answer 40

Valid defense only if….

1) criminal design originated with law enforcement officers.
2) the D must NOT have been predisposed to commit the crime.

Question 41

Offenses against hte person (common law crimes) include…

Answer 41

1) Battery
2) Assault
3) Aggravated Assault
4) Homicide
5) False Improsenment
6) Kidnapping.

Question 42

Battery…

Rule: unlawful applicatoin of force to the person resulting in either Bodily Injury OR offensive touching.

Answer 42

Battery need not be intentional (application of force with criminal negligence all that’s needed)

Force need not be applied directly (poisioning)

Battery is a general intent crime.

Question 43

Assault

Rule: an attempt to commit a battery OR the intentional cretion - other than by mere words - of a reasonable apprehension of imminent bodily harm.

Answer 43

Actual touching = battery.

No touching = assualt.

Question 44

Aggravated Assault….rule…

Answer 44

1) The use of a deadly or dangerous weapon….

2) With intent to rape, maim, or murder.

Question 45

Homicide… rule

Answer 45

Murder, generally is the unlawful killing of another human being with MALICE AFORETHOUGHT.

Such state of mind exists if there is:

1) intent to kill (1st degree)
2) intent to inflict great bodily harm (2nd degree)
3) Intent to commit a felony (1st degree) or
4) Common law recless indifference to an unjustifiably high risk of human life (2nd degree)

Question 46

Cause in Fact for murder

Answer 46

D’s conduct must be cause in fact of victim’s death.

Death would not have occured BUT FOR D’s conduct.

Question 47

Proximate Cause for murder…

Answer 47

D is responsible for all results that occur as a NATURAL and Probable Consequence of his conduct, even if he did not anticipate the exact manner in which they would occur.

Question 48

First degree murder…. 3 types

Answer 48

1) a premeditated killing
2) felony murder
3) homicide of a police officer

Question 49

a premeditated killing (1st degree)

Answer 49

1) victim must be human and dead (not in coma)

2) D must have acted with INTENT or KNOWLEDGE that his conduct would cause death

Question 50

Felony Murder (1st degree)

Answer 50

1) any killing - even an accidental killing - committed during the course of a felony (inherently dangerous felonies, robbery, rape kidnap)

Question 51

Defenses to felony murder:

Answer 51

1) IF D has a defense to the underlying felony, then he has a defense to felony murder.
2) The felony D is committing must be a felony other than the kiling. If defense to underlying felony then defense to felony murder.
3) Deaths must be foreseeable.
4) Deaths caused while fleeing from a felony are felony murders. BUT once D reaches a point of temporary safety, deaths caused thereafter are NOT felony murders.
5) On MBE, D is NOT liable for death of a co-felon as a result of resistance by the victim or the police.

Question 52

Homicide of police officer (1st degree)…

Answer 52

1) D must know the victim is a law enforcement officer and
2) victim must be acting in the line of duty

If off duty but acts in line of duty = 1st degree as long as its clear victim is cop.

Question 53

2nd degree murder…

Answer 53

depraved heart killing - a killing done with reckless indifference to an unjustifiably high rick to human life; OR

Murders that are not classified as 1st degree (premeditated killings or first-degree felony murders).

Question 54

Manslaughter (3 types)

Answer 54

1) voluntary manslaughter
2) imperfect self defense
3) involuntary manslaughter

Question 55

Voluntary manslaughter

Answer 55

1) killing in the heat of passion resulting from an adequate provocation by the victim
2) provocation must be one that would arouse sudden and intense passion in the mind of an ordinary person such to cause him to lose self control.
3) there must not have been a sufficient time between the provocation and the killing for the passions of a reasonable person to cool, and
4) the D in fact did not cool off between the provocation and the killing.

Question 56

Imperfect Self DEfense (manslaughter)

Answer 56

1) if D has an honest but unreasonable belief that his life was in imminent danger, this defense will reduce murder to manslaughter.
2) only some states recognize this doctrine

Question 57

Involuntary manslaughter

Answer 57

1) a killing of criminal negligence or
2) misdemeanor manslaughter - killing someone while committing a misdemeanor or an unenumerated felony (a non inherently dangerous felony)

Question 58

FALSE IMPRISONMENT

Answer 58

Rule: unlawful confinement of a person without his valid consent.

**If a known alternate route is available the confinement element will not be met for purpose of false improsenment.

** One’s consent to the confinement precludes it from constituting false imprisonment.

Question 59

Kidnapping…

Answer 59

Rule: Confinement of a person with either:

1) some movement or
2) concealment in a secret place.

Question 60

Sex offenses (3 types)

Answer 60

1) Rape - slightest penetration completes the crime.
2) statutory rape = strict liability - consent of victim is no defense and mistake of fact is no defense
3) crimes against nature and other sex crimes (unlikely on test)

Question 61

Property crimes…6 types

Answer 61

1) LArceny
2) Embezzlement
3) False Pretenses
4) Robbery
5) Extortion
6) Forgery

Question 62

Larceny (prop crime). Specific Intent crime (any mistake is a defense)

Rule: requires a wrongful taking, a carrying way (asportation) of property of another by trespass (w/o permission) with INTENT to permanently deprive.

Answer 62

** Slightest movement of property is enough for larceny.

• • Intent to deprive the owner permanently MUST exist at the time of the taking.
• BUT, if person takes property not intending to steal it, but then later decides to keep the property, she can be guilty of larceny under the theory of CONTINUING TRESPASS***

Taking property in the belief that it is yours is NOT common law larceny.

Question 63

Embezzlement

Rule: The fraudulent conversion of property of another.

Answer 63

• 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, just the lawful possession.
• The embezzler doesn’t have to Get the benefit. (can donate to charity, still embezzling)

Question 64

False pretenses

Rule: D persuades the owner of property to Convey Title by False Pretense (false representation)

Answer 64

• It is the conveyance of title that is the center of false pretenses.
• This false representation could be as to a present or past fact.
• A false promise to do something in the future CANNOT ground liability for false pretenses.

Question 65

Larceny by Trick:

If only POSSESSION of the property is obtained, the offense is larceny by trick.

Answer 65

If TITLE to property is obtained, the offense is FALSE PRETENSES.

Question 66

ROBBERY..

Rule: the taking of personal property of another from the other person’s presence by Force or Threat with the intent to permanently deprive him of it.

Answer 66

• presence requirement is very broadly drawn and would even cover a farmer tied up in his barn and taking things from his house.
• for taking by force or threat, ripping a necklace from a person’s neck is sufficient.
• The threat must be of imminent harm.

***Pickpocket is not a robbery b/c victim doesn’t know of crime.

Question 67

Simulated deadly weapon during robbery (hand in bag, faking its gun)

Answer 67

Elevates crime to ARMED robbery.

Question 68

Extortion

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

Answer 68

Extortion versus robbery:

• you don’t have to take anything from the person or his presence to be extortion.
• the threats of future harm - not imminent harm - are all that is required for extortion.

Question 69

FORGERY

Rule: the making or altering of a false writing with intent to defraud.

Answer 69

Note: any writing that has ‘apparent legal significance’ is subject to the crime of forgery.

Question 70

OFFENSES AGainst HABITATION (2 types)

Answer 70

1) Burgarly

2) Arson

Question 71

Burglary

Rule: Breaking and entering of a dwelling of another at night with the intent to commit a felony therein.

Answer 71

• Breaking can be ACTUAL (involving some force, however slight) or CONSTRUCTIVE.
  1) Actual breakings: not an actual breaking for someone to come uninvited through a wide open door or window. If wide open, no breaking. BUT, if someone pushes open an interior door to the bedroom or living room then a breaking exists.
  2) Constructive Breakings = a breaking by fraud or threat. Ex: use key to house for a party when it was given to you to clean the house.
• Entering = occurs when any part of the body crosses into the house.
• Dwelling house of another = Cannot be a barn or a building
• At night = at common law had to be at night.
• With the intent to commit a felony therein. The intent to commit the felony MUST EXIST AT THE TIME OF THE BREAKING AND ENTERING or it is not common law burglary.

Question 72

INTENT Must exist at time of B&E for Burglary..example..

Answer 72

1) break into house to sleep, wake up and decide to steal gold trohpies == no burglary. no intent to commit felony at time of B&E
2) break into house to commit felony (murder), but not steal anything = still a burglary b/c intent to commit a felony therein.

Question 73

ARSON

Rule: the Malicious burning of the dwelling of another

Answer 73

For malice, no specific intent required. Acting with a reckless indifference of an obvious risk that hte structure would burn down will suffice for arson culpability.

Question 74

Notes on ARSON….

Answer 74

*ONly aplies to burning, not smoke damage. Scorching is insufficient, but CHARRING is sufficient.

Common law, building burned had to be a dwelling. cannot be a barn or a building. MBE assumes jurisdiction applies arson to structures other than dwellings.

AT common law, the burning had to be of a house of another. one could not be guilty of burning his own house at common law.