Crim Pro & Crime Law MBE One Sheets

Question 1

Parties to a Crime

Answer 1

• Accomplice: person who assists/encourages the principal w/ the intent that the crime is committed.
• Tip: *mere presence *at the scene is not enough.
• A victim of a crime or “necessary party” is not an accomplice.
• Liability: an accomplice is liable for** all crimes committed that he aids/encourages & all “natural & probable results**” of the crime that he intends to assist.
• Accessory after the fact: person who knowingly assists a person who has committed a felony with intent to help him avoid arrest, trial, or conviction.

Question 2

Homicide: Intentional Killings

Answer 2

• D acts w/ intent to kill

Question 3

Homicide:

First Degree Murder

Homicide - MBE: 12.5%; MEE: 9.1%
Elements of a crime & Mental states: 9.1%

Answer 3

• (with** malice** aforethought)
• An intentional killing w/ premeditation & deliberation (e.g., poisoning someone).

Question 4

Homicide:

Voluntary Manslaughter

Answer 4

• (without malice aforethought)
• An intentional killing of a human being in the heat of passion due to adequate provocation (e.g., D finds wife in bed w/ another/D is punched in the face by someone & is enraged).

• Tip: mere words do not count as adequate provocation under the majority view.

Question 5

Homicide:

Unintentional Killings

Answer 5

• D does not always act w/ intent to kill, but can

Question 6

Homicide:

Second Degree Murder

Answer 6

• (with malice aforethought)
  (1) Extreme recklessness (e.g., D shoots his gun in a crowded room w/o intent to kill).
  (2) Intentional infliction of great bodily harm & death results (e.g., D cuts someone’s legs off w/o intent to kill him but he dies).
  (3) Catchall: D is not guilty of first-degree murder but acts w/ malice; D can intend to kill (e.g., D shoots & kills someone b/c he is enraged after being insulted by them).

• Tip: oftentimes this 3rd category of second-degree murder looks like voluntary manslaughter but D is not adequately provoked.

Question 7

Homicide:

Involuntary or misdemeanor manslaughter

Answer 7

• (without malice aforethought)
• A killing due to gross negligence/recklessness (e.g., a parent does not take his extremely sick infant to the free local clinic & infant dies), or
• A killing during a misdemeanor/felony that does not qualify for felony murder (misdemeanor manslaughter rule).

Question 8

Homicide:

Felony Murder

Answer 8

• (with malice aforethought)
• D commits a felony & someone other than a co-felon dies.
• The death can occur during the commission of the felony, the attempt to commit it, or the flight from it.
  (1) The felony must be inherently dangerous (e.g., robbery, arson, rape, kidnapping, and burglary).
  (2) There must be causation: Under agency theory: felon/his agent (co-felon) must cause the death. Under proximate cause theory: felon is liable if he “sets in motion” the acts that cause the death.

Question 9

Other Crimes:

Specific Intent

Other Crimes - MBE:12.5% MEE: Theft crimes & recieving stolen property: 12.6%, Robbery: 6%, Burglary: 6%

Answer 9

Specific intent: D intentionally/knowingly commits crime
(1) Assault: attempted battery/intentional infliction of apprehension.
(2) Larceny: trespassory taking & carrying away of personal property of another w/ intent to permanently deprive them thereof.
(3) Larceny by trick: D intentionally makes a false representation of material past/existing fact to obtain custody (not title) of personal property of another.
(4) False pretenses: This is the same as larceny by trick, except D obtains title to property w/ intent to defraud.
- Tip: Look at what vic intends to do at the time he hands over the property. If the vic hands it over & never intends to get the property back, it is false pretenses. Otherwise, it is larceny by trick.
(5) Embezzlement: fraudulent conversion/ misappropriation of property of another by one who is already in lawful possession of that property.
(6) Robbery: Larceny + a taking from another’s **person or presence **+ **force/threat of force. **
- Tip: D must use force/vic must feel fear. (If vic is not afraid & no force is used, D cannot be liable for robbery.)
(7) Burglary: breaking & entering the dwelling of another at night w/ intent to commit a felony/larceny therein. Tip: D must have intent to commit the felony/larceny at time he breaks in. He cannot form it while inside.
(8) First-degree murder & inchoate crimes are also specific intent crimes

Question 10

Inchoate Crimes:

Attempt

Inchoate Crimes; Parties - MBE: 12.5%

Answer 10

• Mens rea: The specific intent to complete the crime
• Actus reus: MPC/majority: a “substantial step” that is “strongly corroborative” of the criminal purpose.
• Common law: D gets “dangerously close” to committing the crime.
• Merges with completed crime? Yes. One cannot be convicted of both attempt & completed crime.

Question 11

Inchoate Crimes:

Conspiracy

Answer 11

• Mens rea: The specific intent to enter into agreement & accomplish its objectives.
• Actus reus: An agreement by 2/more people to commit a crime & an overt act in furtherance of the crime (in some states).
• Note: an overt act is not required at CL.
• Merges with completed crime? No. One can be convicted of conspiracy & completed crime.
• Note: D is also liable for all other crimes committed by his coconspirators if crimes were foreseeable & in furtherance of conspiracy.
• (Withdrawal is not a defense but will **cut off liability ** for any crimes committed after withdrawal.)

Question 12

Inchoate crimes:

Solicitation

Answer 12

• Mens rea: The specific intent that the crime be
  committed.
• Actus reus: D requests, encourages, advises, or commands that someone commit a crime.
• Merges with completed crime? Yes. One cannot be convicted of solicitation and the completed crime

Question 13

Note:

Answer 13

factual impossibility (e.g., the crime was impossible to complete) and withdrawing (e.g., changing one’s mind) generally are not defenses to inchoate crimes.

Question 14

Defenses:

Self Defense

Defenses - MBE: 12.5% MEE: 6%

Answer 14

• Self-defense: Available if D REASONABLY BELIEVED force was NECESSARY to avoid IMMINENT use of unlawful force by another.
• Defense of others is also a recognized defense.

Question 15

Defenses:

Insanity

MEE: 6%

Answer 15

Insanity: Most jurisdictions use the M‘Naghten rules. D must prove he suffered a DISEASE OF THE MIND that caused a DEFECT OF REASON & he lacked the ability to know the wrongfulness of his actions/understand the nature & quality of his actions

Question 16

Defenses:

Incompetency to stand trial

Answer 16

Incompetency to stand trial: if D is unable to understand the nature of proceedings against him/assist his lawyer, he may be incompetent to stand trial

Question 17

Defenses:

Intoxication

Answer 17

Intoxication: Voluntary intoxication is a defense to specific intent crimes only if it negates the specific intent. Involuntary intoxication is treated the same as insanity

Question 18

Defenses: Mistake of Fact MOF

Answer 18

• Mistake of fact (MOF): For specific intent crimes, a reasonable/unreasonable MOF can serve as a defense.
• For general intent/malice crimes, only a reasonable MOF is a defense. For strict liability crimes, MOF is not a defense

Question 19

Defenses: Mistake of Law MOL

Answer 19

Mistake of law (MOL): Generally, MOL is not a defense (even when relying on one’s lawyer!). There are very narrow exceptions to this general rule.

Question 20

Defenses:

Necessity

Answer 20

Necessity: this is a defense if D reasonably believed his criminal conduct was necessary to prevent a greater harm & is not at fault in creating the situation that required the necessity

Question 21

Defenses:

Duress

Answer 21

• Duress: This is a defense if D reasonably feared that if he did not perform the crime, either he/another would suffer imminent death/serious bodily injury.
• Duress cannot be used as a defense to homicide

Question 22

General Intent

MBE: 12.5% MEE: 9%

Answer 22

• General intent: D is generally aware of what he is doing; motive is immaterial
  (1) Battery: unlawful use of force to another resulting in bodily injury/offensive touching.
  (2) Rape: unlawful sexual intercourse w/o consent using force/threat of force.
  (3) Kidnapping: unlawful confinement/restraint that involves moving/hiding vic

GI: BRK

Question 23

Malice

Answer 23

• Malice: D acts recklessly
• Arson (malicious burning of another’s dwelling) & second-degree murder.

Question 24

Strict Liability

Answer 24

• Strict liability: there is no mens rea; engaging in the act is sufficient
• Statutory rape (sexual intercourse w/ minor) & regulatory offenses.
• Tip: examples of strict liability crimes include selling contaminated food, littering, & traffic offenses

Question 25

Defenses

Answer 25

Self-defense: Available if D reasonably believed force was necessary to avoid the imminent use of unlawful force by another. Defense of others is also a recognized defense. * Insanity: Most jurisdictions use the M‘Naghten rules. D must prove he suffered a disease of the mind that caused a defect of reason and he lacked the ability to know the wrongfulness of his actions or understand the nature and quality of his actions. * Incompetency to stand trial: if D is unable to understand the nature of the proceedings against him or assist his lawyer, he may be incompetent to stand trial. * Intoxication: Voluntary intoxication is a defense to specific intent crimes only if it negates the specific intent. Involuntary intoxication is treated the same as insanity. * Mistake of fact (MOF): For specific intent crimes, a reasonable or unreasonable MOF can serve as a defense. For general intent or malice crimes, only a reasonable MOF is a defense. For strict liability crimes, MOF is not a defense. * Mistake of law (MOL): Generally, MOL is not a defense (even when relying on one’s lawyer!). There are very narrow exceptions to this general rule. * Necessity: this is a defense if D reasonably believed his criminal conduct was necessary to prevent a greater harm and is not at fault in creating the situation that required the necessity. * Duress: This is a defense if D reasonably feared that if he did not perform the crime, either he or another would suffer imminent death or serious bodily injury. Duress cannot be used as a defense to homicide.

Question 26

Other General Principles ## Footnote MBE: 12.5%

Answer 26

* Burdens of proof & persuasion: The *prosecution* **must** prove **every element** of a crime **beyond a reasonable doubt**. *D* may be required to prove any **affirmative defenses**. * Acts & omissions: D **must** engage in a **voluntary act**. D is **not** liable for a *failure to act* (omission) **unless** there is a **legal duty to act** (ex. duty created by a statute, K, or relationship; ex. spouse to spouse or parent to child). * Jurisdiction: **Federal cts** have jurisdiction over **federally owned territory (DC)** & over **conduct on ships/aircrafts**. Federal cts also hear **cases involving federal crimes**. A **state** has jurisdiction if an **act/ omission that was part of the crime occurred in the state **or the **result occurred in that state.**

Question 27

ARREST, SEARCH, AND SEIZURE ## Footnote MBE: 50% MEE: Warrant requirement & exceptions: 9% Arrests: 6.1% Plain View 6% Exclusionary Rule: 6%

Answer 27

4th Amend: If there is a search/seizure by a **gov agent**, then the 4th Amend applies. - *3 ways to satisfy *4th Amend: * Method #1: **Valid warrant + proper execution**. (1) A valid warrant requires (a) **probable cause**, (b) **particularity**, & (c) must be issued by an **unbiased magistrate**. (2) Officers should *follow warrant limits* & generally should *knock & announce their presence. * - Note: An arrest warrant is **not** needed if suspect is in a **public** place. An arrest warrant is **needed** if D is at his **home/home of 3rd party** (in the latter case, a **search warrant** is also needed). * Method #2: Good faith/reasonable **mistake by officer** saves a defective warrant. - This is **not** present if there are **serious** problems w/ **affidavit** (ex. it is based on officer’s lies), **search warrant**, or **magistrate** (ex. she is not neutral). * Method #3: **exceptions** exist (see below). - Exclusionary rule: If 4th Amend is **not** satisfied, the exclusionary rule applies. - Evidence is excluded from prosecution’s case-in chief. But, it can still be used (**SIICK**) if D does not have **standing**, for **impeachment**, if discovery was **inevitable** (or if there was an **independent source/ taint disappeared**), in **civil** (& other non-criminal) proceedings, or if the **knock & announce rule was violated.**

Question 28

EXCEPTIONS TO THE WARRANT REQUIREMENT (ASPACE)

Answer 28

- Automobile exception: Officers can search an automobile if they have **probable cause** to believe that **evidence**, **instrumentalities**, or **fruits** of a crime exist within it. - Tip: this **includes the trunk** if there is **probable cause** to believe evidence is in the trunk.

Question 29

Search incident to arrest:

Answer 29

- At the time of a **lawful** arrest (or “contemporaneous” with it), an officer may conduct **certain searches of arrestee** (including his *person, clothing, & his “wingspan”/grabable space*) w/o a warrant in order to keep officer safe & preserve evidence. - Tip: officer may **not** search **trunk** under this exception. - **Exception** if the *arrestee is in a vehicle*: once the arrestee is **secured**, officer can **only** search vehicle if it is **reasonable to believe** it contains **evidence of the crime** for which the suspect was arrested.

Question 30

Plain view:

Answer 30

- An officer, who is **lawfully present** in the area that he is in, may seize an item if it is “**immediately apparent that it is contraband/evidence of a crime.**” ## Footnote Tip: this extends to other senses as well (plain smell & plain feel).

Question 31

Administrative search: ## Footnote Tends to commonly come up in 3 ways on the MBE:

Answer 31

(1) officers can search **arrestees & impounded vehicles**, (2) **public school officials** can search **students & their personal effects** (backpack, purse, lockers, etc.) upon **reasonable suspicion**, & (3) **random drug testing** is permitted for public school children involved in **any extracurricular activity.**

Question 32

Consent:

Answer 32

- If one w/ *actual/apparent authority to consent* gives consent voluntarily, officers may search the **areas to which they understand consent to extend.** - Tip: a **cotenant can consent** to search of areas over which he has **control** but **other cotenants** who are present may **revoke** the consent.

Question 33

Emergency circumstances:

Answer 33

- This comes up (1) when an officer is in **hot pursuit** of a suspect (Tip: there **must** be **probable cause** to believe that the suspect has committed a crime & he is in a particular place), (2) if there is a **serious injury/threat of injury**, or (3) if **evidence** of a crime likely **will disappear b/f a warrant can be obtained.** - A Terry stop & frisk is an exception where **only reasonable suspicion** is needed. - For a Terry **stop**, officer needs **reasonable suspicion** that *criminal activity is afoot*. - For a Terry **frisk**, officer needs a **reasonable belief** that suspect is *armed & dangerous*. - ## Footnote Tip: the officer can **only** *frisk for weapons*.

Question 34

OTHER IMPORTANT CRIMINAL PROCEDURE CONCEPTS: Privilege against self-incrimination—Fifth Amendment ## Footnote MBE: 50% MEE: 18.2%

Answer 34

- This privilege *protects a witness* from having to **give testimony against himself. ** - Prosecution **may** give **use/transaction immunity** to witness to **compel** witness to testify. - Tip: This privilege does **not** apply when gov admits D’s **blood**, **handwriting**, or **voice** against him in court. - Further, it does **not** apply to **lineups**.

Question 35

Double jeopardy—Fifth Amendment ## Footnote MBE: 50% MEE: 3%

Answer 35

- No person shall be “*subject for the same offense to be twice put in jeopardy*” - Jeopardy “**attaches**” when the **jury is impaneled & sworn in** a *jury trial*/when the **first witness is sworn in** a **bench trial**. - Double Jeopardy Clause prevents both **reprosecution after acquittal & after conviction** (if guilty verdict was set aside due to *insufficient evidence* presented at trial), & **reprosecution for same offense.** - “**Same offense**" use **Blockburger** test: if **each crime** contains an *element* that the other does not, they are **not** considered to be the “**same offense**.” - Tip: Double Jeopardy Clause does **not** prevent reprosecution when the prosecution is conducted by **different sovereigns** (state & fed gov, or different states).

Question 36

Fair trial and right to counsel—Sixth Amendment ## Footnote MBE: 50% MEE: 3%

Answer 36

* Jury: Jury pool **must** represent a **cross-section** of the community. - Tip: jury itself need **not** be diverse. * Right to counsel: Each D has the right to effective assistance of counsel. - This **extends to the first appeal**. - In order to prove **ineffective assistance** of counsel, D must show that his lawyer’s performance was **deficient** & **fell below** an *objective standard of reasonableness* & there is a **reasonable probability** that *but for the ineffective assistance, the result would be different*. Tip: this is **difficult** to show! - Guilty plea: D may choose to plead guilty instead of going to trial. - D may **withdraw** a guilty plea b/f sentencing at any time. - If *sentencing has taken* place, D **must** show **a fair & just reason to withdraw** it (counsel was ineffective, plea was involuntary, prosecutor did not act as promised, or wrong court heard the plea).

Question 37

Cruel and unusual punishment—Eighth Amendment ## Footnote MBE: 50% MEE:

Answer 37

- Punishment **cannot** be excessive in comparison to the crime. - Death penalty: There are some Ds who **cannot** be given the death penalty (those wi/ *intellectual disability*; those who are *insane at time the execution is set*; those who were *minors* when they committed a crime; those who *rape* a person if the vic didn’t die; & those who are *convicted of felony murder* but “*neither took life, attempted to take life, nor intended to take life*”) (**getaway driver**).

Question 38

APPEAL AND ERROR

Answer 38

- D **must** demonstrate an *error was made at trial*. - A **plain error** is one that a*ffects his substantial rights* & is *appealable even if not objected to during trial*. - A **harmless error** will **not** serve to *overturn a verdict*. - Gov **must** prove **beyond a reasonable doubt** that *error was harmless*.

Question 39

CONFESSIONS AND THE PRIVILEGE AGAINST SELF-INCRIMINATION: 5th ## Footnote MBE: 50% MEE: 18%

Answer 39

* 5th Amend Miranda rights: 5th Amend contains the right to **remain silent & right to counsel**. This right **attaches** whenever there is a **custodial interrogation**. * Rule: police **cannot** interrogate a suspect who is in custody w/o counsel/waiver (**exception: public safety**). * Exclusion: Any confession is **excluded** in the prosecutor's case-in-chief. Tip: the confession may **not** be admitted (except for **impeachment**), but if it led to *physical fruits* (evidence like murder weapon), those fruits may be **admitted**. * Waiver: a waiver **must** be “**knowing, intelligent, & voluntary**.” * Invocation: An invocation **must** be **explicit & unequivocal**. ## Footnote Tip: Remaining silent is not enough. Ironically, one must speak.

Question 40

6th ## Footnote MBE: 50% MEE: 3%

Answer 40

* 6th Amend right to counsel: This right **attaches** when D is **formally charged**. It attaches to all "**critical stages**" of proceedings thereafter. * Rule: Police **cannot** *deliberately elicit an incriminating statement* after formal charges have been filed **unless** D has *counsel/waives* his right. It is **offense-specific**. * Exclusion: any confession is excluded in the prosecutor's case-in-chief but may be used for **impeachment**. - Tip: This right exists for **post-charge lineups** & show-ups but **not photo ids**, **finger printing**, or **other forms of id**. There is **no right** to counsel for a **pre-charge lineup**, as this right attaches upon being charged!

Question 41

14th ## Footnote MBE: 50% MEE: 3%

Answer 41

* 14th Amend due process: this applies when police engage in **coercive conduct** that **overcomes suspect’s will**. * Exclusion: an involuntary confession & “fruits” of confession are **not** admissible for **any** purpose.