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Flashcards in Criminal Law Deck (70)
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Elements required to prove a crime

  1. Actus Reus (voluntary, physical act)
  2. Mens Rea (mental state); 
  3. Concurrence (requisite mens rea must exist at the time of the actus reus); and
  4. Causation (cause-in-fact/actual + proximate cause)


What are the 3 categories of mens rea under common law?

  1. Specific intent;
  2. General intent;
  3. Negligence or recklessness


What type of intent do specific intent crimes require?

Intent to cause a specific outcome


What do general intent crimes require?

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



Differentiate between purposely and knowingly

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 Mat, it is unlikely he could be charged with "purposely" killing Mat, but will likely be charged with "knowingly" killing Mat


What are the 4 categories of mens rea under the MPC?

  1. Purposely (subjective)
  2. Knowingly (subjective)
  3. Recklessly (subjective)
  4. Negligently (objective)


doctrine of transferred intent

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




What are two tests to determine whether actual cause exists? 

  1. "But for" causation: Criminal result would not have occurred "but for" D's act; or 
  2. 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.


Is D still liable if there is a foreseeable intervening event?


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.





superceding cause

Unforeseeable intervening cause. 

Resolves 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.


Elements of larceny

  1. Trespassory taking of personal property;
  2. In another's possession;
  3. With intent to permanently deprive the owner thereof


Elements of embezzlement

  1. Fraudulent; 
  2. Conversion; 
  3. Of property; 
  4. Of another;
  5. By someone in lawful possession of the property


Elements of theft by false pretenses

  1. Obtaining title to the property of another;
  2. Through reliance of that person;
  3. On a known false representation of material past or present fact; and
  4. That representation is made with the intent to defraud


Elements of larceny by trick

  1. Obtaining possession of property owned by someone else;
  2. Through fraud or deceit;
  3. With intent permanently deprive 


Elements of robbery

  1. Larceny (the unlawful taking of another's property with the intent to permanently deprive); 
  2. From the person of another; 
  3. By force or threat of force 



Distinguish theft by false pretenses from larceny by trick

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

Larceny by trick: D only gains possession of the object



Elements of extortion


  1. Taking of money or property from another;
  2. By threats of future harm to the victim or her property



Elements for receipt of stolen property

  1. Receiving control of stolen property; 
  2. With the knowledge that it is stolen
  3. With the intent to deprive the owner thereof


Elements of forgery

  1. Making of a false writing;
  2. With apparent legal significance;
  3. With the intent to defraud


Elements of common law burglary

  1. Breaking; 
  2. Entering;
  3. Into the dwelling;
  4. Of another;
  5. At nighttime;
  6. With specific intent to commit a felony therein

⚠️ Note: Most jurisdictions have dropped the requirement that the crime occur at nighttime.  




Elements of common law arson

  1. Malicious;
  2. Burning;
  3. Of the dwelling;
  4. Of another




  1. Unsuccessful attempt to commit battery ("attempted-battery assault"); or
  2. Placing another in apprehension of immediate harm ("apprehension assault")


Elements of criminal battery

  1. Unlawful;
  2. Application of force;
  3. To another person;
  4. That causes bodily harm OR constitutes offensive touching


What are the common defenses to battery?

  1. Valid consent;
  2. Self-defense or defense of others; or
  3. Necessary to prevent a crime


Elements of false imprisonment

  1. Unlawful;
  2. Confinement of V;
  3. Without V's consent 



Elements of kidnapping

  1. Unlawful;
  2. Confinement of V;
  3. Against V's will; and
  4. V is either moved or hidden


Elements of common law murder

  1. Unlawful killing
  2. Of a human being
  3. With malice aforethought


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)


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


Elements of felony murder

  1. Unintentional and foreseeable killing
  2. Proximately caused during the attempt, commission, or flight from; 
  3. An inherently dangerous felony




What are inherently dangerous felonies?

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


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

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



Does common law or MPC recognize degrees of murder? 

No, degrees are only recognized in statutes

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


first degree murder

Killing that is premeditated and deliberate and some felony murders

⭐️ Specific intent crime



second-degree murder

Killing with malice but without premeditation and deliberation




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


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


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


involuntary manslaughter

  • Killing committed with gross negligence (criminal); or
  • Killing during the commission of a misdemeanor or other unlawful act


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


inchoate crimes

"Incomplete" crimes

  • Attempt
  • Conspiracy
  • Solicitation


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


When is solicitation complete?

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


Distinguish between solitication and attempt

Solicitation: mere encouragement or inticement

Attempt: substantial steps taken to prepare for crime



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





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)


Is renunication (withdrawal) a defense to attempt?

Only if:

  1. D voluntarily withdraws;
  2. Before completion of the crime



What is the impossibility defense to attempt?

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


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.

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.



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.



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)


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



Wharton's Rule

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.



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.


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


When will the accomplice be liable for crimes by the principal that he did not aid or abet?


  1. Crime is a "natural and probable" outgrowth of the original crime; and
  2. Crime is in furtherance of the original crime

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


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


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



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



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



Irresistible Impulse test

D is incapable of controlling his behavior

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



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;

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


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



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


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


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


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

⚠️ Note: Economic necessity is not valid justification



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


  • The consent was voluntarily given by a person with legal capacity to consent



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)


Is mistake of fact a valid defense?

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

⚠️ Note: Mistake can be either reasonable or unreasonable