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Flashcards in Criminal Law MBE Deck (30)
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The elements of a criminal offense include the mens rea, or guilty mind; the actus reus, the bad or unlawful act; and causation. With the exception of strict liability crimes, which have no mens rea, every statute defining a substantive criminal offense proscribes a particular mens rea and actus reus that must be proved by the prosecution beyond a reasonable doubt for criminal liability to result.


Actus Reus- Acts and Omissions

Before there can be a crime, there must be a criminal act (actus reus). The criminal act must be a voluntary, affirmative act that causes a criminally proscribed result. The act requirement may also be satisfied by an “omission” or failure to act under circumstances imposing a legal duty to act. A bad thought standing alone cannot result in criminal liability.


Voluntary Act

The criminal act must be physical and voluntary. Actions during unconsciousness, sleep, or hypnosis are not voluntary. Other acts that are not considered voluntary are reflexive or convulsive acts as well as conduct that is not the product of the actor’s determination.

Example: Person A pushes Person B into a bystander, injuring the bystander. Person B cannot be held criminally liable.

If an epileptic knows of the possibility of a seizure and engages in the voluntary act of driving a car, has a seizure while driving, and causes a fatal accident, then the epileptic is criminally responsible.

Example: An epileptic may still be criminally responsible if (i) he knows of the possibility of seizure and (ii) the last act was voluntary.

The best example of when liability is not generally imposed is for acts committed while sleepwalking.


Failure to Act When Duty Exists

A legal duty to act and the failure to do so results in criminal liability in these five instances:

i) Imposed by statute (e.g., the obligation to file a tax return);

ii) Contract (e.g., a lifeguard saving a drowning person);

iii) Special relationship (e.g., a parent’s duty to her child or the duty to one’s spouse);

iv) Detrimental undertaking (e.g., leaving a victim in worse condition after treatment); and

v) Causation (e.g., failing to aid after causing a victim’s peril).

The defendant must have knowledge of the facts giving rise to the duty to act and yet fail to act. Additionally, it must be reasonably possible for the defendant to perform the duty.

Contrast absence of a duty: When there is not a duty to act, a defendant is not criminally liable because she fails to help others in trouble. A mere bystander has no duty to act.


Mens Rea- State of Mind

Mens rea is the requirement of a guilty mind or legally proscribed mental state that a defendant must possess to commit a crime. Except for strict liability crimes, a crime is committed when a criminal act (actus reus) is coupled with a guilty mind—both the mental and physical elements exist at the same time. Strict liability crimes have no mens rea requirement and require only an actus reus.


Specific Intent Crimes

Specific intent crimes require that the defendant possess a subjective desire, specific objective, or knowledge to accomplish a prohibited result. When dealing with specific intent crimes, it is necessary to identify specific intent for two reasons. First, the prosecution must prove the specific intent in order to prosecute the defendant; second, certain defenses (e.g., voluntary intoxication and unreasonable mistake of fact) are applicable only to specific intent crimes.


The specific intent crimes include:

i) First-degree murder;

ii) Inchoate offenses (attempt, solicitation, conspiracy);

iii) Assault with intent to commit a battery; and

iv) Theft offenses (larceny, larceny by trick, false pretenses, embezzlement, forgery, burglary, robbery).

EXAM NOTE: A simple way to remember the specific intent crimes is by using the mnemonic “FIAT.” Whenever a fact pattern defines the crime as requiring “the intent to…,” the crime is a specific intent crime.


Malice Crimes

The crimes of common-law murder and arson require malice, a reckless disregard of a high risk of harm. Although these two crimes appear to have an “intent” requirement (e.g., intent to kill), malice requires only a criminal act without excuse, justification, or mitigation. Intent can be inferred from the accomplishment of the act.


General Intent Crimes

General intent crimes require only the intent to perform an act that is unlawful. Examples include battery, rape, kidnapping, and false imprisonment.

Motive is not the same as intent. The motive is the reason or explanation for the crime and is immaterial to the substantive criminal offense.


Transferred intent

When a defendant acts with an intent to cause harm to one person or object and that act directly results in harm to another person or object, the defendant can be liable for the harm caused under the doctrine of transferred intent.

Example: D points a gun at A, intending to shoot and kill A, but accidentally shoots and kills B instead. D is guilty of two crimes: the murder of B under the doctrine of transferred intent and the attempted murder of A.

Note that the doctrine of transferred intent applies only to "bad aim" cases and not to cases of mistaken identity.

Example: If D shoots at A and hits A, although mistakenly believing that A is B, the doctrine of transferred intent is unnecessary because D hit the very body he intended to hit; the intent, therefore, does not need to be transferred—D is guilty of shooting A.

Transferred intent, also known as the unintended victim rule, is usually confined to homicide, battery, and arson. Any defenses that the defendant could assert against the intended victim (e.g., self-defense) may also transfer to the unintended victim.

Note that transferred intent does not apply to attempted crimes, only completed crimes.

Example: D shoots at A with the intent to kill him, but D instead shoots B. The shot does not kill B, but merely injures her. D can be convicted of the attempted murder of A and of battery against B, but cannot be convicted of the attempted murder of B.

The Model Penal Code, while not specifically recognizing the doctrine of transferred intent, does recognize liability when purposely, knowingly, recklessly, or negligently causing a particular result is an element of an offense. This element can be established even if the actual result is not within the purpose or contemplation of the defendant, or is not within the risk of which the defendant is aware, so long as the result differs from the intended, contemplated, or probable result only insofar as (i) a different person or different property is harmed or (ii) the contemplated injury or harm would have been more serious or more extensive than the harm actually caused. MPC § 2.03.2(2, 3).


Model Penal Code

A crime defined by statute generally states the requisite mens rea. The following levels of culpability are based on the Model Penal Code (“MPC”), and could be expressly asked for in an MBE question.



When a defendant acts “purposely,” his conscious objective is to engage in the conduct or to cause a certain result. MPC § 2.02(2)(a).


Knowingly or willfully

“Knowingly” or “willfully” requires that the defendant be aware that his conduct is of the nature required by the crime or that circumstances required by the crime exist. In other words, the defendant must be aware or know that the result is practically certain to occur based on his conduct. MPC § 2.02(2)(b).



“Recklessly” requires the defendant to act with a conscious disregard of a substantial and unjustifiable risk that a material element of a crime exists or will result from his conduct. The risk must constitute a gross deviation from the standard of conduct of a law-abiding person. MPC § 2.02(2)(c). Mere realization of the risk is not enough.



A defendant acts “negligently” when that defendant should be aware of a substantial and unjustifiable risk that a material element of a crime exists or will result from his conduct. The risk must constitute a gross deviation from the standard of care of a reasonable person in the same situation. MPC § 2.02(2)(d).


Hierarchy of mental states

The MPC mental states are ordered from negligence as the lowest degree of fault to purposefully as the highest level of fault. Consequently, if a statute specifies a mental state, proof of a more culpable mental state satisfies the mens rea requirement. For example, if a statutory crime required that an act be undertaken knowingly, establishing that the act was committed purposefully satisfies the mens rea requirement with respect to that act. MPC § 2.02(5).


Mens rea not stated

If the requisite mens rea is not stated in a criminal statute, it is established if the defendant acted at least recklessly. If the mens rea does not state the culpable mind applicable to all material elements of the crime, then the mens rea applicable to one material element is applicable to all material elements, unless a contrary purpose plainly appears. MPC § 2.02(3),(4).


Strict-Liability Crimes

A strict-liability crime does not require a mens rea, rather, proof of the actus reus is sufficient for a conviction. Examples of strict-liability crimes include statutory rape; bigamy; regulatory offenses for public welfare; regulation of food, drugs, and firearms; and selling liquor to minors.


Public welfare offense

A public welfare offense is a strict-liability crime for which no mens rea is required. Conduct that is subject to stringent public regulation includes that which could seriously threaten the public’s health or safety or is inherently dangerous.

Examples: Typical examples include adulteration of food or drugs, regulation of waste disposal, and selling liquor to minors.


Presumption against strict liability

Criminal offenses requiring no mens rea are generally disfavored. United States v. United States Gypsum, Co., 438 U.S. 422, 438 (1978). Thus, courts have traditionally held that there must be some clear indication of congressional intent, express or implied, to dispense with mens rea as an element of the crime. In determining legislative intent, courts will often consider the severity of the associated penalty, finding crimes with relatively light penalties to be strict liability offenses, and those with more severe penalties (such as felony crimes) to have a mens rea element. Staples v. United States, 511 U.S. 600 (1994).


Vicarious Liability

Vicarious liability differs from strict liability in that strict-liability crimes require only a personal act on the part of the defendant (actus reus); vicarious liability crimes do not require an actus reus by the defendant. Instead, vicarious liability imposes criminal liability on the defendant for the actus reus of a third party.


Application to strict-liability crimes

Courts often impose vicarious liability for strict?liability crimes, most commonly when an employer or principal is vicariously liable for the crimes of an employee or agent. However, sometimes it is unclear whether the legislature intended for vicarious liability to apply to a strict-liability offense. When the punishment for a strict-liability crime is light, courts are more likely to find that vicarious liability applies. The modern trend is to limit vicarious liability to regulatory crimes.

Vicarious liability may present due process issues because it can involve criminal liability without a personal act on the part of the defendant. Although imprisonment for a faultless crime may have constitutional due process implications, when the punishment for a crime is merely a fine, the application of vicarious liability is unlikely to constitute a denial of due process.


Application to corporations

When dealing with corporations, common law held that corporations had no criminal liability because a corporation could not form the necessary mens rea. Modern statutes, on the other hand, impose vicarious liability on corporations when the offensive act is performed by an agent of the corporation acting within the scope of his employment or when the act is performed by a high-ranking corporate agent who likely represents corporate policy. Under the MPC, a corporation may be held criminally liable if (i) the corporation fails to discharge a specific duty imposed by law, (ii) the board of directors or a high-ranking agent of the corporation acting within the scope of his employment authorizes or recklessly tolerates the offensive act, or (iii) the legislative purpose statutorily imposes liability on a corporation for a specific act. The individual agent of the corporation who violated the statute may also be held criminally liable, and the corporation’s conviction does not preclude conviction of the individual. MPC § 2.07.



When mens rea is a requirement of a crime, that mens rea must generally cause the actus res. In addition, the defendant’s act must cause the particular result made unlawful by statute.


Mistake as a Defense

a. Mistake of fact

1) Negation of intent

Mistake as a Defense

a. Mistake of fact

1) Negation of intent

Mistake of fact may negate criminal intent but it must be an “honest mistake.” The defense applies differently between specific- and general?intent crimes. Mistake of fact is never a defense to a strict-liability crime because strict-liability offenses do not have a mens rea.


Reasonableness of mistake

a) Specific-intent crimes

Reasonableness of mistake

a) Specific-intent crimes

A mistake of fact is a defense to a specific-intent crime, even if the mistake is unreasonable.

Example: An athlete takes an expensive gold watch from a table mistakenly thinking that it was her inexpensive black plastic sports watch. Even though the athlete’s mistake of fact is unreasonable, the athlete lacks the intent to steal necessary to commit larceny, a specific?intent crime.


General-intent and malice crimes

A mistake of fact must be reasonable in order to be a defense to a general-intent or malice crime.


MPC approach

Under the Model Penal Code, a mistake or ignorance of fact that negates the required state of mind for a material element of a crime is a defense. MPC § 2.04(1).


Mistake of law

Mistake or ignorance of the law generally is not a valid defense, except when:

i) There is reliance on the decision of a court, administrative order, or official interpretation of the law determined to be erroneous after the conduct;

ii) A statute defining a malum prohibitum crime (i.e., a crime for engaging in conduct not obviously wrong, such as a failure to obtain a license) was not reasonably made available prior to the conduct; or

iii) An honestly held mistake of law negates the required intent (e.g., specific intent) or mental state (e.g., purposefully) for a material element of the crime. MPC § 2.04(1).

Example: A forcibly takes money from B to settle a debt that B owed to A. A has the mistaken belief that the law allows for self-help in such situations. A’s belief negates the specific intent required for the crime of robbery (i.e., the specific intent to gain control over the property of another person).

Incorrect or bad legal advice from an attorney is not itself a valid mistake-of-law defense, but it may negate the required intent or mental state for a material element of the crime.

Similarly, a mistake of law as to the existence of a defense does not permit a defendant to raise the defense unless one of the exceptions enumerated above applies.



Criminal jurisdiction addresses the authority of the federal and state governments to create criminal laws and the authority of courts to enforce those laws. (Procedural rules that affect the conduct of a trial, such as the admissibility of a defendant’s confession, are discussed in the Themis Criminal Procedure outline.)