Criminal Law

Criminal law, encompasses the rules and statutes written by Congress and state legislators dealing with any criminal activity that causes harm to the general public, resulting in penalties that include incarceration, and in some cases, even the death penalty.

There are about twenty MBE criminal law questions. Test takers are responsible for common law definitions unless otherwise stated. Sometimes questions asks to give the best answer. The best answer would most likely be the modern view.

  1. A. Classification of crimes.Distinguish felonies from misdemeanors.
  2. Felony. A crime punishable by death or by imprisonment exceeding one year.
    1. Burglary. Breaking and entering involving trespass and theft.
      1. Common law. The breaking and entering, of a dwelling house, of another, at night, with the intent to commit a felony therein. Intent must be present at the time of entry.
      2. Modernly, no state has the night requirement.
    2. Arson.
      1. Common law. The malicious burning (charring) of the dwelling (residence) of another. No significant amount of damage was required. Damage to curtains or wall covering is insufficient. An unoccupied building is not a dwelling. Burning ones own house is not arson.
      2. Modernly, dwelling is no longer required in most states.
    3. Robbery.
      1. Common law. Taking the property of another, with the intent to permanently deprive the person of that property, by means of force or fear. The victim must be placed in apprehension or fear that force would be used immediately before or at the time of the taking of the property. A threat is not immediate if the wrongdoer threatens to use force of violence at some future time.
      2. Modernly, taking or attempting to take personal property of another through the threat of force or the use of force and putting the victim in fear.
    4. Rape.
      1. The unlawful sexual intercourse by a man with a woman, not his wife against her will. At common law a husband could not rape his wife.
      2. Modernly, a husband can rape his wife. Rape applies to both sexes. Any amount of penetration is sufficient.
    5. Larceny. The wrongful taking and carrying away of the personal property of another with the intent to permanently deprive them of it.

The intent of the party must be felonious. They must intend to appropriate the property of another to their own use. If the accused have taken the goods under a claim of right, however unfounded, no larceny has been committed. If one finds goods and appropriates it for their own use, they have not committed larceny. The defendant must have intent to steal, coupled with an actual carrying away. The slightest removal is sufficient. The property taken must be personal property not real estate.

Example. An apple hanging on a tree while it grows is real estate, having never been separated from the freehold. At common law, to pluck an apple from the tree and appropriate it to one’s own use was but a mere trespass. If the owner had separated the same apple from the tree or if shaken by the wind and while lying on the ground it is taken with a felonious intent, the taker would commit a larceny, because the apple was now personal property.

  1. Murder. The killing of another human being with malice aforethought (intent to kill).

Malice aforethought. The deliberate intent to cause death or great bodily harm to another person before the criminal act is committed. Malice aforethought is an element that must be proved in the crime of first-degree murder. The description of the perpetrator’s state of mind means that they intended to inflict injury without legal justification or excuse (legal justification included the defense of self-defense, while excuse includes mental illness and duress).

Malice aforethought is comprised of any one of the following three elements:

  1. Intent to kill.
  2. Intent to inflict grievous bodily injury.
  3. Intent to act in a manner that creates a strong likelihood that death or grievous harm will follow.

Of these three prongs, the first two require a specific intent on the part of the defendant, measured subjectively, while the third prong only requires a general intent, measured both subjectively and objectively. Accordingly, malice aforethought may exist without an actual intent to kill or do grievous bodily harm, if there is likelihood that death or grievous harm would follow. This simply means that the perpetrator knew of circumstances that a reasonably prudent person would have known, would create a strong likelihood of death or grievous bodily harm resulting from their act. The law can infer malice from circumstantial evidence, such as from the intentional use of a deadly weapon.

  1. Manslaughter. Murder where the defendant intended to cause serious bodily harm but death resulted.

Commonwealth v. Malone, 47 A.2d 445 (1946). Malone, a 17 year old had a 13-year-old friend named Long. Malone took a revolver from his uncle and Long took a bullet from his father. Malone suggested that they play Russian Roulette. Long said he didn’t care, so Malone proceeded to play, pointing the gun at Long, shooting three times before the gun went off killing Long. Malone was tried and convicted for second-degree murder. He appealed the conviction claiming that he could not be convicted of second-degree murder because he lacked the requisite “malice aforethought” and intent to kill. The question before the court was pointing a gun at a friend and playing Russian roulette sufficient to justify a conviction of second-degree murder? Yes, the common law distinction between murder and other types of killing is malice. Malice does not have to be directed against the victim personally. It could be any evil design in general. When an individual commits an act of gross recklessness for which he must reasonably anticipate that the death of another is likely to result, he is guilty of malice. Malone acted with reckless and conscious disregard for the consequences of Russian roulette. The fact that he had no motive to kill does not excuse him because proof of motive is not necessary.

Malice. An evil intent to cause injury. It is not confined to the intention of doing an injury to any particular person, but extends to an evil design, a corrupt and wicked notion against someone at the time of committing the crime.

Example: A intended to poison B, conceals poison in an apple and puts it in the way of B. C, against whom A had no ill will and was his friend, happened to eat it and died. A is guilty of murdering C with malice aforethought.

  1. Mayhem.
    1. Common law. The dismemberment or disablement of a body part in such a way that the victim is less able to fight.
    2. Modernly, many states replaced the common law crime of mayhem with statutory forms of aggravated assault and battery. The statutes eliminate the requirement for dismemberment or disfigurement, by only requiring the defendant actually caused some form of serious injury, such as a shooting, stabbing, cut or wound.
    3. Misdemeanor. A crime punishable for less than one year, or by fine only.
      1. Assault. The intentional act to create the apprehension of an imminent harmful or offensive contact. Requires the victim to be in apprehension of the harmful or offensive contact.

There must be reasonableness to the apprehension on the part of the victim. If the physical contact is everyday social behavior such as a handshake or friendly pat on the back, this is acceptable even though the victim may have a phobia. However, if the defendant is aware of the phobia this may be an assault if the intention was to exploit the condition and embarrass the victim. If the defendant threatens injury tomorrow, there is no assault because the imminent requirement is not satisfied. Here, the victim has the opportunity to take avoiding action.

  1. Battery. An unlawful use of force to another person resulting in bodily injury or offensive contact. Guilty through criminal negligence or reckless conduct.

  1. General intent crimes. Do not require a specific mens reas. Mens rea is inferred from the act. It is not necessary for the prosecution to prove the defendant intended the harm or result that occurred. The prosecution must prove the defendant’s actions were not accidental.

Example: A walks up behind B and shoves them. This is an assault and battery. General intent simply means that that act was not accidental, that A intended to shove B that A didn’t trip and accidentally bump into B. That A intended to shove B.

  1. Rape. Sexual intercourse by a man with a woman, not his wife without consent. If the person is incapable of consenting, there is no consent. The slightest penetration is sufficient.

Example: Does the prosecution have to prove the defendant intended to commit rape in order to convict? No, the only thing they have to prove is the act of non-consensual intercourse occurred. Voluntary intoxication is not a defense to general intent crimes.

  1. Battery. An unlawful application of force to a person of another resulting in either bodily injury or offensive touching.
  2. Arson. The malicious burning of the dwelling house of another.
  3. Kidnapping. Moving a victim, or concealment in a secret place.
  4. Involuntary manslaughter. An unintentional killing through criminal negligence.
  5. Depraved heart murder. A callous disregard for human life that results in death. Considered second degree. If no death had occurred the act would be defined as reckless endangerment.
  1. Specific intent crimes require a specific mens rea or an intent to commit the act. In the example above, suppose when A shoved B, B fell into a desk, fractured their skull and died. Is this an assault and battery or murder? To prove murder, the prosecutor must show that A intended more than shoving B. They need to prove when A shoved B, A intended the act to kill B. In specific intent crimes, the prosecutor must prove not only that the defendant committed the criminal act, but also that they had the intent required by statute to commit the crime. These crimes are easy to recognize because statutes set out the specific intent required to prove the crime. Words in a statute, which make it a specific intent crime, include terms such as, knowingly, willfully, for the purpose of, premeditated design and with intent to.
  2. Inchoate crimes. The crime doesn’t have to be completed in order to convict the defendant.
    1. Solicitation. Enticing, encouraging, advising, commanding or counseling another to commit a crime. Solicitation is complete at the time it is made. Agreement is not required.
      1. If there is an agreement the crime is conspiracy. Withdrawal is no defense to solicitation. When a person agrees to solicitation the crime merges into conspiracy.

Example: A hires B to commit murder. B commits the murder. A and B are guilty of murder only. There is no conspiracy.

MBE: D solicits B to commit a burglary and a robbery and the target offenses are completed. What is D guilty of? Burglary and larceny only.

  1. Attempt. A substantial step toward an act done with the intent to commit a crime. The act falls short of actually committing the crime. There must be an intention to do something that, if completed would actually be a crime. The crime is complete once the act is done.
    1. Common law required a significant overt act.
    2. Modern law requires a substantial step. Other requirements:
      1. Specific intent. The defendant must have the specific intent to commit the target offense.
      2. Substantial steps. The defendant must do an act that constitutes a substantial step in the commission or attempted commission of the crime. Mere preparation is not enough.

Examples of substantial steps include:

  1. Lying in wait.
  2. Following the targeted victim.
  3. Luring the victim to the place where the crime will be committed.
  4. Unlawful entry of a structure or vehicle where the crime would be committed.
  5. Possession of materials to be employed in the crime. (Ski masks, or guns in the defendant’s possession).
  6. Possession, collection or fabrication of material to be employed in the crime at or near the place for its commission.

MBE: Use substantial step requirement.

MBE: Husband decides to murder his wife to collect life insurance proceeds. He took out a 500k policy on his wife’s life and ten planned to take her on a boating trip to Mexico and drown her. He took her to Mexico and decided he’s in love with her and didn’t go through it. They return home. Days later he says to his wife, “I was going to kill you on our trip to Mexico.” She informs the police and he’s prosecuted for attempted murder. Is he guilty? Taking out the life insurance policy was merely preparation and not a substantial step in the commission of the crime. He would not be guilty of attempted murder.

Merger. Attempt merges into the completed crime if the targeted offense is committed.

Example: A hires B to commit murder, there are substantial steps taken to commit the murder, and B does commit murder. A and B are charged with murder, not attempted murder.

Defense.

Abandonment is not a defense to attempt.

Factual impossibility is not a defense for attempt.

Legal impossibility is a valid defense. The defendant accomplished everything he intended to do, but the acts do not constitute a crime.

Example: D set fire to his home to collect insurance proceeds. He thinks setting fire to his own home is arson. Is D guilty of arson at common law? No, it’s a legal impossibility because the dwelling house requirement must be another persons.

People v. Jaffe, 78 N.E. 169 (1906). Someone stole clothing from Goddard, but the police recovered it. Goddard allowed the police to use it in a sting operation. Undercover police went to Jaffe and asked if he would be interested in buying stolen clothing. He was interested. The police arrested Jaffe for attempting to receive stolen property. Jaffe argued what he received was not stolen and as a result, he could not be convicted of attempt because commission of the underlying crime was an impossibility. The New York Supreme Court found that if a person intends to commit an act that would not be a crime if it were consummated, the person cannot be convicted of an attempt. The Court found that an essential element in the crime is that the defendant must have knowledge that the goods were stolen. But since the goods were not stolen, by definition Jaffe could not have knowledge of something that was untrue. The Court compared this to a man who sleeps with a girl he believes is under the age of consent. If she is actually older than he thinks, he cannot be guilty of statutory rape, even if he intended to commit the offense. This case defined when impossibility can be used as a defense against an attempted crime. In general, if there is a legal impossibility, then there is a defense, but if there is only a factual impossibility, then there is no defense.

Example of a legal impossibility would be for hunters to shoot at an artificial deer without a license. Since it is not a crime to kill a stuffed animal, it is no crime to attempt to do what is legal.

Example of a factual impossibility is when you put your hand in someone’s pocket to rob them, but they have no money. While it is factually impossible to rob someone with no money, if you had been successful you would be guilty of robbery, so being unsuccessful still makes you guilty of attempted robbery.

Example: D shot at a victim, but failed because the intended victim was not where they were supposed to be, too far away to be killed by the weapon employed, or an unloaded gun was used.

Example: Attempted to perform an abortion, but the victim wasn’t pregnant.

Example: The intended victim of extortion was not in fear.

  1. Conspiracy. Doesn’t merge with target crime.
    1. Common law elements:
      1. An agreement between two or more parties to commit a crime.
      2. D’s must have the specific intent to commit the crime.
      3. Plurality requirement at common law. If A is found not guilty of conspiracy, B cannot be found guilty of conspiracy.
      4. Model penal code: If A is acquitted, B can still be found guilty of conspiracy.
      5. Some states require an overt act or an overt act in furtherance of the conspiracy. Each coconspirator is held criminally liable for all foreseeable crimes committed in furtherance of the conspiracy.

Example: A and B conspire to rob a bank. A is the getaway driver. B enters the bank and during the commission of the robbery, kills the security guard and gets 100k. A is guilty conspiracy to commit bank robbery and felony murder two.

Wharten rule. Frequently tested on essays. Where two people are necessary for the commission of an offense, there is no conspiracy unless the agreement involves an additional person.

Example: if A and B are guilty of a crime that takes two people to commit, they cannot also be guilty of conspiracy. Wharten rule crimes include, bigamy, dueling, adultery, incest, gambling and given and receiving a bribe.

Example: If A and B are guilty of bigamy they cannot be convicted of conspiracy too.

Defense.

Impossibility is no defense to conspiracy.

Withdrawal. At common law withdrawal is no defense because at the moment parties agreed the conspiracy was already completed. But may not be liable for any subsequent crimes.

Withdrawal may be a valid defense to subsequent crimes in furtherance of the conspiracy. Requires notice to all coconspirators, given notice in time for the other members to abandon the plan, neutralize any assistance given.

There is no conspiracy if a person pretends to agree in order to inform police.

Agreement can be inferred from joint activity.

A corporation cannot conspire.

Example: On Monday, A and B enter into a conspiracy to commit a bank robbery the following Wednesday. On Tuesday A gets cold feet and decides to renounce his participation. B robs the bank and during the course of the robbery B shoots and kills the bank guard. What crimes are A guilty of? Conspiracy to commit bank robbery because he entered into the agreement to rob the bank. A is not guilty of the completed crime of bank robbery or the felony murder.

Model penal code. Withdrawal is a valid defense to conspiracy if the renouncing party gives timely notice to all members of the conspiracy and thwarts its success.

  1. Larceny by trick. Distinguishable from larceny in that a defendant who commits larceny by trick obtains only possession of the personal property of another, not title of that property. Also, the property was taken by intentionally making a false statement to the victim.

Defense of intoxication.

Voluntary intoxication may be a defense for a specific intent crime, if it negates the specific mens rea required for the crime.

Example: Larceny requires an intent to steal. If D can show that they were so intoxicated that they took another person’s property by mistake, believing it to be their own they lacked the mens rea requirement to be guilty.

  1. Forgery. The act of criminally making or altering a written instrument for the purpose of fraud or deceit.

Example: Signing another person’s name to a check.

  1. Burglary.
  2. Assault.
  3. Intent to kill murder.
  4. Involuntary manslaughter.

  1. Other crimes.
  2. Infamous crimes are crimes of fraud or dishonesty.
  3. Malice crimes. Reckless conduct satisfies the malice requirement.
    1. Arson.
    2. Malicious destruction of property that belongs to another.
    3. Strict liability crimes Impose absolute criminal liability. No defenses are available.
    4. Bigamy. The act of being lawfully married and marrying another.
    5. Violation of regulatory offenses:
      1. Contributing to the delinquency of a minor.
      2. Selling alcohol to a minor.
      3. Statutory rape. Rape by statute.

Example: Johnny Paycheck met a girl at the end of his concert. She told him she was an 18-year-old college student attending Ol’ Miss. They had sex and it turned out she was 13. His defense was mistake of fact, that he did not know her true age. He was convicted and spent a year in prison because mistake of fact is no defense to statutory rape.

  1. B. Parties to crimes.
  2. Principles in the first degree are the actual perpetrators who commit the crimes by their own hands.
  3. Principles in the second degree are present at the scene and aid and abet P1 in the commission of a crime, but don’t actually commit the crime. P2’s are punished to the same extent as P1’s.

Example: The getaway driver in a bank robbery.

Example: P1 robs a bank and murders the security guard. P2 drives the getaway car. P2 is guilty of the same crimes as P1, conspiracy to commit bank robbery, robbery and felony murder.

Edmund v. Florida, 458 U.S. 782. Edmund, a principle in the second, argued that his death sentence constituted cruel and unusual punishment in violation of the 8th amendment for aiding a felony that ended in murder, even though he did not participate in or intend for the murder to happen. The S.C. held the 8th amendment does not permit the imposition of the death penalty on a person that aids and abets another in the commission of a felony where a killing took place, where the principle in the second had not committed the felony himself or intended for a killing to occur.

  1. Accomplice liability.
    1. There must be specific intent for the crime to occur.
    2. The accomplice must aid, abet or encourage P1 in the commission or attempted commission of the crime.

MBE: D comes home from work and tells his wife he’s going to rape the neighbor. Wife says. “Can I come along?” D agrees. They go next door. D knocks on the door. Neighbor opens and wife begins shouting, “Do it to her.” D rapes neighbor. Is wife guilty of rape? Yes, because she had specific intent that her husband would commit the crime and she shouted words of encouragement that aided and abetted the commission of the crime. She cannot be guilty as P1, but she can be found guilty under the accomplice theory of liability.

  1. Accessories before the fact is one who aids, abets, counsels, or encourages the commission of a felony, but is not present at the scene of the crime. They are guilty to the same extent as the perpetrator.

Example: If the accessory gives a gun to a bank robber to be used to rob a bank and the gun is used to kill the teller, the accessory is guilty of conspiracy and felony murder.

  1. Accessories after the fact are not guilty of the subsequent crimes that had been committed. Guilty of obstruction of justice. Three requirements to be guilty:
    1. A completed felony must have been committed.
    2. The accessory must known of the commission of the felony.
    3. The accessory must have personally given aid or assistance to the felon to hinder the apprehension, conviction or punishment of the felon.
  1. C. Crimes against the person.
  2. Homicide.
    1. Murder. The unlawful killing of a human being with malice aforethought.
      1. Intent to kill with premeditation and deliberation.

Modernly first-degree murder is usually pre-meditated by statute.

Example: Poisoning the victim.

Example: Lying in wait with a shotgun and blowing them away.

  1. The use of a deadly weapon infers an intent to kill.
  2. Mercy killings are intentional killings and are therefore murder.
  3. Intent to inflict serious bodily injury. D didn’t intend to kill victim, but did intend to commit serious bodily injury and as a result the victim died.
  4. Wanton or reckless conduct. Also known as depraved heart.
  5. During the commission of an inherently dangerous felony such as burglary, arson rape, robbery and kidnapping.

Example: D believes X is having an affair with his wife. D hides in the bushes outside of X’s home and when X arrives D jumps out of the bushes and beats X with a baseball bat, intending to break his leg. Unknown to D, X is a hemophiliac and dies from a loss of blood. What crimes are D guilty of? Murder.

  1. Felony murder. An unintentional killing that occurred during the commission or attempted commission of an inherently dangerous crime. Usually first-degree murder.
    1. The defendant must be found guilty of the inherently dangerous crime for felony murder to apply.
    2. The felony must be distinct from the killing itself.

Example: During a robbery of a convenient store, the clerk is accidentally killed.

  1. Death must have been a foreseeable result of the felony.
  2. The death must have been caused before the defendant’s immediate flight ended. Once the defendant has reached a place of safety the felony murder rule no longer applies.

Example: D’s commit a bank robbery and while fleeing from the scene in the getaway car the driver hits and kills a pedestrian.

Example. If the robbers reach their hideout, divvy up the money and go their own way, but one of them kills someone on his way home. The felony murder rule does not apply because at some point the original crime of robbery terminated.

  1. The defendant is not usually liable for felony murder when an innocent person is killed unless the defendant or their accomplice caused the death. However, under proximate cause theory a defendant will be guilty if the victim or police killed an innocent party.
  2. The defendant is not usually liable when a co-felon is killed due to resistance by the victim or the police.
  3. Inherently dangerous felonies: (BARRK)
    1. Burglary.
    2. Arson.
    3. Rape.
    4. Robbery.
    5. Kidnapping.
    6. Voluntary manslaughter. An intentional killing in the heat of passion where the defendant acts with adequate provocation.
      1. Common law murder where the defendant was provoked.
        1. An objective test where the provocation would arouse sudden and intense passion in the mind of a reasonable person causing them to lose control.
        2. The defendant must have been provoked.
        3. There is no cooling off period. (D cannot walk away and then come back and kill the victim.)
      2. MPC applies a subjective test, taking into account the defendant’s personal feelings, idiosyncrasies or state of mind.

Example: D returns home and finds his wife in bed with another man and in a heat of passion shoots and kills her lover. If there is a cooling off period the crime is murder.

  1. Imperfect self-defense. States recognizing this rule reduces murder to involuntary manslaughter if:
    1. The defendant killed in self-defense but started the fight.
    2. The defendant killed in self-defense because he believed it was necessary, but that belief was unreasonable.
    3. Involuntary manslaughter.
      1. Unintentional killing. The victim is killed because the defendant was criminally negligent, but did not intend to kill the victim. The absence of the element of intent is what distinguishes between voluntary and involuntary manslaughter.

Example: D fires a gun into a home that he reasonably believed to be unoccupied but someone inside was struck by the bullet and was killed.

Example: D is driving his car 90 mph on a country road at 3:00 a.m. and a pedestrian is killed.

  1. Depraved heart murder. An unintentional killing that resulted from defendant’s callous indifference to the value of human life. A high degree of reckless conduct.
    1. Common law punished unintentional homicide as murder if the defendant’s acted through gross recklessness. Commonwealth v. Malone.
    2. MPC unintentional killings occur when the defendant’s conduct manifests an extreme indifference to the value of human life.

Reckless endangerment. Conduct that creates a substantial risk of serious injury to another that is foreseeable.

Example: D is driving his car 90 mph on a crowded city street at 12 noon and a pedestrian is killed.

Example: If D fires a gun in a room or a home that is occupied by several people and the bullet ricochets off the wall killing one of the occupants.

  1. Misdemeanor manslaughter. Murder resulting from crimes that are not inherently dangerous. At common law assault and battery were misdemeanors. Any time death resulted from assault and battery the defendant was guilty of misdemeanor manslaughter the equivalent of involuntary manslaughter.

Example: A pickpocket stole a man’s wallet and is discovered in the act. He runs to get away and the victim shouts, “Stop that man.” The victim then has a heart attack and dies. The defendant is guilty of involuntary manslaughter because larceny is not an inherently dangerous felony.

  1. Assault.
    1. Common law misdemeanor. An attempted battery with the intent to cause physical harm to the victim. Mere words are insufficient. Words may negate an assault; “I’d punch you if you weren’t a girl.”
    2. Threatening conduct intended put the victim in apprehension of an imminent bodily harm or offensive touching.
    3. Aggravated assault. A felony where the defendant commits an assault with a dangerous weapon to commit rape or to maim the victim.
    4. Battery. An unlawful application of force to another person resulting in either bodily injury or an offensive touching.
      1. Anything connected to the defendant’s person may touch anything connected to the victim’s person.

Example: The defendant causes his dog to attack the victim.

  1. A general intent crime that does not require a specific mens rea.

Distinguish between criminal battery, which is a general intent crime and tortuous battery, which is an intentional tort. Under tort law the defendant must have intended to cause a harmful or offensive contact and it must have occurred.

  1. Aggravated battery. A felony in some states where the defendant uses a deadly weapon resulting in serious bodily harm of a child, woman or cop.

Defenses.

  1. Consent.
  2. Crime prevention. Apprehending someone who is committing a crime in their presence.
  3. Defense of others.
  4. Self defense.
  5. Mayhem.
    1. Common law. The dismemberment or disablement of a body part in such a way that the victim is less able to fight.
    2. Modernly, many states replaced the common law crime of mayhem with statutory forms of aggravated assault and battery. The statutes eliminate the requirement for dismemberment or disfigurement, by only requiring the defendant actually caused some form of serious injury, such as a shooting, stabbing, cut or wound.
    3. Kidnapping.
      1. Common law. An unlawful concealment of a person’s liberty by force. Required the victim to be sent to another country.
      2. Modernly only requires a victim be taken to another location. The MBE follows the modern view.
      3. Aggravated kidnapping. Ransom, for the purpose of committing other crimes such as payment of ransom, child stealing.
      4. Rape. Sexual intercourse by a man with a woman, not his wife and without her consent. The slightest penetration is enough.
        1. At common law a man could not rape his wife.
        2. Modernly, a husband may be found guilty of raping his wife.

Defense.

  1. Consent.
  2. Consent is no defense to statutory rape because it is a strict liability crime.
  3. Bigamy. Marriage by one individual to more than one other person.
  4. Incest. Sexual relations between people who are closely related to one another.

  1. D. Crimes against personal property.
  2. Larceny. A trespassory taking and carrying away the personal property of another with intent to permanently deprive the owner of it.
    1. Includes consent obtained through fraud.
    2. The intent to permanently deprive must exist when the property is taken.
    3. Larceny exists if at the time of the taking there was no intent to permanently deprive the owner but the defendant later decides to keep it.
    4. Carrying away is the slightest distance.
    5. Example: A places his wallet on a countertop. B moves it slightly with the intent to carry it away. B notices that A has discovered him moving the wallet and places it back down. Is B guilty of larceny? Yes, because the movement only needs to be a slight distance and putting the property down is not a valid defense because the crime was complete at the time it was moved a slight distance, with the intent to steal.
    6. Common law larceny required the theft of tangible property. A fixture is real property and a defendant will not be subject to liability for larceny at common law.

Example: A tenant has a lease for an apartment for one year, and builds a bookcase that he nails onto the bedroom wall. At the end of the lease the tenant wants to remove the bookcase. The landlord tells the tenant he cannot remove the bookcase because it is a fixture annexed to the real estate. The tenant then removes the bookcase. Is he guilty of common law larceny? No, because the bookcase is a fixture and common law larceny was limited to tangible personal property. The theft of real property would not impose liability for larceny.

  1. Abandoned property. Taking abandoned property is not larceny.
  2. Taking lost or misplaced property is larceny. In order to be guilty of larceny for lost or misplaced property:
    1. The finder must intend to steal the property at the time of the finding.
    2. The finder must know who the owner is, or have reason to believe they can find the owner’s identity.
    3. A good faith claim is a valid defense to larceny.
    4. Continuing trespass doctrine. One who takes the property of another without authorization, intending only to use it temporarily before restoring it to the owner is guilty of larceny if they later change their mind and decides not to return the property.

Example: D borrows skis from his neighbor’s garage intending to return them after the ski trip but after using them, decides to keep them.

  1. Larceny requires the intent to deprive the owner from their property forever.

MBE: D takes his neighbor’s lawnmower without permission, intending to return it after mowing his lawn. While using it, the blade hit a rock and the mower is substantially damaged. D attempts to return the mower. Is D guilty of larceny? No, because he did not intend to steal the mower. He only intended to borrow it. D would be liable for conversion under tort law for the full value of the chattel because he substantially damaged the property.

  1. Employee theft. To distinguish larceny from embezzlement determine if the taking is from lower or upper level employees. Lower level employees such as secretaries, janitors or truck drivers have custody of employer property so when they steal the crime is larceny. Upper echelon employees such as office managers, corporate officials or bank presidents are in possession of employer’s property and when they steal the crime is embezzlement.
  2. Embezzlement. The fraudulent conversion of the property of another by one who is in lawful possession of it in a bailment or entrustment situation. These are situations where a bailor entrusts their property to a bailee who later decides to misappropriate it.

Example: P brings his watch to D jeweler to have it repaired. D later decides to keep the watch and replace it with a less valuable copy.

  1. Intent to defraud is required. It is not embezzlement if the defendant believed it was their own property.
  2. If the defendant intends to return that same property embezzlement does not apply.
  3. Intent to return similar property is embezzlement. Example: Money.
  4. False pretenses. A false representation of a material past or existing fact, which the person making the representation knows is false and causes the victim to pass title. The following crimes are false pretense crimes.
    1. Credit card fraud.
    2. Confidence game schemes.
    3. Mail fraud.
    4. Securities fraud.
    5. Insufficient funds. If the defendant knew they had insufficient funds when they wrote a check, and intended to defraud their victim.

It must relate to a material fact, not opinion.

Puffery is insufficient.

In false pretenses the defendant gets title and possession.

Title passes with money.

MBE: A enters a toy store with the intention of purchasing a new monopoly game. The game sold for 10.00, A only had 8.00. Realizing he did not have enough money to purchase the game A replaced the price tag with a 7.00 price tag. He went to the cashier, paid 7.00, received a receipt and walked out of the store. A would be convicted of false pretenses because he acquired possession and title to the game.

  1. Larceny by trick. Same crime as false pretenses, however the defendant only gets possession. Title never passes.

MBE: D drove his car into a service station and said, “Fill it up.” The attendant put 10.00 of gas in the tank. After getting the gas D said, “Thanks for the freebee sucker, “ and sped off without paying. Here, unlike in the game example where the cashier gave title to the property in the form of a receipt, the attendant did not give permission for D to leave. He sped off on his own without paying. D doesn’t acquire title to the gas under those circumstances.

  1. Receiving stolen property. Receiving possession and control of stolen personal property know to have been obtained in a manner constituting a criminal offense by an other person with the intent to permanently deprive the owner of their interest in it.
    1. The property does not have to be in actual manual possession of the defendant. Placing the property in a location designated by the defendant while they arrange to fence it is sufficient.
    2. The property must actually have been stolen when the defendant receives it.
    3. If the property was not stolen but the defendant believes it was, they can be convicted of attempted stolen property.

Common law. D had to have actual knowledge the property was stolen when it came into their possession.

Modernly and MBE view: A defendant that has actual or constructive knowledge is sufficient.

Example: A is about to enter a shopping center when is he approached by B who says he has a new 30” Sony TV, in its original shipping box for 10.00. B takes A to the back of the shops and opens a tractor trailer that is filled with TVs. A pays 10.00, and begins to carry the TV away. He’s arrested and charged with receiving stolen property. A says he had no actual knowledge that the TV was stolen. The court said he had constructive knowledge, where he purchased an expensive TV for 10.00 in its original packaging and that should have given him notice that the TV was stolen.

  1. Robbery. The equivalent of larceny and assault and/or battery. The taking must be accomplished by force, violence or intimidation.
    1. The taking must be from the victim’s person or presence.

It must place the person in actual fear, or apprehension at the time of the taking, which must be an imminent taking.

Snatching cases. Did the victim feel apprehension when their necklace or purse was taken? Is the D guilty of larceny or the more serious crime of robbery? The line between robbery and larceny is between violence and lack of violence. Under snatching cases, there is not sufficient force to constitute robbery when the thief takes property from the owner’s grasp so suddenly that the owner cannot offer any resistance to the taking. However, where the owner is aware of the impending snatching and resists it, or the thief’s first attempt was ineffective and a struggle ensues, there is enough force to make the taking a robbery.

Example: If a pickpocket takes a wallet, it’s the crime of larceny. However if the owner catches the pickpocket in the act and struggles unsuccessfully to keep possession of the wallet, the pickpocket crime becomes robbery.

Merger. Larceny and assault merge into robbery. The D cannot be convicted of both crimes.

MBE: D violently takes the property of P, placing them in apprehension, and as a result received physical injury during the crime. Is D guilty of robbery, larceny and assault and battery? No, robbery only because the lesser crimes merge into robbery.

  1. Extortion/blackmail. Obtaining property by means of threats to do harm or to expose information. In some states the crime is complete when the threat is made.

  1. E. Crimes against the dwelling/real property.
  2. Arson. The malicious burning of the dwelling house of another.
    1. A general intent crime because it is defined as a malicious or reckless burning.
    2. Mere charring is sufficient, but blackening by smoke or water damage is not enough.
    3. An explosion is not arson, unless it causes a fire.

Defense. Voluntary intoxication is no defense to general intent crimes.

  1. Burglary.
    1. Common law. The breaking and entering of the dwelling house of another at night with the intent to commit a larceny or felony therein.
    2. Modernly there is no night requirement.

Intent must be present at the time of entry.

There has to be an actual breaking. Entry through a preexisting opening such as an open door or window does not constitute a breaking. If a door or window is partially open, the further opening of it is not a breaking either. There must have been a prying open of a door or window.

Constructive entry through fraud or force is sufficient.

Example: D rings V’s doorbell. The door is closed. V asks who is it? Misrepresenting his identity D says, “Joe’s pizza.” Believing her son had ordered a pizza, V opens the door. D punches V, enters the home and steals her purse. The breaking occurred where D misrepresented his identity.

MBE: Where a person gains entry without a breaking in, but commits a breaking out, in order to leave. Is he guilty of burglary? No, there had to be a breaking and entering. Committing a breaking to leave does not satisfy the breaking and entering requirement.

MBE: A lived for five years with his girlfriend B in a house that she owned. A got angry at B after learning she was having an affair with C. To get back at her, A decided he would set fire to her home. Later that night A used and electronic device to open the garage door to enter. The garage was attached to the basement of B’s home. A carried in a 5 gallon can of gasoline and spilled it around the interior of the garage. Hearing suspicious noises B entered the garage, but before A could ignite the gasoline he was stopped by B, who then called police. A was arrested and charged with burglary. Will he be found guilty of burglary? No, because he did not enter into the dwelling house of another. A person could not commit burglary in the place they reside. It is the right of habitation, not the ownership that is being protected.

If a portion of a property has been set aside, where the owner leases an apartment, any of the residents of the main house, including the owner could commit a burglary by entering that portion of the dwelling.

Transient guests or lodgers don’t have a habitation interest in a dwelling.

  1. F. Crimes against the public.
  1. Forgery. Making or altering a writing with apparent legal significance (a contract) so that it represents something that it is not, with intent to defraud. It must be something it is not, not merely inaccurate information.

Example: Signing another person’s name on a check.

  1. A receipt with a wrong amount on it is not forgery.
  2. A fake receipt is forgery.
  3. Making a false or counterfeit coin is forgery.
  1. Uttering a forged instrument. Offering as genuine an instrument that may be the subject of forgery and is false with intent to defraud. When a person knowingly publishes or puts into circulation any forged or altered financial document, legal document or other writing with the intent to misrepresent it as true and defraud others it amounts to uttering a forged instrument. To utter means to distribute or offer under the pretense that it is genuine. The uttering of a forged instrument is a separate and distinct offense from the making of it, which is forgery. The accused must not only know that the instrument was forged, but they must intend to defraud at the time of offering it.

  1. G. Burden of proof.
  2. Burden of persuasion. The prosecution has the burden of persuasion to prove each element of a crime beyond a reasonable doubt.
  3. Burden of proof. The defendant has the burden of proof by a preponderance of the evidence.
  1. H. Theories of liability.
  2. Direct liability. The perpetrator of the crime is directly liable for their personal conduct because they participated in the commission of the crime. Applies to:
    1. Principles and parties to the crime are held directly liable.
    2. Accomplices.
    3. Coconspirators.
    4. Enterprise liability Modernly a corporation can be held criminally liable for crimes committed by its agents or employees who act or fail to act within the scope of employment. Early common law a corporation could not be held guilty of a crime, because it had no mind and was therefore incapable of the element of intent.
    5. Vicarious liability is similar to respondeat superior in tort law. An employer is held vicariously liable for their employee’s acts that are within the scope of their employment.

Example: An owner of a liquor store can be held vicariously liable for an employee who sells alcohol to a minor.

  1. I. Crime requirements.
  2. Actus reas. (The criminal act). An element of a crime when proved beyond a reasonable doubt in combination with the mens rea (guilty mind) produces criminal liability. The act alone doesn’t make a person guilty unless the act is committed with a guilty mind.

Generally the prosecution must prove the defendant acted voluntarily. Where a defendant acts in a reflex mode, or unconscious (sleep walking), no criminal liability will be imposed.

Failure to act.

  1. There is no duty to come to the aid of a stranger in peril.

Exceptions: A legal duty to act may be based on:

  1. Statute. Filing a tax return.
  2. Contract. A lifeguard has the duty to rescue swimmers who may be in peril of drowning.
  3. Relationship of parties. Parent to child, husband to wife.

Example: Mother is talking on the phone and the daughter falls into the pool and begins to drown, shouting mom! The mother shouts “be quiet, I’m on the phone.” Here, the mother failed to render her legal duty to act and would be guilty of involuntary manslaughter.

Example: A spouse that fails to act, (an omission), and where there is a legal duty, the defendant would be guilty of involuntary manslaughter.

  1. Voluntary assumption of care.
  2. Creation of peril where the defendant created the dangerous situation.
  3. Mens rea. The guilty mine. Most crimes include the mens rea requirement as an element of the crime.

Example: Intentionally, purposely, knowingly, willfully or wanton.

At common law the guilt or innocence of a person relied upon whether they had committed the act (actus reas) and whether they intended to commit the crime (mens rea).

  1. Transferred intent. Homicide, battery, arson.
  2. Corporations can’t have mens rea.
  3. Concurrence. The act must take place at same time the defendant intended the crime to occur.

Example: A owns a ski lodge in Lake Tahoe and late one night there is a blizzard. A transient breaks into the lodge to escape the cold. The next morning when he has awoken, he decides to steal a TV. Is A guilty of common law burglary? No, because he didn’t have the intent to steal at the time of the break in. He would be guilty of larceny, but not common law of burglary.

  1. Causation. The criminal act must be the proximate cause of the injuries suffered by the victim. For homicide the victim must die.
  2. Injury. There must be injury suffered by the victim.

Model penal code intent standards.

  1. Purposely. With the conscious object of engaging in certain conduct or causing a certain result.
  2. Knowingly. With awareness that the conduct is of a particular nature, or knowing that the conduct will very likely cause a particular result.
  3. Recklessly. With knowledge of a substantial and unjustifiable risk that is being consciously disregarded
  4. Criminal negligence. Failure to be aware of a substantial and unjustifiable risk, where such failure is a substantial deviation from the standard of care.

Malum in se. Inherently evil crimes.

  1. Crimes against the person, such as battery or murder.
  2. Robbery.
  3. Larceny.

Malum prohibitum. Crimes prohibited by legislation.

  1. Failure to register a firearm.
  2. Failure to yield the right or way.
  3. Leaving the scene of an accident.
  4. Speeding.

  1. J. Defenses negate criminal capacity.
  2. Insanity. A defendant is presumed sane unless they show sufficient evidence raising a reasonable doubt as to their sanity. Some states require the prosecution to prove the defendant is not insane beyond a reasonable doubt.

MBE: The defendant has the initial burden of production to present evidence raising a reasonable doubt as to their mental responsibility. Then the burden of persuasion shifts to the prosecution to prove responsibility beyond a reasonable doubt.

Federal court systems require the defendant to have the burden of proving insanity by clear and convincing evidence.

Insanity tests.

  1. McNaughten. The MBE usually tests McNaughten. The majority of states follow the McNaughten rule. A defendant is relieved of criminal liability, if at the time of commission of the criminal act he was laboring under such a defective reasoning, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, he did not know it was wrong. Disease of the mind includes all mental abnormalities.
  2. Irresistible impulse. A defendant will be found not guilty where he had a mental disease that keeps them from controlling their conduct.
  3. MPC/Substantial capacity. A person is not responsible for criminal conduct, if at the time of committing the criminal act, it was committed as a result of mental disease or defect, and he lacked the criminal capacity to appreciate the criminality or wrongfulness of his conduct or to conform his conduct to the requirement of the law. (Combines the McNaughten and irresistible impulse test.)
  4. Durham/product rule A defendant is not criminally responsible if his unlawful act was the product of mental disease or defect.
  5. Diminished capacity. A minority of states allow the defense of diminished capacity, which is short of insanity to prove that as a result of mental disease or mental defect the defendant did not have the requisite state of mind required for the commission of the crime charged.
  6. Intoxication. Alcohol or drug intoxication is a defense when it negates an element of the crime.
    1. Voluntary. A valid defense for a specific intent crime if it negates the requisite mental state. Voluntary intoxication is no defense to general intent crimes, or crimes involving malice, recklessness or criminal negligence.
    2. Does not apply to general intent crimes.
    3. Involuntary. Is a defense that applies to the same circumstances as insanity.
    4. Infancy.
      1. At common law a complete defense due to incapacity existed for children under 7 years of age. No liability.
      2. Children between the age of 7-14 there is a rebuttable presumption that there was no mens rea.
      3. Children over the age of 14 are treated as adults.
      4. Modernly, many states abolished the common law presumptions and established a specific minimum age required for criminal conviction.

MBE will probably provide a statute giving a specific age. If they do not provide a statute giving a specific age then apply the common law rule.

  1. Justification defenses. Arise when society has deemed that even though the defendant has committed a criminal act, they should not be punished because circumstances justified their actions.
    1. Self defense. If a person has a reasonable belief they are in imminent danger of unlawful bodily harm, they may use that amount of force that is reasonably necessary to prevent that harm.

When is deadly force permitted? Only when a person is threatened with serious bodily injury or death may they use deadly force.

  1. Defense of others. Same rule applies to self-defense.
  2. Defense of the dwelling. Deadly force is never allowed in the defense of property, unless the person inside is threatened with serious bodily harm or death.
  3. Defense of property. Deadly force is never allowed in the defense of property.
  4. Crime prevention. The defendant is allowed to use reasonable, non-deadly force to prevent a crime. Deadly force is not permitted.
    1. Cops can use deadly force if:
      1. It is necessary to prevent a felon’s escape and the felon presents a danger of death or serious bodily harm.
      2. Non-deadly force is permissible if it reasonably appears necessary to effect an arrest.
      3. Civilians can use non-deadly force if:
        1. A crime was in fact committed and the person had reasonable grounds to believe the person actually committed the crime.
        2. Deadly force may only be used if the person harmed was actually guilty of the crime and the person threatened human life.
    2. Resisting arrest.
      1. A police officer may use that amount of non-deadly force that they reasonably believe is necessary to effectuate an arrest or prevent an escape.
      2. A police officer may use deadly force to prevent the commission of a dangerous felony.
      3. A private citizen may use non-deadly force that reasonably appears necessary to prevent the commission of a felony or a misdemeanor that amounts to a breach of peace.
      4. A defendant may use reasonable non-deadly force to resist and unlawful arrest.
      5. A defendant may use force to resist a lawful arrest.
      6. Necessity. The crime was necessary to avoid an imminent and greater injury to society using an objective person standard.

Example: A is starving to death and eats B’s food to save his own life.

Example: A intentionally kills B to save the lives of C and D.

  1. Duress. The defendant only committed the crime because he reasonably believed that another person would imminently inflict death or great bodily injury upon them, or a member of their family if they didn’t comply.
    1. Threatened future harm does not apply.
    2. Duress is never a defense to murder.

Example: If A compels B at gun point to drive to a bank and during the robbery A kills the security guard. B is justified by duress and is not guilty of the robbery and is not guilty of the felony murder of the security guard.

  1. Entrapment. The criminal plan originated by law enforcement and the defendant was not predisposed to commit the crime before the police contacted them.
  2. Mistake of fact. A defense that negates the existence of a mental state required for the commission of a crime.
    1. General intent crimes. The mistake must be reasonable to be a valid defense.
    2. Specific intent crimes. A reasonable or unreasonable mistake can negate a specific intent crime as long as it is honest.

MBE: D is on trial for rape. P testifies she went out to dinner with D and then went to D’s home. Upon entering, D violently assaulted and raped her. D testified they drank two bottles of champagne and when they returned to his apartment he was so intoxicated that he honestly believed she consented to the intercourse. The jury determined that the victim did not consent to the intercourse and found that the defendant belief that P consented was unreasonable. Should the defendant be found guilty or not guilty?

Rape is a general intent crime and in order for a mistake of fact to be a valid defense, it must be a reasonable mistake. Here, the jury found D’s mental state to be unreasonable, therefore it would not provide a valid defense for rape and he will be found guilty.

  1. Ignorance of the law. Mistake of law exception: Ignorance of the law is no defense.

Exception. It may be a valid defense where a statute proscribing the defendant’s conduct has not been reasonably made available to the public, or to where the defendant relied on a statute, or judicial decision that was recently overruled or declared unconstitutional.

  1. Consent. Is not a defense except for cases of rape, assault or battery.
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