#11445 - Bar Exam - Criminal

MBE CRIMINAL LAW

FREQUENTLY TESTED TOPICS: Homicide, inchoate crimes, 4th amendment rights

GENERAL PRINCIPLES OF CRIMINAL LAW

Malum Prohibitum = act wrong because it violates statute; Malum in se = act wrong because inherently evil, moral turpitude

Constitutional Issues: Void for vaguness (state gives reasonable person fair notice of what conduct is prohibited); Ex Post Facto – retroactive law making conduct criminal, enforcing stricter punishment, or alters procedural/evidentiary rules to make D more easily convicted

Actus Reus (voluntary and conscious, can be vicarious when D responsible for acts of another)
+ Mens Rea (SI = purpose, knowledge, malice, intent, willful; GI = recklessness, criminal negligence) (except in Strict Liability)
+ Actual Cause (but-for, substantial factor, acceleration of homicide)

+ Proximate Cause (superseding, foreseeability; unknown/special sensistivities are foreseeable)

Specific Intent Crimes: first degree murder, theft – larceny, robbery, extortion, embezzlement, false pretenses – receiving stolen property, forgery, burglary, inchoate crimes, assault.

General Intent Crimes: rape, battery, kidnapping, false imprisonment, involuntary manslaughter, depraved heart murder

Malice Crimes: arson, common law murder

Strict Liability crimes: regulatory offenses, publice welfare offenses, morality crimes, selling liquor to minors

HOMICIDE

Murder = unlawful killing + express or implied malice

• Express Malice = knowledge + intent (to kill, or inflict grievous bodily injury)

• Implied Malice = extreme recklessness or criminal negligence that manifests wanton disregard for value of human life (depraved heart)

• Deadly Weapons Doctrine = intent to kill inferred

First Degree Murder = Express malice murder + premeditation and deliberation (or by statute)

• Voluntary intoxication may erase P & D

Felony Murder = malice implied from malum in se conduct (BARRK) + collateral + inherently dangerous + killing foreseeable outgrowth of felony + killing occurred during commission of felony (when D could be convicted of attempt until D reaches place of temporary safety)

• Not collateral = manslaughter, aggravated battery, aggravated assault, mayhem

• Dangerous test: majority = abstract (all contexts); minority = context test

• Co-Felon liability

  • Modern Majority = Agency Rule: liability limited to killing committed at hands of cofelon

  • Minority = cofelon liable when non felon kills another non felon

  • Original CL= liable for any death proximately caused by felony-murder

    • Minority CL= Non Violent Felon Exception

    • Minoirty CL = Deserving Victim Exception

    • Redline Limitation CL = liability exempted when non felon kills justifiably

Voluntary Manslaughter = intentional killing, where adequate provocation, diminished mental capacity, or imperfect self-defense erases malice

• Objective measure: provocation would lead reasonable person to lose self control and fly into homicidal rage. Mere words not enough.

• Rage must be hot

• Dimished capacity = minority rule. Where D not insane, diminished capacity may still strip malice.

• Imperfect self defense = honest but unreasonable judgment of necessity to use deadly force

Involuntary Manslaughter = unlawful killing + no malice

Misdemeanor Manslaughter = unintentional killing + commission of misdemeanor that is malum in se, or felony that is not inherently dangerous.

Causation issues

• Acceleration = still murder, if caused death

• Common law 1 year and 1 day rule = mostly eliminated

OTHER CRIMES AGAINST THE PERSON

Battery: unlawful force (setting something into motion) + intentional, reckless, or criminal negligence

• Aggravated felony = serious bodily injury; use of deadly weapon; or V specially protected

• Defenses = consent; proportional self/others defense; proportional prevention of crime

Assault: incomplete battery

• Failed attempt battery = D intended to commit battery; no defense that V not aware

• Fear/Apprehension of battery = D puts V in fear of imminent offensive touching

  • Fear = reasonable person standard

• Aggravated felony = dangerous weapon, intent to rape or murder, V specially protected

Mayhem: dismembering, or disabling use of body part useful for fighting

• Modern: expanded to permanent disfigurement

• JXs without Mayhem = aggravated battery

False Imprisonment = intentional and unlawful confinement, no reasonable exit

Kidnapping = unlawful restraining of person’s liberty by force/threat + movement (asportation)

• CL: intent to send V to another country

Rape = Forced sexual touching without victim’s consent

• Objective test for lack of consent

• Force of sexual penetration = sufficient to satisfy force

• Traditional CL = vaginal penetration, against will, by force/threat (force proves no consent)

• Statutory rape = strict liability. Age usually 16.

Bigamy = strict liability, regardless of mistake of fact.

Incest

PROPERTY CRIMES

Larceny = trespassory taking + intent to permanently deprive

• Trespassory = custody possession

• Continuing trespass = still liable even if original intent was not to steal

  • Can be guilty, even if D returns property

• Intent issues

  • D recklessly exposes property to loss = larceny

  • Abandoning property with hope it will be returned to rightful owner = larceny

  • Pawning not larceny, if intent to redeem pawn check

  • Not larceny if D intends to replace or pay for property later

  • Honest but unreasonable mistake = defense

• Abandoned property = no larceny

• Lost property = larceny if 1) intent to permanently deprive; and 2) know who owner is or reason to believe finding out identity is possible

Robbery = larceny + force/threat

• Taking from V, area within V’s control

• Threat must place V in actual fear at time of taking. Slight force okay, but must be more than required to just take property.
  

Embezzlement = unlawful conversion of prop in D’s possession + intent to permanently deprive

• Slight movement/limited use = not enough. Must seriously interfere with rights of owner

• Abuse of entrustment

• Intent issues

  • Intending to later substitute prop for equivalent prop = embezzlement

  • Honest but unreasonable mistake = defense

Theft by False Pretenses = obtaining title to property through fraud + intent to steal

Larceny by trick = obtaining possession through fraud + intent to steal

Extortion = obtaining property through use of threat of future harm to V or property

• Completion issue: jx split between completion upon threat, or upon taking

Receiving Stolen Property = receipt + knowledge + intent to permanently deprive

Forgery = fraudulent writing + apparent legal significance + intent to make wrongful use of doc

• Alternation must be material.

Burglary = breaking and entering, of structure, with intent to commit felony therein.

• CL: dwelling of another, at night.

  • Enlarging preexisting opening NOT breaking

  • Use of tool NOT entry

• Breaking to exit = not burglary. But Possible to “break” into room once inside.

Arson = malicious act + considerable risk of burning + structure

• Any incendiary device

• CL: dwelling

INCHOATE CRIMES (incomplete)

Mens Rea = specific intent (purpose) to commit target offense

Solicitation = trying to get someone else to commit crime, use of communication

• CL: misdemeanor; crime solicited must be felony or breach of peace

• Majority: any offense

• Must do more than encourage

• Not solicitation to request one person to commit a crime where the request is communicated in such a negligent manner that another, unintended person receivces the message and decides to act upon it and commit the same crime (because it’s a specific intent crime)

• Offense complete when solicitation made. Cannot withdrawal.

Attempt = almost committed, crossed line from preparation to perpetration

• CL: D required to perform last act necessary to achieve necessary result

• MPC: substantial step: act that indicates purpose to complete the attempt

• Proximity test: how close in time/physical distance

• Equivocality test: conduct unequivocally indicates purpose to commit crime (like SS)

• Defenses

  • Abandonment: voluntary and complete (not a defense at CL once attempt complete)

  • Legal impossibility

  • Factual impossibility

Conspiracy = planning to commit crime, crossed line from thinking to preparation

• CL: agreement itself was the crime, no additional act necessary

• Modern: proof of overt act in furtherance of conspiracy required. Preparation enough.

• Co-conspirator liability under Pinkerton: all liable when crimes are 1) foreseeable outgrowth of conspiracy and; 2) committed in furtherance of conspiracy goal

• Chain relationship = all know other parties are participating, common interest = all liable

• Wheel and Spoke relationship = one middle man, multiple conspiracies = only middle man liable for all

• Procedural issues

  • CL: when only 2 conspirators and one acquitted, other must be acquitted

  • MPC: unilateral conspiracy – liable even when other feigned agreement or acquitted

  • Wharton: if offense requires 2+ people of commission, can’t be liable for conspiracy (but third party exception)

• Defenses

  • CL & MPC: complete and voluntary withdrawal + notice = no liability for future crimes

  • MPC: renunciation – withdrawal and affirmative act to thwart success = no liability for conspiracy

ACCOMPLICE LIABILITY

Accessory: No need to prove that principal would not have committed crime but for Accessory’s encouragement. Liable as accessory if you act to aid, abet, command, advise or otherwise encourage the commission fo the offense. Same liability as principal. Scope: all crimes reasonably foreseeable outgrowth of primary crime. Foreseeability = objective.

CL Pleading terms: principal in fist degree,...