Bar Exam Outline

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...

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