MBE Criminal Law. 130 good questions, nicely answered!

Q: CL State of Mind (4): Strict Liability

State of Mind Required : Conscious commission of the proscribed act Subjective or objective test : Not applicable

Q: MPC State of Mind (1): Purposely

State of Mind Required : Conscious object to engage in proscribed conduct Subjective or objective test : Subjective

Q: MPC State of Mind (2): Knowingly

State of Mind Required : Awareness that conduct is of a particular nature or will cause a particular result Subjective or objective test : Subjective

Q: MPC State of Mind (4): Negligently

State of Mind Required : Failure to be aware of a substantial and unjustifiable risk Subjective or objective test : Objective

CL State of Mind (4): Strict Liability

State of Mind Required: Conscious commission of the proscribed act
Subjective or objective test: Not applicable

MPC State of Mind (1): Purposely

State of Mind Required: Conscious object to engage in proscribed conduct
Subjective or objective test: Subjective

MPC State of Mind (2): Knowingly

State of Mind Required: Awareness that conduct is of a particular nature or will cause a particular result
Subjective or objective test: Subjective

MPC State of Mind (4): Negligently

State of Mind Required: Failure to be aware of a substantial and unjustifiable risk
Subjective or objective test: Objective

Modern Accomplice Liability: 3 types of Defendants

Principal
Accomplices (includes common law accessory before the fact)
Accessory after the fact

Modern Accomplice Liability for (1) Principal

Conduct: Person who commits the illegal act or who causes an innocent agent to do so.
Liability: Liable for principal crime.

Modern Accomplice Liability for (2) Accomplice [includes common law accessory before the fact)

Conduct: Person who aids or encourages principal to commit the legal conduct
Liability: Liable for principal crime if accomplice intended to aid or encourage the crime

Modern Accomplice Liability for (3) Accessory After the Fact

Conduct: Person who aids another to escape knowing that he has committed a felony
Liability: Liable for separate, less serious crime of being an accessory after the fact

Inchoate Crimes: 3 Main Types

Solicitation
Conspiracy
Attempt

Inchoate Crime (2): Conspiracy

Culpable Conduct: Agreement between 2 or more people to commit a crime
Mental State: Specific intent to (1) enter into agreement AND (2) achieve objective
Overt Act: Act in furtherance of the conspiracy (no act was required under common law)
Merger into substantive offense (?): No
Withdrawal a defense (?): No, except for further crimes of co-conpsirators

Inchoate Crime (3): Attempt

Culpable Conduct: Performance of an act that would be a crime if successful
Mental State: Specific intent to commit the particular crime attempted
Overt Act: [A] MPC: Substantial Step Test; [B] Traditional Rule: Act dangerously close to success.
Merger into substantive offense (?): Yes
Withdrawal a defense (?): Generally no

Defenses Negating Criminal Capacity: Four Main

Insanity
Intoxication: [a] voluntary; [b] involuntary
Infancy
Diminished capacity (some states)

Defense Negating Criminal Capacity (1): INSANITY

Elements: Meet applicable insanity test: (1) M'Naghten; (2) Irresistible Impulse; (3) Durham (NH only); (4) MPC
Applicable Crimes: Defense to ALL crimes

Defense Negating Criminal Capacity (2)(a): VOLUNTARY INTOXICATION

Elements: Voluntary, intentional taking of a substance known to be intoxicating
Applicable Crimes: Defense to specific intent crime if the intoxication prevents the formation of the required intend

Defense Negating Criminal Capacity (2)(b): INVOLUNTARY INTOXICATION

Elements: Taking intoxicating substance [a] WITHOUT KNOWLEDGE of its nature, [b] UNDER DURESS, OR [c] pursuant to MEDICA advice
Applicable Crimes: Treated as mental illness (i.e., apply appropriate insity test); may be a defense to ALL crimes

Defense Negating Criminal Capacity (3): INFANCY

Elements: [A] Under common law, defendant under age of 14. [B] Under modern statutes, defendant under age 13 or 14.
Applicable Crimes: [A] Common Law: Under age 7, absolute defense to ALL crimes; under age 14, reputable presumption of defense. [B] Modern Statutes: Defense to adult crimes but still may be delinquent

Defense Negating Criminal Capacity (4): DIMINISHED CAPACITY (some states)

Elements: As a result of mental defect SHORT OF INSANITY, defendant did not have the required mental state to commit the crime
Applicable Crimes: Most states limit this defense to SPECIFIC INTENT crimes

Justification Defense (3): Defense of Dwelling. Amount of Force Allowed?

Non-deadly Force: If person reasonably believes force is necessary to prevent or end unlawful entry.

Deadly Force: Only if person inside reasonably believes he is threatened or to prevent felony inside

Justification Defense (4): Defense of Other Property. Amount of Force Allowed?

Non-deadly Force: If person reasonably believes force is necessary to defend property in his possession (but if request to desist would suffice, force is not allowed)

Deadly Force: Never

Justification Defense (5): Crime Prevention. Amount of Force Allowed?

Non-deadly Force: If person reasonably believes force is necessary to prevent felony or serious breach of the peace.

Deadly Force: Only to the extent the person reasonably believes deadly force is necessary to prevent or end felony risking human life.

Justification Defense (6)(b): Effectuate Arrest - Private Person. Amount of Force Allowed?

Non-deadly Force: If crime in fact committed and reasonable belief that person committed it.

Deadly Force: Only to prevent escape of person who actually committed felony, and D reasonably believes the suspect threatens death or great bodily harm.

Justification Defense (8): Necessity. Amount of Force Allowed?

Non-deadly Force: If reasonably necessary to avoid greater harm (choice of evils).

Deadly Force: Never.

Exculpatory Defense (1): Justification (self-defense; defense of others; defense of property; necessity; etc) - (A) Applicable to? (B) When available?

[A] Applicable To: Usually crimes of force (e.g., battery, homicide).

[B] When Available: NON-DEADLY FORCE may usually be used if reasonably necessary to avoid imminent injury or retain property; DEADLY FORCE may be used only to prevent serious bodily harm.

Exculpatory Defense (2): Duress - (A) Applicable to? (B) When available?

[A] Applicable To: All crimes EXCEPT intentional homicide

[B] When Available: D reasonably believed that another would IMMINENTLY harm him or a family member if he did not commit the crime.

Exculpatory Defense (3): Mistake of Fact - (A) Applicable to? (B) When available?

[A] Applicable To: Crimes with a mental state element (i.e., all crimes EXCEPT strict liability).

[B] When Available: For specific intent crimes, any mistake that negates intent. For other crimes, only reasonable mistake.

Exculpatory Defense (4): Mistake of Law - (A) Applicable to? (B) When available?

[A] Applicable To: Crimes with a mental state and statutory crimes.

[B] When Available: Mistake must either [1] negate awareness of some aspect of law regarding the elements of the crime required OR [2] must be due to: [a] statute not being reasonably available, [b] reasonable reliance on statute or judicial opinion, OR [c] (in some jurisdictions) reasonable reliance on official advice.

Exculpatory Defense (5): Consent - (A) Applicable to? (B) When available?

[A] Applicable To: Crimes requiring a lack of consent (e.g., rape) and minor assaults and batteries.

[B] When Available: Applicable only if: (1) consent is freely given, (2) the party is capable of consenting, and (3) no fraud was used to obtain consent.

Exculpatory Defense (6): Entrapment - (A) Applicable to? (B) When available?

[A] Applicable To: Most crimes, but NOT available if the police merely provide the opportunity to commit the crime.

[B] When Available: Criminal design ORIGINATED WITH THE POLICE and the D was NOT predisposed to commit the crime before contact with the police.

Define - Property Crime (1): Larceny

Activity: Taking and asportation [carrying away] of property from possession of another person
Method: without consent or with consent obtained by fraud
Intent: With intent to steal
Title: Title does not pass

Define - Property Crime (2): Embezzlement

Activity: Conversion of property held pursuant to a trust agreement
Method: Use of property in a way inconsistent with terms of trust
Intent: With intent to defraud
Title: Title does not pass

Define - Property Crime (3): False Pretenses

Activity: Obtaining title to property
Method: By consent induced by fraudulent misrepresentation
Intent: With intent to defraud
Title: Title passes.

Define - Property Crime (4): Robbery

Activity: Taking property from another's presence
Method: By force or threat of force
Intent: With intent to steal
Title: Title does not pass.

2 Primary Crimes Against the Habitation

Burglary
Arson

Beyond criminal homicide, 2 primary crimes against the person

Rape or Sexual Assault
Kidnapping

3 Primary Preparation Crimes

Attempt
Solicitation
Conspiracy

Elements of Common Law Larceny

Taking (exercising control adverse to owner);
asportation (some movement);
corporeal personal property of another;
wrongfully--either (a) without permission; or (b) with permission obtained by deception [larceny by trick]; and
with intent to permanently deprive

Larceny: "Taking" and "Asportation" of the Property of Another

Usually, if D asports (moves) the property, there is also a completed taking.
But, sometimes there is no taking despite asportation (movement) because D has not existed real control.

Larceny - "Asportation" and "Taking" : REMEMBER

Asportation--only SOME movement of the property (very little necessary)
Taking--some CONTROL adverse to owner. . . Also, D need only take property from someone with a greater right to possession than D. . . . BUT: to complete the taking for larceny, D need not remove the property from the premises.

Larceny - "Intent to Permanently Deprive:" REMEMBER

What controls is what D intended to do with the property at the time of the taking.
The critical issue is whether D's intended use of the property involved a high enough risk of permanent loss to owner.

"Concurrence" Between Act and Intent and the Larceny Exception.

Gen R: When a crime requires both a particular act and an intent, D must have the required intend when he does the act constituting the crime (concurrence of the elements).
Exception for Some Larceny Cases: "Continuing Trespass" Rule

Exception from Concurrence of Elements Requirement for Larceny Cases covered by the "Continuing Trespass" Rule

Basic Idea: D did something wrong in the beginning and later informed the necessary intent while still doing the wrong thing.
Key issue: did D (a) borrow it with permission or (b) take it without permission.
If (a) borrow w/ permission, then D did not have the intent to permanently deprive at the time he took the property. No larceny.
If (b) take w/o permission, then continuing trespass exception applies: D wrongfully took the property and during that wrongful possession formed the intent to permanently deprive. Larceny.

Continuing Trespass Rule for Larceny: Remember

Forming the intent after the taking and during the possession is sufficient only if the original taking was wrongful = (1) without consent, or (2) with consent obtained by deception.

Elements of Common Law Embezzlement

Possession of property under trust arrangement;
conversion of that property (use of it contrary to terms of trust arrangement); and
with intent to defraud.

Embezzlement: "Intent to Defraud"

Intent to return or replace converted property does NOT show the lack of intent to defraud required for embezzlement.

Custody/Possession and Larceny/Embezzlement: Summary

A person who has "possession" of the property of another can commit embezzlement, but not larceny, of that property. "Possession" requires extensive and discretionary control.
A person who has only "custody" of the property of another does not have possession and can commit larceny of that property, but not embezzlement. Usually, an employee has only custody of employer's property and thus commits larceny by taking it.

Elements of Common Law False Pretenses

Obtaining title to property of another
by means of a misrepresentation of: (a) present fact; or (b) past fact; and
with intent to defraud.

False pretenses: Insufficient Misrepresentations

Unkept promise; or
representation of future fact.

False Pretenses: When is does a failure to correct a misunderstanding a sufficient "misrepresentation"?

Usually an affirmative misrepresentation is required. But failure to correct a misunderstanding is sufficient if D creates the misunderstanding.

Elements of Common Law Receiving Stolen Property

Receive (taking possession);
of property acquired by larceny (or some other property crime);
knowing that the property is stolen; and
with intent to permanently deprive.

Receiving Stolen Property: mistake of fact concept

The property must actually be stolen property when received.

Property Crimes: General Summary

Traditional analysis: larceny, embezzlement, false pretenses, receiving stolen property
Modern statutes: single "consolidated" crime of theft.

Robbery by threats: 3 requirements

(1) Threats must be of imminent physical harm;
(2) victim must be put in fear of harm; and
(3) threat must be such as would cause apprehensions of immediate harm in a reasonable person.

Robbery by Force - Action constitutes a "threat" only if

An action constitutes a "threat" only if a reasonable person would be put in fear of immediate harm.

Elements of traditional burglary

Entry;
by breaking;
of the "dwelling" of someone else [Dwelling: place actually used as sleeping place].
during the night time;
with the the intent to commit a felony inside the structure;

Traditional Burglary: 3 notes

Entry can be by an instrument
Breaking requires only some force to create an opening (creating an opening where one did not exist before: sliding open a closed window that is unlocked).
D must have necessary intent (to commit felony inside) at the time of entry; D need not carry out the intent to be guilty.

Modern Burglary Statutes

Expand places covered (beyond dwellings)
Eliminate need for "breaking"
Eliminate the requirement that entry be in night time; and
expand intent (beyond felonies to include misdemeanors.

Burglary: "Intent to Commit a Felony"

Prosecution must prove: (1) D entered with intent to commit certain acts; and (2) those acts, if committed by D, would be a felony.
Need not prove that D knew the law made these acts a felony.
D's mistaken belief that his intended conduct will be a felony is NOT "intent to commit a felony."

Criminal Homicide - 3 traditional homicide offenses

Murder
Voluntary Manslaughter
Involuntary manslaughter

Criminal Homicide: 3 kinds of causation issues

"Factual" causation: "But for" acts of D, victim would not have died as and when he actually did die.
Year-and-one-day rule: Victim must die within a year and one day from the infliction of the injury.
Proximate causation.

Criminal Homicide: If no [factual or proximate] causation, D is often guilty of . . .

attempted murder

Criminal Homicide: Proximate Causation - frequent problem situation

(1) D intends to cause V's death; (2) D factually causes V's death; (3) BUT death occurs in an unexpected manner.

Criminal Homicide: Proximate Causation - Rule

Proximate causation exists if V's death naturally results from D's actions, even if this occurs in an unexpected manner, UNLESS the events are extremely unusual.

BUT: Proximate causation is lacking if a "superseding" factor is interjected into the chain of causation. Such a factor must be: (1) independent of D's actions; (2) unforeseeable; and (3) the sole immediate cause of V's death.

Criminal Homicide: Factual Causation

A D who simply speeds up death of dying V does factually cause V's death.

Criminal Homicide: Proximate Causation & Intervening Events

An intervening event cannot break chain of proximate causation if it only becomes a contributing cause of death.

Define: Murder (Traditional Homicide Offense #1)

A killing is with "malice aforethought" and therefore murder if D acted with:

Intent to kill; or
intent to cause serious bodily injury; or
awareness of extremely high risk that death will result ("abandoned and malignant heart" doctrine or "depraved mind" murder); or
intent to commit a felony (felony murder).

Murder Intent: "abandoned and malignant heart" murder

Knowingly engaging in a high risk activity can be malice (i.e., firing a gun into a crowd).

Felony Murder - 5 key points

General Rule: Accidental deaths caused during commission of a felony are murder.
If D has a defense to the underlying (predicate) felony, the accidental death cannot be felony murder (D must be guilty of underlying felony).
The death must have been foreseeable OR some courts instead require the felony to have been "dangerous" as committed.
All co-felons are guilty of a felony murder, if the death was foreseeable to them.
"Merger" Rule: Felony murder cannot be based on felony assault (or battery) causing death of V ("merges" into death of victim).

Felony Murder: Note on Foreseeability Requirement for Vicarious Liability

A death during a felony may be foreseeable to some of the felons (guilty of FM), but not others (not guilty).

Felony Murder: Resisting Victims, Bystanders, and Unlucky Felons - Summary

Many courts will not apply felony murder if the fatal shot was not fired by one of the felons (the "agency" rule).
Courts are most reluctant to apply felony murder where the person killed is one of the felons.

Summary: "Degrees of Murder: Statutory Provisions"

Some statutory provisions divide murder into degrees. Most killings with "malice aforethought" are second degree murder. Some killings are first degree murder: (a) certain felony murders; (b) premeditated killings.
Premeditation requires some conscious consideration over whether or not to kill.

Degrees of Murder: Premeditation (required for 1st degree murder)

A provoking incident, even if not enough to reduce to voluntary manslaughter, may show an absence of premeditation (i.e., intent formed so quickly that there was no time to premeditate).

Summary: Voluntary Manslaughter (Traditional Homicide Offense #2)

An intentional killing that would otherwise be murder is reduced to voluntary manslaughter if 3 things are shown: (1) objectively reasonable provocation; (2) that actually caused D to kill V; and (3) D acted on that before an objectively sufficient cooling period had passed.
Some situations are insufficient provocation "as a matter of law." Best example: "mere words."

Involuntary Manslaughter - in brief

An accidental killing.

Summary: Involuntary Manslaughter (Traditional Homicide Offense #3)

A killing is involuntary manslaughter if D killed either: (a) in the course of a committing a misdemeanor; or (b) with criminal negligence.

Involuntary Manslaughter: "Criminal negligence"

Where negligence is used for criminal liability, it requires more negligence than is necessary for civil liability.

Liability for Omissions: Summary

Criminal liability can sometimes rest upon a person's failure to act.
An omission can be sufficient only if: (1) D has a legal duty to act, which can arise form: (a) criminal law; (b) tort law; (c) contract law; or (d) any other body of law; (2) D was aware of the facts giving rise to his duty to act; and (3) performing the duty was possible.
D must also have necessary intent.

Embezzlement v Larceny

Embezzlement is for people who have property already. Larceny is opposite: People who don’t have the property and take it.

Rape or Sexual Assault: Summary

Rape: sexual intercourse by a male with a woman not his spouse without the woman's effective consent and by force.
Fraud will render woman's consent ineffective only if the fraud goes to the nature of the act. Fraud in the inducement to sex can never be rape. Fraud in the factum can be (about whether sexual intercourse occurred in first place).

Possession Offenses: Summary

Crimes consisting of "possession" do not necessarily involve either an "act" or an "omission."
Possession can be actual or constructive.
Possession by actual physical control must involve more than "momentary" control.
"Constructive" Possession requires: (1) the ability to exercise actual physical control; (2) with awareness of that ability; and (3) for a period sufficient to enable the person to terminate the possession.

Summary: "Parties" to a Crime

All persons are guilty of a crime who: (a) commit the act constituting the crime ("primary actors"); (b) participate in it (as "aiders and abettors" or accomplices); either before or during its commission; OR (c) use an "innocent agent" to commit it.
Assistance to the primary actor after the crime is complete does not create liability for the crime (common law: accessory after the fact)
Acquittal of one participant does not affect liability of others.

Summary of Elements. "Aiding and Abetting:" Accomplice Liability

Elements of liability as "aider and abettor" or accomplice: (1) participation in the offense; and (2) with the required intent.

Accomplice Liability: (1) Participation

Participation can be by either: (a) encouraging; or (b) assisting the primary actor.
BUT: Mere presence at scene of commission of crime is not enough.
REMEMBER: Presence pursuant to an agreement to aid is sufficient to show participation.

Accomplice Liability: (2) Intent

To have the required intent, the aider and abettor must both: (1) know the primary actor is going to commit the offense; and (2) intend (which means "want") to encourage or assist him in doing so.
LOOK FOR: evidence that D had motive for wanting primary actor to successfully commit crime.

Accomplice Liability: (2) Intent - Look for

LOOK FOR: evidence that D had motive for wanting primary actor to successfully commit crime.
A person who actually assists or encourages another in committing a crime is most likely to have intent to assist or encourage if the evidence shows a motive to want the primary actor to successfully commit the crime.

Accomplice Liability: Affect of Acquittal of Primary Actor

REMEMBER: an aider and abettor can be convicted even if the primary actor is acquitted.

Summary. Exceptions to Liability as an Aider and Abettor (Accomplice)

A participant in the offense is not guilty of the offense if either:

(A) the participation is a member of the class of persons protected by the crime; or
(B) the crime inherently involves several types of participants and only some are made liable (bribery, drug sales).

Summary: Attempt (Preparation Crime #1)

It is a crime to attempt to commit an offense.
Elements: To commit a criminal attempt, a person must (1) go far enough, i.e., do something constituting a substantial step towards commission of the crime; and (2) with intent to commit the crime.
Possible Defenses: (1) abandonment of attempt = no defense; (2) impossibility of success = sometimes a defense).

Attempt: Impossibility Defense: REMEMBER

NOTE: Impossibility is quite different from mistake as a defense generally. Impossibility situations all involve mistaken beliefs by the Ds that the attempts will be successful. AND the impossibility defense applies only in attempt prosecutions.

APPROACH: Attempt/Impossibility situations are best categorized by the bases for the mistaken beliefs: (1) Mistakes about one's ability; (2) Mistakes about criminal law; and (3) Mistakes about circumstances.

Attempt: Impossibility Defense - (1) Type 1 Situations: Mistake About One's Ability

It will be impossible for D to: (a) perform the conduct she has set out to perform; or (b) cause the result she has set out to case. BUT D mistakenly believes she will be successful.
This is factual impossibility. D has no impossibility defense and is guilty of offense.
D is mistaken about whether she can perform the conduct/cause the result.

Attempt: Impossibility Defense - (3) Type 3 Situations: Mistake About Circumstances.

D's intended conduct if completed would not constitute a crime, because one of the circumstances is not what is required for the crime. But D is mistaken about this circumstance. If the circumstance was as D believed it to be, new intended conduct would constitute a crime.
Traditional Rule: This is factual impossibility. D has no defense and is guilty of attempt.
Some courts would characterize Type 3 situations as legal impossibility.
D is mistaken about the circumstances surrounding the situation.

Attempt: Impossibility Defense most likely to apply where?

D is least likely to be guilty of attempt where her mistaken belief that a crime would be committed involved mistake about the criminal law.

Solicitation (Preparation Crime #2): Summary

The crime of solicitation consists of: (1) Asking someone else to commit an offense; (2) with intent that the person commit the offense.
Solicitation is a crime even if the request is immediately rejected.

Conspiracy (Preparation Crime #3): Elements

Elements of crime of conspiracy: (1) entering into an agreement to commit a crime; and (2) with the intent that the crime be committed.

Note: Modern statutes often require (3) an overt act in furtherance by one member of the group.

Conspiracy: Co-Conspirator Rule

Co-Conspirator Rule: All members of a criminal conspiracy are guilty of crimes committed by other members of that conspiracy if those crimes are both: (1) committed in furtherance of the scheme; and (2) a foreseeable result of the scheme.

Conspiracy: "Defense" of withdrawal from the conspiracy.

Withdrawal is no defense to the crime of conspiracy (stand-alone)
An effective withdrawal is a defense to a crime for which the D is liable under the co-conspirator rule (vicarious liability).

Conspiracy: Effective Withdrawal

For a withdrawal to be effective, it must be: (1) fully communicated to all other members of the conspiracy; and (2) before the crime is committed.

Conspiracy: Defense of " No 'Meeting of Guilty Minds' "

D charged with conspiracy must be acquitted upon proof that all other members of the alleged conspiracy have been acquitted or its equivalent.
Equivalents of acquittal: (a) not guilty by reason of insanity; or (b) person did not intend to go through with crime (had "secret reservations").

Summary - Defense #1: Ignorance or Mistake of Fact

Ignorance or mistake concerning a matter of fact will affect criminal liability only if: (1) it shows D lacked the intent required for the crime; and (2) the mistake was objectively reasonable.
If mistake shows the absence of a necessary "specific intent," it need not be reasonable.
Analysis under modern statutes: Mistake of fact requires acquittal whenever it shows the lack of whatever mental state is required for the crime.

Major crimes that are not specific intent crimes (general intent):

Arson
Rape
Murder

Defense of Ignorance or Mistake of Fact: Watch out For

Larceny prosecution where D took property mistakenly believing it belonged to D; no intent to deprive another of that person's property.

Criminal Intent: General Rule

Crimes generally require mens rea or "intent"

D need not have known anything about the law.
D must have been aware of the facts that constitute the crime.

Criminal Intent: Exception to General Rule

"Strict Liability" crimes do not require awareness of all the facts [constituting the crime].

Statutory rape: no knowledge of V's age required.
Bigamy: D need not know at the time of second marriage that he still has a living spouse.
Regulatory crimes (low penalty, enforcement device for regulatory scheme).

Criminal Intent: Modern Statutes

Modern statues use more precise terminology in defining mens rea:

Purpose: a conscious desire (for something to happen).
Knowledge: awareness of a practice certainty (that something will happen).
Recklessness: awareness of substantial certainty (that something will happen).
Negligence: reasonable person would have been aware of substantial risk (that something will happen).

Criminal Intent: General Rule of Modern Statutory Construction

A modern crime usually requires that D have acted at least recklessly concerning all "physical" elements of the offense.

Criminal Intent: Doctrine of "Transferred" Intent

If D intends to injure one person and accidentally inflicts a similar injury open another person, he will be treated as if he intended to injure the person actually harmed.

Summary - Defense #2: Ignorance or Mistake of Law

Ignorance that the criminal law makes one's conduct a crime is not a defense.

A D's affirmative (but mistaken) belief that the criminal law did not prohibit his conduct is a defense, IF: (1) the belief was objectively reasonable; and (2) the D relied upon: (a) a statute later held invalid; (b) a judicial decision later overruled; or (c) an official interpretation of the law by a public official.

Ignorance/Mistake of Law Defense and Advice of Counsel

A defense of mistake of law cannot be based on advice of counsel.

However, occasionally the mens rea of a crime requires knowledge that the law is being violated. If this is the case, advice of counsel may show the lack of that mens rea. If a crime requires awareness of the law, even unreasonable ignorance or mistake that shows a lack of awareness will require acquittal.

Summary: Defense #3 - Insanity, M'Naghten rule

M'Naghten Rule: D is entitled to acquittal only if facts show that at the time of the crime:

he had a serious mental disease or defect;
this caused a defect in his reasoning ability; and
as a result, he did not either: (a) understand the nature of what he was doing; or (b) understand that his act was wrong.

M'Naghten rule: General Approach

Assume the situation was as the D perceived it to be, in his own crazy mind.
Ask, under those circumstances, would he have been legally entitled to do what he did.

If so, but only if so, he is entitled to acquittal.

M'Naghten Rule: D believed conduct morally justifiable

Some jurisdictions would say a mentally impaired D should be acquitted under M'Naghten if the evidence shows the person believed the conduct was morally permissible.

Insanity Defenses based on "loss of control."

Under the usual interpretation of the M'Naghten rule, an insanity defense cannot be based on loss of control.
BUT: Loss of control may be a defense under: (A) statutory versions of insanity based on the MPC; or (B) the "irresistible impulse" version of insanity used in some jurisdictions.

Model Penal Code: "Modern" version of insanity defense

A D is not guilty by reason of insanity if, as a result of serious mental illness or defect, he either:

(a) has lost the substantial capacity to understand his act or its wrongfulness [M'Naughten]; OR
(b) he has lost the substantial capacity to conform his conduct to the law's requirement [irresistible impulse]

Summary: Defense #4 - Unconsciousness

Criminal liability must be based upon a "voluntary act" of the D.
If the D was unconscious, her behavior cannot constitute the necessary "voluntary act." . . .
Impaired consciousness (such as sleepwalking) may show absence of voluntary act, but not insanity.

Summary: Defense #5(b): Voluntary Intoxication

Voluntary intoxication: D should be acquitted only if the crime requires proof of a specific intent and the intoxication shows he lacked that intent.

Voluntary Intoxication as applied to Homicide Analysis

Voluntary intoxication as applied to homicide analysis:

(1) can "disprove" premeditation;
(2) cannot "disprove" malice aforethought and reduce murder to manslaughter.

Voluntary Intoxication: Modern Statutory Analysis

Voluntary intoxication requires acquittal if: (1) crime requires mental state higher than recklessness [either purpose of knowing]; and (2) intoxication shows lack of this mental state.
Under modern statues, there is no voluntary intoxication "Defense" if recklessness is sufficient for liability.

Voluntary Intoxication: Minority Approach

Voluntary intoxication is complete irrelevant to criminal liability.

Thus D cannot argue lack of intent
SCOTUS has held that minority approach is constitutionally permissible.

Entrapment (Defense #6): Majority (Subjective) Rule

Entrapment occurs only if: (1) D was not predisposed to commit crimes of the sort charged; and (2) police officers created the intent to commit the offense in her mind.

Called the subjective rule because it focuses on D's predisposition

Entrapment: Minority (Objective) Rule

Entrapment occurs if police activity would cause a reasonable and un-predisposed person to form the intent to commit the crime.

Necessity or "Choice of Lesser Evils" Defense (#7): Summary

Generally, it is a defense that:

D believed that committing the crime would prevent an imminently threatened harm;
D believed this threatened harm would be greater than the harm that would result from. commission of the crime; and
these beliefs were objectively reasonable

Duress or Coercion Defense (#8): General Rule

It isa defense that D was compelled to commit the crime by a threat if, if he did not do so, the threatening person would do: (1) imminent and physical harm; (2) to D or 3rd person.

Duress or Coercion Defense: Exception

Duress is not a defense to a crime that consists of an intentional killing. However, duress is available as defense to even murder if the prosecution's theory of cult does not require proof of intent to kill.

Self-Defense (Defense # 9): General Rule

It is a defense that D believed that:

he was in imminent danger of being illegal physically harmed by another;
the force he used was necessary to prevent the threatened harm; and
these beliefs were objectively reasonable.

Self-Defense: Deadly Force + Need to Retreat

Majority Rule: Opportunity to retreat is factor to consider in determining whether deadly force was reasonable.
Minority Rule: Any opportunity to retreat must be taken before using deadly force. Note: (1) applies only if retreat is possible with complete safety; (2) no duty to retreat when attacked in one's own home.

Self-Defense: Aggressor Rules.

A person who starts a fight cannot use force in self-defense during the fight.
An aggressor regains the right to use force in self-defense during a fight by either: (a) withdrawing form the fight; or (b) giving notice of desire to do so.

Self-Defense: Imperfect Defense in Homicide Cases

A D charged with murder who actually but unreasonably believed killing was necessary in self defense: (a) is not entitled to acquittal; but (b) should be convicted of manslaughter rather than murder.

Defense of Other Persons (#10): Summary

It is a defense that:

D believed that another person was threatened with imminent unlawful physical harm by a 3rd person;
D believed that the force he used was necessary to prevent the harm; and
these beliefs were objectively reasonable.

Defense of Other Persons: Remember

Availability of defense turns on whether it reasonably appeared to D that the person he aided was in the right.

Defense of Property (#11): General Rule

It is a defense that force was used in the reasonable belief that it was necessary to prevent unlawful interference with real or personal property.

Defense of Property: Limits

Only non-deadly force can be used to defend property.
Force can only be used to prevent interference, and not to regain the property, except in immediate pursuit.

MBE Criminal Law

130 important questions on MBE Criminal Law