MBE Criminal Law Comprehensive Review

A comprehensive set of flashcards covering fundamental principles, specific crimes, mental states, defenses, and key doctrines of Criminal Law for MBE preparation.

What are the three traditional sources of criminal law tested on the MBE?

Common law, statutory law (modern trend), and the Model Penal Code (MPC).

Name the three basic elements of every non–strict-liability crime.

Actus reus (a wrongful act), mens rea (a guilty mind), and causation (linking the act to the result).

What are the five situations that create a legal duty to act, such that omission can satisfy actus reus?

1) Statute, 2) Contract, 3) Special relationship, 4) Detrimental undertaking, 5) Creation of the victim’s peril (causation).

Under the MPC, what four mental states can satisfy mens rea?

Purposely, Knowingly (or Willfully), Recklessly, Negligently.

Define a strict-liability crime.

A crime that requires only the commission of the actus reus; no mens rea is required (e.g., statutory rape, many public-welfare offenses).

What is the difference between strict liability and vicarious liability crimes?

Strict liability requires the defendant’s own actus reus without mens rea; vicarious liability imposes criminal responsibility on the defendant for someone else’s actus reus.

Which two common-law crimes are classified as malice crimes?

Common-law murder and arson.

List the four common-law mental states constituting malice aforethought for murder.

Intent to kill, intent to inflict serious bodily harm, depraved-heart (reckless indifference to human life), and intent to commit certain felonies (felony murder).

What is the FIAT mnemonic used for?

To remember the common-law specific-intent crimes: First-degree murder, Inchoate offenses, Assault with intent to commit battery, Theft offenses.

Which test for insanity is described as the "right-from-wrong" test?

The M’Naghten test.

Under the irresistible-impulse test, when is a defendant insane?

When, due to mental disease, the defendant lacked the capacity to control his actions or conform conduct to the law.

What is the basic rule of voluntary intoxication as a defense?

It is a defense only to specific-intent (or purpose/knowledge) crimes if the intoxication actually prevents formation of the requisite intent.

Is mistake of fact a defense to strict-liability crimes?

No. Strict-liability crimes have no mens-rea requirement, so mistake of fact is irrelevant.

When can an unreasonable mistake of fact be a defense?

For specific-intent crimes only; the mistake must simply be honest.

Explain the doctrine of transferred intent.

If D intends harm to one victim but accidentally harms another, the intent transfers to the actual victim for completed crimes (not attempts).

What is the majority approach to an accomplice’s required mental state under the MPC?

Purpose to aid, solicit, or facilitate the principal’s offense.

What three steps must an accomplice take to withdraw and avoid liability for the substantive crime?

(i) Repudiate prior aid, (ii) do everything possible to countermand assistance, and (iii) withdraw before the crime becomes unstoppable.

Define an accessory after the fact.

A person who, knowing a completed felony has occurred, helps the felon avoid arrest or conviction. The accessory is liable for a separate crime (often obstruction or harboring).

What are the four common tests for insanity that may appear on the MBE?

M’Naghten, Irresistible-Impulse, Durham (product) test, and MPC substantial-capacity test.

At common law, what age made a child conclusively incapable of crime?

Under 7 years old.

Differentiate a felony from a misdemeanor.

Felony: punishable by death or imprisonment over one year. Misdemeanor: punishable by a year or less or by a fine.

Define felony murder.

An unintended killing proximately caused during the commission or attempted commission of an inherently dangerous felony (traditionally BARRK crimes).

Under the agency theory (majority), is a felon liable for a bystander’s death caused by police fire?

No, because the killing was not committed by the felon or a co-felon acting as his agent.

What effect does adequate provocation have on a murder charge?

It may reduce murder to voluntary manslaughter (heat of passion).

Distinguish voluntary from involuntary manslaughter.

Voluntary: intentional killing in heat of passion. Involuntary: unintentional killing due to criminal negligence or during commission of a non-BARRK misdemeanor.

Give the six elements of common-law burglary.

1) Breaking, 2) entering, 3) the dwelling, 4) of another, 5) at night, 6) with intent to commit a felony inside.

What is larceny by trick?

Obtaining possession (not title) of another’s property through fraud or deceit and then converting it.

How does false pretenses differ from larceny by trick?

In false pretenses, the defendant obtains title to the property; in larceny by trick, only possession.

Define robbery.

Larceny from the person or presence of the victim by force or intimidation.

Under the majority view, what degree of force converts larceny to robbery?

Any amount of force beyond that required to merely seize the property— even slight force if it overcomes resistance.

What are the two key differences between robbery and extortion?

Robbery requires immediate force or threats and property in victim’s presence; extortion involves future or non-physical threats and property may be elsewhere.

What two crimes merge into robbery?

Larceny and the assault/battery used to take the property.

What is the modern statutory definition of arson under the MPC?

Intentionally causing a fire or explosion to damage or destroy any building, occupied structure, or property for insurance purposes.

State the elements of common-law battery.

Unlawful application of force to another that causes bodily injury or offensive contact.

What are the two theories of assault?

(1) Attempted battery, or (2) intentional act creating reasonable apprehension of imminent bodily harm.

Define kidnapping.

Unlawful confinement of a person, against the victim’s will, plus either movement or concealment of the victim.

Under modern statutes, what replaces "force" as an element of rape?

Lack of consent.

Is mistake of age a defense to statutory rape?

No. Statutory rape is strict liability as to the victim’s age.

What elements create the crime of solicitation?

Enticing, encouraging, or commanding another to commit a crime, with intent that the crime be committed.

Does a solicitor’s renunciation provide a defense at common law?

No. Under the MPC, complete and voluntary renunciation that thwarts the crime can be a defense.

List the four elements of conspiracy at common law.

Agreement between two or more persons to commit an unlawful act with intent to accomplish it (no overt act needed at common law).

What additional requirement do most modern statutes add to conspiracy?

Commission of an overt act in furtherance of the conspiracy.

Under the unilateral (MPC) view, can a single defendant be guilty of conspiracy if the other "co-conspirator" was feigning agreement?

Yes; the focus is on the defendant’s own agreement and intent.

Explain the Pinkerton rule.

A co-conspirator is liable for crimes committed by other conspirators if done in furtherance of the conspiracy and foreseeable.

What two elements are required for criminal attempt?

(1) Specific intent to commit the target crime, and (2) a substantial step toward its commission beyond mere preparation.

Name three defenses that do NOT work for attempt.

1) Factual impossibility, 2) abandonment (in common-law jurisdictions), 3) voluntary intoxication for crimes requiring only recklessness or negligence.

When can abandonment be a defense to attempt under the MPC?

If the defendant voluntarily and completely renounces criminal purpose and thwarts the crime.

Which two inchoate offenses merge into a completed crime?

Solicitation and Attempt merge; conspiracy does not.

Give the general rule for self-defense with deadly force.

Deadly force is justified if the defender reasonably believes it is necessary to prevent imminent death or serious bodily injury.

What doctrine removes the retreat requirement from one’s home?

The castle doctrine.

Under the majority rule, may initial aggressors ever use self-defense?

Yes, if they withdraw completely and communicate it, or if the victim suddenly escalates to deadly force.

Define the defense of duress.

A defendant was compelled to commit a crime by an unlawful threat of death or serious bodily injury, and reasonably believed the crime was necessary to avoid that harm.

Is duress a defense to homicide?

Not to intentional murder; but it can be a defense to the underlying felony in felony-murder cases.

State the elements of necessity.

Natural force causes the defendant to choose the lesser of two evils in order to avoid a greater harm; the defendant must not have created the situation.

When is consent a valid defense?

When it negates an element of the crime, is voluntary, not obtained by fraud or duress, and given by someone competent to consent.

What are the two requirements for the majority (subjective) entrapment defense?

Government inducement of the crime and lack of predisposition in the defendant.

What is the difference between subjective and objective entrapment tests?

Subjective focuses on defendant’s predisposition; objective focuses on whether government methods would induce a law-abiding person.

What burden of proof applies to alibi?

None on the defendant; prosecution must prove identity beyond a reasonable doubt, although states may require notice of alibi intent.

Identify five traditional inherently dangerous felonies for felony-murder (BARRK).

Burglary, Arson, Rape, Robbery, Kidnapping.

Under the Year-and-a-Day rule, when must the victim die for murder liability at common law?

Within one year and one day of the defendant’s act (abolished or extended in most jurisdictions).

What mens rea suffices if a statute is silent under the MPC?

At least recklessness.

Explain "merger" regarding lesser-included offenses and double jeopardy.

A defendant cannot be convicted of both a greater offense and its lesser-included offense arising from the same act (e.g., robbery and larceny).

What is criminal facilitation?

A lesser crime in some jurisdictions when a person knowingly aids a felony without the purpose required for accomplice liability.

Define constructive possession.

Legal possession when actual possession is with another, e.g., owner retains legal rights over property in an employee’s custody.

When does a bailee commit larceny?

When, with intent to steal, he breaks bulk (opens containers) and converts the contents.

Is picking up and moving property one inch enough for larceny’s "asportation"?

Yes; any slight movement satisfies the carrying-away element.

What intent turns a taking into larceny?

Intent to permanently deprive the owner of possession at the time of taking.

Can a thief be the victim of larceny?

Yes, unless the taker has superior possessory rights (e.g., true owner).

What two elements make possession of contraband criminal?

Dominion and control for a period long enough to terminate possession.

State the elements of receiving stolen property.

Receiving control of stolen property, knowing it is stolen, with intent to permanently deprive owner.

What is the Wharton Rule concerning conspiracy?

If a crime inherently requires two participants (e.g., adultery), there is no separate conspiracy unless extra parties participate.

Can a corporation conspire with its single agent?

In many jurisdictions, no (they are one entity); but conspiracy may exist with multiple agents or with outsiders.

Explain mayhem at common law.

Felony battery causing permanent disfigurement or loss of a body part.

What felony elevates unlawful confinement to kidnapping even without movement?

Concealing the victim in a hidden location for a substantial period.

How is aggravated battery commonly statutorily defined?

Battery causing serious bodily injury or using a deadly weapon.

Under modern law, what mental state is required for rape?

General intent: intent to have intercourse without the other’s consent (mistake as to consent must be reasonable).

Name two historical "crimes against nature" and their modern status.

Sodomy (now unconstitutional to criminalize consensual adult sodomy per Lawrence v. Texas) and bestiality (still punishable).

What is subornation of perjury?

Persuading or inducing another to commit perjury.

List the three classic inchoate crimes.

Solicitation, Conspiracy, Attempt.

Under the MPC, can a defendant be convicted of both conspiracy and attempt for the same target offense?

Yes, but cannot be punished for more than one inchoate offense aimed at the same crime.

What is the effect of "factual impossibility" on solicitation?

No defense; solicitation is complete upon the solicitation itself.

When does the statute of limitations for conspiracy begin to run?

Upon completion of the last overt act in furtherance of the conspiracy.

Is voluntary intoxication a defense to depraved-heart murder?

No; it will not excuse recklessness.

Can a claim of right defend against robbery?

Modern trend: No; forceful self-help is discouraged even if defendant believes the property is his.

What is the difference between burglary and criminal trespass?

Burglary requires intent to commit a felony or theft upon entry; criminal trespass is unlawful entry without that intent.

Describe the "agency" vs. "proximate-cause" split for felony murder.

Agency: felon liable only for killings by co-felons. Proximate cause: felon liable for any foreseeable death during the felony, even by third parties.

What is the MPC hierarchy of mental states, lowest to highest?

Negligently, Recklessly, Knowingly, Purposely.

Under accomplice liability, to what extent is an accomplice liable for other crimes?

For the underlying crime and for other foreseeable crimes that are the natural and probable consequence of the encouraged acts.

When may a police officer use deadly force to arrest?

If the suspect poses a threat of death/serious injury to the officer or others.

Can economic necessity justify theft?

No; necessity does not apply to economic motives for stealing.

What is "misprision" of felony?

Common-law misdemeanor for failing to report or concealing a known felony after complete commission.

Under the MPC, what state of mind is presumed if a statute is silent?

Recklessness at minimum.

Is abandonment after an overt act a defense to conspiracy under majority view?

No; conspiracy is complete after the overt act, though withdrawal may limit liability for later crimes.

State the modern rule for infancy defenses.

Children under statutory age (often 11–14) cannot be convicted; above that, rebuttable presumption of incapacity until adulthood.

What two clashing mental states make attempt impossible for negligence crimes?

Attempt requires intent; negligence lacks intent, so there is no attempted involuntary manslaughter, etc.

What physical act is enough to satisfy "breaking" for burglary?

Even slight opening of a closed door or window if done without consent.

Does smoke damage alone satisfy "burning" for common-law arson?

No; must be charring of the structure itself.

Can consent be a defense to battery in a sporting event?

Yes, if the contact was reasonably foreseeable within the rules of the sport.

What is "imperfect self-defense" and its effect on charges?

An honest but unreasonable belief in need for deadly force; reduces murder to voluntary manslaughter in many states.

Give the elements of forgery.

Making or altering a false writing of apparent legal significance with intent to defraud.