Criminal Law and Procedure—Highly Tested MBE Topics, Charts, and a Checklist!

Criminal Law

1. Introduction

• Introduction: need a guilty act, guilty mind, causation, and concurrence.
• Mens rea—different mindsets
  • Specific intent crimes
    • Crimes against person: assault and first-degree murder
    • Crimes against property: robbery, embezzlement, burglary, larceny, forgery, false pretenses
    • Incomplete crimes: solicitation, attempt, conspiracy
  • General intent: (mnemonic = BRIK) battery, rape, false imprisonment, kidnapping
  • Malice: (mnemonic = MA) murder other than first-degree, arson
  • Strict Liability: (mnemonic = SS) small crimes and statutory rape

2. Parties to a Crime—Accomplice Liability

• Vocabulary: The principal is the one that commits the crime. The accomplice assists or encourages with the intent that the crime is committed. An exception to accomplice liability is “necessary parties.”
• Scope of liability: the accomplice is liable for the crimes he commits as well as all “natural and probable results” of the crimes he commits.
• Withdrawal: the accomplice can withdraw by repudiating encouragement if he provided encouragement, undoing his assistance if he provided aid, or notify authorities or otherwise prevent the crime from happening.
• Accessory after the fact: one is an accessory after the fact if he knowingly assists a person who has committed a felony with intent to help the person avoid arrest, conviction, or trial for the felony.

3. Homicide

• Murder: causing the death of another human being with malice aforethought.
  • First-degree: Intent to kill. Requires premeditation and deliberation.
  • Second-degree: intent to cause grievous bodily harm, extreme recklessness, or the “catchall” murder that is not first-degree.

• • Felony murder: Felony + killing = murder. It must be an inherently dangerous felony, but one that is independent from any intent to kill. The victim must not be a co-felon. Some jurisdictions follow the agency theory (a felon or his agent must kill); others follow proximate cause

 

• Manslaughter
  • Voluntary manslaughter: an intentional killing committed in the heat of passion (with no time to cool off) due to adequate provocation (discovering spouse is cheating, mutual combat, assault or battery on oneself or a relative).

• • Involuntary manslaughter: the killing of another human being due to gross negligence, or during a misdemeanor or felony that does not qualify for felony murder.

4. Other Crimes Against the Person

• Assault: attempted battery, or intentional infliction of apprehension.
• Battery: the defendant unlawfully causes harmful or offensive contact to another.
• Rape: Unlawful sexual intercourse, without consent, using force or threat of force. Statutory rape is sexual intercourse when the victim is a minor.
• Kidnapping: false imprisonment plus moving or concealing the victim.

5. Crimes Against Property

• Arson: malicious burning of the dwelling of another.

• Larceny: The trespassory taking and carrying away of personal property of another with the intent to permanently deprive them thereof. (Continuing trespass rule applies if the initial taking is a trespass, and one forms the intent to deprive later.)
• Larceny by trick: the defendant intentionally makes a false representation of a material past or existing fact to obtain custody of personal property of another.
• False pretenses: same as larceny by trick but the defendant obtains title to the property.
• Embezzlement: the fraudulent conversion of property of another by one who is in lawful possession.
• Robbery: larceny + taking from another’s person or presence by force or threat of force.

 

• Burglary: breaking and entering the dwelling of another at night with the intent to commit a felony.

6. Inchoate Crimes

Please review this chart for the inchoate crimes of attempt, conspiracy, and solicitation!

7. Defenses

• Self-defense: A defendant may use deadly force if he reasonably believes he is facing a threat of imminent death or serious bodily harm and is not the initial aggressor. Common law required a defendant to retreat if he was not in his home and could retreat in complete safety.
  • Imperfect self-defense: even if defendant was unreasonable in his belief that he needed self-defense or even if he was the initial aggressor, some states (a minority) allow mitigation from murder to manslaughter.
• Insanity: M’Naghten test focuses on if defendant had a disease of mind which caused a defect of reason that led him to not know the wrongfulness of his actions or understand the nature and quality of them.

• Intoxication: Voluntary intoxication is a defense for specific intent crimes if it negates the specific intent. Involuntary intoxication is treated like insanity.
• Mistake
  • Mistake of fact
    • An unreasonable or reasonable mistake of fact is a defense for a specific intent crime if it negates the specific intent.
    • For general intent crimes or malice crimes, only a reasonable mistake is a defense.
  • Mistake of law: generally, it is not a defense unless the law makes knowing the law an element of the crime.
• Necessity: if a defendant engages in criminal conduct to prevent a greater harm, necessity is a defense unless the defendant was at fault in creating the situation.
• Duress: The defendant engages in criminal conduct because he reasonably believes if he did not, then he or another would suffer imminent death or serious bodily injury. It is not a defense to homicide.
• Entrapment: if law enforcement induces the defendant to commit a crime, he may have a defense.

Criminal Procedure

1. Search and Seizure

Application of the Fourth Amendment

• The Fourth Amendment protection against unreasonable searches and seizures applies when a government agent conducts a search or seizure when someone has a reasonable expectation of privacy.
  • A person only has standing to challenge a search if that particular person has a reasonable expectation of privacy in the area searched (e.g., an owner or overnight guest has a privacy expectation in a home, but others do not).

Does the search or seizure satisfy the Fourth Amendment?

• Method one: get a warrant!
  • There needs to be a valid search warrant issued by an unbiased magistrate that is supported by probable cause and particularity.
  • The search warrant must be properly executed, meaning that the agent complies with its terms and follows the “knock and announce” rule.
• Method two: good faith
  • Good faith by an officer can “save” a defective search warrant (unless the officer lied and that lie was the reason a warrant was issued, or if the affidavit was obviously lacking in probable cause, or if the warrant was obviously lacking in particularity, or the magistrate was biased).
• Method three: find an exception to the warrant requirement (mnemonic = ASPACE)
  • Automobile exception: when there is probable cause to believe evidence of a crime may be found in a car, the police officer may search the vehicle (including the trunk).

• • Search incident to lawful arrest: Officer may search the suspect and his wingspan incident to arrest. It also applies when a suspect is arrested in a vehicle, in which case the officer can search the driver’s seat and passenger cabin of the vehicle (unless the suspect is secured and there is no reason to believe evidence will be found in the car—then the officer may not search the car).

• • Plain view: if officer is lawfully in area and he sees something that is obviously contraband or evidence of a crime, he may seize it.

• • Administrative search: applies when there is a search for administrative reasons (e.g., booking a defendant into jail and impounding a vehicle, border searches, public school searches, sobriety checkpoints, random drug testing of school children, etc.).
  • Consent: if one gives consent, the officer can search.

• • Exigent circumstances: if there is an emergency, the officer is in “hot pursuit” of a suspect, or there is fear evidence will disappear, there is no need for a warrant.

• Terry stop and frisk
  • One can stop a defendant if there is reasonable suspicion criminal activity is afoot.
  • One can frisk a defendant if there is a reasonable belief the defendant is armed and dangerous.

• Exclusionary rule: If evidence is obtained in violation of the Fourth Amendment, it is excluded at trial unless it would have been found regardless of the improper search. This does not apply to (mnemonic= SICK): when the person does not have standing to challenge the search, when offered for impeachment, civil and other proceedings, and knock and announce rule violations.

2. Interrogation and Confessions

• Fourteenth Amendment due process
  • Applies when police engage in coercive conduct that overcomes the will of the suspect.
  • An involuntary confession is not admissible for any purpose.

• Sixth Amendment right to counsel
  • Attaches when defendant is formally charged.
  • Rule: Police cannot deliberately elicit an incriminating statement after formal charges have been filed unless the defendant has counsel or waives his right. It is offense specific.
  • Exclusion: any statement is excluded in the prosecutor’s case-in-chief but may be used for impeachment.

• Fifth Amendment Miranda rights
  • Attaches: whenever there is a custodial interrogation.

• • Rule: police cannot interrogate a suspect who is in custody without counsel present or a waiver (unless the public safety exception applies).
  • Waiver: a defendant waives his rights unless he unequivocally requests a lawyer or makes it clear he is remaining silent.
  • Exclusion: Any confession is excluded in the prosecutor’s case-in-chief. However, the prosecutor may use the confession for impeachment, and may use any “fruits” of the confession (e.g., physical fruits found as a result of the confession) against the defendant.

• The Fifth Amendment privilege against self-incrimination
  • The defendant does not have to testify against himself whenever he is under oath unless the prosecution offers him use or transaction immunity.

3. Identification Procedures

Challenging identification procedures

• Right to counsel under the Sixth Amendment: the defendant has a right to counsel for post-charge lineups and showups, but not for photo identifications, fingerprinting, DNA samples, etc.
• Due process violation: the defendant may challenge an identification procedure by saying it is so unnecessarily suggestive that it creates a substantial likelihood of irreparable misidentification.

4. Pretrial Procedures—From Charging to Trial and Everything in Between

• Charging a defendant: there must be probable cause to prosecute (i.e., a grand jury or a Gerstein hearing).
• A defendant may enter into a plea bargain. He may generally withdraw a guilty plea before sentencing.
• A defendant has a right to counsel at trial and gets a retrial if counsel is ineffective (but this is a very high bar!)
• Double jeopardy: the defendant must not be “put in jeopardy” for the “same offense” twice.
  • Jeopardy attaches when the jury is sworn in (or, in a bench trial, when the first witness is sworn). The “same offense” includes lesser- or greater-included offenses.

Go to the next topic, Evidence—Highly Tested MBE Topics, Charts, and a Checklist!

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