Crim Law: MBE & MD

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  1. Criminal Law Jurisdiction
    • Federal: the US can criminalize and prosecute crimes that occur anywhere in the US, on ships and planes, or by US nationals abroad.
    • State can only punish crimes having some connection to the state. Usually requires (1) part or all of crime occurring in the state, (2) conduct outside the state which involves an attempt to commit a crime within the state, or (3) conspiracy to commit the crime with an overt act in furtherance committed within the state.
  2. Criminal Jurisdiction: MD
    • Each of MD’s 23 counties and Baltimore city has a state’s attorney who conducts prosecutions of crimes committed within the jurisdiction.
    • The Maryland AG and the Office of the State Prosecutor may conduct statewide prosecutions but are limited by the location of the crime or require statutory permission.
    • AG does not get involved in crimes like murder/rape/robbery.
    • State prosecutor only gets involved in election fraud and campaign finance.
  3. Subject Matter Jurisdiction for MD Courts: District Court
    District court has jurisdiction over all misdemeanors over 18, including simple theft, simple drug possession and theft under $1K. Concurrent jurisdiction with circuit court for crimes such as theft between $1K-$100K, counterfeiting, check kiting and credit card misuse. No jury trials in district court, meaning that a jury trial strips district court of jurisdiction.
  4. Subject Matter Jurisdiction for MD Courts: Circuit Court
    Circuit court has jurisdiction over all felony charges. For crimes with a statutory penalty exceeding 90 days, a defendant may pray for a jury trial. This gives circuit court exclusive jurisdiction.
  5. Juvenile court
    All those under 18 can be charged as adults in Circuit Court after a waiver hearing that determines in which court the minor will be tried
  6. MD: Methods for Charging a Criminal Defendant
    (1) criminal information filed by state’s attorney in district/circuit court, (2) grand jury, (3) citizens may file a complaint for misdemeanors, and (4) arrest.
  7. Actus Reus
    • No such thing as a thought crime.
    • Generally, to commit a crime, there must be some act taken which is criminalized.
    • Three considerations:
    • 1. Must be a physical act, which may also include speech.
    • 2. The act must be voluntary. This requires motor control, not the desire to commit the act.
    • 3. The act can be an omission/failure to act.
  8. When can failure to act create criminal liability?
    • (1) Statutory duty
    • (2) special relationship
    • (3) an assumption of a duty which is cast aside
    • (4) defendant causes peril and fails to prevent the victim’s injury -– requires defendant’s knowledge.
  9. Mens Rea
    The requisite state of mind to commit a crime.
  10. Specific intent crimes
    • Require the defendant to commit the actus reus for the purpose of obtaining a specific result.
    • SI crimes are FIAT crimes:
    • First degree murder
    • Inchoate crimes – CATS: conspiracy, attempt and solicitation.
    • Assault with attempt to commit a battery
    • Theft offenses, like larceny, embezzlement, forgery, burglary and robbery.
  11. General intent crimes
    • The defendant must intend to commit an act which is in fact unlawful.
    • The defendant will be guilty despite a mistake of law.
    • Most crimes are GI crimes.
  12. Malice Crimes
    • Defendant must act with reckless disregard for high risk of harm occurring.
    • Murder and arson are malice crimes.
  13. Strict liability
    No particular state of mind is required for conviction so long as the defendant has committed the act.
  14. Transferred intent doctrine
    When the defendant has the requisite mens rea for committing a crime against one but commits the crime against another, the required mens rea will be transferred to the actual victim.
  15. Vicarious liability
    • One person may be held liable for the actus reus of another.
    • Usually arises in a corporate context.
  16. Merger of Crimes
    • A defendant can be convicted of more than one crime arising out of the same act unless the crime merge together.
    • Lesser included offenses: a lesser included offense is one where each of the elements of the lesser crime appear in another offense. Blockberger Test.
    • Merger of inchoate and completed offense: attempt and solicitation merge with the completed offense. Conspiracy does not merge with a completed offense.
  17. Principals
    • Defendants whose acts or omissions form the actus reus of the crime.
    • Can be more than one principal to a crime.
  18. Accomplices
    • Persons who do not commit an element of the crime, but assist the principals before or during the commission of the crime. Must act with the intent to assist the principal in committing the crime.
    • Mere bystanders are not accomplices.
    • Accomplices can be held liable for the planned crimes as well as any unforeseeable crimes.
    • Accomplices may be liable even if they can’t be principals or the principal cannot be convicted.
    • A person protected by statute cannot be convicted as an accomplice (statutory rape, attempted suicide).
  19. Accessories after the Fact
    A person who helps a defendant after the crime has been committed can be liable for certain crimes as an accessory after the fact (harboring a fugitive, obstruction of justice).
  20. Aiders and Abettors
    • In addition to accomplice liability for a substantive crime, individuals who aid or abet a defendant to commit a crime may also be guilty of the separate crime of conspiracy if there was an agreement to commit the crime and an overt act taken in furtherance of the agreement.
    • Not a separate crime, but a theory of guilt.
  21. Mistake of law
    • No defense, except when:
    • (1) defendant relied on high-level government interpretations
    • or (2) lack of notice.
    • A defendant’s belief that conduct was legal may negate elements of a specific intent crime.
  22. Mistake of fact
    • May also negate a defendant’s mens rea.
    • General intent & malice: a defense only is mistake is reasonable and goes to the criminal intent.
    • Specific intent: a defense for mistakes of fact, whether they are reasonable or unreasonable.
    • Strict liability: never a defense.
  23. M’Naghten
    Defendant did not know the nature of the act or did not know that the act was wrong.
  24. Irresistible Impulse
    Defendant has a mental disease or defect that means the defendant cannot control himself.
  25. Durham Rule
    Defendant would not have committed the crime but for having a mental disease or defect.
  26. Model Penal Code
    Due to a mental disease or defect, the defendant did not have the substantial capacity to appreciate the wrongfulness of his acts or conform his conduct to the law.
  27. Intoxication
    • When a defendant takes alcohol, drugs or medication, he may be unable to form the mens rea.
    • Involuntary intoxication: when defendant is (1) unaware she received an intoxicating substance, (2) is forced/tricked into ingesting the substance, or (3) has an unexpected/unanticipated reaction to a prescription medication. A valid defense to SI, GI and malice crimes.
    • Voluntary intoxication: when a person intentionally ingests a substance knowing that it was an intoxicant. A defense to SI crimes when it prevents the defendant from forming the mens rea. Not valid if defendant got drunk to commit the crime.
  28. Conspiracy
    • Common law: (1) agreement (2) between two or more people (3) to commit an unlawful act.
    • Modern law: common law + (4) an overt act in furtherance of the crime.
    • MPC: only the defendant must agree. Other parties in agreement can be undercover agents.
    • Agreement between the parties can be explicit or implicit.
    • Simple knowledge of conspiracy is insufficient; the defendant must agree to commit the crime.
    • Purpose of the conspiracy must be for an unlawful purpose. Mistake of law concerning the illegality of the act is a defense.
    • Overt act may be lawful or unlawful, but must further the conspiracy.
  29. Crimes which conspirators may be convicted of
    At common law, each co-conspirator can be convicted of (1) conspiracy, (2) attempt of the crime, (3) the actual crime if successful, and (4) all substantive crimes committed by any other conspirator acting in furtherance of the conspiracy.
  30. Chain conspiracy
    Involves a number of steps in a narrative chain where each participant is liable for the substantive crimes of his co-conspirators.
  31. Spoke-hub conspiracy
    • A central person deals with many people on the periphery.
    • Central person is liable for all crimes, but each person on the spoke is liable for conspiracy and his own crimes.
  32. Withdrawal from Conspiracy
    • At common law, impossible to withdraw from a conspiracy because the crime is completed upon agreement.
    • Federal rule allows withdrawal prior to the commission of any overt act by signaling intent to withdraw or by informing law enforcement.
    • MPC allows withdrawal after an overt act when co-conspirator helps thwart success of conspiracy.
    • The defendant is not liable for substantive crimes committed after withdrawal.
  33. Attempted Crime
    • Requires the (1) specific intent to commit a particular criminal act and (2) taking a substantial step towards perpetrating the crime.
    • SI crime, even if the attempted crime is general intent.
  34. Solicitation
    • When an individual intentionally invites, request or commands another person to commit a crime.
    • If the other person agrees, then solicitation merges into conspiracy.
    • If the other person commits the offense, solicitation with merge into the complete offense.
    • MD: only sexual offenses.
  35. Homicide
    Crimes related to the taking of the life of another. There must be the killing of another with causation between the defendant’s acts and the loss of life – both actual (but-for) and proximate causation (foreseeability)
  36. First degree murder (SI)
    Statutory murder. MBE will provide statute for question.
  37. Common law murder (M)
    • The unlawful killing of another human committed with malice aforethought. Must be murder of a human being other than yourself.
    • MD: uses the common definition for murder.
    • MD: The killing of a person extends to a fetus, as a person other than a mother or licensed medical professional may be prosecuted for murder or manslaughter of a viable fetus if the conduct was (1) intended to cause death, (2) intended to cause serious bodily injury, or (3) wanton/reckless to create a substantial likelihood to cause death or serious bodily injury to the fetus.
  38. Homicide: Four kinds of malice
    • Intent to kill: the defendant acted with the desire that the victim wind up dead. Need not be pre-pre-meditated, can be formed in a second.
    • Intent to inflict serious bodily harm: the defendant intended to hurt the victim grievously, and the victim died. Foreseeability.
    • Abandoned and Malignant Heart: defendant acted with cavalier disregard for human life and a death resulted. Defendant must realize that conduct is really risky but need not have any intent about outcome.
    • Felony murder: when a death occurs during the commission or attempted commission of a BARRK crime – burglary, arson, rape, robbery or kidnapping.
  39. Felony Murder - Proximate Cause theory
    May be held responsible for the death of victim who resists, a bystander or third person killed by resister or police officers.
  40. Felony Murder - Agency theory
    • Limits a defendant'’s guilt for felony murder to deaths caused by himself or his accomplices.
    • The death of a co-felon does not create a felony murder situation. MD: death of a bystander due to police does not create felony murder unless defendant directly caused the killing, such as through use of human shield.
  41. Felony murder
    • When a death occurs during the commission or attempted commission of a BARRK crime – burglary, arson, rape, robbery or kidnapping.
    • May be held responsible for the death of victim who resists, a bystander or third person killed by resister or police officers.
    • Agency theory will limit a defendant’s guilt for felony murder to deaths caused by himself or his accomplices.
    • The death of a co-felon does not create a felony murder situation.
    • MD: death of a bystander due to police does not create felony murder unless defendant directly caused the killing, such as through use of human shield.
  42. Manslaughter (GI)
    Catch-all; all unlawful killings of another human which aren’t 1st degree murder or common law murder.
  43. Voluntary manslaughter
    • Murder of another human while under heat of passion or extreme emotional disturbance.
    • Did the defendant act without thinking and without time to cool off? If not, common law murder.
    • MD: “murder committed in response to adequate provocation.”
  44. Involuntary manslaughter
    • The criminally negligent killing of another; or the killing of another while committing a crime that is not BARRK.
    • MD: “the unintentional homicide committed with criminal negligence during an unlawful act.” Criminal negligence is reckless inaction that puts another person at a significant risk of injury/death.
  45. MD: Manslaughter by vehicle or vessel
    • Gross negligence.
    • Statutory form of voluntary manslaughter.
    • “Consciousness of the risk, wanton or reckless disregard for human life.”
    • Felony.
  46. MD: Manslaughter by vehicle or vessel
    • Criminal negligence.
    • Statutory form of involuntary manslaughter.
    • “Substantial and unjustifiable risk; a deviation from the standard of care.”
    • Misdemeanor.
  47. MD: Homicide by Motor Vehicle
    • The negligent operation of a vehicle/vessel under the influence of drugs/alcohol that causes the death of another.
    • DUI per se: BAC 0.08% or higher. If death, then homicide while under the influence.
    • DWI (driving while impaired): BAC between 0.04-0.08%. If death, then homicide while impaired by [substance].
  48. Theft crimes - MD
    MD: the state has consolidated theft crimes into a single statutory crime called “theft.”
  49. Larceny (SI)
    • (1) taking (2) property of another (3) without consent and (4) with the intent to permanently deprive.
    • If intent to return, then no intent to permanently deprive.
    • Movement is any picking up and moving from its original position, however slight.
    • Consent must be real, and not obtained by fraud or force.
  50. Embezzlement (GI)
    • (1) Taking of another’s property (2) and converting it for his own use (3) in the course of employment.
    • Custody is possession of property that belongs to your employer but the employer has no grounds for claim to constructive possession.
    • Larceny will trump embezzlement.
  51. Larceny by trick (SI)
    • (1) Taking or carrying away (2) possession of another (3) by fraud or trick (4) with intent to permanently deprive.
    • This is larceny where consent is obtained by fraud or trick, or through borrowing with no intention of returning.
    • The defendant must know of the fraud or trick at the time the possession is obtained.
  52. False pretenses (GI)
    (1) a false representation of a material past or existing fact (2) which the person making the representation knows is false (3) upon which the complaining witnesses relies upon and (4) gives something of value to defendant.
  53. MD: Receiving Stolen Goods.
    • Illegal to receive stolen goods.
    • May be implied if the defendant receives goods at a price far below reasonable value so the goods are very likely to have been stolen.
    • If part of an undercover sting operation, it is not a defense that the goods are not actually stolen.
  54. Forgery (SI)
    • (1) making of a false document (2) with the intent to use it for fraud.
    • Can be any kind of document, such as a painting.
  55. MD: Identity Theft.
    Stealing personal identifying information of another (1) for any financial benefit, (2) to annoy/threaten/embarrass/harass, or (3) to avoid apprehension.
  56. Robbery (SI)
    • (1) taking and carrying away of (2) the property of another (3) from a victim or from within his presence (4) through force or threat of imminent force (5) with intent to permanently deprive.
    • This is larceny + assault.
    • Extortion is robbery with threat of future harm.
  57. MD: Robbery with a dangerous and deadly weapon.
    Assault + Larceny + Deadly weapon such as firearms, knives and hammers.
  58. MD: Carjacking
    Assault + Larceny + Taking of a Car.
  59. Burglary Common law (SI)
    (1) breaking and entering (2) into the dwelling of another (3) at night (4) with the intent to commit a felony therein.
  60. Burglary Modern law (SI)
    (1) breaking and entering (2) into the property of another (3) with an intent to commit a felony therein.
  61. Burglary Considerations
    • Breaking can involve pushing open or obtaining entry by fraud.
    • A defendant may have a license to be on the property but exceed the license.
    • Entering involves breaking the plane of the dwelling, such as sticking your hand through a window.
  62. MD: Burglary
    • First degree: (1) breaking and entering (2) into the dwelling of another (3) with the intent to commit a serious offense or crime of violence.
    • Second degree: (1) breaking and entering (2) into the premises or storehouse of another.
    • Third degree: (1) breaking and entering (2) into the dwelling of another (3) with the intent commit any crime.
    • Fourth degree: being found on the property of another; trespassing or possessing burglar’s tools.
    • Rogue and Vagabond: (1) possession of burglar’s tools (2) with the intent to break and enter into a motor vehicle.
  63. Assault (GI)
    • Two flavors.
    • 1. Attempted battery – if a defendant takes a substantial step in committing battery but fails, this is assault. 2. Intentionally placing another in fear of imminent bodily harm.
  64. MD Assault
    • Second-degree assault – common law assault and battery. 10 year misdemeanor; felony if against a police officer.
    • First-degree assault includes “intentionally causing or attempting to cause serious physical harm or harm by use of firearm.” Penalty of up to 25 years.
  65. Battery (GI)
    (1) unlawful application of force (2) to another (3) which causes bodily harm or is an offensive touching.
  66. Rape (GI)
    • (1) unlawful sexual intercourse (2) with a female (3) against her will (4) by force or threat of force.
    • Statutory rape is sexual intercourse under the statutory age – strict liability.
    • MD: a man cannot be raped.

    • MD: first degree rape.
    • (1) Vaginal intercourse (2) with another (3) without consent (4) by force or threat of immediate force, along with (5) (a) use/display of a dangerous weapon, (b) suffocation/strangling/disfiguring/inflicting serious bodily injury on victim/another, (c) threatening or placing a victim in fear that the victim will be death/suffocation/strangulation/disfigurement/serious physical injury/kidnapping, (d) while aided or abetted, or (e) in commission of a burglary.
  67. MD: second degree rape.
    • (1) Vaginal intercourse (2) without consent (3) by force/immediate threat of force…
    • - Where victim is mentally defective or incapacitated or physically helpless and defendant knows/has reason to know of condition
    • - Where victim is between the ages of 4-14.
  68. MD: third degree sexual offense.
    Defendant is over the age of 21 and victim is age 14-15.
  69. MD: fourth degree sexual offense.
    Defendant is under age of 21 but at least four years older than the 14-15 year old victim.
  70. MD: spousal rape
    • Defense to rape.
    • Not applicable if force/threat of force or spouses have been separated pursuant to an agreement for at least three months.
  71. MD: Incest.
    Vaginal intercourse between individuals within degrees of consanguinity that are too close to be permitted to be married. Siblings, parents, half-siblings.
  72. MD: Prostitution.
    Applicable to prostitute and john.
  73. Kidnapping (GI)
    (1) Unlawful (2) confinement of another (3) against their will (4) by moving or hiding the victim.
  74. Arson (M): Common law
    • (1) malicious (2) burning (3) of the dwelling of another.
    • Malice is the intent to cause the burning or in a way that is substantially likely to do so.
    • Burning meant fire, not explosion/smoke.
    • Burning your own home was not arson.
    • Dwelling, but not a commercial structure.
  75. Arson (M): Modern law
    (1) malicious (2) burning (3) of a dwelling.
  76. MD: Arson
    • A specific intent crime.
    • It does not matter whether you intend to harm the person – you must intend harm to the structure.
    • First Degree Arson: (1) malicious (2) burning or setting fire (3) to dwelling where one sleeps or building where one is present.
    • Second Degree Arson: (1) malicious (2) burning or setting fire (3) to a structure.
    • Malicious Burnings (with Intent to Defraud): malicious burning of personal property. If value > $1K, then felony; if <$1Km, misdemeanor. Burning or setting fire to property with intent to defraud is a misdemeanor.
  77. MD: Destructive Devices
    Possession/sale/transport/control/storage/sale/distribution/use of any explosive or incendiary device is a felony.
  78. Perjury (GI)
    • Willful act of falsely promising to tell the truth, or stating something galse either verbally in writing about material matters.
    • Requires knowledge of falsity which goes to a material matter.
    • Subornation of a party is payment to testify falsely.
  79. Bribery (GI)
    • Common law: (1) corrupt payment of something of value (2) for purposes of influencing an official (3) in the discharge of his official duties.
    • Modern law: bribe can be made to more than public officials.
  80. MD: Adultery.
    Sexual relations with someone other than your spouse while married. Misdemeanor - $10 fine.
  81. MD: Bigamy.
    Being married to two people at the same time.
  82. MD: Child abuse.
    • Defendant must be in loco parentis.
    • Second degree is assault, cruel/inhumane treatment or malicious act.
    • First degree is assault, cruel/inhumane or malicious act which results into death or severe physical injury.
  83. MD: Committing a crime in the presence of a minor.
    • A person may not commit a crime of violence when the person knows/reasonably should know that a minor that is at least two years old in present.
    • Five years in addition to other sentence.
  84. MD: Drug Crimes.
    MD: requires possession – (1) dominion and (2) control.
  85. MD: Possession with intent to distribute.
    Possession of more drugs than a mere drug user would use.
  86. MD: Sale or transfer of drugs to another
    Distribution of narcotics.
  87. MD: simple possession of marijuana
    Civil offense and a $100 fine.
  88. MD: Stalking and Harassment
    • MD: Harassment.
    • Annoying behavior where the victim tells defendant to stop but the defendant persists.
    • MD: Stalking.
    • A malicious course of conduct, such as approaching or pursuing an individual, which creates reasonable fear.
  89. MD: telephone misuse.
    Repeated or anonymous calls by the defendant in a manner reasonably to be expected to annoy/abuse/torment/harass/embarrass.
  90. MD: Revenge Porn.
    Intentionally causing serious emotional distress by intentionally placing a photo/video on the Internet where another person reveals their identity with their intimate parts exposed or engaged in a sexual act.
  91. MD: violation of a protective order
    A criminal offense.
  92. MD: threats against state and local officials.
    Unlawful to make a threat to kill/kidnap/cause physical injury (3 year penalty).
  93. MD: Disorderly conduct/disturbing the peace
    Must disturb someone other than a police officer.
  94. Handgun Offenses
    Separate offenses can charged for using a handgun in conjunction with the offense.
  95. MD: Wiretapping
    two party consent state – both parties must consent.
  96. MD: Camera Offenses
    It is illegal to place a camera in a private residence.
  97. Intoxication
    • Voluntary intoxication is a defense to specific intent crimes only.
    • Involuntary intoxication is a defense to general and specific intent crimes only.
  98. MD: Insanity
    • A defendant is not criminally responsible for criminal conduct if, at the time of conduct, the defendant, due to mental disorder or retardation, lacks substantial capacity to (1) appreciate the criminality of the conduct or (2) conform that conduct to the requirements of the law.
    • When a defendant shows consciousness of guilt, flees or conceals evidence, a finding of not criminally responsible will be difficult to prove.
  99. Mistake of Fact
    • Reasonable mistakes of fact are a defense to general intent and specific intent crimes.
    • Unreasonable mistakes of fact are only a defense to specific intent crimes.
  100. Self-Defense
    • May be invoked when the defendant has a reasonable fear of imminent harm, and uses proportionate force to defend himself. Non-deadly force can be used at any time provided that it is proportionate to the harm.
    • Deadly force can only be used if the defendant reasonably believes that deadly force will be used against him.
    • A minority of jurisdictions require retreat before the use of deadly force, while none require retreat while in your home (Castle Doctrine).
    • MD: duty to retreat except in home, when being robbed, or when no safe retreat is possible.
  101. Defense of another
    • A defendant can act to defend another person who would be entitled to defend herself.
    • Works like self-defense.
  102. Defense of property
    • A defendant can use proportionate force to defend his property.
    • One can never use deadly force to defend property, but the situation can escalate to the point where it becomes self-defense.
  103. Duress
    • Defendant committed a crime because (1) he was threatened by a third party and (2) reasonably believed that the only way to avoid death or injury was to commit the crime.
    • Threat to property is insufficient.
    • A defense for all crimes but intentional murder.
  104. Necessity
    • If natural forces of nature cause the defendant to commit what would otherwise be a crime, the defendant may be justified in doing so based upon necessity.
    • The defendant is not entitled to assert necessity if he set the natural forces in motion (e.g., set the fire) or if there is a noncriminal alternative.
  105. Infancy
    At common law, 0-7 could not commit a crime, 8-14 rebuttable presumption that could not commit a crime, and 14+ could be charged as an adult.
  106. Entrapment
    • Entrapment is the planning and commission of a crime by a person who is not predisposed to commit the crime and would not do so but for the officer's trickery, persuasion or fraud of the officer. 
    • Subjective test: crime is induced by a government official, and defendant was not predisposed to commit the crime.
  107. Reckless Endangerment
    • A person may not recklessly
    • (1) engage in conduct that creates a substantial risk of death or serious physical injury to another
    • or (2) discharge a firearm from a motor vehicle in a manner that creates a substantial risk of death or serious physical injury to another.
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Crim Law: MBE & MD
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