MBE WORKSHOP: CRIMINAL LAW PROFESSOR LISA MCELROY DREXEL UNIVERSITY SCHOOL OF LAW

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1 CHAPTER 1: CRIMINAL LAW MBE WORKSHOP: CRIMINAL LAW PROFESSOR LISA MCELROY DREXEL UNIVERSITY SCHOOL OF LAW Editor's Note 1: While the below outline is taken from the National Conference of Bar Examiners' website, the notes and comments in italics are notes from Themis staff attorneys. NOTE: Approximately half of the Criminal Law and Procedure questions on the MBE will be based on Criminal Law. Editor's Note 2: While you should assume that applicable law is common law unless told otherwise, the MBE does also test the Model Penal Code. I. HOMICIDE (note that this includes commonlaw murder, felony murder, and statutory murders) A. Intended killings 1. Premeditation, deliberation 2. Provocation B. Unintended killings 1. Intent to injure 2. Reckless and negligent killings 3. Felony murder 4. Misdemeanor manslaughter II. OTHER CRIMES A. Theft 1. Larceny 2. Embezzlement 3. False pretenses B. Receiving stolen goods C. Robbery D. Burglary E. Assault and battery F. Rape; statutory rape G. Kidnapping H. Arson I. Possession offenses III. INCHOATE CRIMES; PARTIES A. Inchoate offenses 1. Attempts 2. Conspiracy 3. Solicitation B. Parties to crime IV.GENERAL PRINCIPLES A. Acts and omissions B. State of mind 1. Required mental state 2. Strict liability 3. Mistake of fact or law C. Responsibility 1. Mental disorder 2. Intoxication D. Causation E. Justification and excuse F. Jurisdiction

2 TOP FIVE THINGS TO KNOW FOR CRIMINAL LAW 1. Focus on murder/manslaughter and then on crimes against property. 2. Know the elements cold! Most questions revolve around the elements of the cause of action. 3. Remember that the best defense is that the prosecution cannot sustain its burden; don t go with an affirmative defense unless it s the only option. 4. Use the answer choices to help you figure out which crimes are in play. 5. Rack up the points here; they ll offset the more difficult Contracts & Property questions Themis Bar Review, LLC MBE Workshop: Criminal Law

3 CHAPTER 2: CRIMINAL LAW -- PRACTICE QUESTIONS Tip #1: Focus on murder/manslaughter. Immediately after she arrived home from work, a woman found her husband engaged in sex with a female who worked in the husband's office. Enraged, the woman retrieved a handgun from her dresser drawer. She fired the gun, intending to shoot her husband's co-worker. Her shot missed the co-worker, and instead killed her husband. The woman was charged with common law murder of her husband. Based on the foregoing facts, should she be convicted? A. Yes, because the woman acted with reckless indifference with regards to her husband's life. B. Yes, because of the doctrine of transferred intent. C. No, because the act was provoked. D. No, because the woman's extreme temporary distress completely excuses her actions. Answer choice C is correct. Voluntary manslaughter is murder committed in "the heat of passion," that is, in response to adequate provocation. The woman's enraged mental state mitigates the crime from murder to voluntary manslaughter. Answer choice A is incorrect because, while firing a handgun in a bedroom in the direction of the victim could arguably constitute the intent necessary for murder, the provocation would reduce the crime to voluntary manslaughter. Answer choice B is incorrect because, while the doctrine of transferred intent could supply the necessary intent for the killing of the husband to constitute murder, the adequate provocation would reduce the crime to voluntary manslaughter. Answer choice D is incorrect because a defendant's action in the "heat of passion" does not serve as a complete defense to any crime related to the killing. The woman could be convicted of voluntary manslaughter. MBE Workshop: Criminal Law 2016 Themis Bar Review, LLC 3

4 Tip #2: Know the elements cold! A woman who had been drinking heavily took her neighbor's truck without the neighbor's permission. The woman intended to drive the truck up to a local bar and then return the truck later that evening. On the way to the bar, the woman crashed the truck and totaled it. The woman is subsequently arrested and charged with larceny in a jurisdiction that follows the common law. Should the woman be convicted? A. Yes, because of her intent to take the car. B. Yes, because the car was destroyed and could no longer be used by the neighbor. C. No, because she lacked the specific intent required for larceny. D. No, if she establishes she was intoxicated at the time she took the car. [Answer explanation on next page] Themis Bar Review, LLC MBE Workshop: Criminal Law

5 CHAPTER 3: CRIMINAL LAW -- PRACTICE QUESTIONS Tip #2 Answer Explanation Answer choice C is correct. Common law larceny requires the intent to permanently deprive the person who owns the property of the property that is taken. The intent to permanently deprive must be present at the time of the taking. Here, the woman took the truck with the intent to return it later that evening. Accordingly, the specific intent required for larceny is not present. Answer choice A is incorrect. If the defendant intends only to borrow the property with the ability to return it at the time of the borrowing, the taking does not constitute a larceny because the defendant lacked the intent to permanently deprive the owner of the property. Answer choice B is incorrect because the fact that the car was destroyed is irrelevant. What controls is the woman's intent at the time she took the car. Here, it was to borrow the car, with the ability to return it. Answer choice D is incorrect. While voluntary intoxication may prevent the formation of the required intent in specific intent crimes, there is no need to prove intoxication here because the woman never had the specific intent to permanently deprive the neighbor of the truck in the first place. Therefore, even if she does not raise intoxication as a defense, she would still not be convicted. MBE Workshop: Criminal Law 2016 Themis Bar Review, LLC 5

6 Tip #3: Remember that the best defense is that the prosecution cannot sustain its burden; don t go with an affirmative defense unless it s the only option. While shopping in a department store, a man saw an expensive wallet on display, and slipped it into his girlfriend's purse without her knowledge as a practical joke to embarrass her. He intended for her to find it as she reached into her purse to pay for other items at the cashier's station and turn it over to the cashier. The couple shopped for the next hour, and the man forgot about the wallet. Before they could pay for their purchases, the couple got into an argument, abandoned their intended purchases, and headed toward an exit. When they attempted to leave the store, they were detained by a store security officer who found the wallet in the purse. Both parties were charged with larceny. Of the following, which would provide the man with his best defense to larceny? A. The woman, and not the man, carried the wallet away from the display. B. There was not a trespassory taking of the wallet since the man was on the store premises as a customer. C. The man did not understand the nature of his actions. D. The man lacked the necessary intent to steal the wallet. Answer choice D is correct. Larceny requires the intent to permanently deprive another person with superior rights to the property of that property. In this case, the man did not intend to permanently deprive the department store of the wallet. Rather, he intended for the girlfriend to return the wallet when she found it at the cashier's station. Therefore, the man did not possess the specific intent required for the crime of larceny. Answer choice A is incorrect because larceny can occur if property is taken and carried away by an agent, even if the agent is unaware that she is doing so. Answer choice B is incorrect because a trespassory taking requires only that the taking occur without the owner's permission, and not that the defendant be a trespasser when the taking occurs. Answer choice C is incorrect because, even if the man could satisfy the test for insanity, he would never have to do so if the prosecution could not prove that he had the requisite intent Themis Bar Review, LLC MBE Workshop: Criminal Law

7 Tip #4: Use the answer choices to help you figure out which crimes are in play. A runner was in the midst of his morning run when the defendant jumped out from behind a bush and tripped the runner, intending to steal the runner's wallet. The runner was not carrying a wallet, however. Frustrated, the defendant tore off the runner's hat. The runner tried to grab the hat back from the defendant, but the defendant pulled it away and ran off. The struggle caused the defendant to lose his balance, and he dropped the hat a few feet from the runner. The runner then picked up his hat and completed his run. What is the most serious crime, listed in order of increasing seriousness, for which the defendant may be convicted? A. Attempted larceny. B. Larceny. C. Battery. D. Robbery. Answer choice D is correct. Robbery is larceny by force or intimidation, taking the property from the person or in the presence of the victim. The force need not be great, but must be more than the amount necessary to effectuate taking and carrying away the property. The elements of larceny were met as soon as the defendant carried away the hat. Moreover, the force element was satisfied when the defendant tripped and then struggled with the defendant. Answer choices B and C are incorrect because battery and larceny are less serious than robbery. Although the elements of each of these crimes are satisfied, they would merge into the crime of robbery. Answer choice A is incorrect because larceny merely requires a taking and carrying away of the personal property of another with the intent to steal. These elements were satisfied as soon as the defendant took away the hat, so the defendant actually completed the crime of larceny. MBE Workshop: Criminal Law 2016 Themis Bar Review, LLC 7

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