Tuesday, February 5, 2013

MBE Fast Fact: Arson

A few points to keep in mind about how Arson is tested on the MBE (though in the area of Criminal Law, always look out for statutes that modify the common law):

Arson is the malicious burning of the dwelling of another. Malice here should be analyzed exactly as it is analyzed under common law murder. In other words, it's not necessary that X intends to burn Y's home. It's enough that X acts recklessly, and due to his recklessness, the burning occurs. Note that the same standard holds for "depraved heart" murder where recklessness will suffice.

At common law, the requirement of "burning" did not require that the dwelling be substantially damaged. You might see a fact pattern testing the distinction between blackening (or scorching), and charring. Blacking will not suffice, but charring will.

The common law did require that the burning was of a dwelling, but MBE questions have extended this requirement to structures other than dwellings. For MBE purposes, the "dwelling" requirement is far less important that the requirements of "malice" and "burning."

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