MBE Tip: Conspiracy

Careful before picking the answer that claims someone withdrew from a conspiracy.

x and y agree to rob a bank, and they then go to the store with their bank robbery shopping list and purchase all that they need to rob a bank. x finds god and decides to not to take part in the crime. he doesn’t show up at the agreed upon robbery time: x did not withdraw from the crime of conspiracy. x finds god and tells y about his new crimeless, god-filled life and that he will take no part in the bank robbery: x did not withdraw from the crime of conspiracy. x finds god, tells y about his new crimeless, god-filled life and calls the police so that he prevents the bank robbery since the cops are waiting for y at the bank: x did not withdraw from the conspiracy. That last example is tricky. Be sure to distinguish withdrawing from the conspiracy (crime 1) with withdrawing from the bank robbery (crime 2). There’s a strong argument for withdrawal from crime 2. But once that agreement and act take place, crime 1 is complete. And there’s no withdrawing from a completed crime.

Some state laws, and even the model penal code, could change the analysis above. But, by default, unless told otherwise, the common law applies.

Self Defense

A helpful way to learn self defense is to separate the defense into situations in which non-deadly force is allowable from situations in which deadly force is allowable. There's more to say about deadly force, but first, non-deadly force. 

A person who is not initially at fault may use such non-deadly force as the person reasonably believes is necessary to protect against the imminent use of unlawful threat upon that person. There is no duty to retreat prior to using non-deadly force. 

It's worth noting the word "reasonably" above. A word like that turns this test into one that focuses not on the subjective perception of the person claiming self defense, but instead asks whether a reasonable person would have believed that the non-deadly force was necessary. This objective standard also applies when deadly force is involved. You'll see the word "reasonably" used often in this post. 

The use of deadly force for self defense has a bit more complexity to it. A person may use deadly force  only if the person is without fault and is confronted with unlawful force. Further, the person claiming self defense must reasonably believe that imminent death or great bodily harm is threatened upon that person. 

There is generally no duty to retreat before using deadly force (and this is the majority rule to apply by default on the UBE), but the minority view is that a person must retreat before using deadly force if retreat can be done safely. But even the minority view does not require retreat if the attack occurs in the victim's home, the attack occurs while the victim is making a lawful arrest, or the assailant is in the process of robbing the victim.

Occasionally, an initial aggressor will claim the privilege of self defense. If one is the initial aggressor, one may not use force (deadly or non-deadly) in defense unless the initial aggressor withdrew from the confrontation and communicated to the other the desire to withdraw, or if the victim of the initial aggressor suddenly escalates a confrontation by the initial aggressor and the initial aggressor has no opportunity to retreat. 

The above sets forth all the rules for self defense that you'll need to know, but there are a few topics that are adjacent to self defense, and worth noting. Occasionally someone might claim a privilege to defend others rather than oneself. A person can defend others if the person reasonably believes that the other has the legal right to defend himself. The person defending the other can use the degree of force that the person reasonably believes the other has the legal right to use. 

Lastly, a person can use non-deadly force to defend their dwelling if the person reasonably believes that such conduct is necessary to prevent or terminate another's unlawful entry into or attack upon the dwelling. Deadly force is never allowable to defend the dwelling, but it may be used to prevent a violent entry into the dwelling if a person reasonably believes that the use of force is necessary to prevent a personal attack on themself or on others or to prevent a felony in the dwelling. 

A Note on Homicide

Words like “first degree murder,” “second degree murder, “premeditation,” and etc., shouldn’t even enter your thoughts when answering a homicide question on the UBE. Of course, a statute (or the Model Penal Code, or etc.) can appear in a question which modifies things, but if applying the default, common law, rules, those classifications do not exist.

Rather, there are four ways to commit murder and they don’t deal with degrees.

~You can intend to kill someone and the person dies as a result.

~You can intend to cause serious bodily harm towards someone and cause the person to die.

~You can act recklessly and cause the person to die. (Check your heart; it might be depraved!)

~You can engage in an enumerated felony and kill someone during that engagement (felony murder).

That’s it: nothing more, nothing less. Unless there’s a statute.

Larceny

Someone walks into a store and decides to steal a coat. The person picks the coat up off the rack and realizes it's not a coat worth stealing. Returns it to the rack and leaves the store without the coat.

Larceny?

In life, nobody is getting charged with a crime for thinking about stealing a coat. On the MBE, yes, pick the answer that says it's larceny.

You're tested on theory, not reality. And, in theory, the elements of larceny have been ticked off. The intent to take and permanently deprive another of the other's property is satisfied. And, as for the taking and carrying away element, do enough of these questions and you'll realize that it doesn't require much. Merely picking the coat up off the rack will suffice.

Sometimes reality needs to be set aside to score points on the MBE. Don't pick the trap(!) answer: attempted larceny.

MBE Trap: Double Jeopardy

The trap in this area doesn't so much deal with the elements of double jeopardy (jeopardy attaching, decision on the merits, etc.).

Rather, it goes to something more fundamental: the requirement that the defendant be tried for the same offense twice before double jeopardy is even a consideration. The trap deals with the "same offense" terminology. Imagine the following: Offense 1 contains the elements A, B, C, D Offense 2 contains the elements A, B, C, D, E It might be tempting to think of these as two separate offenses. There's an element (element E) in offense 2 that's not in offense 1. You'll notice, though, that there is no element in offense 1 that is not in offense 2. For example, if you were to circle the element in each offense that was not in the other offense, you'd be able to circle element E in offense 2, but there would be nothing to circle in offense 1. These are considered "the same offense" for this purpose, and double jeopardy should be considered. In contrast, Offense 1: A, B, C, D Offense 2: B, C, D, E Here, if you were to circle the element in each offense that was not in the other offense, you'd be able to circle element A in offense 1 and element E in offense 2. Since you'd be able to circle an element in each offense, these are considered as separate offenses, and you should not even consider double jeopardy as a possibility.

MBE Tip: Recklessness vs. Negligence

Distinguishing recklessness from negligence will be important in criminal law and possibly elsewhere. In criminal law, you're especially likely to need this distinction when tested on homicide.

Why so? Murder under the common law could be committed in four ways (each way provided for the malice aforethought needed to commit the crime). One of those ways was called "depraved heart" murder (a dramatic term, for sure) and, essentially, meant that you killed someone and, though you didn't intend to do so, you acted recklessly, and your recklessness was the cause of death.

Involuntary manslaughter (a type of homicide different from murder), in contrast, required a lesser degree of fault. If you were negligent, and your negligence killed someone, that was enough.

The bar examiners will sometimes ask you to "pick the most serious crime for which the defendant can be convicted." This question directly requires that you distinguish negligence from recklessness, provided that both murder and involuntary manslaughter are choices.

A bit of a trick is just to realize that these two standards are so similar that the more serious crime (here, murder) is likely correct. In other words, if the facts support involuntary manslaughter, then (on this test) they often support murder.

But tricks only take you so far. It's good to understand the distinction. With recklessness, you consciously disregard the risks posed to others. In other words, you realize the danger you pose, but you ignore that realization and act anyway.

Negligence is quite different. If you consciously ignore the risks, then you've acted worse than negligently. With negligence, your error isn't to consciously ignore the risks; it's to not realize those risks when reasonable people would have realized them. Not quite as bad as consciously ignoring them.

These are degrees of fault. A conscious disregard is worthy of more fault than a lack of reasonable care. As such, the crime is more serious when you've done the former than it is when you've done the latter.

MBE Trap: Conspiracy

Imagine 2 people (call them x and y) agree to commit bank robbery (inflation, and all that), and each performs an act sufficient to evidence that they had that agreement.

X decides soon after not only to inform y that he wants nothing to do with the bank robbery, but also to take an additional step of informing the police of y's plans so that the police are waiting for y at the bank. The police are in fact waiting for y and arrest him before any robbery takes place. X has *not withdrawn from the conspiracy. The trap in these questions is that x has withdrawn from something, but he's withdrawn from the crime that was the subject of the conspiracy (the bank robbery). Once a crime has been completed, there's no withdrawal, and the crime of conspiracy was completed upon the agreement and the act evidencing the agreement. If you want to withdraw from a crime, you're going to need to do that before you've completed the crime. To avoid falling for this trap, it should be enough to remember there's no withdrawing from the crime of conspiracy (once the conspiracy has occurred), but it is possible (as was done here) to withdraw from the crime that was the subject of the conspiracy if sufficient steps are taken to effect that withdrawal.

MBE Trap: Voluntary Manslaughter

Probably the easiest way to understand voluntary manslaughter (under the common law) is to think of it in the following terms: voluntary manslaughter = murder + adequate provocation. In other words, first the elements of murder must be satisfied, and then if there's adequate provocation in addition to those elements, there's a case for voluntary manslaughter. 

That brings me to the trap: the test writers will instead see if you'll make the following mistake: voluntary manslaughter = murder + provocation. 

You'll notice that the word "adequate" is missing from the trap definition. They'll set up fact patterns where a person kills another because the person is "enraged" or "extremely heated" or "very angry." But those are all subjective feelings, and the word "adequate" requires that you first determine that the provocation would also have had the same effect on a reasonable person. 

The fact that someone is enraged isn't irrelevant, but it's also not dispositive. If the person is a "hot head" such that a reasonable person would not have felt that same degree of rage, then don't be so quick to reduce the crime to voluntary manslaughter. 

It's entirely possible for someone to murder another person even if the murderer is extremely angry when committing that act. 

MBE Trap: Conspiracy

x and y agree to rob a bank, and both take all necessary steps to prepare to commit that crime. Y not only changes his mind and decides not to rob the bank, but he explains to x with full clarity that he wants nothing do do with the robbery and he calls the police so that the police are waiting for x when x arrives to rob the bank. X is arrested and would not have been arrested at that time had y not tipped off the police.

The main point: no matter what facts the writers give you about everything y did to thwart the crime, and the certainty with which y explained to x that y wanted nothing to do with the crime, y has not withdrawn from the conspiracy to commit bank robbery.

Here's why: you can only withdraw from a crime before it's been committed. It makes no sense at all to claim that someone can withdraw from a crime that has already been committed and the crime of conspiracy is simply an agreement to commit another crime (along with an act that evidences that agreement). That crime was complete before y decided that robbing banks was not for him.

What y did likely do is withdraw from the bank robbery. That crime does not merge with the crime of conspiracy, so be careful not to think that withdrawal from one is withdrawal from all.

Conspiracy

I didn't entirely realize how much there was to know about the crime of conspiracy for the MBE. It’s a lot, but not too difficult.

First the definition: as usual there are elements. A conspiracy requires an agreement between two or more persons with both an intent to enter into the agreement to commit a crime and an intent to achieve the objective(s) of the agreement to commit a crime. Although the common law did not, many states do require an overt act, however slight, as evidence of the above intent. The agreement to commit a crime need not be express; it can be inferred. Conspiracy, however, is a specific intent crime. Implied or express, intent is required.

There's both a unilateral and a bilateral approach to conspiracy and it's important to understand the differences. The modern trend is unilateral. This approach, as the name suggests, requires that only one party to the agreement have a criminal intent. In other words, if one party with criminal intent agrees with an undercover police officer (who did not have criminal intent) to commit a crime, that might be a conspiracy under this approach. 

On the other hand, the traditional approach is bilateral. At least two parties must have a genuine intent to commit a crime when they agree to do so or the elements of a bilateral conspiracy have not been satisfied. 

A rather outdated doctrine that does show up on the MBE is the Wharton Rule. Under this rule, where two or more people are necessary for the commission of the crime, there is no conspiracy unless more parties participate in the agreement than are necessary for the commission of the crime itself. Perhaps thinking of it this way might help: if n people are necessary to commit the crime, then under the Wharton Rule, at least n + 1 must agree to commit the crime for there to be a conspiracy. For example, the crime of adultery requires at least 2 people, so conspiracy to commit adultery will require at least 3 people.

Conspiracies can get a bit more complex when subconspiracies enter the picture. In a chain relationship, there is a single, large conspiracy in which all parties to sub agreements are interested in a single large scheme. As such, all members are liable for the acts of the others in furtherance of the conspiracy. In a hub-and spoke relationship, a number of independent conspiracies are linked by a common member. The common member will be liable for all conspiracies, but the members of the individual conspiracies will not be liable for the acts of the other conspirators.

It's essential to understand at what point a conspiracy is terminated. Acts and statements of co-conspirators are admissible against a conspirator only if they were done or made in furtherance of the conspiracy, and that'll only be true if the conspiracy has not yet terminated. A conspiracy terminates upon the completion of the wrongful objective. 

Withdrawal is generally not a defense to conspiracy. After all, withdrawal is likely to take place after the agreement and the agreement is the point at which the crime of conspiracy has been committed. Withdrawal, however, may be a defense to crimes committed in furtherance of the conspiracy. Be sure to always distinguish between the conspiracy itself, and crimes committed in furtherance of the conspiracy. To withdraw from crimes committed in furtherance of the conspiracy, a conspirator must perform an affirmative act that notifies all members of the conspiracy of the withdrawal. Notice must be given in time for other members to abandon their plans. If assistance has been provided, then withdrawal also requires an attempt to neutralize that assistance. 

Lastly, conspiracy and any crime that was the subject of the conspiracy do not merge. In other words, if two people agree to commit burglary and then commit burglary the crime of conspiracy and the crime of burglary do not merge. Both crimes have been committed, and punishment is allowable for both.

Insanity

There's quite a lot to know about the insanity defense should it show up on the MBE. There are different tests to determine whether at the time of the crime the defendant's mental illness should entitle the defendant to an acquittal. But in addition to that, there are also quite a few procedural details that could show up in the questions. First, the tests:

The M'Nagten Rule: Under this rule, a defendant is entitled to acquittal if a disease of the mind caused a defect of reason such that the defendant lacked the ability at the time of his actions to either know the wrongfulness of his actions or understand the nature and quality of his actions. It's important to understand that this rule applies if either the defendant didn't know that his acts were wrong or didn't understand the nature/quality of those acts.

Irresistible Impulse Test: Under this test, a defendant is entitled to acquittal only if because of a mental illness, defendant was unable to control his actions or conform his conduct to the law. Inability to control is the key here.

Durham Test (Sometimes called the New Hampshire Test): Under this test, a defendant is entitled to acquittal if the crime was a product of the defendant's mental illness. This one is quite broad. It's called the New Hampshire test because it's followed only in New Hampshire. 

The Model Penal Code Test: Under this test, a defendant is entitled to acquittal if the defendant had a mental disease or defect, and, as a result, lacked the substantial capacity to either appreciate the criminality of his conduct or conform his conduct to the requirements of the law. 

Although it's essential to understand the above tests, questions are also sure to show up that deal with more procedural aspects of a claim of insanity. One area is burden of proof. All defendants are presumed sane; the defendant must raise the insanity defense. Usually once that issue is raised, the defendant must then prove insanity, and the burden to prove insanity is often by a preponderance of the evidence. Certainly worth noting, though, that the Model Penal Code instead requires that the prosecution prove that the defendant was sane, and the burden there will be beyond a reasonable doubt. Federal courts require the defendant to prove insanity by clear and convincing evidence. The defendant need not raise the insanity defense when a plea is taken; rather, a simple "not guilty" is sufficient, and that will not preclude later raising the defense. 

By not raising the insanity defense, the defendant may refuse a court-ordered psychiatric examination. If the insanity defense is raised, then refusal is not permissible. If the defendant does raise the defense and if the defendant is later acquitted by reason of insanity, he may be committed to a mental institution until cured. Confinement may even exceed the maximum period of incarceration for the charged offense. 

Lastly, it's worth noting a similar though different concept from the insanity defense called competency to stand trial. Under the Due Process Clause of the U.S. Constitution, a defendant may not be tried, convicted, or sentenced if, as a result of a mental disease or defect, defendant is unable to understand the nature of the proceedings brought against him or assist his lawyer in the preparation of a defense. Likewise, a defendant may not be executed if he is incapable of understanding the nature and purpose of the punishment,

Forgery

The crime of forgery has been showing up in some of the released MBE questions so it's worth noting the different angles that might be tested. Here's what I've gathered is important to know:

Forgery consists of the following:

Making or altering a writing with apparent legal significance so that it is false with intent to defraud.

The falsity is apparently important; to be forgery one must represent that the writing is something that it is not. It's not enough if the writing contains a misrepresentation. So, for example, an intentionally falsified receipt might be forgery, but a receipt that is merely inaccurate will not be.

In addition, the "apparent legal significance" element is one that is tested.  So, a contract may be forged, as may a will.  But creating a document and then signing it as Abraham Lincoln or creating a picture and then signing it as Pablo Picasso will not be forgery. Neither the painting nor the writing has any legal significance.

Situations may arise in which the defendant fraudulently causes a third person to sign a document that the third person does not realize he is signing. This, too, is forgery.  Importantly, though, if the third person knows he is signing a document then it is not forgery even if the third person was fraudulently induced into signing it.

Uttering a forged instrument is slightly different than the crime of forgery.  This consists of offering as genuine an instrument that may be the subject of forgery and is false with the intent to defraud.

The Wharton Rule

The Wharton Rule is an interesting one. When it comes up in practice questions students often tell me they've heard of it or read about it but it hasn't stuck in memory.  It's simple enough and it's worth knowing how it relates to the crime of conspiracy.

First a quick review of conspiracy. A conspiracy under the common law required an agreement between 2 or more persons with an intent to enter into the agreement and an intent by at least 2 persons to achieve the criminal objective of the agreement. In addition, under the common law an overt act was required to provide some evidence of the agreement. An act of mere preparation would suffice as the overt act.

When the Wharton Rule is implicated, the first step is to consider some crimes that cannot be accomplished by just one person. A few that come to mind are bribery and adultery but there are plenty others. Under the Wharton Rule, where two or more people are necessary for the commission of a crime, there will be no conspiracy to commit that crime unless more parties participate in the agreement than are necessary for the crime.

In other words, if 2 people agree to a transaction that would constitute the crime of bribery then at least 3 people will be required to charge them with conspiracy to commit bribery.  Or more abstractly, if the commission of a crime requires n number of people, then conspiring to commit that crime will require at the least n+1.

One exception to note is that the Wharton Rule does not apply to agreements with "necessary parties not provided for" by the substantive offense.  Thus, if, for example, there is a state statute prohibiting the sale of narcotics and that statute imposes criminal liability on the seller but not on the buyer, then both the buyer and the seller may be charged with conspiracy to sell narcotics even though both parties are in fact required for commission of the offense.

Imperfect Self Defense

This post will mainly be about a concept called imperfect self-defense, but to understand it requires an understanding of traditional self-defense.  And to understand self-defense requires an understanding of the differences when one is confronted with deadly force and nondeadly force.

A person not at fault may use such force as the person reasonably believes is necessary to protect himself from the imminent use of unlawful force against that person. If the person is not threatened with deadly force, then deadly force cannot be used as a means of protection. There is no duty to attempt to retreat prior to using nondeadly force for self defense.

In contrast, a person can use deadly force if the person without fault is confronted with unlawful force and reasonably believes that there is an imminent threat of death or great bodily harm. Generally, there is no duty to retreat before using deadly force to protect yourself. A minority view does require an attempt to retreat before using deadly force but not if the attack occurs in the home or if the attack occurs while making an arrest or during the commission of a robbery.

To be clear, traditional self defense using deadly force requires a reasonable belief that death or great bodily harm is imminent. And so what should result if you have an honest belief that such a threat exists, but objectively that belief is not reasonable?

Imperfect self defense is recognized in some states. Under this doctrine, a defense can exist even if the belief as to the threat is not deemed objectively reasonable or if the person claiming the defense was the original aggressor.  Specifically, imperfect self defense is allowable if the defendant was at fault in starting the altercation or if the defendant unreasonably but honestly believed in the necessity of responding with deadly force.

The practical differences between self defense and imperfect self defense are important as well. If one proves self defense, then that will be a complete defense to the crime charged. In other words, the person will be deemed not guilty. But imperfect self-defense doesn't reach so far.  Imperfect self defense could lead to a conviction of voluntary manslaughter rather than murder, but it will not completely exonerate someone.

Homicide

Homicide is a very important topic to know well within the larger subject of Criminal Law on the MBE.  It's not too complicated but the questions tend to be very tricky.  A good start to breaking this topic down is to understand that there are three ways to commit homicide on the MBE: murder, voluntary manslaughter, and involuntary manslaughter.

Murder: Murder is the unlawful killing of a human being with malice aforethought.  And there are four ways to satisfy the element of malice aforethought:

--Intent to kill
--intent to inflict serious bodily injury
--reckless indifference to an unjustifiable risk to human life
--intent to commit a felony.

Intent to kill is the most straightforward.  But even if x does not intend to kill y, x can be charged with murder if x intended to inflict serious injury upon y and y ended up dying.  And not even that is necessary; x can instead just act recklessly and if y dies as a result of x's recklessness that too might be murder.  Or x might be committing a felony (bank robbery, for example) and in the process might negligently kill y. That would be murder as well even though negligence doesn't rise to the level of recklessness, but only because the negligence occurred during the commission of a felony.

Voluntary Manslaughter: Voluntary manslaughter is a killing that would be murder but for the existence of adequate provocation.  Provocation is adequate if it would cause a reasonable person to lose control, if the person does in fact lose control, and if there is not sufficient time between provocation and the killing for the person to cool off.

Notice that voluntary manslaughter still requires that you analyze murder. In other words, voluntary manlaughter = murder + adequate provocation.

Involuntary Manslaughter: 

A killing is involuntary manslaughter if it was committed with criminal negligence. Some states also have a rule similar to the felony-murder rule called the misdemeanor-manslaughter rule which will allow for a charge of involuntary manslaughter if the killing occurs during the commission of a misdemeanor.

Distinguishing between involuntary manslaughter and murder can be tricky. Murder allows for recklessness while involuntary manslaughter requires criminal negligence. This is a very fine line, though recklessness requires a higher degree of fault than does negligence. With recklessness a person acts with the knowledge that what they are doing is wrong, whereas with negligence that knowledge need not be present provided that a reasonable person would have known not to act.

Solicitation

Some of the most difficult questions within the subject of Criminal Law are found within the topic of inchoate offenses.  Within these offenses are the following crimes: solicitation, conspiracy, and attempt.

Like most aspects of Criminal Law, the elements will guide the analysis.  The following are the aspects of solicitation that often pop up in the questions and therefore should be known well:

Solicitation requires that a person incite, counsel, advise, urge, or command another to commit a crime with the intent that the person solicited commit the crime.  The fact that the person must intend that the other commit the crime makes this a specific-intent crime.  Importantly, it is not required that the person solicited actually respond affirmatively and commit the crime.  So, for example, if x commands y to commit a crime and x intends for y to actually commit that crime, the fact that y denies x's command has no bearing on the analysis as to whether x has committed the crime of solicitation; the crime is in the command itself.

It is also not a defense that the person solicited is not convicted of the offense solicited, nor is it a defense that the offense solicited could not in fact have been successful.  Withdrawal is always worth considering in Criminal Law, and with solicitation most jurisdictions have held that withdrawal is not a defense.   One important defense to note, however, is a situation in which the solicitor could not have been found guilty of the completed crime because of a legislative intent to exempt the solicitor.  For example, a minor female cannot be guilty of solicitation for the crime of statutory rape by urging an adult male to have intercourse with her because the legislative intent is to not find the minor guilty of statutory rape in such a situation once the crime is completed.

Let's assume that the person solicited actually completes the solicited crime. In such an instance both the person solicited and the solicitor can be held liable for that completed crime.  Similarly, if the person solicited commits acts which would qualify for the crime of attempt, both the person solicited and the solicitor can be liable for attempt. And finally if the person solicited agrees with the solicitor to commit a crime but then chooses not to commit it, don't forget that both the solicitor and the person solicited might be liable for conspiracy. In all of these circumstances, though, the solicitor will not be liable both for the solicitation and the completed crime.  The crime will merge with the solicitation so that the solicitor will be liable either for the solicitation or the completed crime but not for both.

***Note: Although the default rules on the MBE require a knowledge of the common law, its important to note that under the Model Penal Code one can renounce (i.e., withdraw from) the solicitation if the solicitor prevents the commission of the crime such as by persuading the person solicited not to commit the crime.

Larceny vs Embezzlement

Some distinctions come up time and again on the MBE. One such distinction is that between two theft crimes: larceny and embezzlement. You'll see quite a few of these questions as you work through Criminal Law, and here I'll outline the important differences to note:

Larceny is the taking and carrying away of tangible personal property of another by trespass with the intent to permanently deprive the other of his/her property.

Determine first whether the person charged with larceny had possession of the property at the time it is claimed that the person took and carried away the property. Because if the person had legal possession of the property at that time, then larceny is not the proper charge. The reason for this stems from the definition above; larceny requires taking and carrying away the property of another and if a person is deemed to have possession of the property that he takes, then it can't be said that the person is taking the property of another, and as such not all essential elements of the crime have been satisfied.

Further, larceny requires that at the time of the taking and carrying away of the property of another, the person taking the property intends to permanently deprive another of the property. For purposes of the MBE you should also have an understanding of "continuing trespass larceny" in which the intent to permanently deprive is not formed until after the property has been taken. This too is deemed larceny, provided that all other elements have been satisfied.

Embezzlement is the fraudulent conversion of personal property of another by a person in lawful possession of that property. Unlike with larceny, to be charged with embezzlement, one needs to have been in lawful possession of property prior to misappropriating that property.

In determining if a person is in possession of property for purposes of analyzing embezzlement consider the following definition for guidance: A person has possession of property when he has sufficient control over it to use it in a reasonably unrestricted manner (in which case consider embezzlement). A person lacks possession if he has physical control over it, but his right to use it is substantially restricted by the person in lawful possession of the property (in which case consider larceny).

This distinction outlined here is a tough one as the line between the two crimes is rather thin. But like so many legal concepts on the MBE, the best way to understand the type of distinction that might be tested is to work through many practice questions. The MBE should be thought of as a game, and like many games the best way to improve is through dedicated practice and training. The outlines will start you on your way, but practice will take you to where you need to be.

How It's Tested: Larceny

I've written a few posts about larceny here on the blog. In today's post I'll be focusing on a very specific way that the crime is tested in some questions. Larceny is the taking and carrying away of the personal property of another with the intent to permanently deprive the rightful owner of his/her property. Oftentimes questions will play on one element, and that element will be the deciding factor as to whether a charge of larceny is proper. And sometimes the reason why larceny is an improper charge is because the property taken actually belonged to the person taking the property, rather than belonging to "another."

But I want to focus here on a specific type of question in which even though a person is merely reclaiming his/her own property, a charge of larceny is still proper. It is possible to commit larceny of your own property if another person (for example, a bailee) has a superior right to possession of the property at the time you (the owner of the property) attempt to reclaim it. For example, if someone has performed work on a piece of personal property and all that remains is payment for the work completed, then the owner of the property can commit larceny if the owner takes that property from the person who completed the work without providing payment for the work completed, provided all other elements of the crime are satisfied.

And of course if the owner sends someone to reclaim the property, the analysis is the same. One cannot escape a charge of larceny simply because one sends another to perform the acts that constitute the crime.

Malice Aforethought

Oftentimes when the MBE is testing the crime of murder, a statute is provided in the fact pattern and you'll be required to interpret that statute and draw a conclusion based upon your interpretation. You'll see terms like "first-degree murder," "second-degree murder," etc. But that's not the default rule on the MBE; rather, the default rule on the MBE is the common law, and common-law murder does not incorporate distinctions such as first-degree.

Murder under the common law is defined as the killing of another human being with malice aforethought. As with all legal rules, you'll want to parse the rule to ensure that all elements of the rule have been satisfied before drawing your conclusion. The first few elements are easy enough; you'll want to ensure that the victim has died and that the victim was a human being. The question will likely be testing the element of malice aforethought, so it's essential to understand what constitutes malice aforethought.

The 4 mindsets that will satisfy the malice aforethought requirement are:

(1): An intent to kill: If x intends to kill y (in other words, x actively desires the prescribed criminal consequences to follow his act), then murder is applicable.

(2): An intent to cause serious bodily injury: Note here that a person can be charged with murder under the common law even if it is not the desire of that person to kill another. Provided that x desires to cause y serious bodily injury, then if y dies as a result of the injury inflicted by x, x can be charged with murder.

(3): Reckless indifference for the life of another: This is sometimes referred to on the MBE as depraved heart murder. Even if there is no intent to kill, and there is no intent to cause serious bodily injury to another, one can be charged with murder if he acts recklessly, and the reckless act causes the death of another. An important distinction to note here is between recklessness and negligence. Causing the death of another through one's own negligence is not sufficient for a charge of murder (the more appropriate crime is involuntary manslaughter), but causing the death of another through one's own recklessness is sufficient. The key difference here is that a person acts recklessly if he is aware of a substantial risk that a certain result will occur as a result of his actions whereas he acts negligently if he should have been aware (even if not actually aware) of a substantial and unjustifiable risk that a certain consequence would result from his actions.

(4): Felony Murder: You'll want to look for a situation in which a death occurs during the commission of an inherently dangerous felony. If a death occurs during the commission of an inherently dangerous felony, and there is no intent to kill, no intent to cause serious bodily injury, and no reckless disregard for the life of another, then consider felony murder, as it will provide a basis for a charge of murder even if the highest degree of fault on the part of the person committing the felony is negligence.

Civil vs. Criminal (Assault and Battery)

The fact that both assault and battery show up both in civil law (Torts) as well as in Criminal Law makes these topics tricky if the distinctions are not known well. Based upon what I've seen in practice questions, the following should be known about each:

Assault:

In Torts, assault is an intentional tort that requires an act by the defendant creating a reasonable apprehension in plaintiff of an immediate harmful or offensive contact to plaintiff's person. In addition, causation is required, but damages are not required.

In Criminal Law, there are two ways to commit the crime of assault. One way is nearly identical to the definition set forth above in Torts. A criminal assault is an intentional creation of a reasonable apprehension in the mind of the victim of imminent bodily harm. But there is another definition of criminal assault to note carefully. Assault is also an attempt to commit a battery. This is a specific-intent crime so be sure to apply all the rules you've learned regarding specific-intent crimes to criminal-assault. In addition, note that a person can be guilty of criminal assault even if the plaintiff was not put in apprehension of harm because all that is required is that defendant intended to commit a battery upon plaintiff.

Battery:

In Torts, battery is harmful or offensive conduct to plaintiff's person with both intent and causation. Once again, damages are not a required element.

In Criminal Law, battery is an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching. Importantly, unlike in Torts, criminal battery need not be intentional. Unlike criminal assault, criminal battery is a general intent crime.