Copyright, MCMLXXXVII, All Rights Reserved, Charles E.
Brown, Attorney at Law
Notice: This information is provided for those who wish
to learn the law in a way that teaches you the basic
principles of the law. This disk will also help you pass the
multi-state portion of the bar exam.
This disk is provided as shareware. I have spent
hundreds of hours compiling this information and provide it
for only $75. If you'd like, you may substitute information
compiled on a legal subject for the $75. Please send check
or disks to:
Charles E. Brown IV
Attorney at Law
11526 Raymond Avenue
St. Louis, MO 63138
I have other legal information--including the one
principle that is guaranteed to get you through the
multistate--available for those who are interested. Include
your name with your letter and I'll make it available to you
as a service to my brethren in the law.
I also have two other disks with legal subjects on them.
These subjects include estates, administrative law, equity,
personal property, agency, secured transactions, civil
procedure, corporations and partnerships, commercial paper,
conflicts of law, and admiralty. I will provide them free to
Two thirds of the multistate is criminal law and the
other third is criminal procedure.
The best answer for the multistate is to pick the
majority rule. The second best answer is the minority rule.
Don't get emotionally involved with the people in the
The answer "It's unconstitutional" is wrong in criminal
law (OK in criminal procedure).
Put ourselves in the point of view from the exam-giver.
Look for uniformity in the examination; e.g., the common law
Use the process of elimination. If we see three dumb
answers, put down the fourth response.
Read the questions carefully. This exam is primarily a
reading comprehension exam.
I. Jurisdiction and General Matters
1) A state acquires jurisdiction to adjudicate
a crime if it is the legal situs of the crime:
a) Place of conduct
b) Place of result
2) Crimes of omission? The situs is where the
act should have been performed.
1) Solicitation and attempt merge into the
2) Conspiracy never merges with the substantive
3) Never merge any crime that has different
II. Essential Elements of Crime
A. The Requirement of a Physical Act
1) An act. Any bodily movement that is
volitional (not getting pushed into someone).
Having an epileptic seizure? Give them a one
2) An omission. A legal duty to act can arise
by law (income tax returns), by contract
(lifeguard or nurse), by the relationship
between the parties, by the voluntary
assumption of a duty of care, or where the
conduct created the peril.
B. Mental State
1) This is the most important element of crime
for the multistate by far.
2) At common law there are four mental states
a) Specific intent (purposefully or
(i) You can use defenses for these
crimes not available for other crimes;
e.g., voluntary intoxication.
(ii) All attempts are specific intent
(iii) Common law murder (murder in the
second degree) is a malice crime, and
can't use the specific intent defenses,
but first degree murder is a specific
intent crime and can use the specific
(iv) All the big crimes against
property are specific intent crimes.
(v) Intent can be transferred from one
victim to another.
b) Malice (recklessly or wantonly; e.g.,
murder and arson).
c) General intent crimes (rape and
d) Strict liability (any defense that
negates intention is no defense whatever to
a crime of strict liability).
(i) The state of mind of the
perpetrator is irrelevant.
(ii) The exam will give us a statute
that has no adverbs (knowingly,
III. Accomplice Liability
A. Common Law
1) Accomplices are liable for the crime itself
and all other foreseeable crimes. A woman could
be guilty of rape if she counsels or aids the
man in the commission of the rape.
2) The accomplice must be actively aiding or
abetting the crime. Mere presence is not enough
for accomplice liability.
IV. Inchoate Offenses
1) Asking someone to commit a crime. The crime
is over with the act of soliciting. If the
person agrees to commit the act, we have
1) Almost always on the exam.
2) Do not hold anyone liable for conspiracy
unless you can find the people pursuing an
unlawful objection. Example: S and J agree to
pawn S's diamonds over Mrs. S's objections.
This is not an unlawful objective and not a
3) Must have:
a) An agreement (does not have to be
written or spoken),
b) An intent to agree, and
c) An intent to pursue the unlawful
4) Conspiracy does not merge.
5) All conspirators are liable for all the
crimes of other conspirators if those crimes
were committed in futherance of the conspiracy,
and were foreseeable.
6) Conspirators can be part of the same
conspiracy even though they don't know each
7) Conspiracy, at least in the majority of
states, is a crime upon the entering into the
agreement. In the minority of states, you need
an overt act (any little act will do; e.g.,
showing up at the bank to rob it).
8) Impossibility is not a defense to a charge
of conspiracy; e.g., conspiring to rape a dead
9) A conspirator can never withdraw from
liability for the conspiracy itself. You can
withdraw from liability for the subsequent
1) Must have:
a) Specific intent, and
b) A substantial step towards the
commission of the crime (more than mere
preparation for the crime).
2) Factual impossibility is never a defense to
the attempt itself. "I couldn't rob him because
he didn't have any money." No way.
3) Legal impossibility is a defense to attempt.
Look at the question this way:
a) Best choice: Repeal of the criminal
statute. Example: Somebody does something
that they think is a crime.
b) Second choice: Somebody is charged with
attempted receipt of stolen property, and
the property is not stolen.
c) Third choice: Somebody shoots at
someone who is already dead.
V. Responsibility and Criminal Capacity
1) M'Naughton Rule
a) Defendant must know the wrongfulness of
his actions and must understand the nature
and quality of his acts.
2) Irresistible Impulse Test
a) Defendant is unable to control his
3) Durham Test
a) Conduct is the product of mental disease
4) M.P.C. Test
a) Either mental disease or defect or lack
of substantial capacity to act.
1) Addicts and alchoholics are voluntarily
intoxicated. To be involuntarily intoxicated,
someone has to hold you down and force that
drink down your throat. Involuntarily
intoxication is a form of insanity and is a
defense to all crimes. Voluntary intoxication
is a defense only to specific intent crimes and
no other types of crimes.
1) Usually a red herring. Under 7? No crime.
Under 14? Rebuttable presumption of no crime.
VI. Principles of Exculpation
a) A victim may use nondeadly force in
self-defense any time he reasonably believes
that force is about to be used on him.
b) The majority rule lets a victim use
deadly force in self-defense if that victim
reasonably believes that deadly force is
about to be used on him. The minority rule
would require the victim to retreat if it is
safe to do so.
2) Retreat? Time honored exceptions:
a) Don't have to retreat from your home.
b) Don't have to retreat from a rape or
c) Police officers making an arrest do not
have to retreat.
3) On the bar, do not give back to the
aggressor the defense of self-defense unless he
withdraws and communicates the withdrawal to the
4) Deadly force may never be used solely to
5) Deadly force may not be used to make an
arrest unless the police have reason to believe
that the fleeing individual is armed or presents
a danger to the public.
B. The Excuse of Duress (Also Called Compulsion or
1) Defenses to all crimes except homicide.
C. Other Defenses
1) A mistake of fact is only a defense when it
negates intention. The mistake must be
reasonable if the crime charged is a malice
crime or a general intent crime. Any mistake of
fact is a defense if the crime charged is a
specific intent crime.
2) A mistake of law is not a defense.
3) Consent of the victim is never a defense in
this country, except for rape, false
imprisonment, batteries, etc.
4) The entrapment defense is very narrow and is
almost never available. Predisposition negates
defense. Don't use the entrapment defense on
the bar exam.
VII. Offenses Against the Person
We deal with the common law of crimes on the MBE.
A. Assault and Battery
1) Battery is a completed assault. Battery is
a general intent crime.
a) Assault as an attempted battery. Must
have an unlawful attempt to injure another
with the present ability to do it. Specific
b) Assault as a threat. "An offer to
injure another." Defendant intends to put
the victim in fear and the victim is put
into fear. General intent crime.
1) 20% of the criminal law questions will
concern homicide--very, very important.
2) The victim must be human. No dolphins or
3) Common law murder is a malice crime, and you
cannot use specific intent defenses as defenses
4) Malice aforethought includes:
a) Intent to kill
b) Intent to inflict great bodily harm
c) Depraved heart (russian roulette)
d) Intent to commit a felony
5) Voluntary manslaughter is always associated
with passion. Some provocation gives rise to
the crime of passion.
6) Involuntary manslaughter is a killing from
criminal negligence. Misdemeanor/manslaughter
7) No uniform definition of first degree
a) If the defendant has a defense to the
underlying felony, he has a defense to
the underlying murder (voluntary
intoxication in a specific intent
b) Deaths caused while fleeing from a
felony are murder, but once the
defendant has reached a place of safety,
no more murder.
c) The defendant is not liable for the
death of a co-felon.
9) Causation. All causation questions on the
MBE come up in the context of homicide:
a) An act which hastens an inevitable
result is homicide. If you shoot someone 20
minutes before he was to board a plane that
crashed you have still murdered him.
b) If someone dies as a result of an act of
nature or coincidence, the person who causes
them to be in that place of danger is not
liable for the death.
VII. Sex Offenses
1) The slightest penetration completes the
crime of rape, therefore a rapist cannot be
charged with attempt if he is guilty of
B. Statutory Rape
1) The classic example of the strict liability
offense. Consent is no defense, and mistake of
fact is no defense. "I'm sorry judge, she
looked 20 to me." Tough--you still go to jail.
IX. Property Offenses
1) Requires a wrongful taking (by trespass or
trick), a carrying away (asportation), the
personal property of another without the owner's
consent with the intent to deprive permanently
of the interest in the property.
2) At common law, taking property with the
belief it is yours is not larceny.
3) The thief only gets possession, not title.
4) A thief can commit larceny on a corpse.
1) The crucial distinction between larceny and
embezzlement is that the embezzler has lawful
2) No need for asportation, only need
3) The embezzler does not have to benefit
himself or herself.
4) The thief only gets possession, not title.
C. False Pretenses
1) The key distinction between false pretenses
and larceny and embezzlement is that the thief
persuades the owner to give him title to the
2) Must be present, not a future promise.
1) Robbery = larceny + assault. We will see
all the elements of a robbery and all the
elements of an assault.
2) Robbery is the taking from the owner in his
presence by violence or by putting him in fear.
The threat has to be of imminent harm. Threats
of future harm are crimes of extortion.
3) You can never rob a corpse, because you
cannot put a corpse in fear.
1) Extortion is blackmail, and is very much
like robbery. The threat is of future harm.
F. Modern Statutory Changes in Property Acquisition
1) There was no common law crime of theft.
Theft is the modern statutory change that allows
any one of the three common law property crimes
(larceny, embezzlement, and false pretenses) to
be charged as theft.
X. Offenses Against the Habitation
a) A breaking. At common law it was not a
breaking for someone to come into your wide
open house, but if they push open an
interior door, it is a breaking. May be a
constructive breaking (giving someone a
b) An entering. When any part of your body
crosses the plane of the house.
c) The dwelling-house of another.
d) At night.
e) With the intent to commit a felony
inside of the house. The intent to commit
the felony must exist at the time of the
breaking and entering.
1) One of only two malice crimes.
2) Arson is:
a) The malicious burning; (must be some
perceptable wasting of the house)
b) Of the dwelling place;
c) Of another. (can't commit arson on your
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