MBE Strategies Blog Post Series: Welcome to our MBE tips and tricks blog post series — this post focuses on Criminal Law MBE tips.
You will see 25 scored Criminal Law and Procedure MBE questions on the Multistate Bar Exam.
We have posted several MBE tips (which you can find links to at the bottom of this post) that focus on a specific multiple-choice question that many students answer incorrectly. If you can master these questions, it could increase your MBE score by that many points if you see any of these issues tested again (which, by the way, you will!). These posts of MBE tips and tricks will not only cover substantive law but also strategy. So each post covers one highly-tested area of substantive law as well as an important MBE strategy. You can sign up to receive these posts directly to your inbox for the upcoming administration at the bottom of this page.
Do your best to answer this Criminal Law MBE question (before even looking at the answer choices and before looking at the answer below!) Ask yourself: What is the subject? What is the legal issue? What is the rule and analysis? What is the conclusion? Try to answer these beginning questions before even reading the answer choices. Then, uncover the answer as well as read more about our MBE tip of the day.
Criminal Law MBE Question
It is a rainy day. A man just finished purchasing items at a grocery shop and he sees a glass container of umbrellas for “$10 per umbrella” near the door. Even though the sign is clear, the man unreasonably believes that the umbrellas are free. The man grabs an umbrella. He doesn’t quite reach the door to go outside when the cashier says, “excuse me, you have to pay for that.” The man apologizes, says he was mistaken, and puts the umbrella back.
Is the man guilty of larceny?
(A) Yes, because the man’s belief was unreasonable.
(B) Yes, because the man had the specific intent to leave the store.
(C) No, because the man never left the store.
(D) No because the man did not have the specific intent to take the umbrella.
Legal Rule and Analysis:
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided.
Answer to the Criminal Law MBE Question
Subject: Criminal Law
Legal Issue: Is the man guilty of larceny?
Legal Rule and Analysis: Larceny is defined as the trespassory taking and carrying away of personal property of another with the intent to permanently deprive them thereof. Here, the man did not specifically intend to permanently deprive the store of the umbrella—because he thought the umbrellas were free. It does not matter if his belief was unreasonable. A reasonable mistake of fact or an unreasonable mistake of fact can be a defense to a specific intent crime if it negates the specific intent. (A) is incorrect because if a defendant is being charged with a specific intent crime, a reasonable or unreasonable mistake of fact will serve as a defense. (B) is incorrect because it is not the intent to leave the store that matters; it is the intent to permanently deprive the store of their property that matters. (C) is incorrect because it is irrelevant. The man does not have to leave the store to commit larceny. If he did have the specific intent to steal the umbrella, he would technically be guilty the second he picked up the umbrella to carry it away.
Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect: The answer is (D). The other explanations are above.
MBE Tip: Be aware of the different mindsets (mens rea) when you are studying crimes. Classify crimes by the mindset required and you will start to answer more questions correctly and you will have a correct general understanding of the law.
Specific intent is when one has the conscious object or purpose to achieve a specific result. The crimes that require specific intent include: virtually all of the theft crimes (robbery, embezzlement, larceny, burglary, forgery, false pretenses), the inchoate (“incomplete”) crimes (solicitation, attempt, conspiracy), and assault and first-degree murder. To be liable for any of these crimes, the defendant needs the specific intent to commit them. It needs to be his purpose to commit them!
Malice crimes are second-degree murder and arson (like “MA” in MALICE). These require recklessness or intentional disregard of an obvious or known risk that a result will occur. So if I had a match and I didn’t mean to burn down a person’s house, but I poured lighter fluid all over it then threw the match on it just to see what would happen, I would be liable because I am acting recklessly with respect to the outcome.
Strict liability crimes do not require a mindset. These crimes are (SS): statutory rape and small crimes (usually vehicular offenses like speeding, or regulatory offenses like littering, selling contaminated food, etc.).
Because mens rea plays such a huge rule in answering an MBE question accurately, it is very important to classify crimes by their required mens rea right off the bat.
Key Takeaways and MBE tips for the day:
Takeaway for the Law: Larceny is defined as the trespassory taking and carrying away of personal property of another with the intent to permanently deprive them thereof. Here, the man did not specifically intend to permanently deprive the store of the umbrella—because he thought the umbrellas were free. It does not matter if his believe was unreasonable. A reasonable mistake of fact or an unreasonable mistake of fact can be a defense to a specific intent crime if it negates the specific intent.
MBE Tip: Remember to classify crimes by their mindset or “mens rea” (listed above). This will give you a much more in-depth understanding of the law.
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