Crim Law

Question 1

Grounds for Arrest, MBE 4

Answer 1

Grounds for Arrest, MBE 4

Police may arrest a person without a warrant if he has reasonable grounds to believe felony has been committed and that the person before him committed it.

Question 2

Search Incident to Arrest, MBE 5

Answer 2

Search Incident to Arrest, MBE 5

If police have probable cause to arrest person, they may search him incident to that arrest. Search includes person, wingspan (for weapons or area where D can destroy evidence), and protective sweep beyond wingspan for possible accomplices. Search of person need not be conducted out of fear for safety.

Question 3

Accomplice Liability—Selling Goods to Known Criminals, MBE 6

Answer 3

Accomplice Liability—Selling Goods to Known Criminals, MBE 6

An accomplice aids, counsels or encourages another to commit crime. Mere knowledge is insufficient. Selling something at a higher price because of buyer’s purpose may constitute aid for accomplice liability, but selling something for a normal price will not.

Question 4

Provocation—Threat of Deadly Force, MBE 8

Answer 4

Provocation—Threat of Deadly Force, MBE 8

One type of adequate provocation is exposure to an imminent threat of deadly force.

Question 5

Receipt of Stolen Property, MBE 11

Answer 5

Receipt of Stolen Property, MBE 11

Receipt of Stolen Property requires D receive possession and control of stolen personal property knowing it to have been stolen by another with the intent to permanently deprive owner. Knowledge must exist at time of receipt.

Question 6

Informer’s Identity, MBE 14

Answer 6

Informer’s Identity, MBE 14

Generally, P has a privilege to withhold the identity of an informer unless the informer was a witness to the crime and his testimony may be material to the issue of D’s innocence or guilt. If he is a material W, his identity is deemed essential to a fair trial. However, if the informer’s information is used only to establish probable cause to issue a search warrant, and not used at trial to establish D’s guilt, the identity need not be revealed.

Question 7

Conspiracy—Agreement, MBE 17, 21

Answer 7

Conspiracy—Agreement, MBE 17, 21

There must be a meeting of at least 2 guilty minds, 2 or more persons who are actually committing themselves to the scheme. If 1 person in a 2-party conspiracy is only feigning agreement, the other cannot be convicted of conspiracy at common law. If so called co-conspirator was adjudicated insane at the time of agreement, D cannot be convicted of conspiracy at common law.

Question 8

Use of Deadly Force for Private Arrest, MBE 18

Answer 8

Use of Deadly Force for Private Arrest, MBE 18

A private person may use deadly force to apprehend a fleeing felon if the felon threatens death or serious bodily harm and deadly force is necessary to prevent her escape. The felon must actually be guilty of the felony for which the arrest was made. A reasonable belief is insufficient.

Question 9

Provocation—Mitigation, MBE 18

Answer 9

Provocation—Mitigation, MBE 18

Provocation is not a defense to murder or manslaughter. Rather, it is a mitigation that reduces murder to manslaughter.

Question 10

Conspiracy—Acquittal of so called co-conspirators, MBE 21

Answer 10

Conspiracy—Acquittal of so called co-conspirators, MBE 21

An acquittal of all persons with whom a person is alleged to have conspired precludes conviction of the remaining D.

Unindicted Co-conspirators
But it is true that one who does enter into a conspiracy with one or more people can be convicted even though the others are not charged with the conspiracy. If only 1 conspirator is prosecuted however, P must show that, in fact, others were involved with the D on trial.

Question 11

Burglary—Breaking, MBE 25

Answer 11

Burglary—Breaking, MBE 25

A breaking requires some use of force to gain entry, but minimal force is sufficient. Even pushing open a door that is already partially open is considered a breaking because some force was used to gain entry. Therefore, an unlocked door or window will not provide a defense to “breaking.”

Question 12

Larceny—Asportation & Possession, MBE 26

Answer 12

Larceny—Asportation & Possession, MBE 26

Asportation is met by even a slight movement of the property. Picking up an item and moving towards the door is sufficient for asportation.

Larceny is a crime against possession, not title. All that is necessary is that the property be taken from someone who has a possessory interest superior to D. Thus, even if the possessor obtained the property by theft, she has a possessory interest superior to D.

Question 13

Assault—2 Versions, MBE 27

Answer 13

Assault—2 Versions, MBE 27

Specific intent crime: Attempt to commit battery
General Intent Crime: Intentional creation of reasonable apprehension of imminent bodily harm. More than mere words. Actual touching is battery, not assault.

When question does not identify which version of assault is being addressed, account for both versions.

Question 14

Assault, Attempted Manslaughter & Attempted Murder, MBE 28

Answer 14

Assault, Attempted Manslaughter & Attempted Murder, MBE 28

Attempted murder or attempted manslaughter requires D to act with specific intent to kill and have committed an act beyond mere preparation for the offense. Factual impossibility is no defense.

Assault as attempted battery merges with attempted murder or attempted manslaughter; assault as intentional creation (other than mere words) of reasonable apprehension of imminent bodily harm does not merge. Adequate provocation reduces crime to attempted manslaughter; the absence of adequate provocation increases crime to attempted murder.

Question 15

Exclusionary Rule: Confessions, Miranda & Voluntariness, MBE 29

Answer 15

Exclusionary Rule: Confessions, Miranda & Voluntariness, MBE 29

D has a better chance of excluding a confession by claiming it was involuntary and coerced than that it was made absent Miranda warnings. Voluntariness is assessed by looking at the totality of the circumstances, including the duration and manner of police interrogation. In contrast, confessions obtained absent Miranda warnings may not result in exclusion since the warnings are deemed merely a prophylactic rule and not a violation of the 5th A.

Question 16

Attempt & Abandonment of Attempt, MBE 33

Answer 16

Attempt & Abandonment of Attempt, MBE 33

A criminal attempt is an act that, although done with the intention of committing a crime, falls short of completing the crime. D must have the specific intent to perform an act and obtain a result that, if achieved, would constitute a crime. Also, D must have committed an act beyond mere preparation for the offense. Abandonment is not a defense to attempt in most jurisdictions. In those jurisdictions where it is a defense, it must be (i) fully voluntary and not made because of the difficulty of completing the crime or because of increased risk of apprehension; and (ii) a complete abandonment of the plan made under the circumstances manifesting a renunciation of criminal purpose, not just a decision to postpone committing it or to find another victim.

Question 17

Wiretapping and Reasonable Expectation of Privacy, MBE 36

Answer 17

Wiretapping and Reasonable Expectation of Privacy, MBE 36

A person must have a reasonable expectation of privacy to require a warrant for wiretapping. Prisoners have no legitimate expectation of privacy in their cells or in any personal property that they have in their cells.

Question 18

Duress & Arson, MBE 38

Answer 18

Duress & Arson, MBE 38

A person is not guilty of an offense, other than homicide, if he performs the otherwise criminal act under the threat of imminent infliction of death or great bodily harm and his perception to the threat is reasonable. Arson is an offense other than homicide. Therefore, a person under duress to commit arson is not guilty of the offense. And since the person cannot be guilty of the arson, he also cannot be guilty of murder resulting from the arson.

Question 19

Border Stops, Checkpoints & Auto Exception, MBE 40

Answer 19

Border Stops, Checkpoints & Auto Exception, MBE 40

Border officials may stop an auto at a fixed checkpoint inside the border even without reasonable suspicion that the car contains persons whose presence in the US is illegal. However, to conduct a search at a fixed checkpoint, officials must meet one of the exceptions to a warrant requirement. Auto exception requires probable cause.

Auto exception occurs when police have probable cause to believe auto contained evidence of a crime. Confessions and other statements concerning criminal liability are sufficient for probable cause under the auto exception.

Question 20

Felony Murder, MBE 42, 43

Answer 20

Felony Murder, MBE 42, 43

A killing committed during the course of a felony is murder. The death must have been a foreseeable result of the specific acts involved in the commission of the felony. If the specific act that caused the murder was not foreseeable, D will not be held guilty of felony murder.

Question 21

Pro Se—Waiver of Right to Counsel, MBE 45

Answer 21

Pro Se—Waiver of Right to Counsel, MBE 45

As long as waiver of counsel was knowing and intelligent, a judge is bound to honor D’s request to proceed pro se. Violation of D’s right results in automatic reversal of guilty verdict & D is excused from having to pay for attorney representation

Question 22

Receipt of Stolen Property—Sting Operations, MBE 46

Answer 22

Receipt of Stolen Property—Sting Operations, MBE 46

Receipt of stolen property requires (i) receiving possession and control (ii) of “stolen” personal property (iii) known to have been obtained in a manner constituting a criminal offense (iv) by another person, (v) with the intent to permanently deprive.

In a sting operation, the property must still be “stolen” at the time it is received by D. Once property is recovered by either the owner or the police, it loses its stolen status, even if the owner consents to the property’s use in the sting. However, if fencer retains possession, property retains its stolen status.

Question 23

Provocation—Criminal Aggressors & Transferred Intent, MBE 47

Answer 23

Provocation—Criminal Aggressors & Transferred Intent, MBE 47

D can be “provoked” by a robber if elements are met. If innocent bystander mistakenly killed by the response to the provocation, D can assert the mitigation under transferred intent.

Question 24

Insanity—MPC, MBE 49

Answer 24

Insanity—MPC, MBE 49

MPC Insanity Test: D must have suffered from a mental disease or defect and as a result lacked substantial capacity to either (i) appreciate the wrongfulness of his conduct; or (ii) conform his conduct to the requirements of law. If D’s false belief of the need for self defense had been true, and self defense was insufficient for D’s response because he was under no imminent threat of death or serious bodily harm, the M’Naghten rule will not be satisfied.

Question 25

Principal-Agent Criminal Liability—Innocent Pawn Theory, MBE 50

Answer 25

Principal-Agent Criminal Liability—Innocent Pawn Theory, MBE 50

A principal is one who, with the requisite mental state, actually engages in the act or omission that causes a criminal result. Anyone who acts through an innocent, irresponsible, or unwilling agent is classified as a principal.

Question 26

4th Amendment Rights and Parole, MBE 51

Answer 26

4th Amendment Rights and Parole, MBE 51

There is not constitutional principle where 4th A protection against unreasonable search and seizure is lessened in scope when applied to persons on parole.

Question 27

Larceny—Mistaken Belief in Ownership, MBE 53

Answer 27

Larceny—Mistaken Belief in Ownership, MBE 53

The intent to deprive permanently does not exist if someone takes an object mistakenly believing it is hers even if she decides to keep the object. Thus the taking is not wrongful.

Question 28

Attempt & Malice or General Intent Crimes, MBE 54

Answer 28

Attempt & Malice or General Intent Crimes, MBE 54

Malice crimes, such as common law murder, and general intent crimes require something less than specific intent. However, attempt requires specific intent. Therefore, attempted common law murder requires a specific intent to kill rather than the “awareness of an unjustifiably high risk to human life” or “intent to kill with malice aforethought” required for common law murder.

Question 29

False Pretenses—Bounced Checks, MBE 63

Answer 29

False Pretenses—Bounced Checks, MBE 63

Requires a specific intent to defraud. If D writes checks on an insufficient account with the intent to deposit sufficient funds to honor the checks, he lacks the specific intent to defraud.

Question 30

Involuntary Misdemeanor Manslaughter and Burning of Building, MBE 70

Answer 30

Involuntary Misdemeanor Manslaughter and Burning of Building, MBE 70

If D burns down a building that is not a dwelling, he cannot be guilty of the felony of common law arson. However, his act would be a “malum in se” misdemeanor. If someone dies as a consequence, D will be guilty of misdemeanor manslaughter and not felony murder.

Question 31

Imperfect Self Defense & Common Law Jurisdiction, MBE 70

Answer 31

Imperfect Self Defense & Common Law Jurisdiction, MBE 70

Under Imperfect Self Defense, a murder may be reduced to manslaughter if D unreasonably but honestly believed in the necessity of responding with deadly force. However, common law jurisdictions do not recognize this doctrine.

Question 32

Miranda 5th A Right to Counsel, 6th A Right to Counsel & Use of Informer “Interrogators”, MBE 71

Answer 32

Miranda 5th A Right to Counsel, 6th A Right to Counsel & Use of Informer “Interrogators”, MBE 71

Miranda does not apply where interrogation is by an informant who D does not know is working for the police, because the coercive atmosphere of police-dominated interrogation is not present. 6th A does not apply until formal charges have been filed, but it would prohibit an informant from deliberately eliciting statements from D about the crime for which he was charged, even though it would not be an interrogation under the 5th A. Informers can discuss different crimes however. 5th A right is “offense neutral,” meaning all questioning must cease upon invocation. 6th A right is “offense specific,” meaning police can requestion D on different crime after delay and new warnings given. 5th A right to counsel must be invoked unambiguously in dealing with the custodial interrogation.

Question 33

Double Jeopardy, MBE 72

Answer 33

Double Jeopardy, MBE 72

Under Blockburger test, 2 crimes do not constitute the same offense if each crime requires proof of an additional element “that the other crime does not require.” A lesser-included offense would be considered the same offense as a greater offense & double jeopardy would attach. Exception: if all of the elements for the greater offense had not occurred “at time of prosecution for the lesser offense.” The other elements must occur after jeopardy has attached or the existing charge has to be amended. Otherwise double jeopardy will attach and the greater offense will be barred from prosecution. Jeopardy attaches either at the empaneling of a jury in a jury trial or the swearing in of 1st W in a bench trial.

Question 34

Co-Ds, Confessions & 6th A, MBE 73

Answer 34

Co-Ds, Confessions & 6th A, MBE 73

If 2 Ds are tried together and one has given a confession that implicates the other, the right of confrontation under the 6th A generally prohibits the use of that statement because the other D cannot compel the confessing co-D to take the stand for cross–examination. The co-D’s confession is inadmissible “even when it interlocks with the D’s own confession, which is admitted.” Confessions of a co-D may be admitted only if (i) all portions referring to the other D can be eliminated, (ii) the confessing D takes the stand and subjects himself to cross-examination regarding the truth or falsity of the statement, or (iii) the confession of the nontestifying co-D is being used to rebut the D’s claim that his confession was obtained coercively, and the jury is instructed as to that purpose.

Question 35

Reasonable Expectation of Privacy–Ownership, MBE2 3

Answer 35

Reasonable Expectation of Privacy–Ownership, MBE2 3

If a car is illegally searched by police, ensure D has an ownership interest in the vehicle. If not, D has no legitimate expectation of privacy and cannot object to the search.

Question 36

Conspiracy—Unindicted Co-conspirators, MBE2 5

Answer 36

Conspiracy—Unindicted Co-conspirators, MBE2 5

One who enters into a conspiracy with one or more people can be convicted even though the others are not charged with the conspiracy. If only one conspirator is prosecuted, however, the prosecution must show that, in fact, others were involved with the D on trial.

Question 37

Plain Smell?, MBE2 10

Answer 37

Plain Smell?, MBE2 10

A disagreeable odor does not constitute an emergency such as to permit a warrantless search.

Question 38

Embezzlement, Willingness to Replace Property, MBE2 15

Answer 38

Embezzlement, Willingness to Replace Property, MBE2 15

D’s offer and V’s receipt of money as a replacement for an embezzled item does not negate D’s culpability in the embezzlement. Having legal possession, if D fraudulently converted the property of another, he is guilty of embezzlement.

Question 39

Conspiracy & Crimes “In Furtherance” & Foreseeable, MBE2 16

Answer 39

Conspiracy & Crimes “In Furtherance” & Foreseeable, MBE2 16

If a co-conspirator uses weapons kept “for the purpose of the conspired objective,” the other conspirator will also be guilty for the use of those weapons.

Question 40

Misdemeanor Manslaughter, Malum in Se & Malum Prohibitum, MBE2 17

Answer 40

Misdemeanor Manslaughter, Malum in Se & Malum Prohibitum, MBE2 17

A killing in the course of a misdemeanor is manslaughter, but most courts would require either that the misdemeanor be malum in se or, if merely malum prohibitum, that the death be foreseeable or natural consequence of the unlawful conduct. The drivers’ license statute is malum prohibitum, and the death of a child who runs into the street is not a foreseeable or natural consequence of a lapsed license.

Question 41

Common Law Murder and Russian Roulette, MBE2 24

Answer 41

Common Law Murder and Russian Roulette, MBE2 24

The playing of Russian Roulette qualifies as common law murder if a participant dies as a result.

Question 42

Miranda and Known Government Conduct, MBE 36

Answer 42

Miranda and Known Government Conduct, MBE 36

Miranda does not apply unless interrogation is by someone known to be a police officer since Miranda is merely a prophylactic rule designed to offset the coercive nature of a custodial interrogation by the police.

Question 43

Felony Murder and Attempt, MBE 35

Answer 43

Felony Murder and Attempt, MBE 35

A killing committed while attempting to flee an attempted felony satisfies the felony murder rule.

Question 44

2nd Degree Murder & Malice Aforethought, MBE2 37

Answer 44

2nd Degree Murder & Malice Aforethought, MBE2 37

Malice aforethought is a concept associated with common law murder and not with modern statues classifying murder by degree.

Question 45

Mistake of Fact vs. Actual Facts, MBE2 40

Answer 45

Mistake of Fact vs. Actual Facts, MBE2 40

When one makes a mistake of fact, it is helpful to view the conduct based not on the actual facts, but under the facts which one believed to have existed.

Question 46

Malice Definition, Deadly Weapon Rule & Murder, MBE2 41

Answer 46

Malice Definition, Deadly Weapon Rule & Murder, MBE2 41

Malice exists where there is intent to inflict great bodily injury or where there is an awareness of an unjustifiably high risk to human life or where D acts with a reckless disregard of an obvious risk.

Under the deadly weapon rule, intentional use of a deadly weapon authorizes a permissive inference of intent to kill.

Question 47

Arson, MBE2 47

Answer 47

Arson, MBE2 47

Arson is the malicious burning of a dwelling house of another. The burning requirement is satisfied when there is charring, i.e., some damage to the fiber of the wood or other combustible material that is part of the structure.