Crim Law and Pro Flashcards

Question

A defendant who was indigent was charged with a crime. At a hearing, the defendant told the judge that he wanted to plead not guilty and that he wished to represent himself. The defendant told the judge that paying for an attorney would be difficult, and that he still wished to defend himself. The judge believed that the defendant was competent to defend himself, but nevertheless appointed an attorney with criminal defense experience to defend him. The defendant fully cooperated with the attorney, who did a highly competent job, but the evidence heavily favored the state. The defendant was convicted. Two weeks later, the defendant received a bill for $500 for legal services. Result of appeal?

Answer 1

The appellate court would likely reverse both the conviction and the imposition of fees. Although a waiver of the right to counsel will be carefully scrutinized to ensure that the defendant has a rational and factual understanding of the proceeding against him, **a defendant has a right to waive counsel and represent himself as long as the waiver is knowing and voluntary and he is competent to proceed pro se.** Where the state provides counsel in cases of indigence, it may then seek reimbursement from a convicted defendant who subsequently becomes able to pay. Here, the judge thought that the defendant was competent to represent himself. Therefore, his waiver of counsel should have been honored. **_Violation of the defendant’s right to represent himself will result in a reversal of his conviction._** Although, as stated above, the state may recoup costs of appointed counsel from indigents who become able to pay, the state cannot recover from the defendant because the attorney was appointed against the defendant’s will and in violation of his right to represent himself. Had effect been given to the defendant’s right to represent himself, there would have been no attorneys’ fees to be assessed against him.

Answer 2

**if there was ineffective assistance of counsel.** Ineffective assistance of counsel undercuts the assumption of an intelligent choice among the defendant’s alternatives on the advice of counsel. \*\*\* Any admissions made during plea negotiations are inadmissible at trial. **The fact that the defendant was not Mirandized before such statements would not be a basis for overturning the plea agreement.**

Answer 3

... the unlawful carnal knowledge of a woman by a man not her husband, **without her effective consent**

Answer 4

(C) Introduction of the proffered evidence would in effect penalize the man for exercising his right to be free from compulsory self-incrimination. Miranda warnings are given to safeguard the Fifth Amendment right to be free from compelled self-incrimination. Prior to interrogation, a person in custody must be clearly informed that he has the right to remain silent and anything he says can be used against him in court. These warnings implicitly assure that silence will carry no penalty. Thus, a prosecutor may not comment on a defendant’s silence after the defendant is arrested and has received the Miranda warnings. To allow the prosecutor to introduce evidence of the man’s silence in the face of the woman’s accusation would run counter to the very purpose of the Miranda warnings, which is to allow the defendant to remain silent without fear of being prejudiced by such silence. The man was no more required to respond to the woman’s accusation than he would have been to an accusation or question coming from the police. The man’s privilege against compelled self-incrimination would be meaningless if he were required to either respond to the woman or have his failure to respond introduced against him. (B) is wrong because it turns the Miranda warnings on their head. The warnings are to apprise the suspect that he has a right to remain silent, and that if he chooses to say something, this statement can be used against him. The warnings do not, as (B) suggests, apprise the suspect that he must respond to questions or accusations, and that a failure to respond can be used against him. As has been explained above, the crux of the Miranda warnings is the right to remain silent, and to be free of coercion to speak at all.

Answer 5

does not BUT **Acquittal** of all persons with whom a person is alleged to have conspired precludes conviction of the remaining defendant. Also, note that a state’s decision to discontinue prosecution would not be deemed to be an acquittal, and thus most likely a state’s inability to prosecute because of a co-conspirator’s death would not be an acquittal.

Answer 6

(i) an agreement between two or more persons; (ii) the intent to enter into an agreement; and (iii) the intent to achieve the objective of the agreement. **The two intent elements indicate that conspiracy is a specific intent crime. (LACK OF INTENT = NO CRIME).** **Same with attempt or solicitation.** i.e. Because the man planned to contact the police before his cousin could commit the crime, he never intended to achieve the criminal objective of robbing the bank.

Answer 7

Students Can Always Fake A Laugh Even For Ridiculous Bar Facts S- Solicitation C- Conspiracy A- Attempt F- False Pretenses A- Assault L- Larceny E- Embezzlement F- Forgery R- Robbery B- Burglary F- First Degree Premeditated Murder

Answer 8

Patty Achieved A Glorious Victory Over Her Opponents P- Paint Scrapings on the Outside of your car A- Account records held by a bank A- Air space: anything that can be seen below while driving in public airspace G- Garbage left on the curb V- Voice (the sound of your voice) O- Odors ( most importantly from your luggage or car) H- Handwriting (style) O- Open Fields: anything that can be seen in or across open fields \*\* All have knowing to third party exposure

Answer 9

BARRK: BURGLARY, ARSON, ROBBERY, RAPE OR KIDNAPPING

Answer 10

ESCAPIST E- Exigent Circumstances S- Search Incident to Arrest C- Consent A- Automobile P- Plain View I- Inventory S- Special Needs T- Terry “Stop and Frisk”

Answer 11

(D) The hunter and his nephew will be convicted because they agreed to hunt grizzly bears on a date that was out of hunting season. Conspiracy requires (i) an agreement between two or more persons; (ii) an intent to enter into an agreement; and (iii) an intent to achieve the unlawful objective of the agreement. Here, the hunter and his nephew, with the intent to do so, agreed to hunt grizzly bears on a particular date when hunting was illegal. **While they did not know that hunting was illegal on that date, their ignorance of the state law on that point does not negate their intent to commit the act and is not a defense.** *_The majority rule is that the parties to a conspiracy need not have been aware that their plan was an illegal one._*While a few courts hold that the conspirators must have known that their objective was criminal unless the crime was malum in se (“corrupt motive” doctrine), most courts reject this exception. Hence, the hunter and his nephew can be convicted of conspiracy. (C) is incorrect because when a defendant is charged with conspiracy, even conspiracy to commit a strict liability offense, an intent to achieve the objective of the agreement must be shown.

Answer 12

It applies to cases where the defendant’s mistaken belief about the facts (i.e., factual impossibility) or about the legal relationships or circumstances prevents him from completing the crime that he intended to commit. i.e. The defendant’s mistake about the legal status of the goods he fenced does not constitute a defense to attempt. The legal status of the goods, unlike the existence or nonexistence of a law proscribing the conduct, is one of the attendant circumstances; this is treated like factual impossibility by most courts. By accepting the goods he believes to be stolen, the defendant has purposely engaged in conduct that would constitute receipt of stolen goods if the circumstances were as he believed them to be; hence, he is liable for attempted receipt of stolen goods.

Answer 13

(C) The wife could be convicted of assault and either attempted murder or attempted manslaughter. To be liable for either attempted murder or attempted manslaughter, the defendant must have acted with the intent to kill and have committed an act beyond mere preparation for the offense. The fact that it is not possible to complete the intended offense (factual impossibility) is not a defense to liability for attempt. Here, the wife clearly intended to kill the secretary and did everything in her power to carry out the killing. The fact that the gun was not loaded is no defense. (B) and (D) are wrong because the wife could also be convicted of assault. Assault is either: (i) an attempt to commit a battery; or (ii) the intentional creation (other than by mere words) of a reasonable apprehension in the mind of the victim of imminent bodily harm. Here, the wife has committed both types of assault: She attempted to commit a battery against the secretary and intentionally placed her in fear of imminent bodily harm. **Although she could not be convicted of the first type of assault if she were also convicted of attempted murder or attempted manslaughter (because that type of assault is a lesser-included offense that merges into the greater offense), she could be convicted of the second type of assault (it does not merge because it contains elements not encompassed by attempted murder or attempted manslaughter).** ``` (A) is wrong because the wife could be convicted of attempted murder instead of attempted manslaughter if she cannot establish adequate provocation. An intentional killing can be reduced from murder to voluntary manslaughter if (i) there exists a provocation that would arouse sudden and intense passion in the mind of an ordinary person so as to cause her to lose self-control; (ii) the defendant in fact was provoked; (iii) there was insufficient time for the passions of a reasonable person to cool; and (iv) the defendant in fact did not cool off between the provocation and the killing. Many common law courts recognized the existence of provocation in only two instances: exposure to a threat of deadly force and discovery of one’s spouse in bed with another person. Furthermore, some provocations, such as “mere words,” were defined as inadequate provocation as a matter of law. Modern courts tend to be more reluctant to take such cases from juries and are more likely to submit to the jury the question of whether “mere words” or similar matters constitute adequate provocation. These principles apply in this case even though the wife’s liability is only for attempted murder or manslaughter rather than the completed offense. Here, the wife’s discovery of the emails and photographs might be sufficient to make it a jury question as to whether adequate provocation existed. However, the jury might still conclude that the provocation was not sufficient and find the wife liable for attempted murder rather than attempted manslaughter. ```

Answer 14

It is no defense to a charge of criminal attempt that it would have been impossible for the defendant to do all of those things that he intended to do, had the attendant circumstances been as the defendant believed them to be. This is known as factual impossibility. i.e. A student approached a reputed drug dealer at a pool hall to purchase marijuana, although he knew that it was a crime to possess or smoke marijuana. The student bought a “marijuana cigarette,” which was in fact only an ordinary tobacco cigarette, from the drug dealer. Had the attendant circumstances been as he believed them to be, i.e., that the cigarette contained marijuana, he would be guilty of the substantive offense. Thus, impossibility is not a defense in this case.

Answer 15

(C) The best theory for charging the friend is that his own recklessness caused the bodily injury to the person of another. It may be that the friend is not guilty of any crime, given that his actions, and the actions of the student, may not have risen to the level of recklessness. Nonetheless, if he is charged, it will be for his own conduct in bringing about the battery, as explained below. (A) is incorrect. An accomplice is one who (i) with the intent to assist the principal and the intent that the principal commit the crime (ii) actually aids, counsels, or encourages the principal before or during the commission of the crime. When the substantive offense has recklessness as its mens rea, most jurisdictions hold that the intent element is satisfied if (i) the accomplice intended to facilitate the commission of the crime, and (ii) acted with recklessness. The accomplice is responsible for the crimes he did or counseled and for any other crimes committed in the course of committing the crime contemplated, as long as the other crimes are probable or foreseeable. Here, it is clear that the friend is an accomplice of the student for the “crime” of playing a prank on the teacher. However, the friend lacked the intent to facilitate the commission of the crime of battery on the teacher, and thus he probably would not be liable as an accomplice for the crime of battery. Even if playing the prank would be a crime in the jurisdiction, to be liable as accomplice to the subsequent battery, it would have to be shown that it was probable or foreseeable that the teacher would be battered as a result. It is doubtful whether such probability or foreseeability exists under these facts.

Answer 16

(A) The defendant may also be found guilty of conspiracy if he is found guilty of burglary. **One who solicits another to commit a crime cannot be convicted of both the solicitation and the completed crime.** **Likewise, one who completes a crime after attempting it may not be convicted of both the attempt and the completed crime.** **However, if conspirators are successful, they can be convicted of both criminal conspiracy and the crime they committed pursuant to the conspiracy (i.e., conspiracy does not merge with the completed offense).** Thus, if the defendant is found guilty of burglary, he cannot also be convicted of either attempt or solicitation. The defendant can be convicted of conspiracy in addition to burglary (with conspiracy liability being based on the apparent agreement between the defendant and the other person to bring about the burglary of the home).

Answer 17

(D) The store owner will not be convicted of an attempt to violate the statute if her employee did not have the requisite intent. **Although the statute has been interpreted to create a strict liability crime, which does not require proof of criminal intent, an attempt of a strict liability crime requires proof that the defendant acted with the intent to bring about the proscribed result.** Therefore, for the store owner to be charged vicariously with attempt, her employee must have acted with the requisite intent; he must have intended to sell the ammunition to a minor. If he did not so intend, the store owner will not be convicted of attempt. (A) is incorrect because this is a case of factual impossibility, which is not a defense to attempt. (B) is incorrect because careful instructions will not, in and of themselves, absolve an employer from vicarious liability. (C) is incorrect because the strict liability elements of the underlying offense make it clear that knowledge of the age of the purchaser is not an element of the underlying offense. Thus, the clerk (and the store owner) can be liable for selling ammunition to a minor no matter how old the purchaser looked or how old he claimed to be. The boy’s lie may have bearing on the clerk’s lack of intent, but this is not as direct an answer as (D).

Answer 18

... the defendant intends to use the property in such a manner as to create a substantial risk of loss

Answer 19

(A) Larceny is the taking and asportation of the personal property of another by trespass and with the intent to permanently deprive the person of his interest in the property. Here, the moving of the mower to the loading dock constituted the taking and carrying away. Because the employee did not have express or implied permission to move merchandise in this way, it was trespassory. Clearly, he intended to permanently deprive the store of its interest in the mower. Thus, the larceny was complete when the employee moved the mower to the loading dock, and (B) and (D) are therefore incorrect. (C) is incorrect because to be guilty of embezzlement, the employee would have had to have been in possession of the mower when he converted it. Because the employee did not have especially broad power over the mower and it was not given to him by a third party, he merely had custody, not possession, of the mower.

Answer 20

Any mistake of fact, reasonable or unreasonable, that negates specific intent would be a defense.

Answer 21

...malice, which is broader than the intent required for specific intent crimes. All that malice requires is that the defendant have acted with the intent or knowledge that the structure would burn, or with reckless disregard of an obvious risk that the structure would burn. \*\*\* The “burning” required for arson does not require significant damage to the building; a charring of the combustible material is sufficient.

Answer 22

(B) The artist is guilty of false pretenses. **The offense of false pretenses consists of obtaining title to the property of another by an _intentional false statement of past or existing fact, with the intent to defraud the other._** Here, with intent to defraud the art collector, the artist knowingly and falsely represented to her that the painting in question was by a recently deceased artist. The art collector, deceived by this misrepresentation and relying thereon, paid money for the painting. Thus, the artist has committed the offense of false pretenses. ***_(A) is incorrect because a writing that derives its value from the mere fact of its existence (historical or artistic value) cannot be the subject of forgery._*** (C) is incorrect because larceny by trick involves **_obtaining possession, not title,_** by means of a false representation.

Answer 23

(C) The roommate committed larceny by trick because the banker’s consent to the roommate’s taking the money was induced by the misrepresentation that the roommate would take the money to the student/beneficiary. Larceny consists of a taking and carrying away of tangible personal property of another by trespass, with intent to permanently (or for an unreasonable time) deprive the person of his interest in the property. If the person in possession of property has not consented to the taking of it by the defendant, the taking is trespassory. _However, if the victim consents to the defendant’s taking possession of the property, but such consent has been induced by a misrepresentation, the consent is not valid._ Under such circumstances, the larceny is called larceny by trick. Here, the roommate obtained the money from the banker on the promise that he would take it to the student/beneficiary. This misrepresentation _induced the banker to give possession of the money to the roommate._ The roommate then proceeded to take the money and carry it away, intending all the while to permanently deprive one who had a possessory interest superior to the roommate’s of his interest in the money. Thus, all the elements of larceny are present. Because the original wrongful taking resulted from consent induced by misrepresentation, the specific larceny committed by the roommate is more precisely characterized as larceny by trick. Consequently, although the roommate has in fact committed larceny, (C) is a better answer than (D). _Regarding (A), false pretenses consists of obtaining title to the property of another by an intentional (or knowing) false statement of past or existing fact, with intent to defraud the other. If a victim intends to convey only possession of the property to the defendant, the offense is larceny by trick. However, if the victim intends to convey title, the offense is false pretenses._***Here, the banker intended to convey possession of the money to the roommate so that he could give the money to the student/beneficiary.***The banker did not intend to convey title to the roommate. Because the roommate did not obtain title by means of his misrepresentation but simply obtained possession, the offense of false pretenses was not committed. (B) is incorrect because embezzlement is the fraudulent conversion of property of another by a person in lawful possession of that property. In embezzlement, the misappropriation of the property occurs while the defendant has lawful possession of it. In larceny, the misappropriation occurs generally at the time the defendant obtains wrongful possession of the property. The roommate did not have lawful possession of the money because his possession of the money resulted from his misrepresentation to the banker. Thus, the roommate’s taking of the money was wrongful from the outset. Because the roommate had wrongful, rather than lawful, possession of the money, there was no embezzlement.

Answer 24

(C) The defendant is guilty of larceny because, while having mere custody of the television set, he carried it away from the hotel intending to permanently deprive the hotel owner of his interest in the set. Larceny consists of the taking and carrying away of tangible personal property of another by trespass, with intent to permanently (or for an unreasonable time) deprive the person of his interest in the property. Property must be taken from someone who has a possessory interest superior to that of the defendant. If the defendant has custody of the property, rather than possession, his misappropriation of the property is larceny. Possession involves a much greater scope of authority to deal with the property than does custody. Here, the defendant only had the authority to use the television set for viewing purposes while he was staying at the hotel. Thus, the defendant had only enough authority to deal with the set as to indicate that he had custody of it rather than possession. Consequently, the hotel owner had a possessory interest in the set superior to that of the defendant. The defendant took the set by trespass (without the consent of the owner) and carried it away with the intent to permanently deprive the owner of his interest in the set. Thus, the defendant is guilty of larceny. (D) is incorrect because larceny by trick occurs when the victim consents to the defendant’s taking possession of the property but such consent has been induced by a misrepresentation. Here, the hotel owner never consented to give the defendant possession of the television set, through misrepresentation or otherwise. Instead, the defendant simply took the set without the consent of the owner. Therefore, this is not larceny by trick.

Answer 25

(B) The defendant can be convicted of false pretenses and attempted robbery. False pretenses consists of obtaining title to the property of another by an intentional or knowing false statement of past or existing fact with intent to defraud another. With regard to the false representation, all that is required is that the defendant create a false impression as to a matter of fact, which is what happened here. In this case, the defendant obtained title to the gasoline by creating a false impression that he owned the sunglasses that he was offering in exchange, and he had the requisite intent to be convicted of false pretenses. He can also be convicted of attempted robbery because he attempted a taking of the property of another in the presence of the victim by force and with the intent to permanently deprive the victim of it. The fact that he was persuaded not to carry out the robbery does not affect his liability for attempt; that crime was completed as soon as he pulled out a knife and demanded the gas. (A) is incorrect because larceny by trick occurs when possession of the property is obtained by the defendant’s misrepresentations, whereas false pretenses is the appropriate offense when the misrepresentations have prompted the victim to convey title to the property to the defendant. Here, the clerk intended to convey title to the gas to the defendant in exchange for the sunglasses.

Answer 26

(D) The defendant is not guilty of larceny because he lacked the intent to deprive the owner permanently of his car at the time of the taking. Larceny consists of: (i) a taking (ii) and carrying away (iii) of tangible personal property (iv) of another (v) by trespass (vi) with intent to permanently (or for an unreasonable time) deprive the person of his interest in the property. **_The intent to deprive must exist at the time the property is taken._** Here, the defendant is not guilty of larceny because, at the time of the taking, he intended to return the car within a reasonable time and had a substantial ability to do so.

Answer 27

(i) a taking (ii) of personal property of another (iii) from the other’s person or presence (iv) by force or intimidation, (v) with the intent to permanently deprive the other of the property. The “presence” element is satisfied if the victim is in the vicinity when the property is taken. i.e. The thief used the threat of force against the victim to obtain the property, and obtained it while the victim was locked in the bathroom of the hotel room, and therefore in the vicinity.

Answer 28

(C) The cottage owner is guilty of burglary because the right of occupancy belonged to the tenant. _However, the fact that there was no burning of the structure means that the cottage owner is guilty of attempted arson rather than arson._ Burglary at common law is a breaking and entering of the dwelling of another at nighttime, with the intent of committing a felony therein. A breaking requires some use of force to gain entry, but minimal force is sufficient. In determining whether the dwelling is that of another, _occupancy rather than ownership is material._ Thus, an owner can commit burglary of her own structure if it is rented and used as a dwelling by someone else. Here, although the cottage owner owned the cottage, the tenant had the right to occupy it pursuant to a lease. Thus, for purposes of the crime of burglary, the cottage owner is deemed to have entered the dwelling of another. Although the cottage owner used her own key to gain access to the cottage, this was still an unconsented use of force to effectuate entry, thereby constituting a breaking. This breaking and entering of the tenant’s dwelling occurred in the evening. At the time of the entry, the cottage owner intended to commit the felony of arson. Consequently, all the elements of burglary are in place, making her guilty of this crime. **Arson consists of the malicious burning of the dwelling of another.** **There is a requirement of some damage to the fiber of the wood or other combustible material.**A_s with burglary, ownership of the structure is not material for determining whether the dwelling is that of another; rather, the right to occupancy is material._ The cottage owner left a lighted cigarette on the mattress, intending to burn down the entire cottage. However, the tenant extinguished the fire before any damage was done to the structure of the cottage, _even mere charring_. _Absent such damage, arson cannot have been committed._ The cottage owner did commit attempted arson. **A criminal attempt is an act which, although done with the intention of committing a crime, falls short of completing the crime.** _The defendant must intend to perform an act and obtain a result that, if achieved, would constitute a crime. Also, the defendant must have committed an act beyond mere preparation for the offense._ The cottage owner intended to perform an act that would have culminated in the crime of arson. By soaking the mattress with gasoline and leaving a lighted cigarette on it, the cottage owner committed an act that came dangerously close to successfully burning the cottage. This act, in combination with the intent to commit arson, means that the cottage owner is guilty of attempted arson. (A) is incorrect because there can be no arson as to the mattress. Arson requires a burning of a dwelling. Because the cottage was not burned, the cottage owner is not guilty of arson.

Answer 29

Some jurisdictions recognize withdrawal as a _defense to a conspiracy charge_, but even those jurisdictions require that the co-conspirator somehow act to thwart the conspiracy. _Withdrawal, however, does act as a defense to the subsequent crimes committed by the co-conspirators in furtherance of the conspiracy._

Answer 30

(B) The homeowner may be convicted of attempted arson and conspiracy to commit arson. The homeowner is liable for attempted arson under the principles of accomplice liability **_because he solicited_** the arsonist to commit arson with the intent that his house be burned. **_If the person solicited proceeds far enough to be liable for attempt, the solicitor will be a party to that attempt._** Here, the arsonist has proceeded far enough to constitute an attempt—the pouring of the gasoline is an overt act that has proceeded beyond mere planning. Therefore, the homeowner can be found criminally liable for attempted arson based on an accomplice theory. The homeowner also can be convicted of conspiracy, which is an agreement between two or more persons to commit an unlawful act, because he agreed with the arsonist to commit the crime of arson. Further, the arsonist’s conduct satisfies the overt act requirement for conspiracy. _**Note that under the majority rule, conspirators may be convicted of both the criminal conspiracy and the substantive offense; i.e., there is no merger.**_ (A) and (C) are incorrect because, unlike conspiracy, solicitation merges into the completed crime. ***_(An attempt will be considered a completed crime for purposes of merger.)_*** Thus, the homeowner cannot be convicted of both solicitation and attempted arson, as those choices state. (D) is incorrect because, as discussed above, conspiracy does not merge into the completed crime. Additionally, the fact that the charge of conspiracy was dropped against the arsonist does not preclude the homeowner’s conviction for conspiracy. _Although an acquittal of the other party to a conspiracy, as a general rule, precludes the conviction of the remaining party, this rule does not apply if the other party is charged with a lesser offense or is no longer being prosecuted._

Answer 31

(i) a specific intent to commit the target crime, and (ii) an overt act in furtherance of the crime. \*\*\* For conspiracy, although an overt act was not required at common law, the majority rule today is that an overt act committed in furtherance of the conspiracy is required, but “mere preparation” usually suffices as an overt act.

Answer 32

...attempt crimes

Answer 33

(D) The defendant may not be convicted of attempted murder of the victim or bystander because he lacked the necessary intent. A criminal attempt consists of: (i) conduct that brings the defendant in close proximity to the completed offense; and (ii) the intent to commit the completed crime. In other words, the defendant must have the intent to perform an act and obtain a result that would constitute the crime charged if achieved. Regardless of the intent required for the completed offense, an attempt always required specific intent. Thus, _**attempted murder required the specific intent to kill another person**_, even though the mens rea for murder itself does not require specific intent—had the bystander died, the defendant could have been convicted of murder, given that malice could have been established by the defendant being aware of an unjustifiably high risk to human life (i.e., an “abandoned and malignant” heart) by pointing a loaded gun and shooting at an individual. However, the defendant did not have the intent to kill either victim, so he lacked the intent necessary for attempt.

Answer 34

(A) The defendant should be found not guilty as an accomplice. Under modern statutes, parties to a crime are divided into three different categories. **Principals** are those who, with the requisite mental state, actually engage in the act or omission that causes the criminal result. **An accomplice** is one who, with the intent that the crime be committed, aids, counsels, or encourages the principal _before or during_ the commission of the offense. Under modern statutes, accomplices are generally treated as principals. **An accessory after the fact** is one who receives, relieves, comforts, or assists another knowing that he has committed a felony, in order to help the felon escape arrest, trial, or conviction. ***_Unlike an accomplice, an accessory after the fact has committed a separate crime with a punishment unrelated to the felony committed._*** In the instant case, it is clear that the defendant aided his friend in avoiding capture, that he provided no aid to the substantive offense, and that he did not intend the substantive offense to occur. _Thus, he is an accessory after the fact and not an accomplice, making (A) the correct answer._ (C) is incorrect. The defendant did not aid his friend in the commission of the crime; his help came afterward. Thus, the aid provided makes him an accessory after the fact, as explained above, and not an accomplice.

Answer 35

(i) he is without fault; (ii) he is confronted with unlawful force; and (iii) he reasonably believes that he is threatened with imminent death or great bodily harm if he does not respond with deadly force.

Answer 36

(A) The judge should give both manslaughter instructions and allow the jury to consider both theories of manslaughter in determining whether the intentional killing should be reduced to voluntary manslaughter. In a “heat of passion” killing, provocation will reduce a killing to voluntary manslaughter if four requirements are met: (i) the provocation was a type that would arouse sudden and intense passion that would cause a reasonable person to lose self-control, **(ii) the defendant in fact was provoked,** (iii) there was not sufficient time between the provocation and the killing for the passion of a reasonable person to cool, and **(iv) the defendant in fact did not cool off between the provocation and the killing.** Although some provocations were defined as inadequate as a matter of law at common law, _modern courts are more likely to submit to the jury the question of what constituted adequate provocation._ _Similarly, whether there has been a sufficient time for a reasonable person to cool off is a factual question that depends on the nature of the provocation and the attendant circumstances._ Here, the freshman’s belief that he was being shoved again by the senior and set up for a more severe beating may have rekindled his rage at the earlier punch and taunting by the senior. The jury should be allowed to consider all of the circumstances, including the earlier altercation, to decide whether there was a sufficient provocation or a sufficient time for a reasonable person to cool off. Hence, the judge should agree to give the “heat of passion” manslaughter instruction. Some states recognize, as this state apparently does, an “imperfect self-defense” doctrine under which a murder may be reduced to manslaughter even though the defendant unreasonably but honestly believed in the necessity of responding with deadly force. Such a defense appears to also have been raised by the facts.

Answer 37

_(C) Because the defendant was charged with first degree murder, the theory of the case is most likely felony murder, and (C) is the only choice that sets out a theory to avoid a felony murder conviction._ *If the defendant was so intoxicated that he could not form the intent to steal, then he is not guilty of robbery, and there would be no “felony” from which the felony murder rule is to arise.* (A) and (B) are incorrect because even though the defendant could argue that no premeditation or deliberation was present, he would still be guilty of first degree murder under the felony murder rule because the felony was robbery. (D) is wrong because insulting someone is not adequate provocation that would mitigate a homicide to voluntary manslaughter; neither would this “threat” suffice, in all likelihood. At most, the circumstances might produce the sort of unreasonable anger that would negate premeditation and deliberation. However, because the defendant clearly caused the homicide while committing the felony of robbery, his crime remains first degree murder.

Answer 38

(B) The state defines murder in the second degree just like common law murder. At common law, murder required malice; i.e., (i) the intent to kill, (ii) the intent to inflict great bodily injury, (iii) reckless indifference to an unjustifiably high risk to human life, or (iv) the intent to commit a felony. Here, the reckless indifference element arguably could be satisfied. By smashing a heavy ashtray over the other patron’s head, the defendant unjustifiably disregarded that the blow could be a killing blow. _Neither would intoxication be a defense, as there would be no specific intent-to-kill requirement under this type of analysis._ (D) is incorrect. **Involuntary manslaughter is a killing committed with criminal negligence *_or_* during the perpetration of some unlawful act not encompassing a felony for felony murder.** Certainly, striking another with a heavy object would constitute criminal negligence sufficient for conviction. However, involuntary manslaughter is a lesser crime than murder in the second degree, and the call of the question asks for the most serious crime of which the defendant could be convicted, making (B) a better choice than (D). (C) is also incorrect. Voluntary manslaughter is a killing committed under the duress of an adequate provocation, and it requires (i) a provocation sufficient to arouse the sudden and intense passion in the mind of an ordinary person such as to cause him to lose selfcontrol; (ii) the defendant to be in fact provoked; (iii) an insufficient time to cool off; and (iv) the defendant did not in fact cool off. It is unlikely that having a drink spilled on him would cause an ordinary person to commit murder. As a result, such a provocation is not adequate to reduce the killing to voluntary manslaughter.

Answer 39

... the killing of a felon by a police officer or resisting victim cannot be the basis for felony murder.

Answer 40

(D) Because the girlfriend’s Fourth Amendment rights were not violated by the unlawful search of the boyfriend, **the drugs may be introduced against the girlfriend at trial.** Under Rakas (1978), Fourth Amendment rights may be enforced by the exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure. _Ownership of the property seized does not automatically establish violation of one’s reasonable expectation of privacy;_ it is just one factor in the totality of the circumstances that the court will consider. Here, the drugs were seized from the boyfriend as a result of a search that may have violated his Fourth Amendment rights. However, nothing in the question indicates that the girlfriend had a reasonable expectation of privacy in the boyfriend’s body (such as the right to exclude others from searching the boyfriend if the boyfriend had consented). Under the circumstances in this case, the girlfriend’s ownership of the drugs does not establish a reasonable expectation of privacy with regard to the search of the boyfriend. (B) is incorrect even though it is a true statement. The officer’s search of the girlfriend may have violated the girlfriend’s reasonable expectation of privacy, but no evidence was obtained by an illegal search of the girlfriend. The officer’s search of the boyfriend may have violated the boyfriend’s reasonable expectation of privacy but not the girlfriend’s expectation of privacy (as discussed above). Because the girlfriend’s Fourth Amendment rights were not violated by the search of the boyfriend, she cannot use the exclusionary rule to suppress introduction of the drugs. (C) is incorrect because the defendant has the right to testify and stipulate to facts at a suppression hearing without her testimony or stipulation being admitted against her at trial on the issue of guilt. This rule allows a defendant to assert a possessory or ownership interest in illegally seized evidence just for purposes of invoking the exclusionary rule; if she fails to have the evidence excluded, she may still deny possession or ownership at trial.

Answer 41

(A) The court should grant the motion to suppress because a search warrant was required. **_Absent exigent circumstances_, the police executing an arrest warrant may not search for the subject of the warrant in the home of a third party *without first obtaining a separate search warrant for the home.*** If the police do execute an arrest warrant at the home of a third party without obtaining a search warrant for the home, **_the arrest is still valid_** *but evidence of any crime found in the home cannot be used against the owner of the home because it is the fruit of an unconstitutional search.* Thus, (A) is correct and (D) is incorrect. (B) is incorrect because it is too broad. **A person can be arrested at the home of a third party, but the police generally cannot enter the third party’s home without consent** *unless they have a search warrant for the home.* (C) is incorrect because, as discussed above, a search warrant is required absent exigent circumstances, which are not present in this case. _Here, the probable cause established by the informant’s disclosure would have enabled the police to obtain a search warrant._

Answer 42

(B) The judge should deny the motion. Evidence will be suppressed if it was obtained in violation of the defendant’s constitutional rights. _Each passenger_ in a car has standing to challenge a stop of the car. If a stop is invalid, under the fruit of the poisonous tree doctrine, evidence obtained as a result of the invalid stop will be suppressed. Here, the officer had a valid reason to stop the car. An officer may stop a car for violating a traffic law, and here the driver of the car failed to stop at a stop sign. (A) is incorrect because it is irrelevant. A person may seek suppression of evidence that has been seized only if the seizure is in violation of the _person’s own constitutional rights._ While it is true that the gun was properly seized from the driver because the arrest appears to have been valid, _the gun would be admissible against the passenger even if it had been unlawfully seized from the driver._ The driver, of course, would have standing to complain of the unlawful seizure, but not the passenger.

Answer 43

(D) The court should deny the defendant’s motion because the officer reasonably believed that the defendant’s girlfriend lived in the trailer, making the search valid. Under the exclusionary rule, evidence obtained from an unconstitutional search must be excluded from trial. To be valid, searches must be reasonable. The Supreme Court has held that most searches are **_un_**reasonable _unless the police obtain a warrant before searching_. However, there are six categories of searches that the Court has held to be _reasonable without a warrant_. One such category is searches conducted pursuant to **_consent_**. To fall within this exception to the warrant requirement, consent must be given by **_one who appears to have an apparent right to use or occupy the premises and the search cannot go beyond the scope of the consent given._** The consent is valid as long as the police **_reasonably believed_** that the person who gave the consent had the authority to do so, and the ***_scope of the consent is limited only to areas to which a reasonable person under the circumstances would believe it extends._*** Here, the girlfriend’s consent was valid because the officer believed that she lived there. His belief appears to be reasonable because she answered the door, knew of the defendant’s whereabouts, and readily consented to the search. Therefore, the search was valid under the consent exception and the evidence should not be excluded. (B) is incorrect because the scope of consent extends to any area where a reasonable person under the circumstances would assume it extends. _Because the officer told the girlfriend that he suspected the defendant of dealing drugs,_ it was reasonable to assume that he was looking for drugs and so would probably look in even small containers. (C) is incorrect because it appears that the defendant’s trailer would not fall within the automobile exception. Certain searches of automobiles are excluded from the requirement of a warrant because the Supreme Court has held that people have a lesser expectation of privacy in an automobile than in other areas and automobiles are likely to disappear before a warrant can be acquired. The automobile exception extends not only to cars, but also to other vehicles that are readily mobile and as to which there is a lesser expectation of privacy. _However, nothing in the facts here indicates that the defendant’s mobile home may readily be moved,_ and because it appears to be the defendant’s regular home rather than a vehicle, it is doubtful that the Court would find the requisite lesser expectation of privacy. Therefore, the trailer would not fall within the automobile exception to the warrant requirement.

Answer 44

voluntary intoxication and unreasonable mistake of fact

Answer 45

(A) The defendant cannot be found guilty of violating the statute because he did not know that his act would cause the damage to the acquaintance’s workstation that it did. Under the Model Penal Code fault standards adopted by modern criminal codes, a person acts “knowingly” with respect to the nature of his conduct when he is aware that his conduct is of that nature or that certain circumstances exist. He acts knowingly with respect to the result of his conduct when he knows that his conduct will necessarily or very likely cause such a result. When a statute establishes a culpable state of mind without indicating to which material elements of the offense it is to apply, the statute will be interpreted as requiring that state of mind for every material element of the offense. In this case, the statute requires that the defendant “knowingly cause more than $500 in damage to another’s property.” The requirement that the damage caused be over $500 is a material element of the offense because it defines the harmful result that will trigger criminal liability under the statute. Thus, the defendant must have known that his act of sending the computer program would necessarily or very likely cause over $500 in damage to the workstation to be liable under the statute in this case. (C) is incorrect because the fact that the defendant knew that he was sending a program is not enough to establish guilt. As discussed above, the statute also requires that he know that his conduct will or is very likely to cause over $500 in damage to the workstation.

Answer 46

(C) If the defendant is found not guilty, it will be because he acted reasonably in self-defense. Under principles of self-defense, a person who is **_without fault_** may use such force as he reasonably believes is necessary to protect himself from the imminent use of unlawful force upon himself. If the defendant is found not guilty, it will be because the jury determined that he was acting reasonably in self-defense. (A) is inaccurate. Common law battery can be established by showing that the defendant recklessly caused injury to the person of another. Therefore, this defendant could have been found guilty even if he did not intend to injure the other hockey player. (B) is wrong. Although there may be consent to the contact incident to the game, _hockey players do not consent to the type of action engaged in by the defendant._ (D) is wrong because it is too broad. Even though the other hockey player was the original aggressor, the defendant would be limited to the amount of force reasonably necessary to defend himself. He would be guilty of battery if the jury found that he acted unreasonably and with excessive force against the other player’s aggression.

Answer 47

(i) she is without fault; (ii) she is confronted with unlawful force; and (iii) she is threatened with imminent death or great bodily injury. The majority rule is that there is no duty to retreat.

Answer 48

(C) The son should be found not guilty. **Battery is an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching. Battery is not a specific intent crime;** criminal negligence meets the state of mind requirement for battery. Given that the son tackled and pinned the father, an offensive touching occurred. Furthermore, the state of mind requirement has been satisfied because the “criminal negligence” state of mind is satisfied by an intentional act—i.e., acting with a higher state of mind satisfies a lower state of mind requirement. **_However, the son can raise the defense of self-defense:_** A person is entitled to use such force as he reasonably believes is necessary to protect himself against the use of unlawful force on himself. Here, the son was fearful that the father would escalate the fight because the father had done so in the past. Thus, it appears that the son was justified in using nondeadly force to prevent a further battery upon his person. (A) is incorrect because it does not account for self-defense. (B) is incorrect because one has no duty to retreat before using nondeadly force. (D) is incorrect because it _implies that the intent to cause harm is an element of the crime of battery. As stated above, battery is a general intent crime requiring, at a minimum, criminal negligence._ Furthermore, actual physical harm is not required—an “offensive touching” suffices.

Answer 49

(A) If the jurisdiction uses the M’Naghten test, the teacher’s best argument is that he did not know that his act was wrong. _**The M’Naghten test provides for a defendant’s acquittal if he has a disease of the mind causing a defect of reason so that at the time of his actions he lacked the ability to know the wrongfulness of his actions *or* understand the nature and quality of his actions.**_ (A) states one branch of this test and is consistent with the facts (which state that the teacher did not understand that the killing was wrongful), and so it is the teacher’s best argument. (C) is wrong because it is contrary to the facts. Although (C) also states part of the M’Naghten test, the teacher’s illness has not left him so irrational that he is unable to comprehend that his act would result in the student’s death. _He seemed to have known that he was killing his student; he just did not know that killing was wrong._ (B) is wrong because although the teacher did lack the substantial capacity to appreciate the criminality of his act, this is not a criterion for insanity in a state that follows the M’Naghten test; rather, **_(B) states the Model Penal Code standard._** (D) is wrong because it states conduct outside the scope of the M’Naghten test. Also, the facts do not show that the teacher’s mental illness had deprived him of his volitional controls.

Answer 50

(A) The defendant should not be convicted of battery. Under the statute’s fault standards, a defendant must have acted purposely (i.e., with conscious intent to cause the result) or knowingly (i.e., with knowledge that his conduct will necessarily or very likely cause the result) as to the harmful result. The apparent inference to be drawn from the facts is that the defendant did not consciously desire, nor contemplate to a practical certainty, the serious injury to the victim that actually occurred. Had the defendant intended to cause such severe harm, he no doubt would have dealt the victim a strong blow rather than simply giving the victim a light shove. Therefore, as to the nature of the result, the defendant did not act with “purpose” or “knowledge” as those terms are defined in the Model Penal Code and modern criminal codes. (B), while close, is not as good an answer as (A) because it does not address the state of mind issue in the problem. A light shove might be sufficient for a battery as defined under a different set of facts (e.g., if the defendant believes that the victim would fall down stairs with a light shove). **_(C) is incorrect because it addresses the act but not the result. As defined in this question, battery must not only be committed by a purposeful act, but also be done with a “purposeful” or “knowing” state of mind as to the result._**

Answer 51

(B) This choice states the Model Penal Code test. **Pursuant to the Model Penal Code, a defendant is entitled to acquittal if he suffered from a mental disease or defect and as a result lacked substantial capacity to either:** **(i) _appreciate_ the criminality of his conduct; or (ii) _conform_ his conduct to the requirements of law.** (A) is wrong because it would be helpful only if the jurisdiction followed **_the Durham insanity test, pursuant to which a defendant is entitled to acquittal if his crime was the product of mental disease or defect._** (C) is wrong because it presents a valid defense under the **_M’Naghten rule, which provides for 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:_** **_(i) know the wrongfulness of his actions; or_** **_(ii) understand the nature and quality of his actions._** (D) is wrong because it presents **_the irresistible impulse test, which provides for acquittal if, because of mental illness, the defendant was unable to control his actions or to conform his conduct to the law._** **Note that the Model Penal Code test combines the M’Naghten and irresistible impulse tests.** Thus, choices (C) and (D) contain elements of the Model Penal Code test, but are not as good as (B) because the question asks for the set of facts that gives the defendant the greatest likelihood of being relieved of criminal liability. Therefore, (B), which sets forth the complete test used in the jurisdiction, is the best choice.

Answer 52

(D) The prosecution’s best argument is that, because the security guard was not a government agent, he need not have given the girl Miranda warnings. As a means of protecting the Fifth Amendment privilege against compelled self-incrimination, a person must be informed prior to custodial interrogation that: (i) she has the right to remain silent; (ii) anything she says can be used against her in court; (iii) she has the right to the presence of an attorney; and (iv) if she cannot afford an attorney, one will be appointed for her if she so desires. _**These Miranda warnings must be given only if the detainee is being questioned by someone known to be working for the police.**_Here, the security guard is employed by a private business (the grocery store). Thus, since the guard was not required to inform the girl of the Miranda warnings, he could not possibly have violated the girl’s Miranda rights. (A) is incorrect because the guard’s statement might be deemed to be interrogatory. “Interrogation” refers not only to express questioning, but also to any words or actions on the part of the police that they should know are reasonably likely to elicit an incriminating response from the suspect. _Although it is not an express question to say “You’re too young to be a thief,” such words are reasonably likely to bring forth some sort of incriminating response._ Therefore, it is incorrect to state that the guard’s statement was not interrogatory. An interrogation may be considered custodial if a reasonable person under the circumstances would feel that she is not free to terminate the interrogation and leave. The security guard grabbed the girl by the arm before making his statement. Thus, it could be argued that what followed was custodial interrogation, because the girl did not believe she was free to leave.

Answer 53

(B) The conversation should be suppressed because the police conduct violated the man’s Sixth Amendment right to counsel. **The Sixth Amendment provides that in all criminal prosecutions a defendant has a right to the assistance of counsel at all critical stages after formal proceedings have begun.** _For Sixth Amendment purposes, a criminal prosecution begins when adversary judicial proceedings have commenced, such as the filing of formal charges in this case._ Because custodial interrogation is a critical stage of prosecution, the Sixth Amendment is violated by postcharge interrogation **unless the defendant has waived his right to counsel.** *Interrogation includes not only direct questioning, but also any other conduct by the police intended to elicit a response.* ***_The police conduct here (telling the man that the woman had implicated him and then bugging the conversation) constitutes prohibited interrogation._*** [See Maine v. Moulton (1985)] (A) is incorrect because the wiretap was not an illegal search under the Fourth Amendment. Wiretapping and other forms of electronic surveillance are subject to the Fourth Amendment prohibition of unreasonable searches and seizures. However, to have a Fourth Amendment right, a person must have a reasonable expectation of privacy with respect to the place searched or the item seized. _In a different context, the Supreme Court has held that prisoners have no reasonable expectation of privacy in their cells or in any personal property that they have in their cells._ [Hudson v. Palmer (1984)] Hence, neither defendant can assert a Fourth Amendment claim based on the wiretap, because they had no reasonable expectation of privacy in the jail cell. **The fact that there was no expectation of privacy does not make choice (C) correct, however.** Even though he probably cannot claim that the bugging was an unreasonable search under the Fourth Amendment, the man can claim that it was an interrogation in violation of his Sixth Amendment right to counsel, as discussed above. (D) is incorrect because it is irrelevant. The facts probably would not give rise to a Miranda violation in light of the Court’s ruling in Illinois v. Perkins (1990) that Miranda does not apply unless interrogation is by someone known to be a police officer (on the rationale that Miranda is merely a prophylactic rule designed to offset the coercive nature of a custodial interrogation by a police officer). In any case, Miranda rights and Sixth Amendment rights to counsel can only be waived knowingly, and so the man’s ignorance of the fact that the cell was bugged precludes a finding of waiver here.

Answer 54

(C) The man’s motion should be denied because neither his Fifth nor Sixth Amendment rights were violated by the informant’s conduct. The Sixth Amendment right to counsel applies to all critical stages of a criminal prosecution after formal proceedings have begun, but does not apply in precharge custodial interrogations. Because this right is “offense specific,” the fact that the right to counsel has attached for one charge does not bar questioning without counsel for an unrelated charge. Because the man has not been charged with the convenience store robbery, his Sixth Amendment right to counsel has not been violated. **The Fifth Amendment privilege against selfincrimination requires Miranda warnings and a valid waiver before any statement made by the accused during custodial interrogation can be admitted.** _However, this requirement does not apply where interrogation is by an informant who the defendant does not know is working for the police, because the coercive atmosphere of police-dominated interrogation is not present._ [Illinois v. Perkins (1990)] Because the man was not aware of the informant’s status, the informant’s conduct did not constitute a police interrogation. (D) is incorrect because interrogation refers not only to express questioning, but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect. Here, the informant, working for the police, made statements about the convenience store robbery that were intended to, and reasonably likely to, prompt a response from his cellmate. _Hence, it is not the absence of “interrogation” that avoids the Miranda problem, but the fact that the man did not know that his cellmate was working for the police._

Answer 55

(C) The court should sustain the objection because the police did not honor the woman’s request for an attorney. **At any time prior to or during a custodial interrogation, the accused may invoke a Miranda (Fifth Amendment) right to counsel. If the accused invokes this right, _all questioning must cease_ until the accused is provided with an attorney or initiates further questioning himself.** Thus, the police questioning of the woman about the robbery was improper, and she can have her statements excluded. (A) is incorrect. After receiving Miranda warnings, if an accused invokes the right to remain silent, the police cannot badger the accused. **However, courts have ruled that if the police scrupulously honor the request, they can rewarn the accused and later resume questioning, at least about a different crime.** *_Here, however, the accused did not simply invoke the right to remain silent, but rather requested an attorney. After such a request, all questioning must cease._* (B) is incorrect because the accused does not need to reassert the right to an attorney; all questioning must stop until the accused is provided an attorney or resumes the questioning herself.

Answer 56

**_as long as the failure to warn was not purposeful,_** may not be sufficient to justify excluding the nontestimonial “fruits” of the confession. [See United States v. Patane (2004)]

Answer 57

A defendant has a right to be represented by privately retained counsel, or to have counsel appointed for him by the state if he is indigent, at the following stages: (i) post-indictment interrogation, whether or not custodial; (ii) preliminary hearings to determine probable cause to prosecute; (iii) arraignment; (iv) post-charge lineups; (v) guilty plea and sentencing; (vi) felony trials; (vii) misdemeanor trials when imprisonment is actually imposed or when a suspended jail sentence is imposed; (viii) overnight recesses during trial; (ix) appeals as a matter of right; and (x) appeals of guilty pleas. There also is a Fifth Amendment right to counsel at any custodial police interrogation.

Answer 58

(i) Blood sampling; (ii) taking of handwriting or voice exemplars; (iii) precharge or investigative lineups; (iv) photo identifications; (v) preliminary hearings to determine probable cause to detain; (vi) brief recesses during the defendant’s testimony at trial; (vii) discretionary appeals; (viii) parole and probation revocation proceedings; and (ix) post-conviction proceedings.

Answer 59

(D) is correct. Solicitation consists of ***_inciting, advising, or inducing_*** another to commit a crime with the ***_specific intent_*** that the person solicited commit the crime. Here, the man asked the pool cleaner to disarm the alarm and leave a side door unlocked so that he could enter the house and steal the coin collection, and he offered her part of the proceeds from selling the collection. This was clearly an inducement for the cleaner to commit a crime, and the man had the specific intent that the cleaner commit the crime. He has therefore committed solicitation. (A) is incorrect. A criminal attempt is an act that, although done with the intention of committing a crime, falls short of completing the crime. An attempt therefore consists of two elements: ***_(i) a specific intent to commit the crime, and_*** ***_(ii) an overt act in furtherance of that intent._*** **The overt act must be an act beyond mere preparation for the offense.** Burglary is the breaking and entering of the dwelling of another at nighttime with the intent to commit a felony therein. Here, the man did not take any action toward stealing the coin collection besides offering the pool cleaner money to help him with his plan. He did not commit any act that could be considered an act beyond mere preparation. In addition, it is unclear whether the crime contemplated would be burglary because it is not known how the man would enter the house and whether it would be at night. (B) is incorrect. Larceny is the taking and carrying away of the personal property of another by trespass with the intent to permanently deprive the person of his interest in the property. As explained above, attempt requires an overt act that goes beyond mere preparation. Again, the man did not do anything that could be considered an act beyond mere preparation in furtherance of an intent to commit larceny. (C) is incorrect. ***_Conspiracy consists of_*** ***_an agreement between two or more persons,_*** ***_an intent to enter into an agreement, and_*** ***_an intent to achieve the objective of the agreement._*** Under the bilateral approach, at least two guilty minds are required for a conspiracy. If one person in a two-party agreement is only feigning agreement, the other party cannot be convicted of conspiracy. Here, the cleaner outwardly agreed to the man's plan, but she was only pretending and immediately contacted the police. Because she did not intend to enter into an agreement with the man and did not intend to help him steal the coin collection, she did not have a guilty mind. The man therefore cannot be convicted of conspiracy.

Answer 60

**receiving possession and control of stolen personal property** **known to have been obtained in a manner constituting a criminal offense by another person** **with the intent to permanently deprive the owner of his interest in the property.**

Answer 61

(D) is correct. **_Jury selection is a critical stage of trial at which the defendant is entitled to be present._** (A) may be true, but it is also off point. The problem here is not a confrontation right, but rather the right to participate in one's own case. (B) is incorrect because it does not present a proper legal standard. There is no "good cause" which would permit a judge to violate a defendant's constitutional guarantees regarding the right to a jury. (C) is incorrect because nothing in the facts present an issue regarding the presumption of innocence.

Answer 62

The motion should be denied. **A school search will be upheld only if** **it offers a moderate chance of finding evidence of wrongdoing,** **the measures adopted to carry out the search are reasonably related to the objectives of the search, and** **the search is “not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”** [Safford United School District #1 v. Redding (2009)] In the Redding case, school officials were also attempting to locate lawful pain killers believed to be on a student’s person based on an uncorroborated tip from another student. The medication was prohibited on school premises without a doctor’s note on file. _The Court concluded that a search of the student’s outer clothing and backpack did not violate the Fourth Amendment._ **However, a subsequent strip search of the student was unconstitutional.** Here, the trier of fact could find that a search of the senior’s gym shorts that she was wearing under her school uniform was excessively intrusive and not reasonably related to the objectives of the search; hence, the school officials should not be entitled to summary judgment.

Answer 63

The illegal alien cannot be convicted of a crime under the statute because it was enacted for his protection, and the clerk cannot be convicted of conspiracy under the statute because the illegal alien, who would otherwise be liable as an accomplice, is not subject to conviction because of a legislative intent to exempt him. If a statute is intended to protect members of a limited class from exploitation or overbearing, members of that class are presumed to have been intended to be immune from liability, even if they participate in the crime in a manner that would otherwise make them liable. Thus, the illegal alien would not be liable as an accomplice under the statute, making (C) incorrect. The clerk clearly can be convicted for the substantive offense, but he cannot be convicted of conspiracy. One of the implications of the common law requirement that there be at least two guilty parties in a conspiracy arises when the crime involves members of a class protected by the statute. If members of a conspiracy agree to commit an act that violates a statute designed to protect persons within a given class, a person within that class not only cannot be guilty of the crime itself, as discussed above, but also cannot be guilty of a conspiracy to commit the crime. (D) is therefore incorrect. Because the member of the protected class cannot be guilty of conspiracy, if no other guilty party exists, the other member of the agreement cannot be guilty of criminal conspiracy because there were not two guilty parties to the agreement. Thus, because the illegal alien cannot be convicted of conspiracy under the statute, neither can the clerk. (A) is therefore incorrect and (B) is correct.

Answer 64

The defendant has committed burglary and larceny. Burglary consists of a breaking and entry of the dwelling of another at nighttime, with the intent of committing a felony therein. The felony need not be carried out—all that is required is that the person committing the crime have the intent to commit a felony at the time of entry. At night, the defendant broke into and entered the house with the intent to commit the felony of larceny. Regardless of whether the defendant took any property or committed a burning, the burglary was complete on his breaking and entering the dwelling at nighttime with the requisite intent. The defendant has also committed common law larceny. Larceny is the taking and carrying away of the personal property of another, by trespass, with the intent to permanently deprive the owner of his interest in the property. The element of carrying away, or asportation, is satisfied as long as there is some movement of the property as a step in carrying it away. The movement need only be slight as long as it was part of the carrying away process. Here, the defendant placed valuables in a sack and started to leave the home. This movement was sufficient to constitute a carrying away. Having acted with the requisite intent to permanently deprive the true owner of his property, the defendant has committed larceny.

Answer 65

The father lacked the specific intent to kill that is required for attempted murder. However, the circumstances surrounding the “incendiary device” constitute factual impossibility and will not afford the father a defense to attempted arson. Criminal attempt is an act that, although done with the intention of committing a crime, falls short of completing that crime. To be guilty of attempt, the defendant must have the intent to perform an act and obtain a result that, if achieved, would constitute a crime. Regardless of the intent that would suffice for the completed offense, attempt always requires a specific intent to commit the target offense. Also, the defendant must have committed an act beyond mere preparation for the offense. Here, to be guilty of attempted murder, the father must have had the ***_specific intent to kill_*** his son’s coach, _even though the intent to inflict great bodily injury would be sufficient mens rea for murder._ However, the facts indicate that the father intended at most only to injure the coach rather than kill him. Thus, the father cannot be guilty of attempted murder. However, the father did intend to burn the coach’s home; therefore, he had the specific intent to commit arson by means of placing an incendiary device on the coach’s porch, and his placing the device was an act beyond mere preparation for this crime. Although the device could not have actually burned the coach’s house, it is no defense to attempt that it would have been impossible for the defendant to complete his plan. _This is factual impossibility and is not a defense._ Thus, the father is guilty of attempted arson. (A) and (B) are incorrect because the father did not have the specific intent to kill. (D) is incorrect because the father is guilty of attempted arson, as explained above.

Answer 66

The court should reverse the defendant’s conviction because Instruction #6 requires the defendant to disprove one of the elements of murder. Due process requires in criminal cases that the state prove guilt beyond a reasonable doubt. The prosecution has the burden of proving all of the elements of the crime charged. Thus, if malice aforethought is an element of murder and voluntary manslaughter is distinguished from murder by the existence of adequate provocation, the defendant cannot be required to prove that he committed the homicide in the heat of passion (i.e., with adequate provocation). Such a requirement would impose on the defendant the burden of disproving the element of malice aforethought, because “heat of passion” negates malice. Although the defendant can be given the burden of going forward with some evidence on the provocation issue, once he has done so, the prosecution bears the burden of proving that the killing was not done in the heat of passion. In the case at issue, Instruction #6 requires a defendant to prove that he committed the intentional killing under adequate provocation. At common law, and consequently in the state, malice aforethought is an element of murder. Therefore, this instruction in effect requires the defendant to disprove the element of malice aforethought, thereby relieving the state of its burden of proving all elements of the crime. As discussed above, such an instruction cannot pass constitutional muster. **_On the other hand, for an affirmative defense such as insanity, it is permissible to impose the burden of proof on the defendant._** Thus, Instruction #8 does not affect the state’s obligation to prove all elements of the crime, and is permissible under the general principles mentioned above. A correct

Answer 67

The defendant should be found not guilty as an accomplice. **_Under modern statutes, parties to a crime are divided into three different categories._** Principals are those who, with the requisite mental state, actually engage in the act or omission that causes the criminal result. An accomplice is one who, with the intent that the crime be committed, aids, counsels, or encourages the principal **_before or during_** the commission of the offense. Under modern statutes, accomplices are generally treated as principals. **_A third category is “an accessory after the fact.”_** An accessory after the fact is one who receives, relieves, comforts, or assists another knowing **_that he has committed a felony, in order to help the felon escape arrest, trial, or conviction._ Unlike an accomplice, an accessory after the fact has committed a separate crime with a punishment unrelated to the felony committed**. In the instant case, it is clear that the defendant aided his friend in avoiding capture, that he provided no aid to the substantive offense, and that he did not intend the substantive offense to occur. Thus, he is an accessory after the fact and not an accomplice, making (A) the correct answer.

Answer 68

The defendant’s motion should be denied because a prosecution for conspiracy is distinct from a prosecution for any substantive offense involving the same conduct as the conspiracy. **_The Fifth Amendment provides that no person shall be twice put in jeopardy for the same offense._** ***The general rule is that two crimes do not constitute the same offense if each crime requires proof of an additional element that the other crime does not require, even though some of the same facts may be necessary to prove both crimes. [Blockburger v. United States (1932)]*** _Furthermore, a prosecution for conspiracy is not barred merely because some of the alleged overt acts of that conspiracy have already been prosecuted. [United States v. Felix (1992)]_ Here, both the conspiracy charge and the possession charge require proof of an element that the other charge does not; hence, there is no double jeopardy problem with the indictment. (A) is incorrect because it is too broad a statement. The fact that separate statutes are involved does not establish that these are not the “same offense” for purposes of double jeopardy. (C) is incorrect because the “same conduct” test is not currently used by the Supreme Court to evaluate a double jeopardy claim. (D) is incorrect because the question involves the defendant’s motion to quash an indictment and not her ultimate punishment.

Answer 69

Even though the student’s words may have been intended to provoke the seaman, this fact alone would not justify the seaman’s use of deadly force. A person may use deadly force in self-defense if he: (i) is without fault; (ii) is confronted with unlawful force; and (iii) reasonably believes that he is threatened with imminent death or great bodily harm. Generally, one who is at fault for starting a confrontation has no right to use force in his own defense during that confrontation. However, if the victim of the initial aggression suddenly escalates a relatively minor fight into one involving deadly force and does not give the aggressor a chance to withdraw or retreat, the aggressor may use deadly force in his own defense. **_Here, although the student instigated the hostile situation by repeatedly insulting the seaman, the seaman’s throwing of a punch probably calls for his being characterized as the aggressor._** The student, as the victim of the initial aggression, escalated matters by using a knife, especially because the seaman had said that he wanted no further trouble. This escalation (which is the point stated in choice (B)) entitled the seaman to employ deadly force in his own defense against the imminent threat of death or great bodily harm posed by the student’s use of the knife. Thus, (B) presents a point that will be helpful to the seaman. **_(A) is incorrect because, if the student had no reason to fear serious bodily injury when he drew the knife, his use of the knife constitutes unlawful force, in response to which the seaman was entitled to use deadly force of his own. Consequently, (A) will also be of value in gaining the seaman an acquittal._** Regarding (C), many courts hold that a person is not under a duty to retreat before using deadly force. Thus, even if the seaman could have safely retreated, he was still entitled to use deadly force in self-defense, so that he is not required to show why he did not retreat. Other courts, however, do require retreat before the use of deadly force, but only if the retreat can be made in complete safety. The fact that the seaman’s route of retreat was blocked by other students would indicate that a retreat might not be able to be made in safety, and would be significant in a jurisdiction holding that there is a duty to retreat. Therefore, (C) also presents a point that can be helpful to the seaman. **(D) is correct because the motive of the student in insulting the seaman is of no help to the defense. Even if the words did provoke him, the seaman would not be entitled to employ deadly force against the student on the basis of the student’s desire for trouble. Use of such force would be justified only if the seaman held a reasonable belief that he was faced with imminent death or great bodily harm from one of the students if he did not respond with deadly force.**

Answer 70

absent an emergency, a forcible, warrantless entry into a residence for the purpose of making a felony arrest is an unconstitutional violation of the Fourth Amendment as made applicable to the states by the Fourteenth Amendment.

Answer 71

The court should deny the motion because the thief had no standing to object to the search. A person challenging the admissibility of seized evidence must have standing to do so. As a general rule, standing requires a person to have a reasonable expectation of privacy in the place being searched or the item being seized. One may not challenge a search or seizure by claiming that another person’s constitutional rights have been violated. **_Here, the thief had no ownership interest in the dealer’s store._** He had no reasonable expectation of privacy with respect to it; i.e., he was not present when the search was made, and he had no ownership interest in the stolen goods. Thus, he lacks the standing to object to their illegal seizure. (A) and (B) are incorrect because, while the dealer does have such standing and was successful in having the evidence suppressed at his trial, what occurred at the dealer’s trial is not relevant to the thief’s motion. (D) is incorrect because the only evidence containing the thief’s fingerprints were the stolen goods. If it is found that these items were illegally seized, it would follow that the evidence arising out of this illegal seizure, including the thief’s fingerprints, was also illegally seized.

Answer 72

The defendant can claim a reasonable expectation of privacy for Fourth Amendment purposes if she was an overnight guest of the owner of the place searched. To raise a Fourth Amendment claim of an unreasonable search or seizure, a person must have a reasonable expectation of privacy with respect to the place searched or the item seized. It is not enough merely that someone has an expectation of privacy in the place searched. The Supreme Court has imposed a standing requirement so that a person can complain about an evidentiary search or seizure only if it violates her own reasonable expectations of privacy. **The Court has held that a person has a reasonable expectation of privacy any time** **(i) she owned or had a right to possession of the place searched,** **(ii) the place searched was in fact her own home, whether or not she owned or had a right to possession of it, or** **(iii) she was an overnight guest of the owner of the place searched.** Thus, the defendant would have standing to challenge the search of the tenant’s apartment if she was an overnight guest of the tenant. (A) is incorrect because standing to raise a Fourth Amendment claim does not exist merely because a person will be harmed by introduction of evidence seized during an illegal search of a third person’s property. The person must establish that her own reasonable expectation of privacy has been violated. (C) is wrong because the fact that the defendant was not the owner or occupier of the apartment does not preclude her from challenging the search. As discussed above, an overnight guest may also have a reasonable expectation of privacy in the premises for purposes of the Fourth Amendment. **_(D) is incorrect. Although the defendant may have standing to object to the seizure of items if she claims ownership of them, that is not the only basis for raising a Fourth Amendment claim; she will have standing to object to the search of the apartment under the circumstances in (B) regardless of whether she claims ownership of the methamphetamine._**

Answer 73

after being informed of his right to counsel, had requested an attorney or had been prevented from seeing his attorney.

Answer 74

The robber’s claim is correct because the victim died before jeopardy attached for trial on the lesser included offense. ***_The Fifth Amendment right to be free of double jeopardy provides that once jeopardy attaches for an offense, the defendant may not be retried for the same offense._*** **_Under the Blockburger test, two crimes do not constitute the same offense if each crime requires proof of an additional element that the other crime does not require._** **_Under this test, a lesser included offense and the greater offense would be considered the “same offense,” because the lesser included offense consists entirely of some, but not all, elements of the greater crime._** **Hence, under double jeopardy rules, attachment of jeopardy for the greater offense bars retrial for lesser included offenses, *_and attachment of jeopardy for a lesser included offense generally bars retrial for the greater offense._*** **_An exception to this latter rule exists if all of the elements for the greater offense had not occurred at the time of prosecution for the lesser offense,_** but in this case the final element for the felony murder charge—the death of the victim—occurred before jeopardy had attached in the first trial, so the prosecution could have added a charge of felony murder prior to proceeding with the first trial. Thus, the underlying felony of armed robbery was a lesser included offense of the felony murder and the robber’s being placed in jeopardy for it bars the subsequent trial for the felony murder. (A) is incorrect because the reckless driving charge was not the basis for the felony murder charge. Under principles of collateral estoppel embodied in the double jeopardy rule, a subsequent trial would be barred if it would require a factual determination inconsistent with the one in the prior prosecution. If the reckless driving charge were the underlying felony for the felony murder charge, the robber could argue that proving felony murder based on reckless driving would require a determination that he was guilty of the underlying felony, which would appear inconsistent with his acquittal. However, this principle is not applicable here because the armed robbery charge was the underlying felony for the felony murder charge. (C) is incorrect. As discussed above, double jeopardy applies regardless of the outcome of the trial on the robbery charge, because jeopardy attached for the robbery charge as soon as the trial started, barring a second trial for the greater offense of felony murder. (D) is incorrect because, as discussed above, two crimes are not the “same offense” for double jeopardy purposes only if each crime requires proof of an additional element that the other crime does not require. Because the underlying felony is a lesser included offense of the felony murder charge, i.e., it has no other elements not required by the felony murder charge, it constitutes the “same offense” for purposes of double jeopardy.

Answer 75

The bartender’s reasonable belief that the minor is 25 years old is a mistake of fact that negates the state of mind required by the statute. **Ignorance or mistake as to a matter of fact will affect criminal guilt only if it shows that the defendant did not have the state of mind required for the crime. In addition, the mistake must be reasonable unless the offense is a specific intent crime.** Here, the statute requires that the defendant have acted “knowingly” with respect to each of the material elements of the offense. A person acts knowingly with respect to the nature of his conduct when he is aware that his conduct is of that nature or that certain circumstances exist. At least one of the material elements of the offense here is that the sale be to a person under the age of 18. _If the bartender believed that the minor was 25 years old, the bartender has not acted knowingly with respect to the fact that the purchaser was under 18, and he cannot be convicted of violating the statute._ (D) is not as good an answer as (A). Although the regulation apparently does not have a state of mind requirement, it is not entirely clear that criminal liability can result from the violation of the regulation. There would have to be a separate statute providing for criminal penalties for failing to check for identification. Furthermore, the criminal statute in question clearly has a state of mind requirement that must be satisfied, as explained above.

Answer 76

The judge should deny the motion. Evidence will be suppressed if it was obtained in violation of the defendant’s constitutional rights. Each passenger in a car has standing to challenge a stop of the car. If a stop is invalid, under the fruit of the poisonous tree doctrine, evidence obtained as a result of the invalid stop will be suppressed. Here, the officer had a valid reason to stop the car. An officer may stop a car for violating a traffic law, and here the driver of the car failed to stop at a stop sign. (A) is incorrect because it is irrelevant. A person may seek suppression of evidence that has been seized only if the seizure is in violation of the person’s own constitutional rights. ***_While it is true that the gun was properly seized from the driver because the arrest appears to have been valid, the gun would be admissible against the passenger even if it had been unlawfully seized from the driver. The driver, of course, would have standing to complain of the unlawful seizure, but not the passenger._*** (C) is wrong because, for whatever reason the officer first followed the car, the fact remains that she had a valid reason for stopping it—violation of the traffic law. And this is so even if the officer’s ulterior motive was to investigate whether some other law was being violated. (D) is wrong because it is irrelevant. As with (A), it is focusing on the wrong party. Moreover, even if the proper arrest of the driver were relevant, the search incident to a constitutional arrest need not have been based on suspicion that the three had committed the crimes for which they have been charged (robbery and homicide); the only requirement is a constitutionally valid arrest. The arrest here was valid because the driver had five outstanding traffic tickets.

Answer 77

... all questioning related to the particular crime must stop. However, the police may reinitiate questioning after the defendant has invoked his right to remain silent, as long as they “scrupulously honor” the defendant’s request. This means, at the very least, that the police may not badger the defendant into talking and must wait a significant time before reinitiating questioning.

Answer 78

The defendant can be found guilty of robbery and felony murder, but the death penalty cannot be imposed. _The defendant can be found guilty of robbery as an accomplice._ The Supreme Court has held that, under the Eighth Amendment, the death penalty may not be imposed for felony murder where the defendant, as an accomplice, did not take or attempt or intend to take life, or intend that lethal force be employed. [Enmund v. Florida (1982)] Here, because the defendant’s involvement in the crime was only to provide transportation, it cannot be said that he participated in such a major way that he acted with reckless indifference to human life; hence, the death penalty cannot constitutionally be imposed against him. (B) is therefore incorrect. (C) is incorrect because the defendant’s conviction of both robbery and felony murder does not raise double jeopardy problems under these facts. Under the rule that lesser included offenses “merge” into greater offenses, a person may not be convicted of both the greater offense and a lesser included offense. **_While the Supreme Court has held that a subsequent prosecution for robbery is not permitted against a defendant who has been tried for felony murder where the robbery is the underlying felony, this situation is different._** **_Imposition of cumulative punishments for two statutorily defined offenses arising from the same transaction and constituting the same crime does not violate double jeopardy when the punishments are imposed at a single trial, as long as the two offenses were specifically intended by the legislature to carry separate punishments. [Missouri v. Hunter (1983)]_** _Here, the legislature did specifically provide for cumulative penalties for first degree felony murder and for the underlying felony._ Thus, the defendant can be convicted of both robbery and felony murder. (D) is incorrect because the jury could properly find the defendant guilty of felony murder. When the felony murder rule is combined with accomplice liability rules, the scope of liability becomes very broad. The felony murder rule provides that a killing—even an accidental one—committed during the course of a felony is murder. All parties to the felony are liable for the murder as long as (i) it was committed during the commission of the felony or in fleeing from the scene, and (ii) it was a foreseeable result of commission of the felony. Courts have been willing to find most deaths committed during a felony to be foreseeable. Here, the jury could reasonably find the shooting death of a store clerk by the acquaintance during a struggle for a gun to be a foreseeable result of the commission of a robbery and impose felony murder liability on the defendant as an accomplice because he knew that the acquaintance was going to commit a robbery.

Answer 79

Because the defendant was charged with first degree murder, the theory of the case is most likely felony murder, and (C) is the only choice that sets out a theory to avoid a felony murder conviction. If the defendant was so intoxicated that he could not form the intent to steal, then he is not guilty of robbery, and there would be no “felony” from which the felony murder rule is to arise. (A) and (B) are incorrect because even though the defendant could argue that no premeditation or deliberation was present, he would still be guilty of first degree murder under the felony murder rule because the felony was robbery. (D) is wrong because insulting someone is not adequate provocation that would mitigate a homicide to voluntary manslaughter; neither would this “threat” suffice, in all likelihood. At most, the circumstances might produce the sort of unreasonable anger that would negate premeditation and deliberation. However, because the defendant clearly caused the homicide while committing the felony of robbery, his crime remains first degree murder.

Answer 80

does not because the intrusion is minimal and the intent is not to find evidence of crime committed by the occupants of the vehicle [Illinois v. Lidster, 540 U.S. 419 (2004)].

Answer 81

**_As to conspiracy,_** the cases have generally held that mere knowledge of the criminal purpose of the others is not enough; the supplier must share in the criminal intent in some manner. The intent cannot be established by mere knowledge of the criminal scheme; something more is needed, like **supplying goods or services that have no legitimate use or charging inflated prices for the goods or services.** **i.e.** Since the retailer charged the two men 50% above the retail value of the equipment, his intent that the crime be committed can be inferred. **_As to accomplice liability,_** as an accessory before the fact, the same kind of "mere knowledge versus intent" problem exists. Most decisions have held that a defendant who assists others who engage in a crime **_must do more than merely act with knowledge of the criminal purpose, the defendant must associate himself somehow with the venture in a way that demonstrates he wishes it to succeed._** Again, the retailer's intent that the criminal scheme succeed can be inferred by his charging a premium for the equipment. As such, he is liable as an accessory before the fact for the burglary.

Answer 82

the burning of the dwelling house of another with malice. Willful and wanton misconduct (defined as creating a plain and strong likelihood that a protected structure will be burned) is a form of malice, and slight burning, such as charring, is sufficient to constitute arson.

Answer 83

Depraved-heart murder is an unintentional killing resulting from conduct involving a wanton indifference to human life and a conscious disregard of an unreasonable risk of death or serious bodily injury, absent any defense negating defendant's awareness of the risk. Unlike involuntary manslaughter, depraved-heart murder involves extremely negligent conduct (or recklessness) that is of a higher degree than gross or criminal negligence (which provides the standard for involuntary manslaughter).

Answer 84

The police had probable cause to search the suitcase, not the car. While they could seize the suitcase pursuant to the search warrant, arrest the occupants, and search them incidence to a lawful arrest, they cannot conduct a search of the car beyond the wingspan of the occupants. This is a safety issue; therefore, once the occupants are safely secured in the officer's car, little argument can be made that officer safety is in issue. While a weapon (or fruits of the crime) could be in the glovebox, the papers found were not weapons (and not immediately recognizable as fruits), and therefore, they were not subject to confiscation. The motion should be denied, because once the luggage was found to have contained cocaine, the police could then search the entire vehicle. ***_This is incorrect because there is no probable cause for the car, rather for the suitcase, therefore the further search of the glovebox beyond a safety search is not permitted._***

Answer 85

prevents a witness from being prosecuted for any crime referred to in the testimony.

Answer 86

A jury could conceivably find that the man acted with implied malice, as his act of proceeding with a "game" likely to result in either his or the woman's death could be held to demonstrate a reckless disregard for the value of human life. In such case, he would be guilty of murder. A jury could likewise find that the man was criminally negligent, in which case he would be liable for involuntary manslaughter. **_As such, both these charges apply._** **_So, answer: Can charge with murder AND involuntary manslaughter._**

Answer 87

Normally, in an employer-employee situation, the employee is given custody, which is a limited form of possession. The man needs to defend against larceny, so if he was given possession, that would be permission without limitation, which would knock out the element of taking possession from another.

Answer 88

Intent-to-inflict-serious-bodily-injury murder is an unintentional killing proximately resulting from an act intended to cause serious bodily injury. Absent justification, excuse, or mitigation, intent-to-inflict-serious-bodily-injury murder satisfies the malice element for general-intent murder. Incorrect choices: Involuntary manslaughter is an unintentional killing resulting without malice aforethought caused by **criminal negligence or during the commission or attempted commission of an unlawful act.** ***_Criminal negligence requires that a defendant's conduct involved a high degree of risk of death or serious injury beyond the standard of ordinary tortious negligence._*** Here, the victim's death occurred during the commission of an unlawful act (the conspiracy to defraud the defendant's insurance company), and the act of hitting the victim with an automobile certainly involved a high degree of risk of serious injury to the victim. ***_However, because the question asks for the most serious crime of which the defendant may be convicted, involuntary manslaughter is not the appropriate response._*** Felony murder is an intentional or accidental killing proximately caused during the commission or attempted commission of a serious or inherently dangerous felony ("BARRK"--burglary, arson, robbery, rape, and kidnapping). In order for a person to be guilty of felony murder, the underlying felony must be ***_malum in se, or an inherently dangerous felony._*** Defrauding an insurance company, on the other hand, is ***_malum prohibitum and does not inherently involve a danger to life._*** While this particular scheme may have been inherently dangerous, the crime of insurance fraud is not. **The statutory crime of conspiracy to obtain property by false pretenses consists of a false representation of a present or past material fact by the defendant, which causes a victim to pass title to his property to the perpetrator, who knows his representation to be false and intends thereby to defraud the victim.** Here, it is true that the defendant and the victim entered into an agreement to defraud the defendant's insurance company, and the defendant therefore may indeed be guilty of the crime of conspiracy to obtain the insurance company's property by false pretenses. However, because the question asks for the most serious crime of which the defendant may be convicted, and the defendant may be convicted of murder, conspiracy to obtain property by false pretenses is not the appropriate response.

Answer 89

The store clerk intended to use the $1,000 to buy lock-picking equipment to steal money from his employer. ***_Thus, the store clerk was lawfully in possession of the money for the stated purpose._*** The money was clearly not a loan, since there was no provision for repayment; the store clerk was to buy the equipment, steal the money, and share it with the social worker. Thus, when the store clerk failed to return the money after not buying the equipment, ***_he must have converted the money to his own use._*** Even if all he did was put it in his pocket, the effect was to permanently deprive the social worker of the money. Since the store clerk was in "lawful" possession (as to the social worker) of the money when he converted it, the crime is embezzlement.

Answer 90

... clear and convincing evidence.

Answer 91

Involuntary manslaughter, because the father's belief evidences a lack of malice, but was not sufficient to obviate the duty owed to his son. ## Footnote ***_Even if the defendant sincerely holds his moral or religious beliefs this will not constitute a defense to the charge of homicide._***

Answer 92

For example, if the warrant authorizes a search of "premises" at a certain described geographical location, buildings standing on that land may be searched. If the place is identified by a street number, the search may extend to those buildings within the curtilage and the yard within the curtilage. The permissible intensity of the search within the described premises is determined by the description of the things to be seized. Here, the warrant covered the seizure of just one stolen X-brand stereo at the homeowner's address. When the police arrived at the defendant's home, they noticed a Y-brand stereo in the living room. The first question is whether the police, under the plain-view doctrine, were permitted to seize the Y-brand stereo, which also turned out to be stolen. The plain-view doctrine is legitimate only where it is immediately apparent to the police that they have evidence before them; the plain-view doctrine may not be used to extend a general exploratory search from one object to another. In fact, in Arizona v. Hicks [480 U.S. 321 (1987)], it was held that full probable cause was needed to pick up an item of stereo equipment to ascertain its serial number (which revealed that it was stolen). Based on Hicks, the Y-brand stereo was unlawfully seized, because the police needed to turn it over to see that it was missing a serial number, and to "further inspect" it in order to determine its stolen status. By the same token, the police did not have the authority to continue to search the home after discovering the one and only stolen X-brand stereo specified in the warrant. **_When the purpose of the warrant has been carried out, the authority to search is at an end._** The defendant's motion to exclude the Y-brand and Z-brand stereos will be granted.

Answer 93

As such, the first player could have reasonably believed himself to be in imminent danger of serious bodily harm, and he was thereby justified in using even deadly force to prevent the attack. So, no crime. If a person has a reasonable belief that he is in imminent danger of unlawful bodily harm, he may, in self-defense, use a sufficient amount of force (deadly or non-deadly) that is reasonably necessary to prevent such harm, **unless he is the aggressor.** Deadly force is that which threatens death or serious bodily harm; non-deadly force threatens only bodily harm.

Answer 94

Generally, the voluntariness of a confession will be determined by examining the totality of the circumstances surrounding the confession. Factors such as the defendant's age, sex, education, mental condition, and physical condition are considered. As to the nature of the police conduct, a court will consider factors including the manner of a police interrogation, its duration, and its setting. If a defendant confesses under conditions that significantly limited his freedom of choice, a court is likely to conclude that the confession is involuntary. ***_In addition, although a confession will not be deemed involuntary merely because it was obtained by deception, the Supreme Court has held that where government authorities utilize a threat of physical violence to intimidate a suspect into confessing, the resulting confession will be viewed as coerced._*** Here, a court could find that the authorities through an informant talking with the prisoner used the threat of violence (by other prisoners) to coerce the confession, and therefore grant the motion to suppress.

Answer 95

Because the friend was unaware that he was being asked to commit a crime, there was no solicitation or conspiracy.

Answer 96

Depraved-heart murder is an unintentional killing resulting from conduct involving a wanton indifference to human life and a conscious disregard of an unreasonable risk of death or serious bodily injury, absent any defense negating defendant's awareness of the risk. Unlike involuntary manslaughter, depraved-heart murder involves extremely negligent conduct (or recklessness) of a higher degree than mere gross or criminal negligence (which provides the standard for involuntary manslaughter). Playing Russian roulette is extremely negligent conduct (or recklessness) of a higher degree than ordinary gross or criminal negligence; note also that because depraved-heart murder is a general-intent crime, voluntary intoxication is not a defense.

Answer 97

"Custody" is a limitation on an individual's freedom of action by virtue of a lawful process or authority. With regard to criminal procedure, whether a person has officially been placed in police custody is determined on an objective test basis. The test generally measures whether a "reasonable person" would believe that officer in some way suggested that they were not free to leave and custody is therefore not limited to formal arrests. "Interrogation" is defined as those words or actions by police which are likely to elicit an incriminating response, including a confession. Police are required to read an individual their rights (i.e., a "Miranda warning") before they may interrogate or question a detained individual. However, a line of questioning by the police is only an interrogation if the individual is determined to be in "custody." **_Here, the pig farmer was clearly in custody as officer's had a gun pressed against his body. He was also being interrogated because the questions were likely to produce an incriminating response. Therefore, without the required Miranda warnings, the defendant's statement should be suppressed._**

Answer 98

Here, the man entered a garage with the intent to steal the car. Therefore, he will be found guilty of burglary.

Answer 99

Although the woman may have been guilty of murder had the pedestrian been killed, it does not necessarily follow that she is guilty of attempted murder when she almost killed the pedestrian. Murder does not require the intent to kill; an awareness of an unjustifiably high risk to human life will suffice. Like all attempt crimes, attempted murder is a specific intent crime. Thus, the intent to kill is required. Because the woman did not intend to kill the pedestrian, she cannot be convicted of attempted murder.

Answer 100

The court should not admit the marijuana into evidence because it was obtained as a result of an unreasonable search of the woman. Under the exclusionary rule, evidence obtained in violation of a defendant’s Fourth Amendment rights is not admissible to establish the guilt of the defendant at trial. The Fourth Amendment protects against unreasonable searches and seizures by criminal law enforcement agents. To have a protected Fourth Amendment right, a person must have a reasonable expectation of privacy with respect to the place searched or the item seized. **For a search based on a search warrant to be constitutionally valid, the warrant must be based on probable cause and must describe with reasonable precision the place to be searched and the items to be seized. A search warrant does not authorize the police to search persons found on the premises who are not named in the warrant.** _However, if the police have probable cause to arrest a person discovered on the premises to be searched, they may conduct a warrantless search of her incident to the arrest. If a person is not named in the warrant and circumstances justifying an arrest of that person do not exist, the police may search her for the objects named in the search warrant only if they have probable cause to believe that she has the named objects on her person._ Here, the search warrant was issued on the basis of information from reliable informants, and it stated precisely the premises (the fraternity house) to be searched and the items (illegal narcotics) to be seized. Thus, the warrant is valid. However, the search warrant (which did not name the woman) did not authorize the police to search the woman’s purse. The search cannot be justified as incident to a valid arrest because: (i) the police searched the purse before they arrested the woman, and (ii) the police did not have sufficient probable cause to arrest the woman prior to searching the purse. Because the police had no reason to believe that the woman had drugs on her person, they cannot successfully claim that they were searching for the drugs mentioned in the warrant. The woman can challenge the search because she had a possessory interest and a reasonable expectation of privacy in her purse, which was the object of the search. Thus, because the marijuana was seized pursuant to an unreasonable search in violation of the Fourth Amendment, it must be excluded from evidence. (B) is incorrect because mere presence at a place for which the police have a search warrant does not authorize a search of a person not named in the warrant. Only if the police obtain probable cause to arrest a person on the premises may the person be searched (as incident to the arrest). (A) is incorrect. The footlocker was properly searched pursuant to the warrant, not because it was within the woman’s reach. However, the marijuana at issue here was seized as a result of a search of the woman’s purse. Thus, the proximity of the woman to the footlocker is of no consequence to the admissibility of the marijuana found in her purse. (C) is incorrect because the woman’s lack of a possessory interest in the premises does not invalidate a search of her purse. For example, if the police had probable cause to believe that the woman had drugs on her person, they could have searched her for the drugs, regardless of the fact that she had no possessory interest in the fraternity house.

Answer 101

The man will be found not guilty because he was acting in self-defense. A person is privileged to use deadly force to prevent a crime only if ........ it is an inherently dangerous felony. Shoplifting is not an inherently dangerous felony; thus, the woman’s use of deadly force was not privileged. A person may used deadly force in self-defense if he (i) is without fault, (ii) is confronted with unlawful force, and (iii) reasonably believes that he is threatened with imminent death or great bodily harm. The man was without fault because, although he shoplifted the sweater, he did not initiate any violence or provoke the woman. He was confronted with the woman’s unlawful force, and it was reasonable for him to believe that a baseball bat swung at his head threatened him with death or great bodily harm. Therefore, the man was entitled to defend himself against the woman’s improper use of deadly force by using deadly force himself. (A) is wrong because the man did not initiate an assault.

Answer 102

A police officer may conduct a warrantless search of a person incident to the person’s lawful arrest. Any arrest is sufficient, as long as it was lawful (e.g., reasonable and based on probable cause). The contents of the briefcase supplied probable cause to believe that the friend was involved in the gambling operation, and thus his arrest was constitutional. The police had searched the house for gambling paraphernalia pursuant to a search warrant. Upon seeing such paraphernalia in the briefcase, which was not previously present, they had reasonable grounds to believe that the person who left the briefcase was involved in the gambling operation. When the officers found the friend, who had not been present during the initial search, they had reasonable grounds to believe that he had left the briefcase and was therefore involved in the commission of gambling offenses. Thus, the friend’s arrest was constitutional/lawful. (A) focuses on the propriety of the search that uncovered the heroin, rather than on the validity of the arrest itself. Do not be sidetracked. The call of the question concerns the lawfulness of the arrest. As has been explained above, the friend’s arrest was constitutional and based on grounds entirely independent of the legality of the subsequent search and seizure. Moreover, because the arrest was lawful, it does not matter whether the officer thought the bulge was a weapon. This alludes to whether a valid warrantless frisk was performed. A police officer may frisk a person for weapons without a warrant if the officer has reason to believe the suspect is armed and dangerous. But here, the friend had been placed under arrest. Incident to arrest, a person may be thoroughly searched for weapons or any type of evidence. Thus, (A) is incorrect. Although it is true that, as (B) states, the friend’s mere presence in the house did not give probable cause to believe he had committed a crime, his arrest was not based on his mere presence. As has been explained, reasonable grounds to believe that the friend was part of the gambling operation arose from the presence of betting slips in the briefcase and the great likelihood that the friend was the person who brought the briefcase into the house. Thus, (B) incorrectly states the basis for the friend’s arrest. Also, (B) incorrectly states that there was no basis to search the friend, because he had not behaved threateningly. In fact, the police may conduct a search incident to a constitutional arrest without actually fearing for their safety. Note also that this second part of (B), similarly to (A), incorrectly focuses on the search of the friend, rather than on the arrest itself. (D) incorrectly asserts a right to search the man independent of any probable cause to arrest him. A search warrant does not authorize the police to search persons found on the premises who are not named in the warrant. However, if the police have probable cause to arrest a person discovered on the premises, they may search him incident to the arrest. Consequently, any right that the police had to search the friend arose from their arrest of him, which was based on probable cause. (D) ignores the necessity of probable cause to arrest. Of course, (D) also attempts the same distraction as (A) and (B); i.e., it focuses on the search of the friend as a means of either justifying or attacking the arrest, rather than on the grounds for the arrest itself.

Answer 103

... probable cause to arrest a person discovered on the premises, they may search him incident to the arrest. This search may be of the person and areas into which he might reach to obtain weapons or destroy evidence (his “wingspan”). i.e. The arrest of the woman was lawful because the presence of the timers she brought to the house gave the police probable cause to believe that she was involved in the arsons being investigated. Because the arrest of the woman was lawful, the police were entitled to conduct a search incident to that arrest. _Such a search was permissible even though the police did not actually fear for their safety._ Consequently, the heroin discovered as a result of this search is admissible, and the motion to suppress will be denied.

Answer 104

If the jurisdiction uses the *M’Naghten* test, the teacher’s best argument is that he did not know that his act was wrong. _**The *M’Naghten* test provides for a defendant’s acquittal if he has a disease of the mind causing a defect of reason so that at the time of his actions he lacked the ability to know the wrongfulness of his actions or understand the nature and quality of his actions.**_ (A) states one branch of this test and is consistent with the facts (which state that the teacher did not understand that the killing was wrongful), and so it is the teacher’s best argument. _**(C) is wrong because it is contrary to the facts. Although (C) also states part of the *M’Naghten* test, the teacher’s illness has not left him so irrational that he is unable to comprehend that his act would result in the student’s death. He seemed to have known that he was killing his student; he just did not know that killing was wrong.**_ (B) is wrong because although the teacher did lack the substantial capacity to appreciate the criminality of his act, this is not a criterion for insanity in a state that follows the *M’Naghten* test; rather, (B) states the Model Penal Code standard. (D) is wrong because it states conduct outside the scope of the *M’Naghten* test. Also, the facts do not show that the teacher’s mental illness had deprived him of his volitional controls.

Answer 105

The man will not prevail in his motion to suppress. To be reasonable under the Fourth Amendment, most searches must be pursuant to a warrant. _However, several types of inspections and searches do not require a warrant or even probable cause._ **_The Supreme Court has held that the Fourth Amendment is not violated by a statute authorizing warrantless searches of a parolee’s home—even absent probable cause—if a statute provides for such searches._** The Court reasoned that in such circumstances, the parolee has a diminished expectation of privacy and the government has a heightened need for searching parolees; thus the search is reasonable in a constitutional sense. (A) is incorrect because while probable cause may be based on this type of tip under the “totality of the circumstances” test, probable cause is not necessary to establish the validity of the search based on the above discussion. (B) is incorrect because a search warrant is not required for a search of a parolee’s home that otherwise complies with procedures. (D) is incorrect because this was not a search incident to a constitutionally valid arrest. There was no basis for an arrest until after the search occurred; if the search were not otherwise independently valid, the fact that the man was arrested after the search revealed the drugs would not make the search valid.

Answer 106

The drug dealer’s motion should be denied. The defense of double jeopardy does not apply if the second crime requires an element which is not an element of the first crime and vice versa. **In this case, the crime of conspiracy has an element which is not in the possession crime, namely the agreement to commit the crime with another person, and it is lacking an element, namely the actual commission of the crime.** (A) is incorrect because it is possible to commit two separate crimes by the same criminal conduct, such as conspiracy and the substantive offense. (B) is incorrect because it is the Double Jeopardy Clause of the Bill of Rights that affords protection against a subsequent prosecution, not the Due Process Clause. (C) is incorrect because even if a lesser included offense to the first crime were contained in a separate statute, the defense of double jeopardy would still apply.

Answer 107

The getaway driver should be found not guilty. ***_At common law, once a conspiracy has been entered into, each conspirator, by virtue of her participation in the conspiracy, may be charged with “aiding and abetting” the commission of crimes by her co-conspirators and therefore may be liable for those crimes as an accomplice._*** **Even if the conspirator did not have the sufficient mental state for accomplice liability, a separate doctrine provides that each conspirator may be liable for the reasonably foreseeable crimes of _all other co-conspirators that were committed in furtherance of the conspiracy._** However, in the instant case, the getaway driver did not know of the theft of the cocaine, and, as a result, would not have the requisite mental state as an accomplice. The conspiracy doctrine discussed above also would not apply, as the crime of possession of cocaine with the intent to deliver would neither be in furtherance of the burglary nor a reasonably foreseeable result of the burglary. (A) is incorrect because it is too broad a statement. A conspirator is not criminally liable for all crimes resulting from the conspiracy. As discussed above, to be charged with a crime that grew out of the conspiracy, the additional crime must be both foreseeable and committed in furtherance of the conspiracy. (B) is also incorrect. Although a bit of a close call, the crime of possessing cocaine with the intent to distribute is a separate act from burglary, and a crime involving drug possession is not a crime ordinarily arising out of this type of burglary. It is this lack of foreseeability that makes (B) an incorrect choice. Finally, (D) is incorrect. The criminal liability of a conspirator for acts of a co-conspirator arises under the theory of accomplice liability. An accomplice need not have performed the criminal act himself to be held criminally liable for the criminal act of the principal. Thus, the fact that the actual burglar meets the definition of a principal is irrelevant.

Answer 108

The driver’s motion to suppress should be sustained. _Because stopping a car is a seizure for Fourth Amendment purposes, police generally may not stop a car unless they have at least a reasonable suspicion that a law has been violated._ **_Even absent that suspicion, police may set up roadblocks to stop cars if_** **_(i) the cars are stopped on the basis of some neutral, articulable standard, and_** **_(ii) the stops are designed to serve a purpose closely related to a particular problem arising from automobiles and their mobility. [See Indianapolis v. Edmund (2000)]!!!!!!!!!!_** ***_The use of a checkpoint to detect evidence of ordinary criminal wrongdoing unrelated to use of cars or highway safety is unconstitutional._*** Here, the police did not have a reasonable suspicion that the driver had violated any law, and the driver was not stopped on a neutral basis at a roadblock set up to detect problems related to automobiles. The driver was stopped “randomly” to detect general criminal activity. Thus, the stop was improper and thus the marijuana would be inadmissible under the exclusionary rule. (B) is wrong because if the car had been properly stopped, the use of the flashlight would not have been improper. (C) is wrong because the established police plan cannot overcome the constitutional objection to the random stopping. (D) is wrong because the stopping of the car was improper. If it had been proper, the subsequent search would have been proper because it would have been based on probable cause.

Answer 109

The defendant may be convicted of first degree murder because he was not justified in killing the neighbor and it appears that he did have time to premeditate and deliberate on the murder. The facts here point to involuntary intoxication as a possible defense. Intoxication is involuntary if it results from the taking of an intoxicating substance without knowledge of its nature, under direct duress imposed by another, or pursuant to medical advice. **Such intoxication is treated as mental illness, in which case the defendant is entitled to acquittal if, because of the intoxication, the defendant meets the applicable test for insanity.** Here, the defendant took the medicine without knowing of its hallucinatory properties and pursuant to the advice of his doctor. Thus, the defendant’s resulting state of hallucination will be considered to be involuntary intoxication. We are told that the applicable test for insanity is the ***_M’Naghten rule. Pursuant to 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: (i) know the wrongfulness of his actions; or (ii) understand the nature and quality of his actions._*** ***_If a defendant suffers from delusions (false beliefs), it must be determined whether his actions would have been criminal if the facts had been as he believed them to be._*** ***_Here, the defendant falsely believed that his neighbor was spreading false rumors about him. Had this delusion been accurate, the defendant obviously would not have been legally entitled to murder the neighbor._*** **Nothing in the facts suggests that the medication prevented him from knowing _what he was doing or knowing that it was wrong._** As a result, the M’Naghten rule would not allow for acquittal based on an insanity defense, which in turn would also negate the viability of an involuntary intoxication defense. Thus, (D) is correct, and (A) and (B) are incorrect. (C) is incorrect because, as explained above, the intoxication was involuntary even though the defendant voluntarily ingested the drugs.

Answer 110

The cocaine is inadmissible because it is the product of an unconstitutional search of the defendant. The Fourth Amendment prohibition against unreasonable searches and seizures applies to an investigatory detention and any type of search during the detention. Under Terry v. Ohio (1968), police have the authority to briefly detain a person for investigative purposes, even if they lack probable cause to arrest, as long as they have an articulable and reasonable suspicion of criminal activity. However, an investigatory detention does not create the right to search the person being detained. The officer may conduct a protective frisk (a patdown of the outer clothing) only if he reasonably believes that the person may be armed and presently dangerous. A full search of the person is only permitted if the detention establishes probable cause for a lawful arrest. In this case, the officer may have had sufficient grounds to detain the defendant and to ask him questions. Whether police have a reasonable suspicion—supported by articulable facts—of criminal activity is judged by the totality of the circumstances. [United States v. Sokolow (1989)] Here, the defendant’s conduct may have made the officer reasonably suspicious that he was smuggling drugs. However, after finding nothing in his search of the bag, and having no reason to believe that the defendant was armed and presently dangerous, the officer had neither probable cause nor reasonable suspicion to either search or frisk the defendant. Hence, under the exclusionary rule, the cocaine obtained as a result of the unlawful search of the defendant is inadmissible against him. (A) is incorrect because there is no general emergency exception justifying searches without probable cause, and the search at issue here had none of the exigent circumstances that the Supreme Court has relied on in prior cases to permit warrantless searches (such as the hot pursuit of a fleeing felon or the evanescent nature of the evidence). (B) is incorrect because the scope of a search permitted by consent is limited by the scope of the consent. The defendant’s consent to the search of his bag created no implication of a consent to a body search. (D) is incorrect because the officer had the defendant’s consent to search his bag. Police may conduct a valid and warrantless search if they have a voluntary consent to do so from the individual being searched; the defendant’s consent here satisfies these requirements.

Answer 111

The cocaine is inadmissible because it is the product of an unconstitutional search of the defendant. The Fourth Amendment prohibition against unreasonable searches and seizures applies to an investigatory detention and any type of search during the detention. Under Terry v. Ohio (1968), police have the authority to briefly detain a person for investigative purposes, even if they lack probable cause to arrest, as long as they have an articulable and reasonable suspicion of criminal activity. However, an investigatory detention does not create the right to search the person being detained. The officer may conduct a protective frisk (a patdown of the outer clothing) only if he reasonably believes that the person may be armed and presently dangerous. A full search of the person is only permitted if the detention establishes probable cause for a lawful arrest. In this case, the officer may have had sufficient grounds to detain the defendant and to ask him questions. Whether police have a reasonable suspicion—supported by articulable facts—of criminal activity is judged by the totality of the circumstances. [United States v. Sokolow (1989)] Here, the defendant’s conduct may have made the officer reasonably suspicious that he was smuggling drugs. However, after finding nothing in his search of the bag, and having no reason to believe that the defendant was armed and presently dangerous, the officer had neither probable cause nor reasonable suspicion to either search or frisk the defendant. Hence, under the exclusionary rule, the cocaine obtained as a result of the unlawful search of the defendant is inadmissible against him. (A) is incorrect because there is no general emergency exception justifying searches without probable cause, and the search at issue here had none of the exigent circumstances that the Supreme Court has relied on in prior cases to permit warrantless searches (such as the hot pursuit of a fleeing felon or the evanescent nature of the evidence). (B) is incorrect because the scope of a search permitted by consent is limited by the scope of the consent. The defendant’s consent to the search of his bag created no implication of a consent to a body search. (D) is incorrect because the officer had the defendant’s consent to search his bag. Police may conduct a valid and warrantless search if they have a voluntary consent to do so from the individual being searched; the defendant’s consent here satisfies these requirements.

Answer 112

The employee is guilty of none of the listed crimes. To be guilty of burglary, a person must break and enter the dwelling of another at nighttime with the intent to commit a felony therein. Attempted burglary requires the same specific intent. Because the employee merely intended to retrieve what she believed was her own property, she did not intend to commit a felony. Thus, (A) and (B) are wrong. Likewise, (C) is wrong because the employee lacked the intent necessary for larceny. Larceny is the taking and carrying away of tangible personal property of another by trespass, with intent to permanently deprive the person of his interest in the property. Since the employee believed the computer was her own, she lacked the intent to permanently deprive the consultant of his interest in the computer. Thus, (D) is correct.

Answer 113

**_A co-defendant's confession is inadmissible even when it interlocks with the defendant's own confession, which is admitted._** If the man refused to take the stand and subject himself to cross-examination, his confession was not properly admitted because it violated the woman's Confrontation Clause rights. (A) is incorrect because the fact that the man's confession incriminates the woman more than her own confession is not relevant. Just the interlocking nature of the man's confession with the woman's confession makes it more damaging by making it harder for the woman to claim that her confession was false.

Answer 114

Thus, if the state had abolished strict liability crimes, the bartender's mistake would be a defense regardless of the mental state required for the crime of serving alcohol to a minor.

Answer 115

... still valid _but evidence of any crime found in the home cannot be used against the owner of the home because it is the fruit of an unconstitutional search._

Answer 116

(i) she owned or had a right to possession of the place searched, (ii) the place searched was in fact her own home, whether or not she owned or had a right to possession of it, or (iii) she was an overnight guest of the owner of the place searched.

Answer 117

(i) an agreement between two or more persons; (ii) an intent to enter into an agreement; and (iii) an intent to achieve the objective of the agreement. In addition, most states require an act in furtherance of the conspiracy, although an act of mere preparation will usually suffice.

Answer 118

the crimes were committed in furtherance of the objectives of the conspiracy AND the crimes were foreseeable. Each member of a conspiracy is liable for the crimes of all other conspirators if: (i) such crimes were committed in furtherance of the objectives of the conspiracy; and (ii) such crimes were a natural and probable consequence of the conspiracy.

Answer 119

**withdraws from the conspiracy by performing an affirmative act that notifies all members of the conspiracy in time for them to have the opportunity to abandon their plans.**

Answer 120

A jury can infer the required general intent merely from the doing of the act. It is not necessary that evidence specifically proving the general intent be offered by the prosecution. However, a jury cannot infer that the defendant acted with specific intent by the doing of the act. (That said, the manner in which an act is done may provide circumstantial evidence that the defendant acted with specific intent.)

Answer 121

Malice is established by showing that the defendant recklessly disregarded an obvious or high risk that a particular harmful result would occur. Negligence is established by showing that the defendant failed to be aware of a substantial and unjustifiable risk that circumstances existed or a result would follow, and such failure constituted a substantial deviation from the standard of care that a reasonable person would exercise under the circumstances.

Answer 122

recklessly disregarded an obvious or high risk that the particular harmful result would occur.

Answer 123

Larceny is the taking and carrying away of tangible personal property of another by trespass, with intent to permanently (or for an unreasonable time) deprive the person of her interest in the property. ***_The taking must be without the consent of the person in possession of the property. If such consent is induced by a misrepresentation of a past or existing fact, the consent is not valid._*** The resulting larceny is called larceny by trick. i.e. Here, the defendant obtained possession of the baseball with the owner’s consent. However, this consent was obtained by means of the defendant’s misrepresentation about friends visiting. This was a false statement of an existing fact, made with the intent that his neighbor rely on the statement, and the misrepresentation induced his neighbor’s consent. _At the time of this taking, the defendant intended to deal with the baseball in a manner that involved a substantial risk of damage or loss. This suffices as intent to permanently deprive._

Answer 124

**_It is possible to commit larceny**_ _**of your own property**_ _**if another person, such as a bailee, has a superior right to possession of the property at that time._** i.e. **_Because the mechanic had a right to possession of the van until he was paid, the student committed larceny when he had his friend take the van without the mechanic’s consent._**

Answer 125

**A warrantless search can be conducted following an arrest that violates state law.** **The police may conduct a search incident to an arrest whenever they arrest a person, even if the arrest is invalid under state law, as long as the arrest was constitutionally valid (e.g., reasonable and based on probable cause).**

Answer 126

The court should deny the motion to suppress because the police had a warrant to search the boyfriend’s home. The boyfriend’s expectation of privacy extended only to his own home, which was searched under a warrant. He does not have standing to assert a Fourth Amendment claim regarding the search of his girlfriend’s apartment because her apartment was not his home, and he did not own it or have a right to possession of it.

Answer 127

The motion to suppress should be denied because a valid search warrant was obtained. A search warrant must be based on probable cause. Here, there was sufficient information for a judge to conclude that there was probable cause to believe that evidence of a crime would be found in the sophomore’s room. Thus, the warrant was properly obtained. (A) is wrong because _the sophomore had only a limited expectation of privacy in a dormitory’s lounge. Also, even if his privacy had been invaded, any invasion here was done by private persons, not the state, and thus would not prevent introduction of the evidence._

Answer 128

The customer will be successful. To be reasonable under the Fourth Amendment, most searches must be pursuant to a warrant. The warrant must describe with reasonable precision the place to be searched and the items to be seized. **A search warrant does not authorize the police to search persons found on the premises who are not named in the warrant.** In Ybarra v. Illinois (1979), a case based on similar facts, the Supreme Court held that _“each patron of the tavern had an individual right to be free of unreasonable searches, **and presence at a location subject to search does not negate the requirement of probable cause to search the person present.”**_

Answer 129

whether the suspect knows this person is employed by the police.

Answer 130

an involuntary confession cannot be used to impeach.

Answer 131

(i) length of the delay, (ii) reason for the delay, (iii) whether the defendant asserted his right, and (iv) prejudice to the defendant.

Answer 132

Fifth Amendment right to remain silent does not afford a privilege to refuse to incriminate others.

Answer 133

be cross-examined at trial on that failure in an effort to show that it is a recent fabrication. In

Answer 134

The force or threats may be used either to gain possession of the property **_or_** to retain possession immediately after such possession has been accomplished. If force is used, it must be sufficient to overcome the victim’s resistance. If threats of immediate death or serious physical injury are used, they must be threats to the victim, a member of her family, a relative, or a person in her presence at the time. The property must be taken from the victim's person or presence. "Presence" means some location reasonably close to the victim, but it need not be taken from the victim’s person. Property in other rooms of the house in which the victim is located is in her "presence." A threat to do damage to property will not suffice—with the exception of a threat to destroy the victim’s dwelling house.

Answer 135

The defendant may be sentenced under both statutes. **_Double jeopardy does not prohibit the imposition of cumulative sentences for two or more statutorily defined offenses specifically intended by the legislature to carry separate punishments, even though constituting the “same” crime under the Blockburger test_** (i.e., each offense does not require proof of some additional fact that the other does not) when the punishments are imposed at a single trial. Absent a clear intention, it is presumed that multiple punishments are not intended for offenses constituting the same crime under Blockburger. Here, it is clear that Congress, in enacting the statute, intended that certain offenses, such as interstate distribution of cocaine, be subject to separate punishments.

Answer 136

The court should suppress all of the evidence because it was the fruit of an unconstitutional arrest. As a general rule, the police must have an arrest warrant to effect an arrest of an individual in his own home. There is no general “emergency” exception to the warrant requirement. _While police officers in hot pursuit of a fleeing felon or trying to prevent the destruction of evidence may sometimes make a warrantless search and seizure, the burden is on the government to show that one of those exceptions applies._ Here, the police did not arrive at the defendant’s house in hot pursuit of the defendant, and there was no indication that the defendant might be destroying the money or other evidence; i.e., there were no circumstances precluding them from keeping the house under surveillance while they obtained a warrant. Hence, the arrest was unconstitutional. **Because an arrest constitutes a seizure under the Fourth Amendment, the exclusionary rule applies, and evidence that is the fruit of the unconstitutional arrest may not be used against the defendant at trial.** Here, all of the evidence was seized without a warrant, and none of the other exceptions to the warrant requirement are applicable. While the protective sweep that turned up the money and gun probably would have been within the bounds of a search incident to an arrest because the police had reason to believe an armed accomplice was present, the arrest in violation of the Fourth Amendment makes the search unlawful. Similarly, while the bags of marijuana were discovered in plain view, the police have to be legitimately on the premises for that exception to apply.

Answer 137

has a constitutional obligation to conduct further inquiry and determine whether in fact the defendant is incompetent. If the defendant is tried and convicted but it later appears that he was incompetent to stand trial, the judge’s failure to raise the issue or to request a determination of competency does not constitute a waiver of the competency issue. [Pate v. Robinson (1966)]. The trial judge has a duty to conduct an independent inquiry if there is evidence that the defendant may not be competent to stand trial. This would be true even if the defendant were represented by counsel.

Answer 138

The former student’s best argument for preventing the cocaine from being admitted into evidence is that his confession was not voluntary. This question is difficult because each of the choices appears to present a good argument for the former student. With regard to (A), the search of the current student’s dorm room appears to be an unreasonable search under the Fourth Amendment. However, a person’s Fourth Amendment rights against unreasonable search and seizure may be enforced by the exclusion of evidence only at the instance of someone whose own protection was infringed by the search and seizure. Here, the former student cannot assert a possessory interest or reasonable expectation of privacy in the current student’s dorm room. Thus, the former student cannot successfully exclude the cocaine on the ground that it was seized in violation of the Fourth Amendment. (B) is incorrect because arrest warrants are usually required only for arrests made in the person’s home. Police generally do not need to obtain a warrant before arresting a person in a public place, even if they have time to get a warrant, as long as the arrest is based on probable cause. Here the police had probable cause to arrest the former student, and because he was arrested on the grounds of the campus, the failure of the police to obtain an arrest warrant will be of no help to him. Choices (C) and (D) both focus on improper conduct during the former student’s interrogation, but (C) is better because the former _student will have a better chance of invoking the exclusionary rule if the confession is involuntary_. **For confessions to be admissible, the Due Process Clause of the Fourteenth Amendment requires that they be voluntary.** **While voluntariness is a fact question that is assessed by looking at the totality of the circumstances, the duration and manner of the police interrogation here indicate that the confession probably was the result of actual coercion. If the confession is found to be involuntary, the former student can invoke the exclusionary rule to exclude the cocaine as “fruit of the poisonous tree.” *_In contrast to an involuntary confession, a confession obtained without Miranda warnings, as long as the failure to warn was not purposeful, may not be sufficient to justify excluding the nontestimonial “fruits” of the confession._*** [See United States v. Patane (2004)] Thus, the involuntariness of the confession, rather than the absence of Miranda warnings, is the best argument for excluding the cocaine.

Answer 139

**The court should sustain the objection because the police did not honor the woman’s request for an attorney.!!!!!!!!!!!!!!!** At any time prior to or during a custodial interrogation, the accused may invoke a Miranda (Fifth Amendment) right to counsel. **If the accused invokes this right, all questioning must cease until the accused is provided with an attorney or initiates further questioning himself.** Thus, the police questioning of the woman about the robbery was improper, and she can have her statements excluded. (A) is incorrect. **_After receiving Miranda warnings, if an accused invokes the right to remain silent, the police cannot badger the accused. However, courts have ruled that if the police scrupulously honor the request, they can rewarn the accused and later resume questioning, at least about a different crime. Here, however, the accused did not simply invoke the right to remain silent, but rather requested an attorney. After such a request, as indicated above, all questioning must cease._** (B) is incorrect because the accused does _not need to reassert the right to an attorney_; all questioning must stop until the accused is provided an attorney or resumes the questioning herself. (D) is incorrect. It is stating the rule for impeachment—a confession obtained in violation of a defendant’s Miranda rights but otherwise voluntary may be used against the defendant for purposes of impeachment, but there is no such rule for use of the confession for other purposes.

Answer 140

The confession is admissible with the judge’s limiting instruction. **Where two persons are tried together and one has given a confession implicating the other, the general rule is that the Sixth Amendment right to confront adverse witnesses prohibits the use of such a statement.** _This problem arises because of the inability of the nonconfessing defendant to compel the confessing co-defendant to take the stand for cross-examination at their joint trial._ _As exceptions to the general rule, the statement may be admitted if:_ _(i) all portions of the statement referring to the other defendant can be eliminated (so that there is no indication of that defendant’s involvement);_ _(ii) the confessing defendant takes the stand and subjects himself to cross-examination with respect to the truth or falsity of what the statement asserts; or_ _(iii) the confession of the nontestifying co-defendant is being used to rebut the defendant’s claim that his confession was obtained coercively, in which case the jury must be instructed as to the purpose of the admission._ _The accomplice’s confession, which the prosecution seeks to introduce into evidence, implicates the defendant in the commission of the crimes charged._ Consequently, introduction of this confession raises a problem based on the right of confrontation. However, given that the judge will issue the limiting instruction, the confession is admissible. (D) is therefore correct and (A) is incorrect. (B) and (C) are incorrect because neither of those conditions is necessary for the confession to be admitted as long as the judge issues a limiting instruction, as discussed above.

Answer 141

**The second conviction will not stand.!!!!** **_The Double Jeopardy Clause prohibits retrying a defendant whose conviction has been reversed on appeal for any offense more serious than that for which she was convicted at the first trial._** **This right is violated by retrial for a more serious offense, even if at the second trial the defendant is only convicted of an offense no more serious than that for which she was convicted at the first trial.**

Answer 142

The judge’s failure to determine whether the woman understood her right to trial by jury indicates that her guilty plea does not satisfy the constitutional requirement that it be “voluntary and intelligent.” **_A guilty plea is a waiver of the Sixth Amendment right to a jury trial.!!!!!!!!!!!!!!!!!!!!_** To be a valid waiver, the judge must determine on the record that the guilty plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. To ensure that this is the case, the judge should make sure that the defendant is informed of _the nature of the charge to which the plea is offered, of the maximum possible penalty, that she has a right not to plead guilty, and that by pleading guilty she waives her right to a trial._ If the judge did not determine whether the woman understood that she had a right to a trial by jury, her plea will not be a sufficiently intelligent choice to satisfy the constitutional standard, and therefore will not be immune from a post-sentence attack on it. (A) is incorrect because the woman had no legitimate grounds for her motion to dismiss for violation of her right to a speedy trial. _The Sixth Amendment right to a speedy trial does not attach until the defendant has been arrested or charged. Pre-arrest delays do not violate this standard, nor do they violate general due process requirements unless they were in bad faith and prejudice the defendant._ Otherwise, the only limitation on pre-arrest delay would be the statute of limitations for the particular crime. Thus, the failure of the judge to rule on the motion to dismiss would not be a good argument for setting aside the woman’s guilty plea.