Crim Law MBE Flashcards
Four hours into a defendant’s assault trial, the lawyers gathered in the judge’s chambers to discuss an evidentiary issue. While there, the judge received a phone call from his wife telling him that her mother had suddenly died. Without asking the lawyers what they wanted to do, the judge brought the lawyers back into the courtroom, declared a mistrial, excused the jury, and rushed home to his wife.
A new jury was impaneled the next day before a second judge.
The defendant has objected to the second trial on double jeopardy grounds.
Would the second trial violate the prohibition against double jeopardy?
Yes, because there was no manifest necessity for a mistrial.
An exception to double jeopardy exists if there is a manifest necessity for a mistrial. United States v. Perez, 22 U.S. 579 (1824). Examples of manifest necessity include a hung jury or misconduct by the defendant.
D is correct. In this case, jeopardy had attached because the jury was empaneled and sworn in. The death of the judge’s wife’s mother does not amount to a manifest necessity to abort the original trial. Thus, no exception applies and a second trial would violate the prohibition against double jeopardy.
A man entered the police station and announced that he wanted to confess to a murder. The police advised the man of his Miranda rights, and the man signed a written waiver. The man described the murder in detail and pinpointed the location where a murder victim had been found a few weeks before. Later, a court-appointed psychiatrist determined that the man was suffering from a serious mental illness that interfered with his ability to make rational choices and to understand his rights and that the psychosis had induced his confession.
The man’s confession is
admissible, because there was no coercive police conduct in obtaining the man’s statement.
C: inadmissible, because the man’s confession was a product of his mental illness and was therefore involuntary. The Court in Connelly held that a confession is not involuntary just because it is made as a result of mental illness.
In a trial of a defendant for armed bank robbery, the prosecutor presented overwhelming evidence of guilt. Three tellers identified the defendant as the robber, a latent fingerprint found on the bank counter linked the defendant to the scene, and bank money had been found in the defendant’s car. The police had arrested the defendant immediately after the robbery, as the defendant was driving away from the bank.
When the prosecution rested its case, the judge directed the jury to return a verdict of guilty. The defense attorney did not object at the time. The jury withdrew, discussed the case, and agreed to a guilty verdict. The jury returned to the courtroom and announced the guilty verdict. The defense attorney then voiced an objection to the judge’s having directed the verdict. The court overruled the objection and sentenced the defendant to 20 years in prison.
On appeal, what should the appellate court do?
D. Reverse the conviction, because the judge’s action in directing the verdict denied the defendant his constitutional right to a trial by jury.
D is correct. A defendant’s right to an impartial jury includes a jury free from unfair influences or pressures, which the judge plainly did here. By directing the jury to come back with a guilty verdict, the judge rendered the jury no longer impartial. As a result, the defendant’s conviction should be reversed on the grounds that he was denied his constitutional right to a trial by jury.
A federal grand jury was investigating a corporation whose tanker ship had spilled crude oil into environmentally sensitive waters. The grand jury issued a subpoena requiring the corporation to produce all emails and internal documents regarding the corporation’s knowledge of the risks of an oil spill. The corporation has objected, citing its Fifth Amendment privilege against self-incrimination.
Can the subpoena be enforced?
C - Yes, because a corporation has no Fifth Amendment privilege.
The Fifth Amendment protects persons from being compelled to give self-incriminating testimony by the government. This privilege is personal and individual; it does not apply to corporations. Here, the entity asserting the Fifth Amendment privilege against self-incrimination is a corporation, which is not protected and cannot assert it.. In this question’s fact pattern, the grand jury has issued a subpoena for emails and internal documents, which are indisputably business documents. As explained above, the Fifth Amendment does not protect the contents of business records because they are not compelled statements.
B is incorrect. Use and derivative use immunity is a form of protection for witnesses from the prosecution’s use of the witness’s testimony against him. The corporation is asserting a Fifth Amendment privilege to avoid producing emails and documents. Therefore, it is not applicable to the facts here.
In which of the following situations is the defendant most likely to be convicted, even though he did not intend to bring about the harm that the statute defining the offense is designed to prevent?
B The defendant struck the victim in the face with a baseball bat, intending to inflict a serious injury. The victim died after being hospitalized for three days. The defendant is charged with murder.
B is correct. Although the defendant intended only to inflict serious bodily injury, he can be convicted of murder. Malice aforethought can be shown by a defendant’s intent to inflict great bodily injury, so the defendant in this answer choice can be properly convicted of murder.
A man was charged with first-degree murder. Two lawyers were appointed to represent him because the prosecution planned to seek the death penalty. On the first day of trial, the air-conditioning malfunctioned in the courtroom, so the judge directed that the selection of the jurors take place in his chambers. Because of the large number of potential jurors, the judge directed that only one lawyer for the prosecution and one for the defense participate in the jury selection process. The defendant remained in the courtroom during the questioning of the jurors. Once the jury was selected, the trial was postponed until the next day, when the air-conditioning was again working.
Did the court’s jury selection process violate the defendant’s federal constitutional rights?
Yes, because jury selection is a critical stage at which a defendant is entitled to be present.
The issue here is whether the defendant had the right to be present for jury selection. FRCP 43 ensures that the defendant has the right to be present at every stage of trial following the initiation of formal proceedings, which includes jury selection. Because the defendant was not present in the judge’s chambers for jury selection, his constitutional rights were violated.
On October 22, a police officer submitted an application for a warrant to search a particular address for cocaine. In the application, the officer stated under oath that he believed there was cocaine at that location because of information supplied to him on the morning of October 22 by an informant. He described the informant as a cocaine user who had previously supplied accurate information concerning the use of cocaine in the community and summarized what the informant had told him as follows: the previous night, October 21, the informant was in the defendant’s house at the particular address. The defendant gave her cocaine. She also saw three cellophane bags containing cocaine in his bedroom.
The warrant was issued and a search of the address was conducted on October 22. The search turned up a quantity of marijuana but no cocaine. The defendant was arrested and charged with possession of marijuana. The defendant moved to suppress the use of the marijuana as evidence contending that the informant was not in the particular address on October 21 or at any other time.
After hearing the evidence, the judge concluded that the statement in the application attributed to the informant was incorrect, and the informant knowingly lied to the police officer. The judge also concluded that the police officer knew the informant was lying.
Based on these conclusions, the judge should grant the motion to suppress
D because the police officer knew the statement was false.
Even if the information included in a search warrant is incorrect, the evidence seized pursuant to the search warrant will not be excluded from evidence unless there is evidence that the officer knew the information was false.
The exclusionary rule is meant to prevent law enforcement officers from acting improperly, but if the officer acted in good faith reliance on the warrant, the evidence will not be suppressed. Thus, because the police officer knew that the warrant contained false information, the motion to suppress will be granted.
Question
A bartender is charged with the statutory offense of “knowingly violating a regulation of the State Alcoholic Beverage Control Board” and that he knowingly violated regulation number 345-90 issued by the State Alcoholic Beverage Control Board. That regulation prohibits the sale of alcoholic beverages to any person under the age of 18 and also prohibits the sale of any alcoholic beverage to a person over the age of 17 and under the age of 22 without the presentation of such person’s driver’s license or other identification showing the age of the purchaser to be 18 or older.
The evidence showed that the bartender worked in a tavern and sold a bottle of beer to a person who was 17 years old and that the bartender did not ask for or see the purchaser’s driver’s license or any other identification.
Which of the following, if found by the jury, would be of the most help to the bartender?
D. The bartender mistakenly believed the purchaser to be 24 years old.
When an MBE question provides a statute, a stringent application of the statute is necessary over common law.
일반적으로는 selling alcohol= strict liability crime 이지만 여기서는 아니다
D is correct. This answer provides the bartender’s best argument because the statute requires “knowledge,” and if the jury finds that the bartender mistakenly believed the purchaser to be 24 years-old, then he did not “knowingly” violate the regulation. Believing the purchaser was 24 would negate the possibility that he knowingly sold an alcoholic beverage to a person under the age of 18 or that he knowingly sold an alcoholic beverage between 17 and 22 without the presentation of identification.
A store owner whose jewelry store had recently been robbed was shown by a police detective a photograph of the defendant, who previously had committed other similar crimes. The store owner examined the photograph and then asked the detective whether the police believed that the man pictured was the robber. After the detective said, “We’re pretty sure,” the store owner stated that the man in the photograph was the one who had robbed her.
The defendant was indicted for the robbery. His counsel moved to suppress any trial testimony by the store owner identifying the defendant as the robber.
Should the court grant the motion and suppress the store owner’s trial testimony identifying the defendant as the robber?
Yes, unless the prosecution demonstrates that the in-court identification is reliable.
The police using only one photograph and giving the witness a leading statement to confirm the suspect’s identity certainly was unduly suggestive and created a substantial likelihood of misidentification. However, the prosecution would still be able to prevail on a motion to suppress the testimony if it could show that the in-court identification by the store owner is reliable.
A police officer had a hunch, not amounting to probable cause or reasonable suspicion, that a man was a drug dealer. One day while the officer was on highway patrol, her radar gun clocked the man’s car at 68 mph in an area where the maximum posted speed limit was 65 mph. The officer’s usual practice was not to stop a car unless it was going at least 5 mph over the posted limit, but contrary to her usual practice, she decided to stop the man’s car in the hope that she might discover evidence of drug dealing. After she stopped the car and announced that she would be writing a speeding ticket, the officer ordered the man and his passenger to step out of the car. When the passenger stepped out, the officer saw that the passenger had been sitting on a clear bag of what the officer immediately recognized as marijuana. The officer arrested both the man and the passenger for possession of marijuana.
At their joint trial, the man and the passenger claim that their Fourth Amendment rights were violated because the officer improperly (1) stopped the car for speeding as a pretext for investigating a hunch rather than for the stated purpose of issuing a traffic ticket and (2) ordered the passenger to step out of the car even though there was no reason to believe that the passenger was a criminal or dangerous.
Are the man and the passenger correct?
No, as to both the stop of the car and the officer’s order that the passenger step out of the car.
If a police officer has probable cause to believe that a traffic law has been violated, the officer may stop the suspect’s vehicle even if the officer’s ulterior motive is to investigate a crime for which the officer lacks sufficient cause to make a stop. Whren v. United States, 517 U.S. 806 (1996). Additionally, when a police officer has lawfully stopped a vehicle, in the interest of officer safety, the officer may order the occupants (driver and passengers) out of the car.
A is correct. The man and the passenger are incorrect on both grounds. First, the law provides police officers with the option to make a pretextual lawful traffic stop. Here, the vehicle was technically driving over the speed limit, which establishes probable cause to believe a traffic law was being violated. This is permissible even though the officer’s ulterior motive was to investigate the drug crime. Second, ordering the passenger out of the car was constitutional because the officer’s safety may be in question, and thus ordering the passenger out was permissible.
A state statute provides as follows: “In all criminal cases, whenever the U.S. Constitution permits, the burden of proof as to a defense claimed by the defendant shall rest on the defendant, and the magnitude of the burden shall be as great as the Constitution permits.”
The same state defines the crime of forcible rape as follows: “Forcible rape consists of sexual penetration inflicted on an unconsenting person by means of force or violence. Consent of the victim is a complete defense to a charge of rape.”
At a defendant’s trial for forcible rape, he testified that the alleged victim had consented to having sexual intercourse with him.
How should the trial judge instruct the jury regarding the burden of proof on the issue of consent?
The prosecution must prove beyond a reasonable doubt that the victim did not consent.
Due process demands that the prosecution maintain the burden of proving each and every element of the charged offense beyond a reasonable doubt, including the lack of consent, as laid out in the statute.
A defendant was charged with assault and battery in a jurisdiction that follows the “retreat” doctrine, and he pleaded self-defense. At his trial, the evidence established the following: A man and his wife were enjoying a drink at a tavern when the defendant entered and stood near the door. The wife whispered to her husband that the defendant was the man who had insulted her on the street the day before. The husband approached the defendant and said, “Get out of here, or I’ll break your nose.” The defendant said, “Don’t come any closer, or I’ll hurt you.” When the husband raised his fists menacingly, the defendant pulled a can of pepper spray from his pocket, aimed it at the husband’s face, and sprayed. The husband fell to the floor, writhing in pain.
Should the defendant be convicted?
No, because he had no obligation to retreat before resorting to nondeadly force in self-defense.
Under the “retreat” doctrine, a non-aggressor has the duty to retreat from a threatening situation if he can do so with complete safety. A duty to retreat generally means that you can’t resort to deadly force in self-defense if you can safely avoid the risk of harm or death (by walking away, for example). If that’s not an option, you would be authorized to use deadly force in self-defense. A person has no duty to retreat unless he intends to use deadly force.
A is correct. The defendant, the non-aggressor, had no duty to retreat because he did not intend to use deadly force. The facts state that the defendant used pepper spray on the victim - a non-deadly force - and therefore, there was no need to retreat. The defendant had no obligation to retreat before resorting to the use of pepper spray.
After waiting until all the customers had left, a man entered a small grocery store just before closing time. He went up to the lone clerk in the store and said, “Hand over all the money in the cash register or you will get hurt.” The clerk fainted and struck his head on the edge of the counter. As the man went behind the counter to open the cash register, two customers entered the store. The man ran out before he was able to open the register drawer.
On this evidence the man could be convicted of
attempted robbery only and not assault
Assault requires the intent to create a reasonable apprehension of imminent bodily harm, or the intent to commit a battery, which is the intentional and unlawful use of force against another. Words alone are insufficient to create an apprehension of imminent harm.
C is correct
