CRIMINAL LAW

Question 1

The Model Penal Code defines acting purposefully as when:

A. The defendant is aware that his conduct is of that nature or that certain circumstances exist

B. It is the defendant’s conscious object to engage in certain conduct or cause a certain result

C. The defendant consciously disregards a substantial and unjustifiable risk that circumstances exist or that a prohibited result will follow, and this disregard constitutes a gross deviation from the standard of care that a reasonable person would exercise in the situation

D. The defendant fails to be aware of a substantial and unjustifiable risk that circumstances exist or a result will follow, and such failure constitutes a substantial deviation from the standard of care that a reasonable person would exercise under the circumstances

Answer 1

CORRECT ANSWER: B. It is the defendant’s conscious object to engage in certain conduct or cause a certain result

Question 2

An employee of the state government always received his state paycheck on the last workday of the month. The employee was not a good money manager, and just barely managed to make it from paycheck to paycheck each month. On the second to the last workday of the month, the employee had $45 in his checking account, and, needing to buy a birthday gift for his sister, he wrote a check to a gift boutique for $100. He knew that he would be receiving his paycheck the next day, so he could deposit the paycheck before the check would be sent to the bank.

However, unbeknownst to the employee, the state legislature was having a budget impasse. Because the state constitution prohibited any deficit spending, state employees were not paid as usual. Without a paycheck to deposit, the check written to the gift boutique was returned for insufficient funds. The merchant complained to the police, who arrested the employee and charged him under a statute that prohibited “issuing a check knowing that it is drawn against insufficient funds, with intent to defraud the payee of the check.”

What should be the outcome of the employee’s prosecution?

A. Not guilty, because the employee intended to deposit his paycheck the next day.

B. Not guilty, because it was reasonable for the employee to expect that he would receive his paycheck as usual.

C. Guilty, because the employee knew when he wrote the check that he did not have sufficient funds in his account to honor it.

D. Guilty, because reliance on a future source of income does not vitiate the employee’s violation of the statute when he wrote the check.

Answer 2

CORRECT ANSWER: A. Not guilty, because the employee intended to deposit his paycheck the next day.

Given that the employee intended to deposit his paycheck before the checks cleared, he lacked the intent to defraud required by the statute. The statute under which the employee is being prosecuted is a variation of the offense of false pretenses. As with false pretenses, the statute requires a specific intent, i.e., an intent to defraud. If the employee intended to deposit sufficient funds to honor the check before it reached his bank, then the employee did not intend to defraud the gift boutique. Thus, the employee lacked the specific intent that is a necessary element of the crime charged. (B) is incorrect because the employee’s expectation that he would receive his paycheck as usual need not have been reasonable. Even if such an expectation were unreasonable, the employee would not be guilty if he did not intend to defraud the payees, as required by the statute. (C) is incorrect because it would result in a verdict of guilty without requiring intent to defraud. Knowledge that the check was drawn against insufficient funds is just one element of the statute. The intent to defraud is also required to convict under the applicable statute. (D) also incorrectly assumes that the employee violated the statute merely by knowingly writing a check on insufficient funds. As explained above, the requisite intent to defraud is absent. Thus, there is no “violation” to be vitiated.

Question 3

A thief was passing by a house under construction when he noticed that the ladder being used by workers on the roof had copper braces supporting the rungs. After making sure that the workers on the roof could not see him, the thief used pliers that he had in his pocket to remove all of the copper braces that he could reach from the ground. A short time later, a worker climbed down the ladder and it collapsed. He fell to the ground and severely injured his back. The thief was apprehended a few hours later trying to sell the copper for scrap. A statute in the jurisdiction makes it a felony for “maliciously causing serious physical injury to another.” The thief was charged with malicious injury under the statute and was also charged with larceny. After a jury trial in which the above facts were presented, he was convicted of both charges.

If he appeals the conviction for the malicious injury charge on grounds of insufficient evidence, how should the court rule?

A. Affirm the conviction, because the thief was engaged in criminal conduct at the time of the act that resulted in the injury.

B. Affirm the conviction, because the jury could have found that the thief acted with malice.

C. Reverse the conviction, because there was no evidence that the thief intended to injure anyone.

D. Reverse the conviction, because there was no evidence that the thief bore any malice towards the workers on the roof.

Answer 3

CORRECT ANSWER: B. Affirm the conviction, because the jury could have found that the thief acted with malice.

The court should affirm the thief’s conviction. Crimes imposing a mens rea of malice generally do not require the proof of intent that specific intent crimes require. It is sufficient if the defendant recklessly disregarded an obvious or high risk that the particular harmful result would occur. Here, the facts presented were sufficient to allow the jury to conclude that the thief knew of the probability that the ladder would collapse without the braces when someone climbed down it, and acted in reckless disregard of that risk by removing the braces. (A) is incorrect because the fact that the thief was committing larceny when he removed the braces does not establish malice for purposes of the malicious injury charge. Even if his conduct were otherwise legal, he could be liable for that charge if he acted with reckless disregard of the high risk of injury. (C) is incorrect because, as discussed above, it is generally not necessary to show an intent to injure for a crime requiring a mens rea of malice; reckless disregard of an obvious risk will usually suffice. (D) is incorrect because crimes requiring a mens rea of malice do not refer to malice in the dictionary sense; a showing of ill will or hatred of the victim is not required.

Question 4

The defendant and the victim got into a minor verbal altercation, concluding with the defendant lightly shoving the victim. The victim lost his balance and struck his head on the pavement, causing serious bodily injury. The defendant was charged with battery, which is defined in the jurisdiction as “purposely or knowingly causing serious bodily injury to another.”

Should the defendant be convicted of battery?

A. No, because the defendant did not know that the victim would be seriously injured.

B. No, because the defendant did not strike a serious blow to the victim.

C. Yes, because the defendant purposely shoved the victim.

D. Yes, because the victim suffered serious bodily injury.

Answer 4

CORRECT ANSWER: A. No, because the defendant did not know that the victim would be seriously injured.

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. (D) is incorrect for much of the same reason-the state of mind requirement also applies to the result, as discussed above. The injury must have been purposely or knowingly caused, and that concept is not contained within choice (D).

Question 5

____________ is an element of __________.

A. Intent to defraud; false pretenses

B. Obtaining title; larceny by trick

C. Trespass; false pretenses

D. Trespass; embezzlement

Answer 5

CORRECT ANSWER: A. Intent to defraud; false pretenses.

Intent to defraud is an element of false pretenses. The offense of false pretenses generally consists of: (i) obtaining title; (ii) to the property of another; (iii) by an intentional (or, in some states, knowing) false statement of past or existing fact; (iv) with intent to defraud the other.
Obtaining title is not an element of larceny by trick; rather with larceny by trick, the defendant merely obtains possession, not title.
Trespass is not an element of false pretenses or embezzlement. Embezzlement is the fraudulent conversion of the property of another by a person in lawful possession of the property.

Question 6

The difference between the crimes of larceny by false pretenses and larceny “by trick” is that:

A. For larceny by false pretenses, the victim must actually rely on the misrepresentation in giving up her property, but for larceny by trick, the misrepresentation need not induce the victim to give up her property.

B. For larceny by false pretenses, the victim intends to convey title, but for larceny by trick, the victim intends to convey only custody.

C. For larceny by false pretenses, the victim intends to convey only possession, but for larceny by trick, the victim intends to convey title.

D. For larceny by false pretenses, the misrepresentation need not induce the victim to give up her property, but for larceny by trick, the victim must actually rely on the misrepresentation in giving up her property.

Answer 6

CORRECT ANSWER: B. For larceny by false pretenses, the victim intends to convey title, but for larceny by trick, the victim intends to convey only custody.

False pretenses differs from larceny by trick in that title is obtained through false pretenses, but only custody of the property is obtained through larceny by trick. What is obtained depends upon what the victim intended to convey to the defendant.
For both crimes, the victim must actually be deceived by, or act in reliance on, the misrepresentation, and this must be a major factor (or the sole cause) of the victim passing title (larceny by false pretenses) or custody (larceny by trick) to the defendant

Question 7

The defendant’s neighbor owned an authentic major league baseball signed by Babe Ruth. The defendant asked if he could show it to some friends who were visiting. The neighbor agreed as long as he kept it in the display case, which the defendant promised to do. In fact, the defendant intended to use the ball in a pickup game. During the game, the ball was hit over the fence and into a yard with a guard dog, which had chewed up several other balls that had previously landed in the yard. The dog did the same to that ball. When the neighbor learned what happened to the ball, he pressed charges against the defendant.

If the defendant is convicted, he will most likely be found guilty of what crime?

A. Common law larceny.

B. Embezzlement.

C. False pretenses.

D. Larceny by trick.

Answer 7

CORRECT ANSWER: D. Larceny by trick.

The defendant is guilty of larceny by trick because he obtained possession of the baseball by means of a misrepresentation. 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. 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. Therefore, all the elements are in place for larceny by trick. (A) is not as good a choice as (D) because the taking in this case is better characterized as larceny by trick rather than larceny, given that the defendant induced his neighbor to consent to his taking possession of the baseball. (C) is incorrect because the defendant obtained only possession of the baseball, not title. False pretenses differs from larceny by trick in what is obtained. If the defendant obtains only possession of the property, the offense is larceny by trick, whereas obtaining of title means that false pretenses has been committed. What the victim intended to convey to the defendant is determinative. The neighbor intended only to let the defendant borrow the baseball for a short time, not to convey title to him. Consequently, the only thing the defendant obtained was possession of the baseball. Because title to the baseball was not obtained, there can be no conviction of false pretenses. Regarding (B), embezzlement is the fraudulent conversion of property of another by a person in lawful possession of that property. In embezzlement, misappropriation occurs while the defendant has lawful possession of the property, while in larceny, it occurs generally at the time the defendant obtains wrongful possession of the property. Here, as detailed above, the defendant’s taking of possession of the baseball was trespassory due to the manner in which he obtained consent to such possession. The crime of larceny was complete on the defendant’s taking possession with the requisite intent to permanently deprive. Thus, at the time the baseball was destroyed, the defendant had already misappropriated it and was not in lawful possession of it. As a result, there can be no conviction for embezzlement.

Question 8

A student and a few of his friends were making their way to spring break. Along the way, the old van that they were driving broke down. Not wanting to miss any part of spring break festivities, the student asked the mechanic on duty at the repair shop for a rush job. The mechanic provided the student with a repair estimate, and the student, on the basis of the estimate, authorized the repair and promised to pay when he came back to pick up the van. When the mechanic called the student to tell him that the van was repaired, the student, rather than paying for the repair, told one of his friends that the mechanic had agreed to finance the repair charges and that the only thing left to do was pick up the van in the garage’s parking lot. The student handed the friend a key to the van and told him to go pick the van up so that they could continue their trip to spring break. The friend did so.

The mechanic makes a criminal complaint against the student for larceny of the van. If the case is prosecuted, will the student likely be found guilty?

A. No, because it was the student’s van to begin with.

B. No, because the friend took the van.

C. Yes, because the friend took the van from the mechanic without the mechanic’s knowledge or permission.

D. Yes, because the student promised to pay the mechanic for his work when he came to get the van.

Answer 8

CORRECT ANSWER: C. Yes, because the friend took the van from the mechanic without the mechanic’s knowledge or permission.

The student will most likely be found guilty. Larceny is the taking and carrying away of the personal property of “another” with the intent to permanently deprive the other person of the property. 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. 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. (B) is wrong because a person can be guilty even though he did not personally engage in the behavior if he acts through an innocent agent. (D) is also incorrect. The student is guilty, but not for the reason stated in (D). He would be guilty even if he had not made the promise to pay for the van; he incurred an obligation to pay by having the repairs done.

Question 9

An art restorer, after attending art school for a number of years, secured a job restoring the paintings for an art museum. After several years on the job, the artist discovered that he could imitate the artwork of nearly any artist. He decided that he could make some extra money copying the artwork of up-and-coming artists, while staying away from more well-known artists to reduce his chance of getting caught.

An art collector searching for a painting by a new artist saw the restorer at an art fair selling various paintings, one of which appeared to be by the new artist. The restorer was selling the painting for $100. The collector thought that the price was very low and that the painting should probably sell for around $500, but she bought the painting anyway, giving the restorer $100 after the restorer confirmed that the painting was an original from the new artist. After taking it to an art appraiser for insurance purposes, she discovered that the painting was a forgery. However, she also discovered that the painting’s frame was worth about $125.

With which theft offense may the art restorer be charged?

A. Larceny by trick.

B. False pretenses.

C. Embezzlement.

D. No theft offense.

Answer 9

CORRECT ANSWER: B. False pretenses.

The art restorer has committed false pretenses because his misrepresentation concerning the authenticity of the painting induced the collector to convey title to the $100. The offense of 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. The art restorer falsely represented to the collector that the painting he sold her was an original from a new artist, intending that the collector would rely on such a misrepresentation by paying money for the painting. The collector, acting in reliance on this misrepresentation, conveyed to the art restorer title to the $100. Thus, all of the elements of false pretenses are present in the restorer’s dealings with the collector. Because the restorer has committed false pretenses, which is a theft offense, (D) is incorrect. Monetary loss on the part of the victim is not an element of the crime. Thus, although the lack of damages might prevent the collector from suing in civil court, the fact that the collector suffered no monetary loss from the crime is irrelevant for criminal law purposes. (A) is incorrect because the restorer obtained title to the $100 rather than mere possession. If a victim consents to someone’s taking possession of property, but such consent is induced by a misrepresentation, the consent is not valid. The resulting offense is larceny by trick. False pretenses differs from larceny by trick in what is obtained. If the victim intends to convey only possession of the property, the offense is larceny by trick. However, if the victim intends to convey title, the offense is false pretenses. Here, the collector intended to convey title to the $100, acting in reliance on the restorer’s false representation that the painting was an original. Because the restorer obtained title, the offense of which he can be convicted is false pretenses rather than larceny by trick. (C) is incorrect because embezzlement consists of the fraudulent conversion of property of another by a person in lawful possession of that property. In embezzlement, misappropriation of the property occurs while the defendant has lawful possession of it. Here, the restorer did not convert the $100 while he was in lawful possession of it; rather, he obtained title to the money by means of a misrepresentation. Because the restorer did not have lawful possession of the money, he has not committed embezzlement.

Question 10

A motorist drove home from work late one night, and fell asleep behind the wheel of his car. His car drifted across the middle of the road and struck another car. The other driver was killed instantly in the collision. Angered by the noise of the collision, a homeowner fired a gun out the window of his house at the car. The bullet struck and killed a bystander. Both the motorist and the homeowner were arrested and charged with common law murder.

Which of the defendants likely would be found guilty?

A. Both the motorist and the homeowner.

B. The motorist.

C. Neither the motorist nor the homeowner.

D. The homeowner.

Answer 10

CORRECT ANSWER: D. The homeowner.

The homeowner likely would be found guilty. At common law, murder was the unlawful killing of a human being with malice aforethought. Malice aforethought could be established with any one of the following states of mind: intent to kill; intent to cause serious bodily harm; the depraved heart killing (a reckless indifference to an unjustifiably high risk to human life); or the commission of a felony. The homeowner would be guilty of murder. Firing a gun out of his window at a car would demonstrate a reckless indifference to a high risk to human life. Thus, (B) and (C) are incorrect. It is unlikely that the motorist would be guilty of murder. While his action might be classified as negligent or even reckless, it would not represent a depraved heart (reckless indifference to life) state of mind. Thus, (A) and (B) are incorrect.

Question 11

The statutes of a state define the following crimes (with the most serious listed first):

First degree murder-Premeditated or intentional killing.

Felony murder-Killing while in the act of committing a common law felony.

Second degree murder-Killing with reckless disregard for the safety of others.

Manslaughter-Killing with adequate provocation or through criminal negligence.

A competitive camp counselor who was determined to have her team win a relay race decided to put a colorless and odorless drug into the other teams’ water bottles. The counselor wanted the other teams to become sick to their stomachs so that they could not run as fast in the race. The counselor knew that people could become very ill, or even die, if they consumed too large a quantity of the drug but she only intended to place a small amount in each water bottle. The day before the race, the counselor went into the nurse’s office and took a bottle of the drug. The next day she woke up early and went to the cafeteria to put small quantities of the drug into the other teams’ water bottles. She unintentionally put a large amount in a few of the water bottles. Several campers became extremely ill and one eventually died.

What is the most serious crime for which the counselor may be convicted?

A. First-degree murder.

B. Felony murder.

C. Second-degree murder.

D. Manslaughter.

Answer 11

CORRECT ANSWER: C. Second-degree murder.

The counselor may be convicted of second degree murder. Under the statute provided in the question, second degree murder is a killing committed with a reckless disregard for the safety of others. Here, the counselor consciously disregarded a substantial and unjustifiable risk that the drug she was placing in the water bottles could be seriously harmful or even fatal. Thus, the counselor may be convicted of second degree murder. (A) is wrong. The counselor could not be convicted of first degree murder because she lacked the necessary intent to kill; the counselor’s only intent was to make the other team’s members sick. (B) is wrong. The counselor cannot be convicted of felony murder because she did not commit a felony; a majority of jurisdictions would consider simple battery to be a misdemeanor. Furthermore, the felony generally must be independent of the killing. A battery (or aggravated battery) would not be considered independent of the conduct which kills (although it might be considered to be a valid basis for a manslaughter conviction). (D) is not as good an answer as (C). Although a jury could find that her actions were criminally negligent, resulting in manslaughter, a jury could also find that she acted with reckless disregard, resulting in second degree murder. Thus, given that the call of the question asks for the most serious crime for which the counselor could be convicted, (C) is correct.

Question 12

The victim owned a cottage in an ocean resort area. He stayed there only during the summer months, and left the cottage unoccupied during the balance of the year. The defendant, a resident of a neighboring cottage, was aware of this practice. For a change in his routine, however, the victim decided to spend a week at the cabin in the off-season. Unaware that the victim was occupying the cottage, the defendant decided to borrow a portable television set that he knew the victim kept in the cottage. To avoid being seen, he entered the cottage late at night, using a key under the front doormat. He found the television set, disconnected it, and headed for the rear of the house to leave. He opened the kitchen door and found the victim seated there in the dark, having a late night snack. Both men were startled and neither man recognized the other in the dark. The defendant assumed that the victim was a burglar, and was afraid that he might be armed. Trying to flee the kitchen as quickly as possible, the defendant dropped the television set in the middle of the kitchen floor. As the set hit the floor, the picture tube exploded with a loud noise. The noise so frightened the victim that he had an immediate heart attack and died.

If the defendant is charged with felony murder as the result of the victim’s death, what is his best defense?

A. He did not intend to kill the victim.

B. His only intent was to borrow the television set for a few days.

C. Larceny is not an inherently dangerous crime, and it was not being committed in an inherently dangerous manner.

D. The victim’s heart attack was an unforeseeable consequence of the defendant’s acts.

Answer 12

CORRECT ANSWER: B. His only intent was to borrow the television set for a few days.

The defendant’s best defense to felony murder is that he only intended to borrow the television set for a few days. By establishing this intent, the defendant will show that he did not have the intent to commit a felony and therefore cannot be guilty of felony murder. A killing (even if accidental) committed during the course of a felony is murder. Malice is implied from the intent to commit the underlying felony. To convict a defendant of felony murder, the prosecution must prove that he committed or attempted to commit the underlying felony. Here, the possible felonies being committed by the defendant, during which the victim’s death occurred, would be larceny and burglary. Burglary requires the intent to commit a felony within the dwelling, and larceny requires the intent to permanently deprive a person of his interest in property. If the defendant’s only intent was to borrow the victim’s television set for a few days, then the defendant lacked the intent to permanently deprive the victim of his interest in the set; i.e., the requisite intent for larceny is missing. Likewise, the absence of intent to steal the set would mean that, at the time of breaking and entering the cottage, the defendant did not intend to commit a felony therein. Consequently, the defendant is not guilty of burglary. Because under these circumstances no felony would have been attempted or committed, it cannot be shown that the death of the victim occurred during the commission of a felony. Therefore, the defendant would not be guilty of felony murder. (D) is tempting, because generally a conviction of felony murder requires that the death must have been a foreseeable result of commission of the felony. However, some courts do not apply a foreseeability requirement and require only that the underlying felony be malum in se. Furthermore, even those courts applying a foreseeability requirement have been willing to find most deaths occurring during the commission of a felony to be foreseeable. Here, the defendant believed that the cottage was unoccupied for the winter. Thus, it was arguably unforeseeable that the defendant’s entering the cottage and taking a television set would result in the death of an occupant, but it is by no means certain that a court would agree. Furthermore, in those jurisdictions that do not require foreseeability of death, the defendant could be convicted of felony murder if the death occurred during the commission of a burglary, because burglary is always classified as a malum in se felony. Because the circumstances in choice (B) would assure the defendant of avoiding conviction in all jurisdictions, (B) is a better answer than (D). (A) incorrectly focuses on intent to kill. Intent to kill is one of the states of mind by which a defendant is deemed to have malice aforethought, which is necessary for a killing to constitute murder. However, this question refers to felony murder, wherein malice aforethought exists in the form of intent to commit a felony. Thus, it is irrelevant whether the defendant intended to kill the victim. Regarding (C), it is true that most courts limit the felony murder doctrine to felonies that are inherently dangerous, and that larceny generally is not considered to be inherently dangerous. However, assuming the existence of the requisite intent, the defendant may have committed burglary, which is deemed to be inherently dangerous. Thus, (C) might provide no defense at all to a charge of felony murder.

Question 13

Voluntary manslaughter is a killing committed:

A. During the course of a crime not amounting to a felony

B. During the course of a felony

C. Without express malice

D. Under adequate provocation

Answer 13

CORRECT ANSWER: Under adequate provocation.

A killing committed under adequate provocation is voluntary manslaughter.
A killing committed during the commission of an unlawful act not amounting to a felony is involuntary manslaughter.
Committing a felony that results in death is murder. The intent to commit a felony satisfies the malice requirement to classify a killing as murder.
A killing committed without express malice may be murder if malice is implied. “Malice aforethought” for common law murder can be satisfied by (i) the intent to kill; (ii) the intent to inflict great bodily injury; (iii) a reckless indifference to an unjustifiably high risk to human life; or (iv) the intent to commit a felony. The intent to kill is deemed to be “express malice,” whereas, in the latter three, malice is implied. Although “implied,” the latter three states of mind also satisfy the malice requirement for common law murder.

Question 14

Felony murder generally requires that:

A. The killing be committed during the course of the felony, the death must have been a foreseeable result of the felony, and the defendant must be convicted of the underlying felony

B. The killing be committed during the course of the felony, the felony must be independent of the killing, and the death must have been a foreseeable result of the felony

C. The killing be committed during the course of the felony, the felony must be independent of the killing, and the defendant must be convicted of the underlying felony

D. The death must have been a foreseeable result of the felony, the felony must be independent of the killing, and the defendant must have been convicted of the underlying felony

Answer 14

CORRECT ANSWER: B. The killing be committed during the course of the felony, the felony must be independent of the killing, and the death must have been a foreseeable result of the felony

To convict a defendant of felony murder, the prosecution must prove, beyond a reasonable doubt, that the defendant committed a felony (i.e., he is factually guilty of the felony). However, the defendant need not actually be convicted of the underlying felony if the statute of limitations for the felony has expired.
The killing must take place while the felony is being committed. When the defendant reaches “a place of temporary safety,” the felony is deemed terminated.
The felony must be independent of the killing (e.g., the felony of manslaughter cannot be the underlying felony for felony murder).
Finally, most states require that the death must be a foreseeable result of the commission of the felony.

Question 15

In most states, murder is of the second degree unless __________, in which case the murder is of the first degree.

A. deliberation and premeditation can be shown, or the defendant acted “with a depraved heart”

B. deliberation and premeditation can be shown, or the killing occurred during an enumerated felony

C. the killing occurred during an enumerated felony, or the defendant acted “with a depraved heart”

D. “a depraved heart” can be shown

Answer 15

CORRECT ANSWER: B. deliberation and premeditation can be shown, or the killing occurred during an enumerated felony

In most states, murder is of the second degree unless deliberation and premeditation can be shown, or the killing occurred during an enumerated felony, in which case the murder is of the first degree.
If neither can be shown, the killing will usually be second degree murder (unless the killing is downgraded to manslaughter based on adequate provocation).
Depraved heart murder would ordinarily be second degree murder in most states.

Question 16

Under the plain view exception to the warrant requirement, which of the following is not required?

A. The item must be evidence, contraband, or a fruit or instrumentality of a crime.

B. The police must have inadvertently discovered the item.

C. The police must be legitimately on the premises where the item is found.

D. It must be immediately apparent that the item is evidence, contraband, or a fruit or instrumentality of a crime.

Answer 16

CORRECT ANSWER: B. The police must have inadvertently discovered the item.

For the warrantless seizure of an item under the plain view exception, it is not required that the item be inadvertently discovered. Formerly, this exception to the warrant requirement applied only if the item was inadvertently discovered. Inadvertence, however, is no longer a requirement.
To make a warrantless seizure, the police (1) must be legitimately on the premises where the item is found; (2) the item must be evidence, contraband, or a fruit or instrumentality of a crime; (3) the item must be in plain view; and (4) it must be immediately apparent (i.e., probable cause) that the item is evidence, contraband, or a fruit or instrumentality of a crime.

Question 17

The police, suspecting that the defendant was dealing drugs, observed several people walk up to the defendant’s door, knock on his door, and then exchange cash for small packages that the police believed contained drugs. Two uniformed police officers then walked up to the door and knocked. The defendant answered the door, and one police officer asked if they could come in and take a look around. The defendant, believing that he had no other choice but to let the officers inside, agreed. Once inside, they discovered equipment used for making methamphetamine and several tablets of methamphetamine that were sitting on a table covered by a bed sheet. One officer promptly arrested and handcuffed the defendant while the other seized the equipment and tablets. Prior to his trial for the illegal manufacture and possession of methamphetamine, the defendant moved to suppress the evidence as having been illegally seized.

Should the motion be granted?

A. No, because the defendant allowed the police officers to enter his home and look around.

B. No, because exigent circumstances existed for the warrantless seizure of the evidence.

C. Yes, because the police should have secured the area and obtained a warrant to seize the evidence.

D. Yes, because the defendant’s consent was not voluntary.

Answer 17

CORRECT ANSWER: A. No, because the defendant allowed the police officers to enter his home and look around.

The evidence should not be suppressed because the defendant consented. To be reasonable under the Fourth Amendment, most searches must be pursuant to a warrant. The warrant requirement serves as a check against unfettered police discretion by requiring the police to apply to a neutral magistrate for permission to conduct a search. A search conducted without a warrant will be invalid (and the evidence discovered during the search generally must be excluded from evidence) unless the search and seizure falls within an exception to the warrant requirement. One exception to the warrant requirement is when the police have valid consent to search the premises. The police may conduct a valid warrantless search when they have a voluntary consent to do so. Knowledge of the right to withhold consent, while a factor to be considered, is not a prerequisite to establishing a voluntary consent. In the instant case, there are no facts that indicate that the police put any undue pressure on the defendant to consent to the search. Although it is a factor to be considered in determining whether the consent was voluntary, the defendant’s subjective mistake about being able to withhold consent would probably not, by itself, be sufficient to deem the consent involuntary. As a result, (A) is the correct answer, and (D) is incorrect. (B) is incorrect. The Supreme Court has made it clear that there is no general “emergency” exception to the warrant requirement, although the police may seize “evanescent” evidence in certain circumstances. That said, there is no indication that evidence here would disappear, as it seems that the defendant’s operation was ongoing, thus giving the police time to get a warrant. (C) is incorrect because the police may conduct a warrantless search with the defendant’s permission, as they did in this question.

Question 18

The police received information linking a man to drug trafficking and went to the man’s residence, where he lived with his mother. The police found the mother at home, and she told them that her son was not expected back until later. The police informed the mother that they suspected the man of selling drugs and asked if they could search his room. She replied, “I’m finished with that no-good bum; not only is he into drugs, but he has been stealing my money to pay for them, and all the time I’m making his bed and fixing his food. You can search his room. He likes to keep his private stuff under his pillow. I hope he goes to jail.” The police searched the man’s room and discovered a quantity of marijuana under the pillow of his bed.

If before trial the man’s attorney moves to suppress the marijuana on grounds that the search was invalid, should the court grant the motion?

A. Yes, because the man had a legitimate expectation of privacy in the area searched, and the police did not have a warrant.

B. Yes, because the man’s mother’s consent was given at a time when police knew her interests were in conflict with the man’s.

C. No, because the man’s mother had the authority to consent to the search of his room.

D. No, because with the mother’s statement the police had probable cause to search the room.

Answer 18

CORRECT ANSWER: C. No, because the man’s mother had the authority to consent to the search of his room.

The man’s motion to suppress should be denied because his mother had authority to consent to the search of his room. A search of a residence can be based on the voluntary consent of the occupant. Where a parent has general access to a room occupied by a son or daughter, the parent can give a valid consent to a general search of the room even if the son or daughter is an adult. The facts in the question indicate that the man’s mother had general access to his room (“and all the time I’m making his bed”). Therefore, her consent is valid and eliminates the need for probable cause and a warrant. (A) is wrong. The man had a legitimate expectation of privacy in the area searched, but the consent of his mother eliminated the need for a warrant. (B) is wrong. At one time, some courts required an “amicable relationship” between the parties before the police could rely on a third party’s consent. The “amicable relationship requirement” is no longer recognized by the courts. (D) is not a good answer. It is true that with the mother’s statement the police had probable cause to search the man’s room. However, probable cause alone would not validate the search. The police would need probable cause plus a warrant or a valid consent. In this question the search would have to be based on consent.

Question 19

A police officer learned from a reliable informant that a major drug deal was about to take place at a local restaurant. The officer obtained a search warrant for the restaurant and arrived with other uniformed officers to search the premises. While conducting the search, the officer searched several of the customers. While searching one of the restaurant’s regular customers, the officer felt an object in the customer’s pocket and pulled out a container filled with heroin. The customer was arrested and later convicted of possession of heroin. A state statute permits officers executing a search warrant to search persons on the premises if the officers reasonably expect danger to themselves or a risk of disposal or concealment of anything described in the warrant.

If the customer challenges his conviction on the ground that his Fourth Amendment rights were violated, will he be successful?

A. Yes, because the statute is vague and overbroad.

B. Yes, because his presence in the place to be searched by the police does not negate the requirement of probable cause.

C. No, because the search was conducted pursuant to a valid search warrant.

D. No, because the search was authorized by statute.

Answer 19

CORRECT ANSWER: B. Yes, because his presence in the place to be searched by the police does not negate the requirement of probable cause.

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.” (A) is incorrect because the validity of the statute is not the primary issue. Even in the absence of a statute, the search of the customer by the officer violated the customer’s Fourth Amendment rights. (C) is incorrect because, as discussed above, the search warrant did not override the customer’s Fourth Amendment rights. While the police would be able to search a person discovered on the premises for whom they had probable cause to arrest, because the search would be incident to a lawful arrest, here they searched the customer prior to an arrest and without probable cause. (D) is irrelevant; if a search is unconstitutional, it does not matter that it was authorized by statute. To the extent that the statute authorizes a search in violation of the Fourth Amendment, it is unconstitutional.

Question 20

The president of a private college received a report that there was a great deal of cocaine use occurring on the second floor of the dormitory. The president persuaded the school security officers to place several concealed microphones in the second-floor student lounge. Conversations occurring in the lounge were monitored by the security officers and they recorded a conversation in which a sophomore at the college offered to sell cocaine to a freshman. A tape of the conversation was taken to the local police, who played it for a local judge. The judge issued a warrant to search the sophomore’s room. While searching the room the police discovered a large amount of cocaine and the sophomore was arrested and charged with unlawful possession of narcotics. His attorney moved to prevent the introduction of the cocaine into evidence.

Will the motion most likely be granted?

A. Yes, because the sophomore’s privacy was unreasonably invaded.

B. Yes, because the electronic surveillance was “fundamentally unfair.”

C. No, because the police properly obtained a search warrant.

D. No, because the college president was acting on behalf of the college population in general.

Answer 20

CORRECT ANSWER: C. No, because the police properly obtained a search warrant.

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. (B) is wrong because it is untrue as a matter of law. (D) is wrong because it is not a sufficient basis to deny the sophomore’s motion. It is irrelevant that the college president acted on behalf of the college population.

Question 21

The warnings required under Miranda ________ include that the detainee has the right to __________.

A. Do not; remain silent

B. Do not; be informed of the charges against him

C. Do; confront witnesses against him

D. Do; an impartial decisionmaker

Answer 21

CORRECT ANSWER: B. Do not; be informed of the charges against him

The warnings required under Miranda do not include that the detainee has a right to be informed of the charges against him.
Also, it is not true that the warnings must include that the detainee has the right to an impartial decisionmaker. While such a right exists under the Due Process Clause, Miranda does not require that detainees be informed of that right.
Nor is it true that the warnings must include that the detainee has the right to confront witnesses against him. While there is such a right under the Sixth Amendment, Miranda does not require that detainees be informed of that right.
The warnings required under Miranda do require that the warnings inform the detainee of the right to remain silent.
The full warnings must inform the detainee that:
(i) He has the right to remain silent;
(ii) Anything he says can be used against him in court;
(iii) He has the right to the presence of an attorney; and
(iv) If he cannot afford an attorney, one will be appointed for him if he so desires.
Note that Miranda warnings do not need to be given verbatim, as long as the substance of the warning is there.

Question 22

Miranda warnings __________ need to be given before a suspect is interrogated by a civilian working for the police.

A. Always

B. Never

C. May

Answer 22

CORRECT ANSWER: C. May

Miranda warnings may need to be given, depending on whether the suspect knows this person is employed by the police. Miranda generally applies only to interrogation by the publicly paid police. It does not apply where interrogation is by an informant who the defendant does not know is working for the police. The rationale is that the warnings are intended to offset the coercive nature of police-dominated interrogation, and if the defendant does not know that he is being interrogated by the police, there is no coercive atmosphere to offset.

Question 23

While investigating the most recent of a series of murders, a homicide detective was approached by an onlooker who seemed to have detailed knowledge of the murders. The detective recalled the onlooker at some of the other murder scenes, and immediately suspected that he knew something about the crimes. The detective asked the onlooker not to leave until the detective had the opportunity to ask him a few questions. After finishing with the evidence he was gathering, the detective started to question the onlooker at the crime scene without giving him Miranda warnings. The onlooker eventually revealed details of the crimes that were never made available to the public. As a result, the onlooker was arrested and charged with several murders. At a pretrial hearing, the onlooker testified that he believed that he could not leave until he had spoken with the detective. The defense counsel moves to suppress the statements made to the homicide detective.

What is the most likely result?

A. The motion will not be granted because the onlooker was not in custody.

B. The motion will not be granted because the onlooker initiated the contact with the homicide detective.

C. The motion will be granted because the onlooker believed that he was not free to leave.

D. The motion will be granted because the detective was required to give the onlooker Miranda warnings once the detective suspected him of having committed the crime.

Answer 23

CORRECT ANSWER: A. The motion will not be granted because the onlooker was not in custody.

The statements that the onlooker gave to the homicide detective most likely will not be suppressed due to a failure to provide a Miranda warning. Prior to custodial interrogation, the person being questioned must be informed that he has the right to remain silent, that anything he says can be used against him in court, that he has the right to the presence of an attorney, and that, if he cannot afford an attorney, one will be appointed for him if he so desires. The interrogation must take place in a custodial setting. The test to determine whether a person is in custody is an objective test; the subjective beliefs of the interrogator or the accused are not determinative. Essentially, if a reasonable person under the circumstances would feel that he was free to terminate the interrogation and leave, he is not in custody. Here, the onlooker had not been arrested, had not been placed in handcuffs, nor was he even at a police station. Being unconstrained at a crime scene probably would not constitute being “in custody” to a reasonable person; as a result, Miranda warnings were not required and (A) is correct. (B) is incorrect because who initiates the contact is not really relevant to determine whether the person is “in custody,” although it may be a factor to be considered when determining whether the defendant believed he was free to leave. (C) is incorrect because it falsely states that the test for custody is a subjective one. The test is an objective test. (D) is also incorrect. Miranda warnings are required prior to custodial interrogation. The subjective beliefs of the interrogator as to who may have committed the crime are irrelevant.

Question 24

A man and a woman were arrested and charged with conspiring to blow up a federal government building. After being given Miranda warnings, they were questioned separately and each of them gave a written confession. The confessions interlocked with each other, implicating both of the defendants as being involved in every stage of the conspiracy. Subsequently, the woman attempted to retract her confession, claiming that it was false. At a preliminary hearing, the judge rejected her claim. Both defendants were tried together, and the prosecutor introduced both confessions into evidence. At trial, the woman testified that she was not involved in any conspiracy and that her confession was fabricated. Both defendants were found guilty by the jury.

The woman challenges her conviction on appeal because of the admission of the man’s confession. If the woman succeeds, what is the likely reason?

A. The man’s confession was more incriminatory to her than her own confession.

B. The jury was not instructed to consider the man’s confession as evidence only of his guilt and not of the woman’s.

C. The man refused to testify at trial and therefore was not subject to cross-examination regarding his confession.

D. The man testified at trial and was subject to cross-examination but denied making the confession attributed to him.

Answer 24

CORRECT ANSWER: C. The man refused to testify at trial and therefore was not subject to cross-examination regarding his confession.

If the woman prevails in her challenge to the admission of the man’s confession, it will be because the man could not be cross-examined regarding his confession. Under the Sixth Amendment, a defendant in a criminal prosecution has the right to confront adverse witnesses at trial. If two persons are tried together and one has given a confession that implicates the other, the right of confrontation generally prohibits the use of that statement because the other defendant cannot compel the confessing co-defendant to take the stand for cross-examination. 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. (B) is incorrect because the Supreme Court has held that instructing the jury to consider the confession only as going to the guilt of the confessing defendant is inadequate to avoid Confrontation Clause problems, because the risk that the jury will not follow the limiting instructions is too great in this context. (D) is incorrect. Confessions of a co-defendant may be admitted if (i) all portions 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 regarding the truth or falsity of the statement, or (iii) the confession of the nontestifying co-defendant is being used to rebut the defendant’s claim that his confession was obtained coercively, and the jury is instructed as to that purpose. Even if the co-defendant denies ever having made the confession, as stated in choice (D), the opportunity at trial to cross-examine the co-defendant satisfies the Confrontation Clause.

Question 25

Which of the following statements regarding speedy trials is correct?

A
One factor in determining whether a defendant’s right to a speedy trial was violated is whether the defendant asserted his right.

B
Delays caused by counsel assigned by the court to the defendant should ordinarily be attributed to the state.

C
The remedy for a violation of the constitutional right to a speedy trial is dismissal without prejudice.

D
A defendant is entitled to speedy trial relief for the period between the dismissal of charges and later

Answer 25

CORRECT ANSWER: A. One factor in determining whether a defendant’s right to a speedy trial was violated is whether the defendant asserted his right.

Whether a defendant asserted his right is one factor in determining whether the defendant’s right to a speedy trial was violated. The determination is made by an evaluation of the totality of the circumstances, and the following factors should be considered: (i) length of the delay, (ii) reason for the delay, (iii) whether the defendant asserted his right, and (iv) prejudice to the defendant.
Delays caused by counsel assigned by the court to the defendant should ordinarily be attributed to the defendant and NOT to the state.
The remedy for a violation of the constitutional right to a speedy trial is dismissal with prejudice.
A defendant is NOT entitled to speedy trial relief for the period between the dismissal of charges and later refiling.

Question 26

At the defendant’s prosecution for robbery of a drugstore, the main prosecution witness testified that the defendant had asked her to drive him to the town where the drugstore was located. The witness testified that the defendant did not explain his purpose for going to the town, and that he had stopped at a relative’s house along the way to pick up a bundle that could have been the sawed-off shotgun used by the robber. On cross-examination, the defendant’s attorney asked a number of pointed questions of the witness, implying that the defendant had asked her to drive to the town so that he could visit relatives there and suggesting that the witness had obtained a sawed-off shotgun for use by a confederate. The defendant did not testify on his own behalf.

In final argument, the prosecutor called the jury’s attention to the two versions of events suggested by the witness’s testimony on direct examination and the defense attorney’s questions on cross-examination, and then said, “Remember, you only heard one of the two people testify who know what really happened that day.”

If the defendant is convicted of robbery, will his conviction likely be upheld?

A No, because the prosecutor’s comment referred to the defendant’s failure to testify, a violation of his Fifth Amendment privilege of silence.

B No, because under the circumstances the attack on the witness’s credibility was not strong enough to permit the prosecutor to mention the defendant’s failure to testify in rebuttal.

C Yes, because the prosecutor is entitled to comment on the state of the evidence.

D Yes, because even if it was error to comment on the defendant’s failure to testify, the error was harmless beyond a reasonable doubt.

Answer 26

CORRECT ANSWER: A. No, because the prosecutor’s comment referred to the defendant’s failure to testify, a violation of his Fifth Amendment privilege of silence.

The defendant’s conviction will likely not be upheld because the prosecutor’s comment improperly burdened the defendant’s assertion of his privilege against self-incrimination. The prosecution is not allowed to comment on the defendant’s failure to testify at trial, because the defendant is privileged under the Fifth Amendment to remain silent. (B) is incorrect because no amount of attacks on the credibility of prosecution witnesses will justify such a comment as a rebuttal. (C) is incorrect because the Fifth Amendment privilege outweighs the prosecutor’s right to comment on the state of the evidence. (D) is not the best answer even though the harmless error test does apply to improper comments by the prosecution (i.e., the conviction will not be overturned if the prosecution can show beyond a reasonable doubt that the comments did not affect the outcome of the case). Because there is no real indication as to the strength of the case against the defendant, it is impossible to conclude that the error was harmless beyond a reasonable doubt.

Question 27

Jeopardy attaches in a jury trial when:

A
Opening statements begin

B
The jury is empaneled and sworn

C
The first witness is sworn

D
The judge delivers jury instructions

Answer 27

CORRECT ANSWER: B. The jury is empaneled and sworn

Jeopardy attaches in a jury trial when the jury is empaneled and sworn. Under the Fifth Amendment right to be free of double jeopardy, a defendant may not be retried for the same offense once jeopardy has attached.
Jeopardy does not attach in a jury trial when the first witness is sworn. This is when jeopardy attaches in a bench trial, not in a jury trial.
By the time opening statements begin or the judge delivers jury instructions, jeopardy has already attached.

Question 28

A farmer was in the middle of plowing his field when his tractor broke down. While attempting to repair it, he discovered that he needed a special wrench. He knew that his neighbor used the same type of tractor and kept a large cache of tools in his basement. Not wanting to make the long drive into town to buy one wrench that he probably would not use much, the farmer went to his neighbor’s house to borrow the wrench. However, no one was home so he decided to look in his neighbor’s basement for the wrench, thinking that he would return it before the neighbor came back. To gain entry, the farmer opened an unlocked window and climbed through the opening to the basement. Once inside, the farmer found the tool and took it with him to work on the tractor. His neighbor returned soon after and contacted the police when he discovered that one of his tools was missing. The police determined that the farmer took the tool and he was charged with burglary.

What is the farmer’s best defense against that charge in a common law jurisdiction?

A Nobody actually lived in the basement.

B The farmer knew that the house was unoccupied and would not have entered without permission had the neighbor been home.

C The farmer entered the house through an unlocked window.

D The farmer intended only to keep the wrench for a couple of hours.

Answer 28

CORRECT ANSWER: D. The farmer intended only to keep the wrench for a couple of hours.

The farmer’s best defense is that he intended only to keep the wrench for a couple of hours. Given that the farmer intended merely to borrow the tool, he lacked the intent to commit larceny, and thus would not be guilty of burglary. Common law burglary consists of: (i) a breaking; (ii) and entry; (iii) of the dwelling; (iv) of another; (v) at nighttime; (vi) with the intent of committing a felony therein. The farmer entered his neighbor’s house intending to remove the tool. Thus, the facts indicate that the only felony he could have intended to commit at the time of entry would be larceny. 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. At common law, if the defendant intended to return the property within a reasonable time, and at the time of the taking had a substantial ability to do so, such an unauthorized borrowing would not constitute larceny. Consequently, if the farmer intended to keep the tool only for the short time to fix his tractor, then he did not intend to permanently deprive his neighbor of his interest in the wrench. Because the farmer thus lacked the intent to commit a felony in his neighbor’s home at the time he entered, the farmer would not be guilty of burglary. (A) is incorrect because, for purposes of the crime of burglary, a structure is deemed to be a dwelling simply if any part of it is used regularly for sleeping purposes. Thus, the fact that nobody lived in the basement is irrelevant. (B) is incorrect because the fact that the house was unoccupied is irrelevant to his culpability for burglary. The crime of burglary would have been complete if the farmer had broken and entered his neighbor’s home with the intent of committing a felony therein, regardless of whether the home was currently unoccupied. Consequently, the farmer’s knowledge that the house was unoccupied would provide him with no defense to a charge of burglary. (C) is incorrect because the breaking needed for burglary requires only minimal force to gain entry. Opening an unlocked window is a sufficient use of force to constitute a breaking.

Question 29

While fleeing from an armed robbery he had just committed, a man struck a pedestrian with his car, seriously injuring the pedestrian. The robber was soon apprehended and charged with armed robbery and reckless driving, both felonies. Just prior to trial, the pedestrian died from his injuries. The trial on the robbery and driving charges proceeded, and the robber was convicted of the armed robbery charge and acquitted of the reckless driving charge. The robber was then indicted under the jurisdiction’s felony murder statute for causing the death of the pedestrian during the course of committing an armed robbery. The robber moved to dismiss the indictment on the ground that a second trial would violate double jeopardy.

Is the robber’s claim correct?

A Yes, because he was acquitted of the reckless driving charge.

B Yes, because the pedestrian died before the robber’s first trial had begun.

C No, because he was convicted of the armed robbery charge.

D No, because felony murder requires proof of an additional element not required by the felony itself.

Answer 29

CORRECT ANSWER: Yes, because the pedestrian died before the robber’s first trial had begun.

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.

Question 30

A woman was arrested outside of a house shortly after she had broken in and stolen some jewelry. She was indicted for larceny and later for burglary. She was tried on the larceny indictment and convicted. Thereafter, she was brought to trial on the burglary indictment. Relying on the Double Jeopardy Clause of the Constitution, the woman moves to dismiss the indictment.

Should the motion be granted?

A Yes, because the Double Jeopardy Clause requires that all offenses arising out of the same transaction be adjudicated in the same trial.

B Yes, because the Double Jeopardy Clause allows the imposition of separate sentences for separate offenses occurring during the same criminal episode only if the offenses are tried together.

C No, because larceny and burglary are offenses that may constitutionally be tried and punished separately, even if they arise out of the same transaction, because each requires proof of a fact that the other does not.

D No, because the only protection double jeopardy affords to a defendant charged with multiple counts is under the doctrine of collateral estoppel.

Answer 30

CORRECT ANSWER: C. No, because larceny and burglary are offenses that may constitutionally be tried and punished separately, even if they arise out of the same transaction, because each requires proof of a fact that the other does not.

The woman’s motion should be denied because the Double Jeopardy Clause does not prohibit the second prosecution. The Double Jeopardy Clause of the Fifth Amendment provides criminal defendants with the right to be free of double jeopardy for the same offense. However, 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)] Here, larceny requires a taking and carrying away of the property of another, which burglary does not require, and burglary requires a breaking and entry, which larceny does not require. Hence, they are distinct offenses for purposes of the Double Jeopardy Clause. (A) and (B) are incorrect because the Supreme Court does not use a “same transaction” or “same episode” test suggested by these answer choices; instead, the Blockburger test is used regardless of whether the two offenses were tried together at a single trial or at separate trials. (D) is incorrect because while double jeopardy also protects against inconsistent factual determinations at a subsequent trial, it protects against multiple prosecutions as well, as long as the crime is the “same offense.”

Question 31

A man asked a coworker who was a wine collector to lend him a bottle of expensive wine to put in his liquor cabinet, because he was inviting his mother over for dinner and wanted to impress her. The coworker permitted the man to take a bottle of wine worth $700 to his apartment for the dinner as long as he returned it the next morning. As he had planned all along, the man instead invited his girlfriend over for a romantic dinner, at which they drank the bottle of wine. The next day the man told his coworker that he had been mugged on his way home and that the muggers made off with the wine. Suspicious, the coworker found the empty wine bottle in the man’s trash from his apartment.

If the man is charged with theft in a common-law jurisdiction, of which theft offense is he most likely to be convicted?
Press Enter or Space to submit the answer

A Larceny by trick.

B Larceny.

C Embezzlement.

D No crime.

Answer 31

CORRECT ANSWER: A. Larceny by trick.

The man can be convicted of larceny by trick. The owner of the wine gave possession of the bottle of wine to the man, but clearly did not give up ownership, because possession was transferred on the coworker’s explicit promise to return it the next day. Therefore, a theft crime of some sort was committed, but that crime is not pure common law larceny because there was no trespassory taking. If the man obtained possession of the wine by fraud or misrepresentation, then he is guilty of larceny by trick. Because it apparently was the man’s intent to drink the wine all along, the possession was obtained by fraud and the crime is larceny by trick, not embezzlement (the crime which would have occurred if he obtained rightful possession). Therefore, (D) is incorrect. (B) is incorrect because this is not a true trespassory taking; possession, even though obtained by fraud, was given. (C) is incorrect because, although the coworker had possession of the wine (which would normally indicate embezzlement), he obtained that possession by fraud (which indicates larceny by trick).

Question 32

A shopper at a flea market noticed a vase and asked a nearby person how much it cost. The person replied, “One hundred dollars.” The shopper paid him the money and took the vase. The person, who was not the owner of the vase but merely a bystander, absconded with the $100.

What crime at common law has the bystander committed with respect to the $100?

A Embezzlement.

B Larceny by trick.

C Obtaining property by false pretenses

D No crime.

Answer 32

CORRECT ANSWER: C. Obtaining property by false pretenses

The bystander has obtained property by false pretenses. In the crime of false pretenses, the defendant obtains title to the property by means of a false representation of a material present or past fact that causes the victim to pass title to his property to the defendant, who knows his representations to be false and intends thereby to defraud the victim. Under the circumstances, by replying that the price of the vase was $100, the bystander implied that he was its owner or was authorized to sell it, which he was not. This false representation induced the victim to pass title to his money to the bystander, who knew the representation to be false. Therefore, he is guilty of obtaining money by false pretenses and (D) is incorrect. (A) is incorrect because the bystander took title, not mere possession. Therefore, the crime is false pretenses, not embezzlement. The physical transfer of that cash without any limitations on its use was a transfer of title to the money. Therefore, the crime is the obtaining of money by false pretenses. (B) is incorrect because larceny by trick occurs when the defendant obtains possession of another’s property by lying or trickery. Here, the bystander obtained title to, rather than mere possession of, the money, and is therefore not guilty of larceny by trick.

Question 33

Three men agreed to rob a restaurant in a nearby town. Two of the men bought pistols, ski masks, and gloves for that purpose while the third man agreed to be the lookout. Prior to entering the restaurant, the man who was to be the lookout had a change of heart and wanted to call off the robbery. The other two men refused so the lookout threw down his gun and went to the nearby bus station to catch a bus back to his home. The remaining two men went into the restaurant and robbed it and its patrons. A patrol car happened by as they were leaving, and one of the men seized one of the customers as a hostage. In the exchange of gunfire with the police, a police officer and the hostage were killed. Both men escaped initially, but one of them was later captured and charged with robbery and murder. However, because of illegal police conduct in connection with his arrest and subsequent confession, all evidence connecting him with the charged crimes was suppressed and the charges dismissed.

If the lookout is also arrested and charged with murder, which of the following is his strongest defense?

A He did not have the requisite mental state to be convicted of murder.

B He did not physically participate in the events that led to the killings of the police officer and the hostage.

C He had withdrawn from the plan before the two others began the robbery that led to the killings.

D He cannot be prosecuted for a crime as to which the principals have not been convicted.

Answer 33

CORRECT ANSWER: C. He had withdrawn from the plan before the two others began the robbery that led to the killings.

The lookout will not be guilty of murder if he withdrew from the plan before the robbery and killings took place. At common law, each person who took part in the planning of a crime was criminally liable for the crime of conspiracy and for each offense committed in furtherance of the conspiracy. However, if one of the conspirators “withdrew” from the criminal effort before the substantive crimes occurred, he was not liable for the subsequent crimes. To successfully withdraw, the actor must notify all members of the conspiracy that he has withdrawn; this must be done in time for them to have an opportunity to abandon the planned crimes. The facts in the question clearly indicate that he had withdrawn. (A) is not as good an answer as (C) because, if the lookout had not withdrawn, he would be guilty of murder under a felony murder theory. His strongest argument is that he withdrew. (B) is wrong because it is no defense to a charge of murder that the actor did not physically participate. The lookout would be guilty if he had not withdrawn, even without physical participation. (D) is wrong because, if the theory of the prosecutor’s murder charge was that the lookout was a conspirator and is liable for all crimes committed in furtherance of the conspiracy, it would make no difference whether the other conspirators are being prosecuted. (All persons must be acquitted for this defense to be effective.)

Question 34

A drug smuggler had just returned home after smuggling in a large quantity of cocaine in the false bottom of his suitcase. As he was about to leave his house again to deliver the cocaine to his contact in the city, a police officer arrived with a trained drug-sniffing dog and asked him if he could come in and ask him some questions. The smuggler declined but the officer stepped into the doorway, and the dog immediately caught the scent of the cocaine and pulled the officer toward the suitcase in the hallway. Based on the dog’s clear indication that the suitcase contained narcotics, the police officer opened the suitcase and found the cocaine. The smuggler was then arrested and the cocaine and suitcase seized.

At a pretrial hearing, should the judge grant the smuggler’s motion to suppress evidence of the cocaine in the suitcase?

A. Yes, because a warrantless search and seizure of items within the defendant’s home is not permissible absent exigent circumstances.

B. Yes, because the search and seizure required a warrant.

C. No, because the cocaine was seized as a search incident to a lawful arrest.

D. No, because there is no reasonable expectation of privacy in the smell of one’s suitcase.

Answer 34

CORRECT ANSWER: B. Yes, because the search and seizure required a warrant.

The motion should be granted because the search and seizure required a warrant. 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 or must prove that there was a physical intrusion into a constitutionally protected area. In the instant case, the place searched was the defendant’s home, which clearly is a place in which a person has a reasonable expectation of privacy. Even the entry to a home is within the curtilage and protected against unreasonable searches. A police officer nevertheless has an implied license to approach the door of a home and knock, just like anyone else. However, the Supreme Court has held that bringing a drug-sniffing dog along violates the license. Since the presence of the dog at the doorway was a physical intrusion into a constitutionally protected area, the whole episode was unreasonable under the Fourth Amendment. Moreover, consent to enter was not granted and no other exceptions apply, so evidence of the cocaine should be suppressed. (A) is incorrect because it is too broad of a statement. A warrantless search and seizure of items in one’s home may be based on other grounds, such as consent or plain view. (C) is incorrect because the search occurred prior to the arrest and thus was not a search incident to a lawful arrest (even assuming the arrest was lawful). (D) is incorrect. Although it has been held that one does not have a privacy interest in the smell of one’s luggage, here the luggage was located in the defendant’s home. The fact that the cocaine was still in the defendant’s luggage, rather than in some other location within the house, is irrelevant. The search occurred within the defendant’s home, which was not permissible under the facts.

Question 35

During a heated argument, a man punched his female coworker in the stomach after learning that she had been awarded “Employee of the Month.” Angered, the woman responded by stabbing the man with a letter opener, which severed his aorta and caused his death.

The police arrested the woman. After receiving her Miranda rights, she confessed to killing her coworker, but stated that she had not previously held any grudge against him. When asked why she stabbed him, she stated, “He just made me so mad when he said that I was a terrible employee and that he deserved the reward instead of me, and I just lost it when he punched me.” The district attorney charged the woman with homicide.

If the jury believes the woman’s statement, of what crime is she most likely to be found guilty?

A. Murder.

B. Voluntary manslaughter.

C. Involuntary manslaughter.

D. No homicide crime.

Answer 35

CORRECT ANSWER: A. Murder

The woman would most likely be found guilty of voluntary manslaughter in light of the provoking event. Adequate provocation will reduce a killing to voluntary manslaughter if the defendant was both reasonably provoked and actually provoked. The woman also would have to offer evidence that the insults and taunting, followed by a sudden punch in the stomach, would cause an ordinary person to be provoked, which is likely to be the case. Hence, her statement in conjunction with the facts makes this the best answer. (A) is incorrect. At common law, murder was the unlawful killing of a human being with malice aforethought. Malice aforethought could be established with any one of the following states of mind: (i) intent to kill; (ii) intent to cause serious bodily harm; (iii) the depraved heart killing (a reckless indifference to an unjustifiably high risk to human life); or (iv) the commission of a felony. While at least an intent to cause serious harm may be present here, the provocation will reduce the homicide to voluntary manslaughter. (C) is incorrect because involuntary manslaughter is a killing that results from criminal negligence, which theory these facts do not support. (D) is incorrect because, as discussed above, the woman would likely be guilty of voluntary manslaughter.