Criminal Law

Question 1

Substandard medical care is an “intervening act” that relieves a defendant from homicide liability if the medical care is _______ or _______.

Answer 1

Grossly negligent; Intentional mistreatment

As a general rule, an intervening act will shield the defendant from liability if the act is a mere coincidence or outside the foreseeable sphere of risk created by the defendant’s acts. Acts by a third party, such as the provision of substandard medical care, depend on how poor the medical care was. Negligent medical care is deemed to be within the foreseeable sphere of risk created by the defendant. However, grossly negligent or intentional mistreatment is not generally within the sphere of risk created by the defendant and would provide a potential basis for relieving a defendant from homicide liability.

Question 2

Liability for felony murder ends when?

Answer 2

The felon reaches a place of temporary safety.

Deaths caused while fleeing a felony may also give rise to felony murder liability. Such liability, however, is generally terminated when the defendant reaches a place of temporary safety. Although the death of the victim is obviously required for a charge of felony murder, the felony is deemed to continue as to a fleeing felon until the felon reaches a place of temporary safety. It is conceivable that the felon may kill other individuals and thus be liable for multiple counts of felony murder. The completion of the felony, and leaving the scene of the felony, do not terminate potential felony murder liability. The felon may also be liable for deaths resulting from flight from the felony.

Question 3

_______ and _______ separate first degree murder from second degree murder.

Answer 3

Premeditation; Deliberation

Question 4

How may “malice” be shown?

Answer 4

Malice is the state of mind required for CL murder, and can be shown by the intent to kill, the intent to inflict great bodily injury, a reckless indifference to an unjustifiably high risk to human life (“depraved heart”), or the intent to commit a felony.

Question 5

What are the elements of “attempt”?

Answer 5

The specific intent to perform an act and obtain a result, that, if achieved, would constitute a crime; and an overt act in furtherance of the crime.

Question 6

A defendant charged with murder _______ be convicted of attempted murder; a defendant charged with attempted murder _______ be convicted of murder.

Answer 6

A defendant charged with murder may be convicted of attempted murder, whereas a defendant charged with attempted murder may not be convicted of murder. A defendant charged with a completed crime may be found guilty of either the completed crime or an attempt to commit the crime as long as the evidence presented supports such a verdict. The defendant cannot be found guilty of both the completed crime and the attempt because of merger and double jeopardy (an attempt to commit a crime is a lesser included offense of the completed crime)

Question 7

A common law conspiracy requires a(n) _________________, and the intent to ______________.

Answer 7

an agreement between two or more parties;

enter into an agreement and to achieve the objective of the agreement

Question 8

The __________ provides that not only must unconstitutionally obtained evidence be excluded at trial, but also all evidence obtained or derived from exploitation of that evidence

Answer 8

Fruit of the poisonous tree doctrine.

Question 9

Felony murder generally requires that:

Answer 9

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 Def need not actually be convicted of the underlying felony if the SOLs 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 10

For the purposes of felony murder, the felony is deemed to terminate when:

Answer 10

the defendant reaches a place of temporary safety.

Question 11

If a detainee requests the presence of counsel at an interrogation under Miranda:

Answer 11

The police may continue to interrogate if the request is ambiguous

Question 12

The privilege against self-incrimination is waived:

Answer 12

by a Def when she takes the stand, but only to the extent that she is subject to cross-examination.

Question 13

An ineffective assistance of counsel claimant must show deficient performance and:

Answer 13

that the result would have been different but for the deficient performance (e.g., the defendant would not have been convicted or the sentence would have been shorter)

Question 14

A husband who believed that his wife was having an affair with his brother hired an arsonist to burn down the brother’s house. They planned for the husband to take his brother to a ballgame so that the arsonist would be able to set the house on fire without detection. After the husband and brother left for the ballgame, however, the arsonist decided to abandon the plan and immediately left town without doing anything further. When the husband returned from the ballgame with the brother, he saw the house still standing and blurted out what was supposed to have happened. The husband and the arsonist were arrested and charged with conspiracy to commit arson. At the arsonist’s trial, his attorney argued that he was innocent of the conspiracy because he decided not to go ahead with the plan, and nothing criminal had in fact occurred.

At common law, how should a jury find the arsonist?

Answer 14

Guilty, because the arsonist agreed to set his brother’s house on fire.

The arsonist should be found guilty. A conspiracy is a combination or agreement between two or more persons to accomplish some criminal or unlawful purpose, or to accomplish a lawful act by unlawful means. The mens rea required for conspiracy is specific intent, in that both parties must intend to agree to accomplish some criminal or unlawful purpose. Thus, once the arsonist was hired by the husband and they came up with a plan to burn down the brother’s house, the crime of conspiracy was completed.

Question 15

In a property settlement after a divorce, the wife was awarded all personal property that had been accumulated during the marriage, including the husband’s classic 19-inch black-and-white TV set. In order to get his prized TV set back, the husband lied to his friend, telling him that the wife took the TV set in violation of the property settlement. The friend remembered that the wife gave the friend’s wife a key to her new home, and he volunteered to go with the husband to get the TV back while the wife was at work. The husband and the friend went to the wife’s house, but, unbeknownst to them, the wife had taken the day off work. After the friend noisily opened the back door with his wife’s key, the wife called the police, who quickly arrived and arrested the husband and the friend.

As to a charge of common law conspiracy to commit larceny, how should the friend be found?

Answer 15

Not guilty, because he did not intend to steal.

The friend should be found not guilty because he did not intend to steal. At common law, conspiracy consists of (i) an agreement between two or more persons, (ii) an intent to enter into an agreement, and (iii) an intent to achieve the objective of the agreement. The object of the agreement must be something unlawful. Here, the friend did not intend to achieve the objective of the conspiracy—to permanently deprive the owner of her property—because the friend thought the husband was the true owner of the TV.

Question 16

A man and woman agreed to burn down a neighbor’s house in retribution for some wrong the neighbor allegedly committed against them. Both the man and woman were arrested shortly after they poured gasoline on the neighbor’s front porch. The man revealed to the police that he participated in the plan to ensure that nothing bad would happen to the neighbor, and that he had made an anonymous telephone call to the police alerting them to the crime, which enabled the police to arrest him and the woman “in the act.” The woman stated that she would not have participated if not for the man’s encouragement.

If the woman is charged with a conspiracy at common law to commit arson, how should she be found?

Answer 16

Not guilty, because the man did not intend to commit arson.

To be convicted of a conspiracy at common law, it must be shown that at least two persons agreed to achieve an unlawful objective. Having two or more persons is a necessary element of conspiracy under the traditional bilateral approach. Here, the facts indicate that the man did not intend to achieve the objective of the conspiracy—to burn the dwelling house of another. Thus, the woman cannot be guilty of conspiracy to commit arson

Question 17

Three thieves agreed to rob a bank. The first was to steal a car to be used for the getaway, the second agreed to procure weapons, and the third would check the bank for cameras. The car thief stole a car and parked it in a lot behind his girlfriend’s apartment building. While visiting her the night before the robbery, the car thief suffered a series of convulsive seizures. He was rushed to the hospital where he was placed in the intensive care unit and heavily sedated. Meanwhile the two other thieves, unaware of their accomplice’s illness, met and decided to rob the bank on their own, despite the absence of a getaway car and driver. They robbed the bank, but were quickly apprehended as they tried to escape and implicated the car thief under police questioning.

The car thief can be charged with:

Answer 17

Theft, conspiracy, and robbery.

The facts clearly show that the car thief is guilty of the theft of the car that was to be used for the getaway.

Conspiracy requires: (i) an agreement between two or more persons; (ii) the intent to enter into the agreement; and (iii) the intent to achieve the objective of the agreement. Most states also require an overt act in furtherance of the conspiracy.
The car thief conspired to commit robbery, because he entered into an agreement with the two other thieves to rob the bank, intending both to enter into such an agreement and to achieve the objective thereof. The car thief’s theft of the car constituted an overt act in furtherance of the conspiracy. Thus, the car thief can be charged with conspiracy.

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

A conspirator may limit his liability for subsequent acts of the other members of the conspiracy if he withdraws from the conspiracy by performing an affirmative act that notifies all members of the conspiracy in time for them to have the opportunity to abandon their plans. The car thief’s absence from the robbery scene with the getaway car was due to his sudden illness, rather than any voluntary decision on his part to withdraw from the conspiracy. Thus, the car thief failed to make a legally effective withdrawal from the conspiracy. Certainly, the robbery of the bank, which was the sole object of the conspiracy, was a crime committed in furtherance of the conspiracy’s objectives and was a natural and probable consequence of the conspiracy. Therefore, the car thief is liable for this robbery committed by his co-conspirators.

Question 18

The fact that the defendant committed a particular act is sufficient for the jury to infer that he acted with:

Answer 18

General intent

A jury can infer the required general intent merely from the doing of the act. It is not necessary that evidence specifically proving the general intent be offered by the prosecution.

However, a jury cannot infer that the defendant acted with specific intent by the doing of the act. (That said, the manner in which an act is done may provide circumstantial evidence that the Def acted with specific intent.)

Malice is established by showing that the defendant recklessly disregarded an obvious or high risk that a particular harmful result would occur.

Negligence is established by showing that the Def failed to be aware of a substantial and unjustifiable risk that circumstances existed or a result would follow, and such failure constituted a substantial deviation from the standard of care that a reasonable person would exercise under the circumstances.

Question 19

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?

Answer 19

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.

Question 20

The owner of a garage and one of his mechanics had a dispute over the amount of wages due for work that the mechanic had done on cars. The owner alleged that he paid the mechanic for work that the mechanic did not perform, while the mechanic contended that she did the work. After arguing over the matter for over an hour, the mechanic quit. The owner did not allow the mechanic to take her tools with her, stating that he was keeping her tools until she repaid the money that he had overpaid her.

The mechanic met with a friend and discussed the situation with him. After hearing what had happened, the friend, believing that the owner was unlawfully retaining the mechanic’s tools, suggested that he could pose as a garage client and retrieve the tools for the mechanic, and the mechanic agreed. The plan succeeded, except for the fact that the friend took tools that belonged to a new employee. The owner immediately realized what had happened, and he gave the friend’s license number to the police. The friend was arrested before he could show the tools to the mechanic.

What is a good argument for the friend as a defense to a charge of larceny in a common law jurisdiction?

Answer 20

He thought the tools belonged to the mechanic

Larceny is the taking and carrying away of the tangible personal property of another by trespass with the intent to permanently (or for an unreasonable time) deprive the owner (or person in possession) of his interest in the property. Thus, larceny is a specific intent crime, in that the Def must intend to permanently deprive the person of his interest in the property. Importantly, this intent generally must exist at the time of taking (save for the continuing trespass doctrine). In this case, the friend believed that the mechanic was being unlawfully deprived of his property, and his intent was to return the tools to their rightful owner. Thus, when he took the tools, he lacked the intent to permanently deprive another of his interest in the property. This would be true even if the garage owner factually had a lawful right to retain the tools, as the mistake of law would negate the friend’s intent to permanently deprive another of his interest in the property

Question 21

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?

Answer 21

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.

Question 22

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?

Answer 22

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

Question 23

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

Answer 23

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

Question 24

Under the plain view exception….

To make a warrantless seizure, the police:

Answer 24

(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 25

While walking on patrol in a commercial district in the early evening, a police officer noticed that a light was on in the back window of a machine shop. Curious about what was going on inside, the officer went to the back of the building and tried to look through the window of the shop, but it had been painted on the inside so that only a strip about three inches at the top, 8 ft above ground level, was still transparent. The officer quietly brought two trash cans from a neighboring business over to the window, stood on them and saw, through the strip of unpainted window, that the shop owner’s son was inside with a friend, sucking white powder into his nose through a rolled-up tube of paper from off a small mirror. Recognizing that the shop owner’s son was snorting cocaine, the officer knocked at the front door to the shop, and the son let him in. The officer immediately arrested the owner’s son and his friend. In the back room of the shop through whose window he had peered, the officer found and seized several grams of cocaine, a razor blade, and a mirror. In the subsequent prosecution of the shop owner’s son for possession of cocaine, the owner’s son seeks to bar introduction of the cocaine, mirror, and razor blade into evidence.

Will his motion be granted?

Answer 25

Yes, because the police officer violated the owner’s son’s reasonable expectation of privacy.

The shop owner’s son had a reasonable expectation of privacy, as evidenced by the obscuring of the window so that neighbors could not see into the shop. Hence, the officer’s search would have to be based on a valid warrant or qualify under one of the exceptions to the warrant requirement. Putting trash cans next to a back window to climb upon and peering into the window through a narrow opening eight feet above the ground would be considered a violation of the owner’s son’s 4th Am rights and not a “plain view” of criminal activity. Because the seizure of the cocaine, mirror, and razor was based on the illegal search, the evidence could not be used by the state.

Question 26

The police obtained a valid arrest warrant for a drug dealer. A reliable informant told the police that the drug dealer was staying at a friend’s house until “the heat was off.” Without having obtained a search warrant, the police went to the friend’s house, knocked on the door, and asked the friend if the drug dealer was there. The friend replied that the drug dealer had been staying at the house for a few days but had left a few hours ago. The police pushed open the door and began searching for the drug dealer. They found him hiding in a closet along with two five-pound bricks of marijuana. They arrested both the drug dealer and the friend. Before his trial for possession of marijuana, the friend moved to suppress the marijuana found in the closet.

Should the court grant the motion to suppress?

Answer 26

Yes, because a search warrant was required.

Absent exigent circumstances, the police executing an arrest warrant may not search for the subject of the warrant in the home of a third party without first obtaining a separate search warrant for the home. If the police do execute an arrest warrant at the home of a third party without obtaining a search warrant for the home, the arrest is still valid but evidence of any crime found in the home cannot be used against the owner of the home because it is the fruit of an unconstitutional search.

Question 27

Acting on a hunch, a police officer went to a young woman’s apartment, broke in, and searched it. The officer found exactly what she was looking for under the woman’s bed: a sack filled with jewels. The attached note read, “Sweetheart, here are the goods from the estate heist. Your loving boyfriend.” It was well known in the community that the woman’s boyfriend was a jewel thief. The officer also knew that the estate of a local socialite had been burglarized three days ago. Just as the officer finished reading the note, the woman returned. The officer immediately placed the woman under arrest as an accessory to the estate burglary. Based on the evidence obtained from the woman’s apartment, a search warrant was issued for her boyfriend’s apartment. The search yielded burglar tools and more jewels from the estate. The boyfriend was immediately arrested and charged with the estate burglary. At the boyfriend’s trial for the estate burglary, his attorney files a motion to suppress the evidence consisting of the bag of jewels and note, the tools, and the jewels from the boyfriend’s apartment.

How should the court rule on the motion?

Answer 27

Deny the motion, because the police had a warrant to search the boyfriend’s apartment.

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

Question 28

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?

Answer 28

Yes, because the Def allowed the officers to enter his home and look around.

Question 29

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?

Answer 29

No, because the man’s mother had the 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.

Question 30

In a criminal trial, what is the minimum number of jurors allowed under the Sixth and Fourteenth Amendments?

Answer 30

6