Criminal Law and Procedure Flashcards
24) If two people commit a crime that by definition requires two persons to commit
A) They can also be charged with conspiracy if they had a previous verbal agreement.
B) They cannot be charged with conspiracy under any circumstances.
C) One person will be charged with solicitation.
D) Only one can be charged because the other must be granted immunity and testify.
B) They cannot be charged with conspiracy under any circumstances.
If a crime by its definition requires two persons to commit, those two persons cannot be convicted of both the underlying crime and conspiracy.
27) In a murder case, if it is proven that a defendant did not intend to kill his victim, but instead intended only to "shoot him in the leg to scare him" the defendant will likely be convicted of A) Murder. B) Voluntary manslaughter. C) Involuntary manslaughter. D) Negligent homicide.
A) Murder.
Intent to cause serious bodily harm (substantial risk of death or prolonged injury to victim) is sufficient mens rea for murder.
30) In a jurisdiction governed by the MPC, the mens rea for negligent homicide is
A) Extreme recklessness.
B) Mere negligence.
C) A gross deviation from the standard of care.
D) Nothing; the MPC does not recognize negligent homicide.
C) A gross deviation from the standard of care.
This is correct; a gross deviation from the “reasonable person” standard of care must be shown.
34) Maurice gets a call from Ron, who in the past has sold him top-quality car stereos at a low price. Ron tells Maurice, “Hey, I got 300 stereos I’ll sell you for $10 each.” Maurice says “Great! Leave them in my warehouse on Bleecker.” Ron does so. But when Maurice sees them, he says, “Half of these are broken ? I won’t pay.” As it turns out, the stereos are stolen. Charged with receiving stolen goods, Maurice will likely be
A) Acquitted, because he did not actually take possession.
B) Acquitted, because he had no actual knowledge that the property was stolen.
C) Acquitted, because he did not complete the transaction.
D) Convicted.
D) Convicted.
Maurice has committed the crime of receiving stolen goods. Constructive knowledge such as unreasonably low price is sufficient for “knowing” that the goods were stolen.
41) Mel is painting his car in his garage, surrounded by flammable chemicals. He stops for a moment to take a smoke break, sits down, and falls asleep with the cigarette in his hand. The cigarette ignites some fumes and burns the garage down. Charged with arson under most modern statutes, Mel will likely be
A) Convicted, because his actions were reckless, sufficient mens rea for arson.
B) Acquitted, because he did not burn down a dwelling.
C) Acquitted, because the garage was his own property.
D) Acquitted, because he did not intend to start the fire or manifest extreme disregard for the danger.
D) Acquitted, because he did not intend to start the fire or manifest extreme disregard for the danger.
This is the required mens rea for arson.
42) A business owner reviewing an employee’s personal emails on a work computer does not violate the Fourth Amendment because
A) There is no legitimate expectation of privacy.
B) The computer is the property of the owner, and it is therefore the equivalent to a man searching his own wallet.
C) The business owner is not a government employee.
D) It is not a search.
C) The business owner is not a government employee.
This is the best answer, because no matter how egregious a violation of privacy, if there is no state action (a government officer, police, etc.), the Fourth Amendment does not apply.
47) In order to bring a suspect to the police station for a lineup, an officer must have
A) An articulable suspicion.
B) Some physical evidence linking the defendant to criminal activity.
C) A warrant.
D) Full probable cause to arrest.
D) Full probable cause to arrest.
Full probable cause to arrest must exist before any detention where the suspect does not feel free to leave such as a police organized line up.
57) Kyle tells the police that Ted is going to call him in two days to arrange a murder for hire. The police conduct a warrantless wiretap of the phone call, and arrest Ted for solicitation of murder. Ted’s motion to suppress the recording as evidence should be
A) Denied, because Kyle consented and the conversation related to a crime.
B) Denied, because a wiretap is not a “search” under the Fourth Amendment.
C) Granted, because Ted had a legitimate expectation of privacy.
D) Granted, because the police had sufficient time to obtain a warrant.
A) Denied, because Kyle consented and the conversation related to a crime.
Consent by one party when the conversation relates to a fire, medical emergency, crime, disaster, extortion, or hostage situation is enough to avoid the warrant requirement.
59) If it is established that a confession was coerced by the police, then
A) It can be used, but a limiting instruction must be read to the jury.
B) It is to be excluded from the prosecution’s case in chief, but can be used for impeachment purposes.
C) The prosecution may still proceed.
D) The charges against the defendant are dismissed.
C) The prosecution may still proceed.
The coerced confession may not be used by the prosecution for any purpose, but the case may proceed on other evidence.
67) If the judge in a criminal case determines that a defendant’s right to a speedy trial has been violated,
A) The conviction is set aside and a new trial is granted.
B) A trial must be held within 72 hours.
C) The charges are dismissed or the conviction reversed.
D) The defendant is entitled to compensation.
C) The charges are dismissed or the conviction reversed.
This is the best answer because it is the only proper remedy for violation of the right to a speedy trial.
69) In a trial with a twelve-person jury, a conviction is only proper if
A) The verdict is unanimous.
B) At least 9 jurors vote in favor of conviction.
C) The jurors are all the same race as the defendant.
D) The majority of jurors vote in favor of conviction.
B) At least 9 jurors vote in favor of conviction.
On a 12-member jury, a 9 to 3 vote is sufficient for conviction.
72) Marla is on trial for arson. Peter, an eyewitness, takes the stand. To everyone’s surprise, on cross-examination it begins to seem as though Peter may have had a hand in the crime. Peter begins to invoke his Fifth Amendment right after each question. Defense counsel requests that the witness be compelled to answer. The judge should
A) Compel Peter to answer, as failure to do so would violate Marla’s rights under the Confrontation Clause.
B) Compel Peter to answer, as he waived his Fifth Amendment right to remain silent when he took the stand.
C) Refuse to compel.
D) Compel Peter to answer, as he is not the defendant on trial and thus the privilege against self-incrimination is not applicable.
C) Refuse to compel.
A witness may invoke the Fifth Amendment privilege selectively, it is only the defendant who waives the Fifth by taking the stand.
83) Shawn and Tanya break into Umberto’s house at night and are arrested and charged with burglary and conspiracy to commit burglary. At trial, the prosecutor presents evidence that they had planned the break-in, but does not successfully demonstrate what they intended to do once inside. Shawn and Tanya will likely be
A) Convicted, because agreement and substantial step is enough for conspiracy, even if the crime is not committed.
B) Convicted, because they broke into a dwelling at night and therefore an inherently dangerous situation was created.
C) Acquitted, because the conspiracy merged with the burglary once it was actually committed.
D) Acquitted, because the prosecution failed to prove agreement or intent to commit the substantive crime of burglary.
D) Acquitted, because the prosecution failed to prove agreement or intent to commit the substantive crime of burglary.
This is the best answer, because the prosecution must prove all elements, and an element of burglary is intent to commit a felony or larceny which the facts state were not demonstrated.
84) Max enters a liquor store, pulls out a gun, and demands that the cashier empty the register. As Max looks around for customers and police, the cashier reaches out and attempts to grab the gun. Max nervously drops it, accidentally discharging it, and a nearby customer is killed. Max is charged with first degree murder. On these facts, he will likely be
A) Acquitted, because he lacked the necessary intent required for first degree murder.
B) Acquitted, because the cashier’s actions were the proximate cause of the death.
C) Convicted, because any death that is a natural and probable consequence of a felony is first degree murder.
D) Convicted, because intent to commit serious bodily harm is assumed when a deadly weapon is used.
C) Convicted, because any death that is a natural and probable consequence of a felony is first degree murder.
This is the best answer because it is an accurate restatement of the felony-murder rule.
90) Gerald tells Nancy that he is planning to confront Dan, a known gang member, and “beat him senseless.” Nancy, whose sister was attacked by a member of the same gang, thinks this is a great idea and tells Gerald the name of a park which she knows Dan frequents. When Gerald gets there, he assaults Dan in front of Barry. Barry watches the entire attack, smiling, but does nothing to stop it. Barry is also charged with assault on a theory of accomplice liability. His best defense to that charge is
A) He was too frightened to act in Dan’s defense.
B) He did not take any action to assist Gerald.
C) He owed no legal duty to rescue Dan.
D) He did not have criminal intent.
B) He did not take any action to assist Gerald.
This is the best answer because an action, even if it is just words of encouragement, is required to create accomplice liability.
91) A bank robbery takes place and two eyewitnesses state the getaway car was a gray Honda Accord. Minutes later, Dave is stopped in his blue Honda Accord 3 blocks from the scene. The officer sees a locked briefcase on the back seat and asks Dave to open it. When Dave refuses, the officer pries the briefcase open and finds cocaine. Dave’s motion to suppress introduction of the cocaine as evidence will most probably be
A) Granted, because insufficient probable cause existed for the search.
B) Denied, because the briefcase was in plain view and therefore subject to search.
C) Granted, because the briefcase was locked and Dave refused consent.
D) Denied, because the briefcase was within Dave’s “wingspan.”
C) Granted, because the briefcase was locked and Dave refused consent.
This is the best answer because the right of officers to search automobiles under exigent circumstances (with probable cause) but without a warrant does not apply to locked cases.
92) A bank robbery takes place and two eyewitnesses state the getaway car was a gray Honda Accord. Minutes later, Dave is stopped in his blue Honda Accord 3 blocks from the scene. The officer sees a locked briefcase on the back seat and asks Dave to open it. When Dave refuses, the officer pries the briefcase open and finds cocaine. Dave is arrested and charged with possession of cocaine with intent to distribute. The prosecutor wants to bolster her case regarding intent, and executes a search warrant for Dave’s apartment. No drugs or other evidence are found. They do discover, however, that Dave often spends the night at the apartment of his girlfriend, Debbie. The prosecutor applies for a warrant to search Debbie’s apartment for cocaine. The magistrate, a former prosecutor, issues the warrant. In the pantry of Debbie’s apartment, a Tupperware container is found containing a small amount of cocaine. The container has Dave’s fingerprints on it. Dave’s motion to suppress introduction of the cocaine as evidence will most probably be
A) Granted, because Debbie was not a suspect and her residence could not be subject to a valid warrant.
B) Granted, because the warrant was invalid due to lack of probable cause.
C) Denied, because the warrant was issued subsequent to a valid arrest.
D) Granted, because the magistrate was biased.
B) Granted, because the warrant was invalid due to lack of probable cause.
This is the best answer, because there was no evidence that there was cocaine at Debbie’s apartment and the prosecutor was merely speculating that drugs might be there.
95) On a tip from a reliable informant that Mark is planning a bank robbery, Officer Lewis, in uniform, pays a visit to Mark’s house. Mark is not home, but his wife Sheila answers the door. Officer Lewis informs Sheila of his purpose and requests her consent to search the house. Sheila says “Certainly, we have nothing to hide.” and steps aside. Looking in the closet in the master bedroom, Officer Lewis finds floor plans of First National Bank and documents containing strategies for breaking in. When Mark returns home, Officer Lewis arrests him. After Mark’s arrest without a warrant, he is booked, a complaint is filed charging him with attempted robbery, and he is immediately indicted and arraigned. His trial begins five weeks later. On appeal, Mark could raise the issue that
A) The delay was a violation of his right to a speedy trial.
B) A preliminary hearing with live witnesses in front of a magistrate should have been held prior to indictment.
C) The failure to hold an immediate arraignment was a due process violation.
D) There was insufficient evidence to file a complaint.
B) A preliminary hearing with live witnesses in front of a magistrate should have been held prior to indictment.
This is the best answer because in a felony case, a preliminary hearing must be held (usually with witnesses) for a magistrate to determine whether there is probable cause to believe that the defendant committed the crime charged when a D is arrested without a warrant.
96) Officer Stanley pulls over John’s station wagon when he sees it has a broken tail light. Upon approaching the car, Officer Stanley notices Harry sitting on the passenger’s side and sees a handgun and several purses sitting in the rear compartment of the station wagon, beyond the back seat. He asks John about the items, and John replies, “Harry did it; all I did was give him a lift.” Both are arrested and charged, and four days later make their first court appearance and are indicted. On appeal, John and Harry can both argue
A) The failure to hold a Gerstein hearing was improper.
B) The stop was illegal because no articulable suspicion existed.
C) The illegal items were not within the “wingspan” of any occupant.
D) The arrest was unlawful because the officer did not have a warrant.
A) The failure to hold a Gerstein hearing was improper.
This is the best answer because whenever a warrantless arrest is made, a Gerstein hearing is required to be held within 48 hours in front of a magistrate to establish probable cause.
100) Tim, while demonstrating the capabilities of his new assault rifle, and believing the rifle to be unloaded pulls the trigger. A single bullet discharges, passes through Mary’s body and hits Jack killing them both. Tim is charged with the murder of both victims. Trial for the murder of Mary ends in a hung jury. Prior to the commencement of the trial for Jack’s murder, defense counsel in the trial for the murder of Mary, moves for dismissal. The motion will likely be
A) Granted, because double jeopardy attached after the jury was sworn in Mary’s case.
B) Granted, because Tim lacked the necessary intent for murder.
C) Denied, because double jeopardy does not apply when the first trial ends in a hung jury.
D) Denied, because the murder of each victim is a separate crime and double jeopardy does not apply.
C) Denied, because double jeopardy does not apply when the first trial ends in a hung jury.
This is the best answer because re-prosecution after a hung jury is not considered double jeopardy.
101) Officer hears breaking glass and sees Stan run out of a darkened liquor store at 3 a.m. as the alarm blares. Stan runs around the corner, out of Officer’s view, and hops into a car. Officer sees Stan drive away and pursues, lights flashing. Stan pulls over and Officer arrests him. Seeing nothing in the passenger compartment, Officer pops the trunk of the car and finds cash and a baseball bat. Stan’s motion to suppress the cash and baseball bat as evidence will likely be
A) Denied, because the officer had probable cause to search the trunk.
B) Denied, because a search incident to a valid arrest in an automobile always includes the trunk.
C) Granted, because the trunk area was out of the range of Stan’s control.
D) Granted, because the arrest was illegal and therefore the evidence is fruit of the poisonous tree.
A) Denied, because the officer had probable cause to search the trunk.
This is the best answer, because although normally an automobile search incident to arrest is restricted to areas within the suspect’s control, the existence of probable cause overrides this restriction.
104) In response to an informant’s tip, the police go to Dan’s house looking for illegal narcotics. Finding only Dan’s 12-year-old daughter at home, the police ask her permission to come in and look around. She agrees, and upon entry, the officers find several types of narcotics and drug paraphernalia. In a pretrial motion, Dan argues to suppress the evidence as fruits of an illegal search. After hearing the evidence and arguments of both lawyers, the trial court admits the evidence and Dan is convicted. Dan’s appeal on the grounds that the search was illegal should be
A) Granted, because his daughter did not have authority to consent to the search and was too young to knowingly consent.
B) Granted, because a warrant should have been obtained.
C) Denied, because Dan had the opportunity for full and fair litigation of his 4th Amendment claim at the trial level.
D) Granted, because the trial court committed reversible error.
C) Denied, because Dan had the opportunity for full and fair litigation of his 4th Amendment claim at the trial level.
This is the best answer because a defendant may not argue a search and seizure claim in an appeal if he has had opportunity for full and fair litigation of the issue at the trial level. This is true even if the appellate court believes that the trial court reached the incorrect result.
107) Michael's wife, Terry, is suffering from end stage cancer and is in terrible pain. Michael, Terry's sister Brenda, and the doctor discuss Terry's situation in the waiting room. Michael asks the doctor to turn up the intravenous drip of morphine to a lethal level. The doctor initially agrees; Brenda says nothing but nods. However, a few moments later the doctor changes his mind and tells Michael. Michael returns to Terry's room followed by Brenda and the doctor. Michael turns up the drip himself, as Brenda looks on. The doctor tries to restrain Michael and calls security. Terry dies as a result of the morphine overdose. What is the most serious crime of which Brenda can be convicted? A) Murder. B) Attempted murder. C) Conspiracy to commit murder. D) None of the above.
A) Murder.
This is the best answer because Brenda “agreed” through her nodding during the discussion and her subsequent actions. Verbal or written agreement is not required for conspiracy. Conspirators are directly liable for all foreseeable crimes to which they agree, even if they do not commit the act.
112) During Tom's trial for robbery, two witnesses testified. Nancy, the victim, stated that Tom pulled a gun on her from behind and said "hand over your purse or I'll kill you" and then grabbed her purse off her shoulder and ran. A passerby testified that Tom ran up from behind, grabbed the purse and ran, but that no weapon or threats were used. Tom can be convicted of A) Either robbery or larceny. B) Larceny only. C) Neither robbery nor larceny. D) Both robbery and larceny.
A) Either robbery or larceny.
This is the best answer because Tom can be convicted of robbery or larceny depending on whom the jury believes. Robbery is larceny by force in a person’s presence, so if Nancy’s testimony is believed, Tom will be convicted of robbery. If the purse was simply taken with no force involved, Tom will be convicted of larceny.
114) Detective Johns received information from Taylor, a police informant who had given reliable information in the past, that Wanda had a large amount of the narcotic PCP in her house. Taylor specified that he knew Wanda socially, and that six weeks prior, he had been at Wanda’s home and seen the drugs there, inside a large wooden chest in the living room. Detective Johns, upon inquiry, discovered that Taylor did in fact know Wanda. Johns drew up an affidavit specifying half a kilo of PCP was on the premises, went before a neutral magistrate, and got a search warrant. The next day, in Wanda’s house, inside of a shoebox in a basement closet, Johns found a small amount of PCP and a baggie of marijuana. The warrant procured by Johns is likely
A) Valid, because it was based on reliable information from a reliable informant.
B) Valid, because the magistrate was impartial.
C) Invalid, because there was no corroboration of the informant’s claims.
D) Invalid, because the information was too remote in time to justify a finding of probable cause.
D) Invalid, because the information was too remote in time to justify a finding of probable cause.
Probable cause sufficient for a warrant exists when information is presented that would lead a reasonable person to conclude that seizable evidence will be found. The six-week delay raises serious doubts as to whether the evidence would still be in Wanda’s home and a small amount of drugs found is not even close to half a kilo as stated in the warrant application.
116) In the State of Woollahra, a statute defines bribery as “the offer and acceptance of money in exchange for the consideration of a public official in the course of his or her duties.” Belinda, a lobbyist for the Save the Spotted Owl Society, offers Sophie, a Senator, a $500 “campaign contribution” to vote yes on an important legislative bill. Sophie takes the money without comment, but then votes no on the bill. Both Belinda and Sophie are charged with bribery and conspiracy to commit bribery. Sophie will likely be
A) Acquitted, because she did not vote yes and so there is no proof of conspiracy.
B) Convicted, because an agreement was made and money was exchanged, which is a substantial step in furtherance.
C) Acquitted, because bribery as defined by the statute requires the agreement of two persons.
D) Convicted, because she considered Belinda’s request and took the money.
C) Acquitted, because bribery as defined by the statute requires the agreement of two persons.
If a crime by its definition requires two persons agreement to commit, both must agree and the facts do not indicate Sophie agreed.
117) Q and R are hanging out at Q's house looking at Q's rifles. Q, intending only to demonstrate the action on his newest rifle acquisition, fires a shot toward his neighbor's yard, even though he knows his neighbor is at home and likely to be out in his yard. The bullet hits S, a meter reader in the neighbor's yard. What is the most serious crime of which Q can be convicted? A) Murder. B) Voluntary manslaughter. C) Involuntary manslaughter. D) Q cannot be convicted.
A) Murder.
Q is likely guilty of murder. Extreme recklessness is sufficient mens rea for murder, and Q’s actions seem to fit the definition.
120) Tim shoplifts a candy bar from a convenience store, in full view of a video camera. Officer Bevis is watching and follows Tim out of the store and down the street. Just as Tim gets home and closes his front door, Bevis knocks on it. Tim opens the door and Bevis arrests him. Upon searching Tim’s home, Bevis finds an empty candy bar wrapper and no receipt. If Tim loses his argument that the arrest was unlawful, his motion to exclude the candy bar wrapper as evidence will likely be
A) Granted, because an officer may only pat-down for weapons incident to an arrest
B) Granted, because Bevis could not have specified the location of the candy bar wrapper prior to the search.
C) Denied, because a full search is permissible incident to a lawful arrest.
D) Granted, because Bevis did not have a reasonable apprehension of danger.
C) Denied, because a full search is permissible incident to a lawful arrest.
Incident to a lawful arrest, an officer may conduct a full search of the suspect.
124) In a jurisdiction governed by the Model Penal Code, Ted and Sandra go on vacation, leaving their 10 year old daughter Lea in charge of the house and their 9 month old infant. While they are away, the infant becomes ill. The illness is treatable, but Lea ignores the baby’s cries and watches TV. The infant dies of fever. If Lea is charged with criminally negligent homicide, she will likely be
A) Convicted, unless the defense can prove by clear and convincing evidence that she did not know her actions were wrong.
B) Acquitted, unless the prosecution can prove by clear and convincing evidence that she knew her actions were wrong.
C) Acquitted, because she is conclusively presumed incapable of forming the intent to commit a crime.
D) Acquitted, unless the prosecution can prove beyond a reasonable doubt that she knew her actions were wrong.
B) Acquitted, unless the prosecution can prove by clear and convincing evidence that she knew her actions were wrong.
A child between 7 and 14 is presumed incapable of intending a crime, but the presumption may be rebutted by clear and convincing evidence.
126) A criminal statute in the State of Nalya makes it a gross misdemeanor to sell firearms to anyone under 18. Violators are strictly liable for the crime. Pete’s Gun Emporiorama has a strict policy to check for identification before making any sale. Bubba works at Pete’s, but routinely fails to check for identification of young looking people. The owner Pete has knowledge of Bubba’s transgressions, but does not take any action to remedy the situation. One afternoon, Bubba comes in to work after a lunch consisting of a six-pack of beer. At work, he sneaks another two beers and promptly passes out behind the counter. Dale, who is 14, comes in to the store and sees Bubba’s condition. He takes a $500 handgun out of the unlocked case and, misreading the sign, leaves $50 cash on the counter, thinking it is payment in full. Bubba is arrested for violating the statute. He will likely be
A) Acquitted, because he lacked the requisite intent.
B) Convicted, because voluntary intoxication is never a defense.
C) Acquitted, because he did not perform the actus reus.
D) Convicted, because the statute makes this a strict liability crime.
C) Acquitted, because he did not perform the actus reus.
The statute proscribes the sale of firearms to minors. Bubba did not perform the actus reus of the sale, so he cannot be criminally liable.
