Criminal Law And Procedure - Knowledge Set

Question 1

Some constitutional rights applicable in criminal cases are offense specific (i.e., when invoked, they apply only to the specific charge for which they were invoked), and some are not offense specific (i.e., once invoked, they apply to all charges against the defendant and not just the charge for which they were invoked). Which of the following statements is correct regarding whether the Fifth and Sixth Amendments are offense specific?

A Neither the Fifth Amendment nor the Sixth Amendment is offense specific.

B The Fifth Amendment is not offense specific, but the Sixth Amendment is offense specific.

C The Fifth Amendment is offense specific, but the Sixth Amendment is not offense specific.

D Both the Fifth Amendment and the Sixth Amendment are offense specific.

Answer 1

B

The correct choice is that the Fifth Amendment is not offense specific, but the Sixth Amendment is offense specific. Thus, if a defendant invokes his right to counsel, under the Fifth Amendment the police cannot interrogate the defendant about any charge without counsel. But under the Sixth Amendment, the defendant can be interrogated regarding a different charge. The difference is significant when a defendant requests counsel after being charged and is put into a cell with an informer. The Sixth Amendment right to counsel applies to any post-charge interrogation—whether or not the defendant knows he is being interrogated by a government agent. The Fifth Amendment right to counsel, on the other hand, applies only when the defendant knows that he is being interrogated by a government agent. Thus, an undercover informer in the defendant’s cell can question the defendant about anything without violating his Fifth Amendment right to counsel, and under the Sixth Amendment, the informer can question the defendant about any crime but the one with which he is charged. Therefore, if the cellmate informer questions the defendant and obtains information regarding a crime different from the one with which the defendant was charged, the questioning violates neither the Fifth nor the Sixth Amendment.

Recommended Activity: Read Criminal Law and Procedure III.C.3. Offense Specific

Question 2

In criminal cases, certain rights may be waived. Which of the following statements is correct regarding waiver of the right to counsel under the Fifth and Sixth Amendments?

A Neither the Fifth nor Sixth Amendment right to counsel can be waived, because the rights provided by each are fundamental to a fair trial.

B The Fifth Amendment right to counsel may be waived by a knowing and voluntary waiver, but the Sixth Amendment right cannot be waived.

C The Fifth and Sixth Amendment right to counsel may each be waived by a knowing and voluntary waiver.

D The Sixth Amendment right to counsel may be waived by a knowing and voluntary waiver, but the Fifth Amendment right cannot be waived.

Answer 2

C

The correct choice is the Fifth and Sixth Amendment right to counsel may each be waived by a knowing and voluntary waiver. Whether a waiver is knowing and voluntary is judged by a totality of the circumstances. Note that as to the Fifth Amendment, if a defendant is given Miranda warnings (e.g., notice of a right to counsel and to remain silent) and chooses to speak, the court usually will find a valid waiver. Indeed, to exercise the Fifth Amendment right to counsel, the defendant must make an unambiguous and specific request for counsel. Words like “Maybe I should talk to a lawyer,” do not equal a request to do so. Note also that the Supreme Court has held that waiver of the Sixth Amendment right to counsel does not require the presence of counsel, unless the defendant had already requested counsel.

Recommended Activity: Read Criminal Law and Procedure III.C.4. Waiver and III.D.3.b. Waive Rights

Question 3

Which of the following statements is true about the right to remain silent under Miranda?

A A detainee may invoke the right to remain silent by not saying anything after being given Miranda warnings.

B If the detainee invokes the right to remain silent, all questioning must cease unless and until the defendant reinitiates questioning.

C The right to remain silent can be waived only in the presence of the detainee’s attorney.

D The police may reinitiate questioning if they scrupulously honor a request to remain silent.

Answer 3

D

The police may reinitiate questioning if they scrupulously honor a request to remain silent. The Supreme Court has allowed the police to reinitiate questioning where: (i) the police ceased questioning immediately upon the detainee’s request and did not resume questioning for several hours; (ii) the detainee was given a fresh set of Miranda warnings; and (iii) the questioning was limited to a crime that was not the subject of the earlier questioning. It is not true that if a detainee invokes the right to remain silent, all questioning must cease unless and until the defendant reinitiates questioning. As discussed above, the police may reinitiate questioning about a different crime after several hours and rewarning the detainee. If a detainee is given Miranda warnings and says nothing, he has not invoked the right to remain silent. The right to remain silent must be explicitly invoked. If the detainee does not explicitly state that he wishes to remain silent, the police may continue to question the detainee. It is not true that the right to remain silent can be waived only in the presence of the detainee’s attorney. While a detainee has a right to an attorney, he may waive the right and decide to talk on his own.

Recommended Activity: Read Criminal Law and Procedure III.D.3.c. Right to Remain Silent

Question 4

Which of the following statements is true about the effect at trial of the Miranda rules?

A A confession obtained in violation of Miranda may be used to impeach the defendant’s testimony.

B A question at trial about the defendant’s silence during an interrogation results in a mistrial.

C A defendant’s silence after receiving Miranda warnings may be used to counter an insanity defense.

D If the police intentionally fail to give Miranda warnings, any statement obtained directly from the violation cannot be used at trial, but other evidence derived from such statements may be used.

Answer 4

A

A confession obtained in violation of Miranda may be used to impeach the defendant’s testimony if the defendant takes the stand at trial and the confession was otherwise voluntary. However, the confession is not admissible in the state’s case in chief as evidence of guilt, and a truly involuntary confession (e.g., one obtained through torture) is never admissible for any purpose. A question at trial about the defendant’s silence during an interrogation might NOT result in a mistrial. A mistrial can be avoided if the admission was a harmless error. A single question may be harmless error if it is followed by an objection from the defense, sustained by the judge, and then the jury is instructed to disregard the question. A defendant’s silence after receiving Miranda warnings may NOT be used to counter an insanity defense. (The prosecution’s claim would be, how insane could the defendant have been? He understood well enough to remain silent after being told that anything he says can be used against him in court.) The warnings carry an implicit assurance that silence will carry no penalty. If the police intentionally fail to give Miranda warnings, the fruit of an interrogation may NOT be used at trial. Following an intentional failure by the police to give a detainee his Miranda warnings, if he gives the police information that leads to nontestimonial evidence, it will be suppressed. If the failure to warn was not intentional, however, the evidence will probably not be suppressed.

Recommended Activity: Read Criminal Law and Procedure III.D.4. Effect of Violation

Question 5

Miranda warnings are required as a prerequisite to the admissibility of confessions resulting from custodial police interrogation. Which of the following statements is true about the custody requirement under Miranda?

A In considering whether a person was in custody during an interrogation, a court will consider the person’s experience with the criminal justice system.

B For Miranda purposes, a person may be in custody in his own home.

C For Miranda purposes, a voluntary detention may constitute custody.

D Whether a person is in custody depends on the subjective views of the person and the interrogator.

Answer 5

B

For Miranda purposes, a person may be in custody in his own home. Whether a person is in custody depends on whether his freedom of action is denied in a significant way. This is an objective test—whether a reasonable person under the circumstances would think that he is in custody. For example, if police officers handcuff a suspect in his own home, he is clearly in custody. Similarly, if they surround a person in the middle of the night in his own bedroom, awaken him, and begin questioning him, custody will be found. It is not true that custody depends on the subjective views of the person and the interrogator. As discussed above, the test is objective—what a reasonable person would think. Similarly, the courts will not consider a person’s experience with the criminal justice system in determining custody. This is a subjective factor. Neither is it true that a voluntary detention may constitute custody. If a person consented to the detention, he has not been denied the requisite freedom of action; he is there by choice.

Recommended Activity: Read Criminal Law and Procedure III.D.2.b. Custody Requirement

Question 6

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

A The prohibition against questioning the detainee ends immediately after he is released.

B The request must be clear to the police officer present.

C The police may continue to interrogate if the request is ambiguous.

D The request can be met by halting the interrogation to allow the detainee to consult with counsel and reinitiating the interrogation once counsel leaves.

Answer 6

C

If a detainee requests the presence of counsel at interrogation, under Miranda the police may continue to interrogate if the request is ambiguous. Once a detainee has expressed an unequivocal desire for counsel, all questioning must cease. However, when the request is ambiguous, the police may continue to interrogate until the detainee gives an unambiguous request. The police may also ask clarifying questions when the request is ambiguous. It is inaccurate to state that the detainee’s request for the presence of counsel must be clear to the police officer present. The test is objective—the request must be sufficiently clear that a reasonable police officer in the same situation would understand the statement to be a request for counsel. Following a request for the presence of counsel by a detainee, the prohibition against questioning the detainee does NOT end immediately after he is released. Instead, the prohibition lasts the entire time the detainee is in custody for interrogation, plus 14 more days after the detainee returns to his normal life. After that point, the detainee may be questioned about the same matter upon receiving a fresh set of Miranda warnings. Finally, if there has been a request for counsel, it is not enough for the police merely to halt the interrogation to allow the detainee to consult with counsel and then reinitiate the interrogation once counsel leaves. Mere consultation with counsel prior to questioning does not satisfy the right to counsel; the police cannot resume questioning the detainee in the absence of counsel.

Recommended Activity: Read Criminal Law and Procedure III.D.3.d. Right to Counsel

Question 7

In a criminal proceeding, the fruit of the poisonous tree doctrine provides that:

A not only must illegally obtained evidence (i.e., the “tree”) be excluded at trial, but also all evidence obtained or derived from exploitation of that evidence (i.e., the “fruit”)

B illegally obtained evidence (i.e. the “tree”) must be excluded at trial, but evidence obtained or derived from exploitation of that evidence (i.e., the “fruit”) is admissible

C evidence that a person has performed bad acts in the past (i.e., the “tree”) can be introduced at trial to show a proclivity for committing the present criminal act (i.e., the “fruit”)

D evidence that a person has performed bad acts in the past (i.e., the “tree”) cannot be introduced at trial to show a proclivity for committing the present criminal act (i.e., the “fruit”)

Answer 7

A

The fruit of the poisonous tree doctrine provides that not only must illegally obtained evidence be excluded at trial, but also all evidence obtained or derived from exploitation of that evidence. There are exceptions to the rule (e.g., when officers rely in good faith on a facially valid search warrant; when seeking to impeach trial testimony), and the rule generally applies only at criminal trials (i.e., it does not apply at civil proceedings or parole proceedings); neither does it apply to violations of agency rules or state laws. The choice indicating that evidence obtained or derived from exploitation of illegally obtained evidence is admissible is the opposite of the exclusionary rule. The choices regarding evidence that a person has performed bad acts in the past are based on an evidence law concept. Generally, evidence of prior bad acts cannot be used to imply that the defendant acted improperly in the case being tried due to concerns of relevance and undue prejudice and confusion. In any case, these choices do not reflect what is commonly called the “fruit of the poisonous tree” doctrine in the lexicon of criminal procedure.

Recommended Activity: Read Criminal Law and Procedure V.A.2.a. Fruit of the Poisonous Tree

Question 8

The probable cause to arrest standard requires that a police officer have __________ of reasonably trustworthy facts and circumstances sufficient to warrant a reasonably prudent person to __________ that the suspect has committed or is committing a crime for which arrest is authorized by law.

A Personal knowledge; believe beyond a reasonable doubt

B Knowledge; believe

C Personal knowledge; believe

D Knowledge; believe beyond a reasonable doubt

Answer 8

B

The best statement of the probable cause requirement is the officer must have knowledge (but not necessarily personal knowledge) of reasonably trustworthy facts and circumstances sufficient to warrant a reasonably prudent person to believe that the suspect has committed or is committing a crime for which arrest is authorized by law. This is a totality of the circumstances test, and a police officer’s training and experience can come into play. The choices indicating that the officer must have personal knowledge of the facts are incorrect; the officer can base the decision on reliable “tips” from others, on a police report, on a police radio broadcast, or the like. The choices indicating that the officer must believe beyond reasonable doubt that the suspect is committing or has committed a crime are incorrect because the standard is too onerous; it is sufficient that a reasonable person would believe that a crime has been or was being committed.

Recommended Activity: Read Criminal Law and Procedure II.B.2.a. Probable Cause Requirement

Question 9

If the police do not have probable cause to make an arrest, which of the following statements best reflects their ability to stop a person for investigatory purposes?

A The police may stop a person for investigatory purposes as long as they have at least a scintilla of suspicion.

B The police may not stop a person for investigatory purposes absent probable cause to arrest.

C The police may stop a person for investigatory purposes if they have at least reasonable suspicion to investigate based on articulable facts.

D The police may not stop a person for investigatory purposes absent probable cause to investigate.

Answer 9

C

The statement that the police may stop a person for investigatory purposes if they have at least reasonable suspicion to investigate based on articulable facts reflects the correct standard for making an investigatory stop, also known as a Terry stop. Such stops should be brief and for no longer than necessary to verify or refute the officer’s suspcion. Reasonable suspicion requires less than probable cause, but more than a vague notion or gut feeling. The suspicion can be based on personal observation, reliable tips, police flyers, a bulletin, or the like. Whether the standard is met is judged under the totality of the circumstances. The choices indicating that the police may not stop a person for investigatory purposes absent probable cause are both incorrect, because, as indicated above, probable cause is not required. Reasonable suspicion is sufficient. Moreover, the choice requiring probable cause to arrest also is incorrect because a stop can be made for suspicion of criminal activity; investigatory stops are not limited to cases where the police already believe an arrest is warranted. It is not correct that the police may stop a person for investigatory purposes as long as they have at least a scintilla of suspicion, because a scintilla is a very small amount. The scintilla of proof standard is too little suspicion to satisfy the Fourth Amendment requirement that searches and seizures be reasonable. It is sometimes used as the standard for determining whether a case may be taken from a jury and decided on a motion for summary judgment (i.e., if there is a scintilla of evidence regarding a material issue, the case should not be taken from the jury).

Recommended Activity: Read Criminal Law and Procedure II.B.3.a. Investigatory Detentions (Stop and Frisk)a

Question 10

Which of the following statements is correct regarding the ability of police officers to stop automobiles for investigatory purposes?

A The police may stop an automobile for investigatory purposes without cause because automobiles are not areas protected by the Fourth Amendment.

B The police may not stop an automobile for investigatory purposes unless they have probable cause to believe that the driver has broken a law.

C The police may not stop an automobile for investigatory purposes unless they have reasonable suspicion that the driver has broken a law.

D The police may stop automobiles for investigatory purposes even without reasonable suspicion if they make the stops on a neutral, articulable basis to investigate a problem closely related to the mobility of automobiles.

Answer 10

D

It is true that the police may stop automobiles on a neutral, articulable basis to investigate a problem closely related to the mobility of automobiles. Generally, to make an investigatory stop of an automobile, the police must have at least reasonable suspicion that the driver or an occupant violated or was about to violate some law (i.e., the normal Terry standard). However, the Supreme Court has recognized that the mobility of automobiles can cause special problems, and allow the police to set up roadblocks to stop automobiles even without individualized suspicion to investigate these problems. A good example would be a roadblock that stops every car to determine whether the drivers are intoxicated. The police do not need to have probable cause to believe that the driver has broken the law to stop an automobile for investigatory purposes, because automobiles can be stopped on reasonable suspicion or even without any individualized suspicion, as discussed above. The police do not need to have even reasonable suspicion that the driver has broken the law to stop an automobile for investigatory purposes. First, the driver is not the only possible object of reasonable suspicion. And second, as discussed above, automobiles can be stopped even without any individualized suspicion, to investigate a problem closely related to automobiles and their mobility, as long as the stops are made on a neutral and articulable basis. The choice indicating that automobiles are not areas protected by the Fourth Amendment is incorrect. The Fourth Amendment protects people rather than places. And the courts have held that people do have a privacy interest (albeit a diminished one) when in their automobiles and are protected by the Fourth Amendment.

Recommended Activity: Read Criminal Law and Procedure II.B.3.b. Automobile Stops

Question 11

For Fourth Amendment purposes, which of the following people is LEAST likely to be found to have a reasonable expectation of privacy in the place searched?

A A person who came to the premises that were searched to buy illegal drugs.

B A person who owns the premises that were searched but does not live there.

C A person who lives in the premises that were searched but does not own it.

D A person who was an overnight guest at the place searched.

Answer 11

A

The Supreme Court has held that a person who was on the premises that were searched to buy illegal drugs does not have a reasonable expectation of privacy in the premises. A claim that a search violated the Fourth Amendment can be raised only by a person who has a reasonable expectation of privacy in the place searched. The Supreme Court has held that a person has a reasonable expectation of privacy any time she owns the place that was searched or has a right to possession of it; whether or not she lives there would not affect this interest. The Court has also held that if the place searched is the person’s home, then she has a reasonable expectation of privacy, regardless if she owned or had a right to possess it. Finally, the Supreme Court has held that an overnight guest at the place searched also has a reasonable expectation of privacy in the premises for Fourth Amendment purposes.

Recommended Activity: Read Criminal Law and Procedure II.C.3. Physical Intrusion into Constitutionally Protected Area or Violation of Reasonable Expectation of Privacy

Question 12

The search incident to arrest exception to the warrant requirement applies:

A Only if the police fear for their safety

B After any constitutional arrest

C After any arrest, even if the arrest itself is unconstitutional

D Only if the arrest is for a felony crime

Answer 12

B

The police may conduct a search incident to arrest after any constitutional arrest. The Fourth Amendment prohibits unreasonable searches and seizures. Generally, for a search to be valid, it must be pursuant to a warrant issued by a neutral and detached magistrate and based on probable cause to believe that seizable evidence or fruits of a crime will be found on the premises to be searched. However, searches incident to arrest are an exception to the general rule. The choice that this search can be made after any arrest, even if it is unconstitutional is wrong. The police may conduct a search incident to an arrest whenever they arrest a person, even if the arrest is invalid under state law, as long as the arrest was constitutionally valid (e.g., reasonable and based on probable cause). Although the exception is based on safety concerns, the Supreme Court has held that it is not necessary that the police fear for their safety for a warrantless search to be conducted following an arrest. The search may be conducted incident to arrest in any case, as long as it is conducted contemporaneously with the arrest. It is not true that the exception applies only in the case of felony arrests. As discussed above, the exception applies after any lawful arrest.

Recommended Activity: Read Criminal Law and Procedure II.C.5.a. Search Incident to a Lawful Arrest

Question 13

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

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

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

C The police must have inadvertently discovered the item.

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

Answer 13

C

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 (i) must be legitimately on the premises where the item is found; (ii) the item must be evidence, contraband, or a fruit or instrumentality of a crime; (iii) the item must be in plain view; and (iv) it must be immediately apparent (i.e., probable cause) that the item is evidence, contraband, or a fruit or instrumentality of a crime.

Recommended Activity: Read Criminal Law and Procedure II.C.5.c. Plain View

Question 14

What separates voluntary manslaughter from murder is:

A The killing is “caused” by the commission of a felony

B The killing is “caused” by the commission of a crime not amounting to a felony

C The lack of express malice

D Adequate provocation

Answer 14

D

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.

Recommended Activity: Read Criminal Law and Procedure VII.C.2.b. Voluntary Manslaughter

Question 15

Felony murder generally requires that:

A 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

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

C 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 have been 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 15

A

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.

Recommended Activity: Read Criminal Law and Procedure VII.C.4. Felony Murder (and Related Matters)

Question 16

In most states, murder is of the second degree, but the murder is of the first degree when:

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 “a depraved heart” can be shown

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

Answer 16

B

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.

Recommended Activity: Read Criminal Law and Procedure V.B.1.c. Defense to First Degree Murder, But Not Second Degree Murder

Question 17

Which of the following is true regarding the provocation required to reduce murder to manslaughter?

A As long as the defendant was in fact provoked, it does not matter if an ordinary person would have been provoked under the circumstances.

B Whether the defendant had sufficient time to cool off is measured solely by an “ordinary person,” objective standard.

C The provocation must be such as to raise a sudden and intense passion in the mind of an ordinary person, and the defendant must have in fact been provoked.

D As long as an ordinary person would have been provoked, it does not matter whether the defendant was in fact provoked.

Answer 17

C

For reducing murder to manslaughter, the provocation must be such as to raise a sudden and intense passion in the mind of an ordinary person, and the defendant must have in fact been provoked. The provocation requirement for voluntary manslaughter has both objective and subjective elements. The provocation must be such that an ordinary person would have been provoked, and the defendant must have been so provoked. There are also objective and subjective elements as to the “cooling off” issue. If sufficient time elapsed between the provocation and the killing such that a reasonable person would have cooled off, or if the defendant in fact “cooled off,” a reduction to voluntary manslaughter is not available.

Recommended Activity: Read Criminal Law and Procedure V.B.1.c. Defense to First Degree Murder, But Not Second Degree Murder

Question 18

Which of the following presents the strongest intervening event to relieve the defendant of homicide liability?

A The defendant stabs the victim; the victim commits suicide due to the resulting pain.

B The defendant stabs the victim, who is treated at a hospital. Due to negligent care, the victim contracts an infection and dies.

C The defendant stabs the victim; the victim refuses medical treatment and dies.

D The defendant stabs the victim, who is treated for two hours at a hospital. On his way home from the hospital, the victim is killed in an automobile accident.

Answer 18

D

The case where the defendant stabs the victim, who after being treated at the hospital, is killed in an automobile accident, is likely to present an intervening event sufficient to relieve the defendant of homicide liability. As a general rule, an intervening act will shield the defendant from liability if the act is a mere coincidence or is outside the foreseeable sphere of risk created by the defendant’s act. The automobile accident presents a case of a mere coincidence that is outside the foreseeable sphere of risk. It could be said that, but for the defendant’s act of stabbing the victim, the victim probably would not have been in an automobile accident. However, the connection between the stabbing and the automobile accident is too tenuous and unforeseeable to allow for homicide liability against the defendant. Acts by third parties that are within the foreseeable sphere of risk created by the defendant’s act will not be sufficient intervening acts to relieve the defendant of homicide. Unforeseeable risks, however, will be sufficient. Negligent medical care (as opposed to grossly negligent or intentional mistreatment) is not a sufficient intervening act to relieve the defendant of homicide liability. Acts by the victim, such as refusing medical care and committing suicide, generally will not be considered intervening acts.

Recommended Activity: Read Criminal Law and Procedure VII.C.5.c. Intervening Act

Question 19

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

A the defendant reaches a place of temporary safety

B the defendant leaves the scene of the felony

C the victim dies

D the last act required to complete the felony is committed

Answer 19

A

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.

Recommended Activity: Read Criminal Law and Procedure VII.C.4. Felony Murder (and Related Matters)

Question 20

Under common law, the elements of a conspiracy include:

A A written agreement between two or more persons, an intent to enter into an agreement, and an intent to achieve the objective of the agreement.

B An agreement between two or more persons, an intent to enter into an agreement, an intent to achieve the objective of the agreement, and completion of the crime originally agreed upon.

C An agreement between two or more persons, an intent to achieve the objective of the agreement, and completion of the crime originally agreed upon.

D An agreement between two or more persons, an intent to enter into an agreement, and an intent to achieve the objective of the agreement.

Answer 20

D

Under common law, the elements of conspiracy include an agreement between two or more persons, an intent to enter into an agreement, and an intent to achieve the objective of the agreement. The agreement between the parties need not be written. Although most states require some overt act in furtherance of the conspiracy for the crime of conspiracy to be complete, the crime agreed upon does not need to be completed for the conspirators to be guilty of conspiracy.

Recommended Activity: Read Criminal Law and Procedure IV.C. Conspiracy

Question 21

The Wharton rule states that:

A If the crime requires two or more parties to commit it, there can be no conspiracy to commit the crime unless more parties take part in the crime than are necessary for its commission

B There can be no conviction for conspiracy if all parties with whom the defendant has conspired have been acquitted

C A conspiracy requires two or more “guilty minds”

D An overt act in furtherance of the conspiracy is required, but an act of mere preparation will suffice

Answer 21

A

If two or more people are necessary for the commission of the substantive offense (e.g., adultery, dueling, sale of contraband), the “Wharton rule” states that there is no crime of conspiracy unless more parties participate in the agreement than are necessary for the crime. Traditionally, there can be no conviction for conspiracy if all parties with whom the defendant has conspired have been acquitted. However, this is not a statement of the Wharton rule. At common law, a conspiracy requires two or more “guilty minds.” (The Model Penal Code and the modern trend is to follow a “unilateral approach” that requires only one guilty mind.) This is not, however, a statement of the Wharton rule. At common law, an overt act in furtherance of the conspiracy is not required; however, this is not the Wharton rule.

Recommended Activity: Read Criminal Law and Procedure IV.C.1.a.4)c) Wharton-Type Problems

Question 22

Which of the following describes sufficient intent to convict a defendant of an attempted crime?

A The awareness by the defendant that he is acting in a proscribed way and that any attendant circumstances required by the crime are present.

B The intent to perform an act and obtain a result that, if achieved, would constitute a crime.

C A reckless disregard of an obvious or high risk that a particular harmful result might occur from the conduct.

D The intent required for the completed offense.

Answer 22

B

The intent required for an attempted crime is the intent to perform an act and obtain a result that, if achieved, would constitute a crime. Note that regardless of the intent required for a completed offense, an attempt always requires a specific intent. The awareness by the defendant that he is acting in a proscribed way and that any attendant circumstances required by the crime are present more closely describes “general intent.” Attempt is a specific intent crime. A reckless disregard of an obvious or high risk that a particular harmful result might occur from the conduct more closely describes “malice.” Attempt is a specific intent crime.

Recommended Activity: Read Criminal Law and Procedure IV.D.1. Intent

Question 23

Traditionally, which of the following is a defense to solicitation?

A The solicitation could not have been successful due to actual circumstances.

B There was no overt act committed in furtherance of the solicitation.

C The solicitor is exempt from liability for the completed crime.

D The solicitor withdrew the solicitation.

Answer 23

C

The solicitor would have a defense if she could not be guilty of the intended crime because of a legislative intent to exempt her. It is not a defense that the solicitation could not have been successful due to actual circumstances surrounding the crime. (This is factual impossibility.) The culpability of the solicitor is measured by the circumstances as she believed them to be. It is generally not a defense that the solicitation has been withdrawn once it has been made. However, note that the M.P.C. recognizes renunciation as a defense if the defendant prevents the commission of the crime, such as by persuading the person solicited not to commit the crime. For solicitation, no overt act in furtherance of the solicitation is required. (An overt act is usually required for conspiracy.)

Recommended Activity: Read Criminal Law and Procedure IV.B.3. Defenses

Question 24

Acting with probable cause, the police arrested a man in connection with the armed robbery of a liquor store. After being given Miranda warnings, the man confessed to the robbery but denied his involvement with several other recent armed robberies of businesses in the area. He was formally charged with the one robbery and put into a cell with a paid informant working undercover for the police. The informant had been instructed to find out what he could about the other robberies but not to ask any questions. The informant began talking about a convenience store robbery in which a bystander was shot and seriously injured by the robber, and he deliberately misstated how it happened. The man, unaware that his cell mate was an informant, interrupted to correct him, bragging that he knew what really happened because he was there, and proceeded to make incriminating statements about the robbery. The man was subsequently charged with armed robbery and attempted murder in the convenience store robbery.

At a motion-to-suppress hearing on that charge, if the man’s attorney moves to exclude the statements made to the informant, should the motion be granted?

A
Yes, because the informant deliberately elicited incriminating statements in violation of the man’s Sixth Amendment right to counsel.

B Yes, because the informant’s conduct constituted custodial interrogation in violation of the man’s Fifth Amendment privilege against self-incrimination.

C No, because the man had not yet been charged with the robbery of the convenience store when he made the statements to the informant.

D No, because the informant’s conduct did not constitute interrogation.

Answer 24

C

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

Question 25

A driver was operating her car on a city street when she was stopped by a police officer for speeding. As the police officer reached the driver’s car, he saw her put something into her purse. The officer told the driver, “Ma’am, you were speeding; that’s why I stopped you. I’d like your driver’s license, and, by the way, what did you just put into your purse?” The driver responded, “It’s just a marijuana cigarette, but don’t worry, I’ve only had two and my driving judgment hasn’t been impaired.” The officer took her purse, removed the “joint,” and charged the driver with possession of marijuana as well as speeding. At the driver’s trial for marijuana possession, the prosecution seeks to introduce the marijuana cigarette into evidence. The driver’s attorney moves to suppress the evidence.

The defense motion should be:

A Granted, because the cigarette is fruit of the poisonous tree.

B Granted, because the police officer did not have a valid search warrant.

C Denied, because the police officer’s asking about the contents of the driver’s purse did not constitute custodial interrogation.

D Denied, provided the police officer had a reasonable suspicion of criminal activity.

Answer 25

C

The defense motion should be denied because the driver was not in custody when she made the statement. Persons temporarily detained for routine traffic stops are not in custody for Miranda purposes. Therefore, the driver was not entitled to Miranda warnings, and her statement about the marijuana was not tainted. Her statement thus properly provided the probable cause for the search of her purse. (A) is therefore wrong. (B) is wrong because this case falls within the automobile exception to the warrant requirement. Under that exception, if the police have probable cause to believe that a vehicle contains contraband or fruits, instrumentalities, or evidence of a crime, they may search the vehicle, including the driver’s belongings, without a warrant. Here, the driver’s response established probable cause to search her purse.(D) states the test for a stop, not a search. An automobile search requires probable cause.

Question 26

The defendant was arrested, given Miranda warnings, and charged with burglary. At the police station, he telephoned his mother and asked her to come to the station to post bail. Instead, his mother immediately called the family attorney. In the meantime, the police had begun questioning the defendant. Although he never told the police to stop the questioning, his answers were at first vague or clearly unresponsive. During the course of the questioning, the family attorney phoned the station and told the police that she had been hired to represent the defendant and would be there in half an hour. The police did not inform the defendant of the attorney’s call. Ten minutes later, the defendant admitted to committing the burglary, and signed a statement to that effect prepared by the police. The attorney arrived a few minutes later and advised the defendant to remain silent, but he told her that he had already signed a confession.

How should the court rule on the attorney’s pretrial motion to exclude the confession as evidence at trial?

A Grant the motion, because the police had a duty to inform the defendant that an attorney was coming to represent him.

B Grant the motion, because the defendant has been deprived of his Sixth Amendment right to counsel.

C Deny the motion, because the defendant’s statement admitting the crime was voluntary.

D Deny the motion, because the defendant waived his Miranda rights.

Answer 26

D

The defendant’s confession should be admitted because he waived his Fifth Amendment privilege against compelled self-incrimination after receiving Miranda warnings. Miranda v. Arizona requires that a person in custody be informed of his right to remain silent and his right to the presence of an attorney during questioning. A suspect may subsequently waive his rights by making a confession, as long as the waiver was knowing and voluntary. In this case, the defendant received proper Miranda warnings, and there is no indication that he did not understand what his rights were. Although his answers during questioning were initially unresponsive, he never asked for an attorney or indicated that he wished to remain silent, and he voluntarily confessed after a relatively short period of interrogation. Hence, he validly waived his Miranda rights. (A) is incorrect because the police have no duty to inform the defendant that an attorney is attempting to see him. The defendant’s ignorance of his attorney’s efforts has no bearing on whether he made a knowing waiver of his Miranda rights. (B) is incorrect because the defendant’s right to counsel was not violated. Although the defendant does have a separate Sixth Amendment right to counsel under Escobedo v. Illinois because he has already been arrested and charged with the crime, this right would only be violated if the defendant, after being informed of his right to counsel, had requested an attorney or had been prevented from seeing his attorney. Here, he made no request to see an attorney - even when he called his mother - and his attorney was allowed to see him immediately upon her arrival. Thus, he has waived his Sixth Amendment right to counsel. (C) is incorrect even though it is true that the defendant made a voluntary statement. Due process requires that for confessions to be admissible, they must be “voluntary,” based on the totality of the circumstances, and here all of the circumstances indicate that the defendant’s confession was voluntary. However, even a voluntary confession will be inadmissible if it was obtained in violation of Miranda rights. (D) is therefore a better choice than (C).

Question 27

A woman was arrested, given Miranda warnings, and questioned about an armed robbery. After she asked to speak with an attorney, the police stopped questioning her about the robbery. Several hours later, the police gave the woman a fresh set of Miranda warnings and began to question her about a different robbery. She did not repeat her request for an attorney and instead made several incriminating statements about the robbery. At the woman’s trial for the robbery for which she made incriminating statements, the prosecution seeks to have her statements introduced into evidence.

If the woman’s attorney objects on appropriate grounds, how should the court rule?

A Overrule the objection, because the police did not badger the woman into confessing.

B
Overrule the objection, because the woman did not renew her request for an attorney after receiving fresh Miranda warnings.

C Sustain the objection, because the police did not honor the woman’s request.

D Sustain the objection, because a confession obtained in violation of a defendant’s Miranda rights but otherwise voluntary may be used against the defendant.

Answer 27

C

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

Question 28

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?

A Yes, because a search warrant was required.

B
Yes, because the police may not execute an arrest warrant at the third party’s home.

C
No, because the police had probable cause to believe that the drug dealer was staying at the friend’s home.

D No, because the police had a valid arrest warrant and the marijuana was found incident to the arrest.

Answer 28

A

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

Question 29

A man and a woman were traveling in the man’s car when they were stopped by the police for running a red light. Before the police came up to the car, the man told the woman, “You owe me a favor. Keep this package for me,” and gave the woman a small foil package. The woman put the package in her backpack, saying, “O.K., but don’t tell me what’s in it.” Before the police even began to question the occupants, the man blurted out, “I’m clean, man, but she has a stash,” pointing at the woman. The officers searched the backpack that the woman was holding and found the foil package, which contained heroin. The woman was arrested, but the man was not.

Is the evidence found on the woman admissible?

A Yes, under the automobile exception.

B Yes, because due process imputes knowledge where there is willful ignorance.

C No, because due process forbids granting of immunity to the more culpable defendant.

D No, because the woman did not know that the package contained heroin.

Answer 29

A

The evidence is admissible because the search was valid. Even though the police have validly stopped an automobile, they cannot search the vehicle without meeting the requirements of one of the exceptions to the warrant requirement, such as the automobile exception (which requires probable cause) or consent. The automobile exception comes into play when the police have probable cause to believe that the vehicle contains evidence of a crime. Under the exception, the police may search anywhere in the vehicle in which the item for which they have cause to search may be hidden, including packages in the vehicle. The statement of the man to the police officers gave them probable cause to believe that the car contained evidence of a crime (i.e., that the woman had drugs somewhere in the car). Thus, the requirement for application of the automobile exception was present, providing validity for the warrantless search conducted by the police. Because the search was valid, the evidence found on the woman is admissible. Besides being an incorrect statement of law, (B) is incorrect because it focuses on the woman’s knowledge of the contents of the package. Whether the woman knew that heroin (or some other illegal substance) was in the package is irrelevant to the admissibility of the heroin. Even assuming that the woman knew of the contents, the search would not be valid unless there was a ground for the warrantless search. (D) similarly links the woman’s knowledge of the package’s contents to the admissibility of the evidence. As noted above, the admissibility of the evidence is dependent on the validity of the search that produced the evidence, rather than on the knowledge of the defendant as to the existence of the evidence. (C) is incorrect for three reasons: First, due process does not prohibit granting of immunity to a more culpable defendant. Second, there is no indication that immunity was even granted here (immunity from prosecution may be granted to compel a witness to answer questions. The facts merely state that the man was not arrested; this does not necessarily mean that he was granted immunity). Third, the call of the question relates to the admissibility of the evidence, and a grant of immunity does not relate to the question of the admissibility of the evidence found on the woman; such admissibility is determined by the validity of the search of the woman by the officers.

Question 30

Suspecting criminal activity, a police officer acting without a warrant peeked through a small opening in the shutters of an apartment. The officer observed the apartment’s tenant and the defendant making methamphetamine. The officer immediately entered the apartment and arrested the tenant and the defendant, and he confiscated the ingredients for the methamphetamine, the tools used for methamphetamine production, and any completed methamphetamine for evidence. The search is later ruled invalid at a suppression hearing.

May the defendant now claim that her Fourth Amendment rights have been violated by the seizure of the ingredients, tools, and methamphetamine from the apartment?

A Yes, because the items will be used in evidence against her.

B Yes, if she was an overnight guest of the tenant.

C No, because she was not the owner or occupier of the apartment.

D No, unless she admits to ownership of the items.

Answer 30

B

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

Question 31

A police officer was given a tip about a blonde male living in a nearby trailer park who was selling narcotics. The officer immediately drove to the trailer park and obtained from the manager the names of six blonde males who had trailers or mobile homes in the trailer park. At the first lot, the officer knocked on the defendant’s door, announced that he was a police officer, and asked to talk to the defendant. The defendant’s girlfriend, who did not live there but had been visiting, told the officer that the defendant would not be back for some time. The officer, believing that the girlfriend lived there, told her that he suspected that the defendant was dealing drugs and asked her if he could look around a little. The girlfriend said, “Sure, why not?” and let the officer in. After seeing nothing in the main living area, he went into the small back bedroom and opened several small storage compartments. In the corner of one of the compartments, he found an opaque bag. On opening it, he observed that it contained what appeared to be marijuana and confiscated the bag. Shortly thereafter, the defendant was arrested and charged with possession of narcotics with intent to distribute, a felony.

On a motion by the defendant’s attorney to suppress the introduction of the marijuana into evidence, how is the court likely to rule?

A For the defendant, because his girlfriend did not live in the trailer.

B For the defendant, because the search exceeded the scope of the consent.

C Against the defendant, because mobile homes fall within the automobile exception to the warrant requirement.

D Against the defendant, because the officer reasonably believed that the defendant’s girlfriend lived in the trailer.

Answer 31

D

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

Question 32

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 32

B

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 33

A felon intending to rob a market waited outside until there were no customers. When he saw that the market was empty, he went inside and walked up to the counter with his hand in his jacket pocket to simulate a gun. Before the clerk could turn around to see what the felon wanted, another customer entered the market, startling the felon, who turned and ran out the door.

Should the felon be found guilty on a charge of attempted robbery?

A No, because he used no actual force on the clerk nor threatened any.

B No, because he withdrew successfully from the robbery attempt.

C No, because he never entered the zone of perpetration.

D Yes, regardless of whether he totally abandoned his plan when the customer entered the market.

Answer 33

D

The felon should be found guilty of attempted robbery. With the specific intent to commit a robbery, the felon went beyond mere preparation for the offense. Once a person has gone beyond preparation, abandonment is not a defense to attempt. A criminal attempt is an act that, although done with the intention of committing a crime, falls short of completing the crime. The defendant must have the intent to perform an act and obtain a result that, if achieved, would constitute a crime. Also, the defendant must have committed an act beyond mere preparation for the offense. If a defendant has, with the required intent, gone beyond preparation, the general rule is that abandonment is not a defense. Even in those jurisdictions in which abandonment is a defense, such abandonment must be: (i) fully voluntary and not made because of the difficulty of completing the crime or because of an increased risk of apprehension; and (ii) a complete abandonment of the plan made under circumstances manifesting a renunciation of criminal purpose, not just a decision to postpone committing it or to find another victim. Here, the felon intended to take money from the clerk at the market by means of the threat of having a gun (i.e., by simulating a gun). Thus, the felon intended to commit a robbery. In walking up to the market counter while simulating a gun with his hand, the felon committed an act that was a substantial step toward commission of the intended crime, and that strongly corroborated his intent and purpose to commit the crime. All that was missing to complete the crime was for the clerk to turn around and, upon seeing the felon apparently armed, be forced to give up the money. Thus, the felon went far beyond mere preparation for the crime of robbery. Having gone beyond mere preparation, with the intent to commit robbery, the felon is guilty of attempted robbery. And, as explained above, even if the felon abandoned his plan when the customer entered the market, such abandonment will not afford him a defense. Even in those jurisdictions in which abandonment is a defense, the felon will not have a defense because his abandonment apparently occurred when the customer’s sudden presence increased the risk of apprehension. Thus, the abandonment was not fully voluntary and did not really manifest a renunciation of criminal purpose. (A) is incorrect because, to be guilty of attempted robbery, events need not have progressed to the point where the defendant has used or threatened to use force. Because the felon had the requisite intent for attempt and went beyond mere preparation by standing at the counter and simulating possession of a gun, he should be found guilty of attempted robbery. (B) is incorrect because, as detailed above, abandonment of an attempt does not afford a defense, and in any event, the felon’s abandonment here was not fully voluntary because the felon abandoned his plan due to an increased risk of apprehension. (C) is incorrect because a conviction of attempt does not require entry into a “zone of perpetration.” Rather, a defendant (with the requisite intent) need only have committed an act beyond mere preparation. The Model Penal Code and most state criminal codes require that the act constitute a substantial step toward commission of the crime and strongly corroborate the actor’s criminal purpose.

Question 34

The police of a resort town discovered that a well-known cat burglar was currently living in town under an assumed name. To try to catch her in the act of burglary, an undercover officer approached the burglar with a plan for a burglary. The undercover officer told the burglar that he knew who she was and that he had a plan to steal jewels from someone staying in one of the town’s resorts. The burglar initially refused the offer; however, after lengthy cajoling, she finally agreed to the plan. As the time for the burglary drew near, the burglar had second thoughts. Three hours before the theft was scheduled to take place, the burglar called the police and told them of the plan. She told them that she was not going to show up, but that her cohort (the undercover officer) would be there, and told them how to recognize the undercover officer.

Is the burglar guilty of conspiracy at common law?

A Yes, because the burglar made an agreement with the undercover officer to commit the theft.

B No, because there was no agreement.

C No, because the intended crime was never completed.

D No, because the burglar effectively withdrew.

Answer 34

B

There was an insufficient agreement for conspiracy liability 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. In addition, most states require an act in furtherance of the conspiracy, although an act of mere preparation will usually suffice. The agreement requirement means that the parties must agree to accomplish the same objective by mutual action. There must be a meeting of at least two “guilty minds”; i.e., between two or more persons who are actually committing themselves to the scheme. If one person in a two-party conspiracy is only feigning agreement, the other person cannot be convicted of conspiracy under the common law bilateral approach. Here, the officer, in his undercover capacity, was simply trying to set up a situation in which the burglar would be caught in the act. Thus, the undercover officer merely pretended to reach an agreement with the burglar to commit a burglary. At no time did the undercover officer actually commit himself to the burglary. Therefore, there could have been no agreement of two “guilty minds.” Absent the requisite agreement, the burglar cannot be guilty of conspiracy. (A) is incorrect because, as explained above, there was no agreement sufficient for a conspiracy conviction, since the undercover officer never intended to commit the burglary. (C) is incorrect because completion of the substantive crime is not necessary for a conviction of conspiracy. Consequently, although the actual burglary was not consummated, this would not preclude a conviction of conspiracy to commit burglary. (D) is incorrect because withdrawal is not a defense to a charge of conspiracy. Note that, by withdrawing, a person may limit her liability for subsequent acts of the other members of the conspiracy. However, this question pertains to the burglar’s potential guilt for conspiracy. As applied to the conspiracy charge, withdrawal will not afford a defense to the burglar.

Question 35

Two robbers planned to commit armed robberies targeting older victims. However, when the time came to actually commit the robbery, one of the robbers, thinking that the potential victim looked too much like his grandmother, backed out and told his cohort that he was going home. The second robber went ahead with the plan and robbed the elderly victim, who died of a heart attack due to the stress of the robbery. The second robber was arrested and implicated the first robber.

What crime(s) has the first robber committed?

A No crimes.

B Conspiracy.

C Murder.

D Murder and conspiracy.

Answer 35

B

The first robber is guilty of conspiracy but not murder. 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. In addition, most states require an overt act in furtherance of the conspiracy, although an act of mere preparation will usually suffice. The conspiracy was complete when the robbers agreed to commit the robbery and targeted their first victim. The first robber’s withdrawal is no defense to the conspiracy charge because a conspiracy is complete as soon as an agreement is made and an overt act is committed. Hence, (A) is incorrect. The first robber is not guilty of murder, however, because of his withdrawal. The murder charge would be based on felony murder, because the second robber caused the foreseeable death of the elderly victim from the heart attack during the commission of the felony. However, a conspirator may limit his liability for subsequent acts of other conspirators by performing an affirmative act that notifies the other members of the conspiracy in time for the other members to have the opportunity to abandon their plans. Here, the first robber told the second robber that he was going home in time for the second robber to abandon his plans. Hence, he is not liable for felony murder arising from the robbery, making (C) and (D) incorrect.

Question 36

A husband discovered his wife in bed with a neighbor. The neighbor ran out the back door. The husband screamed at his wife and vowed revenge. After consuming several drinks to build up his nerve and becoming intoxicated, the husband went to his friend’s house and borrowed a gun, and then went to the neighbor’s house. The neighbor had neglected to lock his front door, so the husband walked in. He found the neighbor trembling in the living room and pointed the gun at him. The neighbor immediately began apologizing and pleading for his life, but then suddenly he pulled a switchblade knife from his pocket. As the metal flashed, the husband fired a single shot at the neighbor, killing him.

What is the most serious crime of which the husband can be convicted?

A Murder.

B
Manslaughter, because the husband was still distraught over finding the neighbor in bed with his wife.

C
Manslaughter, because his intoxication prevented the husband from having the requisite intent for murder.

D No homicide crime, because the neighbor was about to attack him with a knife.

Answer 36

A

The husband can be convicted of murder. Murder is the unlawful killing of another human being with malice aforethought, which may be (i) intent to kill, (ii) intent to inflict great bodily injury, (iii) reckless indifference to an unjustifiably high risk to human life, or (iv) intent to commit a felony. Intentional use of a deadly weapon authorizes a permissive inference of intent to kill. Here, the husband uttered statements of revenge, confronted the neighbor with a loaded gun, and intentionally shot him when he pulled out a knife—more than enough evidence for a jury to find that the husband had the malice aforethought necessary for murder. Furthermore, none of the issues raised in the other choices will suffice to excuse the killing or reduce it to voluntary manslaughter. (B) is incorrect because the husband will not be able to meet all four tests for establishing the provocation necessary to reduce a killing from murder to voluntary manslaughter. The husband would have to offer evidence that (i) a provocation existed that would arouse sudden and intense passion in the mind of an ordinary person such as to cause him to lose his self-control, (ii) the husband was in fact provoked and lost his self-control, (iii) there was not sufficient time between the provocation and the killing for the passions of a reasonable person to cool, and (iv) the husband in fact did not cool off between the provocation and the killing. The husband can easily establish the first two elements, because discovery of one’s spouse in bed with another person is virtually always considered adequate provocation by common law courts. However, the time interval between the provocation and the killing was probably sufficient for a reasonable person to cool off, and the facts strongly suggest that the husband did in fact cool off—he consumed several drinks to build up his nerve and went to a friend’s house to get a gun before confronting the neighbor. Thus, a jury would probably reject a claim of voluntary manslaughter here. (C) is incorrect because the husband’s voluntary intoxication would not preclude a finding of intent for murder. Because the husband became intoxicated to build up his nerve to kill the neighbor, a court would probably find that his intent at the time he began drinking would apply to his later conduct. Furthermore, voluntary intoxication is no defense to crimes involving recklessness. The husband can still be liable for murder based on a state of mind of reckless indifference to human life—his conduct in becoming intoxicated and then confronting the neighbor with a loaded gun is sufficient to establish that state of mind. (D) is incorrect because the homicide will not be excused on self-defense grounds. A person may use deadly force in self-defense only if (i) he is without fault, (ii) he is confronted with unlawful force, and (iii) he is threatened with imminent death or great bodily harm. The husband is not without fault, however, because he initiated the assault and prompted the neighbor to pull the knife. His status as the aggressor deprives him of the right to use force in his own defense under these circumstances.

Question 37

One night when a man was very drunk, he took one of his rifles, loaded it, and fired a bullet through his front door. Unbeknownst to him, at the time he fired the rifle, someone was driving by the house. The bullet went through the front door, through the window of the car, and killed the driver. The shooter was convicted of murder and appeals. He contends that there was insufficient evidence to support a finding of murder.

How should the court of appeals rule?

A That the evidence is sufficient to prove that the killing was intentional.

B That the evidence is sufficient to prove that the killing was done with malice aforethought.

C That the evidence is insufficient, because the shooter did not know that the driver was driving by his house and therefore he could not have acted intentionally.

D That the evidence is insufficient, because at most the shooter’s conduct constituted gross negligence and involuntary manslaughter.

Answer 37

B

The court of appeals should rule that the evidence is sufficient to prove that the killing was done with malice aforethought. Under the facts of this case, to support a finding of murder, the trial court would have to find that the shooter acted either intentionally or with malice aforethought. The facts clearly indicate that the shooter did not know of the car, so it cannot be said that he shot at it intentionally, and therefore (A) is not correct. “Malice aforethought” can mean that the defendant is acting with reckless indifference to an unjustifiably high risk to human life. There is little question that shooting a rifle through a front door shows reckless indifference to an unjustifiably high risk to human life. Thus, the question is whether the shooter’s intoxication was sufficient to negate this state of mind. Voluntary intoxication is not a defense to crimes requiring malice, recklessness, or negligence. In the case of recklessness, if a defendant’s lack of awareness results from voluntary intoxication, his conduct will nevertheless be deemed reckless. (C) is not a correct analysis of the issue, because his intentional act was firing the rifle, not shooting at the car. (D) is not the best answer, because although there is the possibility that the prosecution might have been able to show only gross negligence, there is sufficient evidence to support a finding of malice aforethought and murder.

Question 38

The defendant, angered because a rival gang member had twice beaten him up after school, obtained a heavy lead pipe and waited in a deserted alleyway which he knew the rival took as a route home every day after school. When his enemy came walking down the alley, the defendant leapt out behind him and smashed the pipe into the victim’s head, knocking him to the ground. The defendant then rolled the victim over and pounded his face with 15 to 20 heavy blows with the lead pipe, killing him. The jurisdiction defines first degree murder as murder committed with premeditation and deliberation. All other murders are defined as second degree murders.

Why will the defendant be convicted of first degree murder (as opposed to second degree murder)?

A
The relationship between the defendant and the victim requires that a finding of first degree murder be made.

B The degree of causative relationship between the defendant’s acts and the death of the victim renders it murder in the first degree.

C The nature of the acts causing death distinguishes the defendant’s action as first degree murder.

D The defendant’s mental state up to and including the moment of the attack determines that the act is first degree murder.

Answer 38

D

The defendant will be convicted of first degree murder because of his mental state up to and including the moment of the attack. The degree of murder under the statute is determined by the defendant’s mental state–whether the killing was intentional and accomplished after premeditation and deliberation. Here, the defendant obtained a lead pipe and waited in a deserted alleyway for the victim, which shows premeditation and deliberation. The defendant’s relationship with the victim and the manner of killing may have evidentiary significance with regard to the defendant’s mental state, but do not themselves distinguish first from second degree murder. Thus, (A) and (C) are incorrect. The causal relationship between the defendant’s act and the death of the victim may determine whether the act is murder, but once that analytical hurdle has been passed, it has no further significance as to the degree of murder. Therefore, (B) is incorrect.

Question 39

Two robbers planned to rob a local convenience store, with one using a gun to force the clerk to turn over all of the money in the cash register while the other stood lookout near the door. The robbery did not go as planned. Instead of turning over any cash, the store clerk tried to disarm the gunman. During their struggle for the gun, the lookout decided that her best course of action was to grab what she could and flee the scene. The lookout took a newspaper and a bag of potato chips and ran out of the store. On her way out, she heard a gunshot. Later that day, she learned from news accounts that the gun accidentally discharged, killing the gunman. After an investigation, the lookout was arrested.

If the lookout is charged with felony murder, what would be her most promising defense?

A She did not intend for the gunman to get killed.

B The only person killed was the gunman.

C
The killing occurred after the robbery was over.

D
The robbery was not a felony because the items that the lookout took had only minimal value.

Answer 39

B

The lookout’s best defense is that the gunman was the only person killed. Under the felony murder doctrine, a killing committed during the course of a felony is murder, malice being implied from the intent to commit the underlying felony. However, under the majority view, criminal liability for murder cannot be based on the death of a co-felon from resistance by the victim or police pursuit. Thus, given that the gunman’s death resulted from an act by the clerk, the victim of the robbery, the lookout cannot be found guilty of the felony murder of the gunman, a co-felon. (A) is incorrect because any desire or lack of desire by the lookout to see her co-felon harmed is irrelevant to liability for felony murder. The only mens rea required is the intent to commit the underlying felony. Here, the lookout had the intent to commit robbery, the underlying felony. From this intent, the malice required for murder is implied. (C) is incorrect because the fact that the felony was technically completed before the gunman’s death does not prevent the killing from being felony murder. A death caused while fleeing from the crime is considered to have been caused during the commission of the felony. (D) is incorrect because robbery is a felony regardless of the value of the property that is taken.