Criminal Law And Procedure Learning Questions - Set 9 Flashcards
In order to be guilty of common law burglary, one must break and enter a dwelling with:
A
Recklessness about the consequences that could occur if someone was inside the home
B
The specific intent to commit a felony therein
C
Knowledge that one lacks authority to enter the dwelling
D
No particular mental state; the act of breaking and entering is sufficient to establish burglary
B
Burglary is a specific intent crime. A specific intent crime requires the doing of the criminal act with a specific intent or objective. The common law definition of burglary is the breaking and entering of the dwelling of another at nighttime with the intent of committing a felony therein. Because burglary requires the intent to commit a felony at the time of the entering, it is a specific intent crime.
With regard to the crime of robbery, which of the following statements is true?
A
The property must be taken from the victim’s person.
B
The force or threats of force may be used to retain possession immediately after such possession has been accomplished.
C
If threats of immediate death or serious physical injury are used, they must be threats only to the robbery victim.
D
If intimidation is used, a threat to destroy the victim’s dwelling house is insufficient.
B
The force or threats may be used either to gain possession of the property or to retain possession immediately after such possession has been accomplished.
If force is used, it must be sufficient to overcome the victim’s resistance. If threats of immediate death or serious physical injury are used, they must be threats to the victim, a member of her family, a relative, or a person in her presence at the time.
The property must be taken from the victim’s person or presence. “Presence” means some location reasonably close to the victim, but it need not be taken from the victim’s person. Property in other rooms of the house in which the victim is located is in her “presence.”
A threat to do damage to property will not suffice—with the exception of a threat to destroy the victim’s dwelling house.
The right to be free of double jeopardy for the same offense arises from __________.
A
the Fourth Amendment
B
the Fifth Amendment
C
the First Amendment
D
the Sixth Amendment
B
The right to be free of double jeopardy derives from the Fifth Amendment and has been incorporated into the Fourteenth Amendment. Under this right, once jeopardy attaches, the defendant may not be retried for the same offense.
The right to be free of double jeopardy does not arise from the First Amendment, the Fourth Amendment, or the Sixth Amendment. It arises from the Fifth Amendment.
Jeopardy attaches in a jury trial when:
A
Opening statements begin
B
The jury is empaneled and sworn
C
The first witness is sworn
D
The judge delivers jury instructions
B
Jeopardy attaches in a jury trial when the jury is empaneled and sworn. Under the Fifth Amendment right to be free of double jeopardy, a defendant may not be retried for the same offense once jeopardy has attached.
Jeopardy does not attach in a jury trial when the first witness is sworn. This is when jeopardy attaches in a bench trial, not in a jury trial.
By the time opening statements begin or the judge delivers jury instructions, jeopardy has already attached.
Two friends entered a bar looking to get money to pay off a loan shark, but with no plan how to do so. They struck up conversations with two women. The first friend left the bar, having induced one of the women to return home with him. Once in his house, the first friend told the woman that she would not be allowed to leave unless she gave him all of her money. Fearing for her safety, the woman gave him all of the cash she had in her possession. Meanwhile, the second friend remaining at the bar noticed that the other woman left her credit card on the counter. When the woman looked away, the friend picked up the credit card and put it into his pocket. Shortly thereafter, the woman realized her card was gone and accused the man of taking it. The man pretended to be insulted, slapped the victim, and went off with the credit card in his pocket.
Which of the two friends can be convicted for common law robbery?
A Both can be convicted.
B The first friend can be convicted, but the second cannot be convicted.
C The second friend can be convicted, but the first cannot be convicted.
D Neither of the two friends can be convicted of robbery.
B
The first friend can be convicted of common law robbery, but the second cannot be convicted. Robbery is the taking and carrying away of the personal property of another from the other’s person or presence by force or intimidation. In the instant case, the first friend committed a robbery when he threatened the woman and told her that she could not leave without giving him all of her money. The only issue would be whether the asportation element is satisfied. However, the asportation element is satisfied by any slight moving, and it is likely that the first friend moved the money at some point during the robbery. Thus, a jury could find the first friend guilty of robbery. This makes (C) and (D) wrong answer choices. In the case of the second friend, however, a conviction for robbery is unlikely. Although a close call, the taking or retention of the property was not by force or intimidation in the second case. The crime against the property was already completed when the man slapped the victim. Furthermore, the slap was not to prevent the woman from physically taking the credit card back; rather, it was a ruse used to deflect the accusation that the second friend took the credit card. Thus, (A) is wrong, and this provides a second reason why (C) is incorrect.
A farmer was in the middle of plowing his field when his tractor broke down. While attempting to repair it, he discovered that he needed a special wrench. He knew that his neighbor used the same type of tractor and kept a large cache of tools in his basement. Not wanting to make the long drive into town to buy one wrench that he probably would not use much, the farmer went to his neighbor’s house to borrow the wrench. However, no one was home so he decided to look in his neighbor’s basement for the wrench, thinking that he would return it before the neighbor came back. To gain entry, the farmer opened an unlocked window and climbed through the opening to the basement. Once inside, the farmer found the tool and took it with him to work on the tractor. His neighbor returned soon after and contacted the police when he discovered that one of his tools was missing. The police determined that the farmer took the tool and he was charged with burglary.
What is the farmer’s best defense against that charge in a common law jurisdiction?
A Nobody actually lived in the basement.
B The farmer knew that the house was unoccupied and would not have entered without permission had the neighbor been home.
C The farmer entered the house through an unlocked window.
D The farmer intended only to keep the wrench for a couple of hours.
D
The farmer’s best defense is that he intended only to keep the wrench for a couple of hours. Given that the farmer intended merely to borrow the tool, he lacked the intent to commit larceny, and thus would not be guilty of burglary. Common law burglary consists of: (i) a breaking; (ii) and entry; (iii) of the dwelling; (iv) of another; (v) at nighttime; (vi) with the intent of committing a felony therein. The farmer entered his neighbor’s house intending to remove the tool. Thus, the facts indicate that the only felony he could have intended to commit at the time of entry would be larceny. Larceny consists of: (i) a taking; (ii) and carrying away; (iii) of tangible personal property; (iv) of another; (v) by trespass; (vi) with intent to permanently (or for an unreasonable time) deprive the person of his interest in the property. At common law, if the defendant intended to return the property within a reasonable time, and at the time of the taking had a substantial ability to do so, such an unauthorized borrowing would not constitute larceny. Consequently, if the farmer intended to keep the tool only for the short time to fix his tractor, then he did not intend to permanently deprive his neighbor of his interest in the wrench. Because the farmer thus lacked the intent to commit a felony in his neighbor’s home at the time he entered, the farmer would not be guilty of burglary. (A) is incorrect because, for purposes of the crime of burglary, a structure is deemed to be a dwelling simply if any part of it is used regularly for sleeping purposes. Thus, the fact that nobody lived in the basement is irrelevant. (B) is incorrect because the fact that the house was unoccupied is irrelevant to his culpability for burglary. The crime of burglary would have been complete if the farmer had broken and entered his neighbor’s home with the intent of committing a felony therein, regardless of whether the home was currently unoccupied. Consequently, the farmer’s knowledge that the house was unoccupied would provide him with no defense to a charge of burglary. (C) is incorrect because the breaking needed for burglary requires only minimal force to gain entry. Opening an unlocked window is a sufficient use of force to constitute a breaking.
A defendant held up a gasoline station. During the robbery, he shot and killed a customer who attempted to apprehend him. The defendant was prosecuted for premeditated murder and convicted. Thereafter, he was indicted for armed robbery of the station. Before the trial, his attorney moved to dismiss the indictment on the ground that further proceedings were unconstitutional because of the defendant’s prior conviction.
Should the motion to dismiss be granted?
A Yes, because once the defendant was convicted on any of the charges arising out of the robbery, the prosecution was constitutionally estopped from proceeding against the defendant on any charge stemming from the same transaction.
B Yes, because the Double Jeopardy Clause prohibits a subsequent trial on what is essentially a lesser included offense.
C No, because there is no constitutional requirement that all known charges against a defendant be brought in the same prosecution.
D No, because estoppel does not apply when a defendant is charged with violating two different statutes.
C
The motion to dismiss should be denied. For purposes of the Double Jeopardy Clause, two crimes do not constitute the “same offense” if each crime requires proof of an additional element that the other crime does not require, even though some of the same facts may be necessary to prove both crimes. Here, even though the same facts are involved for both crimes, the robbery charge requires proof of a taking by force but not a death, while the murder charge requires proof of a death but not of a taking of property. Thus, (C) is correct and (A) is incorrect. (B) is incorrect because armed robbery is not a lesser included offense of premeditated murder. (D) is incorrect because the prosecution would be estopped if violation of one statute constituted a lesser included offense of the other statute.
A woman was arrested outside of a house shortly after she had broken in and stolen some jewelry. She was indicted for larceny and later for burglary. She was tried on the larceny indictment and convicted. Thereafter, she was brought to trial on the burglary indictment. Relying on the Double Jeopardy Clause of the Constitution, the woman moves to dismiss the indictment.
Should the motion be granted?
A Yes, because the Double Jeopardy Clause requires that all offenses arising out of the same transaction be adjudicated in the same trial.
B Yes, because the Double Jeopardy Clause allows the imposition of separate sentences for separate offenses occurring during the same criminal episode only if the offenses are tried together.
C No, because larceny and burglary are offenses that may constitutionally be tried and punished separately, even if they arise out of the same transaction, because each requires proof of a fact that the other does not.
D No, because the only protection double jeopardy affords to a defendant charged with multiple counts is under the doctrine of collateral estoppel.
C
The woman’s motion should be denied because the Double Jeopardy Clause does not prohibit the second prosecution. The Double Jeopardy Clause of the Fifth Amendment provides criminal defendants with the right to be free of double jeopardy for the same offense. However, two crimes do not constitute the same offense if each crime requires proof of an additional element that the other crime does not require, even though some of the same facts may be necessary to prove both crimes. [Blockburger v. United States (1932)] Here, larceny requires a taking and carrying away of the property of another, which burglary does not require, and burglary requires a breaking and entry, which larceny does not require. Hence, they are distinct offenses for purposes of the Double Jeopardy Clause. (A) and (B) are incorrect because the Supreme Court does not use a “same transaction” or “same episode” test suggested by these answer choices; instead, the Blockburger test is used regardless of whether the two offenses were tried together at a single trial or at separate trials. (D) is incorrect because while double jeopardy also protects against inconsistent factual determinations at a subsequent trial, it protects against multiple prosecutions as well, as long as the crime is the “same offense.”
