Criminal Law MBE

Question 1

How can an accomplice withdraw?

Answer 1

The accomplice must:
(i) Repudiate prior aid;
(ii) Do all that is possible to countermand prior assistance; and
(iii) Do so before the chain of events is in motion and unstoppable.

Question 2

Define depraved heart murder

Answer 2

Depraved-heart murder is a killing that results from reckless indifference to an unjustifiably high risk to human life. The majority rule requires the defendant to be aware of the danger involved.

Question 3

What is the difference between malum in se and malum prohibitum?

Answer 3

Malum in se means wrong in itself or inherently dangerous, whereas malum prohibitum refers to wrongs that are merely prohibited, but not inherently immoral or hurtful.

Malum in se: assault, battery

Question 4

What is the continuing trespass rule?

Answer 4

The continuing trespass rule considers a situation where the taking was done without permission, but without the intent to permanently deprive. However, at some time after the initial taking, the defendant forms the intent to permanently deprive the owner. Under this rule, the trespass is considered to continue in order for the criminal act to coincide with the criminal intent, resulting in larceny.

Question 5

Definition of Robbery is

Answer 5

A robbery is a larceny (taking another’s property without their consent w intent to permanently deprive)
(i) from the person or presence of the victim, and
(ii) achieved by force or intimidation.

Question 6

Voluntary manslaughter is

Answer 6

A homicide committed with malice aforethought, but also with mitigating circumstances (e.g., “heat of passion” or imperfect defense)–> adequate provocation and no time to cool off

Question 7

Define common law burglary

Answer 7

(i)Breaking and;
(ii) Entering;
(iii) Of the dwelling;
(iv) Of another;
(v) At nighttime;
(vi) With the specific intent to commit a felony therein

modern: no night time requirement

Question 8

Define battery

Answer 8

Battery is the:
(i) Unlawful;
(ii) Application of force;
(iii) To another person;
(iv) That causes bodily harm to that person or constitutes an offensive touching.

Note: Battery is a general-intent crime.

Question 9

Define kidnapping

Answer 9

Kidnapping is the:
(i) Unlawful;
(ii) Confinement of a person;
(iii) Against that person’s will;
(iv) Coupled with either the movement or the hiding of that person

Question 10

Embezzlement requires

Answer 10

Embezzlement is the:
(i) Fraudulent;
(ii) Conversion;
(iii) Of the property;
(iv) Of another;
(v) By a person who is in lawful possession of the property.

Question 11

What is the merger rule

Answer 11

Solicitation and attempt merge with the completed crime.

Conspiracy does not merge with the completed crime.

Note: A defendant may be concurrently prosecuted for, but not convicted of, more than one inchoate offense designed to culminate in the commission of the same crime.

Question 12

What is the effect of withdrawal on liability for the conspiracy itself (three approaches)?

Answer 12

Common law: Withdrawal never a defense

Federal/Majority rule: May only withdraw after the agreement** b**ut before an overt act has been committed, by (i) communicating notice of his intent not to participate to the other potential co-conspirators or (ii) informing the police about the agreement.

MPC/Minority view: May only withdraw by acting voluntarily to “thwart the success” of the conspiracy.

Question 13

When is involuntary intoxication a defense? To which crimes?

Answer 13

when the intoxication serves to negate an element of the crime of specific, general intent crimes and malice crimes

may also be a defense to a strict liability crime by negating the required actus reus (i.e., voluntary act).

Question 14

crimes following conspiracy

How can a defendant limit his liability as a co-conspirator for the substantive crimes that are the subject of the conspiracy?

Answer 14

By withdrawing from the conspiracy at any time after it is formed by
(i) giving notice to his co‑conspirators or
(ii) timely advising legal authorities of the existence of the conspiracy.

Note: There is no requirement that the defendant thwart the conspiracy.

Question 15

What are the four categories of specific-intent crimes?

Think FIAT

Answer 15

First degree murder
Incohate crimes (CATS)
Assault with intent to commit battery
Theft (larceny, larceny by trick, false pretenses, embezzlement, forgery, burglary, robbery)

Question 16

What are the six elements of common-law larceny?

Answer 16

Larceny is the:
(i) Trespassory (w/o consent);
(ii) Taking and;
(iii) Carrying away;
(iv) Of the personal property;
(v) Of another;
(vi) With the intent to permanently deprive that person of the property (i.e., intent to steal).

Note: Larceny is a specific-intent crime.

Question 17

Who is an accesory after the fact?

Answer 17

A person who aids or assists a felon to avoid apprehension or conviction after commission of the felony; the person must know a felony has been committed, and is only liable for a separate crime.

Question 18

When is voluntary intoxication a valid defense to a crime?

Answer 18

When the intoxication prevents the formation of the required intent for a SPECIFIC INTENT crime.

Note- not a defense to crimes involving malice, recklessness, or negligence.

FLORIDA: NOT A DEFENSE unless prescription

Under the MPC, it is a defense to crimes requiring a mental state of purposefully or knowingly when the intoxication prevents forming that mental state.

Question 19

What is the main difference between larceny by trick and false pretenses?

Answer 19

Under larceny by trick, the defendant obtains possession. Under false pretenses, the defendant obtains title.

Question 20

Regarding punishment

The difference between a felony and misdeameanor

Answer 20

Felony: Punishable by death or imprisonment for more than one year

Misdemeanor: Punishable by imprisonment for one year or less, or by a fine, or by both

Question 21

Define solicitation

Answer 21

Solicitation is the:
(i) Enticing, encouraging, requesting, or commanding of another person;
(ii) To commit a crime;
(iii) With the intent that the other person commits the crime.

Question 22

Is a co-felon responsible for the death of a co-felon during commission of a felony?

Answer 22

If caused by the co-felon –> Yes
If caused by the police of a victim –> NO

In Florida: A defendant may be found guilty of felony murder for the death of a co-felon as long as there is no break in the chain of events sufficient to relieve the defendant of criminal responsibility for the death of his accomplice

Question 23

In a murder statute willlful equals

Answer 23

with substantial certainty that death would occur

Question 24

What is Forgery?

Answer 24

Under common law, forgery is: (i) creating or altering (drafting, adding or deleting); (ii) a document with purported legal significance (a document that carries legal value, for example, a contract or a check); (iii) to be false (the alteration or creation must be made to change the legal significance of the document); (iv) with the intent to defraud (specific intent crime where the mere intent to defraud is sufficient, and actually defrauding someone is not required).

Question 25

A witness cannot be compelled to testify during a grand jury proceeding unless

Answer 25

A witness cannot be compelled to provide potentially incriminating testimony unless the witness is granted at least use and derivative use immunity.

Question 26

When can a parent physically punish a child without it being a battery due to justification?

Answer 26

if it was reasonable and exercised for the benefit of a minor-aged child

Question 27

Does negligent medical treatment break the chain of causation for liability of a criminal act such as murder?

Answer 27

No. Negligent medical treatment is generally foreseeable, so it does not break the chain of proximate causation

Question 28

Define felony murder

Answer 28

felony murder – an unintended killing proximately caused by and during the commission or attempted commission of an inherently dangerous felony

Question 29

if a person attempts to commit larceny, but takes an item that is actually free but which they did not know was free, are they guilty of larceny?

Answer 29

No, because the taking was not trespassory.

They are still guilty of attempted larceny

Question 30

Bigamy is

Answer 30

a strict liabiity crime- the voluntary act of marrying someone while still legally married to another

Cannot consent to bigamy

Question 31

Is an accomplice liable for the crimes of the principal?

Answer 31

an accomplice is liable to the same extent as the principal for
1. the encouraged crime and
2. any crimes that are the natural and probable consequences of the accomplice’s conduct

Question 32

Can a defendant be convicted of felony murder and of the underlying felony itself? (ex: arson AND felony murder resulting from the arson)

Answer 32

NO. An underlying felony generally merges into the crime of felony murder, so a defendant can be convicted of one crime or the other—but not both.

Question 33

Will evidence seized as a result of a warrant that contains incorrect information be suppressed?

Answer 33

No, unless the officer knew the information was false

This is an example of the good faith exception to the exclusionary rule

Question 34

What information would support finding someone liable for being an accomplice?

Answer 34

Any showing that the person benefitted from aiding in the crime

ex: charging higher rent to benefit yourself when you know there is a criminal activity at the premises

Question 35

Delay in proceeding to trial attributable to the defendant’s attorney is allocated to who?

Answer 35

The defendant

Question 36

What is the standard for determining whether a court can accept a defendant’s guilty plea?

Answer 36

Whether it is knowing and voluntary
* the fact that the plea is for a lesser offense does not automatically meet this standard, for example proscutorial vindictiveness would render it violative

Question 37

Is a prosecutor’s threat to charge a more serious crime in order to convince the defendant ro plead guilty to a less serious charge prosecutiorial vindictiveness such that ti would rent a criminal plea unacceptable by the court?

Answer 37

No

Question 38

Once the Sixth Amendment right to counsel attaches, statements that a defendant makes to a police informant are

Answer 38

inadmissible when the police intentionally create a situation likely to induce the defendant into making incriminating statements without the assistance of counsel if it is offense specific to which the 6th amendment has attached

Question 39

assistance of counsel is not required for a crime that is punishable by imprisonment as long as that punishment is not imposed, but what happens if the judge enters a sentence but suspends that sentence?

Answer 39

Then the punishment was imposed even if suspended and D’s 6th amendment right to counsel was violated

Question 40

When does reversal of a conviction bar retrial on double jeopardy grounds?

Answer 40

When the reversal was based on insufficiency of evidence when viewed in light most favorable to the prosecution whcih would not support a conviction by the jury

it does not bar retrial when error made at trial or due to the weight of evidence

Question 41

The developement of reasonable suspicion during an unlawful investigatory stop of a car has what effect on the admissibility of evidence?

Answer 41

None, if the stop was unconstitutional then developing reaosnable suspicion after the stop has no effect and any evidence seized is unadmissible
- this is not the same as attenuation evidence such as an arrest warrant found during an ulawful stop which WOULD attenuate the connection between the unlawful stop and the evidence seized indicent to arrest

Question 42

Can an officer order a passanger to get out of a car that is stopped for a traffic violation?

Answer 42

Yes

Question 43

When is a witness allowed to assert the privilege against self-incrimination?

Answer 43

When there is a reasonable possibility that the witness, if forced to testify, could expose himself to subsequent criminal liability

Question 44

Define rape

Answer 44

Rape is the unlawful sexual intercourse with a female against her will by force or threat of immediate force

Question 45

Common-law burglary is

Answer 45

the breaking and entering of the dwelling of another at nighttime with the specific intent to commit a felony therein

Question 46

Does the majority rule of conspiracy now require an overt act?

Answer 46

Yes

Question 47

(1) When can an honest mistake of fact serve as a valid defense?

(2) What can a mistake of law serve as a valid defense?

Answer 47

(1) MISTAKE OF FACT
* Specific intent: Any mistake of fact that negates the required criminal intent
* General Intent or Malice crime: mistake must be reasonable

(2) MISTAKE OF LAW (almost never)
* (i) the defendant relied on a court decision/administrative order or official interpretation;
* (ii) a statutory definition of a malum prohibitum crime was not available before the defendant’s conduct; or
* (iii) an honestly held mistake of law negates the required intent or mental state

Question 48

What is bribery under (1) the common law, and (2) the modern law.

Answer 48

(1) Common law: A **misdemeanor **involving the corrupt payment of something of value for the purpose of influencing the action of an official in the discharge of his public or legal duties.

(2) Modern law: Can be a felony and may extend to persons who are not public officials. Mutuality is not required.

Question 49

Name and define four mental states defined by the MPC

Answer 49

Purposely—Defendant’s conscious objective is to engage in the conduct or to cause a certain result.

Knowingly/willfully—Defendant is aware or knows that the result is practically certain to occur based on his conduct.

Recklessly—Defendant acts with a conscious disregard of a substantial and unjustifiable risk.

Negligently—Defendant should be aware of a substantial and unjustifiable risk that a material element of a crime exists or will result from his conduct (i.e., a gross deviation from the standard of care)

Question 50

Homicide/ Common Law

What are the three common-law categories of homicide?

Answer 50

(i) Homicide justified by law;
(ii) Criminal homicide; and
(iii) Excusable homicide.

Question 51

What is the year-and-a-day rule with regard to homicide causation?

Answer 51

If a victim survived a battery or assault for more than a year and one day, it was presumed that the cause of death was NOT that of the defendant.

The “year-and-a-day rule” is a common law rule that is no longer followed by the majority of jurisdictions

Question 52

When is murder reduced to voluntary manslaughter due to an imperfect defense?

Answer 52

When the defendant argue that his deadly force was necessary in defense of himself or others, but
(i) the defendant started the altercation or
(ii) the defendant unreasonably and honestly believed in the necessity of using deadly force

Question 53

What is the difference between the agency theory and the proximate cause theory when a bystander is killed during the commission of a felony murder?

Answer 53

Agency theory (majority rule): the felon will not be liable for the death of a bystander caused by a felony victim or police officer, because neither is the felon’s agent.
* MBE APPLY THIS unless told othewise

Proximate cause theory: liability for a bystander’s death may attach to the felon because the death is a direct consequence of the felony.

Question 54

What are the two types of criminal assault, and are they general- or specific-intent crimes?

Answer 54

“Attempted battery” assault: The defendant takes a substantial step toward the commission of a battery; this is a specific-intent crime.

“Fear of harm” assault: The defendant intentionally places another in apprehension of imminent bodily harm; this is a general-intent crime.

Question 55

What is the usual definition of first-degree murder?

Answer 55

First-degree murder is a statutory offense, and is generally defined as (i) a deliberate and premeditated murder, or (ii) felony murder.

Question 56

What are the elements of the Durham test for insanity?

Answer 56

The unlawful act was the product of the defendant’s mental disease (i.e., the “but for” test).

Question 57

In what two circumstances can a killing give rise to a charge of involuntary manslaughter?

Answer 57

(i) A killing committed in the commission of a malum in se (wrong in itself) misdemeanor; or
(ii) A killing committed in the commission of a felony that is not statutorily treated as first-degree felony murder or second-degree murder.

Question 58

What is an accomplice, and what is an accomplice’s criminal liability?

Answer 58

An accomplice is a person who, with the requisite mens rea, aids or abets a principal prior to or during the commission of a crime.

An accomplice is responsible for the crime to the same extent as the principal.

Question 59

Can someone be guilty of larceny for taking stolen property from a thief?

Answer 59

Yes. The taking of stolen property from a thief can constitute larceny unless the taker has a superior possessory interest in the property.

Question 60

What are the five elements of embezzlement?

Answer 60

Embezzlement is the:
(i) Fraudulent;
(ii) Conversion;
(iii) Of the property;
(iv) Of another;
(v) By a person who is in lawful possession of the property.

Question 61

What are the four categories of specific-intent crimes? (Think FIAT)

Answer 61

(i) First-degree murder;

(ii) Inchoate offenses (attempt, solicitation, conspiracy);

(iii) Assault with intent to commit a battery; and

(iv) Theft offenses (larceny, larceny by trick, false pretenses, embezzlement, forgery, burglary, robbery).

Question 62

What are the four elements of common-law arson?

Answer 62

(i) Malicious;
(ii) Burning;
(iii) Of the dwelling;
(iv) Of another

Note: Remember that arson is a malice crime, not a specific-intent crime

Question 63

Felony Murder/ Defenses

What are the four defenses to felony murder?

Answer 63

1. A valid defense to the underlying felony
2. The felony was not an independent felony
3. Death was not a foreseeable result or a natural and probable consequence of the felony
4. Death occurred after the commission of the felony and the ensuing flight from the scene of the crime

Question 64

Define statutory rape

Answer 64

Statutory rape is sexual intercourse with a person under the age of consent. It is a strict-liability crime with respect to the age of the victim, and neither consent by the underage victim nor a defendant’s reasonable mistake of fact concerning the victim’s age is a defense

Question 65

What are the four elements of common-law conspiracy?

Answer 65

Common-law conspiracy is:
(i) An agreement;
(ii) Between two or more persons;
(iii) To accomplish an unlawful purpose;
(iv) With the intent to accomplish that purpose.

Note: Conspiracy is a specific-intent crime.

Under majority jursidctions: requires OVERT ACT in furtherance of conspiracy

Question 66

Defendant is guilty of false pretenses if he/she:

Answer 66

• obtained title to
• another’s property
• by knowingly misrepresenting a past or present material fact upon which the victim relied and
• did so with the specific intent to defraud

Question 67

A conviction for a felony not involving dishonesty that is not more than 10 years old is admissible against a criminal defendant-witness if

Answer 67

the conviction’s probative value outweighs its prejudicial effect

Question 68

When is authentication proper under the reply-letter doctrine?

Answer 68

This is accomplished by showing that:

1. the document was written in response to an earlier communication and
2. the contents make it unlikely that the response was written by someone other than the recipient of the earlier communication.

Question 69

Is a document self-authenticating if it has a signature?

Answer 69

NO
Self Authenticating documents:
* Public documents with official’s signature & authorized by official or seal
* Certified copies of public records & records of regularly conducted activities
* Newspapers, periodicals & official publications
* Documents with trade inscription
* Acknowledged documents
* Commercial papers, including signature & related documents

Question 70

When can a document be non-hearsay under the opposing party statement non-hearsay exclusion?

Answer 70

Answers to interrogatories are nonhearsay party admissions. When such an answer incorporates a document—e.g., by referring the interrogating party to the document—the contents of the document are considered adopted by the answering party –> nonhearsay –> can come in

Question 71

M’Naghten test for insanity (used in most jurisdictions), a defendant may not be convicted of a
criminal offense if a mental illness prevented the defendant from:

Answer 71

understanding the nature and quality of the criminal act or knowing that his/her actions were wrongful.

Question 72

when (1) a felony conviction not involving dishonesty is no more than 10 years old and (2) the witness is not a criminal defendant, the conviction is generally

Answer 72

admissible unless its probative value is substantially outweighed by its prejudicial effect

Question 73

a conviction is inadmissible if it was the subject of a pardon, annulment, or certificate of rehabilitation based on

Answer 73

(1) a finding of innocence or
(2) a finding of rehabilitation with no subsequent felony conviction

Question 74

Under the Model Penal Code, a defendant may be concurrently prosecuted for, but not convicted of, more than one

Answer 74

inchoate offense (i.e., solicitation, conspiracy, and attempt) based on conduct designed to culminate in the commission of the same crime.

Question 75

When is a confession by a co-defendant a violaton of the other co-defendant’s sixth amendment right to confrontation?

Answer 75

If the admission against a defendant is from a confession that implicates the defendant and is made by a non-testifying co-defendant at a joint trial

However, when the co-defendant testifies, the defendant cannot complain that this right has been denied because he could confront the witness on cross-examination.

Question 76

In a criminal trial, is the victim a party opponent and thus can their statement be brought in as an exclusion to hearsay by party opponent?

Answer 76

NO

Question 77

The death penalty may not be imposed in felony murder to which actor?

Answer 77

An accomplice who did not take or attempt to take a life, or intend that lethal force be used UNLESS he participated in a MAJOR way in the underlying felony that resulted in murder and acted with reckless indifference for human life

Question 78

Can a person be charged with two charges of larceny when they commit larceny against two people?

Answer 78

YES

Question 79

Can a person who takes property from a thief be guilty of larceny?

Answer 79

a second thief is guilty of larceny when he steals the property from the first thief, unless the second thief had superior possessory interest in the property.

Question 80

Can a defendant ever bear the burden of proof in a criminal case for a claim or defense?

Answer 80

NO NEVER that is a due process violation
prosecution must prove everything beyond a reasonable doubt

Question 81

Must a criminal defendant be informed of their right to a jury trial to ensure that they know they are waiving it when the judge is accepting a guilty plea?

Answer 81

YES

Question 82

If an officer makes an unconstitutional investigatory stop, and learns during the stop that the suspect was subject to a valid arrest warrant, arrests the suspect, and seizes incriminating evidence during a search incident to that arrest, then the evidence the officer seizes as part of the search incident to the arrest is

Answer 82

admissible

Question 83

Although the giving of Miranda warnings generally dissipates the taint of a prior Miranda violation with respect to a subsequent confession, this is not always the case such as when

Answer 83

The purpose of Miranda is circumvented like when ppolice officers make the intentional choice to not give Miranda Warnings

Question 84

To be guilty of attempt, a substantial step must be taken, what constitutes a substantial step?

Answer 84

A substantial step is determined on a sliding scale, and the closer the act is to the actual perpetration of the target crime, the** more likely** a court will find that it constitutes a substantial step for purposes of attempt.

The closer the act is to planning and preparation, the less like a court will find that it constitutes a substantial step —- solicitation is mere preparation

example: want to commit burglary and I ask the pool cleaner to leave the door open for me, that is only mere preparation

Question 85

Can an officer use deceit to gain entry to premises and if so would that mean he is lawfully on the premises?

Answer 85

YES! Lawfully on premises even if deceit used and thus plain view exception could apply

Question 86

the plain view doctrine, allows the police to make a warrantless seizure when they:

Answer 86

(i) are legitimately on the premises;
(ii) discover evidence, fruits, or instrumentalities of a crime, or contraband;
(iii) see such evidence in plain view; and
(iv) have probable cause to believe or it is immediately apparent that the item is evidence, contraband, or a fruit or instrumentality of a crime
Arizona v. Hicks,