Kaplan Questions

Question 1

Is running away or flight after seeing a police officer grounds to give the officer reasonable suspicion necessary to conduct a Terry stop and frisk to search for weapons?

Answer 1

Yes, running away / flight is always grounds for reasonable suspicion.

Question 2

If your client forges someone else’s grocery list, is that committing the crime of forgery?

Answer 2

NO, the elements of forgery are: (1) a fraudulent making of a false writing WITH APPARENT LEGAL SIGNIFICANCE (2) with the intent to make wrongful use of the document.

Thus, the false writing must have apparent legal significance to meet the requirement for conviction.

Question 3

What is involuntary manslaughter?

Answer 3

An UNINTENTIONAL crime where the defendant is either reckless or criminally negligent.

Think about what experiences the defendant may NEVER HAVE HAD to determine their best defense, such as never seeing a bullet ricochet off of trees before.

Question 4

For stop and frisks, does the officer need to have imminent safety concerns for themselves and/or others to meet the reasonable suspicion requirement?

Answer 4

NO — an officer may stop a person if the TOTALITY OF THE CIRCUMSTANCES shows that reasonable suspicion exists?

Question 5

Are you guilty of burglary if you break into someone’s home to reclaim your property? If not, is there an exception?

Answer 5

NO, but an exception to that rule is when you are taking something back when the other person had legal possession of it.

Question 6

Is teaming up with a friend to pull a prank robbery on someone criminal conspiracy?

Answer 6

NO — conspiracy is an agreement for an unlawful purpose. It requires an agreement and SPECIFIC INTENT to commit the target offense and (in many jurisdictions) an overt act in furtherance of the conspiracy.

Question 7

Does one normally have a legal duty to affirmatively act to protect others? What about spouses?

Answer 7

In the absence of a SPECIAL RELATIONSHIP, one does NOT normally have a legal duty to affirmatively protect others.

But a SPOUSE has a duty to aid the other spouse, at least when the spouse requiring aid is in HELPLESS PERIL.

Question 8

What are several ways involuntary manslaughter may be committed?

Answer 8

1) Criminal negligence; (2 the commission of a malum in se act resulting in death; or 3) the intent to inflict slight bodily harm which results in death.

Note: Omissions can be criminally negligent (recall the spouse at the hockey game question)

Question 9

Does the defendant need to actus reus and mens rea concurrently in order to be guilty of larceny?

Answer 9

YES — at common law, larceny is defined as the taking and carrying away of the tangible personal property of another w/ the intent to permanently deprive the owner thereof.

It is a specific intent crime, which requires that the intent to permanently deprive the owner accompany the taking.

Question 10

May a private citizen MISTAKENLY use DEADLY force to stop a fleeing felon?

Answer 10

NO — A private citizen may use the same amount of deadly force as a police officer ONLY IF a dangerous felony was involved and the person against whom he used the force is actually guilty of the crime.

BUT a private citizen who mistakenly uses deadly force to prevent the escape of a fleeing felon is NOT justified.

Question 11

How are actual and proximate cause established in criminal law?

Answer 11

Actual Cause: Show that the injury/death of the victim would not have occurred without the criminal act.

Prox Cause: Show that the death of the victim was within the risk created by the employee’s conduct.

NOTE: a criminal defendant takes the victim as he finds them; akin to the “eggshell plaintiff” torts doctrine.

Question 12

What is voluntary manslaughter?

Answer 12

They are “heat of passion” killings. VM is the intentional killing MITIGATED by adequate provocation.

Note: Adequate provocation requires that a REASONABLE PERSON would lose self-control.

Example: Seeing your spouse in bed with another person would most likely be considered adequate provocation.

Question 13

A. What are the two elements of criminal ATTEMPT?

B. What is a highly tested example of defense to attempt?

Answer 13

A. (1) Specific intent to commit the “target offense” and (2) a “substantial step” in the commission or attempted commission of the crime.

B. LEGAL IMPOSSIBILITY is a defense to an attempt crime (FACTUAL impossibility is not).

Example: Defendant attempted to burn down his own home in a jurisdiction that follows common law arson. This is legal impossibility because the crime requires the burning of the dwelling of ANOTHER.

Question 14

Can the liability of one person for a murder provide a defense to another?

Answer 14

NO

Example: A criminally negligent wife who ignored her husband’s bullet wounds / omitted from getting him care is guilty of homicide (involuntary manslaughter) along with the person who shot her husband (murder).

Question 15

What is the misdemeanor manslaughter rule?

Answer 15

A defendant can be found guilty of involuntary manslaughter where he unintentionally caused a death during the commission of a misdemeanor or a felony that is not inherently dangerous.

Example: A man pushes his roommate, which is battery, but had no intent to kill the roommate, whose fragile condition was a factor in his death.

Question 16

Do dependent intervening acts supersede the act of a defendant in felony murder?

Answer 16

NO — recall the burglar in the area with a lot of bears leaving an opening for a bear to come in the victim’s home (by smashing his window) and kill him.

Question 17

What are the requirements for felony murder?

Answer 17

Victim’s cause of death has to be foreseeable and linked to something the defendant did during the commission or flight from a felony.

RULE: Felony murder is a killing proximately caused during the commission or attempted commission of a serious or inherently dangerous felony. Generally, it includes both intentional and accidental killings. The mental state required is an intent to commit the underlying felony, such as burglary, arson, robbery, rape, or kidnapping. The resulting death must occur during the commission or perpetration of a felony. The felony is deemed to have terminated when the felon has reached a place of temporary safety. If the killing occurs after this point, the defendant can no longer be found guilty of felony murder.

NOTE: Courts have generally been very liberal in applying the foreseeability requirement, and for purposes of felony murder most deaths are considered foreseeable.

Question 18

If the defendant’s “accomplices” in HIS mind are actually FEINED accomplices (and not detectives) without any intent to commit the crime, is the defendant guilty of a conspiracy?

Answer 18

NO — criminal conspiracy requires at least TWO guilty minds. So if only one person intended to commit a crime, there can be no conspiracy bc there was no real agreement for an unlawful purpose.

Question 19

A. What are the FOUR categories of crime that are likely to be STRICT liability offenses? (Hint: RPMS)

B. What are the TWO major factors which indicate that a defined crime is a public welfare offense?

Answer 19

A. The four categories are:

(1) Regulatory offenses
(2) Public welfare offenses
(3) Morality crimes
(4) Selling liquor to a minor

B. The two major factors are:

(1) that the penalty is NOT SEVERE and
(2) that the HARM to the public from the prohibited behavior is SERIOUS

Example: Operating a vehicle on public roads w/o a valid inspection sticker is only a misdemeanor and the harm to the public that could result from violation is very serious.

Question 20

What justifies self-defense?

Answer 20

When force is reasonably necessary to prevent imminent bodily harm justifies self-defense.

Example: A victim facing a burglar’s “threat” of using a toy gun that looks like a real gun justifies the use of self-defense.

Question 21

For felony murder purposes, when is the felony deemed TERMINATED?

Answer 21

A requirement for a felony murder charge is that the resulting death must occur during the commission or perpetration of the felony. The felony is deemed to have TERMINATED when the felon has REACHED A PLACE OF TEMPORARY SAFETY. If the killing occurs after this point, the defendant can no longer be found guilty of felony murder.

Question 22

If a reliable informant tips off police about a criminal possession of weapons he observed SIX MONTHS ago in a particular place, should a judicial officer issue a search warrant.

Answer 22

NO — Under Illinois v. Gates (U.S. 1983), the judicial officer issuing the warrant must determine if there is a “substantial basis” for concluding that the evidence of criminality will be at the particular place described on the warrant application. If the informant’s observations were made six months prior to the warrant application, the likelihood that the criminal possession is still in that place is diminished because the information is STALE.

Question 23

When should you pick an answer choice on a criminal law homicide question that is “no crime” ?

Answer 23

When a defendant is reacting to an emergency that is not her fault and I believe the defendant acted reasonably (in a logical and socially acceptable manner given the situation) — usually it is hard to prove that the defendant acted unreasonably and could therefore be charged with involuntary manslaughter / negligent homicide.

Question 24

What are the requirements for ROBBERY?

Answer 24

Robbery consists of all the elements of larceny, plus two additional elements: (1) the taking must be from the person or in the presence of the person; and (2) the taking must be accomplished by FORCE or violence or by INTIMIDATION of the threat of violence.

NOTE: If the robbery is by threat of violence, the victim must be in actual fear at the time of the taking. If the victim indicates they are not in fear, the defendant may well be guilty of larceny but NOT robbery.

Question 25

Does a defendant have a reasonable expectation of privacy in a locked box, with their name on it, that he left at someone else’s (e.g. his neighbor) house?

Answer 25

YES — to establish standing, a defendant must show that he had a legitimate expectation of privacy in the items seized or premises searched. Here, the defendant had a reasonable expectation of privacy in the box, which was locked, clearly identified as his and was left at his neighbor’s house. Thus, a search warrant based on probable cause was needed to seize the box.

Question 26

Under common law arson, does the burnt structure have to be a DWELLING?

Answer 26

YES — Common law arson requires the malicious burning of the DWELLING of another. So if no one lives at the structure the defendant burned, the defendant is NOT GUILTY of arson under the common law.

Note: A majority of states have expanded the common law requirement of a dwelling to include any type of structure or personal property.

Question 27

When is the crime of SOLICITATION completed?

Answer 27

Solicitation occurs when the defendant advises, commands, counsels, or requests another to commit a crime. The crime is COMPLETE when the solicitation is made—the very act of requesting or encouraging another to commit a crime is a particularly insidious form of criminal activity, which tends to insulate the solicitor from apprehension and punishment and makes enforcement of the laws more difficult.

Question 28

Does a HOUSEKEEPER have apparent authority to authorize police to search a suspect’s house without a search warrant?

Answer 28

NO — the person consenting to the search must have authority to consent to the search of the premises; the consent must be voluntary; and the search may not exceed the scope of the consent. A housekeeper is a third party who would NOT have authority to consent to the search. She certainly has no authority to consent to the search of a suspect’s private bedroom.

Question 29

Is legal criminal legal defense counsel “effective” in a CAPITAL punishment case SENTENCING HEARING if the attorney fails to investigate and present evidence that would constitute mitigating circumstances.

Answer 29

NO it is ineffective — in general, the law presumes that legal counsel is effective and the defendant has the burden of demonstrating otherwise, but there are exceptions. For example, in Wiggins v. Smith (U.S. 2003), SCOTUS held that in a capital punishment case, trial counsel’s failure to investigate the accused’s background and to present mitigating evidence of the accused’s unfortunate life history at the sentencing proceedings violated the accused’s Sixth Amendment right to effective assistance of counsel.

Question 30

If a defendant satisfies the mens rea and actus reus elements of specific intent murder at the exact same moment of another defendant, he be guilty of specific intent murder?

Answer 30

YES — when there are multiple causes or other parties responsible for the criminal result, courts will still find a defendant responsible if the defendant’s act was a SUBSTANTIAL FACTOR causing the criminal fact.

Question 31

Does DOUBLE JEOPARDY attach when a grand jury fails to indict a defendant or when a grand jury hands down a no bill or no true bill?

Answer 31

NO — thus, the prosecutor can present the same case to the grand jury for an indictment a second time in this situation, AS LONG AS the prosecutor truly believes that he is going forward with the correct charge.

Question 32

What is larceny by TRICK?

Answer 32

A form of larceny whereby the defendant obtains possession of the personal property of another by means of a representation or promise that he knows is false at the time he takes possession.

Note: If defendant leaves a false note while victim is not home and takes something with intent to permanently deprive the victim of it, that is still just basic larceny — because the defendant took possession by picking it up and taking it.

Question 33

Is breaking into another’s home to retrieve your own stolen property considered burglary?

Answer 33

NO

Note: If defendant first breaks into a home without intent to commit a felony there (e.g. retrieve his own stolen property in that home), BUT THEN commits larceny by stealing something else, he did not have the requisite intent to satisfy a burglary charge, ONLY a larceny charge.

Question 34

Should a court dismiss an indictment if a witness was denied his request to speak to his attorney in the grand jury room and evidence was obtained from an illegal search of the witness’ home?

Answer 34

NO — The witness had no right to an attorney in the grand jury room but does have a right to consult with counsel OUTSIDE of the grand jury room. The Fourth Amendment exclusionary rule does NOT apply to grand jury proceedings so the illegally seized evidence would NOT taint the indictment itself.

Question 35

What is the doctrine of continuing trespass (w/ respect to larceny)?

Answer 35

A person who takes another’s property w/o authorization and intending to only use it temporarily before restoring it unconditionally to its owner may nevertheless be guilty of larceny if she later changes her mind and decides not to return the property at all.

NOTE: As a general rule, the initial taking must be wrongful (i.e. w/o owner’s authorization)

Think like a lawyer: Under doctrine of continuing trespass, a criminal intent to deprive someone of their property can develop at a point AFTER the object has been taken.

Question 36

When is a defendant guilty of false pretenses?

Answer 36

A defendant is guilty of false pretenses where he makes a false representation of fact causing the victim to pass title to him.

Example: Even though a defendant mechanic paid money for a car, he is still guilty of false pretenses because he made a fraudulent statement about the condition of the car to pay less than the car is worth and receive title.

Question 37

What is the open fields doctrine?

Answer 37

A person does not have a legitimate expectation of privacy in any land or field not part of the curtilage or area immediately adjacent to the residence. There is NO Fourth Amendment protection in such areas.

Example: Police did not violate the Fourth Amendment when they took aerial photographs of the defendant’s fields or when they cut through the fence and entered the field. All evidence obtained through those activities could be legally used as the basis for supplying probable cause to obtain a warrant to search the defendant’s house.

Question 38

What is the difference in how perfect self-defense and imperfect self-defense impact a murder charge?

Answer 38

Perfect self-defense will EXONERATE a defendant, but imperfect self-defense will only reduce murder to VOLUNTARY MANSLAUGHTER.

RULE: Imperfect self-defense may mitigate murder to voluntary manslaughter where a defendant was either at fault in starting the altercation or unreasonably (but honestly) believed that harm was imminent or deadly force was necessary.

Question 39

What is embezzlement?

Answer 39

Embezzlement is the fraudulent conversion of property by one in rightful/lawful POSSESSION of the property.

NOTE: Basically the offender has agreed to hold something for the victim and then permanently deprived them of it by selling it, and then usually lying about what happened to the property.

THINK LIKE A LAWYER: Mere custody is the lowest level of having goods, while possession is the ABILITY TO DO THINGS with the goods, and title is the ownership of the goods.

Question 40

Where it is a condition of the defendant’s parole that he consent to unwarranted searches without probable cause, is a search proper when an officer merely has reasonable suspicion to conduct a search?

Answer 40

YES — SCOTUS held this to be proper in United States v. Knights (U.S. 2001)

NOTE: A search by a parole officer is almost always valid in an MBE question because the parole officer will only need to have reasonable suspicion, not probable cause, to conduct a search.

Question 41

What if on an MBE Crim law question the facts indicate that it was determined that the case was not suited for federal prosecution and the defendant made a pretrial motion requesting a complete dismissal, arguing that defendant’s Sixth Amendment right to a speedy trial was violated?

Answer 41

Therefore, any rules which apply specifically to the federal courts would NOT be applicable to the correct answer.

EXAMPLE: The Speedy Trial Act of 1974 requires that a prosecutor seek a federal indictment within 30 days of the arrest of a defendant and that the trial be held within 70 days of that indictment. Since a case in this situation would not be handled federally, the requirement that the trial begin within 70 days of the indictment is irrelevant to the issue of whether the defendant’s right to a speedy trial was violated.

NOTE: If this was a federal case and this type of motion was made, the judge would have to determine whether the requirements of the Speedy Trial Act were satisfied.

Question 42

When is a defendant liable for ASSAULT?

Answer 42

Where she either attempts to commit a battery or intends to place a victim in fear of an immediate battery.

Question 43

Can WITHDRAWAL be a defense to SOLICITATION?

Answer 43

NO — the crime is complete once the solicitation is complete.

RULE: Solicitation is committed when a defendant, with the intent that another person commit a crime, requests, entices, advises, incites, or otherwise encourages that person to commit a crime.

Question 44

Is murder a SPECIFIC or GENERAL intent crime?

Answer 44

SPECIFIC. A specific intent crime involves more than the objective fault required by merely doing the proscribed actus reus.

NOTE: One way that a defendant will possess specific intent is if he wants, hopes, or wishes that his conduct will bring about a particular result (such as the victim’s death or serious bodily injury), regardless of the objective likelihood of the result occurring.

Question 45

What TIME DURATION between the causation of a MURDER and the actual death did the common law require?

Answer 45

The common law required that the time between the causation of a murder and the actual death had to be NO MORE THAN a year and a day. If the victim died more than one year and one day after the defendant’s act, the courts would rule that the defendant’s act was not the proximate cause of the killing.

NOTE: Most states have eliminated this rule or have extended the time period within which the defendant is held legally responsible.

Question 46

How can a defendant be found not guilty by reason of INSANITY under the M’NAUGHTEN rule?

Answer 46

The M’Naughten test provides that a defendant is entitled to acquittal “if at the time of committing the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act that he was doing, or if he did know it, he did not know what he was doing was wrong.”

EXAMPLE: A defendant suffered from schizophrenia. He had a delusion that the victim was trying to kill him. Under the mistaken belief that he was acting in self-defense, the defendant stabbed the victim to death.

Question 47

What is false imprisonment?

Answer 47

False imprisonment is the intentional, unlawful confinement of one person by another, BUT a victim is not “confined” if there is a reasonable means of escape.

EXAMPLE: Having to jump 30 feet (even with safeguards) is not a reasonable means of escape.

Question 48

Where the defendant intentionally kills someone OTHER THAN the provocateur, is the “heat of passion” engendered by the provocation extended to mitigate the homicide of the third party?

Answer 48

Generally, the answer is no; even if a sufficient provocation exists to mitigate the intentional killing of the provocateur, the intentional killing of an innocent third party is not subject to the same mitigation. And if no other justifying, excusing, or mitigating factor is present, the killing of that third party is considered murder (intentional homicide).

Question 49

Do SUBJECTIVE INTENTIONS play any role in ordinary probable cause analysis under the Fourth Amendment?

Answer 49

NO — see Whren v. United States (U.S. 1996)

Question 50

What is probable cause?

Answer 50

Although there is no bright line definition, probable cause is often defined as that quantity of facts and circumstances within the police officer’s knowledge that would warrant a reasonable person to conclude that the individual in question has committed a crime (for an arrest) or that specific items related to criminal activity can be found at a particular location (for a search).

NOTE: Probable cause is evaluated in terms of what was known at the moment of the government intrusion. A police officer MAY establish probable cause by considering events leading up to the moment of arrest. See Maryland v. Pringle (U.S. 2003).

Question 51

May a motel manager give police consent to search a suspect’s room?

Answer 51

NO. See Stoner v. California (U.S. 1964). In this case, if police do NOT have a search warrant or probable cause, no exceptions apply for them to search the suspect’s motel room.

Question 52

What is the proper burden of persuasion in disbarment proceedings?

Answer 52

CLEAR & CONVINCING evidence. Clear & convincing evidence demands that the evidence support a finding that the fact is significantly more likely to be true than to not be true—a “high probability of truth.” This degree of persuasion is used in such instances as fraud, disbarment, and the validity of a deed or will.

EXAMPLE: Where the attorney is charged with FRAUD, the burden of persuasion for his disbarment proceeding is clear & convincing evidence.

Question 53

State A has a MANDATORY sentence for the death penalty for shooting an officer with the intent to kill. Constitutional?

Answer 53

NO because the mandatory sentence precludes consideration of mitigating factors. The state cannot pass laws for mandatory sentences in such cases. The Eighth Amendment guarantee against cruel and unusual punishment is applicable to the states via the 14th Amendment. See Francis v. Resweber (U.S. 1946). Thus, mandatory capital punishment for specialized crimes, such as shooting a police officer, is UNCONSTITUTIONAL because it’s precludes consideration of mitigating factors. See Woodson, Lockett, and Eddings.

EXAMPLE: If the man shot an officer with intent to kill, but did not kill him, imposing a mandatory death sentence is UNCONSTITUTIONAL.

Question 54

If a Defendant pleads guilty to murder at his arraignment, has he waived his right to raise the insanity defense?

Answer 54

NO, because the man can raise the insanity defense at a later time.

THINK LIKE A LAWYER: A defendant is presumed sane until such time as the defendant goes forward by raising evidence as to their sanity. A not guilty plea does NOT waive the right to raise the insanity defense at a later time.

Question 55

If a defendant is unintentionally and unknowingly speeding at 45 mph in a school zone during school hours (10 mph during school hours) and hits and kills someone, may that defendant avoid being charged with involuntary manslaughter?

Answer 55

NO, because the defendant drove recklessly during school hours.

THINK LIKE A LAWYER: Involuntary manslaughter is an unintentional killing without malice aforethought caused either by recklessness or criminal negligence, or during the attempted commission or attempted commission of an unlawful act. Gross negligence or criminally negligent conduct is required, by the majority rule is that the defendant does NOT need to be consciously aware of the risk created.

Question 56

If Defendant wanted to take revenge on their boss by setting their home on fire, purchased all the materials necessary and then lights the fire, but the boss unexpectedly comes out and immediately puts out the fire and there garage door and driveway are blackened. Is Defendant guilty of arson?

Answer 56

NO, because the home was NOT BURNED.

THINK LIKE A LAWYER: At modern law, the crime of arson consists of (1) the malicious (2) BURNING (3) of property. With respect to the burning requirement, it is NOT necessary that the dwelling be substantially and totally damaged. Although a mere blackening of the surface was NOT enough, there must have been some CHARRING (i.e., slight burning) of the premises.