Long Questions

Question 1

A painter forged a painting and exposed it as one made by a famous artist, A buyer ask if the painting is by the artist and the painter lies and confirm it is. Buyer then gives him $100 as price.

The painting is way more valuable than 100$ because of the frame used by the painter

What would the crime?

1. Larceny by trick.
2. False pretenses.
3. Embezzlement.
4. No theft offense.

Answer 1

False pretenses.

The art restorer has committed false pretenses because his misrepresentation concerning the authenticity of the painting induced the collector to convey title to the $100.

4. Monetary loss on the part of the victim is not an element of the crime. Thus, although the lack of damages might prevent the collector from suing in civil court, the fact that the collector suffered no monetary loss from the crime is irrelevant for criminal law purposes.

Question 2

A knows that B has a PS4 he never uses it. Thinking that B is at his city, and wanting to use for a few days, he breaks into B summer house to take it. Unbeknownst to A, B was at home, A scared him, producing him a heart attack that killed him.

If the defendant is charged with felony murder what is his best defense?

1. He did not intend to kill the victim.
2. His only intent was to borrow the television set for a few days.
3. Larceny is not an inherently dangerous crime, and it was not being committed in an inherently dangerous manner.
4. The victim’s heart attack was an unforeseeable consequence of the defendant’s acts.

Answer 2

To avoid a felony murder his best defense would be to fight the felony itself. That is answer 2. Robbery (breaking and entering into someone else’s dwelling) requires the crime to be commited on the dwelling, and Larceny would have required the permanent dispossesion of the property.

Because under these circumstances no felony would have been attempted or committed, it cannot be shown that the death of the victim occurred during the commission of a felony. Therefore, the defendant would not be guilty of felony murder.

4 is tempting, because generally a conviction of felony murder requires that the death must have been a foreseeable result of commission of the felony. However, some courts do not apply a foreseeability requirement and require only that the underlying felony be malum in se. Since robbery is a malum in se crime, it would not be the best answer

Question 3

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?

Answer 3

Yes, 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.

Question 4

Acting on a hunch, a police officer went to a young woman’s apartment, broke in, and searched it. The officer found exactly what she was looking for under the woman’s bed: a sack filled with jewels. The attached note read, “Sweetheart, here are the goods from the estate heist. Your loving boyfriend.” It was well known in the community that the woman’s boyfriend was a jewel thief. The officer also knew that the estate of a local socialite had been burglarized three days ago. Just as the officer finished reading the note, the woman returned. The officer immediately placed the woman under arrest as an accessory to the estate burglary. Based on the evidence obtained from the woman’s apartment, a search warrant was issued for her boyfriend’s apartment. The search yielded burglar tools and more jewels from the estate. The boyfriend was immediately arrested and charged with the estate burglary. At the boyfriend’s trial for the estate burglary, his attorney files a motion to suppress the evidence consisting of the bag of jewels and note, the tools, and the jewels from the boyfriend’s apartment.

How should the court rule on the motion?

Answer 4

The court should deny the motion to suppress because the police had a warrant to search the boyfriend’s home. The boyfriend’s expectation of privacy extended only to his own home, which was searched under a warrant. He does not have standing to assert a Fourth Amendment claim regarding the search of his girlfriend’s apartment because her apartment was not his home, and he did not own it or have a right to possession of it.

Question 5

On a trial a W testify about the facts of the case, while the D on the same facts, don’t take the stand.

In final argument, the prosecutor called the jury’s attention to the two versions of events suggested by the witness’s testimony on direct examination and the defense attorney’s questions on cross-examination, and then said, “Remember, you only heard one of the two people testify who know what really happened that day.”

If the defendant is convicted of robbery, will his conviction likely be upheld?

Answer 5

No, because the prosecutor’s comment referred to the defendant’s failure to testify, a violation of his Fifth Amendment privilege of silence.

The defendant’s conviction will likely not be upheld because the prosecutor’s comment improperly burdened the defendant’s assertion of his privilege against self-incrimination. The prosecution is not allowed to comment on the defendant’s failure to testify at trial, because the defendant is privileged under the Fifth Amendment to remain silent.

Question 6

The police received a tip from a reliable informant that a former student at the local university was selling narcotics. A brief investigation revealed that the former student, a college dropout, still hung around the university campus, had no visible means of support, and yet drove a large luxury car and wore flashy clothing and jewelry. The police picked up the former student the next time he showed up on campus, took him to the station, and questioned him all night long without a break and without letting him communicate with anyone else. When the former student tired from the interrogation, he admitted that he sold cocaine to his friend, who is a current student at the university. Based on this information, the police went to the current student’s dormitory room. When they arrived, they found the door open but no one was in the room. The police entered, searched the room, and discovered a vial of white powder. Later laboratory tests established the powder to be cocaine. The former student was then charged with the sale of narcotics. At his trial, the prosecution attempted to admit the cocaine discovered in the dormitory room into evidence.

What is the former student’s best argument for preventing the cocaine from being admitted into evidence?

1. The search of the dormitory room was conducted without a warrant and without consent.
2. The police arrested the former student without a warrant.
3. The former student’s confession was not voluntary under the circumstances.
4. The police failed to give the former student Miranda warnings.

Answer 6

The former student’s best argument for preventing the cocaine from being admitted into evidence is that his confession was not voluntary. This question is difficult because each of the choices appears to present a good argument for the former student.

With regard to (1), the search of the current student’s dorm room appears to be an unreasonable search under the Fourth Amendment. However, a person’s Fourth Amendment rights against unreasonable search and seizure may be enforced by the exclusion of evidence only at the instance of someone whose own protection was infringed by the search and seizure. Here, the former student cannot assert a possessory interest or reasonable expectation of privacy in the current student’s dorm room. Thus, the former student cannot successfully exclude the cocaine on the ground that it was seized in violation of the Fourth Amendment. (2) is incorrect because arrest warrants are usually required only for arrests made in the person’s home. Police generally do not need to obtain a warrant before arresting a person in a public place, even if they have time to get a warrant, as long as the arrest is based on probable cause. Here the police had probable cause to arrest the former student, and because he was arrested on the grounds of the campus, the failure of the police to obtain an arrest warrant will be of no help to him.

Choices (3) and (4) both focus on improper conduct during the former student’s interrogation, but (3) is better because the former student will have a better chance of invoking the exclusionary rule if the confession is involuntary. For confessions to be admissible, the Due Process Clause of the Fourteenth Amendment requires that they be voluntary. While voluntariness is a fact question that is assessed by looking at the totality of the circumstances, the duration and manner of the police interrogation here indicate that the confession probably was the result of actual coercion. If the confession is found to be involuntary, the former student can invoke the exclusionary rule to exclude the cocaine as “fruit of the poisonous tree.” In contrast to an involuntary confession, a confession obtained without Miranda warnings, as long as the failure to warn was not purposeful, may not be sufficient to justify excluding the nontestimonial “fruits” of the confession. [See United States v. Patane (2004)] Thus, the involuntariness of the confession, rather than the absence of Miranda warnings, is the best argument for excluding the cocaine.

Question 7

The defendant and an accomplice were on trial together for burglary. Both had given confessions implicating themselves and their accomplice. At trial, the defendant maintained that his confession had been obtained through improper coercion by the police. For the purpose of countering the claim of coercion, the prosecution seeks to place the accomplice’s confession into evidence. After objection by the defendant’s counsel, the judge agrees to issue a limiting instruction to the jury that the confession is to be considered only with regard to the question of whether the defendant’s confession was coerced.

May the accomplice’s confession be admitted under that condition?

1. No, because admission of the confession violates the defendant’s right of confrontation.
2. No, unless the accomplice takes the stand and subjects himself to cross-examination regarding the confession.
3. Yes, as long as all portions of the confession referring to the defendant can be eliminated.
4. Yes, because the judge’s instruction limits consideration of the confession only to the issue of coercion.

Answer 7

Yes, because the judge’s instruction limits consideration of the confession only to the issue of coercion.

The confession is admissible with the judge’s limiting instruction. Where two persons are tried together and one has given a confession implicating the other, the general rule is that the Sixth Amendment right to confront adverse witnesses prohibits the use of such a statement. This problem arises because of the inability of the nonconfessing defendant to compel the confessing co-defendant to take the stand for cross-examination at their joint trial. As exceptions to the general rule, the statement may be admitted if: (i) all portions of the statement referring to the other defendant can be eliminated (so that there is no indication of that defendant’s involvement); (ii) the confessing defendant takes the stand and subjects himself to cross-examination with respect to the truth or falsity of what the statement asserts; or (iii) the confession of the nontestifying co-defendant is being used to rebut the defendant’s claim that his confession was obtained coercively, in which case the jury must be instructed as to the purpose of the admission. The accomplice’s confession, which the prosecution seeks to introduce into evidence, implicates the defendant in the commission of the crimes charged. Consequently, introduction of this confession raises a problem based on the right of confrontation. However, given that the judge will issue the limiting instruction, the confession is admissible.

Question 8

A police officer stopped a boyfriend and girlfriend on a college campus under suspicion that they were selling illegal drugs out of their backpacks. The officer asked the two some questions and then asked if he could look in their backpacks. They consented to the search, but the officer found nothing suspicious in either backpack. The officer then patted them both down and found a package of drugs taped to the boyfriend’s chest. The boyfriend and the girlfriend were charged with possession. The boyfriend pleaded guilty to possession. Prior to trial, the girlfriend’s attorney moved to suppress the introduction of the drugs at her trial. At the suppression hearing, the attorney stipulated that the girlfriend owned the drugs.

How should the court rule on the motion?

1. In favor, because the girlfriend was not in possession of the drugs.
2. In favor, because both the boyfriend and the girlfriend had a reasonable expectation of privacy when the officer elected to search them.
3. Against, because the girlfriend has stipulated that she owns the cocaine.
4. Against, because the search of the boyfriend’s body did not violate the girlfriend’s reasonable expectation of privacy.

Answer 8

Against, because the search of the boyfriend’s body did not violate the girlfriend’s reasonable expectation of privacy.

Because the girlfriend’s Fourth Amendment rights were not violated by the unlawful search of the boyfriend, the drugs may be introduced against the girlfriend at trial. Under Rakas v. Illinois (1978), Fourth Amendment rights may be enforced by the exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure. Ownership of the property seized does not automatically establish violation of one’s reasonable expectation of privacy; it is just one factor in the totality of the circumstances that the court will consider. [Rawlings v. Kentucky (1980)] Here, the drugs were seized from the boyfriend as a result of a search that may have violated his Fourth Amendment rights. However, nothing in the question indicates that the girlfriend had a reasonable expectation of privacy in the boyfriend’s body (such as the right to exclude others from searching the boyfriend if the boyfriend had consented). Under the circumstances in this case, the girlfriend’s ownership of the drugs does not establish a reasonable expectation of privacy with regard to the search of the boyfriend. (A) is incorrect because the fact that the girlfriend did not have actual possession of the drugs does not require that the drugs be excluded from her trial. She may be liable under the jurisdiction’s possession statute if she had sufficient dominion or control over the drugs to be in constructive possession of it. (B) is incorrect even though it is a true statement. The officer’s search of the girlfriend may have violated the girlfriend’s reasonable expectation of privacy, but no evidence was obtained by an illegal search of the girlfriend. The officer’s search of the boyfriend may have violated the boyfriend’s reasonable expectation of privacy but not the girlfriend’s expectation of privacy (as discussed above). Because the girlfriend’s Fourth Amendment rights were not violated by the search of the boyfriend, she cannot use the exclusionary rule to suppress introduction of the drugs. (C) is incorrect because the defendant has the right to testify and stipulate to facts at a suppression hearing without her testimony or stipulation being admitted against her at trial on the issue of guilt. [Simmons v. United States (1968)] This rule allows a defendant to assert a possessory or ownership interest in illegally seized evidence just for purposes of invoking the exclusionary rule; if she fails to have the evidence excluded, she may still deny possession or ownership at trial.

Question 9

At the defendant’s trial for murder, facts were introduced that the defendant acted in the heat of passion. After a lengthy trial, the defendant was convicted of manslaughter. On appeal, the conviction was reversed on procedural grounds. The state immediately moved to retry the defendant, again bringing murder charges against her. The defendant moved to strike the murder charge, and the court refused to grant the motion. After the second trial, the defendant was again convicted of the lesser charge of manslaughter. The defendant appeals the second conviction, claiming that it violated her constitutional rights.

May the second conviction stand?

1. No, because the state could not refile charges after the acquittal.
2. No, because the state could not retry the defendant for murder under the circumstances.
3. Yes, because the state could retry the defendant because the manslaughter conviction was overturned.
4. Yes, because the defendant was reconvicted of the lesser charge again, so any error was harmless

Answer 9

The second conviction will not stand. The Double Jeopardy Clause prohibits retrying a defendant whose conviction has been reversed on appeal for any offense more serious than that for which she was convicted at the first trial. This right is violated by retrial for a more serious offense, even if at the second trial the defendant is only convicted of an offense no more serious than that for which she was convicted at the first trial. Thus, (B) is correct because the state could not retry the defendant for murder. (A) is an incorrect statement of the law. The state may retry the defendant, subject to the limitation discussed above. (C) is incorrect. Although a retrial is permissible, the retrial is subject to the limitation discussed above. (D) is also incorrect. Such a violation of the Double Jeopardy Clause is not considered to be harmless even if the defendant is convicted of the same lesser offense again.

Question 10

A woman was the subject of a murder investigation. The investigation continued for more than two years, with the woman frequently being called in for questioning. Finally, the woman was indicted for the murder. The woman’s lawyer filed a motion to dismiss all charges against her, arguing that the excessively long investigatory period violated the woman’s constitutional right to a speedy trial.

Despite the pending motion, the woman decided that she wanted to “get it over with,” and she told the judge that she wished to plead guilty. The judge then explained the charges to the woman and asked her if she understood them. She replied, “Yes.” The judge then asked the woman if she understood that she was not required to plead guilty. She responded in the affirmative. Finally, the judge described the maximum sentence and asked the woman if she understood that she could receive the maximum sentence, which was life imprisonment. She again responded, “Yes,” and maintained that she still wished to plead guilty. The judge accepted the woman’s plea and sentenced her to 30 years’ imprisonment in the state penitentiary. Six months later, the woman filed a motion to set aside the guilty plea.

Which of the following provides the best argument that the woman has a constitutional basis for relief?

1. The judge did not rule on the pending motion to dismiss before accepting her guilty plea.
2. The judge did not attempt to determine if the woman had actually committed the murder.
3. The judge did not determine whether the files in the prosecutor’s office contained any undisclosed exculpatory evidence.
4. The judge did not determine whether the woman understood that she had a right to a trial by jury.

Answer 10

The judge did not rule on the pending motion to dismiss before accepting her guilty plea.

The judge’s failure to determine whether the woman understood her right to trial by jury indicates that her guilty plea does not satisfy the constitutional requirement that it be “voluntary and intelligent.” A guilty plea is a waiver of the Sixth Amendment right to a jury trial. To be a valid waiver, the judge must determine on the record that the guilty plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. To ensure that this is the case, the judge should make sure that the defendant is informed of the nature of the charge to which the plea is offered, of the maximum possible penalty, that she has a right not to plead guilty, and that by pleading guilty she waives her right to a trial. If the judge did not determine whether the woman understood that she had a right to a trial by jury, her plea will not be a sufficiently intelligent choice to satisfy the constitutional standard, and therefore will not be immune from a post-sentence attack on it. (A) is incorrect because the woman had no legitimate grounds for her motion to dismiss for violation of her right to a speedy trial. The Sixth Amendment right to a speedy trial does not attach until the defendant has been arrested or charged. Pre-arrest delays do not violate this standard, nor do they violate general due process requirements unless they were in bad faith and prejudice the defendant. Otherwise, the only limitation on pre-arrest delay would be the statute of limitations for the particular crime. Thus, the failure of the judge to rule on the motion to dismiss would not be a good argument for setting aside the woman’s guilty plea. (B) is incorrect because most jurisdictions do not require that the record contain evidence of the defendant’s guilt or other factual basis for the plea. Unless the defendant claims her innocence while offering a guilty plea, the judge need not determine whether there is evidence to indicate that the defendant actually committed the crime. (C) is incorrect. While the prosecutor has a duty to disclose exculpatory evidence to the defendant, the judge may accept a guilty plea without determining whether the prosecutor has satisfied that duty.

Question 11

A locksmith knew that his friend had been having marital troubles. The friend had told the locksmith that he suspected his wife was having an affair with his rival. One afternoon, the friend, visibly upset, asked to borrow some of the locksmith’s tools, telling him that he knew that his rival was going to meet up with his wife later that day. The locksmith gave his friend the tools, advising him not to do anything that he would regret later. The friend stated that it would be others who would have regrets. The friend went to his rival’s apartment and picked the door lock with the locksmith’s tools. He found his wife and rival in bed together. The friend stabbed his rival, seriously wounding him. A few minutes later the locksmith called the apartment to try to warn the rival that his friend might come over. After the friend was arrested, he agreed to plead guilty to aggravated battery and attempted voluntary manslaughter in exchange for testifying against the locksmith, who was charged as an accomplice to attempted murder.

Can the locksmith be convicted of that charge?

1. Yes, because he recklessly disregarded a substantial risk to human life and was not provoked.
2. Yes, because his failed attempt to neutralize his assistance did not prevent the crime from occurring and therefore did not constitute an adequate withdrawal.
3. No, because he did not have the requisite intent to be liable as an accomplice.
4. No, because an accomplice cannot be found guilty of a more serious offense than that for which the principal has been convicted.

Answer 11

No, because he did not have the requisite intent to be liable as an accomplice.

The locksmith cannot be convicted as an accomplice because he did not have the requisite intent for attempted murder. To be convicted as an accomplice under the prevailing rule, a person must have given aid, counsel, or encouragement with the intent to aid or encourage the principal and the intent that the principal commit the substantive offense. Mere knowledge that a crime would result from the aid provided is generally insufficient for accomplice liability. Here, the locksmith did not provide the tools to the friend with the intent that he kill the rival. His knowledge that the friend might be intending harm to the rival is not sufficient to establish the intent to kill required for attempted murder. (A) is incorrect because even if the locksmith’s conduct constituted reckless disregard of high risk to human life, that state of mind is not sufficient for attempted murder. Unlike murder, attempted murder is a specific intent crime and requires the intent to kill. (B) is incorrect. Although the locksmith’s attempt to neutralize his assistance would not have been enough to raise the defense of withdrawal if he had incurred liability as an accomplice, here he did not have the requisite intent for accomplice liability. (D) is an incorrect statement of law; the degree of liability of a principal is irrelevant to the potential liability of an accomplice. If the locksmith had had the intent to aid his friend in killing the rival, the fact that the friend could show adequate provocation to reduce his offense to attempted voluntary manslaughter would have no effect on the locksmith’s liability for attempted murder.

Question 12

A father was angry at his son’s coach because the coach would never let the son into a game. In order to exact revenge, the father decided to plant an incendiary device on the coach’s front porch. The father believed the device would start a fire that would destroy the coach’s home and perhaps injure him as well. However, the father made a mistake while assembling the incendiary device, and it was impossible for the device to do any harm. When the device went off, it did nothing more than produce a foul odor.

If the father is charged with attempted murder and attempted arson in a common law jurisdiction, which of the following decisions is most likely to be reached by the court?

1. The father is guilty of attempted murder and attempted arson.
2. The father is guilty of attempted murder, but he is not guilty of attempted arson.
3. The father is not guilty of attempted murder, but he is guilty of attempted arson.
4. The father is not guilty of attempted murder or attempted arson.

Answer 12

The father is not guilty of attempted murder, but he is guilty of attempted arson.

The father lacked the specific intent to kill that is required for attempted murder. However, the circumstances surrounding the “incendiary device” constitute factual impossibility and will not afford the father a defense to attempted arson. Criminal attempt is an act that, although done with the intention of committing a crime, falls short of completing that crime. To be guilty of attempt, the defendant must have the intent to perform an act and obtain a result that, if achieved, would constitute a crime. Regardless of the intent that would suffice for the completed offense, attempt always requires a specific intent to commit the target offense. Also, the defendant must have committed an act beyond mere preparation for the offense. Here, to be guilty of attempted murder, the father must have had the specific intent to kill his son’s coach, even though the intent to inflict great bodily injury would be sufficient mens rea for murder. However, the facts indicate that the father intended at most only to injure the coach rather than kill him. Thus, the father cannot be guilty of attempted murder. However, the father did intend to burn the coach’s home; therefore, he had the specific intent to commit arson by means of placing an incendiary device on the coach’s porch, and his placing the device was an act beyond mere preparation for this crime. Although the device could not have actually burned the coach’s house, it is no defense to attempt that it would have been impossible for the defendant to complete his plan. This is factual impossibility and is not a defense. Thus, the father is guilty of attempted arson. (A) and (B) are incorrect because the father did not have the specific intent to kill. (D) is incorrect because the father is guilty of attempted arson, as explained above.

Question 13

The criminal statutes of the state define manslaughter and murder as they were defined at common law. As to insanity, the state has the following provision:

“Under the defense of insanity a defendant may be entitled to acquittal if, because of mental illness, the defendant was unable to control his or her actions or to conform his or her conduct to the law.”

The defendant was put on trial in the state for the murder of his wife and her co-worker. The evidence at trial established that the defendant’s wife was having an affair with the co-worker, and that the defendant learned of it and killed the pair. The defendant did not take the stand in his own defense. In his closing statement to the jury, the defendant’s attorney made a statement, “Ladies and gentlemen, you must consider that there are some things that would provoke any one of us to kill, and there are things that make one unable to control one’s actions.” The defendant’s attorney requested that the judge give the jury instructions on manslaughter and on insanity, and the judge agreed to do so. The judge also issued the following instructions:

“INSTRUCTION #6: In order to mitigate an intentional killing to voluntary manslaughter, the burden of proof is on the defendant to establish that adequate provocation existed.”

“INSTRUCTION #8: Insanity is an affirmative defense and the burden of proof is on the defendant to establish that such insanity existed at the time of the killing.”

The jury found the defendant guilty of murder, and he appealed. He asserts that the jury instructions violated his rights under the federal Constitution.

How should the appeals court rule?

1. Reverse the defendant’s conviction, because Instruction #6 was improper.
2. Reverse the defendant’s conviction, because Instruction #8 was improper.
3. Reverse the defendant’s conviction, because both Instructions #6 and #8 were improper.
4. Uphold the defendant’s conviction, because neither Instruction #6 nor Instruction #8 was improper.

Answer 13

Reverse the defendant’s conviction, because Instruction #6 was improper.

The court should reverse the defendant’s conviction because Instruction #6 requires the defendant to disprove one of the elements of murder. Due process requires in criminal cases that the state prove guilt beyond a reasonable doubt. The prosecution has the burden of proving all of the elements of the crime charged. Thus, if malice aforethought is an element of murder and voluntary manslaughter is distinguished from murder by the existence of adequate provocation, the defendant cannot be required to prove that he committed the homicide in the heat of passion (i.e., with adequate provocation). Such a requirement would impose on the defendant the burden of disproving the element of malice aforethought, because “heat of passion” negates malice. Although the defendant can be given the burden of going forward with some evidence on the provocation issue, once he has done so, the prosecution bears the burden of proving that the killing was not done in the heat of passion. In the case at issue, Instruction #6 requires a defendant to prove that he committed the intentional killing under adequate provocation. At common law, and consequently in the state, malice aforethought is an element of murder. Therefore, this instruction in effect requires the defendant to disprove the element of malice aforethought, thereby relieving the state of its burden of proving all elements of the crime. As discussed above, such an instruction cannot pass constitutional muster. On the other hand, for an affirmative defense such as insanity, it is permissible to impose the burden of proof on the defendant. Thus, Instruction #8 does not affect the state’s obligation to prove all elements of the crime, and is permissible under the general principles mentioned above. Thus, (B) and (C) incorrectly state that this instruction is improper. (D) is incorrect because it states that Instruction #6 is proper. As explained above, this is not an accurate statement of the law.

Question 14

The defendant discovered that his friend had hit and killed a pedestrian while driving that afternoon, and that he had fled from the scene of the crime before the police arrived. To keep his friend out of trouble, the defendant fixed all the dents in the car caused by the collision and had the vehicle painted a different color. The friend, distraught about hitting and killing someone, eventually turned himself in and told the police what he had done and what the defendant had done for him. The defendant was charged as an accomplice to vehicular manslaughter in a state that follows the modern trend regarding accomplice liability.

How should the defendant be found?

1. Not guilty, because he only helped his friend after the crime was already committed.
2. Not guilty, because he had no affirmative duty to the victim.
3. Guilty, because he aided his friend in the crime.
4. Guilty, because as a party to the crime, he is criminally responsible for all crimes committed by his co-felons.

Answer 14

Not guilty, because he only helped his friend after the crime was already committed.

The defendant should be found not guilty as an accomplice. Under modern statutes, parties to a crime are divided into three different categories. Principals are those who, with the requisite mental state, actually engage in the act or omission that causes the criminal result. An accomplice is one who, with the intent that the crime be committed, aids, counsels, or encourages the principal before or during the commission of the offense. Under modern statutes, accomplices are generally treated as principals. A third category is “an accessory after the fact.” An accessory after the fact is one who receives, relieves, comforts, or assists another knowing that he has committed a felony, in order to help the felon escape arrest, trial, or conviction. Unlike an accomplice, an accessory after the fact has committed a separate crime with a punishment unrelated to the felony committed. In the instant case, it is clear that the defendant aided his friend in avoiding capture, that he provided no aid to the substantive offense, and that he did not intend the substantive offense to occur. Thus, he is an accessory after the fact and not an accomplice, making (A) the correct answer. (B) is incorrect because, although it is true that one need not prevent a crime from being committed, one cannot help another avoid arrest, as the defendant did in this case. (C) is incorrect. The defendant did not aid his friend in the commission of the crime; his help came afterward. Thus, the aid provided makes him an accessory after the fact, as explained above, and not an accomplice. (D) is incorrect. The criminal liability for other probable or foreseeable crimes arises when one is deemed an accomplice of a principal. As stated above, the defendant is not an accomplice, so, under these facts, he cannot be criminally liable for any other crimes committed by his friend.

Question 15

At a waterfront bar, a college student sought to provoke a fight with a merchant seaman by making insulting remarks. Eventually the seaman had had enough and threw a punch that connected to the student’s jaw and sent him sprawling to the floor. The seaman then told the student that he wanted no further trouble. Getting up off the floor, the student pulled a knife out of his pocket and charged at the seaman. Three other students were standing between the seaman and the exit door. The seaman tried to dodge, but was cut on the forearm by the student’s knife. The seaman immediately drew a gun and shot the student, killing him. The seaman was charged with murder.

Which of the following points raised in the seaman’s defense will not be helpful for his defense?

1. The student had no reason to fear serious bodily injury when he drew the knife.
2. The student’s drawing of the knife constituted an escalation of the fight.
3. Three college students were standing between the seaman and the door, so there was no clear route of retreat.
4. The student’s comments were motivated by a desire to provoke the seaman.

Answer 15

The student’s comments were motivated by a desire to provoke the seaman.

Even though the student’s words may have been intended to provoke the seaman, this fact alone would not justify the seaman’s use of deadly force. A person may use deadly force in self-defense if he: (i) is without fault; (ii) is confronted with unlawful force; and (iii) reasonably believes that he is threatened with imminent death or great bodily harm. Generally, one who is at fault for starting a confrontation has no right to use force in his own defense during that confrontation. However, if the victim of the initial aggression suddenly escalates a relatively minor fight into one involving deadly force and does not give the aggressor a chance to withdraw or retreat, the aggressor may use deadly force in his own defense. Here, although the student instigated the hostile situation by repeatedly insulting the seaman, the seaman’s throwing of a punch probably calls for his being characterized as the aggressor. The student, as the victim of the initial aggression, escalated matters by using a knife, especially because the seaman had said that he wanted no further trouble. This escalation (which is the point stated in choice (B)) entitled the seaman to employ deadly force in his own defense against the imminent threat of death or great bodily harm posed by the student’s use of the knife. Thus, (B) presents a point that will be helpful to the seaman. (A) is incorrect because, if the student had no reason to fear serious bodily injury when he drew the knife, his use of the knife constitutes unlawful force, in response to which the seaman was entitled to use deadly force of his own. Consequently, (A) will also be of value in gaining the seaman an acquittal. Regarding (C), many courts hold that a person is not under a duty to retreat before using deadly force. Thus, even if the seaman could have safely retreated, he was still entitled to use deadly force in self-defense, so that he is not required to show why he did not retreat. Other courts, however, do require retreat before the use of deadly force, but only if the retreat can be made in complete safety. The fact that the seaman’s route of retreat was blocked by other students would indicate that a retreat might not be able to be made in safety, and would be significant in a jurisdiction holding that there is a duty to retreat. Therefore, (C) also presents a point that can be helpful to the seaman. (D) is correct because the motive of the student in insulting the seaman is of no help to the defense. Even if the words did provoke him, the seaman would not be entitled to employ deadly force against the student on the basis of the student’s desire for trouble. Use of such force would be justified only if the seaman held a reasonable belief that he was faced with imminent death or great bodily harm from one of the students if he did not respond with deadly force.

Question 16

A man was tried in state court for possession of heroin. The prosecution offered in evidence five rolled-up toy balloons containing heroin, which police officers had found on a table in the man’s apartment. At a hearing on the defense’s motion to suppress, testimony was presented that established that the police had put the apartment under surveillance and had watched a police informant go to the door of the apartment, hand four balloons of heroin to the man, and leave. The police had then knocked on the apartment door, identified themselves as police officers, and demanded entrance. Having heard nothing for 30 seconds, the police had then broken down the door and entered the apartment, discovering the heroin. The police had intended to arrest the man for the purchase of heroin, a felony. When they had gotten inside the apartment, they discovered that the man had left by a back exit. He was later arrested at the nearby newsstand.

The trial court denied the motion to suppress, and the case is on appeal following the man’s conviction for possession of heroin. How should the appellate court rule?

1. Affirm the conviction on the ground that the error, if any, in admitting the heroin was harmless error.
2. Affirm the conviction on the ground that the police complied with the “knock and announce rule” even though no one was there to admit them.
3. Reverse the conviction on the ground that the man’s Fourth Amendment rights (as applied to the states by the Fourteenth Amendment) have been violated.
4. Reverse the conviction on the ground that the “knock and announce rule” was not satisfied when the police announced their presence and identity to an empty residence.

Answer 16

Reverse the conviction on the ground that the man’s Fourth Amendment rights (as applied to the states by the Fourteenth Amendment) have been violated.

The appellate court should reverse the conviction on Fourth Amendment grounds. In Payton v. New York (1980), the United States Supreme Court held that, absent an emergency, a forcible, warrantless entry into a residence for the purpose of making a felony arrest is an unconstitutional violation of the Fourth Amendment as made applicable to the states by the Fourteenth Amendment. No exigent circumstances justified the warrantless arrest or the warrantless entry into the home. If the police had reason to believe the man was destroying evidence, they could have entered the home without a warrant to prevent the destruction under the exigent circumstances doctrine. But nothing in the facts gave the officers reason to believe that evidence was being destroyed. They knocked on the door, identified themselves, and demanded entrance. They heard no response or sounds of drugs being destroyed. Thus, there were no exigent circumstances. Evidence that is the fruit of an unlawful arrest may not be used against the defendant at trial because of the exclusionary rule. (A) is therefore incorrect. (B) and (D) are incorrect because whether or not the “knock and announce rule” was violated will not affect admissibility of the heroin—the exclusionary rule will not apply to evidence resulting from a search violating that rule.

Question 17

A gang member threatened to kill the defendant unless he robbed a convenience store and gave the proceeds to the gang member. The gang member also demanded at gunpoint that the defendant kill the clerk to prevent identification. In abject fear of his life, the defendant did everything that the gang member requested.

If the defendant is arrested and charged with murder and robbery in a common law jurisdiction, what result?

1. The defendant should be convicted of murder and robbery.
2. The defendant should be acquitted of the robbery and convicted of murder.
3. The defendant should be convicted of robbery, and the killing will be reduced to voluntary manslaughter.
4. The defendant should be acquitted of the robbery, and the killing should be reduced to voluntary manslaughter.

Answer 17

The defendant should be acquitted of the robbery and convicted of murder.

The defendant should be convicted of common law murder, but acquitted of the robbery. At common law, murder is the unlawful killing of a human being with malice aforethought. “Malice aforethought” exists if the defendant has any of the following states of mind: (i) the intent to kill (express malice); (ii) the intent to inflict great bodily injury; (iii) a reckless indifference to an unjustifiably high risk to human life (“abandoned and malignant heart”); or (iv) the intent to commit a felony. In the instant case, malice could be found either by the intent to kill (because the clerk was intentionally killed to prevent identification) or by the intent to commit a felony (the killing was committed during the course of a robbery). Robbery is an aggravated form of larceny and consists of the following elements: (i) a taking; (ii) of the personal property of another; (iii) from the other’s person or presence; (iv) by force or intimidation; (v) with the intent to permanently deprive him of it. Clearly, the elements for robbery are met here. Thus, at first glance, the defendant has committed both murder and robbery. However, the fact pattern also raises the defense of duress. A person is not guilty of an offense, other than intentional homicide, if he performs an otherwise criminal act under the reasonable belief that another will imminently inflict death or great bodily harm on him or an immediate family member if he does not commit the criminal act. In the instant case, the defendant committed the robbery under duress and thus should be acquitted of that charge, making (A) incorrect. However, duress would not be effective against a murder charge based on an intent-to-kill theory, and here the defendant intentionally killed the store clerk under instructions from the gang member to prevent identification. Thus, because the defendant could be convicted of an intent-to-kill murder, but acquitted of the robbery charge based on duress, (B) is the correct answer. (C) and (D) are incorrect. An argument could be raised that the killing should be reduced to voluntary manslaughter from murder, given that the defendant was acting under the provocation of a threat of deadly force. At common law, provocation would reduce a killing to voluntary manslaughter if (i) the provocation must have been one that would arouse the sudden and intense passion in the mind of an ordinary person such as to cause him to lose self-control; (ii) the defendant must have in fact been provoked; (iii) there must not have been sufficient time to cool off; and (iv) the defendant did not in fact cool off. Provocation includes being subjected to a serious battery or a threat of deadly force. That said, the reduction to voluntary manslaughter occurs only as to the person who provoked the defendant (or the killing of a third person under the transferred intent doctrine). Thus, had the defendant killed the gang member, he might have been able to claim “adequate provocation” to have the killing reduced to voluntary manslaughter (assuming that a straight self-defense issue could not have been raised). However, as discussed above in terms of a duress defense, it would not justify the killing of a third party.

Question 18

A police officer saw a car containing three teenagers driving slowly down the street at 1 a.m. She waited for it to go by her and, after it was far enough ahead, started to follow it. Several blocks later, the car rolled through a stop sign. The officer immediately pulled the car over and requested the driver’s license. A license check showed that the driver had five outstanding parking tickets. A statute in the jurisdiction permits an arrest to be made if a driver has four or more outstanding parking or traffic violations. The officer decided to take the driver in on the tickets. She informed the driver that he was under arrest and asked him to step out of the car. When the driver got out, the officer patted him down and found a gun in his waistband. Calling for backup, she decided to haul all three teenagers to jail.

Subsequent testing showed that the gun had been used in a recent homicide during a store robbery by three young men. One of the passengers made a motion to prevent the introduction of the gun at his trial for murder and robbery.

How should the judge rule?

1. Deny the motion, because the gun was found after the driver had been arrested.
2. Deny the motion, because the officer lawfully stopped the car.
3. Grant the motion, because the officer had no valid reason to be following the automobile.
4. Grant the motion, because the officer had not arrested the driver for suspicion of robbing the store or committing the homicide.

Answer 18

The judge should deny the motion. Evidence will be suppressed if it was obtained in violation of the defendant’s constitutional rights. Each passenger in a car has standing to challenge a stop of the car. If a stop is invalid, under the fruit of the poisonous tree doctrine, evidence obtained as a result of the invalid stop will be suppressed. Here, the officer had a valid reason to stop the car. An officer may stop a car for violating a traffic law, and here the driver of the car failed to stop at a stop sign. (A) is incorrect because it is irrelevant. A person may seek suppression of evidence that has been seized only if the seizure is in violation of the person’s own constitutional rights. While it is true that the gun was properly seized from the driver because the arrest appears to have been valid, the gun would be admissible against the passenger even if it had been unlawfully seized from the driver. The driver, of course, would have standing to complain of the unlawful seizure, but not the passenger. (C) is wrong because, for whatever reason the officer first followed the car, the fact remains that she had a valid reason for stopping it—violation of the traffic law. And this is so even if the officer’s ulterior motive was to investigate whether some other law was being violated. (D) is wrong because it is irrelevant. As with (A), it is focusing on the wrong party. Moreover, even if the proper arrest of the driver were relevant, the search incident to a constitutional arrest need not have been based on suspicion that the three had committed the crimes for which they have been charged (robbery and homicide); the only requirement is a constitutionally valid arrest. The arrest here was valid because the driver had five outstanding traffic tickets.