MBE

Question 1

Standing: Car search; Passenger
Barbri MBE: # 16
Got wrong

Answer 1

• A passenger has no standing to challenge the search of the trunk because it did not violate her REP. Merely being a passenger in someone else’s car does not create a REP with regard to a search of the car. Something more is needed to have standing to challenge the search, such as if the passenger owned the car
• Passengers have standing to raise a WRONGFUL STOP as reason to exclude evidence found during stop
• Got it wrong because you assumed the passenger had a REP in the trunk

Question 2

Warrant Requirement: Search & Seizure
#17
Got wrong

Answer 2

• To have a 4th amend right, a person must have a REP with respect to the place searched or item seized or must prove that there was a physical intrusion into a constitutionally protected area.
• The entry to a home is within the curtilage and is protected from unreasonable searches
• Police have an implied license to approach the door of a home and knock, but brining along a drug sniffing dog violates the license and is a physical intrusion into a constitutionally protected area
• Got it wrong because you picked too broad of an answer, exigent circumstances are not the only exception to a warrant for searches/seizures of one’s home, others are consent and plain view

Question 3

Search Incident to Arrest
#18
Got Correct

Answer 3

• Police may search a person after making a valid arrest.
• One may not raise a violation of another’s constitutional rights at a 4th amend suppression hearing
• A person vernally does not have standing to complain about a warrantless search of another’s home unless the home was also his home or he was at least an overnight guest in the home
• The community caretaker exception: applies when police are acting to protect a person from imminent physical harm
• Incident to arrest, police may perform a full search
• Only a pat down during an investigatory detention is limited to revealing weapons/items immediately recognizable as contraband

Question 4

Stop & Frisk: Anonymous Tip
#19
Accidentally looked at answer

Answer 4

• Police have the authority to briefly detain a person for investigative purposes even if they lack probable cause to arrest
• To make a stop, police must have reasonable suspicion supported by articulable facts of criminal activity or involvement in a completed crime
• When source of suspicion is an informant’s tip, the tip must be reliably sufficient
• An anonymous tip alone is not enough, there must be more detail (ex. predicting incriminating movement) to corroborate the accusation
• Inevitable discovery exception to the exclusionary rule: evidence may be admitted if police inevitably would have discovered it whether or not they acted unconstitutionally

Question 5

Valid Warrant:
#20
Got Wrong

Answer 5

• A person does not have a REP in any land or field not a part of the curtilage, not a constitutionally protected area, thus, there is no 4th amend protection
• Got wrong because you got distracted by one of the distracter answers

Question 6

Admin searches: School officials
#21
Accidentally looked at answer

Answer 6

• Due to the nature of school environment, reasonable grounds for a search are sufficient for searches by public school officials
• Neither a warrant nor PC is required
• School search is reasonable if: (1) measures adopted to carry out search are reasonably related to the objectives of the search; (2) search is not excessively intrusive in light of the age & sex of student and nature of infraction

Question 7

Confessions: Miranda Warnings
#22
Got Correct

Answer 7

• Under the exclusionary rule & the fruit of the poisonous tree doctrine, a confession will be suppressed if it resulted from a violation of D’s constitutional rights or the Miranda rule
• Police may make a warrantless arrest in a public place if they have PC (facts that would cause a reasonable person to believe a felony was committed by the arrestee).
• Miranda rule: police must advise detainee of certain rights and consequence before conducting a custodial interrogation, including right to remain silent, right to counsel, and any statement made can be used as evidence against them
• Interrogation includes any conduct by police that they reasonably should know would likely elicit an incriminating response
• Detainee may make a knowing and voluntary waiver of these rights
• If warnings are given, rights will be deemed waived unless detainee explicitly and unambiguously asserts their rights

Question 8

Miranda Warnings: Custody
#23
Got correct

Answer 8

• If a person questioned by police has not been deprived of her freedom of movement in any significant way, she is not in custody and need not be given miranda warnings

Question 9

Post Charge Line-up: Counsel
#24
Got Wrong

Answer 9

• A post-charge lineup is a critical stage of prosecution at which D has a right to have counsel.
• Once gov has initiated adversary judicial criminal proceedings, the presence of counsel is a prerequisite to the conduct of a lineup
• This right attaches as soon as the accused is within sight of a potential ID witness.
• Accused is entitled to have counsel present at all times during the lineup, not just when he steps forward for closer viewing
• The requirement that counsel be present as a post charge lineup has never turned on a showing of gov bad faith or even gov error.
• Gov has an affirmative obligation to ensure counsel is present

Question 10

Miranda Warnings: Remaining Silent
#25
Got Correct

Answer 10

• A D in custody has no duty yo speak at all, and the exercise of this constitutional right cannot be used against D to show probable guilt
• Miranda warnings carry an implicit assurance that silence will carry no penalty

Question 11

Burglary & Larceny
S&T: #1
Got Wrong

Answer 11

• Burglary is: (1) the breaking, (2) and entering, (3) of the dwelling, (4) of another, (5) at night time, (6) with the intent to commit a felony within.
• The time for measuring the existence of an “intent to commit a felony within” is the moment of the breaking and entering.
• Larceny is: (1) the taking and (2) carrying away of (3) the tangible property (4) of another, (5) by trespass or without consent, (6) with the intent to permanently deprive the other of his interest in the
  property.
• Under the continuing trespass doctrine, applied by most courts, one who takes another’s property, knowing that it is not his own but intending to return it, commits a “trespassory taking” at that moment; that original trespassory taking, although not coinciding with an intent to steal, is deemed to continue until the taker does form such an intent, at which point the larceny is complete
• Got wrong because you did not consider that the intent required for larceny could develop later after the taking as occurred

Question 12

Conspiracy
#2
Got Correct

Answer 12

• Conspiracy is an agreement between two or more persons to accomplish a crime. (Some jurisdictions also require an overt act in furtherance of the conspiracy)
• The prosecution bears the burden of proving that an agreement to commit a crime was made by the two defendants. However, the existence of an agreement need not be proven by direct evidence; circumstantial evidence can suffice.

Question 13

Murder: Great Bodily Harm
#3
Got Correct

Answer 13

• At common law, a number of mental states can suffice for murder.
• One of these mental states is an intent to do serious bodily injury.
• The intent to do serious bodily injury, like the intent to kill, can be inferred from the defendant’s conduct in the light of the surrounding circumstances.

Question 14

Attempted Robbery
#4
Correct

Answer 14

• A robbery is a larceny from a person, or in a person’s immediate presence, brought about by either force or fear.
• Impossibility is no defense to attempt charges where, had the facts been as the defendant believed them to be, the defendant would have had the mental state required for the completed crime.

Question 15

Involuntary intoxication
#5
Correct

Answer 15

• There are two varieties of intoxication defense,
  “voluntary intoxication” and “involuntary intoxication.”
• The main circumstance covered by the involuntary intoxication defense is where the intoxication has “resulted from an innocent mistake by the defendant as to the character of the substance taken, as when another person has tricked him into taking the liquor or drugs.
• Once the defendant has established that his intoxication was involuntary, he would be entitled to an acquittal if the intoxication either prevented him from having the required mental state, or deprived him of the ability to conform his conduct to the requirements of the law.
• MPC: “Intoxication that (a) is not self-induced [i.e., that is involuntary] . . . is an affirmative defense if by reason of such intoxication the actor at the time of his conduct lacks substantial capacity either to appreciate its criminality [wrongfulness] or to conform his conduct to the requirements of law.
• But battery is a crime that can be committed not only with the mental state of “intent to strike another,” but also with the mental state of recklessness as to the risk of striking another.
• Nearly all courts hold that recklessness cannot be negated by voluntary intoxication. Therefore, courts generally hold that voluntary intoxication is no defense to battery.

Question 16

Murder: Mens Rea
#6
Wrong

Answer 16

• Murder is an unlawful killing that is accompanied by implied or express “malice aforethought.” Putting aside the special case of felony murder, malice is deemed to exist if (and only if) the defendant had
  any of the following three mental states at the time he committed the relevant act: (1) an intent to kill; (2) an intent to do serious bodily injury; or (3) a reckless indifference to the value of human life (“depraved heart”).
• As to “reckless indifference to the value of human life,” courts find that mental state to be present only if (at a minimum) the conduct involved what a reasonable person in the defendant’s situation would regard as a very high risk of death or serious bodily injury to another.
• (Most courts would probably also require that the defendant be subjectively aware of the high degree of risk.)
• Got wrong because you got distracted by the definition of 1st degree murder in the question and did not consider the required mens rea

Question 17

Accomplice liability
#7
Correct

Answer 17

• If A, while having the mental state for crime X, aids, abets, encourages or assists B to commit crime X, and B in fact commits crime X, A is guilty of crime X as an accomplice.
• “At least where the attempted aid is known to the
  [principal], it may make no difference that the aid was unsuccessful or was not utilized, as it may qualify as an encouragement. On this basis, it is correct to conclude that an accessory who provides
  instrumentalities to a burglar for use in a particular burglary should not escape liability as an accomplice merely because the burglar found and used other instrumentalities at the crime scene.”

Question 18

Alibi
#8
Wrong

Answer 18

• Due Process Clause protects the accused against conviction except upon “proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”
• The Supreme Court has held that a defendant may constitutionally be required to produce some evidence in support of an “affirmative defense,” such as the defense of self-defense
• (D may constitutionally be required to bear the burden of persuasion on the affirmative defense of extreme emotional disturbance.
• But “affirmative defenses” are defenses that add some new, mitigating element, not defenses that merely tend to show that some element of the underlying crime was not present.
• Therefore, when the defendant raises a “defense” that merely attempts to rebut an element of the prosecution’s case, the burden of proof on this defense may not be placed on the defendant
• An “alibi defense” falls into this category. “Thus the burden of proof as to the ‘defense’ of alibi may not be placed upon the defendant, for alibi of necessity negates defendant’s participation in the conduct defined as criminal
• Got wrong because you did not know the rules for burden of proof as to defenses

Question 19

Recklessness
#9
Correct

Answer 19

-

Question 20

Accomplice Liability
#10
Correct

Answer 20

• A conviction based on accomplice liability requires not only a showing that the accomplice aided, encouraged, or assisted the principal to commit the underlying crime, but also a showing that the
  accomplice had a culpable mental state sufficient for that underlying crime.
• The crime of larceny (theft) requires an intent to permanently deprive another of the latter’s property
• And that intent must have existed before or simultaneously with the actual taking
• To gain a conviction of an accomplice, the prosecution must prove that the principal committed the underlying crime.
• But under virtually all modern approaches, the fact that the principal has not been prosecuted does not bar a successful prosecution of the accomplice,
  assuming, of course, that in the accomplice’s trial the prosecution proves that the principal committed the crime

Question 21

Burglary
#11
Correct

Answer 21

• a structure that is open to the public cannot be
  ‘‘broken and entered,’’ at least as to areas where, and times when, the public is welcome.
• The act of burglary is complete when the breaking and entry takes place — the wrongdoer need not actually commit the felony therein, under the statute given.
• In order to successfully claim abandonment, the abandonment must be completely voluntary, and
  not made due to problems in completing the crime or the risk of getting caught; and it must represent a full renunciation of the criminal purpose.

Question 22

Conspiracy
#12
- Wrong

Answer 22

• A conspiracy requires an agreement between at least two people, the intent to enter into such an agreement, and the intent to achieve the agreement’s unlawful objective
• Got wrong because you missed the central issue, D did not agree to help in stealing the food stamps, he only wanted to buy them

Question 23

Attempt
#13
Wrong

Answer 23

-The common law of attempt required that the defendant commit some act (beyond mere ‘‘preparation’’) toward bringing about the
intended crime.
- Got wrong because of distracter that had nothing to do with the issue of attempt conviction

Question 24

Accomplice Liability
#14
Correct

Answer 24

• A robbery is a larceny from either a person or a person’s presence, by either force or fear
• Thus, whenever accomplice
  liability is involved, check first to see if the actual crime took place. If it didn’t, the accomplice can’t possibly be liable
• it isn’t necessary that the accomplice actually
  participate in the criminal act itself
• An accomplice is one who procures, counsels or commands the commission of a felony.

Question 25

Causation
#15
Correct

Answer 25

Misdemeanor manslaughter is a killing that occurs as a result of or during a malum in se misdemeanor, or a felony that is not sufficient or felony murder.