MBE Criminal Law and Procedure

Question 1

accomplice

Liability:

Answer 1

An accomplice is a person who assists or encourages the principal with the intent that the crime is committed.
Tip: mere presence at the scene is not enough.
A victim of a crime or “necessary party” is not an accomplice.

Liability: an accomplice is liable for all crimes committed that he aids or encourages and all “natural and probable results” of the crime that he intends to assist.

Question 2

Accessory after the fact

Answer 2

An accessory after the fact is a person who knowingly assists a person who has committed a felony with intent to help him avoid arrest, trial, or conviction.

Question 3

First-degree murder

Answer 3

(with malice aforethought)

An intentional killing with premeditation and deliberation (e.g., poisoning someone).

Question 4

Voluntary manslaughter

Answer 4

(without malice aforethought)
An intentional killing of a human being in the heat of passion due to adequate provocation (e.g., D finds wife in bed with another or D is punched in the face by someone and is enraged).

Tip: mere words do not count as adequate provocation under the majority view.

Question 5

Second degree murder

Answer 5

(with malice aforethought)

(1) Extreme recklessness (e.g., D shoots his gun in a crowded room without intent to kill).
(2) Intentional infliction of great bodily harm and death results (e.g., D cuts someone’s legs off without intent to kill him but he dies).
(3) Catchall: D is not guilty of first-degree murder but acts with malice; D can intend to kill (e.g., D shoots and kills someone because he is enraged after being insulted by them).

Tip: oftentimes this third category of second-degree murder looks like voluntary manslaughter but D is not adequately provoked.

Question 6

Involuntary or misdemeanor manslaughter

Answer 6

(without malice aforethought)
A killing due to gross negligence or recklessness (e.g., a parent does not take his extremely sick infant to the free local clinic and the infant dies), or
A killing during a misdemeanor or felony that does not qualify for felony murder (misdemeanor manslaughter rule).

Question 7

Felony murder
inherently dangerous felonies BARRK

causation: Agency theory (majority)
causation: Proximate cause theory (minority)

Answer 7

(with malice aforethought) D commits a felony and someone other than a co-felon dies. The death can occur during the commission of the felony, the attempt to commit it, or the flight from it.
• The felony must be inherently dangerous (e.g., Burglary, Arson, Robbery, Rape, Kidnapping, and ).

• There must be causation: Under the agency theory, the felon or his agent (co-felon) must cause the death.

Under the proximate cause theory, the felon is liable so long as he “sets in motion” the acts that cause the death.

Question 8

Specific intent: D intentionally or knowingly commits the crime or wants to produce a specific criminal result

Examples of specific intent crimes

Answer 8

False pretenses:
Assault:
Larceny:
Larceny by trick: .

Embezzlement:
Robbery:
Burglary:
First-degree murder and inchoate crimes are also specific intent crimes.

Question 9

Assault

Answer 9

Assault: an attempted battery or the intentional infliction of apprehension.

Question 10

Larceny

Answer 10

• Larceny: the trespassory taking and carrying away of personal property of another with the intent to permanently deprive them thereof.

Question 11

Larceny by Trick

Answer 11

• Larceny by trick: D intentionally makes a false representation of material past or existing fact to obtain custody (but not title) of personal property of another.

Question 12

False Pretenses

Answer 12

• False pretenses: This is the same as larceny by trick, except D obtains title to the property with the intent to defraud. Tip: Look at what the victim intends to do at the time he hands over the property. If the victim hands it over and never intends to get the property back, it is false pretenses. Otherwise, it is larceny by trick.

Question 13

Embezzlement

Answer 13

• Embezzlement: the fraudulent conversion or misappropriation of property of another by one who is already in lawful possession of that property.

Question 14

Robbery

Answer 14

• Robbery: Larceny + a taking from another’s person or presence + force or threat of force.

Tip: D must use force or the victim must feel fear. (If the victim is not afraid and no force is used, D cannot be liable for robbery.)

Question 15

Burglary

Answer 15

• Burglary: breaking and entering the dwelling of another at night with the intent to commit a felony or larceny therein. Tip: D must have the intent to commit the felony or larceny at the time he breaks in. He cannot form it while inside.

Question 16

First Degree Murder and Inchoate Crimes

Answer 16

• First-degree murder and inchoate crimes are also specific intent crimes.

Question 17

Attempt

mens rea
actus reus
merges with completed crime?

Answer 17

Mens rea: the specific intent to commit a crime

Actus reus:
MPC/majority: a “substantial step” that is “strongly corroborative” of the criminal purpose.
Common law: D gets “dangerously close” to committing the crime.

merges with the completed crime? Yes. One cannot be convicted of both attempt and the completed crime.

Question 18

Conspiracy

mens rea
actus reus
merges with completed crime?

Answer 18

Mens rea: The specific intent to enter into the agreement and accomplish its objectives

Actus Reus: An agreement by two or more people to commit a crime and an overt act in furtherance of the crime (in some states).

Note: an overt act is not required at common law.

Merges with completed crime?
No. One can be convicted of conspiracy and the completed crime. Note: D is also liable for all other crimes committed by his coconspirators so long as the crimes were foreseeable and in furtherance of the conspiracy. (Withdrawal is not a defense but will cut off liability for any crimes committed after the withdrawal.)

Question 19

Solicitation

mens rea
actus reus
merges with completed crime?

Answer 19

Mens rea: The specific intent that the crime be committed.

Actus reus: D requests, encourages, advises, or commands that someone commit a crime.

merges with completed crime? Yes. One cannot be convicted of solicitation and the completed crime.

Question 20

T or F Note: factual impossibility (e.g., the crime was impossible to complete) and withdrawing (e.g., changing one’s mind) generally are not defenses to inchoate crimes.

Answer 20

True

Question 21

General intent: D is generally aware of what he is doing; motive is immaterial. What are examples of general intent crimes? BARKS

Answer 21

Battery
Arson 
Rape 
Kidnapping 
Statutory rape

Question 22

Battery

Answer 22

Battery: the unlawful application of force to another resulting in bodily injury or offensive touching.

Question 23

Rape

Answer 23

Rape: unlawful sexual intercourse without consent using force or threat of force.

Question 24

Kidnapping:

Answer 24

unlawful confinement or restraint that involves moving or hiding the victim

Question 25

Arson

Answer 25

Arson (the malicious burning of the dwelling of another)

Question 26

Statutory Rape

Answer 26

Statutory rape (sexual intercourse with a minor) and regulatory offenses. strict liability crime

Question 27

Other strict liability crimes

Answer 27

Tip: examples of strict liability crimes include selling contaminated food, littering, and vehicular traffic offenses.

Question 28

Defenses:

Self Defense

Answer 28

Self-defense: Available if D reasonably believed force was necessary to avoid the imminent use of unlawful force by another. Defense of others is also a recognized defense.

Question 29

Insanity:

Answer 29

• Most jurisdictions use the M‘Naghten rules. D must prove he suffered a disease of the mind that caused a defect of reason and he lacked the ability to know the wrongfulness of his actions or understand the nature and quality of his actions.

Question 30

incompetency to stand trial

Answer 30

• Incompetency to stand trial: if D is unable to understand the nature of the proceedings against him or assist his lawyer, he may be incompetent to stand trial.

Question 31

Intoxication

Answer 31

• Intoxication: Voluntary intoxication is a defense to specific intent crimes only if it negates the specific intent. Involuntary intoxication is treated the same as insanity.

Question 32

Mistake of Fact (MOF)

Answer 32

• Mistake of fact (MOF): For specific intent crimes, a reasonable or unreasonable MOF can serve as a defense. For general intent or malice crimes, only a reasonable MOF is a defense. For strict liability crimes, MOF is not a defense.

Question 33

Mistake of Law (MOL)

Answer 33

• Mistake of law (MOL): Generally, MOL is not a defense (even when relying on one’s lawyer!). There are very narrow exceptions to this general rule.

Question 34

Necessity defense

Answer 34

• Necessity: this is a defense if D reasonably believed his criminal conduct was necessary to prevent a greater harm and is not at fault in creating the situation that required the necessity.

Question 35

• Duress:

Answer 35

This is a defense if D reasonably feared that if he did not perform the crime, either he or another would suffer imminent death or serious bodily injury. Duress cannot be used as a defense to homicide.

Question 36

Criminal law: Acts and omissions:

Answer 36

D must engage in a voluntary act. D is not liable for a failure to act (omission) unless there is a legal duty to act—e.g., a duty created by a statute, contract, or
relationship (e.g., spouse to spouse or parent to child).

Question 37

Jurisdiction:

Answer 37

Federal courts have jurisdiction over federally owned territory (the District of Columbia) and over conduct on ships or aircrafts. Federal courts also hear cases involving federal crimes. A state has jurisdiction if an act or omission that was part of the crime occurred in the state or the result occurred in that state.

Question 38

Burdens of proof and persuasion:

Answer 38

The prosecution must prove every element of a crime beyond a reasonable doubt. D may be required to prove any affirmative defenses.

Question 39

Exclusionary rule:

But it still can be used in SIICK

Answer 39

If the Fourth Amendment is not satisfied, the exclusionary rule applies. Evidence is excluded from the prosecution’s case-in-chief.

But, it can still be used (SIICK)
if D does not have Standing,
for Impeachment,
if discovery was Inevitable (or if there was an independent source or the taint disappeared),
in Civil (and other non-criminal) proceedings, or if the Knock and announce rule was violated.

Question 40

Fourth Amendment: If there is a search or seizure by a government agent, then the Fourth Amendment applies. There are three ways to satisfy the Fourth Amendment:

Answer 40

• Method #1: Valid warrant + proper execution. A valid warrant requires probable cause, particularity, and must be issued by an unbiased magistrate. Officers should follow warrant limits and generally should knock and announce their presence. Note: An arrest warrant is not needed if the suspect is in a public place. An arrest warrant is needed if D is at his home or at the home of a third party (in the latter case, a search warrant is also needed).
• Method #2: Good faith or a reasonable mistake by the officer saves a defective warrant. This is not present if there are serious problems with the affidavit (e.g., it is based on an officer’s lies), search warrant, or magistrate (e.g., if she is not neutral).
• Method #3: other exceptions exists

Question 41

Exceptions to the Warrant Requirement

ESCAPIST

Answer 41

Exigent circumstances 
Search incident to lawful arrest 
Consent 
Automobile exception
Administrative search 
Plain view 
Inventory
Special needs
Terry Stop

Question 42

Automobile exception:

Answer 42

Officers can search an automobile if they have probable cause to believe that evidence, instrumentalities, or fruits of a crime exist within it.

Tip: this includes the trunk if there is probable cause to believe evidence is in the trunk.

Question 43

Search incident to arrest:

Answer 43

At the time of a lawful arrest (or “contemporaneous” with it), an officer may conduct certain searches of the arrestee (including his person, clothing, and his “wingspan” or grabable space) without a warrant in order to keep the officer safe and to preserve evidence. Tip: the officer may not search the trunk under this exception.

Question 44

Exception if the arrestee is in a vehicle:

Answer 44

once the arrestee is secured, the police officer can only search the vehicle if it is reasonable to believe it contains evidence of the crime for which the suspect was arrested.

Question 45

Plain view

Answer 45

Plain view: An officer, who is lawfully present in the area that he is in, may seize an item if it is “immediately apparent that it is contraband or evidence of a crime.” Tip: this extends to other senses as well (plain smell and plain feel).

Question 46

Administrative search: this tends to commonly come up in three ways on the MBE:

Answer 46

(1) officers can search arrestees and impounded vehicles,
(2) public school officials can search students and their personal effects (e.g., backpack, purse, lockers, etc.) upon reasonable suspicion, and
(3) random drug testing is permitted for public school children involved in any extracurricular activity.

Question 47

Consent:

Answer 47

If one with actual or apparent authority to consent gives consent voluntarily, officers may search the areas to which they understand the consent to extend. Tip: a cotenant can consent to search of areas over which he has control but other cotenants who are present may revoke the consent.

Question 48

Emergency circumstances: No warrant required if

Answer 48

This comes up

(1) when an officer is in hot pursuit of a suspect (Tip: there must be probable cause to believe that the suspect has committed a crime and he is in a particular place),
(2) if there is a serious injury or threat of injury, or
(3) if evidence of a crime likely will disappear before a warrant can be obtained.

Question 49

A Terry stop and frisk

Answer 49

A Terry stop and frisk is an exception where only reasonable suspicion is needed. For a Terry stop, the officer needs reasonable suspicion that criminal activity is afoot. For a Terry frisk, the officer needs a reasonable belief that the suspect is armed and dangerous. Tip: the officer can only frisk for weapons.

Question 50

Privilege against self incrimination- 5th Amendment

Answer 50

This privilege protects a witness from having to give testimony against himself. The prosecution may give use or transaction immunity to the witness to compel the witness to testify.

Tip: This privilege does not apply when the government admits D’s blood, handwriting, or voice against him in court. Further, it does not apply to lineups.

Question 51

Double jeopardy—Fifth Amendment

When does double jeopardy attach?

Definition of same offense- Blockburger test

Answer 51

• No person shall be “subject for the same offense to be twice put in jeopardy of life or limb.”
• Jeopardy “attaches” when the jury is impaneled and sworn in a jury trial or when the first witness is sworn in a bench trial. The Double Jeopardy Clause prevents both reprosecution after acquittal and after conviction (if the guilty verdict was set aside due to insufficient evidence presented at trial), and reprosecution for the same offense.
• “Same offense”—use the Blockburger test: if each crime contains an element that the other does not, they are not considered to be the “same offense.”

Tip: the Double Jeopardy Clause does not prevent reprosecution when the prosecution is conducted by different sovereigns (e.g., the state and federal government, or different states).

Question 52

Fair trial and right to counsel—Sixth Amendment

Jury

Answer 52

• Jury: The jury pool must represent a cross-section of the community. Tip: the jury itself need not be diverse.

Question 53

Fair Trial and Right to Counsel- Sixth amendment

Right to Counsel

Answer 53

• Right to counsel: Each D has the right to effective assistance of counsel. This extends to the first appeal. In order to prove ineffective assistance of counsel, D must show that his lawyer’s performance was deficient and fell below an objective standard of reasonableness and there is a reasonable probability that but for the ineffective assistance, the result would be different.

Tip: this is difficult to show!

Question 54

Fair Trial and Right to Counsel- Sixth Amendment

Guilty Plea

Answer 54

• Guilty plea: D may choose to plead guilty instead of going to trial. D may withdraw a guilty plea before sentencing at any time. If sentencing has taken place, D must show a fair and just reason to withdraw it (e.g., counsel was ineffective, the plea was involuntary, the prosecutor did not act as promised, or the wrong court heard the plea).

Question 55

Against Cruel and Unusual Punishment - Eighth Amendment

Answer 55

• Punishment cannot be excessive in comparison to the crime.
• Death penalty: There are some defendants who cannot be given the death penalty—e.g., those with an intellectual disability; those who are insane at the time the execution is set; those who were minors when they committed a crime; those who rape a person if the victim didn’t die; and those who are convicted of felony murder but “neither took life, attempted to take life, nor intended to take life” (e.g., the getaway driver).

Question 56

Appeal and Error: D must demonstrate an error was made at trial. A plain error is one

A harmless error will not serve to overturn a verdict. The government must prove

Answer 56

plain error- that affects his substantial rights and is appealable even if not objected to during trial.

harmless error- will not serve to overturn a verdict. The Government must prove beyond a reasonable doubt that the error was harmless.

Question 57

Fifth Amendment Miranda rights: explanation

Rule:

Exclusion

Waiver

Invocation:

Answer 57

• The Fifth Amendment contains the right to remain silent and the right to counsel. This right attaches whenever there is a custodial interrogation.
• Rule: police cannot interrogate a suspect who is in custody without counsel or a waiver (exception: public safety).

• Exclusion: Any confession is excluded in the prosecutor’s case-in-chief.
Tip: the confession may not be admitted (except for impeachment), but if it led to physical fruits (e.g., evidence like the murder weapon), those fruits may be admitted.
• Waiver: a waiver must be “knowing, intelligent, and voluntary.”
• Invocation: An invocation must be explicit and unequivocal.
Tip: Remaining silent is not enough. Ironically, one must speak

Question 58

Sixth Amendment right to counsel: explain

Rule:

Exclusion

Answer 58

This right attaches when D is formally charged. It attaches to all “critical stages” of the proceedings thereafter.

• Rule: Police cannot deliberately elicit an incriminating statement after formal charges have been filed unless D has counsel or waives his right. It is offense-specific.

• Exclusion: any confession is excluded in the prosecutor’s case-in-chief but may be used for impeachment.
Tip: This right exists for post-charge lineups and show-ups but not photo identifications, finger printing, or other forms of identification. There is no right to counsel for a pre-charge lineup, as this right attaches upon being charged!

Question 59

Criminal law Fourteenth Amendment Due process

Answer 59

• Fourteenth Amendment due process: this applies when police engage in coercive conduct that overcomes the suspect’s will. •

Exclusion: an involuntary confession and “fruits” of confession are not admissible for any purpose.