MBE & NY Criminal Law and Procedure

Question 1

What are the exceptions to the fruit of the poisonous tree search?

Answer 1

1. Inevitable discovery – through lawful means.
2. Independent source – unrelated to tainted evidence.
3. Attenuation – passage of time of events may purge the taint.

Question 2

What is necessary to comply with a defendants 5th amendment Miranda rights?

Answer 2

1. Warning must be given before the interrogation begins – a) you have the right to remain silent, b) anything you say can and will be used against you in the court of law c ) you have a right to an attorney.
2. D must clearly invoke that he wants his counsel present.
3. Waiver must be made knowingly and willingly.

Question 3

What are the elements that are necessary to prove IAC under the 6th amendment?

Answer 3

1. Counsel’s representation fell below objective standard of reasonableness
2. Performance prejudiced D and led to an unfair/unreliable outcome.

Question 4

What are the two elements necessary to establish criminal liability?

Answer 4

1. Actus reus – Voluntary/affirmative act of failure to act causing criminally proscribed result.
2. Mens Rea – guilty mind

Question 5

What the specific intent crimes?

Answer 5

Party must have the specifc knowledge to create the proscribed result
 F - First Degree Murder
 I - Inchoate Offenses
A - Assault w/ intent to commit battery
T - theft Offenses

Question 6

How does the doctrine of mistake of fact work?

Answer 6

1. Negates criminal intent
2. Defense to specific intent crimes even if this is unreasonable
3. Defense to general intent/malice crimes only if reasonable.

Question 7

What are the elements of accomplice liability?

Answer 7

1. Aids/abets principal prior to/during crime w/ intent for crime to be committed.
2. Liable for crime and all natural and probable consequences.

Question 8

How does one withdraw from accomplice liability?

Answer 8

1. Repudiate prior aid
2. Countermand prior assisstance or timely notify legal authorities
3. Do so before chain of events is set in motion and unstoppable.

Question 9

What are the elements to be an accessory after the fact?

Answer 9

1. Aids felon to avoid apprhension after the crime is committed.
2. Must know that felony wass committed.
3. Person will be liable for a separate crime in this case.

Question 10

What is the M’Naghten test for criminal insanity?

Answer 10

The defendant did not know the nature or the wrongfulness of the act due to the mental disease.

Question 11

What is the irresstible impulse test for criminal insanity?

Answer 11

Lacked capacity for self-control and free choise due to the mental disease or defect.

Question 12

What is the Durham test for criminal insanity?

Answer 12

The unlawful act was a result of D’s mental disease or defect.

Question 13

What test does the Model Penal Code use for insanity?

Answer 13

They use the right from wrong test under McNaughten and the irresistible impulse test.

Question 14

When is intoxication a defense to a crime?

Answer 14

When it is involuntary intoxication – with durress or w/o knowledge then it is a defense to specific intent, general intent and malice crimes.

Question 15

What are the rules governing the doctrine of felony murder?

Answer 15

Unintended and foreseeable killing caused during the commission of an inherently dangerous felony.

2. Bystander death must be direct cause of the felony
3. No liable for co-felon death
4. Does not encompass occurring after flight from scene of crime.

Question 16

What are the felonies under which felony murder can be committed?

Answer 16

B- Burglary
A - Arson
R - Robbery 
R - Rape 
K - Kidnapping

Question 17

What are the rules governing “heat of passion” murder?

Answer 17

1. Murder committed in response to situation that would inflame a reasonable person.
2. Not defense reduces the charge from murder to voluntary manslaughter
3. There cannot be sufficient time between the provocation and the murder.

Question 18

What are the elements of larceny?

Answer 18

1. Trespassory taking–w/o owner’s consent.
2. Carrying away – slight movement enough
3. Of personal property
4. Of another with specific intent to permanently deprive owner of property.

Question 19

What are the elements of forgery?

Answer 19

Fraudulent making of false writing with apparent legal significance and the intent to defraud.

Question 20

What are the elements of embezzlement?

Answer 20

Fraudulent conversion of property by another person in law possession of the property.

Question 21

What are the elements of false pretenses?

Answer 21

Obtaining title to property of another through reliance of that person on known false representation of material fact with the intent to defraud.

Question 22

What are the legal elements of robbery?

Answer 22

This is larceny by force or intimidation must be from the person/ in the presence of the victim.

Question 23

What are the legal elements of extortion?

Answer 23

Taking of money/property from another by means of a threat.

Question 24

What are the legal elements of the crime of burglary?

Answer 24

This is the breaking and entering of the dwelling of another with the specific intent to commit a felony therein.

Question 25

What are the legal elements of the crime of battery?

Answer 25

The unlawful application of force to another person that causes bodily harm to that person or constitutes offensive touching.

Question 26

What are the legal elements of the crime of kidnapping/

Answer 26

The unlawful confinement of a person against the person’s will coupled with either the movement or hiding of the person.

Question 27

What are the legal elements of conspiracy?

Answer 27

The agreement to accomplish an unlawful purpose plus intent to accomplish that purpose. The person is liable for all the foreseeable consequences of this agreement. Withdrawal must be before the commission of the overt act.

Question 28

What are the legal elements of attempt?

Answer 28

1. Substantial step towards the commission of a crime.
2. Abandonment not a defense after substantial steps have been taken.
3. if crime is completed, then the attempt is merged into the crime.