MBE Questions Flashcards
The defendant was arrested, given Miranda warnings, and charged with burglary. At the police station, he telephoned his mother and asked her to come to the station to post bail. Instead, his mother immediately called the family attorney. In the meantime, the police had begun questioning the defendant. Although he never told the police to stop the questioning, his answers were at first vague or clearly unresponsive. During the course of the questioning, the family attorney phoned the station and told the police that she had been hired to represent the defendant and would be there in half an hour. The police did not inform the defendant of the attorney’s call. Ten minutes later, the defendant admitted to committing the burglary, and signed a statement to that effect prepared by the police. The attorney arrived a few minutes later and advised the defendant to remain silent, but he told her that he had already signed a confession.
How should the court rule on the attorney’s pretrial motion to exclude the confession as evidence at trial?
Deny the motion, because the defendant waived his Miranda Rights. The defendant’s confession should be admitted because he waived his Fifth Amendment privilege against compelled self-incrimination after receiving Miranda warnings. Miranda v. Arizona requires that a person in custody be informed of his right to remain silent and his right to the presence of an attorney during questioning. A suspect may subsequently waive his rights by making a confession, as long as the waiver was knowing and voluntary. In this case, the defendant received proper Miranda warnings, and there is no indication that he did not understand what his rights were.
While fleeing from an armed robbery he had just committed, a man struck a pedestrian with his car, seriously injuring the pedestrian. The robber was soon apprehended and charged with armed robbery and reckless driving, both felonies. Just prior to trial, the pedestrian died from his injuries. The trial on the robbery and driving charges proceeded, and the robber was convicted of the armed robbery charge and acquitted of the reckless driving charge. The robber was then indicted under the jurisdiction’s felony murder statute for causing the death of the pedestrian during the course of committing an armed robbery. The robber moved to dismiss the indictment on the ground that a second trial would violate double jeopardy.
Is the robber’s claim correct?
yes, because the pedestrian died before the robber’s first trial had begun. The robber’s claim is correct because the victim died before jeopardy attached for trial on the lesser included offense. he Fifth Amendment right to be free of double jeopardy provides that once jeopardy attaches for an offense, the defendant may not be retried for the same offense. Under the Blockburger test, two crimes do not constitute the same offense if each crime requires proof of an additional element that the other crime does not require. Under this test, a lesser included offense and the greater offense would be considered the “same offense,” because the lesser included offense consists entirely of some, but not all, elements of the greater crime. Hence, under double jeopardy rules, attachment of jeopardy for the greater offense bars retrial for lesser included offenses, and attachment of jeopardy for a lesser included offense generally bars retrial for the greater offense. An exception to this latter rule exists if all of the elements for the greater offense had not occurred at the time of prosecution for the lesser offense, but in this case the final element for the felony murder charge-the death of the victim-occurred before jeopardy had attached in the first trial, so the prosecution could have added a charge of felony murder prior to proceeding with the first trial. Thus, the underlying felony of armed robbery was a lesser included offense of the felony murder and the robber’s being placed in jeopardy for it bars the subsequent trial for the felony murder.
A driver was operating her car on a city street when she was stopped by a police officer for speeding. As the police officer reached the driver’s car, he saw her put something into her purse. The officer told the driver, “Ma’am, you were speeding; that’s why I stopped you. I’d like your driver’s license, and, by the way, what did you just put into your purse?” The driver responded, “It’s just a marijuana cigarette, but don’t worry, I’ve only had two and my driving judgment hasn’t been impaired.” The officer took her purse, removed the “joint,” and charged the driver with possession of marijuana as well as speeding. At the driver’s trial for marijuana possession, the prosecution seeks to introduce the marijuana cigarette into evidence. The driver’s attorney moves to suppress the evidence.
Should the defense motion be granted?
The defense motion should be denied because the driver was not in custody when she made the statement. Persons temporarily detained for routine traffic stops are not in custody for Miranda purposes. Therefore, the driver was not entitled to Miranda warnings, and her statement about the marijuana was not tainted. Her statement thus properly provided the probable cause for the search of her purse.
Acting with probable cause, the police arrested a man in connection with the armed robbery of a liquor store. After being given Miranda warnings, the man confessed to the robbery but denied his involvement with several other recent armed robberies of businesses in the area. He was formally charged with the one robbery and put into a cell with a paid informant working undercover for the police. The informant had been instructed to find out what he could about the other robberies but not to ask any questions. The informant began talking about a convenience store robbery in which a bystander was shot and seriously injured by the robber, and he deliberately misstated how it happened. The man, unaware that his cellmate was an informant, interrupted to correct him, bragging that he knew what really happened because he was there, and proceeded to make incriminating statements about the robbery. The man was subsequently charged with armed robbery and attempted murder in the convenience store robbery.
At a motion-to-suppress hearing on that charge, if the man’s attorney moves to exclude the statements made to the informant, should the motion be granted?
The man’s motion should be denied because neither his Fifth nor Sixth Amendment rights were violated by the informant’s conduct. The Sixth Amendment right to counsel applies to all critical stages of a criminal prosecution after formal proceedings have begun, but does not apply in precharge custodial interrogations. Because this right is “offense specific,” the fact that the right to counsel has attached for one charge does not bar questioning without counsel for an unrelated charge. Because the man has not been charged with the convenience store robbery, his Sixth Amendment right to counsel has not been violated. The Fifth Amendment privilege against self-incrimination requires Miranda warnings and a valid waiver before any statement made by the accused during custodial interrogation can be admitted. However, this requirement does not apply where interrogation is by an informant who the defendant does not know is working for the police, because the coercive atmosphere of police-dominated interrogation is not present. [Illinois v. Perkins (1990)] Because the man was not aware of the informant’s status, the informant’s conduct did not constitute a police interrogation.
What is solicitation?
Solicitation consists of inciting, advising, or inducing another to commit a crime with the specific intent that the person solicited commit the crime.
A police officer stopped a driver who had run a red light. Upon approaching the car, the officer noticed a strong odor of alcohol and immediately asked whether the driver had been drinking. The driver admitted having had several alcoholic drinks that evening.
The driver, charged with driving while intoxicated, moved to suppress the officer’s testimony regarding the driver’s statement about his drinking. The driver argued that the officer had elicited the statement without providing the requisite Miranda warnings. The prosecutor has responded that the statement should be allowed in the prosecution’s case-in-chief or, at a minimum, should be allowed as impeachment in the event the driver testifies and denies drinking.
How should the court rule regarding the driver’s statement admitting his drinking?
As a general rule, to offset the coercive nature of custodial interrogation by a police officer and protect defendants’ Fifth Amendment right against compelled self-incrimination, the Supreme Court has made Miranda warnings a prerequisite to the admissibility of confessions obtained during a custodial police interrogation. The officer’s question here was an interrogation, as the term “interrogation” extends to any words or conduct used by an officer intentionally to elicit an incriminating response. Nevertheless, the driver’s response here is admissible despite the lack of Miranda warnings because the driver was not in custody. Determining whether a person is in custody for Miranda purposes involves a two-step inquiry. The Court will first look to whether a reasonable person in the circumstances would feel free to terminate the encounter and leave. If not, the Court looks to the whether the relevant environment presents coercive pressures similar to those of a station house interrogation. The more a setting resembles a traditional arrest, the more likely the Court will find the person to be in custody. Here, the driver, no doubt, felt that he was not free to leave, having just been pulled over for a traffic violation. However, a traffic stop does not resemble a traditional arrest. Given their brief nature and the motorist’s knowledge that he will soon be on his way, the Supreme Court has found traffic stops to be noncustodial. Therefore, a police officer can ask questions during a routine traffic stop without giving Miranda warnings, and responses to those questions are admissible at trial in a case-in-chief and for impeachment purposes.
Late one evening, a cook at a diner coming off his shift was grabbed in the parking lot by a large man wearing a ski mask. The man threatened to kill the cook and demanded his wallet. The man then pulled a knife from his pocket and lunged at the cook. The cook, having taken several self-defense courses, was able to fend off the man’s attack. After being struck by the cook several times, the man dropped the knife and fell to the ground. The cook, angry at the assault, took the knife and stabbed the man, killing him instantly.
Should the cook be convicted of murder?
The cook may be convicted of manslaughter. At common law, murder was the killing of another human being with malice aforethought. Malice is: (i) the intent to kill; (ii) the intent to inflict great bodily injury; (iii) a reckless indifference to an unjustifiably high risk to human life; or (iv) the intent to commit a felony. A killing committed in self-defense, however, is not murder. A person may use deadly force in self-defense if: (i) he is without fault; (ii) he is confronted with unlawful force; and (iii) he reasonably believes that he is threatened with imminent death or great bodily harm if he does not respond with deadly force. Additionally, a killing that ordinarily would be murder is reduced to voluntary manslaughter when the killing is committed under the stress of adequate provocation (e.g., being subjected to a serious battery, being confronted with deadly force, or discovering one’s spouse in bed with another person). In the instant case, although the cook would have been justified in using deadly force to repel the initial attack, the facts indicate that the cook had successfully repelled the attack, and it appears that the cook no longer was facing a threat of imminent death. Thus, the right to use deadly force had passed.
A driver was traveling through an area plagued with a high incidence of burglaries and assaults. Acting pursuant to a police department plan to combat crime by the random stopping of automobiles in the area between midnight and 6 a.m., a police officer stopped the driver and asked him for identification. As the driver handed the officer his license, the officer directed a flashlight into the automobile and saw what appeared to be the barrel of a shotgun protruding from under the front seat on the passenger side of the car. The officer ordered the driver from the car, searched him, and discovered marijuana cigarettes and a shotgun.
At the driver’s trial for unlawful possession of narcotics, should his motion to suppress the use of the marijuana as evidence be sustained?
The driver’s motion to suppress should be sustained. Because stopping a car is a seizure for Fourth Amendment purposes, police generally may not stop a car unless they have at least a reasonable suspicion that a law has been violated. Even absent that suspicion, police may set up roadblocks to stop cars if (i) the cars are stopped on the basis of some neutral, articulable standard, and (ii) the stops are designed to serve a purpose closely related to a particular problem arising from automobiles and their mobility. [See Indianapolis v. Edmund (2000)] The use of a checkpoint to detect evidence of ordinary criminal wrongdoing unrelated to use of cars or highway safety is unconstitutional. Here, the police did not have a reasonable suspicion that the driver had violated any law, and the driver was not stopped on a neutral basis at a roadblock set up to detect problems related to automobiles. The driver was stopped “randomly” to detect general criminal activity. Thus, the stop was improper and thus the marijuana would be inadmissible under the exclusionary rule.
The jurisdiction divides murder into degrees, with all murders being second degree murder unless the prosecution can prove premeditation and deliberation, in which case the killing would be first degree murder. The jurisdiction also uses the M’Naghten rule for insanity.
A physician prescribed an experimental drug for the defendant’s severe allergies. The physician told the defendant that the medication was experimental, but failed to inform the defendant that the manufacturer had reported a small risk that the medicine caused severe delusions. After taking the medicine the first day, the defendant began to believe that his next door neighbor was spreading false rumors about him to a few of his other neighbors. While still under the influence of the medication, the defendant grabbed a knife from the kitchen, went to his neighbor’s house, and rang the doorbell. When the neighbor answered the door, the defendant plunged the knife into his neighbor’s chest, killing him instantly.
May the defendant be convicted of first degree murder?
The defendant may be convicted of first degree murder because he was not justified in killing the neighbor and it appears that he did have time to premeditate and deliberate on the murder. The facts here point to involuntary intoxication as a possible defense. Intoxication is involuntary if it results from the taking of an intoxicating substance without knowledge of its nature, under direct duress imposed by another, or pursuant to medical advice. Such intoxication is treated as mental illness, in which case the defendant is entitled to acquittal if, because of the intoxication, the defendant meets the applicable test for insanity. Here, the defendant took the medicine without knowing of its hallucinatory properties and pursuant to the advice of his doctor. Thus, the defendant’s resulting state of hallucination will be considered to be involuntary intoxication. We are told that the applicable test for insanity is the M’Naghten rule. Pursuant to this rule, a defendant is entitled to acquittal if a disease of the mind caused a defect of reason such that the defendant lacked the ability at the time of his actions to either: (i) know the wrongfulness of his actions; or (ii) understand the nature and quality of his actions. If a defendant suffers from delusions (false beliefs), it must be determined whether his actions would have been criminal if the facts had been as he believed them to be. Here, the defendant falsely believed that his neighbor was spreading false rumors about him. Had this delusion been accurate, the defendant obviously would not have been legally entitled to murder the neighbor. Nothing in the facts suggests that the medication prevented him from knowing what he was doing or knowing that it was wrong. As a result, the M’Naghten rule would not allow for acquittal based on an insanity defense, which in turn would also negate the viability of an involuntary intoxication defense.
The defendant was at a bus station on a stopover between two cities. An officer of the Federal Drug Enforcement Administration noticed that the defendant was tightly clutching a small bag and making numerous phone calls from a public telephone. The officer approached the defendant, identified himself, and began asking the defendant questions about his destination. The defendant agreed to follow the officer into an office for an inspection of his bag. In the office, the officer searched the defendant’s bag and found nothing suspicious. He then proceeded to pat down the defendant and found a pouch around the defendant’s stomach, which proved to contain cocaine. The defendant was charged with possession of cocaine.
If the defendant seeks to have the cocaine excluded from evidence, how should the court rule?
The cocaine is inadmissible because it is the product of an unconstitutional search of the defendant. The Fourth Amendment prohibition against unreasonable searches and seizures applies to an investigatory detention and any type of search during the detention. Under Terry v. Ohio (1968), police have the authority to briefly detain a person for investigative purposes, even if they lack probable cause to arrest, as long as they have an articulable and reasonable suspicion of criminal activity. However, an investigatory detention does not create the right to search the person being detained. The officer may conduct a protective frisk (a patdown of the outer clothing) only if he reasonably believes that the person may be armed and presently dangerous. A full search of the person is only permitted if the detention establishes probable cause for a lawful arrest. In this case, the officer may have had sufficient grounds to detain the defendant and to ask him questions. Whether police have a reasonable suspicion-supported by articulable facts-of criminal activity is judged by the totality of the circumstances. [United States v. Sokolow (1989)] Here, the defendant’s conduct may have made the officer reasonably suspicious that he was smuggling drugs. However, after finding nothing in his search of the bag, and having no reason to believe that the defendant was armed and presently dangerous, the officer had neither probable cause nor reasonable suspicion to either search or frisk the defendant. Hence, under the exclusionary rule, the cocaine obtained as a result of the unlawful search of the defendant is inadmissible against him.
