MBE Review_Crim Law_Crim Pro

Question 1

Depraved Heart Murder

Answer 1

Reckless indifference to human life

intent doesn’t matter

(pointing arrow & shooting it at somebody)

Question 2

Felony Murder

Answer 2

accidental killing that occurs during commission or attempted commission of an inherently dangerous felony

ask - is this an inherently dangerous felony?

BARK
Burglary, Arson, Rape, Robbery, Kidnapping

Question 3

Attempt

Answer 3

1) Specific Attempt - did D have Intent to commit charged crime
2) Substantial Step (act that brings D in close proximity to completing crime)

Question 4

Reckless elements:

Answer 4

mens rea - not intentional

Question 5

Knowingly elements

Answer 5

mens rea - has knowledge of

Question 6

Mistake of Law v Mistake of Fact

Answer 6

Mistake of Law is NO Defense

(ex - unknowingly violating a statute is NOT a defense - think sawed off shotgun)

Mistake of Fact - for specific intent - as long as honestly, is a defense

Mistake of Fact - for general intent - defense if reasonable

Question 7

Accomplice Liability

Answer 7

1) show Accomplice had specific intent that Principal commit target offense
2) Must show Accomplice aided, abetted the Principal

Exception: members of a class protected by a statute that has been violated are exempt from liability

(ex. statute prohibiting sale of alcohol to minor; minor cannot be convicted as aid/abetter)

Question 8

Conspiracy Withdrawal

Answer 8

withdrawal is not a defense at common law (MPC, can withdraw, attempt to thwart crime)

in order to withdraw from subsequent crimes:

1) D must take affirmative act notifying all members of intent to withdraw
2) Notification must be done in a timely fashion so co-conspirators may also withdraw

Question 9

Larceny by Trick

Answer 9

Victim consents to possession of property as a result of misrepresentation

No Title

Question 10

Assault

Answer 10

(1) Attempted Battery

OR

(2) Intentional creation of reasonable apprehension in mind of Victim of imminent bodily harm (not mere words)

Question 11

Arson

Answer 11

Majority Rule = Malicious burning of any structure or dwelling (charring)

Minority rule on MBE - CL - malicious burning of dwelling house of another

Arson is a Malice Crime - voluntary intoxication / mistake is NOT a defense

Question 12

False Pretenses

Answer 12

Defendant obtains Title
to property of another
by Intentional or knowing false statement of past or existing fact
with intent to defraud another

(ex. money passing hands = title passes)

Question 13

Forgery

Answer 13

making or altering
false instrument
intent to defraud

Question 14

Embezzlement

Answer 14

Fraudulent
Conversion
Property
of Another
By person in lawful possession of that property

Question 15

Exclusionary Rule

Answer 15

Does not apply to Grand Jury proceeding

Question 16

Plain View

Answer 16

1) Police legitimately at scene (lawfully, with warrant)

2)

Question 17

Automobile Exception

Answer 17

if probable cause justifies stop of vehicle, it justifies search of entire vehicle, including closed containers & trunk (no warrant needed)

Question 18

Search Incident to Lawful Arrest

Answer 18

Search is Limited to wingspan of driver

Gant: Search must be directly connected to arrest or to protect officer safety

(Arrest then Search)

Question 19

Stop & Frisk (Terry Stop)

Answer 19

Officer may stop a person w/o probable cause for arrest if they have a reasonable & articulable suspicion that criminal activity is afoot

If officer reasonably believes a person is armed & dangers, officer may conduct a protective frisk

Scope of Frisk - limited to a pat down of the outer layer of clothing for weapons; however, officer may seize any item that officer reasonably believes, based on plain feel, is a weapon or contraband

(Search then Arrest)

Question 20

4th Amendment challenge to search & seizure - Standing

Answer 20

D must have ownership or possession of premises searched or items seized

(D had no expectation of privacy in search of bookie’s home)

Question 21

Miranda - 5th amendment

Answer 21

1) Custody = D feels he is not free to leave
&
2) Interrogation = officer knows or should know question is likely to elicit incriminating statement

Confession must be Voluntary = knowing & intelligent
No coercive interrogation by Informant when D is in jail cell

Question 22

Right to Counsel - 6th amend (Messiah)

Answer 22

After formal charges have been brought, D must have Counsel present, unless D has knowingly and intelligently waived right
But may be introduced at trial for Impeachment

(post arrest lineup, police interrogation)

Question 23

Double Jeopardy

Answer 23

Applies for convictions, acquittals, evidence of prosecutorial misconduct

If D consents to separate trials of lesser included offense, not double jeopardy

Question 24

When is a suspect’s Confession admissible?

Answer 24

A suspect may subsequently waive his rights by making a confession, as long as the waiver was knowing and voluntary. =

KNOWINGLY & VOLUNTARY = Waived 5th Amendment Miranda Rights

Question 25

Under Common Law, Conspiracy requires:

Answer 25

(i) an agreement between two or more persons; (ii) an intent to enter into an agreement; and (iii) an intent to achieve the objective of the agreement.

An Agreement btw 2 or more persons = Meeting of the Minds

Withdrawal is NOT a defense

Question 26

“Malice aforethought” =

Answer 26

“Malice aforethought” can mean that the defendant is acting with reckless indifference to an unjustifiably high risk to human life.

Question 27

criminal attempt =

Answer 27

A criminal attempt is an act that, although done with the intention of committing a crime, falls short of completing the crime. The defendant must have the intent to perform an act and obtain a result that, if achieved, would constitute a crime. Also, the defendant must have committed an act beyond mere preparation for the offense. If a defendant has, with the required intent, gone beyond preparation, the general rule is that abandonment is not a defense.

Question 28

In what instance will a co-conspirator not be liable for felony murder?

Answer 28

a conspirator may limit his liability for subsequent acts of other conspirators by performing an affirmative act that notifies the other members of the conspiracy in time for the other members to have the opportunity to abandon their plans.

(Ex. - the first robber told the second robber that he was going home in time for the second robber to abandon his plans. Hence, he is not liable for felony murder arising from the robbery

Question 29

Larceny by Trick

Answer 29

victim consents to the defendant’s taking possession of the property, but such consent has been induced by a misrepresentation, the consent is not valid.

Possession, not title

Question 30

False Pretenses

Answer 30

victim intends to convey title, not possession

obtaining title to the property of another by an intentional (or knowing) false statement of past or existing fact, with intent to defraud the other.

Question 31

How is “dwelling of another” determined for Burglary?

Answer 31

A breaking requires some use of force to gain entry, but minimal force is sufficient. In determining whether the dwelling is that of another, OCCUPANCY rather than ownership is material. Thus, an owner can commit burglary of her own structure if it is rented and used as a dwelling by someone else.

(ex. although the cottage owner owned the cottage, the tenant had the right to occupy it pursuant to a lease. Thus, for purposes of the crime of burglary, the cottage owner is deemed to have entered the dwelling of another. Although the cottage owner used her own key to gain access to the cottage, this was still an unconsented use of force to effectuate entry, thereby constituting a breaking. )

Question 32

How is “dwelling of another” determined in Arson?

Answer 32

Arson consists of the malicious burning of the dwelling of another. There is a requirement of some damage to the fiber of the wood or other combustible material. As with burglary, ownership of the structure is not material for determining whether the dwelling is that of another; rather, the right to occupancy is material.

Question 33

Recklessly =

Answer 33

A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that a prohibited result will follow, and this disregard constitutes a gross deviation from the standard of reasonable care.

(ex. Attempting to move a large piece of construction equipment while intoxicated should be considered reckless conduct because of the great potential for destruction arising from the size and destructive power of the construction equipment.)

Question 34

Is voluntary intoxication a defense to “Recklessness”?

Answer 34

NO, Although voluntary intoxication is a defense to a crime that requires purpose or knowledge, it is no defense to crimes involving recklessness.

Question 35

May police search customers in a restaurant, if they have a warrant for the restaurant and believe criminal activity is taking place?

Answer 35

NO, presence at a location subject to search does not negate the requirement of probable cause to search the person present (Ybarra v Ilinois)

To be reasonable under the Fourth Amendment, most searches must be pursuant to a warrant. The warrant must describe with reasonable precision the place to be searched and the items to be seized. A search warrant does not authorize the police to search persons found on the premises who are not named in the warrant.

Question 36

Is a conspirator criminally liable for all crimes resulting from the conspiracy.

Answer 36

NO! to be charged with a crime that grew out of the conspiracy, the additional crime must be both foreseeable and committed in furtherance of the conspiracy.