Missed MBE questions Flashcards
GENERAL PRINCIPLES: Responsibility
Section: Responsibility The defendant, a college student, attended a lecture for his history class regarding the first moon landing. The defendant, who had a history of mental illness, believed that the evidence of the moon landing was the result of a conspiracy by the U.S. government, and that a human had never set foot on the moon. Irate at the professor’s lecture, the defendant started yelling his theories at the class. When the professor asked the defendant to leave the class, he became furious and hit the professor with his textbook. The defendant has been charged with battery, and has pleaded not guilty by reason of insanity due to his history of mental illness. The evidence at trial shows that the defendant’s mental illness caused him to hit the professor and that although he knew it was wrong, he could not resist the impulse to harm her. The jurisdiction follows the M’Naughten test regarding criminal insanity. May the defendant be convicted of battery?
A. Yes, because the defendant’s loss of control was not sudden.
B. Yes, because the defendant appreciated the wrongfulness of his actions.
C. No, because the defendant lacked the capacity for self-control.
D. No, because the defendant’s unlawful act was the product of his mental defect.
Answer choice B is correct. Under the M’Naghten test, a defendant is not guilty if he does not know the nature, quality, or wrongfulness of his act because of his mental disease. In this case, even though the defendant lost control due to his mental illness, he would still be criminally responsible under the M’Naughten test. Answer choice A is incorrect because it mistakes an aspect of the “irresistible impulse” test. Answer choice C is incorrect because it describes the “irresistible impulse” test, under which the defendant is not guilty if his mental disease prevented him from being able to conform his conduct to the law. Answer choice D is incorrect because it describes the Durham rule.
HOMICIDE: Types Of Homicide
A man overheard his co-worker make a pass at his wife at an office party. The man was furious and went outside to collect his thoughts. A few minutes later, he returned to the party and joined his wife and his co-worker in their conversation. When the man’s co-worker excused himself to go to the restroom, the man followed him into the restroom and hit him over the head with a beer bottle. Although the man did not intend to kill his co-worker, the co-worker fell into a coma and died a week later. What is the most serious crime, listed in order of increasing seriousness, for which the man could properly be convicted?
A. Aggravated battery.
B. Involuntary manslaughter.
C. Voluntary manslaughter.
D. Murder.
Answer choice D is correct. Murder is the unlawful killing of a human being committed with malice aforethought. Malice aforethought includes the intent to inflict serious bodily injury. In this case, the man did not intend to kill his co-worker, but the intent to inflict serious bodily injury can be inferred from the man’s action in hitting his co-worker over the head with a bottle. Answer choice A is incorrect because the man is likely to be convicted of murder, which is more serious than aggravated battery. Answer choice B is incorrect for the same reason. Involuntary manslaughter includes an unintentional homicide committed with criminal negligence. The man’s actions in this case amounted to more than criminal negligence because there was an intent to commit serious bodily injury. Answer choice C is incorrect because there was not adequate provocation. Voluntary manslaughter is murder committed in response to adequate provocation, or in the heat of passion. If there was sufficient “cooling off” time for a defendant, murder is not reduced to voluntary manslaughter. In this case, even if the man was provoked, he had time to cool off. Accordingly, answer choice D is a better answer.
OTHER CRIMES: Crimes Against Property
A secretary was angry at her boss for not granting her a raise. The secretary decided to “teach the boss a lesson,” by breaking into the boss’s house and stealing the boss’s personal computer. That evening, the secretary waited until she was sure the boss had gone to sleep and then used a key the boss had given her to the house for emergencies in order to enter the house. She took the personal computer and then left the house. The secretary is subsequently arrested and charged with burglary in a jurisdiction that follows the common law. Should the woman be convicted?
A. No, because she did not break into the house.
B. No, because she did not intend to commit a felony in the house.
C. Yes, because the boss was in the house at the time the secretary entered.
D.Yes, because she entered the house that evening during a non-emergency situation to steal the computer.
Answer choice D is correct. Common law burglary requires the breaking and entering of the dwelling of another in the nighttime with the specific intent to commit a felony therein. Here, the secretary entered the house at night with the intent to commit larceny, a common law felony. She broken into the house, even though she had a key that the boss had given her, because she exceeded the scope of the boss’s consent to enter the house since there was no emergency that required her to use the key. Answer choice A is incorrect, as the secretary is considered to have broken into the house, as she exceeded the scope of the boss’s consent to enter. Answer choice B is incorrect, as stealing the computer would constitute larceny, a common-law felony. Answer choice C is incorrect because there is no requirement that the dwelling be occupied at the time of the breaking and entering.
GENERAL PRINCIPLES: Responsibility
A man who suffered from a mental illness shot and killed his neighbor after making plans to do so. The man was arrested and charged with murder. At trial, the man admitted that he intended to kill the neighbor, and that he appreciated that what he was doing was illegal. However, he also testified that he performed the killing under orders from his pet goldfish, who was possessed by a demonic spirit, and that he was unable to resist the goldfish’s constant urging to kill the neighbor.
The Model Penal Code test of criminal responsibility applies in the applicable jurisdiction.
If the man timely and properly pleads that he was not criminally responsible, can he be found not guilty of murder but criminally responsible by reason of insanity?
A. Yes, because the man was unable to resist the goldfish’s constant urging.
B. Yes, because the man suffered from a mental illness.
C. No, because the man understood that killing his neighbor was illegal.
D. No, because the man planned to kill his neighbor.
Answer choice A is correct. Under the Model Penal Code test, a defendant is not guilty when, at the time of the conduct, as a result of a mental disease or defect, he did not have substantial capacity to appreciate the wrongfulness of the act or to conform his conduct to the law. Here, although the man appreciated the wrongfulness of the killing, he was unable to resist the urging of the goldfish. Answer choice B is incorrect because the fact that the defendant suffered from a mental illness is not sufficient to establish an insanity defense. Answer choice C is incorrect because, as noted, the Model Penal Code test contains not only a cognitive prong but also a volitional prong; satisfying either is sufficient to establish an insanity defense. Answer choice D is incorrect because the volitional prong does not require that the defendant act impulsively, merely that he lacks the will to conform his conduct to the law.
HOMICIDE: Types of Homicide
A defendant entered a convenience store wearing a Halloween mask and carrying a gun. He pointed the gun at the store clerk and told him to empty the cash register into a bag and hand it over. The clerk told the defendant that he needed a key from below the counter to unlock the cash drawer. He leaned over, pulled out a gun from behind the cash register, and quickly fired a shot. The defendant had seen the clerk reach for the gun, however, and jumped out of the way before the shot was fired. The bullet hit a customer, who later died from the injury.
Is the defendant likely to be convicted of felony murder in a jurisdiction that follows the majority law?
A. No, because the clerk could not be considered the agent of the defendant.
B. No, because the defendant did not shoot the customer.
C. Yes, because the customer’s death was a natural and probable consequence of the robbery.
D. Yes, because the defendant is strictly liable for any death that occurs during an inherently dangerous felony.
Answer choice C is correct. Felony murder is an unintended killing proximately caused by and during the commission or attempted commission of an inherently dangerous felony, including a robbery. Most states apply the proximate cause theory when a bystander is killed by a police officer or due to resistance by the victim of an inherently dangerous felony. Under this theory, the bystander’s death may fall within the felony murder rule because the death is a direct consequence of the felony. In this case, the death of a bystander was a natural and probable consequence of the robbery, and thus proximate causation could be established. Answer choice A is incorrect because the agency theory, which holds that the death of a bystander caused by a felony victim or police officer does not fall within the felony murder rule because neither is an agent of the perpetrator of the felony, is not the majority rule. Answer choice B is incorrect because, although the defendant did not shoot the customer himself, the shooting was a natural and probable consequence of the armed robbery, and thus would fall under the felony murder rule. Answer choice D is incorrect because a defendant is not strictly liable for any death that occurs during the commission of an inherently dangerous felony. Rather, the death must be proximately caused by and during the commission of the felony. Note that if one of the co-felons is killed by a police officer, the defendant would generally not be liable.
HOMICIDE: Types of Homicide
A mugger approached an elderly married couple and held them at gunpoint, demanding money. When the husband resisted, the mugger ran off. A nearby police officer witnessed the incident and raced after the mugger in hot pursuit. The mugger turned and pointed his gun at the officer. The officer shot wildly in self-defense, unexpectedly killing an innocent bystander. The jurisdiction follows the agency theory of felony murder.
If the mugger is charged in connection with the death of the bystander, which of the following crimes, listed in descending order of seriousness, is the most serious for which he is likely to be convicted?
A. You Selected: Felony murder.
B. Voluntary manslaughter.
C. Involuntary manslaughter.
D. No crime.
Answer choice D is correct. The mugger is not guilty of any of the listed crimes. Answer choice A is incorrect because, under the agency theory of felony murder, a felon is not liable for the death of a bystander caused by a police officer, because the officer is not the felon’s agent. In this case, the death of a bystander does not fall within the felony murder rule because the officer is not an agent of the perpetrator of the felony. Answer choice B is incorrect because voluntary manslaughter is a killing that, except for adequate provocation, would be murder. In this case, had the mugger’s actions met the requirements for murder, there were no extenuating circumstances that would warrant dropping the charge to voluntary manslaughter. Answer choice C is incorrect because involuntary manslaughter is an unintentional homicide committed with criminal negligence or during an unlawful act. In this case, the mugger did not commit the shooting, and thus would not be held liable.
OTHER CRIMES: Crimes Against Property
A woman was moving out of state. As she was completing her packing one night, she realized that her neighbor had never returned a book that the woman had lent her. The woman walked over to her neighbor’s house and knocked on the door. When she realized that no one was home, she let herself in through the unlocked garage, intending to take the book and return home. While she was in the neighbor’s house, the woman remembered that the neighbor had a necklace that the woman had long admired. The woman decided to take the necklace, figuring that her neighbor probably would not notice it was missing until after the woman had moved. As the woman was heading toward the door, she heard her neighbor come in. The woman greeted her neighbor, and apologized for letting herself in to retrieve the book. The woman gave her neighbor a good-bye hug, and then left with the necklace in her pocket. The crimes below are listed ascending order of seriousness. What is the most serious crime for which the woman may be convicted?
A. Larceny.
B. Larceny by trick.
C. Robbery.
D. Burglary.
Answer choice A is correct. Larceny is the trespassory taking and carrying away of the personal property of another with the intent to permanently deprive that person of the property. In this case, the elements of larceny are satisfied. The woman took and carried away her neighbor’s necklace with the intent to keep it. Answer choice B is incorrect because a defendant is guilty of larceny by trick if she obtains possession (but not title) to property owned by another through fraud or deceit, with the intent to unlawfully convert it and later does so. In this case, the defendant did not obtain possession by fraud. Answer choice C is incorrect because the woman did not employ force or intimidation in taking the necklace, as required for robbery. Answer choice D is incorrect because the woman did not have the intent to commit a felony in the neighbor’s house when she entered. Burglary is the breaking and entering of the dwelling of another at nighttime with specific intent to commit a felony (e.g., larceny, robbery, rape, murder) inside the dwelling. Because the woman did not have the specific intent to commit a crime when she entered the home, just to obtain a book that was rightfully hers, she is not guilty of burglary.
OTHER CRIMES: Crimes Against Property
A dog sitter customarily went into her clients’ homes, with keys they provided to her, to care for their pets. Over the years, she grew to especially love one particular dog. She would regularly enter the home of her client on days she was not scheduled to watch the dog and would take the dog to the park. One afternoon, the dog she loved wandered into her yard as she was doing yard work. She did not immediately call her client, but instead decided to keep the dog for a few days. A week later when she returned him to the client, the client stated that she so enjoyed having the house to herself that she was going to sell him. The dog sitter immediately purchased him and brought him back to her home. Were the dog sitter’s actions sufficient to meet the requirements of larceny?
A. No, because she had a key to enter the home.
B. No, because she was only going to keep the dog for a few days.
C. Yes, because she kept the dog despite knowing who owned it.
D. Yes, because she would enter the client’s home regularly and take the dog to the park.
Answer choice B is correct. Larceny is the trespassory taking and carrying away of the personal property of another with the intent to permanently deprive that person of the property (i.e., intent to steal). The property must be taken without the owner’s consent. Although the dog sitter did retain the property of another with the intent to deprive the owner of the dog temporarily, she never intended to keep him permanently until the client sold him to her. Answer choice A is incorrect because, although she had permission to enter the home and watch the dog, that would not give her the authority to permanently deprive the client of the dog. Answer choice C is incorrect because she never had the intent to permanently deprive her client of the dog. While it is possible for a larceny to be committed even if the intent to steal is not formed until after the taking under the continuing trespass rule, here, the dog sitter did not intend to keep the dog permanently until after she was given permission to do so. Therefore, since the dog’s owner consented to the dog sitter keeping the dog, there was no continuing trespass. Answer choice D is incorrect because the act, while problematic, was not larceny. She was certainly trespassing, and could likely be found guilty of some crime, as the key was given only to enter when she was dog-sitting, but she did not intend to permanently deprive the owner of the dog. Accordingly, she could not be found guilty of larceny.
OTHER CRIMES: Crimes Against the Person
A defendant approached a tourist who was strolling on a downtown sidewalk. The defendant struck up a conversation with the tourist and learned that the tourist was headed to the local art museum. After walking together for several blocks, the defendant convinced the tourist, who was hesitant at first, to take a legitimate shortcut that involved the use of side streets in order to reach the art museum. On one of the side streets that was devoid of traffic and pedestrians and lined on one side with buildings several stories high, the defendant pulled a pistol out of his pocket and, brandishing it, ordered the tourist to walk down a narrow space between two of the buildings for approximately 10 feet until the tourist came face-to-face with a brick wall. When the tourist complied, the defendant removed the tourist’s wallet from his back pocket and fled. The defendant was later apprehended and charged with kidnapping and robbery.
Of the following, which is likely the defendant’s best defense to the kidnapping charge?
A. The defendant did not inflict bodily harm on the tourist.
B. The tourist willingly took the shortcut.
C. The shortcut was a legitimate way of reaching the art museum.
D. The defendant did not move the tourist more than was necessary to effect the robbery.
Answer choice D is correct. One of the elements of kidnapping is the perpetrator must hide the victim for a substantial period of time or move the victim at least a short distance. If the kidnapping occurs incident to another crime (e.g., robbery), then the movement must be more than is necessary for the commission of that crime in order for the perpetrator to be liable for both kidnapping and the separate offense. Here, the defendant could argue that the movement of the tourist ten feet down the narrow space between the buildings was merely necessary for the defendant to be able to pull off the robbery. As a result, the defendant would argue that the movement requirement for kidnapping was not met. Although this is not necessarily a winning argument, it is the best defense the defendant could raise among the answer choices. Answer choice A is incorrect because kidnapping does not require that the victim suffer bodily harm. Answer choice B is incorrect. Although the tourist arguably acted willingly after succumbing to the defendant’s persuasion in taking the shortcut, the tourist, in making the 10-foot trip, was acting against his will and in response to the threat of violence made by the defendant brandishing his pistol. Remember that when deciding between two answer choices on the bar exam, it’s better to pick the answer choice that correctly states the law, rather than one that appears factually correct. Answer choice C is incorrect. Although the defendant did not deceive the tourist as to the destination of the shortcut, the defendant did presumably intend to deceive the tourist as to the defendant’s purpose, which was to rob the tourist. In any case, as noted with respect to answer choice B, whatever consent the victim may have given to the taking of the shortcut, the tourist, in making the 10-foot trip, was acting against his will and in response to the threat of violence made by the defendant brandishing his pistol.
INCHOATE CRIMES: Conspiracy
A man had spent the afternoon at the beach with his girlfriend; each of them had consumed a significant quantity of alcohol. The man saw one of the town’s wealthiest residents arrive at the beach, spread out a beach towel, put down a large cloth bag on the towel, drop what looked like a wallet into the bag, and run into the ocean. The man recounted his observations to his girlfriend regarding the wealthy man’s actions. She didn’t respond, but walked over to the bag and opened it. The bag did not contain the man’s wallet, but it did contain an expensive ring. She took the ring, and closed the bag. The wealthy man’s companion, who was just coming onto the beach, observed the girlfriend’s action. She was arrested. Soon thereafter, the man was arrested as well. The man is charged, among other crimes, with conspiracy to commit larceny. The applicable jurisdiction has adopted a conspiracy statute based on the Model Penal Code.
Which of the following is the weakest argument that the man can advance in defense of the charge?
A. The man’s conversation with his girlfriend was inadequate to form a conspiracy agreement.
B. The theft of the ring was beyond the scope of the conspiracy.
C. Since the bag did not contain a wallet, it was impossible for the man or his girlfriend to have taken it.
D. The man’s intoxicated state prevented him from forming the intent necessary to commit the crime.
Answer choice C is correct. Factual impossibility is not a defense to conspiracy. Answer choice A is incorrect because, even though the jurisdiction has adopted a unilateral approach to conspiracy, in order for a defendant to be convicted of conspiracy, the defendant must agree to commit an unlawful act even if the other party does not. Here, the man’s mere recounting of his observations would likely be insufficient to establish such agreement. A conspirator can be convicted of both the offense of conspiracy and all substantive crimes committed by any other co-conspirators acting in furtherance of the conspiracy. Answer choice B is incorrect because, here, the man could argue that the theft of the ring was an independent crime, and was not in furtherance of the conspiracy to steal the man’s wallet. Answer choice D is incorrect because conspiracy is a specific intent crime for which voluntary intoxication may be a defense.
INCHOATE CRIMES: Conspiracy
A man learned that his brother had embezzled $100,000 from the company that they had started together. The man was furious and discussed the matter with his best friend. Together, they formed a plan to take some valuable artwork from the brother’s home in partial repayment of the money stolen. According to the plan, the friend would rent a van that they would use to drive to the brother’s house. The man and his friend would then break into the brother’s house, take the paintings, and load them into the van. The next week, the friend rented the van, picked up the man, and drove to the brother’s house. When they arrived at the brother’s house, the friend had a change of heart and told the man that he could not go through with breaking into the house. The man decided to go ahead with the plan on his own, after the friend ran off. The following day, the friend voluntarily went to the police station and confessed to the plan.
Which of the following statements best describes the friend’s criminal liability under the majority rule?
A. The friend is not guilty of any crime.
B. The friend is guilty of larceny as an accomplice, but not of conspiracy.
C. The friend is guilty of conspiracy, but not guilty of larceny as an accomplice.
D. The friend is guilty of conspiracy and of larceny as an accomplice.
Answer choice D is correct. Conspiracy is an agreement between two or more persons to accomplish an unlawful purpose with the intent to accomplish that purpose. Under the majority rule, a conspiracy does not exist until an overt act has occurred, and withdrawal is possible between the date of the agreement and the commission of the overt act. In order to withdraw, notice must be communicated to the other co-conspirators, or the police must be advised of the existence of a conspiracy in a timely manner. Upon completion of the overt act (here, renting the van), the conspiracy is formed, and withdrawal is no longer possible. An accomplice is a person who, with intent that the crime be committed, aids or abets a principal prior to or during the commission of the crime. An accomplice is responsible for the crime to the same extent as the principal. To legally withdraw (and therefore avoid liability for the substantive crime), the accomplice must repudiate prior aid or do all that he can to negate the prior assistance before the crime is put into motion. A mere change of heart after the crime is put into motion is ineffective, as notification to the legal authorities must be timely and directed toward preventing others from committing the crime. In this case, the friend did not effectively withdraw as an accomplice or co-conspirator until after the man had the van in front of his brother’s house, and the friend did not immediately notify the police so as to prevent the crime. Accordingly, he would be guilty of larceny as both co-conspirator and accomplice. Answer choice A is incorrect because the friend would be guilty of larceny, as he entered into a conspiracy and rented the van, picked up the man, and drove to the brother’s house before he attempted to withdraw. Answer choice B is incorrect because the friend did enter into a conspiracy with the man. Answer choice C is incorrect because the friend aided the man in committing the crime by renting and providing him with the van.
INCHOATE CRIMES: Attempt
A woman learned that her friend was having an affair with the woman’s husband, and she told her sister about this. The sister had always hated the woman’s husband, and together, they planned to murder the husband to collect a $2 million life insurance policy for which the woman was the sole beneficiary. The woman promised to give her sister $500,000 if she murdered the husband and gave her $10,000 up front. The sister purchased a gun, which she planned to use to shoot the woman’s husband. She waited in the parking garage when the husband left his office, but she was unable to pull the trigger. The sister later told the woman that she could not go through with the plan and gave back the $10,000. The jurisdiction recognizes the majority rule regarding conspiracy liability.
Which of the following best describes the sister’s criminal liability?
A. The sister is guilty of attempted murder and conspiracy to commit murder.
B. The sister is guilty of attempted murder only.
C. The sister is guilty of conspiracy to commit murder only.
D. The sister is not guilty of any crime.
Answer choice A is correct. Conspiracy is an agreement between two or more persons to accomplish an unlawful purpose with the intent to accomplish that purpose. The majority rule requires an overt act in furtherance of the conspiracy. Under the majority rule, withdrawal is possible between the date of the agreement and the commission of the overt act. Upon completion of the overt act, the conspiracy is formed and withdrawal is no longer possible. In this case, the conspiracy was complete when the sister purchased the gun and laid in wait for the husband, and thus her later actions were insufficient to withdraw from the conspiracy. An attempt requires a specific intent to commit a criminal act coupled with a substantial step taken toward the commission of the intended crime, which fails to be completed. Preparatory acts, such as lying in wait for the victim or possessing materials required for the crime, may constitute a substantial step if they corroborate the defendant’s criminal purpose. In this case, the sister purchased a gun and then waited in the garage to shoot the husband, and thus completed a substantial step toward murder. Answer choices B is incorrect because the sister is also guilty of conspiracy, as she made the agreement and made an overt act in furtherance of that. Answer choice C is incorrect because the sister took a substantial step in the commission of the crime and is therefore guilty of attempted murder as well. Answer choice D is incorrect because the sister would be guilty of both attempt and conspiracy.
