Problem Questions

Question 1

Circumstantial Evidence and conspiracy

Answer 1

The existence of an agreement need not be proven by direct evidence; circumstantial evidence can suffice.

Question 2

Impossibility and attempt

Answer 2

Impossibility is no defense to attempt charges where, had the facts been as the defendant believed them to be, the defendant would have had the mental state required for the completed crime.

Question 3

Concurrence and mental state

Answer 3

In the case of a crime defined in terms of a particular result (like murder), the requisite concurrence is between mental state and act, not between mental state and result.

Question 4

Larceny and the element of carrying away:

Answer 4

Courts have found that the “carrying away” element in Larceny is satisfied by even the smallest movement (e.g. as in putting an object in your pocket).

Question 5

Factual Impossibility

Answer 5

Impossibility is not a defense to an attempt prosecution in cases where had the facts been as the D believed them to be, the D would have had the mental state required for the substantive crime.

Question 6

Malice for arson

Answer 6

Malice for arson does not require a specific intent, but only that the defendant acted with either: (1) intent or knowledge that the structure would burn, or (2) reckless disregard of an obvious risk that the structure would burn.

Question 7

Burglary

Answer 7

Mistake of fact –> legal impossibility. Since this negates the required intent for burglary, he’ll be acquitted.

Question 8

Solicitation

Answer 8

Solicitation consists of inciting, inducing or urging another to commit a felony with the specific intent that the person solicited commit the crime.

E.g. Therefore, a peron’s efforts to withdraw a few days before payment was due would not be a defense to a crime of solicitation since the crime was already completed.

Question 9

Accomplice liability and Principal conviction

Answer 9

Under the modern view of accomplice liability, the fact that the principal has not yet been convicted of the substantive crime does not bar trial and conviction of the accomplices. If the principal were actually acquitted, this might bar prosecution.

Question 10

Conspiracy

Answer 10

A co-conspirator need not be present at the commission of each crime in order to be guilty of a conspiracy.

Question 11

Example of when do you need counsel?

Answer 11

During a lineup (not during an initial appearance with the magistrate judge).

ONLY at any critical stage of the proceedings.

Question 12

Can a judge direct a verdict of guilty?

Answer 12

A judge may not direct a verdict of guilty no matter how conclusive the evidence.

That is, if the judge were to direct the jury to find that a single one of the elements of the crime charged had been established beyond a reasonable doubt – it would not be the case that the jury had made the requisite finding beyond a reasonable doubt as to all elements of the crime, as the 6th Amendment guarantees to every criminal defendant.

Question 13

A jury finding beyond a reasonable doubt:

Answer 13

Any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.

Question 14

Miranda Warnings and what is custody?

Answer 14

Persons subjected to a roadside stop are not “in custody” given the “comparatively nonthreatening” and “presumptively temporary and brief” character of the stop. (e.g. traffic stop)

According to Miranda , Miranda warnings are only required before “custodial interrogation” and custodial interrogation means “questioning initiated by law enforcement officers after a person has been taken into custody.

Question 15

Double Jeopardy

Answer 15

SCOTUS has held that once a jury trial has begun, the trial judge should declare a mistrial only if there is a “MANIFEST NECESSITY” for this drastic step.

The manifest standard will not be satisfied unless the trial judge has considered whether the circumstances are such that the drastic step of a mistrial can be avoided by use of some alternative, including, especially, a continuance (aka postponement) of the trial. Also, a judge who is considering a mistrial should give lawyers for both sides the chance to object to the mistrial and/or suggest an alternative like continuance.

A retrial can violate the Double Jeopardy Clause even though the first trial did not produce a verdict.

Question 16

6th Amendment: Ineffective-assistance-of-counsel:

Answer 16

1. Counsel’s performance was so deficient that it FAILED TO CONSTITUTE “REASONABLY EFFECTIVE ASSISTANCE” as measured by prevailing professional norms considering all the circumstances. And
2. That the deficient performance PREJUDICED THE DEFENSE, something that requires the defendant to show that there is a REASONABLE PROBABILITY that but for counsel’s unprofessional errors, the result of the proceeding would have been different.

Question 17

Dual Sovereignty Exception to the Double Jeopardy Clause

Answer 17

If a single course of conduct by D violates the laws of two states, the second may prosecute D for violating its laws regardless of the outcome in the first state’s prosecution of D for that same conduct.

Question 18

Affirmative defense and burden of persuasion:

Answer 18

Due process requires that the burden of persuasion beyond a reasonable doubt be placed on the prosecution only as to each element of the crime, not as to “affirmative defenses.”

Question 19

Juvenile offender who did not commit homicide:

Answer 19

For a juvenile offender who did not commit homicide the 8th Amendment forbids the sentence of life with-out parole.

Question 20

5th Amendment privilege against self-incrimination:

Answer 20

Only humans may claim a 5th Amendment privilege against self-incrimination.

Therefore, a corporation may not rely on the privilege to refuse to comply with a grand jury subpoena of corporate records

Question 21

D right to be present at every stage of his trial

Answer 21

The Sixth Amendment Confrontation Clause – as well as the due process components of the 5th and 14th Amendments – include the right of a criminal defendant to be present in the courtroom at every critical stage of the proceeding against him. In particular, once the trial begins, every part of the trial is deemed to be critical.

The trial is deemed to begin with the selection of the jury – the defendant has a constitutional right to assist in selecting the jury, as part of his more general right to assist in conducting the defense.

Question 22

Trial testimony identification:

Answer 22

SCOTUS has found that an identification procedure may be so unnecessarily suggestive that allowing the results of that identification into evidence violates the accused’s due process rights.

However, even where an unnecessarily suggestive identification procedure is used, neither the out-of-court identification itself, nor the witness’s later in-court identification, will be excluded unless the trial court concludes that there is a “very substantial likelihood of irreparable misidentification.”

Question 23

Double Jeopardy

Answer 23

Double Jeopardy cannot be triggered until jeopardy has “attached” which happens when the jury is chosen and sworn in or (in a bench trial) when the first witness is sworn in.

Question 24

What happens if some or all the evidence heard by the grand jury was inadmissible?

Answer 24

Even if a grand jury relies on inadmissible evidence while issuing an indictment, dismissal of the indictment is not the proper remedy.

Question 25

Stale information and evidence used to obtain a search warrant:

Answer 25

If the information is stale, it will defeat probable cause by diminishing the possibility that the item in question are still at the location.

Question 26

Handwriting samples and Miranda Rights

Answer 26

Handwriting sample is considered physical, not communicative evidence – and the 5th Amendment only covers communicative evidence. As a result, handwriting samples are not covered by the 5th Amendment and will be admissible even if the suspect wasn’t given the opportunity to obtain counsel or told any other Miranda warning.

Question 27

Factual impossibility and Legal impossibility

Answer 27

Factual impossibility refers to impossibility due to the fact that the illegal act cannot physically be done. On the other hand, legal impossibility arises when the act, if completed, would not be a crime.

Legal impossibility comes up in a situation where a person believes she is committing a crime, but the act is, in fact, lawful.

Question 28

Entrapment

Answer 28

Affirmative defense, the state may impose burden of proof upon the D regarding an affirmative defense.

Once a D has raised an entrapment defense, the prosecution, in rebuttal, is allowed to introduce prior related convictions as substantive evidence to disprove the entrapment defense by showing the D’s willingness to commit the crime as relevant prior misconduct.

Question 29

Accomplice and Mental State

Answer 29

An accomplice must have the same mens rea that is required on the part of the actual perpetrator of the target crime.

Question 30

Is ignorance of law generally considered an excuse?

Answer 30

NO

Question 31

Insanity defense:

Answer 31

No state is constitutionally required to recognize any form of insanity defense.

Question 32

Voluntary intoxication is only a defense to ______ .

Answer 32

Specific intent crimes

Question 33

Public Airspace and searching

Answer 33

The officer’s action of looking into the yard from the police helicopter is not considered a search within the meaning of the 4th amendment. The d did not have an objective, reasonable expectation of privacy fro aerial observation because the observation were made from the public airspace

Question 34

The 5th Amendment privilege against self-incrimination protects only _______ .

Answer 34

Testimonial or communicative evidence and NOT real or physical evidence.

Thus, the prosecution may require a person to produce blood samples, handwriting examples or voice samples even though such evidence may be incriminating.

Question 35

Bank Accounts and Privacy

Answer 35

Person has no reasonable expectation of privacy in the bank records of their account.

Question 36

Felony Murder

Answer 36

Attempted rape is a felony murder.

Question 37

Malice

Answer 37

A finding of malice does not require the intent to kill or cause serious physical injury.

It can be implied from a D gross recklessness with regard to human life shown.

Question 38

Strict Liability and Regulatory Offenses

Answer 38

Because strict liability do not require mens rea, the vast majority of strict liability crimes are less serious regulatory offenses meant to protect the public welfare. Most cases of strict liability are minor infractions or misdemeanors, not nearly as serious as felonies, but can still warrant heavy fines and some jail time.

Very few strict liability crimes qualify as felonies; statutory rape is one.

For MBE, besides statutory rape, strict liability criminal offenses are regulatory in nature and intended to prevent public harm.

Question 39

Confrontation Clause:

Answer 39

Using a non-testifying co-defendant’s inculpatory statement against the accused at trial presumably violates the accused’s 6th Amendment right to confrontation. In co-defendant confession cases, the Confrontation Clause requires that an original defendant be given the opportunity to cross-examine a co-defendant whose confession is being used against the original defendant.

Question 40

Manslaughter

Answer 40

Manslaughter does not require that the D have any criminal intent to commit an offense (recklessness is sufficient).

DEFINITION: Manslaughter is a killing committed with criminal negligence or during the commission of an unlawful act.

Question 41

Unlawful arrest:

Answer 41

An unlawful arrest is not an adequate reason to dismiss an indictment or subsequent criminal prosecution.

Therefore, if the police improperly arrest a person, that violation is not a defense against the charged offense.

Question 42

Sufficiency of the evidence to sustain a charge:

Answer 42

When determining the sufficiency of the evidence to sustain a charge, the appellate court considers the evidence in the light most favorable to the state.

Question 43

Common Law Felony Murder:

Answer 43

The common law felony murder doctrine recognizes arson, burglary, rape, robbery, kidnapping, as qualifying underlying offenses (modern statutes have expanded on the traditional common law felony murder definition to include additional felonies)

Question 44

Larceny and illegal

Answer 44

It is irrelevant that the owner’s possession of the property was likely illegal.

Question 45

Open Field Doctrine:

Answer 45

Under the open fields doctrine, areas outside the curtilage (dwelling and outbuildings) are subject to entry and search and unprotected by the 4th Amendment. Even buildings such as barns are considered to be outside the curtilage of a house.

Question 46

Mistake of Fact and

Answer 46

~ Mistake of fact may be a defense only if it negates the state of mind required for the crime.

~ Here a mistake of fact would negate the mental states needed for both murder and manslaughter. However, for malice and general intent crimes, there is a extra requirement that the mistake of fact must be reasonable.
E.g. women shot toy gun but was actually a real gun.

Question 47

Strict liability and attempt:

Answer 47

Although strict liability crimes do not require criminal intent, an attempt to commit a strict liability crime requires the D must act to bring about the specific result.

E.g. Man is not liable for attempted statutory rape (strict liability) since be did not intend to have sex with a 12 year old (he thought she was 24).

BE CAREFUL, YOU GET THESE WRONG A LOT!!!!

Question 48

Second degree Murder:

Answer 48

Intentional killing of a human without premeditation and deliberation

Question 49

Voluntary Intoxication:

Answer 49

Voluntary intoxication is typically not a defense to second degree murder. It may be a defense to first degree murder, which requires a specific intent, but not to second degree murder, which-requires at least criminal recklessness.

Question 50

Is robbery specific or general intent?

Answer 50

SPECIFIC INTENT!!

Question 51

Criminal D may be compelled to produce documents that have testimonial significance if:

Answer 51

A criminal D may be compelled to produce documents that have testimonial significance if immunity is granted to the D. There are two kinds of immunity that may be granted.

Broader form of immunity is TRANSACTIONAL IMMUNITY. Transactional immunity completely protects witness from future prosecution for crimes related to testimony.

USE & DERIVATIVE USE immunity is narrower – it prevents prosecution only from using witness’s own testimony or any evidence derived from testimony against witness.

Question 52

Right to Counsel:

Answer 52

6th Amendment right to counsel is in place for post-charge line-ups. It has also been held that the 6th Amendment right to counsel is in place for arraignment.

Evidence of a line-up in absence of counsel must be suppressed unless an in-court identification by the same witness is entered into evidence by the prosecution and is shown by clear and convincing evidence that the in court identification is based on observations of the defendant independent of the tainted confrontation.

Question 53

Which challenge is easier to prove, Miranda or Voluntary?

Answer 53

Miranda!

Go for Miranda.

Question 54

Jurors and giving out the death penalty:

Answer 54

A trial court may properly excuse a juror for cause from serving on both guilt and penalty phases of a capital case if a juror’s views regarding the death penalty would prevent or substantially impair the juror from impartially deciding whether the death penalty is warranted in that particular case.

Question 55

Warrant and forced entry into a home to find person:

Answer 55

Forced entry into a home, with a valid warrant, is permissible when the person is believed to be inside and no response occurs.

When the police have a valid arrest warranty, however, they are not authorized to forcibly enter the home unless there is probable cause to believe the person named is on the premises.

Question 56

Felony Murder:

Answer 56

To convict a defendant for felony murder, the prosecution must prove the D committed or attempted to commit a proper underlying felony.

It is enough that the death occurred during the commission of the felony.

Question 57

M’Naghten Test:

MPC:

Answer 57

M’Naghten test focuses on whether a D knew the nature of the crime or understood right from wrong at the time D committed the crime.

MPC: 1. did not know right from wrong or 2. lacked ability to control the impulse that led to the commission of the crime.

Question 58

Miranda Rights:

Answer 58

The privilege against self-incrimination extends only to compelled “testimonial” communication. Thus, even though the act may provide incriminating evidence, a criminal suspect may be compelled to make a recording of his voice.

E.g. The D could properly be required to utter the words spoke by the bank robber.

Question 59

Direct Verdict

Answer 59

A judge presiding in a criminal case can NEVER direct a verdict for the state on an issue that is for the jury to decide, including the D’s guilt or innocence.

A direct verdict is a ruling entered by a trial judge after determining that there is no legally sufficient evidentiary basis for a reasonable jury to reach a different conclusion. The judge can order a directed verdict for the defense if she believes that the jury could not possibly find that the state met its burden of proof as to the guilt of the D.

Question 60

Miranda and statements

Answer 60

A confession is not considered involuntary simply because it is the product of a mental disease that prevents the confession from being of the D’s free will.

Only official coercion or compulsion will cause a confession to be involuntary.

Question 61

Mandatory Life in Prison:

Answer 61

SCOTUS has held that it is a violation of the 8th Amendment to impose mandatory life in prison without the possibility of parole on a person who was a minor when the crime was committed.