Short Questions

Question 1

Police arrested D because he was driving on a suspended license. Incidental to the arrest he found drugs. The state law doesn’t authorize arrests for driving without a license. Can D move for the exclusion of the evidence in the drug crime trial?

Answer 1

No,

Police officers can arrest even if the law doesn’t create the arrest sanctions.

An arrest can be made pursuant to the police officer believes that there was a probable cause to believe that even a misdemeanor happened.

Arrest was constitutional therefore the evidence was seized in compliance with 4th Amendment

Question 2

Police have a reasonable cause to arrest D. However, D was arrested in his house illegally, on his house he confesses to the crime.

Later D confesses again in the station.

Which confession is excluded?

Answer 2

Only the one obtained in his house.

The confession at the police station is good since he was going to be arrested anyway.

Question 3

An Attempt at Kidnapping, is a general or a specific intent crime?

Answer 3

Is specific, Attempt is always a specific crime even if the crime attempted was not

Question 4

D intents to scare V by shooting V’s hat off his head. What crimes would happen if:

1. If D’s shot kills V
2. V is merely wounded,

Answer 4

If D’s shot kills V, D is guilty of murder

If V is merely wounded, D is not guilty of attempted murder, only battery

Question 5

D intends to shoot and kill X, but instead shoots and kills V.

What are D’s crimes?

Answer 5

D is guilty of the murder of V, and the attempted murder of X

Question 6

A points an unloaded gun at B. A pulls the trigger, thereby frightening B. Is A guilty of assault under a statute defining assault as “an attempt to commit a battery, coupled with the present ability to succeed”?

Answer 6

No.

Because the gun was unloaded, A could not have succeeded in committing a battery.

Question 7

A intentionally sets fire to a dwelling. B, a firefighter, dies in an effort to extinguish the blaze. C, the owner of the dwelling, dies of a heart attack while watching his largest possession being destroyed.

Is A guilty of felony murder?

Answer 7

of B: Yes. The death of a firefighter is a foreseeable consequence of setting a fire

of C: No, the heart attack was unforeseeable

Question 8

K is diving on a good road in excellent weather but is slightly exceeding the posted speed limit. V dashes from behind a bush into the street and is struck by K’s car. V dies.

Is K guilty of involuntary manslaughter, assuming that speeding is a misdemeanor?

Answer 8

The best answer is no, because the misdemeanor was not malum in se and death was not a foreseeable result of its commission

Question 9

Which is true regarding the ability of police officers to stop automobiles for investigatory purposes?

• They can only do it when there is probable cause
• Reasonable suspicion is required always
• They can stop cars random for mobility purposes, and then investigate a problem closely related to the mobility of automobiles

Answer 9

Police can stop cars for more reasons than only probable cause or reasonable suspicion. They can also investigate cars randomly detained for mobility purposes uses a neutral procedure.

General Rule: Terry standard, reasonable suspicion that law has been violated

Question 10

What is the difference between a Voluntary Manslaughter from Murder?

Answer 10

A murder under common law requires malice aforethought.

A voluntary manslaughter requires existence of an adequate provocation (defense to murder to a lesser crime)

Question 11

What are the malice aforethought elements that define that a killing is a murder (common law)

Answer 11

Express:

1. Intent to kill

Implied

1. Intent to inflict great bodily harm
2. Reckless indifference to a high risk to human life (malignant heart)
3. Intent to commit a felony

Question 12

Do you need to be convicted of a felony to be guilty of a felony murder?

Answer 12

No, the defendant need not actually be convicted of the underlying felony if the statute of limitations for the felony has expired

Other elements

1. Prosecution needs to prove that the felony occurred (regardless of the conviction)
2. killing happened during the felony
3. independent of the felony
4. the killing was a foreseeable result of the felony

Question 13

D invoke right to remain silent, when can the police question him again?

Answer 13

When these three requirements are fulfilled:

1. Several hours have happened
2. Fresh Miranda rights are given
3. The questioning has to be a different crime (5th amendment is not offense-specific for right to counsel)

Question 14

D does not answer any question on interrogation, but he does not say anything (don’t invoke the right to remain silent), can the police keep asking questions?

Answer 14

Yes, only when the right is expressly requested the police should stop the questioning (they can reinitiate later when 1. fresh miranda, 2. several hours, 3. different case)

Question 15

If a detainee ambiguously requests the presence of counsel at an interrogation, can the police keep making questions?

Answer 15

If a detainee requests the presence of counsel at interrogation, under Miranda the police may continue to interrogate if the request is ambiguous

Question 16

If the D ask for counsel, and then he doesn’t arrive, how long the prohibition to make questions last?

Answer 16

The prohibition lasts the entire time the detainee is in custody for interrogation, plus 14 more days after the detainee returns to his normal life

Question 17

Do you need the crime to be completed to be guilty of conspiracy?

Answer 17

The crime agreed upon does not need to be completed for the conspirators to be guilty of conspiracy.

(However, some statutes -not in common law- would require at least tan overt act in furtherance of the conspiracy).

Question 18

What is the only defense to solicitation?

Answer 18

When the solicitor is exempt from liability for the completed crime.

Question 19

In a Robbery crime, you need force or threats to gain possession of the property.

When you use force or threats to retain such possession, is it still robbery?

Answer 19

Yes

The force or threats must be used either to gain possession of the property or to retain possession immediately after such possession has been accomplished. If force is used, it must be sufficient to overcome the victim’s resistance. If threats of immediate death or serious physical injury are used, they must be threats to the victim, a member of her family, a relative, or a person in her presence at the time. The property must be taken from the victim’s person or presence. “Presence” means some location reasonably close to the victim, but it need not be taken from the victim’s person. Property in other rooms of the house in which the victim is located is in her “presence.” A threat to do damage to property will not suffice—with the exception of a threat to destroy the victim’s dwelling house

Question 20

Guy takes the car (with fraud consent) to sell it for money. Has a change of heart and take it back. Crime?

Answer 20

Yes, Larceny existed at the moment the D took the item and permanently deprived the victim from the tangible personal property

Question 21

D impersonates roommate to fool a banker to give him money. He succeeds and got cash from the banker, which crime?

Answer 21

The crime is Larceny by trick. Is not false pretenses because there was no title transferred. Is not embezzlement because there was no legal possession first.

Question 22

Two co-defendants confess and include each other in their own confession. D1 retracts her confession and wants to bar D2 confession to be admissible against her. What is the best reason?

Answer 22

D2 refused to testify at trial and therefore was not subject to cross-examination regarding his confession.

If two persons are tried together and one has given a confession that implicates the other, the right of confrontation generally prohibits the use of that statement because the other defendant cannot compel the confessing co-defendant to take the stand for cross-examination. A co-defendant’s confession is inadmissible even when it interlocks with the defendant’s own confession, which is admitted. If the man refused to take the stand and subject himself to cross-examination, his confession was not properly admitted because it violated the woman’s Confrontation Clause rights.

Question 23

A couple tried together with the same lawyer. They fight and change lawyers in the middle of the trial. A mistrial is conceded after the wife filed the motion.

Now the wife wants to dismiss the case because of double jeopardy. Will she succeed?

Answer 23

No, because the wife requested the mistrial.

One of the exceptions permitting retrial even if jeopardy has attached is when a mistrial is granted in the first trial at the request of the defendant on any ground not constituting an acquittal on the merits.

Question 24

Two robbers are indicted. One of the robbers don’t want to testify, but the prosecution gives him a plea deal where he would be immunized if he testifies against the other co-defendant.

Is the testimony admissible against the other D?

Answer 24

No, because the testimony was obtained by a promise of immunity.

And those are by definition coerced and therefore involuntary. Thus, immunized testimony may not be used for impeachment of the defendant’s testimony at trial. The friend’s testimony will not be permitted to be used against the ex-convict because it resulted from the ex-convict’s immunized testimony, and use and derivative use immunity prevents, as the term states, use of the immunized testimony and use of any evidence derived from the immunized testimony.

Question 25

D calls a rival names on a bar. The man is infuriated because of that and attacks D with a knife. D doesn’t escape but fights back and makes man fell and die.

Is he guilty of a crime?

Answer 25

No, because the defense of self-defense makes his homicide excusable.

D reasonably used the force necessary to defend him from the man’s unlawful attack, and the defendant had no duty to retreat under the majority view. Furthermore, the defendant can claim the privilege of self-defense even though his words triggered the fight—calling someone names would not be considered adequate provocation that would make the defendant the aggressor.

Question 26

A woman is arrested for questioning. She receives a Miranda warning and requests an attorney before answering questions about a crime X. Several hours later, the police officers gave her another Miranda warning and ask her questions about crime Y.

If she answers the questions, was a violation of her Miranda rights?

Answer 26

YES.

Because she requested the attorney for interrogation purposes (5th Amendment). If the accused invokes this right, all questioning must cease until the accused is provided with an attorney or initiates further questioning himself.

Compare against 6th Amendment: when questioning can resume if the questions relate to a different offense (and hours pass and Miranda is refreshed)

Question 27

Man changes bags with drugs with a woman, and she doesn’t know the content of the man’s bag. They are driving and are stopped because he was speeding. As soon as the police show at the window he confesses to the police that “she has drugs”.

Police seize the package. Admissible?

Even when the woman did not know about the contents?

Answer 27

Yes, using the Automobile exception. They were stopped legally, and then, there was a probable cause that the car has drugs, and therefore they could search into the vehicle for them.

The knowledge of the woman is completely irrelevant regarding the legality of the seizure

Question 28

If you have consent to look into someone’s else apartment for drugs. Does the scope of the consent include opening drawers and containers?

Answer 28

YES, since the consent extended to all areas to which a reasonable person under the circumstances would believe it extends.

The D knew that the police were looking for drugs, so it was expected that they would open drawers and containers

Question 29

A man is ready to rob a store. He gets inside and just before talking with the clerk with a fake gun on his jacket, he noticed a police officer in the store, and he withdraws and abandons the plan.

He plans to rob the store again tomorrow

Is he guilty of robbery?

Answer 29

Yes, because he went beyond only the preparation acts of the crime and he abandoned the plan because of the difficulty of doing so.

Postponing is also not abandonment,

Question 30

A world-famous thief is contacted by an undercover police officer to convince him to rob a bank under a sting operation. He agreed, but before the crime, he withdraws and calls the police.

Is he guilty of conspiracy under common law? under MPC?

Answer 30

Under common law: He would not be guilty since the undercover police officer never agreed to be part of the conspiracy

Under MPC: Yes, under the unilateral rule he would be convicted as long as there was an overt act (however preparation acts would suffice).

Question 31

A man founds in the morning his wife in bed with his best friend. He goes and gets a gun, talks with his friends and have drinks for courage and shot the man in the chest killing him.

Murder or voluntary manslaughter?

Answer 31

Murder

Getting a gun shows intent to kill (one of the elements of murder with intent to do harm, reckless indifference, and felony) and he also has enough time to talk with his friends and get liquid courage.

Question 32

A man got drunk and fire his gun through the door. He is convicted of murder. He appeals, would he succeed? Why?

Answer 32

No, because the action was clearly related to a murder. He acted with malice aforethought. He acted either with or without intent but in any case, he was grossly negligent and he would be either convicted of murder on 1st or 2nd degree.

The question now is what happens with the intoxication defense.

Question 33

Of this one, on the majority of cases, which one can and cannot be merged:

• Principal Offense
• Solicitation
• Conspiracy
• Attempt

Answer 33

You cannot have:

• PO and Solicitation
• PO and Attempt

But you can have:

• PO and Conspiracy

Question 34

Man hires arsonist to burn rival’s house. Man takes Rival to game, while Arsonist is supossed to burn the house. Arsonist withdraws and does nothing.

Are they guilty of conspiracy?

Answer 34

Yes,

Because the elements of agreement (agreement to agree and agreement to commit a crime) were present.

There was also an overt act by one of the co-Conspirators

Question 35

Common Law: A and B agree to burn V’s house. They pour gasoline on the porch. Police arrives. A says that he called the police and he never intended to burn the houe and that all was a plan to capture B.

Is B guilty of conspiracy?

Does it matter if B argues that A induced her to make the crime?

Answer 35

No, because under common law you need an agreement between two or more people to reach an unlawful objective. There is no unilateral conspiracy

Regarding the solicitation, that would not be a defense since there is no private entrapment

Question 36

Three robbers decide to rob a bank. Each has a different task. A is supposed to rob a car to be used as a getaway. He steals it but has an accident and ends up in the hospital. The other two robbers decide to go ahead and rob the bank.

Which crimes can A be found guilty of?

Answer 36

1. Car theft (he stole the car)
2. Conspiracy (he agreed with the other two persons to commit a crime)
3. Robbery. Why? because even if he did not participate, he did not withdraw from the crime, and therefore he is liable for all subsequent crimes that occur in furtherance of the unlawful objectives of the conspiracy

Question 37

How do you show/prove the elements of Mens Rea?

Answer 37

General: If the act occurred is enough

Specific: you need to prove the existence of intent to do the act

Malice: Recklessly disregarded an obvious or high risk that a particular harmful result would occur

Negligence: failed to be aware of a substantial and unjustifiable risk that circumstances existed or a result would follow, and such failure constituted a substantial deviation from the standard of care that a reasonable person would exercise under the circumstances.

Question 38

Is personal gain a requirement of Embezzlement? What are the requirements?

Answer 38

No is not.

Question 39

What is the difference between the crimes of larceny by false pretenses and larceny “by trick”?

Answer 39

The difference on what is conveyed, either title or custody

False pretenses differs from larceny by trick in that title is obtained through false pretenses, but only custody of the property is obtained through larceny by trick. What is obtained depends upon what the victim intended to convey to the defendant.

Question 40

An employer has a discussion with A his employee and retain his tools as payment. A recruit B to help him retrieve his tools. B mistakes A’s tools with someone else’s tools. B is captured.

What would be B best defense?

Answer 40

That he did not have the intent to deprive the other person of his tool, since Larcerny require specific intent he would not have the mens rea requirement.

Question 41

D lends C his signed baseball to show at school. C promises he won’t use it for playing. C lied and he uses it for playing a game and the ball is destroyed. He wanted to return the ball. Is he guilty of a crime?

Answer 41

Larceny by trick, he obtained the ball using misrepresentation of facts.

While he did not intend to permanently deprive the owner of the ball, he took the ball to use it in a situation where a substantial risk existed, and therefore it could be considered that he had a constructed intent element.

Question 42

What do you need for a murder to be 1st degree rather than 2nd?

Answer 42

You would need to show deliberation and premeditation or that the killing occurred during an enumerated felony

Adequate provocation would show manslaughter

and malice heart would show 2nd degree

Question 43

Miranda warnings __________ need to be given before a suspect is interrogated by a civilian working for the police.

1. Always
2. May
3. Never

Answer 43

Miranda warnings MAY need to be given, depending on whether the suspect knows this person is employed by the police.

Miranda generally applies only to interrogation by the publicly paid police. It does not apply where interrogation is by an informant who the defendant does not know is working for the police. The rationale is that the warnings are intended to offset the coercive nature of police-dominated interrogation, and if the defendant does not know that he is being interrogated by the police, there is no coercive atmosphere to offset.

Question 44

In a criminal trial, what is the minimum number of jurors allowed under the Sixth and Fourteenth Amendments?

Answer 44

There must be at least six jurors to satisfy the right to a jury trial under the Sixth and Fourteenth Amendments.

Question 45

If more than _______ months’ imprisonment is authorized, the offense is considered “serious” for determining whether a defendant has a constitutional right to a jury trial.

Answer 45

6

An offense is considered serious, making a jury trial a constitutional right, when more than six months’ imprisonment is authorized.

Question 46

D was charged with being DUI, right before the trial began, he fired his attorney and decided to defend himself. At one point during opening arguments, the defendant began to act like a cat, meowing and chasing an imaginary squirrel out of the courtroom.

Should the trial judge raise the issue of competency? because he is representing himself? or because of a constitutional duty?

What happens if the judge doesn’t raise the issue. Waived?

Answer 46

The judge must raise the issue of competency. If it appears to the judge that the defendant might be incompetent, the judge has a constitutional obligation to conduct further inquiry and determine whether in fact the defendant is incompetent.

The judge should conduct an independent inquiry into competency regardless of whether the defendant is representing himself or is represented by an attorney.

The judge’s failure to raise the issue or to request a determination of competency does not constitute a waiver of the competency issue. [Pate v. Robinson (1966)]

Question 47

Fed Law makes felons guilty of dealing with drugs, drug sales, and drug-related crimes also guilty of “organized crime”.

Constitutional under double jeopardy?

Answer 47

Yes

Double jeopardy does not prohibit the imposition of cumulative sentences for two or more statutorily defined offenses specifically intended by the legislature to carry separate punishments, even though constituting the “same” crime under the Blockburger test (i.e., each offense does not require proof of some additional fact that the other does not) when the punishments are imposed at a single trial. Absent a clear intention, it is presumed that multiple punishments are not intended for offenses constituting the same crime under Blockburger. Here, it is clear that Congress, in enacting the statute, intended that certain offenses, such as interstate distribution of cocaine, be subject to separate punishments.

Question 48

The police elaborate a ruse to convince a co-defendant that the other co-defendant had implicated him. Knowing that the man will try to talk with the other Co-D, they bugged the room when they are talking.

It is an interrogation?

Answer 48

Yes, if the police create a situation where it is likely that the D will make incriminating statements, it is an interrogation

Interrogation includes not only direct questioning, but also any other conduct by the police intended to elicit a response. The police conduct here (telling the man that the woman had implicated him and then bugging the conversation) constitutes prohibited interrogation. [See Maine v. Moulton (1985)]

Question 49

Person enter into his old leased apartment to retrieve his property, which the landlord retained to force him to pay the due rent payments.

Is he guilty of Burglary?

Answer 49

No, If the tenant intended merely to retrieve his property, he would have had no intent to commit a felony when he entered the apartment and thus could not be convicted of burglary.

Burglary requires breaking and entering into a dwelling of another (at night if CL) with the intent of committing a felony.

Question 50

What is the standard required to do a search in a school?

Answer 50

Only reasonable suspicion and not probable cause is required.

SCOTUS has observed that the school setting requires some modification of the level of suspicion of illicit activity needed to justify a search

Question 51

A government employee is required to make an oath swearing to protect the (1) the Fed Constitution; (2) the flag; (3) not to oppose the government

Is valid?

Answer 51

No, regarding only to the flag.

The Supreme Court has upheld oaths requiring government employees to oppose the violent overthrow of the government and to support the Constitution; however, it has held that government employees cannot be required to show respect for the flag, as a person might refuse to salute the flag on religious grounds.

Question 52

General rule: Where two persons are tried together and one has given a confession implicating the other, the general rule is that the Sixth Amendment right to confront adverse witnesses prohibits the use of such a statement.

What are the exceptions?

Answer 52

As exceptions to the general rule, the statement may be admitted if:

(i) all portions of the statement referring to the other defendant can be eliminated (so that there is no indication of that defendant’s involvement);
(ii) the confessing defendant takes the stand and subjects himself to cross-examination with respect to the truth or falsity of what the statement asserts; or
(iii) the confession of the nontestifying co-defendant is being used to rebut the defendant’s claim that his confession was obtained coercively, in which case the jury must be instructed as to the purpose of the admission.

Question 53

An officer on routine patrol noticed a flashlight moving within a darkened house and stopped to investigate. The suspect, who had broken into the home to steal valuables, caught sight of the patrol car, dropped the bag of valuables as he was about to carry them out of the house, and tried to sneak out the back way. The officer saw him sneaking out and seized him. The suspect, who had a lock-picking device in his possession, pulled out two $100 bills from his wallet, stating that he did not take anything and would like to forget the whole thing. The officer took the money, stating that she would give him a break this time around, and let the suspect go.

How may the officer be charged in this situation? Conspiracy or accessory after the fact? for which crimes?

Answer 53

The officer is an accessory after the fact to burglary. An accessory after the fact is one who receives, relieves, comforts, or assists another, knowing that he has committed a felony, in order to help the felon escape arrest, trial, or conviction. The crime committed by the principal must have been completed at the time aid is rendered. Here, the officer had a duty to arrest the suspect and failed to do so, instead letting him go. Her failure to act under these circumstances constituted sufficient assistance to the suspect to make her liable as an accessory after the fact. She almost certainly knew that the suspect had committed the felony of burglary, as she saw him with a flashlight in the darkened house and caught him sneaking out the back way with a lock-picking device in his possession. Under these facts, she can be liable as an accessory after the fact to burglary.

Adding Larceny would not be possible, the facts do not indicate that the officer knew that the defendant had committed larceny when she let him go. She had stopped him outside of the house, and because he apparently had none of the home’s valuables in his possession, she had no reason to doubt his claim that he had not gotten anything from the house. Although she probably surmised that he had broken in with the intent to commit larceny, she had no way of knowing that he had completed the crime of larceny by carrying the bag of valuables almost out of the house.

Question 54

Conspiracy under common law, what is the rule that is important?

Answer 54

There’s need to be at least two parties.

Question 55

A statute creates a crime to take advantage of a protected class. Can be the person in the protected class be prosecuted for conspiracy to commit that crime?

Answer 55

No

if a statute is intended to protect members of a limited class from exploitation or overbearing, members of that class are presumed to have been intended to be immune from liability, even if they participate in the crime in a manner that would otherwise make them liable.

If members of a conspiracy agree to commit an act that violates a statute designed to protect persons within a given class, a person within that class not only cannot be guilty of the crime itself, as discussed above, but also cannot be guilty of a conspiracy to commit the crime.

Question 56

A defendant was convicted in federal court of possession of one kilogram of heroin with intent to distribute. She was sentenced to a prison term. Subsequently, the defendant was indicted by a federal grand jury for conspiracy to distribute the same kilogram of heroin. She moved to dismiss the indictment.

Should her motion be granted?

Answer 56

No, because each prosecution requires proof of an element that the other does not.

The defendant’s motion should be denied because a prosecution for conspiracy is distinct from a prosecution for any substantive offense involving the same conduct as the conspiracy. The Fifth Amendment provides that no person shall be twice put in jeopardy for the same offense. The general rule is that two crimes do not constitute the same offense if each crime requires proof of an additional element that the other crime does not require, even though some of the same facts may be necessary to prove both crimes. [Blockburger v. United States (1932)] Furthermore, a prosecution for conspiracy is not barred merely because some of the alleged overt acts of that conspiracy have already been prosecuted. [United States v. Felix (1992)] Here, both the conspiracy charge and the possession charge require proof of an element that the other charge does not; hence, there is no double jeopardy problem with the indictment.

The fact that separate statutes are involved does not establish that these are not the “same offense” for purposes of double jeopardy.

the “same conduct” test is not currently used by the Supreme Court to evaluate a double jeopardy claim.

Question 57

Drunk guy drives a forklift causing damage. It is a crime to tamper heavy equipment. If he guilty because he violated the statute or because reckless behavior?

Answer 57

Reckless behavior under the mens rea standards, the crime required that he acted with gross negligence. Therefore he by driving drunk was guilty of that crime. The sole violation of the statute is not enough for the crime of reckless behavior

Question 58

Robber kidnaps a school principal and dresses him in his own clothes, then push him through the door, getting him killed by police. Felony murder or just murder?

Answer 58

It is a murder with malice aforethought because he was aware of an unjustifiability high risk to human like. Is not necessary a felony murder because even if it was not foreseeable he acted with indifference to human life

Question 59

Defendant was prosecuted for tax fraud and captured and then charged. Never really requested a lawyer “Honey call my lawyer”. Got a set of miranda rights. His lawyer arrives, but police don’t tell him. He never requested a lawyer and confesses after about other crime when police ask him questions about a robbery. Valid?

Answer 59

Valid because he talked after receiving his Miranda warnings, not because it was another crime. The questioning was ok because he did never unambiguously requested for a lawyer.

Question 60

The statute says “knowingly causing damage to property over x$” a hacker uses a computer virus to steal information, “he is aware that there is a small change to damage the computer” but he doesn’t know that the particular characteristics of the program would also destroy the computers. Guilty?

Answer 60

No, he is not aware that he would destroy the computer. He thinks he is just stealing information. Even if he is aware of the risk, under the MPC he would need to act knowingly

A Defendant acts knowingly with respect to the nature of his conduct when he is aware that his conduct will necessarily or very likely cause such result

Question 61

What is the general rule for a stop a frisk under terry?

Answer 61

Police can stop someone for reasonable suspicion of criminal activity. However frisk (pat of outer clothing) is only allowed if dangerous, but the police can seize object that is weapons or contraband if based on a plain feel, the police officer reasonably thinks that is weapons or contraband.

Question 62

Guy rams a father and his daughter off the road. They survive, he didn’t want to kill them, just show him how good he is at driving. Guilty of attempted murder?

Answer 62

No, you need to prove the intent to kill someone, even if you disregard a high risk of human life (depraved heart), or have intent to inflict damage, only an intent to murder will cause an attempted murder conviction

Question 63

Two robbers agree to rob an old lady walking home. They both procure weapons and a plan for the robbery. On the day of the crime, one of them thought about his mother and withdraw (he throws the gun and runs before the crime). The other robber continues and robs and kills the lady. Which crime is the guy who runs guilty of?

Answer 63

He is guilty of conspiracy, he entered into an agreement with others to achieve an objective and made overacts in preparation for that crime

He is not guilty of robbery and murder. because he withdrew from the crime

Question 64

Two instructions are given by a judge in a mental state defense case involving larceny:

1. If you find that the D proved that he did not have the intent to permanently dispossess the victim, then you should acquit
2. If you find that the D proved that he was insane, then you should acquit

Are they constitutional?

Answer 64

Instruction 1 is unconstitutional because it assumes that the D was charged with the burden of proving his innocence. In a criminal case, that burden is on the prosecution

Instruction 2 is ok since a D does have the burden to prove a defense, like in this case insanity

Question 65

Employee fakes his working hours to get a better paycheck. He makes a friend punch out his time card on his behalf. He then signed the punchcard with the timetables.

Guilty of what crime?

Answer 65

False pretenses. Since he obtained title to the property of another by an intentionally false statement with the intent to defraud.

This is not a forgery because he did not submit a false timecard, he just included false information on it. Falsity must be on the instrument itself not in the content of the instrument

Question 66

A intent to burn his house. He get drunk to get courage, and by mistake begins to burn his neighbors. He realizes and put away the fire but part of the house has a bit of charring

Is he guilty of arson? or just attempt?

Did he had intent?

Answer 66

Arson is the malicious burning of the dwelling of another. Malice here should be analyzed exactly as it is analyzed under common law murder. In other words, it’s not necessary that X intends to burn Y’s home. It’s enough that X acts recklessly, and due to his recklessness, the burning occurs. Note that the same standard holds for “depraved-heart” murder where recklessness will suffice.

At common law, the requirement of “burning” did not require that the dwelling be substantially damaged. You might see a fact pattern testing the distinction between blackening (or scorching), and charring. Blacking will not suffice, but charring will.

The common law did require that the burning was of a dwelling, but MBE questions have extended this requirement to structures other than dwellings. For MBE purposes, the “dwelling” requirement is far less important that the requirements of “malice” and “burning.”

Question 68

What is the effect of not applying the knock and announce rule? Can it supress evidence?

Answer 68

Regarding the suppression of evidence: It would not be enough to suppress the evidence since the police already were using a warrant

However, it can allow a P to sue the police for civil rights violations