Crim Law/ Crim Pro Flashcards

Question

Two men, one five years older than the other, were rivals for the same promotion. The older man knew that the younger man's spouse was a very jealous person with a sometimes uncontrollable temper. The older man decided to eliminate the younger man as a competitor for the promotion by prodding the younger man's wife into killing him. One day, at 11:45 a.m., the older man disguised his voice and called the younger man's wife, telling her that her husband had been having an affair with a co-worker for several weeks and that they met every day at noon in the company storage room. The older man knew this was not true, but he hoped this news would send the younger man's wife into a jealous rage. The wife, who worked in an adjoining building, immediately rushed to the company at which her husband worked and waited out of sight in the storage room. Enraged, she brought with her a gun she kept in her desk. At noon the older man asked the younger man to go to the storage room and retrieve some supplies needed in the ofc. When the younger man entered the storage room, his wife, still in a jealous rage, pulled out the gun and shot and killed her husband. The older man was prosecuted for the homicide of the younger manFor which crime should the defendant be found guilty

Answer 1

First-degree murder.

Answer 2

(C) A babysitter is 18 years old. He is bored one afternoon and notices that there is a huge pile of leaves next to his neighbor's house. The babysitter walks over and sets the leaves on fire, because he figures seeing the fire will be exciting. Once they are ignited, however, the babysitter realizes that the process is not nearly as exciting as he had expected, so he leaves. Eventually, the fire from the burning leaves spreads to the house, destroying the family room of the house.

Answer 3

a. Murder.

Answer 4

The correct answer is: No, because the woman did not know about the gun. Discussion of correct answer: A robbery occurs when there is an unlawful taking and carrying away of the personal property of another and the taking is from the victim's person or in their presence and force or intimidation is used. The force or intimidation does not have to be realistic, e.g. an unloaded gun is sufficient to establish the element of force. However, the victim does have to be aware of the force being used or threatened. Here, the woman's fear was the result of factors outside of the exchange between her and the man--she was scared of being in a high crime area. Although the man was armed, he asked for money in a non-threatening way (he explained his situation and said "please") and did not show the woman the gun. Thus, even though she was scared, her fear was not caused by the man in the course of him taking something from her. Since the woman did not surrender the money in response to the use of force or intimidation, no robbery occurred. Test tip: Ask yourself what the defendant's best defense would be, and if it would cancel out or negate the mens rea or actus reus of the crime he is charged with. In this case, he never threatened the woman. He is not guilty, because this defense cancels out the element of robbery that requires that the taking be from the victim's person or in his/her presence and that force or intimidation is used.

Answer 5

The correct answer is: Deny the motion, because the police had probable cause to arrest the man. Discussion of correct answer: An individual has the right to be free of unreasonable searches and seizures under the Fourth Amendment. However, the police may acquire probable cause from any evidence that they observe. Here, based on the totality of the circumstances, the police had probable cause to arrest the man. Note that answer choice (D) is incorrect because it does not account for how the police were at a lawful vantage point when they observed the bag containing the white powder.

Answer 6

The correct answer is: Yes, because the shed was not within the curtilage of a dwelling. Discussion of correct answer: The Fourth Amendment gives a reasonable expectation of privacy to a dwelling, as well as outbuildings within the curtilage of the dwelling, the living space immediately outside the dwelling. However, under the open fields doctrine, areas beyond the curtilage do not receive Fourth Amendment protection. Because the shed was isolated and far away from the dwelling, the police thermal scanning does not violate the Fourth Amendment, so the exclusionary rule does not apply.

Answer 7

The correct answer is: Intentional murder. Discussion of correct answer: Murder is defined as the unlawful killing of a human being with malice aforethought. In situations when a victim is already dying, if the defendant's actions bring about the victim's death more quickly than if the defendant had not acted, the defendant's actions would be an actual cause of the killing. While the autopsy indicated that the husband would not have survived the surgery, the wife is nonetheless guilty of intentional murder for taking an action would ended the husband's life. The fact that the husband had previously stated he feared dying on an operating table does not provide a defense.

Answer 8

(A) The bookstore owner waived her Miranda rights.

Answer 9

The correct answer is: Yes, because the officer's search of the car violated his Fourth Amendment protections. Discussion of correct answer: While an officer may conduct a warrantless search of an automobile incident to a lawful arrest, this may only be done when it is reasonable to believe the defendant might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. Here, the driver was handcuffed and in the back of the police car at the time of the arrest, and his arrest for child support was completely unrelated to the officer's search. As a test tip, it is helpful to think of policy considerations when deciding if a probable cause exception to the warrant requirement should apply. The purpose of the police being able to conduct a wingspan search incident to a lawful arrest is to promote the safety of the policeman. Once the defendant is handcuffed, the policeman is no longer in danger and a wingspan search is no longer needed or lawful.

Answer 10

(A) Granted, because the marijuana was the fruit of an illegal search.

Answer 11

The correct answer is: A defendant was at a friend's party and had too much to drink when she decided to show off a new "magic trick" she had been working on. Her trick involved setting the pages of a book on fire, but, due to her inebriation, she performed the trick incorrectly and set a fire causing significant damage to the friend's basement. She is charged with arson. Discussion of correct answer: Voluntary intoxication may be a valid defense for a specific intent crime if it negates the requisite mental state, but it will not negate recklessness, negligence or strict liability. Arson requires only recklessness, so voluntary intoxication will not be a valid defense to arson. Test tip: Involuntary intoxication is always a good defense. Voluntary intoxication is sometimes a good defense, and sometimes it is not. When the defendant gets so drunk that the intoxication mistakenly causes him to think he had a right to do something and was not doing something illegal when in fact he was, it is a good defense. That belief would negate the specific intent to commit a crime, but would not negate having the malice mens rea (recklessness) for crimes such as arson.

Answer 12

Felony murder.

Answer 13

(C) The defendant was a 15-year-old high school sophomore. He possessed normal intelligence and experience for a youth of his age. One night, he and two friends attended a concert. After the concert, the defendant and his friends went on a spree, assaulting and robbing victims in the park. The next day, the defendant was arrested. After being subjected to persistent questioning for two hours, the defendant was first given his Miranda warnings. The defendant then waived his Miranda rights and offered a confession. At trial, the defendant claims he did not make a knowing and intelligent waiver.

Answer 14

Voluntary manslaughter.

Answer 15

The correct answer is: Yes, because she was not aware that the freshman was actually a police officer. Discussion of correct answer: An individual may use reasonable, non-deadly force to resist a lawful arrest by a police officer, but only where the individual does not know that the other person is a police officer. Here, despite the fact that the teaching assistant was engaged in criminal activity, she was not aware that the freshman was a police officer, and it was reasonable to use non-deadly force to resist what she believed to be an assault.

Answer 16

The correct answer is: The victim, a police officer, insulted a juvenile, the defendant, age 16, by calling him a "dumb little scumbag" without justification. The defendant stabbed and killed the officer. Discussion of correct answer: The verbal insult by the police officer is not sufficient provocation to reduce murder to manslaughter. Moreover, a juvenile, age 16, is capable of possessing the mens rea necessary for murder and may be prosecuted for that crime, though he may be prosecuted in juvenile court.

Answer 17

Involuntary manslaughter, because she did not intend to kill anyone.

Answer 18

The correct answer is: Not guilty, because she did not intend to kill the mother. Discussion of correct answer: Generally, to be guilty of an attempt, the defendant must have the specific intent to commit the target crime. Here, the caterer did not have the specific intent to murder the mother, only to murder the assistant. While this may appear to be a case where the transferred intent doctrine may apply, that doctrine does not apply to attempt crimes. Thus, the caterer will not be guilty of attempted murder of the mother.

Answer 19

The correct answer is: Granted, because the marijuana was the fruit of an illegal search. Discussion of correct answer: A random stop of a vehicle on the highway where the officer has no suspicion of wrongdoing is unconstitutional because it leaves too much discretion to the police officer [Delaware v. Prouse, 440 U.S. 648 (1979)]. And, applying the fruits of the poisonous tree doctrine, no evidence seized as a result of a Fourth Amendment violation may be admitted at trial [Wong Sun v. United States, 371 U.S. 471 (1963)]. Note: The rule suppressing fruits of an illegal search applies not only to objects found, but also to verbal statements obtained because of the original tainted search or as a result of an illegal arrest [Brown v. Illinois, 422 U.S. 590 (1975)].

Answer 20

The correct answer is: Yes, because the homeowner's death was caused by a dependent intervening cause that did not supersede the burglar's act. Discussion of correct answer: The presence of the bear in the house is a dependent intervening cause of the homeowner's death because this occurrence was the result of the burglar's act of breaking the window and leaving it open when he entered the home. The bear would not have been in the home but for the burglar's actions. A dependent intervening cause does not supersede the burglar's act and relieve him from liability unless the result of his act was totally abnormal. Because bear sightings were not uncommon in the neighborhood where the burglary occurred, the bear's presence in the home was not totally abnormal or unforeseeable, and therefore, this dependent intervening cause of the homeowner's death does not supersede the burglar's act to relieve him of responsibility for the homeowner's death. As a test tip, in this case, the only type of murder he could possibly be convicted of would be felony murder. For that crime he would be liable for the death of the homeowner if the cause of the death was foreseeable and linked to something the burglar did during the commission or flight from the burglary. It does not matter that a bear entered the house one hour after the burglary was committed, because the burglar left the window open during his burglary and that made it possible for the bear to enter his home. The bear entering the home was foreseeable because there had been several bear sightings in area for the weeks preceding the burglary.

Answer 21

The correct answer is: The teenager is guilty, because intoxication is not a defense. Discussion of correct answer: The teenager is guilty of homicide and intoxication is not a defense. Criminal homicide is the killing of a human caused by another human. Voluntary intoxication will not negate a defendant's mens rea or intent to kill. Voluntary intoxication is not a defense to general intent crimes. Manslaughter is a general intent crime. Here, the teenager's drunk driving was the proximate cause of the hospice worker's death, thus, the teenager is guilty of homicide and intoxication is not a defense. Test tip: A death caused by drunk driving is always involuntary manslaughter. When the question asks if the defendant is guilty of manslaughter, he/she is guilty if you think he/she is guilty of either involuntary or voluntary manslaughter. The victim's desire to commit suicide is a trick. The defendant is guilty if he killed the person even one second before the victim would have died from other causes.

Answer 22

No, because the pilot intended to instruct his friend, not the father, to break the co-pilot's arm.

Answer 23

(C) Guilty, because he encouraged the doctor to attack the lawyer.

Answer 24

The correct answer is: No crime. Discussion of correct answer: In this question, the facts clearly indicate that the other man was the aggressor. When the husband caught the other man in bed with his wife, the husband did not threaten the other man with bodily harm or injury. It was only after the other man brandished his weapon that the husband acted in self-defense and killed him, thus he has not committed any crime.

Answer 25

The correct answer is: Guilty of murder. Discussion of correct answer: The second hostage intentionally pulled the trigger knowing that the gun was pointed at the first hostage's head. He chose to kill rather than to be killed, and he would therefore be guilty of murder. Note that duress is a defense to everything except murder, because one person's life is not more important than anyone else's.

Answer 26

The correct answer is: Deny the motion, because the police had probable cause to search the entire vehicle. Discussion of correct answer: A search without a warrant is valid if the search is of an automobile that is capable of being moved by its occupants and the police have probable cause to believe that it is carrying contraband, or where other exigent circumstances require an immediate search. Here, the police had probable cause to believe that drugs were being dealt from the sedan, because a few minutes earlier, an undercover police officer had identified two men in a similar car as selling marijuana near the city's largest high school. The police stopped the defendant's car, which fit the description, half a block from the high school. The driver of the car matched the description of one of the men described by the undercover officer. Because the requirements of the automobile warrant exception had been met, the police could search the entire car. Therefore, the cocaine found in the trunk will be admissible.

Answer 27

The correct answer is: Yes, because the cook's actions were an actual cause of the waiter's death. Discussion of correct answer: The cook is liable for the waiter's death in a number of ways. First, he is part of a hub-and-spoke conspiracy. Even though he did not know the roommate, the cook is liable for those who are involved in a whole conspiracy and any foreseeable outcomes. A death that results from an attack with a deadly weapon clearly qualifies as a foreseeable outcome of the acts set in motion by the cook. The cook was also involved in an intent-to-cause-serious-bodily-injury homicide. He is an accomplice to that offense by providing payment for the act. When an intent to cause serious bodily injury results in death, the actors are liable for the death.

Answer 28

(B) The court should grant the motion, because based on the "totality of the circumstances," the lineup was impermissibly suggestive.

Answer 29

(B) He is not guilty, because the student was killed in a manner unforeseen by the friend.

Answer 30

The correct answer is: No, because the knock-and-announce rule does not always bar the admission of exclusion of evidence obtained in violation of the rule. Discussion of correct answer: In executing search warrants, police must generally knock and announce their presence to the inhabitants of the place to be searched before entering forcibly. The main exception to this rule is the presence of exigent circumstances, especially those in which the police could be harmed or evidence could be lost if the police were to knock and announce their presence. In this case, there was no evidence of exigent circumstances, and the police violated the Fourth Amendment by failing to knock and announce. However, unlike most violations of the Fourth Amendment, the knock-and-announce rule does not automatically trigger the exclusionary rule, but requires instead a broader inquiry that takes into account the social costs of exclusion of the evidence. This answer is therefore correct.

Answer 31

The correct answer is: The brother is guilty of homicide because he committed a felony murder. Discussion of correct answer: Felony murder is a killing that is proximately caused during the commission of an inherently dangerous felony. There is vicarious liability for felony murder. All felons are liable for the foreseeable homicides that occur during the commission of a crime. Armed robbery is a felony. Although the brother did not commit the killing, he is vicariously liable because the resulting death was foreseeable. The person was injured while the brother and sister were fleeing the crime. The medical complications that arose as a result of the car accident were foreseeable. Test Tip When an innocent party dies because of something that is related to an action the defendant took during a burglary, arson, robbery, rape or kidnapping (BAARK), you must always do a felony murder analyses to see if one of the few exceptions that relieve the defendant of guilty will apply.

Answer 32

The correct answer is: Yes, because the prosecutor can present the same case to the grand jury for indictment a second time. Discussion of correct answer: The Double Jeopardy Clause is not applicable to this fact pattern. Double jeopardy does not attach when a grand jury fails to indict a defendant or when a grand jury hands down a no bill or no true bill. In such a situation, as is the case here, the defendant may be again indicted for the same offense. Also, given that the prosecutor truly believes that the surgeon has committed an aggravated battery, that prosecutor may go forward on the most correct charge.

Answer 33

The correct answer is: Intent-to-inflict-serious-bodily-injury murder. Discussion of correct answer: There are four types of murder: (1) intentional killing with premeditation or deliberation; (2) intent to inflict serious bodily injury; (3) felony-murder; and (4) depraved-heart (or reckless killing) murder. The defendant intended to inflict serious bodily injury when he deliberately shot the co-worker in the arm. Therefore this answer choice is correct.

Answer 34

(C) No, because the knock-and-announce rule does not always bar the admission of exclusion of evidence obtained in violation of the rule.

Answer 35

Denied, because the exclusionary rule has not been extended to grand jury hearings.

Answer 36

The correct answer is: The sculptor conducted work at the studio, but neither she nor anyone else lived there. Discussion of correct answer: At common law, arson consisted of the malicious burning of the dwelling of another. While a majority of states have expanded the common law requirement of a dwelling to include any type of structure, under common law, the man would not be guilty of arson because no one lived in the art studio, and thus it was not a dwelling.

Answer 37

The correct answer is: The man should be convicted, because his actions showed a depraved indifference to the value of human life. Discussion of correct answer: The act of introducing a poison into the mother's medication does show a reckless indifference to the value of her life. While the facts do make it clear that the mother would have died very soon anyway, the son's actions hastened that death and were done in a way that demonstrated an indifference to whatever life his mother still had left. Because these actions will meet the standard for malice, he will be convicted of her murder.

Answer 38

The correct answer is: Yes, because the facts did not show the evidence was likely to disappear before a warrant was obtained. Discussion of correct answer: In certain emergency situations where evidence may be lost or destroyed before a warrant can be obtained, a warrantless search and seizure is permitted [Illinois v. McArthur, 531 U.S. 326 (2001); Schmerber v. California, 384 U.S. 757 (1966)]. This is known as exigent circumstances. Importantly, the police may conduct a warrantless search and seizure of evidence in or on a suspect's body provided that: (1) there is probable cause to believe that the nature of the evidence renders it easily destroyed or likely to disappear before a warrant can be obtained; and (2) the procedure for seizing the evidence is reasonable. While blood-alcohol level is a classic example where exigent circumstances usually apply, the problem here is that the officer stated that he could have quickly obtained a search warrant but chose not to do so. There was no indication the evidence was likely to disappear before a warrant could be obtained. Such a situation fails the first part of the test for exigent circumstances [Missouri v. McNeely, 569 U.S. 141 (2013)].

Answer 39

The correct answer is: Involuntary manslaughter. Discussion of correct answer: Involuntary manslaughter, sometimes referred to as "misdemeanor manslaughter," is an unintentional killing resulting without malice aforethought caused either by gross or criminal negligence (higher than that required for tort liability) or during the commission or attempted commission of an unlawful act. In this case, the unintentional killing of the minivan driver occurred during the defendant's unlawfully driving in the breakdown lane. Additionally, the dangerous operation of a motor vehicle is often considered criminal negligence. As such, through either the misdemeanor-manslaughter rule or because the minivan driver's act constituted criminal negligence, the most serious crime for which the defendant could be convicted would be involuntary manslaughter. Therefore, this answer is correct.

Answer 40

The correct answer is: Murder. Discussion of correct answer: At common law, murder is the unlawful killing of another human being with malice aforethought. Malice is found where there was intent to kill, intent to inflict serious bodily harm, reckless indifference to human life, or a death caused during the commission of a dangerous felony. Although the defendant may have intended only to cause a slight wound, his actions did, in fact, cause the death of another human being. Such a killing is murder unless justified, excused, or mitigated. The fact that the defendant shot the "wrong" basketball player would not change the outcome, because he was aware (or should have been aware) that the shooting created a serious risk of death or grave bodily harm. Therefore, the malice is present, and the defendant can be convicted of murder, since there is no mitigation, justification, or excuse.

Answer 41

The correct answer is: Yes, because there was neither probable cause nor a search warrant in support of the search. Discussion of correct answer: The Fourth Amendment generally protects only against governmental conduct and not against searches by private persons--it does not prevent the introduction of evidence obtained by illegal searches done by private citizens [Burdeau v. McDowell, 256 U.S. 465 (1921)]. However, governmental "agents" include citizens acting under police direction. Here, the school officials were acting on behalf of the police. They would, therefore, be held to the same standard. Without probable cause and a search warrant (or warrant exception), the evidence will be considered illegally seized and will be inadmissible against the student. Here, there was neither probable cause (the only fact in support of the search was that the student was "gang associated") nor a warrant or applicable exception.

Answer 42

The correct answer is: Murder, because the man's actions were malicious. Discussion of correct answer: Depraved-heart murder occurs when a defendant's conduct creates an unjustifiable, very high degree of risk of death or serious bodily injury to another, even though unaccompanied by any intent to kill or to do serious bodily injury, and such conduct actually causes the death of another. Because the man had trained his guard dogs to attack at night and then opened the gate to let them run loose, he will be criminally responsible for the death of the bicyclist. This is so especially in light of the fact that he was aware that these dogs had previously attacked postman postal worker just two weeks prior to this incident.

Answer 43

The property owner’s actions that night did not constitute criminal negligence.

Answer 44

The correct answer is: Yes, because the other grandchildren used the second bedroom. Discussion of correct answer: A person may assert Fourth Amendment rights only when he or she had a reasonable expectation of privacy in the premises searched. While an overnight guest in another's home has standing, that privacy interest only extends to those areas where the guest can reasonably expect privacy. If a person with either actual or apparent authority gives consent to search, a search within the scope of that consent may be conducted without a warrant. Here, while the woman slept in the first bedroom in the apartment, it was clear that her grandmother owned the apartment, did not intend to give her granddaughter unfettered access to it, and intended the second bedroom to be shared by her other grandchildren. As such, the woman had no legitimate expectation of privacy in the second bedroom where the gun was found. Consequently, the police could rely on the grandmother's consent to search the entire apartment when searching the second bedroom.

Answer 45

The correct answer is: Involuntary manslaughter. Discussion of correct answer: As a general rule, whenever an intentional battery or assault results in an unintended death, the defendant is guilty of involuntary manslaughter. LaFave notes that a criminal assault, like a criminal battery, is an unlawful act malum in se. Therefore, if the defendant approaches close to another person intending to strike him but not to kill him, and the latter, who, unknown to the defendant, possesses a weak heart, has a heart seizure and dies as a result of fright produced by the threatened attack, the defendant is guilty of manslaughter, though he never touched the victim. See Regina v. Dugal [4 Que. L.R. 350 (Q.B. 1878)], referred to by LaFave in Criminal Law, pg. 601.

Answer 46

a. The man should be convicted, because his actions showed a depraved indifference to the value of human life.

Answer 47

(B) Felony murder.

Answer 48

The correct answer is: Embezzlement. Discussion of correct answer: Embezzlement is the fraudulent conversion or misappropriation of the property of another by one who is already in lawful possession. Here, the coach had lawful possession of the trophy but only for purposes of displaying it at the high school for a year. The owner retained ownership of the trophy despite the coach's possession. When the coach sent the trophy to the wealthy sports enthusiast, he made an unlawful conversion seriously interfering with the owner's rights. It is irrelevant that the coach was never paid for the trophy.

Answer 49

(A) No, because the citizen was free to leave and volunteered to give the statement.

Answer 50

The correct answer is: No crime. Discussion of correct answer: As in tort situations of nonfeasance, people who fail to prevent injury or death are generally not criminally liable for the victim's condition unless they have a duty to act. Here, the woman had no duty to warn or help the man, so she is not guilty of homicide. As a test tip, here, you may think she is a bad person, but she has no duty to help, as she did not cause his peril, thus is not guilty of any crime.

Answer 51

(C) Involuntary manslaughter.

Answer 52

The correct answer is: Felony murder. Discussion of correct answer: Felony murder is an intentional or accidental killing proximately caused during the commission or attempted commission of a serious or inherently dangerous felony, including burglary, arson, robbery, rape, and kidnapping (known through the mnemonic "BARRK"). The resulting death must be a foreseeable consequence of the defendant's actions. Courts have generally been very liberal in applying the foreseeability requirement, and for purposes of felony murder most deaths are considered foreseeable. At modern law, the crime of burglary consists of the breaking and entering of the structure of another with the intent to commit a felony or theft offense therein. Here, as the teenagers jumped the fence of the homeowner's property and attempted to jimmy the window open with the intent to commit larceny therein, they committed attempted burglary. Because it is foreseeable that a burglary victim may chase after the burglars, it is likely that the homeowner's death would be considered a foreseeable outcome of the teenagers' act. As such, both teenagers will likely be found guilty of felony murder.

Answer 53

The correct answer is: Murder, because the husband had enough time to cool off after finding his wife in bed with his best friend before committing the homicide. Discussion of correct answer: While finding his wife in bed with his best friend constituted adequate provocation to reduce the husband's criminal liability from murder to voluntary manslaughter, because the husband waited one week before killing his best friend, he was no longer in the heat of passion at the time he committed the homicide, and therefore, the homicide cannot be mitigated to voluntary manslaughter and the husband is criminally liable for the murder of his best friend.

Answer 54

The correct answer is: Murder. Discussion of correct answer: While the defendant only intended to frighten the patron (which would be an assault) and did not intend to kill him or to inflict serious bodily harm, there is malice, because he was aware that the knife could cut the patron, who was a hemophiliac. As such, the defendant could be convicted of murder.

Answer 55

The correct answer is: Yes, because a customer has a reasonable expectation of privacy while using a department store fitting room. Discussion of correct answer: The Fourth Amendment prohibits unreasonable searches and seizures by the government without probable cause in places where an individual would have a reasonable expectation of privacy. The police detective did not have the right to look into the dressing room as the defendant was changing solely on the basis that there had been an increase in shoplifting at the store. The fact that the store invited the police to look in the dressing room does not excuse the police of the requirements of the Fourth Amendment.

Answer 56

The correct answer is: Yes, because the items were the fruit of an illegal search. Discussion of correct answer: Although consent is an exception to the warrant requirement, consent is not given when a police officer enters a residence by fraud, i.e., hiding his or her identity as an officer. Here, the officer entered the tenant's residence by fraud. Although she later obtained a warrant, this was based on an illegal search, making the seizure the fruit of the poisonous tree and therefore inadmissible. As a test tip, evidence will be suppressed when it is the result of police misconduct. In this case, it is unfair for the police to gain consent to enter an apartment by lying to the occupant.

Answer 57

The correct answer is: The manager did not fear that the chandelier would fall on him. Discussion of correct answer: Robbery consists of all the elements of larceny, plus two additional elements: (1) the taking must be from the person or in the presence of the person; and (2) the taking must be accomplished by force or violence or by intimidation of the threat of violence. If the robbery is by threat of violence, the victim must be in actual fear at the time of the taking. Here, the manager indicated he was not in fear of the usher using ESP to hurt him. Thus, while the usher may well be guilty of larceny, he would not be guilty of robbery.

Answer 58

The correct answer is: Embezzlement. Discussion of correct answer: Embezzlement is the fraudulent conversion of property by one in rightful possession of the property. Under these circumstances, the neighbor would be guilty of embezzlement because the violinist entrusted the dog to the neighbor and then the neighbor caused the violinist to be permanently deprived of the dog as a result of his sale to the breeder.

Answer 59

Neither the man nor the friend should be convicted.

Answer 60

Neither attempted murder of his friend, nor attempted murder of his friend's wife.

Answer 61

(D) Overruled, because the defendant's statement was made prior to a Miranda warning and he was not being interrogated when he made the statement.

Answer 62

The correct answer is: No, because the search was incident to a lawful arrest. Discussion of correct answer: Where police make a lawful arrest, the police may search the defendant's person incident to the arrest to protect the safety of the officers and retrieve any evidence or contraband.

Answer 63

(A) Murder.

Answer 64

(C) The defendant intended to kill himself, but the bullet grazed his head and struck and killed the victim.

Answer 65

(D) The mobster's Sixth Amendment right to counsel.

Answer 66

Guilty, because he met the modern requirements for burglary.

Answer 67

The correct answer is: Murder of his wife and voluntary manslaughter of the other man. Discussion of correct answer: The husband killed the other man while in the heat of passion. There was adequate provocation, which will reduce this intentional killing from murder to manslaughter. However, the man did not initially kill his wife while under this provocation. Instead, he went to a bar, had several drinks, and then returned home to kill his wife. A reasonable person would have cooled off in this period. Therefore, the murder of the wife will not be reduced to manslaughter.

Answer 68

The correct answer is: Yes, because the officer had reasonable suspicion. Discussion of correct answer: The Supreme Court held in United States v. Knights [534 U.S. 112 (2001)] that, where it is a condition of a defendant's parole that he consent to unwarranted searches without probable cause, a search is proper when there is reasonable suspicion to conduct a search. Here, the defendant did have such a condition of parole, and the officer had reasonable suspicion to conduct the search based on witnessing the delivery by the wife. As a test tip, a search by a parole officer is almost always valid in an MBE question because the parole officer will only need to have reasonable suspicion, rather than probable cause to conduct a search.

Answer 69

(D) He will be found not guilty of both larceny and conspiracy.

Answer 70

Guilty, because he intended to burn down the house.

Answer 71

(D) Deny the motion.

Answer 72

The correct answer is: Commission of an act highly dangerous to life, without an intent to kill but with disregard for the consequences. Discussion of correct answer: Extremely reckless conduct, which creates what a reasonable person should recognize as an unjustifiably high degree of risk of death or serious bodily injury to another, constitutes depraved-heart murder when that conduct causes the death of another, even though there was no intent to kill or do serious bodily injury.

Answer 73

The correct answer is: Yes, because the superintendent's death was a foreseeable result of the arson. Discussion of correct answer: Although the mechanic took steps to avoid injuring the superintendent, the mechanic is guilty of felony murder because he committed the felony of arson and this resulted in the death of the superintendent in the building. While the mechanic had intended for the superintendent to be away from the building, it was nonetheless foreseeable that a death would occur as a result of the arson.

Answer 74

The correct answer is: Burglary and murder. Discussion of correct answer: The defendant is guilty of burglary because he broke into the apartment intending to commit a felony by stealing back his records. Although they belonged to him, the landlord had legal possession of them. The defendant is also guilty of murder, because the husband died during the commission of the defendant's felony. Test tip: While it is true that you are not guilty of burglary when you break into someone's home to reclaim your property, an exception to that rule is when you are taking something back when the other person had legal possession of it. Then you would be committing a theft because you are interfering with the other person's valid right of possession. In this case, since the tenant loaned the records to the landlord for the specific time period of a couple months, the tenant was not permitted to reclaim his property before then.

Answer 75

The correct answer is: By returning to his apartment, he had reached a place of temporary safety. Discussion of correct answer: A requirement for a felony murder charge is that the resulting death must occur during the commission or perpetration of the felony. The felony is deemed to have terminated when the felon has reached a place of temporary safety. If the killing occurs after this point, the defendant can no longer be found guilty of felony murder. Here, when the stylist reached his apartment, he was in a place of temporary safety, so he cannot be found guilty for the death of the landlord, which occurred hours later.

Answer 76

(C) Involuntary manslaughter.

Answer 77

The correct answer is: The defendant, a mechanic, offers to examine the hot rod for free. The neighbor agrees. The defendant tells the neighbor that the motor is shot and will be very expensive to replace, which is a lie. The defendant offers to buy the hot rod for less than it is worth, and the neighbor agrees, signing over title in exchange for the defendant's cash offer. Discussion of correct answer: A defendant is guilty of false pretenses where he makes a false representation of fact causing the victim to pass title to him. Even though the defendant paid money for the car, he is nonetheless guilty of false pretenses as he made a fraudulent statement in order to pay less than the car is worth and receive title.

Answer 78

The correct answer is: Both the hitman and the friend will be found guilty. Discussion of correct answer: When there are multiple causes or other parties responsible for the criminal result, courts will still find a defendant responsible if the defendant's act was a substantial factor causing the criminal fact. Although neither the hitman or the friend alone would have caused the death of the man, both of them shot the man, and the shootings were a substantial factor in the man's death, and they will both be found guilty. As a test tip: when a defendant satisfies the mens rea and actus reus elements of specific intent murder at the exact same moment, he will be guilty of that crime. In this case, both the hitman and the friend had the specific intent to kill the man. Both of them shot the man at different times and both of their actions were a substantial factor that caused the man's death. Therefore, both are guilty of murder.

Answer 79

d. Commission of an act highly dangerous to life, without an intent to kill but with disregard for the consequences.

Answer 80

The correct answer is: That the trial did not occur within 70 days of the indictment. Discussion of correct answer: The right to a speedy trial is a right which is guaranteed by the Sixth Amendment in both the federal and state courts. There are a few distinctions between cases which are heard in the state court and those which are heard in the federal courts. Here, the facts indicate that it was determined that this case was not suited for federal prosecution. Therefore, any rules which apply specifically to the federal courts would not be applicable here. The Speedy Trial Act of 1974 requires that a prosecutor seek a federal indictment within thirty days of the arrest of a defendant and that the trial be held within seventy days of that indictment. If this was a federal case and this type of defense motion was made, the judge would have to determine whether or not the requirements of the Speedy Trial Act were satisfied. However, because this case is not being handled federally, the requirement that the trial begin within seventy days of indictment is irrelevant to the issue of whether the defendant's right to a speedy trial was violated.

Answer 81

The correct answer is: Provocation is only adequate if the criminal defendant was actually provoked and if it would have caused a reasonable person to lose self-control. Discussion of correct answer: An intentional killing of another done with adequate provocation will constitute a voluntary manslaughter. A criminal defendant who was not actually provoked--and so didn't act in a heat of passion--would not be able to successfully argue adequate provocation even if a reasonable person would have been provoked in the circumstances. Similarly, a person was actually provoked will not be able to successfully argue adequate provocation unless a reasonable person would have been provoked in the circumstances.

Answer 82

The correct answer is: Second-degree murder. Discussion of correct answer: Because the defendant did not have any intent to kill the attorney, the issue becomes one of malice. Malice can be express or implied. Implied malice is measured by the circumstances surrounding the defendant's actions. Here, one could argue that a person lacking sufficient medical training could be malicious in their use of a narcotic. Moreover, while there was no burglary here because this was not a dwelling house, there is a robbery, as the defendant used the narcotic to make the attorney fall unconscious in order to take something from him. The use of fear, force, or intimidation is needed for robbery, and the use of a narcotic would be sufficient to satisfy the force element required. Therefore, the defendant would be guilty of felony murder, which in this jurisdiction would fall within the definition of second-degree murder.

Answer 83

The correct answer is: No, because she believed that the fur coat belonged to her. Discussion of correct answer: Where a defendant, at the time of the taking, has a good faith belief that he is entitled to possession, there is no intent to permanently deprive, even if that belief is both incorrect and unreasonable. Thus, while it may well have been unreasonable for the secretary to believe that the fur coat belonged to her, she did have such a belief at the time that she took it and thus did not have the requisite intent for larceny.

Answer 84

The correct answer is: A state statute providing that the failure to have a current valid inspection sticker on a vehicle is a misdemeanor. Discussion of correct answer: Four categories of crime are likely to be strict liability offenses: regulatory offenses, public welfare offenses, morality crimes, and selling liquor to a minor. A requirement that a vehicle have a valid inspection sticker is a public welfare statute. Two major factors which indicate that a defined crime is a public welfare offense (and, therefore, treated as imposing strict liability) are: (1) that the penalty is not severe; and (2) that the harm to the public from the prohibited behavior is serious. The crime described in this choice--operating a vehicle on public roads without a valid inspection sticker--is only a misdemeanor, and the harm to the public that could result from violation is very serious. It is most likely that a violator would be subject to strict liability--that is, liable without fault or a showing of bad intent.

Answer 85

Not guilty, because the woman could not commit arson by performing the requested act.

Answer 86

The correct answer is: Grant the motion, because the search was conducted without probable cause or a warrant. Discussion of correct answer: The Fourth Amendment applies only to government, not private, conduct. However, when a private party acts at the direction of a government agent, any search conducted and evidence seized will be subject to Fourth Amendment scrutiny. The police asked the principal to call the teenager out of class and to then search his backpack. There was no warrant or probable cause for this action. Therefore, the motion to suppress the jewelry as evidence should be granted.

Answer 87

(B) Motion denied, because the marshal was in hot pursuit of the suspect and the scales, bags, and marijuana were on the kitchen table.

Answer 88

The correct answer is: Just prior to killing his friend, the man found his friend engaged in sexual activity with his wife. Discussion of correct answer: Voluntary manslaughter is an intentional killing mitigated by adequate provocation or other circumstances negating malice aforethought. Courts have commonly found that a defendant was adequately provoked where he found his spouse engaged in sexual conduct with another person. Thus, here there is a good chance that a court would find that the man was adequately provoked by his friend's action such that the charge should be lessened to voluntary manslaughter.

Answer 89

(A) The defendant did not intend to kill the victim.

Answer 90

(D) No, because the tennis instructor's attorney was not present.

Answer 91

The correct answer is: The father is not guilty of any crime. Discussion of correct answer: The father did not have a legal, enforceable duty to warn the others about the bomb. As such, he committed no crime.

Answer 92

Guilty, even if the man did not cause a spark to begin burning the desk.

Answer 93

(A) Not guilty, because he intended to return the locket within one week.

Answer 94

The friend is guilty of conspiracy to commit kidnapping.

Answer 95

The correct answer is: No, because the officers had probable cause to search the briefcase. Discussion of correct answer: The officers established probable cause when they witnessed the woman leave a known narcotics lab with the type of briefcase known to transport narcotics. Although they did not have probable cause to search the entire van, the U.S. Supreme Court has held that where officers have probable cause to search a container within a vehicle, they may do so even if they lack probable cause to search the entire vehicle. As a test tip, in a Criminal Procedure question you should often ask, "Do we want all police officers to act this way?" If the answer is no then the police will lose and any evidence gained by this action should be suppressed. In this case, we DO think all police officers have probable cause to stop and search a woman they saw leaving a known drug lab with a briefcase that was similar to other briefcases they had encountered which contained secret compartments to hide the narcotics.

Answer 96

The correct answer is: Both the wife and the bookie. Discussion of correct answer: Both the wife and the bookie are guilty of a homicide crime. The wife is guilty, despite the general rule that there is no affirmative duty to aid an individual in distress unless you are the cause of the distress. Although it was merely the wife's inaction (refusing to summon medical assistance) which was a "but for" cause of the man's death, she is nonetheless guilty of a homicide crime because the husband-wife relationship imposes on her a duty to aid her husband. A breach of that duty will result in imposition of criminal homicide liability if the intentional failure to summon aid causes death. The man's gambling does not provide an excuse. The wife's crime would probably be involuntary manslaughter based upon willful, wanton conduct in refusing to summon aid. The bookie also is guilty of a homicide crime, probably murder, since he shot the man with the apparent intent to do at least great bodily harm, and the intervening conduct of the wife did not break the chain of causation.

Answer 97

(B) No, because he did not burn the dwelling house of another.

Answer 98

(A) Guilty, because they had an agreement to commit insurance fraud.

Answer 99

No, because he renounced his participation in the burglary before the killing.

Answer 100

The correct answer is: Yes, because the email was seized pursuant to an unlawful search. Discussion of correct answer: The email is the "fruit" of the "poisonous tree." Based on these facts, the police had neither a reasonable suspicion to conduct a pat down pursuant to a Terry stop nor probable cause to conduct a warrantless search of the girlfriend's person. The seizure of the email was the product of an unlawful search which tainted the seizure.

Answer 101

(D) No crime.

Answer 102

(D) No crime.

Answer 103

The correct answer is: Yes, but only as to the introduction of the printing presses. Discussion of correct answer: The police may accompany a defendant into his home following a lawful arrest, so that the defendant can change his clothes or obtain identification or other personal effects [Washington v. Chrisman, 455 U.S. 1 (1982)]. To protect the safety of arresting officers, the officers may inspect areas into which the defendant must go to engage in the activity. Here, the officer had the authority to inspect the closet where the defendant was intending to remove his clothing. When the officer observed in plain view boxes of $20 bills, the officer could rely both on plain view and the need to preserve evidence of the crime of counterfeiting (exigent circumstances) to permit the seizure of the bills. However, the second officer had no authority to conduct a protective sweep or warrantless search. A protective sweep is permissible if the police have a "reasonable and articulable suspicion" that accomplices are present and pose a danger to officers at the arrest scene. Here, the agent confirmed with the defendant that no one else was in the house and there were no facts giving rise to any suspicion to the contrary. So the evidence of the printing presses must be suppressed.

Answer 104

The correct answer is: No, because the initial seizure was made by a private individual. Discussion of correct answer: State action is a precondition for finding a constitutional violation under the Fourth Amendment. Here, the competitor is a purely private party and not acting as an agent for the government. If there is no state action, there is no Fourth Amendment violation.

Answer 105

The correct answer is: No, because the officer had reasonable suspicion. Discussion of correct answer: To conduct a Terry stop pat-down-and-frisk, an officer must have reasonable suspicion that a suspect is armed and dangerous. Flight is considered enough for reasonable suspicion, thus the officer's pat-down-and-frisk was justified. As a test tip, running away or flight after seeing a police officer will always give the police officer the reasonable suspicion necessary to conduct a Terry stop and frisk to search for weapons.

Answer 106

The correct answer is: No, because there was no state action. Discussion of correct answer: State action is a precondition for finding a constitutional violation. Here, the owner is a purely private party and not acting as an agent for the government. If there is no state action, there is no Fourth Amendment violation.

Answer 107

The correct answer is: The y-brand and the z-brand stereos. Discussion of correct answer: A search made under authority of a search warrant may extend to the entire area covered by the warrant's description. For example, if the warrant authorizes a search of "premises" at a certain described geographical location, buildings standing on that land may be searched. If the place is identified by a street number, the search may extend to those buildings within the curtilage and the yard within the curtilage. LaFave points out that the permissible intensity of the search within the described premises is determined by the description of the things to be seized. Here, the warrant covered the seizure of a stolen x-brand stereo at the homeowner's address. When the police arrived at the defendant's home, they noticed a y-brand stereo in the living room. The first question is whether the police, under the plain-view doctrine, were permitted to seize the y-brand stereo, which also turned out to be stolen. The plain-view doctrine is legitimate only where it is immediately apparent to the police that they have evidence before them; the plain-view doctrine may not be used to extend a general exploratory search from one object to another. In fact, in Arizona v. Hicks [480 U.S. 321 (1987)], it was held that full probable cause was needed to pick up an item of stereo equipment to ascertain its serial number (which revealed it was stolen). Based on Hicks, the y-brand stereo was unlawfully seized since the police needed to "further inspect" it to determine its stolen status. By the same token, the police did not have authority to continue to search the home after discovering the stolen x-brand stereo (specified in the warrant). When the purpose(s) of the warrant have been carried out, the authority to search is at an end. This answer choice is correct because the defendant's motion to exclude the y-brand and the z-brand stereos will be granted.

Answer 108

The correct answer is: Yes, because the recorded phone message was directed to the registrar. Discussion of correct answer: Solicitation occurs when the defendant advises, commands, counsels, or requests another to commit a crime. The crime is complete when the solicitation is made--the very act of requesting or encouraging another to commit a crime is a particularly insidious form of criminal activity, which tends to insulate the solicitor from apprehension and punishment and makes enforcement of the laws more difficult. Although the issue has not arisen in many published cases where the solicitation does not reach the intended recipient, some courts have held that only attempted solicitation is committed, while others consider such an interrupted message a completed solicitation.

Answer 109

The correct answer is: The defendant will be convicted of voluntary manslaughter, because the defendant's belief that her life was threatened was unreasonable. Discussion of correct answer: This fact pattern presents an example of imperfect self-defense. Imperfect self-defense may mitigate murder to voluntary manslaughter where a defendant was either at fault in starting an altercation, or unreasonably, but honestly, believed that harm was imminent or that deadly force was necessary. In this case, the defendant honestly believed that her sister was going to kill her. However, her belief was unreasonable and thus, her crime will likely be mitigated to voluntary manslaughter.

Answer 110

The correct answer is: Murder, because the defendant's actions were malicious. Discussion of correct answer: All forms of murder require malice, such as intent to inflict serious bodily injury, wanton and willful misconduct, or depraved-heart murder. Here, there is no indication that the defendant intended to kill his neighbor. While his neighbor died as a result of the defendant's purposeful act, the act of throwing a horseshoe at someone could be construed as an attempt to kill, or even as an attempt to inflict serious bodily injury. As such, the defendant could be convicted of murder.

Answer 111

(B) Granted, because the information supplied to the detective concerned an occurrence too remote in time to justify a finding of probable cause at the time of the search.

Answer 112

The correct answer is: Felony murder. Discussion of correct answer: As a general rule, one whose conduct brings about a death in the commission or attempted commission of a felony is guilty of felony murder. In many states, the felony-murder rule is limited in its application to serious felonies that must be dangerous to life. Exam tip: These felonies can be remembered by the mnemonic BARRK--burglary, arson, rape, robbery, and kidnapping. Because the girl's death occurred during the commission of a robbery, the defendant would be guilty of felony murder.

Answer 113

The correct answer is: Involuntary manslaughter. Discussion of correct answer: Involuntary manslaughter consists of two types: (1) criminal negligence manslaughter, which requires conduct creating an unreasonable and high degree of risk of death or serious bodily injury (i.e., more than ordinary tort negligence); and (2) unlawful act manslaughter, where the death-causing conduct occurs during the commission or attempted commission of an unlawful act (generally a malum in se misdemeanor) involving a danger of death or serious bodily injury. Malum in se crimes generally include morality offenses and serious traffic offenses, as well as criminal assault or intentional battery. By exceeding the speed limit, the defendant committed a traffic violation (i.e., a misdemeanor) that resulted in the victim's death. The defendant may be found guilty of involuntary manslaughter based on the fact that his unlawful act directly and proximately caused the victim's death. Therefore, this choice is correct.

Answer 114

(C) The banker consented to the search.

Answer 115

(D) Sustained, because the admission of the nurse's statement to the doctor violated the nurse's Sixth Amendment right to counsel.

Answer 116

(B) Yes, because the drug charges are unrelated to the dog fighting charges.

Answer 117

Premeditated murder.

Answer 118

The correct answer is: The defendant is not guilty of homicide, because he lacked the state of mind required to commit the crime. Discussion of correct answer: Whereas voluntary intoxication may, in limited circumstances, prevent a defendant from forming the specific intent required for certain crimes, involuntary intoxication may be a complete defense to a variety of charges. Involuntary intoxication will excuse what would normally be criminal conduct if it: (1) prevents the defendant from understanding what he or she is doing; (2) causes the defendant to be unable to differentiate between right and wrong; (3) makes the defendant incapable of complying with the law; or (4) otherwise leaves the defendant lacking the culpable state of mind required for a conviction. Here, because the sailor became extremely intoxicated as a result of a substance that someone else put into his drink without his knowledge, his involuntary intoxication will operate as a defense to the homicide charge.

Answer 119

The correct answer is: Yes, because the homeowner's force was reasonably necessary. Discussion of correct answer: Yes, the homeowner's force was reasonably necessary to justify self-defense. A person may use that amount of force in self-defense that is reasonably necessary to prevent imminent bodily harm. Here, the homeowner had a reasonable belief that deadly force was necessary because the burglar had a realistic looking gun and said that he would "shoot". The fact that the gun is a toy would not negate the defense because the homeowner's belief that the toy gun was real was reasonable. As a test tip, in a Criminal Law question, focus on picking the most important fact that helps you decide whether the defendant is guilty or not. Here, it is the victim's threat of using a toy that does look like a real gun, which justifies the use of self-defense.

Answer 120

(C) Denied, because the initial seizure was made by a private individual.

Answer 121

The correct answer is: Yes, because murder is a specific intent crime, and is met because the honey bee farmer hoped that shooting the arrow in the air would kill the dog trainer. Discussion of correct answer: Murder is a specific intent crime. A specific intent crime involves more than the objective fault required by merely doing the proscribed actus reus. One way that a defendant will possess specific intent is if he wants, hopes or wishes that his conduct will bring about a particular result, regardless of the objective likelihood of the result occurring. Here, although it is unlikely that the honey bee farmer's shooting of the arrow would actually hit and kill the dog trainer, the fact that he wanted it proves that he had the requisite specific intent to be charged with murder.

Answer 122

The correct answer is: No, because the man's death was the result of an intervening cause. Discussion of correct answer: While the employee certainly intended to kill the man and had taken numerous steps to effectuate the man's death, he did not actually cause the man's death, as the man died from the falling jet engine, which is an independent intervening cause. In such a case, the employee will not be guilty of murder (although he will be guilty of attempted murder). As a test tip, the test often wants to use your emotions to trick you into picking the wrong answer. Clearly the defendant is a bad person but he can not be guilty of murder if his action did not in any way cause the man's death.

Answer 123

The correct answer is: Voluntary manslaughter. Discussion of correct answer: The wife is guilty of voluntary manslaughter, or a heat of passion killing. Voluntary manslaughter is the intentional killing mitigated by adequate provocation. Adequate provocation requires that a reasonable person would lose self-control. Here, the wife was in a "fit of rage". Seeing your spouse in bed with another person would, most likely, be considered adequate provocation.

Answer 124

(A) First-degree murder.

Answer 125

(D) Not guilty of attempted murder of either his friend or his friend’s wife.

Answer 126

(D) Yes, between the teacher and the principal.

Answer 127

Voluntary manslaughter.

Answer 128

Yes, because he purchased the cable cutter.

Answer 129

The correct answer is: Guilty, because she intended to place the husband in fear of an immediate battery. Discussion of correct answer: A defendant is liable for assault where she either attempts to commit a battery or intends to place a victim in fear of an immediate battery. Here, the woman threatened to push him off the roof, placing him in fear of battery, and thus she is guilty of assault.

Answer 130

(C) No, because the police did not have a valid search warrant for the uncle's house.

Answer 131

(B) No, because it is violative of the defendant's right to counsel.

Answer 132

The correct answer is: The defendant intended to kill himself, but the bullet grazed his head and struck and killed the victim. Discussion of correct answer: According to LaFave, "A is guilty of murder if he is actually the agent of B's death, notwithstanding the fact that he acted at B's request as where A shoots and kills B upon B's insistence that he wants to die now rather than continue to suffer from a serious illness." Criminal Law, p. 650. Suicide is not murder under the statute, since the defendant would be required to have knowingly or willfully caused the death of another human being, not of himself. By attempting suicide, the defendant did not knowingly or willfully cause the death of the victim.

Answer 133

The correct answer is: Involuntary manslaughter. Discussion of correct answer: Involuntary manslaughter is an unintentional killing resulting without malice aforethought caused either by recklessness, criminal negligence, or during the commission or attempted commission of an unlawful act. Here, the woman's death was unintentional, but occurred during the defendant's commission of assault, an unlawful act. Additionally, there is a strong argument that the defendant's actions in staging a fire indicates a reckless disregard of the high likelihood that substantial harm may result from the reactions of the dinner guests. By contrast, depraved-heart murder, which is classified as second-degree murder, requires a conscious disregard of the risk of death or serious bodily injury. Here, the fact that the defendant took numerous precautions to prevent the staged fire from causing additional damage or harm shows that, while the precautions may not have been adequate, the defendant was aware of them and attempted to take them into account. This means the defendant did not consciously disregard the risks of his actions, but rather, failed to take sufficient precautions. As such, the defendant could be convicted of involuntary manslaughter.

Answer 134

The correct answer is: Inadmissible, because the defendant's statement was coerced. Discussion of correct answer: The defendant's statement is inadmissible for a few reasons. The doctor obtained the defendant's statement by threatening to withhold medical treatment, an act which would result in the defendant's almost certain death. A statement obtained by threat of death cannot be considered "voluntary" under Miranda v. Arizona [384 U.S. 436 (1966)]. Furthermore, while the doctor herself was not a law enforcement agent, the defendant's statement was nevertheless obtained at the direction of the police and without the proper Miranda warnings.

Answer 135

False pretenses.

Answer 136

(D) Neither the cocaine nor the marijuana.

Answer 137

The correct answer is: Yes, because the dealer had a reasonable expectation of privacy in the locked box. Discussion of correct answer: For a defendant to assert Fourth Amendment rights against unreasonable search and seizures, he must first establish standing. To establish standing, the defendant must show that he had a legitimate expectation of privacy in the items seized or in the premises searched. Here, the dealer had a reasonable expectation of privacy in the box, which had been locked, was clearly identified as his, and was left at the neighbor's. Thus, a search warrant based on probable cause was needed to seize the box, and none was provided.

Answer 138

(A) Yes, because the search exceeded the scope needed to find out if other persons were present.

Answer 139

The correct answer is: Yes, because there was probable cause to believe the man drove while intoxicated. Discussion of correct answer: Probable cause, which is required at the time of the arrest, is the measure of justification that applies to full-scale intrusions--searches, seizures, and arrests. It is defined as that quantity of facts and circumstances within the police officer's knowledge that would warrant a reasonable person to conclude that the individual in question has committed a crime (for an arrest) or that specific items related to criminal activity can be found at a particular location (for a search). Probable cause is evaluated in terms of what was known at the moment of the government intrusion. A police officer may establish probable cause by considering events leading up to the moment of arrest [Maryland v. Pringle, 540 U.S. 366 (2003)]. Here, in light of the man's admissions that, after consuming alcohol, he operated his vehicle over a distance of eight miles until he reached the parking lot and that he had been asleep 20 minutes, there was probable cause to believe he had been driving while intoxicated. Importantly, there was no evidence of an alcoholic beverage in the vehicle, and he smelled of alcohol and failed several roadside sobriety tests.

Answer 140

b. Granted, because the verdicts are legally inconsistent and should lead to an acquittal of both charges.

Answer 141

The correct answer is: First-degree murder, because he acted with premeditation and deliberation. Discussion of correct answer: A defendant is guilty of first-degree murder if the killing is premeditated and deliberate. In this case, the facts indicate that the gang member decided to kill the victim. He took a loaded gun and went looking for the young man. Accordingly, he acted with premeditation and deliberation, and he is guilty of first-degree murder.

Answer 142

The correct answer is: First-degree murder. Discussion of correct answer: First-degree murder includes intent-to-kill murder committed with premeditation and deliberation, felony murder, and, in some jurisdictions, murder accomplished by lying in wait, poison, or torture. If a murderer engages in any reflection or premeditation prior to the homicide, even if the reflection is cursory and brief, he may be guilty of first-degree murder. Here, although the person killed was not the defendant's intended victim, the defendant's factual mistake as to the identity of the person in the manager's office does not relieve him of responsibility for his purposeful act of killing. Rather, the defendant's intent to kill the manager is transferred to the person killed. Because the defendant acted with premeditation and deliberation, first-degree murder is the crime of which the defendant is guilty.

Answer 143

Not guilty, because the burglar's actions were not a proximate cause of the jeweler's death.

Answer 144

The correct answer is: Burglary, arson, and felony murder. Discussion of correct answer: Clearly, the defendant is guilty of burglary--breaking and entering the dwelling of another at night, with the intent to commit a felony (arson) inside. Although some students may hesitate in thinking that the defendant entered with the intent to commit damage to property (a misdemeanor) rather than arson, the natural and foreseeable result of starting a fire inside the garage is the malicious burning of the building. A death occurring during the commission of an inherently dangerous felony is felony murder. Here, the underlying felony is arson. Therefore, the defendant can be convicted of all three crimes.

Answer 145

The correct answer is: Murder. Discussion of correct answer: Here, the facts do not state what the intent of the defendant was in this situation. He hated his boss, had recently been demoted, and was armed while at work, but the facts are not clear that the defendant actually wanted to kill the boss, as opposed to just wound. However, under the deadly weapons doctrine, an inference of intent to kill is raised through the intentional use of any instrument which, judging from its manner of use, is calculated to produce death or serious bodily injury. Because the defendant hated his boss and fired four shots at him, bad aim notwithstanding, an inference of intent to kill can be drawn here. An argument could also be made for depraved-heart murder or even intent to inflict serious bodily injury, but sufficient facts exist to satisfy inferring an intent to kill.

Answer 146

(D) None of these individuals is guilty of conspiracy.

Answer 147

The correct answer is: Denied, because the exclusionary rule has not been extended to grand jury hearings. Discussion of correct answer: In United States v. Calandra [414 U.S. 338 (1974)], the Court refused to extend the exclusionary rule to grand jury proceedings. A divided Supreme Court (6-3) noted that, "in deciding whether to extend the exclusionary rule to grand jury proceedings, we must weigh the potential injury to the historic role and functions of the grand jury against the potential benefits of the rule as applied in this context. It is evident that this extension of the exclusionary rule would seriously impede the grand jury."

Answer 148

The correct answer is: Yes, because the informant's information was stale. Discussion of correct answer: Under Illinois v. Gates [462 U.S. 213 (1983)], the judicial officer issuing the warrant must determine if there is a "substantial basis" for concluding that the evidence of criminality will be at the particular place described on the warrant application. The informant's observations were made six months prior to the warrant application and the likelihood that the guns are still in the basement is diminished because the information is stale.

Answer 149

(D) Yes, because, at a minimum, the father intended to inflict serious injury upon the coach.

Answer 150

Yes, because he is guilty of involuntary manslaughter.

Answer 151

The correct answer is: Yes, because the father could not consent to the search of the bedroom. Discussion of correct answer: The general rule for consent to shared premises is that any person who has joint control of the shared premises may consent to a valid search, and any evidence obtained may be used against the other occupants. However, the power to consent applies to common areas only and not to private areas where the defendant has exclusive control. In this case, the father had the power to consent to the common areas of the house. He did not have the power to consent to a search of the locked bedroom, over which the suspect had exclusive control. The warrantless search was thus unreasonable under the Fourth Amendment and violated the suspect's Fourth Amendment rights.

Answer 152

(C) No, because what the jogger intended to do inside the homeowner's home was not a crime.

Answer 153

The correct answer is: No, because the woman's intent to steal the silver bracelet must concur in time with the act of carrying away. Discussion of correct answer: At common law, larceny is defined as the taking and carrying away of the tangible personal property of another with the intent to permanently deprive the owner thereof. Larceny, a specific intent crime, requires that the intent to permanently deprive the owner accompany the taking. Thus, since the woman did not intend to steal the silver bracelet at the time it was taken, she cannot be found guilty of larceny. Test Tip: Ask yourself if the defendant had the mens rea and actus reus at the exact same moment in order to be guilty of larceny. In this case, she did not have the specific intent to commit larceny at the time she first received possession of the bracelet because she thought that she was receiving a gift.

Answer 154

(A) The friend had the purpose of providing words of encouragement.

Answer 155

(B) Involuntary manslaughter.

Answer 156

The correct answer is: Involuntary manslaughter. Discussion of correct answer: Involuntary manslaughter is an unintentional killing resulting without malice aforethought caused by criminal negligence or during the commission or attempted commission of an unlawful act. Criminal negligence requires that a defendant's conduct involved a high degree of risk of death or serious injury beyond the standard of ordinary tortious negligence. Here, the neighbor's death occurred during the defendant's commission of the unlawful act of hurling the football at the neighbor's head (i.e., battery). From the facts stated, however, it does not appear that the defendant intended to kill, or even to inflict serious injury upon, his neighbor by throwing the football at him. An unintended death which occurs as a result of a battery that is not an attempt to inflict serious bodily injury is considered involuntary manslaughter.

Answer 157

The correct answer is: A defendant suffered from schizophrenia. He had a delusion that the victim was trying to kill him. Under the mistaken belief that he was acting in self-defense, the defendant stabbed the victim to death. Discussion of correct answer: The M'Naghten test provides that a defendant is entitled to acquittal "if at the time of committing the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act that he was doing, or if he did know it, he did not know what he was doing was wrong." This answer choice presents a scenario where the defendant could claim a valid insanity defense under the M'Naghten rule, because if the facts were as the defendant believed them to be, he would have been acting in self-defense, making his actions not criminal.

Answer 158

The correct answer is: No, because the drug dealer had a reasonable expectation of privacy in the hotel room. Discussion of correct answer: The Fourth Amendment generally requires a warrant before the police may search a person's home. The Supreme Court has held that the Fourth Amendment's warrant requirement applies in a number of areas outside the home, including a rented hotel room, and that a hotel manager lacks authority to consent to the search of a guest's room [Stoner v. California, 376 U.S. 483 (1964)]. None of the other exceptions to the warrant requirement apply here, so the search was unreasonable. The exclusionary rule thus applies to the cocaine, making it inadmissible.

Answer 159

The correct answer is: Granted, because the search exceeded the scope permissible under the circumstances. Discussion of correct answer: Because there was no valid basis for the search--neither an appropriate warrant nor grounds for a warrantless search--the gun should be thrown out. A search warrant must describe with particularity the place to be searched and the items or people to be seized. Here, the search warrant did not list the car in question. Therefore, an exception is required in order for the evidence to be admitted. The most obvious exception is the right of an arresting officer to search both an arrestee and the area within the arrestee's immediate control. In this case, the search was well beyond the scope of such a search incident to arrest, as the chemist had already been placed into the backseat of a police cruiser. As such, the search exceeded the scope permissible under the circumstances, and this answer choice is correct.

Answer 160

(A) The court should grant the motion, because the politician's Sixth Amendment right to counsel was violated by not having an attorney present at the lineup.

Answer 161

The correct answer is: Denied, because Sally has no standing to object to the search. Discussion of correct answer: A commonly tested area on the MBE is that of standing, both in Constitutional Law and in Criminal Procedure. In Rakas v. Illinois [439 U.S. 128 (1978)], a passenger who had no property interest in an automobile was held not to have standing to challenge a search of the vehicle as to items seized from it. This decision is founded on the principle of no reasonable expectation of privacy. To have Fourth Amendment standing, a person must show that his own rights were violated. Standing is proper if a person owns or has a right to possession of the place or thing searched, or if the place searched is the person's home. Since John, not Sally, owned the car, Sally has no standing to object to the search. This answer choice is, therefore, correct. Note further that Rakas held that being "legitimately on the premises" is insufficient grounds to assert standing by itself, without proof of some possessory interest. Also, testimony given by the defendant to assert standing may not be admitted substantively against him at trial [Simmons v. United States, 390 U.S. 377 (1968)].

Answer 162

The correct answer is: Yes, because the employer had a special sensitivity. Discussion of correct answer: To be criminally responsible, the defendant's conduct must be both the actual cause and the proximate cause of the resulting harm. Here, the employee is the actual cause of the harm because the death of the employer would not have occurred without the stabbing. Proximate cause is established by showing that the death of the employer was within the risk created by the employee's conduct. Similar to the eggshell skull rule in torts, a criminal defendant takes a person as he finds them. If the victim has an "eggshell skull," that may speak to whether the defendant intended to cause death or grave injury, but it will have no effect on the issue of causation. Where the degree of harm is exacerbated by a special sensitivity such as hemophilia, the defendant is the proximate cause of the harm regardless of whether he could have foreseen the unique medical condition. It doesn't matter whether the employee knew of the employer's hemophilia; the fact that the employer died as a result of the stabbing combined with this special sensitivity is enough to impose criminal liability.

Answer 163

The correct answer is: Yes, because the defendant was not in the car, and there was no reason to believe that the car contained fruits of the offense. Discussion of correct answer: In Arizona v. Gant [556 U.S. 332 (2009)], the Supreme Court held that in order to justify a warrantless vehicular search incident to arrest conducted after the vehicle's recent occupants have been arrested and secured, the Fourth Amendment requires law enforcement officers to demonstrate an actual and continuing threat to their safety posed by an arrestee or a need to preserve evidence related to the crime of arrest from tampering by the arrestee. Thus, under the Gant decision, police may search a vehicle incident to arrest of an occupant only if: (1) the arrestee is within reaching distance of the passenger compartment at the time of the search (safety); or (2) it is reasonable to believe that the vehicle contains evidence of the offense of arrest (fruits), such as in certain types of possessory offenses (e.g., those involving drugs or weapons) or robbery or larceny. If the police have reason to believe that the vehicle contains fruits of the offense, police may search the passenger compartment of the car for fruits of that offense. However, the police may not conduct such a search on the basis of an outstanding arrest warrant for speeding, for a probation violation, or for failure to appear at a court proceeding, as there are no "fruits" associated with these offenses. In this case, safety was not an issue. And, as the defendant's outstanding arrest warrant was for a probation violation, the police did not have reason to believe that the defendant's vehicle contained evidence of the probation violation (fruits). Therefore, the evidence should be suppressed.

Answer 164

The defendant gets into a fight with a drunk in an alley behind a bar. As the fight escalates, the defendant hits the drunk with a beer bottle, intending to inflict serious bodily harm. The beer bottle breaks and slices the drunk's carotid artery, causing him to bleed to death. The defendant is charged with murder.

Answer 165

The correct answer is: She would be acquitted, because she never intended to burglarize the administrative offices. Discussion of correct answer: The friend's testimony, if believed, establishes that she was a feigned conspirator--one who merely pretends to go along with the illegal objective but actually alerts the authorities to thwart the conspiracy. As such, she lacks the mens rea for a conspirator; she does not have the specific intent to achieve the target offense (burglary). One who only pretends to agree to the unlawful purpose to prevent the commission of the target offense is not guilty of conspiracy.

Answer 166

The correct answer is: The napkins are admissible, because the trader had no privacy rights in them. Discussion of correct answer: A defendant loses any privacy right that may have existed with discarded property, such as commingled garbage. Here, the trader had a privacy right in the napkins when they were in his apartment, but he lost the privacy right when he left the bag in the communal garbage. As a test tip, a defendant does not have any privacy rights in his garbage once it is put in a public area.

Answer 167

(A) The police conducted an automobile search.

Answer 168

No, because the defendant did not make any threat of force.

Answer 169

The correct answer is: The victim died two years after the act that caused his death. Discussion of correct answer: Although the landlord's act of pumping the pesticide into the apartment was the factual cause of the tenant's death, at common law, if the victim died more than one year and one day after the defendant's act, the courts would rule that the defendant's act was not the proximate cause of the killing. Note that most states have eliminated this rule or have extended the period within which the defendant is held legally responsible. However, the question specifies that this jurisdiction follows all of the traditional common law rules, which would include the year-and-a-day rule.

Answer 170

(A) Yes, because the father could not consent to the search of the bedroom.

Answer 171

The correct answer is: Their intent was to play a joke on the cousin. Discussion of correct answer: Conspiracy is an agreement for an unlawful purpose. It requires an agreement and a specific intent to commit the target offense and, in many jurisdictions (by statute), an overt act in furtherance of the conspiracy. If the florist and his sister lacked the specific intent to commit robbery, they could not be guilty of this conspiracy. On these facts, there is support for their argument that they lacked this intent, because their intent was to play a joke on their cousin and return the money taken in the staged robbery. Since they intended to return any money taken in the staged robbery, they lacked the requisite specific intent and are, therefore, not guilty of conspiracy to commit robbery.

Answer 172

(B) Overruled, because statements obtained in violation of a defendant's Miranda rights can be used to impeach a defendant who testifies at trial.

Answer 173

The correct answer is: No, because the teacher was not personally the victim of the police officer's unreasonable conduct. Discussion of correct answer: A criminal defendant must have standing to raise a Fourth Amendment violation as a reason to exclude evidence. The defendant asserting the Fourth Amendment violation must personally be the victim of the police's unreasonable conduct, and a co-conspirator does not automatically have standing to challenge the seizure of illegally obtained evidence from another co-conspirator. Thus, because the evidence was illegally obtained from the student's house, the teacher cannot argued that it should be excluded from the case against him. Test Tip: Check to see who is asserting that the police violated the 4th amendment. Constitutional rights are specific to the individual, and a defendant will not have the standing to assert the constitutional rights of another person. Often when testing this issue, the facts will show some outrageous police behavior, but it does not matter if someone is asserting rights for another.

Answer 174

The correct answer is: Yes, because the search was not a valid consent search. Discussion of correct answer: The person consenting to the search must have authority to consent to the search of the premises; the consent must be voluntary; and the search may not exceed the scope of the consent. Here, the housekeeper is a third party and does not have the authority to consent to the search. She certainly had no authority to consent to the search of the defendant's private bedroom.

Answer 175

The correct answer is: Yes, because an arrest warrant for a named individual cannot be executed in the home of another person without consent or exigent circumstances. Discussion of correct answer: This question requires that one distinguish between an arrest warrant and a search warrant. Absent consent or exigent circumstances, the police generally may not execute a warrant for a named individual in the home of another person without first obtaining a search warrant for that home [Steagald v. United States, 451 U.S. 204 (1981)]. Here, the police executed a warrant for the defendant's arrest in the home of another person, namely the defendant's friend. The friend did not consent to the entry into his home, nor were there exigent circumstances present. The police could have waited to make the arrest. Hence, the arrest was unlawful.

Answer 176

Embezzlement.

Answer 177

The correct answer is: Yes, because there is circumstantial evidence that the defendant and classmate agreed to commit larceny, and all of the elements for larceny were met. Discussion of correct answer: A conspiracy is an agreement between two or more people to commit a crime. The agreement need not be express, but may be proved circumstantially, such as by conduct where the conspirators demonstrate over time that they intended to achieve the same objective and agreed to work together towards that end. Here, even though the defendant and classmate did not verbally make an agreement, their physical conduct indicated a shared goal to steal the box. Although the classmate decided to leave the box when he saw there was nothing inside, his picking it up with the intent to permanently deprive the man of it completed the act of larceny. This made the defendant guilty of larceny. All members of a conspiracy are guilty of the foreseeable criminal acts of the conspiracy as well.

Answer 178

Intent-to-cause-serious-bodily-harm murder.

Answer 179

(C) No, because a defendant is legally entitled to representation by counsel in a misdemeanor case when a jail sentence is actually imposed.

Answer 180

The correct answer is: Involuntary manslaughter. Discussion of correct answer: Although one normally has no legal duty (in the absence of a special relationship) to affirmatively act to protect others, a spouse has a duty to aid the other spouse, at least when the spouse requiring aid is in helpless peril. Thus, the man had a duty to provide health care for his wife, whom he knew was suffering from hemophilia. His failure to warn the health care professionals resulted in his wife's death, and makes him liable for involuntary manslaughter. Involuntary manslaughter can be committed in any one of several ways: 1) criminal negligence, which is present here; 2) the commission of a malum in se act resulting in death; or 3) the intent to inflict slight bodily harm which results in death. Because the man's omission here would be deemed criminally negligent, the resulting death constitutes involuntary manslaughter. Note that in certain cases, a spouse's omission may already result in murder; for example, failure to rescue when that omission means almost-certain death for the victim is equivalent to intent to kill with malice, and classifies the resulting death a murder, not involuntary manslaughter. However, in this case, the man's action (remaining at the hockey game and assuming that medical personnel would find out about his wife's condition) was not something that would have meant almost-certain death for his wife, especially if the game had not gone on for so long or the medical personnel found out. As such, it is criminal negligence resulting in involuntary manslaughter.

Answer 181

The correct answer is: Involuntary manslaughter. Discussion of correct answer: This is the correct answer. Remember the distinction between voluntary and involuntary manslaughter. Voluntary manslaughter involves the intentional killing of another in the heat of passion, brought about by adequate provocation. Provocation is adequate if it would cause a reasonable person would to lose self-control. Except for the mitigation of this objectively reasonable emotional condition, the intentional killing would be murder. On the other hand, involuntary manslaughter is an unintended homicide where there is an unlawful killing in the commission of an unlawful act not amounting to a felony. Here we have a battery (a misdemeanor at common law) that results in an unintended death. The most serious crime that the defendant can be convicted of is involuntary manslaughter.

Answer 182

The correct answer is: Granted, because the information supplied to the detective concerned an occurrence too remote in time to justify a finding of probable cause at the time of the search. Discussion of correct answer: The Fourth Amendment states, in part, "and no warrants shall issue but on probable cause supported by oath or affirmation." Searches conducted pursuant to a warrant must be based on an adequate and reasonable showing of probable cause when a police officer provides information to a neutral and detached magistrate by affidavit or by testimony under oath. However, when an informant uses an affidavit to provide information, the rigid Aguilar-Spinelli test has been used to establish: (1) probable cause for issuing the warrant; as well as (2) reliability of the informant. More recently, a "totality of the circumstances" approach has been adopted to determine whether there is a "fair probability" or "substantial basis" to conclude that contraband will be found at the particular time and place [Illinois v. Gates, 462 U.S. 213 (1983)]. The fact that the informant saw the man sell heroin two months before is critical because it is too remote in time to justify a present finding of probable cause, thus this answer choice is correct.

Answer 183

The correct answer is: Yes, because Defendant's act was both the actual and proximate cause of Victim's death. Discussion of correct answer: The crime of murder requires the defendant's act to be the actual and proximate cause of the criminal result. When there are multiple causes, courts will still find a defendant responsible if the defendant's act was a substantial factor causing the criminal result. In this situation, the stabbing was a substantial factor causing the death. Therefore, the defendant's act could be considered the actual cause of the victim's death. Further, the stabbing was the proximate cause of the death because the resultant harm was identical to that intended by the defendant and there was no superseding intervening cause to break the chain of causation. To be a superseding intervening cause, the cause must not be foreseeable. In this case, the presence of the wrecking ball and the evidence of demolition activity made the death of the victim from injuries sustained when the building collapsed foreseeable.

Answer 184

(D) Conspiracy, larceny of the gun, and larceny of the car.

Answer 185

The correct answer is: Yes, because the defendant's offer to return the bike only on the condition the parishioner repay the church. Discussion of correct answer: The crime of receiving stolen property requires that a defendant receive stolen property known to be stolen with the intent to permanently deprive the owner. A defendant conditionally offering to return the property to the owner may be found to have intended to permanently deprive the owner, even where the defendant is not acting for personal gain. Thus, even though the defendant here is acting to benefit the church with her conditional offer for return, she may nonetheless be found guilty.

Answer 186

Second-degree murder.

Answer 187

The correct answer is: Yes, because of the inevitable discovery rule. Discussion of correct answer: Under the inevitable discovery rule, a court should not exclude the fruits of an unreasonable search when the police would have obtained the evidence eventually without an unreasonable search. Here, the patrolling officer's search was warrantless and unreasonable, but the detectives would have obtained the evidence shortly after the patrolman did anyway. Because the detectives had a valid warrant, the gun is admissible.

Answer 188

The correct answer is: No, because the faked version of the notes is not a document with apparent legal significance. Discussion of correct answer: The crime of forgery requires a false writing with apparent legal significance, which means the writing must have purpose or value beyond the document's own existence, such as a contract, will, negotiable instrument, deed, or mortgage. While creating a fake of a document that is valuable only because of its existence, such as the notes were here, may expose the maker to some other criminal liability, it does not fall within the definition of forgery.

Answer 189

The correct answer is: Murder. Discussion of correct answer: If there is intent to do serious bodily harm, and death results from the act committed, the crime is murder even though the defendant did not intend that the victim should die. The intent to do serious bodily harm constitutes sufficient malice to support a charge of murder. In this case, although the man did not intend to kill the woman, he did intend to commit serious bodily harm. He is liable for any consequences of his intended act.

Answer 190

The correct answer is: Yes, because of the circumstances faced by the officer. Discussion of correct answer: An officer may stop a person if the totality of circumstances shows that reasonable suspicion exists. Reasonable suspicion is a belief based upon articulable information that is more than a mere hunch that the suspect has or is about to engage in illegal or criminal activity. Courts must look to the totality of the circumstances of each case to see whether the police officer has a "particularized and objective basis" for suspecting wrongdoing [United States v. Arvizu, 534 U.S. 266 (2002)]. Here, the totality of the circumstances showed that reasonable suspicion existed. The police officer observed the man swaying back and forth, late at night, in the middle of the street, in a high-crime area. The location and time of day, coupled with the man's suspicious behavior, gave the officer sufficient reason to believe an investigatory stop was warranted. In order to frisk a stopped individual, the police had to articulate reasonable suspicion that the suspect was armed and dangerous [Terry v. Ohio, 392 U.S. 1 (1968)]. After the man's hostile reaction and the officer's observation of a bulge on the side of his leg, the officer was justified in conducting a frisk to protect his safety.

Answer 191

(A) Murder.

Answer 192

(C) Inadmissible, because the boxer's statement was coerced.

Answer 193

The correct answer is: Manslaughter, because the investigator thought that the husband was trying to kill him. Discussion of correct answer: While self-defense is a full defense to murder, the force used in self-defense must be appropriate to the threat. Here, the facts indicate that the investigator did genuinely believe that his life was in danger from the husband. However, the facts also indicate that this belief was unreasonable and that the force used by the investigator to protect himself--shooting the husband with a gun--was unreasonable, given that merely moving out of the car's path would have sufficed to save him from harm. As such, the investigator's unreasonable belief that his life was being threatened by the husband constitutes an imperfect claim of self-defense, which would not operate to completely negate the investigator's liability but would serve to mitigate his murder conviction to manslaughter. As such, this is the best response.

Answer 194

The correct answer is: The defendant did not intend to kill the victim. Discussion of correct answer: Lack of intent to kill would least likely relieve the defendant of liability for felony murder. The common law felony-murder rule provides that one whose conduct brought about a death in the commission of a felony was guilty of murder. For a defendant to be found guilty of felony murder, he need not have the intent to kill the victim. Thus, choice (A) would not be a good defense.

Answer 195

No, because the deceased was a co-felon.

Answer 196

The correct answer is: Yes, because jumping 30 feet off the roof onto an inflatable pad was not a reasonable means of escape. Discussion of correct answer: False imprisonment is the intentional, unlawful confinement of one person by another, but a victim is not "confined" if there is a reasonable means of escape. While there may have been safeguards in place to minimize the safety risk involved with the jump, such safeguards do not make a 30-foot jump a reasonable means of escape where the director had the apparent power to lock or unlock a door to walk back into the building. Therefore, the actor did not have an apparent reasonable means of escape and was unlawfully confined.

Answer 197

The correct answer is: Involuntary manslaughter. Discussion of correct answer: Under the so-called misdemeanor-manslaughter rule, a defendant can be found guilty of involuntary manslaughter where he unintentionally caused a death during the commission of a misdemeanor or a felony that is not inherently dangerous. Here, the man pushed the roommate, which was a battery, but had no intent to kill the roommate, whose fragile brain condition was a factor in his death.

Answer 198

The correct answer is: Deny both motions. Discussion of correct answer: The court should deny both motions to suppress. Under Pennsylvania v. Mims [434 U.S. 106 (1977)], an officer at a routine traffic stop has the right to order the driver to exit the car. Additionally, under Maryland v. Wilson [519 U.S. 408 (1997)], an officer also has the right to order a passenger to exit the vehicle when making a routine traffic stop. As such, answer choices (A), (B), and (C) are incorrect.

Answer 199

(C) The defendant is guilty of both burglary and arson.

Answer 200

Guilty, because factual impossibility is not a defense to the crime of attempt.

Answer 201

(B) Yes, because he was denied assistance of counsel.

Answer 202

The correct answer is: The teacher reasonably believed that his life was in danger when he shot the police officer. Discussion of correct answer: In picking the best answer on any given Multistate problem, always try to identify the issue being tested. Here, for example, is a criminal law question dealing with self-defense. As a general rule, one who is not the aggressor is justified in using a reasonable amount of force against his adversary when he reasonably believes: (1) that he is in immediate danger of unlawful bodily harm from his adversary; and (2) that the use of such force is necessary to avoid this danger. Likewise, deadly force is justified when an individual is threatened with serious bodily injury or death. Note that choice (A) is not the best answer because it does not specifically address the teacher's belief that his life was in danger. Although the police officer had his gun drawn, that fact, standing alone, does not necessarily put the teacher's life in danger. On the contrary, choice (B) is a better answer because it does state that the teacher believed his life to be in danger, which is a necessary element of self-defense.

Answer 203

The correct answer is: Yes, because the search exceeded the scope needed to find out if other persons were present. Discussion of correct answer: If a search of a home is made pursuant to a valid warrant, then the police may make a protective sweep, which is limited to a cursory search of the premises to assure that they do not contain people who might endanger the officers' safety. Officers performing the sweep must actually believe that dangerous people are on the premises, based on specific and articulable facts. Police must have objective evidence that the house contains someone who poses a danger to those present during the arrest of the defendant. The evidence will be suppressed in this instance because the Uzi was found in a box in the closet, and the police exceeded their permitted scope of a protective sweep by looking there.

Answer 204

The correct answer is: No crime. Discussion of correct answer: The woman did cause the death of the child through her actions, but she did not have the requisite mens rea for murder, voluntary manslaughter, or involuntary manslaughter. She did not intend to kill the child and she did not act recklessly or criminally negligently, nor did she commit or attempt to commit an unlawful act. She was acting in a logical and socially reasonable manner given the situation, and as such will not be guilty of any homicide crime. Test tip: Your instinct is to convict the defendant of some crime, since someone died as a result of her actions. However, do not be nervous picking an answer choice that says no crime or none of the above in a situation like this one, if you believe that the defendant acted reasonably, even though it was a tragic accident. When a defendant is reacting to an emergency that was not her fault, usually it is hard to prove that the defendant acted unreasonably.

Answer 205

The correct answer is: Involuntary manslaughter, because she did not intend to kill anyone. Discussion of correct answer: Where there is no intent to kill, in order to constitute murder, a homicide must be either felony murder (which may be first-degree), second-degree murder (intent to seriously injure or wanton and willful misconduct), or involuntary manslaughter (criminal negligence or misdemeanor manslaughter). In this case, the facts clearly indicate that the student had no intent to kill or seriously injure; she sought to make a political point by causing people who ate the affected foods to feel nauseated. Thus, the student could be guilty of felony murder, depraved-heart murder, or involuntary manslaughter. The statute given by the problem lists four felonies which, if a homicide occurs during the commission of them, could give rise to first-degree felony murder. Because the student committed none of these (arson, burglary, rape, or robbery), that basis for first-degree murder is eliminated. In choosing between depraved-heart murder and involuntary manslaughter, one must examine the degree of risk created by the conduct. Acting with a depraved heart is usually and more precisely defined as "wanton and willful misconduct"--conduct which the defendant knows will create a very high risk of death or serious bodily injury. Criminal negligence is usually regarded as equivalent to gross negligence--i.e., creating a high risk of death or injury--and if such conduct results in a homicide, the appropriate label is involuntary manslaughter. Under the circumstances of this question, the student's conduct appears to have created a high rather than a very high risk of injury, and is closer to gross negligence than to wanton and willful misconduct. For that reason, she is guilty of involuntary manslaughter.

Answer 206

Commission of an act highly dangerous to life, without an intent to kill but with disregard for the consequences.

Answer 207

The correct answer is: No, because the deceased was a co-felon. Discussion of correct answer: Felony murder is an intentional or accidental killing proximately caused during the commission or attempted commission of a serious or inherently dangerous felony, such as burglary, arson, robbery, rape, and kidnapping (known by the mnemonic "BARRK"). For a defendant to be guilty of felony murder, the resulting death must be a foreseeable outgrowth of the defendant's actions. Courts have generally applied the foreseeability requirement very liberally, and for purposes of felony murder, most deaths are considered foreseeable. If a death occurs while the defendant is fleeing from the scene of the felony, he may still be guilty of felony murder. However, under the Redline limitation, a felon is not guilty of felony murder where the killing constitutes a justifiable homicide, such as where the police or the victim shoots one of the co-felons. In this case, inasmuch as a policeman shot the sister, his co-felon, the brother will not be criminally liable for his sister's death.

Answer 208

The correct answer is: No, because the police acted in good faith when searching 32 Maple Avenue. Discussion of correct answer: Although the Fourth Amendment normally requires a valid warrant for the police to search a home, one of the exceptions to the warrant requirement is the so-called good-faith doctrine. This doctrine provides that evidence that is unlawfully obtained due to police error (even negligent error) is admissible if the police mistake was due to good faith. In this case, the police thought they were searching the right house, but the typographical error on the warrant led them to search the wrong house in good faith. The proceeds of such a search are therefore admissible.

Answer 209

The sales associate will be found not guilty, because she did not make any false representations.

Answer 210

Solicitation.

Answer 211

(D) Overrule the objection, because the statement was being admitted for impeachment purposes only.

Answer 212

The correct answer is: Yes, because the crime was completed before the defendant's attempt to withdraw. Discussion of correct answer: Solicitation is committed when a defendant, with the intent that another person commit a crime, requests, entices, advises, incites, or otherwise encourages that person to commit a crime. It is no defense that the other person turns out to be a police officer. The crime is complete once the solicitation is complete. Withdrawal is no defense.

Answer 213

The correct answer is: Felony murder. Discussion of correct answer: The pedestrian's death was unintentional, but did occur as a foreseeable result during the commission of the robbery (as the man had yet to reach a place of safety, terminating the felony). It is immaterial if the man's car actually hit the pedestrian or if the truck hit the pedestrian, because the man will still be held criminally responsible for the death.

Answer 214

The correct answer is: One night a defendant decided to set fire to his own home, intending to collect the insurance proceeds. He put together an explosive device and lit the fuse that was supposed to detonate after a 10-minute interval. After lighting the fuse, the defendant left the dwelling and drove to a local bar. Unknown to the defendant, the fuse became disjointed and did not trigger the explosive device. In fact, none of the structure was burned or damaged. When the defendant carried out his plan, he believed that setting fire to one's home constituted arson. However, the jurisdiction still applies the common law rules for arson. The defendant is charged with attempted arson. Discussion of correct answer: Criminal attempt requires two elements, as follows: (1) specific intent to commit the "target offense"; and (2) a "substantial step" in the commission or attempted commission of the crime. However, this question goes a step further by raising the possible defense of impossibility. Legal impossibility is a defense to an attempt crime, whereas factual impossibility is not. Legal impossibility is where the defendant intends to accomplish an act that is not proscribed by law. This is an example of legal impossibility. Even if the defendant had succeeded in burning down his own home, he would not be guilty of common law arson, which requires the burning of the dwelling of another.

Answer 215

The correct answer is: First-degree murder. Discussion of correct answer: First-degree murder includes intent-to-kill murder committed with premeditation and deliberation, felony murder, and in some jurisdictions, murder accomplished by lying in wait, poison, terrorism, or torture. If a murderer does any reflection or premeditation, even if the reflection is cursory and brief, he may be guilty of first-degree murder. An intentional killing may be mitigated to voluntary manslaughter (also known as a heat-of-passion killing) if the killing was mitigated by adequate provocation or other circumstances negating malice aforethought. The time period between the heat of passion and the fatal act must be short enough that a reasonable person would not have had time to cool off. Here, although the defendant was provoked by the victim's harmful acts to the defendant's sister, there was a significant cooling off period between the time the defendant learned of the victim's actions and the time he killed the victim. Moreover, the facts indicate that the murder was premeditated, as the defendant planned to take the victim out for drinks on the pretense of discussing business then drive him home and shoot him. Therefore, it is unlikely that the defendant's act will be mitigated to voluntary manslaughter, and the defendant will most likely be found guilty of first-degree murder.

Answer 216

The correct answer is: No, because a private citizen may not mistakenly use deadly force to stop a fleeing felon. Discussion of correct answer: A private citizen may use the same amount of deadly force as a police officer but only if a dangerous felony was involved and the person against whom he used the force is actually guilty of the crime, but a private citizen-defendant who mistakenly uses deadly force to prevent the escape of a fleeing felon is not justified. Thus, even though the brother might have looked exactly like the fleeing criminal, the bank manager was not justified in shooting him.

Answer 217

(C) Embezzlement

Answer 218

The correct answer is: Deny the motion, because police checkpoints to obtain information about a recent crime do not violate the Fourth Amendment. Discussion of correct answer: A police checkpoint set up to obtain information from motorists about a recent crime does not violate the Fourth Amendment because the intrusion is minimal and the intent is not to find evidence of crime committed by the occupants of the vehicle [Illinois v. Lidster, 540 U.S. 419 (2004)]. Here, the police legally stopped the defendant's car. Once the officer smelled the marijuana, he had probable cause for arresting the defendant. Then, when a custodial arrest is effected, as here, while the defendant is in a car, the entire passenger area is subject to search.

Answer 219

Burglary and larceny.

Answer 220

Not guilty, because the co-worker had no intent to steal.

Answer 221

(C) Intent-to-inflict-serious-bodily-injury murder.

Answer 222

The correct answer is: The defendant is guilty of second-degree murder of the security guard and first-degree murder of the friend. Discussion of correct answer: In this jurisdiction, murder is divided into two degrees for the purpose of imposing a more severe penalty for some murders than for others. First-degree murder includes intent-to-kill murder accompanied by premeditation and deliberation. Murder not falling within the definition of first-degree murder is considered second-degree murder. Here, the defendant's act toward the security guard is best described as felony murder. Even though he did not kill the guard (his friend did), under the agency theory of felony murder, a felon is responsible for the actions of his co-felons. Because the guard was shot by the friend, the defendant will be responsible. That killing was committed during the course of the armed robbery, and therefore, it will be felony murder, which is second-degree murder in this jurisdiction. Additionally, because the man intentionally shot his friend, that will be first-degree murder in this jurisdiction. Premeditation can occur in a moment, and here, the shooting was from behind, evidencing an intent to kill.

Answer 223

The correct answer is: Murder, because the defendant's reckless act resulted in the death of another. Discussion of correct answer: Depraved-heart murder is an unintentional killing resulting from conduct involving a wanton indifference to human life and a conscious disregard of an unreasonable risk of death or serious bodily injury, absent any defense negating the defendant's awareness of the risk. Depraved-heart murder involves extremely negligent conduct (or recklessness) that is of a higher degree than gross or criminal negligence. Using a chemical agent to sicken someone almost certainly constitutes an act of wanton and willful disregard for human life, so the defendant will likely be convicted of murder.

Answer 224

(C) Granted because the TSA agent lacked probable cause to search her bag.

Answer 225

The correct answer is: Larceny. Discussion of correct answer: The crime of larceny requires the trespassory taking and carrying away of the personal property of another with the intent to permanently deprive the owner. The mental state of intent to steal must concur in time with the act of taking and carrying away. In this question, the student decided to take the music book with the concurrent intention to permanently deprive the Resident Advisor of it. Note that the student is not guilty of larceny with regard to the guitar, as it was his own personal property.

Answer 226

The correct answer is: Involuntary manslaughter, because while the defendant was criminally negligent, he did not act with malice. Discussion of correct answer: The man lacked malice, because he was unaware that anyone was upstairs at the time. While it is not reasonable to shoot a gun into a dwelling, occupied or not, the defendant was under the impression that the victim had left the premise. Therefore, while his action was criminally negligent and led to the death of the neighbor, the man lacked malice, and should be convicted of involuntary manslaughter.

Answer 227

The correct answer is: Denied, because the initial seizure was made by a private individual. Discussion of correct answer: The Fourth Amendment generally protects only against governmental conduct, and not against searches by private persons. Searches by private individuals who are not acting as agents of government officials do not implicate the Fourth Amendment. An individual can claim Fourth Amendment protection only when governmental conduct infringes upon society's reasonable expectations of privacy, and further infringes upon the individual's legitimate expectations of privacy. Here, the cocaine was initially seized by the wife, who was not a government agent. She, in turn, gave the cocaine to the police. In all likelihood, since the police received the cocaine from the wife, they would not be required to secure a warrant.

Answer 228

The correct answer is: Murder. Discussion of correct answer: The night watchman is guilty of depraved-heart murder. Firing a bullet into a room that the defendant knows is occupied by several people constitutes the kind of reckless indifference to human life that will make a criminal defendant liable for murder, even though the killing was unintentional. Therefore, this answer is correct.

Answer 229

The correct answer is: The baker had not previously been questioned or apprehended by the police. Discussion of correct answer: The defense of entrapment exists where the criminal act is the product of creative activity originating with law enforcement officials and the defendant is in no way predisposed to commit the crime. A defendant's past criminal record is relevant to proving or disproving predisposition. Here, the baker appears predisposed to selling marijuana. Thus, if the baker's defense was successful, it is most likely because he did not have a criminal record, since the presence or absence of a criminal record bears directly on predisposition.

Answer 230

The correct answer is: Acquitted, because neither the butcher nor the chef agreed to commit an unlawful act. Discussion of correct answer: In order for there to be a conspiracy, there must be "two guilty minds." This means that if only one person intended to commit a crime (because, for example, the others are feigned accomplices or lack the requisite intent), there can be no conspiracy because there was no real agreement for an unlawful purpose. (Some states modernly abrogate this rule by statute, permitting conviction of one person who agrees with another to commit a crime, even if the other does not really agree. Since the facts state that this is a common law jurisdiction, this modern treatment is inapplicable.) The testimony of the butcher and the chef, if believed, absolves them of guilt because of their lack of criminal intent. As such, the baker cannot be convicted of conspiring with himself.

Answer 231

The correct answer is: The police conducted an automobile search. Discussion of correct answer: This question deals with the highly tested area of warrantless searches. A warrantless search and seizure of items from an automobile may be permitted where there is probable cause to believe the vehicle contains contraband (or where the vehicle could be moved before there is time to obtain a warrant). In accordance with the holding in United States v. Ross [456 U.S. 798 (1982)], once probable cause to search exists, the police can search the entire vehicle, including closed containers. Thus, this is the most helpful theory to the admission of the rifle.

Answer 232

The correct answer is: No crime. Discussion of correct answer: The child's death was unintentional and did not occur as a foreseeable result during the commission of the robbery. The death of the child occurred an hour later, and the defendant was not speeding at the time. Her act of suddenly darting in front of the defendant's car was not a foreseeable consequence of his getaway from the robbery. Therefore, the defendant may not be convicted of felony murder. The defendant lacked the requisite mental state for involuntary manslaughter, namely, gross or criminal negligence. He was driving slowly and applied his brakes at the time of the accident. Nor may he be convicted of voluntary manslaughter since the killing was not intentional. Thus, choice (D) is correct; the defendant will be guilty of no crime.

Answer 233

The correct answer is: Yes, because her initial taking of the skateboard was without the owner's authorization and she later decided to keep it. Discussion of correct answer: Under the doctrine of continuing trespass, a person who takes another's property without authorization and intending only to use it temporarily before restoring it unconditionally to its owner may nevertheless be guilty of larceny if she later changes her mind and decides not to return the property at all. As a general rule, the initial taking must be wrongful, i.e. without the owner's authorization. Here, the woman's initial taking of the skateboard, while intended to be temporary, was without the owner's authorization, and she later decided to keep the skateboard permanently, thus she became guilty of larceny.

Answer 234

The correct answer is: Yes, because the daughter did not have authority to allow the police to search a previously locked closet. Discussion of correct answer: Any person who has joint control or use of the premises may consent to a valid search, and any evidence obtained may be used against the other occupants [Frazier v. Cupp, 394 U.S. 731 (1969)]. Such consent applies to common areas, but not to private, reserved areas where the defendant has exclusive control [United States v. Matlock, 415 U.S. 164 (1974)]. In this question, the daughter did not have the apparent authority to allow police to search a locked closet that she had been warned not to open.

Answer 235

The correct answer is: Yes, because the printers and cartridges are not contraband "on their face." Discussion of correct answer: The search warrant only authorized the search of the garage. Unless one of the well-established exceptions to the warrant requirement applied, the search could not be extended beyond the area described in the warrant. Unlike drugs, printers and cartridges are not contraband on their face and, therefore, do not constitute evidence of a crime in plain view.

Answer 236

The correct answer is: Not guilty, because she lacked the necessary mental state. Discussion of correct answer: The teacher has been charged with "knowingly" making a false statement while under oath. If the teacher's current testimony is believed, then she lacked the criminal intent required by the perjury statute. When a defendant lacks the mens rea for the charged offense, it is irrelevant whether the mistake that negates mens rea is one of fact or law, and the mistake need not even be reasonable. Therefore, this is a better answer than the other choices, which improperly limit the kind of mistake that can negate the mens rea.

Answer 237

(B) Yes, because a customer has a reasonable expectation of privacy while using a department store fitting room.

Answer 238

(C) Denied, because the gardener was advised of his Miranda rights before he volunteered his confession.

Answer 239

(D) Guilty, even if the man did not cause a spark to begin burning the desk.

Answer 240

(B) Yes, because the shed was not within the curtilage of a dwelling.

Answer 241

(D) Yes, because handing the ski mask to his wife was an overt act in furtherance of the conspiracy.

Answer 242

The correct answer is: No, because the search of the boyfriend's car was an appropriate search incident to arrest. Discussion of correct answer: Police officers may conduct a search incident to arrest which includes the passenger compartment of a vehicle if it is reasonable to believe that the person arrested might be able to access the vehicle at the time of the search or that the vehicle may contain additional evidence of the offense which caused that person to be arrested. When a police officer issues a traffic citation which does not result in a custodial arrest, the officer may not search the driver or the car for any contraband. However, when a person in a vehicle is arrested, the officer has the authority to search the interior of the vehicle, even when that officer does not fear for his safety or believe that any contraband will be found. That search must be limited to the immediate control and wingspan area of the person arrested. In this case, although the boyfriend was initially detained on the basis of a traffic violation, the student, who was riding in the vehicle, was arrested for illegal possession of a firearm. As such, the police officer had the right to search the interior of the vehicle, and the cocaine discovered during this search is therefore admissible at the boyfriend's criminal trial.

Answer 243

The correct answer is: Suppress the evidence, because there were no exigent circumstances. Discussion of correct answer: This is correct, because there was no reason to believe that the boss had any idea about the sting operation or that the evidence would be moved or destroyed while they obtained an arrest warrant for the boss or a search warrant for his apartment. Without exigent circumstances, the police must obtain a warrant.

Answer 244

(D) The defendant should be found not guilty.

Answer 245

(C) Deny the motion because defendant lacks standing

Answer 246

The correct answer is: Guilty of voluntary manslaughter, because the TV personality unreasonably but in good faith believed that the councilwoman was about to kill her. Discussion of correct answer: Use of deadly force in self-defense is generally appropriate when the victim engages in a deadly attack which is wrongful, and it is necessary to kill the victim in order to save oneself. If the defendant is mistaken (i.e., it only appears that the victim is engaged in a wrongful, deadly attack which can be deflected only by use of deadly force), a resulting homicide is still justified if the defendant's mistaken belief was both held in good faith and reasonable. Here, the facts state that the TV personality actually believed that the councilwoman was engaged in a deadly attack, but the circumstances simply cannot support the conclusion that this mistaken belief was reasonable. Just because the councilwoman was holding a knife and appeared angry would not cause a reasonable person to conclude that she was attacking, especially since the two women were in front of a large crowd and the ribs were on the floor. Add the fact that the two women were acting as guest chefs at the time, and it is reasonable to assume each would be making use of a knife in their cooking. In such an "imperfect self-defense" situation, where the defendant's belief in the necessity of deadly force is honest but unreasonable, the intentional homicide is not justified, but is mitigated from murder to voluntary manslaughter.

Answer 247

The correct answer is: Yes, because the search was unlawful. Discussion of correct answer: There is no exception (as suggested in the other answers) to the warrant requirement for searches at the scene of a crime [Mincey v. Arizona, 437 U.S. 385 (1978)]. At a murder scene, police may conduct a sweep of the scene to discover other bodies or the killer and, under the plain-view doctrine, evidence discovered in that search that the police immediately recognize as incriminating will be admissible. However, in this question, the officer merely saw a spot of blood near the sink drain, which led the officer to open the pipe to the sink, where she found the murder weapon. This search was constitutionally invalid, and under the "fruit of the poisonous tree" doctrine, the knife should be excluded from evidence.

Answer 248

No charges can be brought against the bar owner.

Answer 249

(A) Sustain the objection, because the right to counsel at a post-charge lineup requires the presence of defense counsel during the entire identification procedure.

Answer 250

(D) No, because the questions were investigative in nature and the lifeguard was not subject to custodial interrogation.

Answer 251

B) Yes, because changing close with the principal was an act taken with extreme indifference to an unjustifiably high risk to human life.

Answer 252

B) Conspiracy.

Answer 253

D) No, because the referee did not see the bottle, nor did the fan intend to hit anyone.

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