Criminal Law Kaplan Foundation Course MBE Questions

Question 1

What is the general common law rule when a defendant in a criminal drug case transports a package for someone else, but does not intentionally look in the package

Answer 1

it can be said that despite having intentionally avoided looking to see what was in the package, the acquaintance did indeed know. In cases of “willful blindness” where the defendant is deliberately ignorant of certain facts, he can be held criminally liable.

The Ninth Circuit Court of Appeals concluded that the defendant’s “willful blindness” was sufficiently culpable to “where it can almost be said that he actually knew” that drugs were present.

Question 2

The mens rea requirement of knowledge can sometimes be satisfied when

Answer 2

In cases of “willful blindness” where the defendant is deliberately ignorant of certain facts, he can be held criminally liable

Question 3

What defense does “willful intoxication” for a general intent crime is

Answer 3

that voluntary intoxication is no defense: As a general rule, voluntary intoxication is not a defense for a “general intent” crime.

Question 4

Define Arson

Answer 4

Arson is a “general intent” crime because it does not require a specific mental state of intent. As a general rule, voluntary intoxication is not a defense for a “general intent” crime.

Question 5

What are the requirements for a criminal charge of Larceny

Answer 5

Larceny at common law may be defined as the (1) trespassory (2) taking and (3) carrying away of the (4) personal property (5) of another (6) with the intent to permanently deprive the owner thereof. The crime of larceny requires an intent to steal, that is, an intent to deprive the owner of the possession of his property permanently or for an unreasonable length of time.

Question 6

What is a valid defense to a criminal charge of Larceny

Answer 6

The defendant lacked the requisite state of mind.

Question 7

When dealing with a criminal law question dealing with self-defense, determine

Answer 7

As a general rule, if the defendant is not the aggressor, then he 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.

Question 8

When is deadly force justified

Answer 8

Deadly force is justified when an individual is threatened with serious bodily injury or death

Question 9

Under the M’Naghten Rule

Answer 9

A person is considered “insane“ if “at the time of committing of the act, the party accused was laboring under such a defect of reason, arising from a disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know what he was doing was wrong.“

A man who is mentally retarded and did not understand what he was doing would satisfy the test.

Question 10

Generally, if a defendant has the legal duty to act and his or her failure to do so results in a death,

Answer 10

the defendant will be guilty of involuntary manslaughter

Question 11

A person with a legal duty to act may be found guilty of murder for failing to act if

Answer 11

that failure to act is accompanied by the requisite mens rea for murder.

Question 12

Generally, there is no affirmative duty to act, unless there is a special relationship that gives rise to a duty to aid or protect. For Example:

Answer 12

Common carriers, innkeepers, possessors of land, custody keepers, parents, and spouses have a special or higher duty of care to act for the protection of those persons with whom they have a special relationship. The typical example is the duty of a parent to rescue her imperiled infant who is drowning face down in the bathtub. Failure to rescue the infant would be murder if the parent intends to kill the child, either by desiring the death or by failing to act, despite knowing that death is substantially sure to result from failure to rescue. Similarly, the common law imposes an affirmative duty upon spouses to aid one another.

Question 13

Not intending to kill, a defendant hits a person over the head with a baseball bat. As a result, the person dies from head injuries, the defendant will be charged with

Answer 13

Is an example of intent-to-inflict serious bodily injury murder

Question 14

Not intending to kill, a defendant throws a baseball off the top of a four-story apartment building onto a busy public street below. The baseball strikes a pedestrian, killing her.

Answer 14

Is an example of “depraved-heart” murder.

Question 15

Not intending to kill, a defendant rapes a victim in a remote area of the desert. The defendant then drives off leaving victim alone in the sweltering heat. The next day, the victim dies from exposure, because she’s unable to reach the nearest town eight miles away.

Answer 15

Is an example of felony murder.

Question 16

Not intending to kill, a defendant, at a party, pushes a nine-year-old child into a swimming pool and the youngster drowns.

Answer 16

Is characteristic of involuntary manslaughter or misdemeanor manslaughter. Note that the defendant committed a battery (which at common law was a misdemeanor) by pushing the victim into the pool.

Question 17

Malice aforethought does not require an intent to kill. “Malice” at common law may consist of any of four states of mind:

Answer 17

(1) felony-murder; (2) intent to kill; (3) extreme reckless conduct likely to cause death or serious injury; or (4) intent to cause serious bodily injury that results in death.

Question 18

A defendant intended to cause serious injury to the victim, which resulted in his death. T

Answer 18

he defendant may properly be convicted of second degree murder.

Question 19

The heat of passion killing, to qualify as manslaughter

Answer 19

Requires that the provocation be adequate, i.e., cause a reasonable person to lose self-control under the circumstances.

Question 20

The provocation by a victim required for voluntary manslaughter must be that which will arouse a heat of passion in a reasonable sober (defendant) man. A defendant’s voluntary intoxication, which unreasonably provokes him to lose his self-control

Answer 20

Will not reduce homicide to manslaughter

Question 21

What standard the court should use for a defendant in a criminal case to determine adequacy of provocation as a basis for mitigating murder to manslaughter.

Answer 21

Modernly, however, the strictly objective reasonable man test for determining adequacy of provocation has been considerably broadened. Under the Model Penal Code, “at least some individual peculiarities should be taken into account because they bear upon the inference as to the actor’s character that is fair to draw upon as the basis of his act” [Model Penal Code, Section 20.3 Comment].

Therefore, such a physical condition should be considered by the court

Question 22

What standard the court should use for a defendant in a criminal case to determine adequacy of provocation as a basis for mitigating murder to manslaughter.

Answer 22

Traditionally, an objective standard is applied to the question of whether there is adequate provocation. The provocation must be adequate enough to excite uncontrollable passion in a reasonable person. The fact that the defendant possessed some peculiar physical or mental characteristic was uniformly held not to be considered in determining provocation (i.e., head injury, sunstroke, and sexual impotence). The test was how the victim’s conduct affected a reasonable man, not how it affected a man with the defendant’s physical characteristics (LaFave and Scott, Criminal Law, p. 578).

Question 23

The felony murder rule requires

Answer 23

Intent to commit a felony crime is a sufficient substantial step that creates liability under the felony murder doctrine. The felony murder rule encompasses both completed and attempted dangerous felonies.

Question 24

If a defendant is found not guilty under the felony murder rule, the reason is

Answer 24

The jury did not believe that the defendant was engaged in the commission of a felony crime, and the felony-murder rule would not apply.

Question 25

Depraved-heart murder,

Answer 25

which is usually codified as second degree murder. In accordance with the statutory definition, second degree murder “covers all other unlawful killings with express or implied malice aforethought.

Question 26

Modern courts and legislatures still frequently define murder in terms of “malice aforethought, express or implied,

Answer 26

which now covers all four types of murder: (1) intent to kill murder; (2) felony-murder; (3) depraved-heart murder; and (4) intent-to-do-serious-bodily-injury murder.

Question 27

Under the depraved heart doctrine for a murder charge, the defendant

Answer 27

may not have acted with express malice, butt his conduct involved implied malice

Question 28

Mens Rea- “Knowingly”

Answer 28

A person has “knowledge” of a material fact if he is aware of the fact or he correctly believes that it exists. Most jurisdictions also permit a finding of knowledge of an attendant circumstance when the defendant is said to be guilty of “willful blindness” or “deliberate ignorance,” i.e., if the defendant is aware of a high probability of the existence of the fact in question, and he deliberately fails to investigate in order to avoid confirmation.

Question 29

For the crime of solicitation to be completed,

Answer 29

The crime solicited need not be committed. It is only necessary that the actor, with the intent that another person commit a crime, has enticed, advised, incited, ordered, or otherwise encouraged that person to commit a crime.

Question 30

What is not a defense to a criminal charge for solicitation of a crime

Answer 30

That it is not a defense to a solicitation charge that, unknown to the solicitor, the person solicited could not commit the crime.

Similarly, it is also no defense that the person solicited is an undercover agent and under no circumstances would have committed the crime solicited.

Question 31

A defendant is not guilty of conspiracy when

Answer 31

An essential element of the crime is an agreement (for an unlawful purpose) between two or more persons.

There is no conspiracy when one of the defendants does not have the required intent-to-commit the crime’s mental state. Therefore, if one defendant has the intent but the other defendant lacks the intent, then neither one can be charged

Question 32

The crime of attempt murder consists of

Answer 32

(1) an intent to do an act or to bring about certain consequences, which would in law amount to a crime; and (2) an act in furtherance of that intent which, as it is most commonly put, goes beyond mere preparation. As such, attempt is a specific intent crime.

Question 33

If a defendant did not have the (specific) intent to kill the girl, in an attempted murder charge, the outcome is

Answer 33

he would be found not guilty of the incohate crime of attempted murder.

Question 34

The traditional definition of conspiracy requires the following two elements:

Answer 34

(1) an agreement between two or more persons (which constitutes the act); and (2) an intent to achieve a criminal or unlawful objective.

Question 35

To constitute conspiracy at common law,

Answer 35

there must be a combination of two or more guilty persons.

Question 36

when does the crime of conspiracy fail in regard to larceny and/or burglary

Answer 36

The “plurality” requirement is not satisfied because a defendant is an innocent party who believed that he was the true owner of the chattel being taken. In addition, if each defendant never entered into an agreement with the others, but rather intended individually to commit a theft inside a home, there is no conspiracy

Question 37

MPC states, “Guilt as a conspirator is measured by the situation as the actor views it; he must have the purpose of promoting or facilitating a criminal offense, and with that purpose must agree (or believe that he is agreeing) with another that they will engage in the criminal offense or in solicitation to commit it.” Therefore, under the MPC you do NOT need

Answer 37

Under the MPC, agreement between “two or more” persons is not required. Only agreement by a single actor agreeing with another is needed. Furthermore, a mere tacit understanding will suffice, and there need not be any written statement or even a speaking of words that expressly communicates agreement.

Question 38

An agreement for conspiracy under the MPC does not have to be

Answer 38

“The agreement need not be shown to have been explicit. It (agreement) can instead be inferred from the facts and circumstances of the case.” “It is possible for various persons to be parties to a single agreement (and thus one conspiracy), even though they have no direct dealings with one another, or even though they do not know the identity of one another, and even though they are not all aware of the details of the plan of operation or were not all in on the scheme from the beginning

Question 39

Pinkerton Rule

Answer 39

All co-conspirators are liable for all crimes committed by any conspirator in furtherance of the original agreement

Question 40

The defendant is guilty of all the crimes in a conspiracy, even if he is arrested after the conspiracy was created, but did not participate in the later crimes because

Answer 40

The defendant is guilty of the crimes or “attempting the same crimes” because he took a substantial step toward the commission of the robbery, even if he was prevented from participating on crime day

Question 41

In order to be guilty as an accomplice,

Answer 41

generally two requirements must be met: (1) the individual must have the intent to promote or facilitate commission of the crime; and (2) he must “aid” and “abet” or give encouragement in the commission or attempted commission of the crime.

Question 42

The majority view of accomplice theory is

Answer 42

That an accomplice must intend that his acts have the effect of assisting or encouraging another.

Question 43

If a statute requires for assault an unlawful “attempt”– means that

Answer 43

in order for the defendant to be liable, an intent plus an act to commit an unlawful application of force (i.e., a battery). If the defendant did not intend to commit any application of force on the partner, which is what the facts state, then, if the jury believes him, he will be not guilty due to lack of intent to cause physical injury

Question 44

What is the distinction between solicitation and conspiracy.

Answer 44

For the crime of solicitation to be completed, it is only necessary that the defendant entice, advise, incite, order, or otherwise encourage another person to commit a crime with the intent that the crime be committed.

On the other hand, conspiracy requires an agreement between two or more individuals to commit a criminal offense.

Question 45

What distinctions should the test-taker look for to distinguish between a solicitation and conspiracy

Answer 45

So make sure under the given facts, no true agreement to commit a battery actually occurred. Rather, that one defendant solicited the other defendant to recklessly engage in conduct, knowing that it would create a high risk of causing injury to the others

Question 46

Larceny consists of

Answer 46

the physical movement (asportation) of the property of another without consent (caption) with intent to permanently deprive the owner thereof. The crime is complete once the defendant moves the property (any distance) with the intent to permanently deprive.

Question 47

Change of heart or returning the property after the initial taking of larceny i

Answer 47

Is no defense.

Question 48

At what point has a defendant committed “Larceny”

Answer 48

The defendant is guilty of theft one she possesses and conceals the item, even if she did not leave the store because he intended to steal the item and concealed it.

Question 49

Embezzlement is

Answer 49

the fraudulent conversion of the personal property of another by one already in lawful possession.

Question 50

What is an example of a bailment that subsequently becomes an embezzlement.

Answer 50

When the defendant held another’s property conditioned that the true owner might return and a bailment situation was created. The defendant was given lawful possession of the item, not mere custody. The owner’s subsequent sale amounted to a conversion–serious interference with the owner’s rights to his property–sufficient for embezzlement

Question 51

Larceny can occur when

Answer 51

A defendant takes another’s property and then intentionally destroyed it, thereby permanently depriving the true owner of its use.

Question 52

Common law Arson consisted of

Here, the friend set fire to the man’s television outside his home.

Answer 52

the (1) malicious (or intentional) (2) burning (3) of a dwelling (4) of another.

Question 53

For the crime of solicitation to be committed

Answer 53

It is only necessary that the defendant (with the requisite intent) have enticed, advised, incited, ordered, or otherwise encouraged another person to commit a crime

Question 54

Situations such as these where the “soliciting” party would not be held guilty of the completed crime

Answer 54

If it were committed as a result of the solicitation, the act of soliciting is itself not criminal.

The court held that legal impossibility precluded a defendant from being guilty of the attempted sale of heroin when it turned out to be non-narcotic. Therefore, a defendant intended to defraud by selling a substitute for a drug, cannot be guilty of an attempted sale.

Question 55

Any jury instruction in a criminal case that creates a presumption of an element of a crime

Answer 55

is unconstitutional as a denial of due process, because it shifts the burden of proof to the defendant.

Question 56

The burden of proof in a criminal trial requires

Answer 56

The prosecution must prove every element of a charged crime beyond a reasonable doubt, which cannot be shifted to the defendant

Question 57

If a statute requires a “knowingly” requirement whether the defendant “knowingly” had engaged in the wrongful conduct

Answer 57

is ultimately a jury question.

Question 58

There is no constitutional right to a jury trial for what type of criminal charges

Answer 58

petty offenses–only for serious offenses, e.g., felonies

Question 59

For purposes of the right to a jury trial, an offense is serious if imprisonment

Answer 59

is for more than six months is authorized under the penal code statute. so if the defendant only gets 3 months, but the statute says the conviction can be more than 6 months, the defendant is entitled to a jury trial

Question 60

The right to counsel applies to

Answer 60

all defendants charged with an offense for which imprisonment is imposed, whether classified as petty, misdemeanor, or felony.

Question 61

The right to counsel, exception in a criminal trial (non-waiver) is

Answer 61

However, if the offense is a misdemeanor, the constitutional right to counsel applies only if imprisonment is actually imposed

An accused charged with a misdemeanor who has not waived the right to counsel and is not represented by an attorney is not subject to imprisonment.

Question 62

A commonly tested area on the Multistate exam is

Answer 62

that of standing, both in constitutional law as well as in criminal procedure.

Question 63

A passenger in a vehicle that has no property interest cannot

Answer 63

Does not to have standing to challenge a search of the vehicle. This decision is founded on the principle of no reasonable expectation of privacy

Question 64

To have Fourth Amendment standing,

Answer 64

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

Question 65

Rakas held that being “legitimately on the premises”

Answer 65

is insufficient grounds to assert standing by itself, without proof of some possessory interest.

Question 66

When a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds,

Answer 66

his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection [Simmons v. United States, 390 U.S. 377 (1968)].

Question 67

When an arrested person has been detained at a police station,

Answer 67

he may be subjected to a search of his person, either incident to lawful arrest or as an inventory incident to his booking into jail

Question 68

An inventory of an arrested person’s property is considered

Answer 68

a search for Fourth Amendment purposes and is generally upheld because it protects the arrestee’s property and also protects the police from claims of not properly safeguarding the arrestee’s property.

Question 69

The majority view holds that an inventory of an arrested person’s property is subject to search by the police for further crimes, and

Answer 69

applies only if the arrestee has no privacy interest in the effects being held for him. The police have “custody” of a prisoner’s property during the incarceration. and they may reasonably do whatever “they were entitled to do incident to the usual custodial arrest and incarceration.

Question 70

A search occurs whenever the government

Answer 70

infringes on a person’s reasonable expectation of privacy–a privacy expectation that society is prepared to recognize as reasonable

Question 71

The Supreme Court ruled that a dog sniff of the exterior of a car during a lawful traffic stop is

Answer 71

Is not a “search” because of the limited intrusion by the dog.

“A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment

The alert by the dog provided the probable cause for the warrantless search of the trunk

Question 72

What are the requirements of the State during a traffic stop to search a vehicle

Answer 72

Neither consent by the owner of the vehicle nor reasonable suspicion of drugs is required provided (1) the stop of the vehicle is lawful; and (2) the stop is not “prolonged beyond the time reasonably required to complete the mission.”

In short, government “conduct that does not compromise any legitimate interest in privacy is not a search subject to the Fourth Amendment; any interest in possessing contraband cannot be deemed ‘legitimate.

Question 73

Thermal imaging is

Answer 73

The Supreme Court ruled that the use of a thermal-imaging device to detect the growth of marijuana in a home constituted an unlawful search

Question 74

The distinguishing feature between a home search and a vehicle stop is

Answer 74

vehicle involved a search of a lawfully stopped on a public street is not a search under the 4th amendment

Question 75

Phone numbers are

Answer 75

(police examination of defendant’s telephone records to determine numbers dialed, held not a search compromising a person’s reasonable expectation of privacy);

Question 76

if a substance has been lawfully found. then

Answer 76

subjecting suspected substance to a chemical field test for the presence of contraband held not to be a search if the substance has lawfully been seized

Question 77

The marijuana plants in plain view of the neighbors,

Answer 77

lawyer has no standing to complain of any police trespass on the neighbors’ property.

Question 78

Evidence seized pursuant to a search warrant would have to be suppressed if

Answer 78

the warrant was obtained based on information discovered pursuant to an illegal search, if the search was in fact illegal

Question 79

The consent search exception to the Fourth Amendment warrant requirement is permitted by

Answer 79

Any person with an apparent equal right to use or occupy the property may consent to a search, and any evidence found may be used against the occupants

Question 80

For third-party consent

Answer 80

joint access and control of the premises is required.

Question 81

Although the child may have had the apparent authority to permit the police to search common areas of the home (e.g., living room or kitchen), they authority is limited to

Answer 81

not have authority to allow the police to search her mother’s bedroom. Moreover, because the defendant locked the bedroom door, she did not assume the risk that her daughter would gain entry.

Question 82

in three Supreme Court opinions, the court has ruled that a sniff for narcotics by a well-trained dog in a public place

Answer 82

is neither a search nor seizure under the Fourth Amendment; i.e., no reasonable expectation of privacy is violated

Question 83

Under the Supreme Court’s “Automobile Exception

Answer 83

if a police officer has probable cause that contraband may be located in a movable automobile, the officer may search those areas of the car where probable cause exist

Question 84

Reasonable suspicion of the presence of contraband in a vehicle is

Answer 84

not required prior to the use of a trained dog in a public place. The use of the dog does not have to be related to the initial reason for the traffic stop.

Question 85

A warrant that is valid, but its validity was triggered by and limited to the delivered package means that

Answer 85

Accordingly, once the only object of that search–the package–was discovered, the warrant did not authorize a further exploratory search of the house

Question 86

When executing a warrant, police officers are permitted to search for the items listed in the warrant, AND

Answer 86

Officers may conduct a “protective sweep” of a home only if they have reason to believe others inside the home may pose a danger to them

Question 87

A “protective sweep” limits such a sweep to

Answer 87

“a cursory visual inspection of those places in which a person might be hiding.” Thus, even an authorized sweep would not extend to unreasonable places where a danger would not be inside

Question 88

Once a person is in custody, even in his own home,

Answer 88

Accordingly, the police could not properly interrogate the man without first providing him with Miranda warnings.

Question 89

The Massiah Rule prohibits

Answer 89

the police from using deliberate efforts to acquire incriminating information from a suspect who has been formally charged, unless the suspect’s attorney is present or the right to counsel has been waived. Once the defendant requested an attorney, the police may not renew any attempt to further interrogate him, by putting an undercover agent in his jail cell.

Question 90

The Supreme Court ruled that once a suspect invokes his right to counsel under Miranda, the suspect

Answer 90

the suspect “is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communications, exchanges, or conversations with the police.”

the government “deliberately elicited” statements from him in violation of his Sixth Amendment right to counsel

Question 91

When the police put a paid informant or undercover officer in a prison cell with a defendant,

Answer 91

In short, the defendant’s Fifth Amendment right to counsel under Miranda was violated and his Sixth Amendment right to counsel was also violated.