DIAGNOSTIC EXAM WORKSHOP: CRIMES PROFESSOR LISA MCELROY DREXEL UNIVERSITY SCHOOL OF LAW

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1 DIAGNOSTIC EXAM WORKSHOP: CRIMES PROFESSOR LISA MCELROY DREXEL UNIVERSITY SCHOOL OF LAW CRIMINAL LAW General Principles Question 1 (Exam Question 83) 5965 MBE CRIMINAL LAW GENERAL PRINCIPLES Parties to a Crime A mother got a surprise visit from her son, a criminal on the run. Her son asked her to give him her gun so that he could kill a drug dealer who was pursuing him. He told her that the drug dealer would kill him if he did not kill the drug dealer first. The mother, who loved her son more than anything, gave him her gun and a package of bullets. The next day, the son went to another city, found the drug dealer, and shot and killed him. A few days later, the police found the son hiding in a shed in a friend's backyard and arrested him for the drug dealer's murder. They then traced the gun's ownership to the mother and charged her with murder as well. The son was later convicted of the drug dealer's murder. Can the mother be convicted of murdering the drug dealer? (A) No, because the son, not the mother, shot the drug dealer. (B) No, because mere knowledge that a crime may occur cannot support a murder conviction. (C) Yes, because she gave her son the murder weapon. (D) Yes, because the son was convicted of murder. Answer choice C is correct. An accomplice (i.e., an accessory before the fact or a principal in the second degree) is a person who, with intent that the crime be committed, aids or abets a principal prior to or during the commission of the crime. An accomplice to the crime can be convicted of the crime, even if he was not involved in the principal's criminal actions. An accomplice is responsible for the crime to the same extent as the principal. An accomplice that is neither physically nor constructively present during the commission of the crime, but who possesses the requisite intent, is an accessory before the fact. Here, the mother is an accessory before the fact because she gave her gun to her son after her son told her his plan to kill the drug dealer. Thus, she provided physical assistance with the intent to assist him in killing the drug dealer. Accordingly, the mother can be convicted of the drug dealer's murder as an accomplice even though she did not shoot and kill the drug dealer. Answer choice A is therefore incorrect. Answer choice B is incorrect. Mere knowledge that another person intends to commit a crime is not enough to make a person an accomplice. Under the majority and MPC rule, a person is an accomplice in the commission of an offense if he acts with the purpose of promoting or facilitating the commission of the offense. Thus, the accomplice must intend that her acts will assist or encourage the criminal aim. Here, the mother did not have only mere knowledge. She also provided physical assistance with the intent to assist her son in the drug dealer's murder by giving her gun to him. Answer choice D is incorrect. The mere fact that the son was convicted of murder is not enough to convict the mother. Her liability as an accomplice must be established.

2 Question 2 (Exam Question 37) 6622 MBE CRIMINAL LAW GENERAL PRINCIPLES Parties to a Crime Two affluent women were shoe shopping together one afternoon in a high-end shoe store. After trying on numerous pairs of expensive shoes, the older woman settled on a pair of shoes and gave the saleswoman her credit card. The younger woman was still debating over a pair of equally expensive high heels. As they were leaving the store, the older woman noticed that the younger woman was still wearing the high heels that she had not purchased, and she had subtly pulled her bell-bottom pants over the shoes so that they were hidden from the saleswoman's view. Upon discovering that the shoes were missing, the saleswoman called the police, and they were able to locate the older woman through her credit card information. The police were never able to locate the younger woman. Should the older woman be convicted of larceny as an accomplice? (A) Yes, because the woman facilitated the crime by failing to make any effort to stop the younger woman. (B) Yes, because the older woman saw the younger woman hiding the shoes under her bell-bottom pants. (C) No, because the older woman had no intent to facilitate the younger woman's theft of the high heels. (D) No, because the younger woman was never prosecuted as a principal because the police could not find her. Answer choice C is correct. The older woman did not have the mental state necessary for accomplice liability. An accomplice is a person who, with intent that the crime be committed, aids or abets a principal prior to or during the commission of the crime. Mere knowledge that another person intends to commit a crime and mere presence on the scene are not enough to make a person an accomplice. Here, the older woman had knowledge of the crime, but she did not intend for the crime to occur, nor did she aid or abet the younger woman when she stole the shoes. Answer choices A and B are incorrect because as stated above, the older woman did not have prior knowledge of the crime, nor did she intend to facilitate the crime. Answer choice D is incorrect because by modern statute in most jurisdictions, an accomplice may be convicted of a crime even if the principal is not tried, is not convicted, has been given immunity from prosecution, or is acquitted Themis Bar Review, LLC Diagnostic Exam Workshop: Crimes

3 Homicide Question 3 (Exam Question 43) 6325 MBE CRIMINAL LAW HOMICIDE Types of Homicide A father was throwing a wedding for his daughter, and the wedding costs were adding up so quickly that the father was forced to take out a second mortgage on his home, as well as a bank loan at a very high interest rate. The father was under a great amount of financial pressure, but he was willing to do anything to give his daughter her dream wedding. After many months of stress and anxiety, his daughter's wedding day finally arrived. While waiting in the buffet line to get some dinner at the wedding reception, the father overheard his daughter's mother-in-law tell another guest that she thought the wedding was low-rent and tacky, and that her daughter-in-law's father was a penny-pinching, tightfisted man. The father became enraged and could not control himself. He grabbed a knife from the roast beef carving station and stabbed his daughter's mother-in-law to death. A state statute defines murder in the first degree as premeditated and deliberate, murder in the second degree as common-law murder, and voluntary manslaughter under the common-law rule. What crime did the father commit? (A) First-degree murder (B) Second-degree murder (C) Voluntary manslaughter (D) Involuntary manslaughter Answer choice B is correct. Common-law murder is the unlawful killing of another human being committed with malice aforethought. Malice aforethought includes the following mental states: intent to kill, intent to do serious bodily injury, reckless indifference to an unjustifiably high risk to human life (depraved heart), or intent to commit certain felonies (felony murder). Here, the father intended to do serious bodily injury when he stabbed the mother-in-law with a carving knife. He also demonstrated a callous disregard for human life when he stabbed her over some disparaging comments about the wedding and his alleged tight-fistedness. Answer choice A is incorrect. Based upon the facts, the father's actions were not premeditated, because there is no indication that the father planned to kill the mother-in-law in advance. Answer choice C is incorrect. For a defendant to be found guilty of voluntary manslaughter, there must be adequate provocation arousing a sudden or intense passion in the mind of an ordinary person. The defendant must suffer a loss of control, must not have sufficient time to cool off, and must in fact not have regained her self-control before the killing of the victim. Here, the father suffered a loss of control when he overheard the mother-in-law, and he did not regain self-control before he stabbed her to death. However, words alone are not adequate, no matter how provocative. Answer choice D is incorrect because the homicide was not committed with criminal negligence or during an unlawful act; it was an intentional act Themis Bar Review, LLC Diagnostic Exam Workshop: Crimes

4 Question 4 (Exam Question 78) 4341 MBE CRIMINAL LAW HOMICIDE Types of Homicide A farmer was tried for the death of a farmhand whom the farmer ran over with a combine. The jury unanimously found that the farmer acted with reckless indifference to the safety of the farmhand in operating the combine, though they did not determine that the farmer had intentionally run over the farmhand with the combine. The crimes below are listed in ascending order of seriousness. What is the most serious crime for which the farmer is likely to be convicted? (A) Involuntary manslaughter. (B) Voluntary manslaughter. (C) Depraved heart murder. (D) Premeditated murder. Answer choice C is correct. Under the common law, depraved heart murder is an unintentional killing committed with reckless indifference to an unjustifiably high risk to human life. Here, the jury found that, although the farmer's crime was unintentional, he acted with reckless indifference. Accordingly, he would likely be convicted of depraved heart murder. Answer choice A is incorrect because the standard for involuntary manslaughter is criminal negligence, which is a lower degree of culpability than what the jury found in this case. Answer choice B is incorrect because the facts do not indicate that the farmer acted in the heat of passion or that any other circumstances would mitigate in favor of a lesser finding of manslaughter. Answer choice D is incorrect because the farmer did not possess the intent to kill the farmhand; thus, he could not have reflected on the killing or planned the killing before it occurred Themis Bar Review, LLC Diagnostic Exam Workshop: Crimes

5 Inchoate Crimes Question 5 (Exam Question 89) 4246 MBE CRIMINAL LAW INCHOATE CRIMES Conspiracy A man was jealous of his brother's good fortune. Together with his best friend, the man formed a plan to take some valuable artwork from the brother's home. According to the plan, the friend would rent a van that they would use to drive to the brother's house. The man and his friend would then break into the brother's house, take the paintings, and load them into the van. The next week, the friend rented the van, picked up the man, and drove to the brother's house. When they arrived at the brother's house, the friend had a change of heart and told the man that he could not go through with breaking into the house. The man decided to go ahead with the plan on his own, after the friend ran off. The following day, the friend voluntarily went to the police station and confessed to the plan. Which of the following statements best describes the friend's criminal liability under the majority rule? (A) The friend is not guilty of any crime. (B) The friend is guilty of larceny as an accomplice, but not of conspiracy. (C) The friend is guilty of conspiracy, but not guilty of larceny as an accomplice. (D) The friend is guilty of conspiracy and of larceny as an accomplice. Answer choice D is correct. Conspiracy is an agreement between two or more persons to accomplish an unlawful purpose with the intent to accomplish that purpose. Under the majority rule, a conspiracy does not exist until an overt act has occurred, and withdrawal is possible between the date of the agreement and the commission of the overt act. In order to withdraw, notice must be communicated to the other co-conspirators, or the police must be advised of the existence of a conspiracy in a timely manner. Upon completion of the overt act (here, renting the van), the conspiracy is formed, and withdrawal is no longer possible. An accomplice is a person who, with intent that the crime be committed, aids or abets a principal prior to or during the commission of the crime. An accomplice is responsible for the crime to the same extent as the principal. To legally withdraw (and therefore avoid liability for the substantive crime), the accomplice must repudiate prior aid or do all that he can to negate the prior assistance before the crime is put into motion. A mere change of heart after the crime is put into motion is ineffective, as notification to the legal authorities must be timely and directed toward preventing others from committing the crime. In this case, the friend did not effectively withdraw as an accomplice or co-conspirator until after the man had the van in front of his brother's house, and the friend did not immediately notify the police so as to prevent the crime. Accordingly, he would be guilty of larceny as both co-conspirator and accomplice. Answer choice A is incorrect because the friend would be guilty of larceny, as he entered into a conspiracy and rented the van, picked up the man, and drove to the brother's house before he attempted to withdraw. Answer choice B is incorrect because the friend did enter into a conspiracy with the man. Answer choice C is incorrect because the friend aided the man in committing the crime by renting and providing him with the van Themis Bar Review, LLC Diagnostic Exam Workshop: Crimes

6 Other Crimes Question 6 (Exam Question 1) 3074 MBE CRIMINAL LAW OTHER CRIMES Crimes Against Property A woman who had been drinking heavily took her neighbor's truck without the neighbor's permission. The woman intended to drive the truck up to a local bar and then return the truck later that evening. On the way to the bar, the woman crashed the truck and totaled it. The woman is subsequently arrested and charged with larceny in a jurisdiction that follows the common law. Should the woman be convicted? (A) Yes, because of her intent to take the car. (B) Yes, because the car was destroyed and could no longer be used by the neighbor. (C) No, because she lacked the specific intent required for larceny. (D) No, if she establishes she was intoxicated at the time she took the car. Answer choice C is correct. Common law larceny requires the intent to permanently deprive the person who owns the property of the property that is taken. The intent to permanently deprive must be present at the time of the taking. Here, the woman took the truck with the intent to return it later that evening. Accordingly, the specific intent required for larceny is not present. Answer choice A is incorrect. If the defendant intends only to borrow the property with the ability to return it at the time of the borrowing, the taking does not constitute a larceny because the defendant lacked the intent to permanently deprive the owner of the property. Answer choice B is incorrect because the fact that the car was destroyed is irrelevant. What controls is the woman's intent at the time she took the car. Here, it was to borrow the car, with the ability to return it. Answer choice D is incorrect. While voluntary intoxication may prevent the formation of the required intent in specific intent crimes, there is no need to prove intoxication here because the woman never had the specific intent to permanently deprive the neighbor of the truck in the first place. Therefore, even if she does not raise intoxication as a defense, she would still not be convicted Themis Bar Review, LLC Diagnostic Exam Workshop: Crimes

7 Question 7 (Exam Question 93) 6240 MBE CRIMINAL LAW OTHER CRIMES Crimes Against Property The defendant decided to rob a convenience store. One night, he watched the store from across the street until it appeared that there were no customers inside. He went in, walked up to the clerk who was standing at the cash register, took out a gun, and said, "I will hurt your family if you don't give me the money in the cash register." The clerk immediately fainted. The defendant put away his gun and pulled out a screwdriver to pry open the cash register. At that moment, a customer walked into the store. The defendant immediately fled before being able to open the register. The charges below are listed in descending order of seriousness. On this evidence, what is the most serious charge(s) for which the defendant can be convicted? (A) Assault and robbery (B) Robbery (C) Assault and attempted robbery (D) Attempted robbery Answer choice D is correct. Robbery is larceny from the person or his immediate presence by force or intimidation. An attempt is a substantial step towards the commission of a crime coupled with the intent to commit the crime. Here, the defendant entered the store with the intent to steal money from the store's cash register and threatened the clerk who was standing at the register. Consequently, the defendant can be convicted of attempted robbery. However, the defendant failed to complete the crime of robbery because he did not take or carry away the money from the register. Therefore, answer choices A and B are incorrect. Answer choice C is incorrect. Although these facts indicate that the defendant has committed an assault, as he threatened the clerk with the use of force, double jeopardy prevents him from being convicted of this underlying lesser-included offense of robbery. Larceny, assault, and battery all merge into robbery or attempted robbery as lesser-included offenses. Therefore, because the assault here was the threat of force used to accomplish the attempted robbery, an assault conviction would merge into the attempted robbery conviction. Consequently, of the offenses listed, the defendant can only be convicted of attempted robbery Themis Bar Review, LLC Diagnostic Exam Workshop: Crimes

8 CRIMINAL PROCEDURE Fourth Amendment Question 1 (Exam Question 60) 6681 MBE CRIMINAL PROCEDURE FOURTH AMENDMENT: APPLICATION TO ARREST, SEARCH AND SEIZURE Arrest: Unreasonable Seizure of Persons A police officer saw a man sitting in a coffee shop who he thought fit the detailed description of a suspect wanted for felony embezzlement. The officer walked into the coffee shop for a better look at the man. After making a reasonable determination that the man was the wanted suspect, the officer approached the man and placed him under arrest. Was the arrest proper? (A) No, because the officer may not arrest a suspect without an arrest warrant. (B) No, because the felony was committed outside the presence of the officer. (C) Yes, because the officer did not have time to obtain a warrant. (D) Yes, because the officer had probable cause to believe that the man was the wanted suspect. Answer choice D is correct. In situations in which a felony has been committed outside the presence of the one making the arrest, a police officer may arrest anyone whom he has probable cause to believe has committed a felony. [Editor s note: In other words, there must be sufficient facts or evidence to lead a reasonable person to believe that a suspect has committed a crime, i.e., a reasonable determination as stated by Professor McElroy.] In this case, the officer reasonably had probable cause to believe that the man was the wanted suspect. Thus, although the embezzlement was committed outside the officer's presence, the officer was permitted to arrest the man without obtaining an arrest warrant. Answer choice A is incorrect. Unlike with searches, police generally do not need a warrant to make a valid arrest in a public place, even if they have time to get one. In this case, the officer was permitted to make a warrantless arrest of the man based on the officer's probable cause to believe that the man was the suspect wanted for felony embezzlement. Answer choice B is incorrect. An officer may arrest a person for a felony committed outside the presence of the officer provided the officer has probable cause to believe that the person has committed the felony. Answer choice C is incorrect because the officer did not need to obtain an arrest warrant to properly arrest the man. The fact that he might not have had time to do so is irrelevant Themis Bar Review, LLC Diagnostic Exam Workshop: Crimes

9 Question 2 (Exam Question 68) 5935 MBE CRIMINAL PROCEDURE FOURTH AMENDMENT: APPLICATION TO ARREST, SEARCH AND SEIZURE Search and Seizure The police suspected a man was cooking methamphetamine in his home basement. From the street, the officers could detect no illicit activity in the basement, but they did see a beam of light in his side yard indicating a low window. The officers, who did not have a warrant, stepped over a low fence to enter his neighbor's yard and walked about 30 feet away from the neighbor's house. From this vantage, the officers saw evidence of methamphetamine production through a small unobstructed window into the basement. On the basis of this information, the officers obtained a search warrant and seized a large amount of methamphetamine from the man's home. The man was charged with drug offenses related to methamphetamine. The man has moved to suppress the evidence seized under the authority of the warrant, claiming that the evidence was obtained through an unconstitutional search in violation of the Fourth Amendment. Should the evidence be suppressed? (A) No, because the officers were not within the curtilage of the neighbor's house when they saw evidence of methamphetamine production in the man's basement. (B) No, because the man lacked a reasonable expectation of privacy in activities that he did not hide from his neighbors. (C) Yes, under the fruit of the poisonous tree doctrine. (D) Yes, because the plain view exception does not apply when a police officer is not legitimately on a premises. Answer choice B is correct. The man's neighbors had a clear and unobstructed view into the man's basement through the small side window. Therefore, the man cannot successfully argue that he had a reasonable expectation of privacy in the activities or property in his basement. Although the officers presumably did trespass on his neighbor's property, the man has no standing to complain of their illegal conduct. Answer choice A is incorrect. Although whether the officers were within the curtilage of the neighbor's house when they saw evidence of the methamphetamine production would be relevant if the production was taking place in the neighbor's basement, it is not relevant to the issue of the constitutionality of the officer's visual search of the man's basement through its window. The determinative issue here is not the man's expectation of privacy in where the officers were standing, but in where they observed illegal activity. Answer choice C is incorrect. The exclusionary rule can apply not only to evidence initially seized as a result of the primary government illegality, but also to secondary "derivative evidence" discovered as a result of the primary taint, also known as the "fruit of the poisonous tree." In this case, the information acquired by the officers while on the neighbor's property was not acquired in violation of the man's constitutional rights because he did not have a reasonable expectation of privacy in this information. Therefore, there was no "poisonous tree" from which to produce an inadmissible "fruit." Answer choice D is incorrect because this limitation on the plain view rule applies when a police officer is illegitimately on the premises that the officer is searching. It does not apply to a trespass by the officer on the property of another individual that is not being searched Themis Bar Review, LLC Diagnostic Exam Workshop: Crimes

10 Question 3 (Exam Question 31) 4230 MBE CRIMINAL PROCEDURE FOURTH AMENDMENT: APPLICATION TO ARREST, SEARCH AND SEIZURE Search and Seizure The police obtained a valid warrant to arrest the defendant for a recent home burglary. Two officers drove to the defendant's home, where he lived with his mother, to serve the warrant. When they arrived, they saw that the defendant's car in the driveway. The defendant's mother answered the door, and when the police informed her that they had a warrant for the defendant's arrest, she replied that the defendant was not home. Just then, a man yelled from upstairs, "Mom, what's going on?" The officers ran upstairs to the defendant's bedroom, where he was in bed, and arrested him. As they were leaving the room, they noticed an engagement ring on the defendant's dresser that matched the description of one of the items taken during the burglary. They promptly seized the ring. The defendant was later charged with the burglary. At trial, the defendant moved to suppress any evidence of the ring, arguing it was seized illegally. Is evidence of the ring likely to be suppressed? (A) No, because the arrest warrant impliedly authorized the police to search for evidence of the burglary. (B) No, because the officers saw the ring in plain view when acting in accordance with the warrant. (C) Yes, because the officers went beyond the entrance of the defendant's home without permission. (D) Yes, because the police did not have a search warrant. Answer choice B is correct. In situations in which there is a reasonable expectation of privacy (e.g., in a suspect's house), a police officer may seize an item in plain view of the officer without a search warrant, as long as (i) the officer is on the premises for a lawful purpose, and (ii) the incriminating character of the item is immediately apparent. In this case, the police were lawfully on the premises because the arrest warrant authorized them to enter the premises to arrest the defendant, and the ring was in plain view. Answer choice A is incorrect because an arrest warrant does not authorize the police to search a suspect's home. Rather, the police must obtain a search warrant to search for evidence. Answer choice C is incorrect because a warrant to arrest an individual implicitly authorizes entry into the arrestee's home to serve the warrant if the police have probable cause to believe that the arrestee is present. Answer choice D is incorrect because, although the police did not have a search warrant, they could seize the ring under the plain-view doctrine Themis Bar Review, LLC Diagnostic Exam Workshop: Crimes

11 Question 4 (Exam Question 86) 3105 MBE CRIMINAL PROCEDURE FOURTH AMENDMENT: APPLICATION TO ARREST, SEARCH AND SEIZURE Search and Seizure In an attempt to combat an increase in drunk driving, police set up a sobriety checkpoint on a street near a strip of nightclubs and bars. The police pulled over every tenth passing vehicle between midnight and 5 a.m. and checked the drivers of these vehicles for signs of intoxication. As part of this process, an officer pulled over the defendant's car, although the defendant was not exhibiting signs of intoxication. When the defendant opened his window, the officer detected a very strong smell of marijuana. The officer ordered the defendant out of the vehicle and searched the defendant's car. The officer found a baggie containing marijuana under the floor mats in the back seat of the car. The defendant was arrested and charged with possession of narcotics. The defendant seeks to suppress evidence of the marijuana. Is the defendant likely to succeed? (A) No, because the search was incident to a lawful arrest. (B) No, because the search was permitted based on the automobile exception to the warrant requirement. (C) Yes, because the officer did not have reasonable suspicion to stop the defendant, and thus any fruits of the defendant's seizure are inadmissible. (D) Yes, because no exception to the warrant requirement permitted the officer to search the back seat of the defendant's car. Answer choice B is correct. The Fourth Amendment does not require police to obtain a warrant to search a vehicle if they have probable cause to believe it contains contraband or evidence of a criminal activity. In this case, the strong smell of marijuana coming from the car provided probable cause to believe that the car might contain contraband, and thus the officer could search the car without first obtaining a warrant. Answer choice A is incorrect because the arrest was not made until after the search was completed. Answer choice C is incorrect because police may stop an automobile at a checkpoint without reasonable, individualized suspicion of a violation of the law if the stop is based on neutral, articulable standards and its purpose is closely related to an issue affecting automobiles. Accordingly, the police were permitted to stop the defendant as part of this sobriety checkpoint. Answer choice D is incorrect because the automobile exception to the warrant requirement allows police to search anywhere in the car where they believe there to be contraband, including the trunk, as long as they have probable cause to do so Themis Bar Review, LLC Diagnostic Exam Workshop: Crimes

12 Fifth Amendment Question 5 (Exam Question 87) 361 MBE CRIMINAL PROCEDURE FIFTH AMENDMENT RIGHTS AND PRIVILEGES The Fifth Amendment in a Police Interrogation Context While putting out a large fire in an office building downtown, firefighters discovered evidence of arson and immediately called police to the scene. The police began questioning bystanders who had gathered outside of the firefighters' perimeter in an effort to determine whether any of them had seen something suspicious that might lead to the arrest of the arsonist. Many of the bystanders were cooperative, but some declined to provide any information, and a few even chose to walk away when the police began asking them questions. One bystander who did stay and talk to the police made the police suspicious. When one of the officers detected the smell of gasoline on the suspect, the officer mentioned that whoever had set the building on fire had used gasoline as an accelerant. The suspect immediately confessed, and the police arrested him. The suspect's defense attorney filed a motion to suppress the crime scene confession, as the officer did not give the suspect his Miranda warnings before questioning him. The court should: (A) Grant the motion, because the officer knew his statement was likely to elicit an incriminating response. (B) Grant the motion, because once the officer suspected the suspect of the crime, he should have stopped and given the suspect Miranda warnings before the interrogation began. (C) Deny the motion, because the questioning was not conducted in a police station or while the suspect was under arrest. (D) Deny the motion, because the suspect was not in the custody of the police, and was free to leave the presence of the questioning officer. Answer choice D is correct. An individual must be in custody in order for the Miranda warnings to apply. "Custody" requires the existence of coercive conditions that would cause a reasonable person to believe under all the circumstances surrounding the interrogation that he is not free to leave. The questioning of persons at a crime scene does not constitute custody for the purposes of Miranda if the individual being questioned is free to leave. Here, the facts indicate that several bystanders did leave during the questioning process. Answer choice C is incorrect because there is no rule that an interrogation must be in a police station in order to be custodial. Answer choice A is incorrect because, while a statement designed to elicit a response may be considered an interrogation for purposes of Miranda, that interrogation still must be custodial in order to require Miranda warnings. Answer choice B is incorrect because an officer is not required to give an individual Miranda warnings simply because he suspects someone of a crime, unless that individual is in custody Themis Bar Review, LLC Diagnostic Exam Workshop: Crimes

13 Sixth Amendment Question 6 (Exam Question 14) 4238 MBE CRIMINAL PROCEDURE SIXTH AMENDMENT Applicability: Right to Counsel After a defendant was arrested and charged with robbery but before he had an attorney, the police brought him in to question him about the robbery. After being read his Miranda warnings, the defendant said nothing. For the next hour, the police questioned the defendant, and he continued to remain silent. Finally, one officer mentioned that the defendant's mother was going to be miserable sitting through his trial, and the defendant broke down. He admitted that he had been the driver for the robbery, but that it had been a mistake, and he did not want to make his mother sit through a trial. The defendant later sought to suppress his statement. Is the defendant's statement likely to be suppressed? (A) No, because the defendant never specifically invoked his right to counsel. (B) No, because the defendant waived his Miranda rights when he spoke to police. (C) Yes, because the circumstances indicate that the defendant's statement was not voluntary. (D) Yes, because the defendant was entitled to the presence of counsel. Answer choice D is correct. The Sixth Amendment right to counsel applies at all critical stages of a prosecution, after formal proceedings have begun. The right automatically attaches when the State initiates prosecution with an indictment or formal charge and ends at the sentencing stage of the trial. In this case, the defendant's Sixth Amendment right to counsel had attached, and thus he was entitled to the presence of counsel during the interrogation. He did not need to formally invoke this right for it to attach. Because his statement was taken in violation of his Sixth Amendment right, it would be suppressed. Answer choice A is incorrect because although a defendant is required to specifically invoke his right to counsel under the Fifth Amendment, there is no such requirement under the Sixth Amendment. Thus, the defendant was entitled to counsel even if he did not make a specific request. Answer choice B is incorrect because although the defendant waived his right to remain silent by making a statement, he did not waive his right to counsel. His statement was taken in violation of his Sixth Amendment right to counsel and would thus be suppressed. Answer choice C is incorrect because the facts do not indicate that the statement was involuntary. The police officer's statement about the defendant's mother does not elevate the circumstances to a level of making the statement involuntary Themis Bar Review, LLC Diagnostic Exam Workshop: Crimes

14 Post-Trial Considerations Question 7 (Exam Question 18) 357 MBE CRIMINAL PROCEDURE POST-TRIAL CONSIDERATIONS Double Jeopardy A defendant is prosecuted for robbery. The defendant is acquitted by a jury. The prosecution then seeks to charge the defendant with other crimes arising out of the same transaction. With which of the following can the prosecution charge the defendant without violating the Double Jeopardy Clause? (A) Felony murder based on the commission of the robbery (B) Larceny (C) Conspiracy to commit robbery (D) The prosecution may not charge the defendant with other crimes arising out of the same transaction. Answer choice C is correct. The Double Jeopardy provision protects against a second prosecution for the same offense after either an acquittal or a conviction. Under the Blockburger rule, whether charges constitute the same offense depends on whether each charge requires proof of an element that the other does not. Since conspiracy to commit robbery and robbery each have different elements, the prosecution may charge the defendant with conspiracy without violating the Double Jeopardy Clause. Answer choice A is incorrect because robbery is a lesser included offense of felony murder in this case. Answer choice B is incorrect because larceny is a lesser included offense of robbery. Answer choice D is incorrect because the Blockburger rule rather than a transaction-based rule applies to determine the applicability of the Double Jeopardy Clause Themis Bar Review, LLC Diagnostic Exam Workshop: Crimes