Bar Exam Criminal Law & Procedure 2 — Questions and Answers

Question 1: Under the Fourth Amendment, which test determines whether police conduct constitutes a 'search' requiring a warrant or justification?

The reasonable suspicion test — whether police had articulable facts justifying the intrusion
The Katz test — whether the person had a subjective expectation of privacy that society recognizes as reasonable (Correct answer)
The trespass test — whether police physically entered the defendant's home or curtilage
The probable cause test — whether the totality of circumstances suggests criminal activity

Correct answer: The Katz test — whether the person had a subjective expectation of privacy that society recognizes as reasonable

In Katz v. United States (1967), the Supreme Court established that the Fourth Amendment protects people, not places. A 'search' occurs when the government intrudes on a person's reasonable expectation of privacy — meaning both a subjective expectation of privacy and one that society is prepared to recognize as reasonable.

Katz v. United States (1967) fundamentally changed Fourth Amendment analysis. Before Katz, the Court used a property/trespass analysis (if no physical intrusion, no search). Katz held that the Fourth Amendment protects people, not places, establishing the two-prong test: (1) Subjective expectation: the person had an actual expectation of privacy; and (2) Objective reasonableness: the expectation is one society recognizes as reasonable. However, note that Kyllo v. United States (2001) and United States v. Jones (2012) demonstrated the continued relevance of trespass — Jones held that attaching a GPS device to a car was a Fourth Amendment search based on physical trespass to property. The Court in Carpenter v. United States (2018) further expanded privacy protections for digital records, applying a modified Katz analysis to cell-site location information.

Question 2: Under Miranda v. Arizona, when must law enforcement officers give Miranda warnings?

Whenever a person is questioned by police
Before any questioning of a suspect at the police station
Before questioning a person who is in custody and subject to interrogation (Correct answer)
Before arrest of any criminal suspect

Correct answer: Before questioning a person who is in custody and subject to interrogation

Miranda warnings are required only when there is both custody (freedom of movement restricted to the degree associated with formal arrest) and interrogation (express questioning or its functional equivalent). Both elements must be present.

Miranda v. Arizona (1966) established that before custodial interrogation, police must warn suspects of: (1) the right to remain silent; (2) that anything said can be used against them; (3) the right to counsel; and (4) the right to appointed counsel if they cannot afford one. 'Custody' means formal arrest or restraint of freedom of movement to the degree associated with formal arrest (Berkemer v. McCarty). 'Interrogation' means express questioning or its functional equivalent — words or actions police should know are reasonably likely to elicit an incriminating response (Rhode Island v. Innis). Miranda warnings are not required for: spontaneous statements, routine booking questions, public safety emergencies (New York v. Quarles), undercover officers, and non-custodial questioning. The remedy for Miranda violations is suppression of the statement, not dismissal of charges.

Question 3: Which of the following describes the mens rea element of first-degree murder at common law?

Intent to commit a serious felony, even without intent to kill
Malice aforethought, which includes premeditation and deliberation (Correct answer)
Recklessness toward human life in circumstances showing extreme indifference
Gross negligence in the operation of a dangerous instrumentality

Correct answer: Malice aforethought, which includes premeditation and deliberation

At common law and under most modern statutes, first-degree murder requires malice aforethought with premeditation and deliberation — the intent to kill plus sufficient time to reflect on and decide to kill. Second-degree murder requires malice aforethought without premeditation and deliberation.

Murder is the unlawful killing of a human being with malice aforethought. Malice aforethought includes: (1) Intent to kill (express malice); (2) Intent to cause serious bodily harm; (3) Depraved heart (extreme recklessness/indifference to human life); and (4) Felony murder (killing during commission of a dangerous felony). First-degree murder adds the requirement of premeditation and deliberation to intentional killings. 'Premeditation' means the defendant thought about the killing beforehand; 'deliberation' means the defendant reflected on the decision with a cool mind. Courts vary on how much time is required — some allow very brief reflection. Second-degree murder covers intentional killings without premeditation, depraved-heart killings, and some felony murders. The MBE tests the specific elements and their distinctions frequently.

Question 4: Under the double jeopardy clause, when does jeopardy 'attach' in a jury trial?

When the defendant is formally charged by indictment or information
When the jury is empaneled and sworn (Correct answer)
When the defendant enters a plea at arraignment
When the prosecution presents its first witness

Correct answer: When the jury is empaneled and sworn

In jury trials, jeopardy attaches when the jury is empaneled and sworn. In bench trials, it attaches when the first witness is sworn. Once jeopardy attaches, the defendant has constitutional protections against being tried again for the same offense if acquitted or convicted.

The Double Jeopardy Clause of the Fifth Amendment provides that no person shall 'be subject for the same offence to be twice put in jeopardy of life or limb.' The clause protects against: (1) A second prosecution for the same offense after acquittal; (2) A second prosecution for the same offense after conviction; and (3) Multiple punishments for the same offense. Jeopardy attaches: in a jury trial — when the jury is empaneled and sworn; in a bench trial — when the first witness is sworn; on a guilty plea — when the court accepts the plea. If jeopardy attaches and a mistrial is declared, retrial is permitted only if there was 'manifest necessity' (Downum v. United States). The Blockburger test determines whether two offenses are the 'same offense' — they are the same if each does not require proof of a fact that the other does not.

Question 5: Which of the following is a valid defense to a charge of larceny?

The defendant believed the property was worthless
The defendant had a good faith claim of right to the property, even if the belief was mistaken (Correct answer)
The defendant intended to return the property within 24 hours
The defendant was intoxicated at the time of taking

Correct answer: The defendant had a good faith claim of right to the property, even if the belief was mistaken

A good faith claim of right — a sincere belief that the defendant had legal title to or the right to possess the property — negates the specific intent required for larceny (intent to permanently deprive the owner of the property). Even a mistaken belief will negate the mens rea if genuinely held.

Larceny requires: (1) a trespassory (without consent or right); (2) taking and carrying away; (3) of another's personal property; (4) with intent to permanently deprive the owner of it. The specific intent element is key for defenses. A bona fide claim of right — even an unreasonable one — negates larcenous intent because the defendant did not intend to steal, but rather believed the property was theirs. This contrasts with robbery, which involves force/threat and also requires the claim of right defense. Regarding the other options: mere intent to return the property is generally not a defense (temporary taking can satisfy 'intent to permanently deprive' in many jurisdictions, especially for use and return, though some treat temporary taking separately); intoxication may negate specific intent but is heavily fact-dependent; and the value of property is irrelevant to larcenous intent.

Question 6: Under Strickland v. Washington, a defendant claiming ineffective assistance of counsel must prove:

That counsel made mistakes and the defendant received a harsher sentence than the average defendant
That counsel's performance was deficient and that the deficiency prejudiced the defense (Correct answer)
That counsel failed to raise every available argument, regardless of the outcome
That the trial court failed to supervise counsel's conduct

Correct answer: That counsel's performance was deficient and that the deficiency prejudiced the defense

Strickland v. Washington (1984) established a two-prong test: (1) Deficiency — counsel's performance fell below an objective standard of reasonableness (strong presumption of adequacy); and (2) Prejudice — there is a reasonable probability that but for counsel's errors, the outcome would have been different.

Strickland v. Washington (1984) is the leading case on the Sixth Amendment right to effective assistance of counsel. The two-prong test requires: (1) Deficiency: Counsel's representation fell below an objective standard of reasonableness. Courts apply a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance — strategic choices made after thorough investigation are virtually unchallengeable. (2) Prejudice: There is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. A 'reasonable probability' means one sufficient to undermine confidence in the outcome. Both prongs must be satisfied — courts may address either prong first. In plea bargaining, Lafler v. Cooper (2012) and Missouri v. Frye (2012) extended Strickland to the plea process, holding that counsel must communicate plea offers and that prejudice is shown if defendant would have accepted a better plea.

Bar Exam Criminal Law & Procedure 2

Under the Fourth Amendment, which test determines whether police conduct constitutes a 'search' requiring a warrant or justification?