CAS Bar CAS Multistate Bar Examination (MBE) 3 — Questions and Answers
Question 1: A defendant is charged with felony murder after his accomplice shot and killed a store clerk during a robbery. The defendant drove the getaway car. Which is the best statement of the defendant's liability?
- The defendant is not liable because he did not personally kill anyone.
- The defendant is liable for felony murder because the killing occurred during commission of the underlying felony. (Correct answer)
- The defendant is liable only for robbery, not murder.
- The defendant is liable only if he knew his accomplice would use deadly force.
Correct answer: The defendant is liable for felony murder because the killing occurred during commission of the underlying felony.
Under the felony murder rule, all co-felons are liable for killings that occur in furtherance of the underlying felony, regardless of who pulled the trigger.
Question 2: Police arrest a suspect without a warrant but with probable cause for drug possession. They conduct a search incident to arrest and find heroin. The defendant moves to suppress. Which is the most accurate outcome?
- The heroin is suppressed because no warrant was obtained.
- The heroin is admissible as a valid search incident to lawful arrest. (Correct answer)
- The heroin is suppressed because the police needed a search warrant even with probable cause.
- The heroin is admissible only if the police were in exigent circumstances.
Correct answer: The heroin is admissible as a valid search incident to lawful arrest.
A search incident to a lawful custodial arrest is a recognized exception to the warrant requirement, allowing police to search the arrestee's person and immediate area.
Question 3: On the MBE, which of the following is an element of larceny that distinguishes it from embezzlement?
- The defendant must intend to permanently deprive the owner.
- The defendant must obtain initial possession wrongfully (trespassory taking). (Correct answer)
- The defendant must be entrusted with the property lawfully.
- The defendant must use force or fear to take the property.
Correct answer: The defendant must obtain initial possession wrongfully (trespassory taking).
Larceny requires a trespassory taking, meaning the defendant never had lawful possession; embezzlement involves fraudulent conversion of property lawfully entrusted to the defendant.
Question 4: A witness on direct examination testifies that she saw the defendant flee the scene. On cross-examination, defense counsel wants to introduce a prior inconsistent statement the witness made to police. Under the Federal Rules of Evidence (applied on MBE), the statement is:
- Inadmissible hearsay with no exception.
- Admissible only to impeach, not as substantive evidence, unless the witness is given a chance to explain.
- Admissible as substantive evidence if the prior statement was given under oath at a prior proceeding. (Correct answer)
- Admissible as a party admission.
Correct answer: Admissible as substantive evidence if the prior statement was given under oath at a prior proceeding.
Under FRE 801(d)(1)(A), a prior inconsistent statement made under oath at a prior proceeding is non-hearsay and admissible as substantive evidence.
Question 5: A defendant is tried for murder. The prosecution offers testimony from the victim's wife that the victim said 'I'm afraid the defendant is going to kill me' three days before his death. This statement is:
- Inadmissible hearsay.
- Admissible as a statement of the declarant's then-existing state of mind under FRE 803(3). (Correct answer)
- Admissible as an excited utterance.
- Admissible as a dying declaration.
Correct answer: Admissible as a statement of the declarant's then-existing state of mind under FRE 803(3).
A declarant's statement expressing fear of the defendant is admissible under the state of mind exception (FRE 803(3)) to show the declarant's then-existing mental or emotional state.
Question 6: Under the MBE, which Miranda right may be waived by a suspect?
- The right to be free from all police questioning.
- The right to counsel, so long as the waiver is knowing, voluntary, and intelligent. (Correct answer)
- The right to remain silent, which is absolute and cannot be waived.
- The right to appointed counsel, which attaches only at formal charging.
Correct answer: The right to counsel, so long as the waiver is knowing, voluntary, and intelligent.
A suspect may waive Miranda rights, including the right to counsel, provided the waiver is knowing, voluntary, and intelligent.
Question 7: A defendant charged with assault wishes to introduce evidence that the alleged victim had a prior conviction for fraud to attack the victim's credibility. Under FRE 609, this evidence is:
- Admissible if the conviction involved dishonesty or false statement, regardless of when it occurred.
- Admissible only if the crime involved dishonesty or false statement and the conviction is within the last 10 years. (Correct answer)
- Inadmissible because only the defendant's prior convictions can be used for impeachment.
- Inadmissible because prior convictions of victims are protected by Rule 404(a).
Correct answer: Admissible only if the crime involved dishonesty or false statement and the conviction is within the last 10 years.
Under FRE 609, convictions for crimes involving dishonesty are admissible for impeachment, but the 10-year time limit applies unless the court finds the probative value substantially outweighs prejudice.
CAS Bar CAS Multistate Bar Examination (MBE) 3
A defendant is charged with felony murder after his accomplice shot and killed a store clerk during a robbery.
The defendant drove the getaway car.
Which is the best statement of the defendant's liability?