Criminal Law MBE Practice Test 2017

Question 1

The police were at the scene of an accident, assisting injured victims and clearing traffic. One car stopped in traffic was creating a distraction by blasting rap music. A police officer told the driver to turn it down, which he did. While explaining this, the officer spotted a handgun next to the driver on the seat. State law allowed the carrying of a concealed or unconcealed weapon. The officer ordered him out of the car for safety concerns. The officer drew her gun and pointed it at him as he got out, threatening to shoot him if he was not compliant. Other officers approached with weapons drawn. The driver was put on the ground and handcuffed. Drugs were found inside the car and he was charged with drug possession. He filed a motion to suppress, claiming a Fourth Amendment violation. What is the most likely decision of the court?

Accepted Answer

The officer in effect overreacted to the initial purpose of the stop, and initiated an arrest procedure without probable cause to do so, and thus the drugs will be suppressed.

Answer

The officer’s failure to use less intrusive means to assure safety was unreasonable. The traffic hazard justified a minimal intrusion, and was alleviated when he turned the music down. She could reasonably order him out of the car in order to separate him from the gun, which was nonetheless a legal weapon under state law. But her conduct then escalated excessively out of proportion and initiated what was essentially an arrest procedure, which was not reasonably related in scope to the reason for the initial interference. See US v. King, 990 F. 2d 1552 (10th Circ. 1993); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967); Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam).

Question 2

A mother of four children age 3 to 9 left her children alone in their single-family home while she went to the store to get groceries. While she was still out, neighbors heard the children calling for their mother, and saw smoke coming from the windows. One neighbor pulled the three oldest children out of the house. The fire department arrived and a fireman found the fourth child dead inside. The fire was not intentionally started. The police found the mother and arrested her for involuntary manslaughter. Is her negligence sufficient to warrant conviction for involuntary manslaughter?

Accepted Answer

No, her negligence was stupid and near-sighted but not the kind of heightened awareness of probable danger that is required for involuntary manslaughter.

Answer

For involuntary manslaughter, there generally must be the killing of a human being in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. The general rule is that involuntary manslaughter requires more than mere negligence in the civil sense. The negligence must be aggravated, culpable, gross, or reckless, that is, the conduct must be such a departure from what would be the conduct of an ordinarily prudent or careful man under the same circumstances as to show a disregard of human life or an indifference to consequences. This cannot be judged on the outcome but must be judged on the behavior. Criminal liability cannot be predicated on every careless act merely because its carelessness results in injury to another.

Question 3

A property owner was returning home one evening. When he got into his driveway he beeped open the garage door. As he approached the garage he saw some movement inside but couldn’t tell what it was. He stopped the car, pulled his handgun from the glove compartment, and walked toward the garage. As he began to enter the garage a person jumped out from behind a pile of boxes and tried to run out of the garage, in a direction away from the owner. While heading for the outside area, the owner raised his gun and shot the individual dead. It turned out that the dead person was a 16-year-old unarmed teen from the neighborhood who apparently had been searching the garage for things to steal. Under the prevailing common law rule, will the owner be convicted of a criminal homicide charge?

Accepted Answer

He will be convicted because under these circumstances the man used unreasonable and excessive force in response to the situation.

Answer

This was not reasonable force under the circumstances. He could not reasonably be said to be in fear of serious bodily injury or death when he pulled the trigger. He could reasonably have ordered the minor out of the garage at gunpoint. When the boy started running he went toward the outside not toward the owner but in an opposite direction, thus giving owner no reason for excessive personal fear. Furthermore, the boy was unarmed and his manner of trying to exit did not give the owner any reason to fear a weapon.

Question 4

The police interrogated a suspect regarding a series of burglaries. The suspect had attention deficit disorder, dyslexia and an IQ of 72. Prior to beginning they read a list of Miranda rights to him on a form that the suspect had in front of him. After the reading, he initialed each paragraph indicating he understood. At the bottom of the form was an express written waiver of the Miranda rights, which he signed. He had been interrogated in the past and was familiar with the procedure. During the four hours of interrogation he was given bathroom breaks, coffee, and a sandwich. At the end of the process, he made a logical and seemingly cogent confession to all of the burglaries in a taped statement. The defendant later moved to suppress the confession, arguing that he was coming down from drugs at the time and was intellectually unable to understand and comprehend the nature of the warnings or the waiver. What is the most likely decision of the court under the totality of the circumstances?

Accepted Answer

The outward signs all indicate that the suspect understood the procedure and gave a voluntary confession despite his disabilities.

Answer

The facts state that he gave a “cogent” and logical statement confessing to the burglaries. There are no facts indicating that his disabilities got in the way of giving a voluntary confession. His prior experience weighs against his claims. Taking drugs is not a defense to a waiver of rights where the suspect appears to be lucid and appears to know what he’s doing. There is no evidence of police coercion, making his decision a voluntary one, under the totality of the circumstances.

Question 5

A seller of computers advertised for sale: “lot number 931, brand new computers, state-of-the-art, deeply discounted in price and with factory warranties.” Some of the buyers of these computers ran into problems in trying to register for the factory warranty. They were rejected without explanation, and several of them reported the problem to local authorities. The authorities eventually discovered that the whole lot of computers advertised by the seller was part of a truckload that was hijacked and emptied of its contents a few months earlier. Under questioning, the seller admitted to being part of a group that committed the hijacking. The police arrested him for theft, receiving stolen property, and criminal fraud. Can he likely be convicted of receiving stolen property?

Accepted Answer

No, one who steals the property from its owner cannot be convicted of receiving stolen goods when he tries to sell the stolen item.

Answer

The receiving stolen property statutes were not intended to go after the thief of the goods. They are intended to punish the fence because the ready availability of the fence promotes theft. Thus, a thief who sells goods that he himself has stolen is not engaging in receiving and selling stolen property. See US v. Kimbrew, 406 F. 3d 1149 (9th Cir. 2005) (thief who sells the property that he stole is not eligible for sentencing enhancement of being “in the business of buying and selling stolen property); US v. McMinn, 103 F. 3d 216 (1st Cir. 1997) (statutes which criminalize "receiving" are generally not targeting the thief, but the wrongdoer who knowingly acquires the loot from or through the thief).

Multistate Bar Exam Practice Test

Multistate Bar Exam Practice Test

Criminal Law MBE Practice Test 2017