MBE Critical Pass Flashcards

Questions and Answers

Exclusionary evidence does not apply to which of the following? (Select all that apply)

Parole hearings (correct)

Grand jury proceedings (correct)

Evidence seized due to Miranda violations

Civil proceedings (correct)

What is the main difference between extortion and robbery?

Extortion does not require a taking from the victim's person or presence; it involves threats of future, rather than immediate harm.

What must be shown for a defendant to have standing to challenge a search or seizure under the 4th amendment?

The defendant must have a reasonable expectation of privacy in the thing or place to be searched.

What happens if prosecutors seek an indictment from a grand jury based on evidence obtained in violation of the exclusionary rule?

The exclusionary rule does not apply. Signup and view all the answers

What constitutes a killing that is deliberate and premeditated?

The defendant must have killed in a dispassionate manner and must have considered or reflected on the killing. Signup and view all the answers

When does a defendant have a right to a jury trial and what part of the constitution provides this right?

The Sixth Amendment provides a defendant the right to a jury trial for serious offenses. Signup and view all the answers

When is the use of deadly force permissible by police to effectuate an arrest?

Deadly force is permissible to prevent the escape of a fleeing felon or if the fleeing felon poses a threat of death or serious bodily harm. Signup and view all the answers

Is a warrant required for police to execute an emergency arrest occurring in the arrestee's home?

False Signup and view all the answers

Do witnesses have a right to counsel inside a grand jury?

False Signup and view all the answers

What rules apply when a defendant acts in defense of others?

Defendant can defend another if he reasonably believes the person he is protecting could have legally defended himself. Signup and view all the answers

Can police search the trunk of an automobile incident to a lawful arrest of the driver?

False Signup and view all the answers

What are the requirements for an effective defense of involuntary intoxication?

An intoxicant is taken involuntarily if taken without knowledge of its nature, under duress, or pursuant to medical advice without notice of its intoxicating effect. Signup and view all the answers

What is a plain view search?

Police may search from any place where they are legitimately present when viewing. Signup and view all the answers

What must be the effect of the creation or alteration of a document for it to give rise to forgery?

To be false, modifying the document must change its legal significance, not just make it inaccurate. Signup and view all the answers

If one is found to be an accomplice, to what extent are they liable for crimes committed by the principal?

An accomplice is liable for the crimes he committed or counseled and any other probable or foreseeable crimes committed. Signup and view all the answers

Is there a limit on what police can search when they obtain valid consent?

False Signup and view all the answers

What theory controls the negotiation and enforcement of plea bargains?

The contract theory of plea bargaining governs. Signup and view all the answers

Felony murder is a killing caused during what?

During the attempt or commission of an inherently dangerous or statutorily enumerated felony. Signup and view all the answers

In what circumstances would exigent circumstances exist allowing a warrantless search or seizure?

Evanescent evidence, hot pursuit, and emergencies are forms of exigent circumstances. Signup and view all the answers

What is a grand jury and is it required to be used?

Grand juries are required in federal court under the 5th amendment. Signup and view all the answers

In what situations will one always have a reasonable expectation of privacy?

If the defendant owns, has a right to possess, or lives in the premises to be searched, or is an overnight guest. Signup and view all the answers

What is the definition of voluntary manslaughter?

A killing resulting from adequate provocation or imperfect self-defense. Signup and view all the answers

When can a failure to act constitute actus reus for a given crime?

When the defendant had a specific legal duty to act, knowledge of facts giving rise to the duty, and it was reasonably possible to perform the duty. Signup and view all the answers

What is a stop and frisk?

Police may detain a person for an investigative purpose if they have reasonable suspicion of criminal activity. Signup and view all the answers

What are the main specific intent crimes?

Larceny, solicitation, conspiracy, forgery, assault, larceny by trick, embezzlement, robbery, burglary, first-degree murder, and false pretenses. Signup and view all the answers

When must a search warrant be executed once it is issued?

Without unreasonable delay after it is issued. Signup and view all the answers

What are the exceptions to the 4th amendment search warrant requirement?

Search incident to arrest, plain view search, automobile search, valid consent, exigent circumstances, stop & frisk. Signup and view all the answers

What is the 5th amendment right to counsel?

Once accused requests counsel unambiguously, police must cease all questions on any topic. Signup and view all the answers

If police illegally search evidence but show that they would have discovered it anyway absent illegal conduct, can it be admitted?

Yes, if the government can break the chain between the illegal conduct and the seized evidence. Signup and view all the answers

What warrant requirements exist for searches conducted at the border?

At borders, routine searches of persons and their effects can be conducted without a warrant. Signup and view all the answers

What insanity test does the MPC use?

A combination of the M'Naghten and Irresistible Impulse tests. Signup and view all the answers

What constitutes a crime committed knowingly for criminal law purposes?

A person acts knowingly when he is aware that his conduct is of a particular nature or will likely cause a result. Signup and view all the answers

What is a search incident to lawful arrest?

Police may search a lawfully arrested person and his immediate surrounding area without a warrant. Signup and view all the answers

A remainder will be contingent if it is either?

Subject to a condition precedent or created in favor of an unascertained or unborn person. Signup and view all the answers

What is a fee simple subject to an executory interest?

A fee simple that automatically transfers to a third party upon the happening of a given event. Signup and view all the answers

When must a modification to a contract be in writing?

Under the UCC, a modification must be in writing if it falls within the Statute of Frauds. Signup and view all the answers

Protected speech receives what level of scrutiny?

It depends on whether the speech restriction is content-based or content-neutral. Signup and view all the answers

If a defendant uses the legal system as an ulterior purpose to threaten or act against a plaintiff, what claim may the plaintiff bring?

Abuse of process. Signup and view all the answers

What type of prior conduct may be admissible as evidence of habit?

Conduct must be highly specific and frequently repeated. Signup and view all the answers

What is the contract clause and to what does it apply?

States cannot impair existing contractual duties. Signup and view all the answers

If a conveyance gives a life estate to a grantee with a remainder to the grantee's heirs, what rule applies at common law?

Merger (Shelley's rule) applies; at common law, the two estates merge. Signup and view all the answers

Can a plaintiff who dismissed his case without leave of court file the claim again?

Yes, dismissal without leave of court is allowed before an answer or motion for summary judgment. Signup and view all the answers

What requirement must be met for any testifying witness?

Testifying witnesses must be competent and satisfy the requirements of basic reliability. Signup and view all the answers

When the grantor creates a life estate in another but creates a future interest in the grantor's heirs, what doctrine arises?

The doctrine of worthier title arises. Signup and view all the answers

When is notice to an adverse party not required for a temporary restraining order?

If moving party shows immediate and irreparable injury will result to her before adverse party can be heard in opposition and describes efforts made to give adverse party notice. Signup and view all the answers

What remedy is available to a seller if a buyer in a UCC contract stops paying or becomes insolvent?

Reclamation. Signup and view all the answers

At what point does jeopardy attach for double jeopardy purposes?

The start of trial generally required. Signup and view all the answers

When is a co-defendant's confession that implicates a defendant inadmissible?

At a joint jury trial. Signup and view all the answers

What classifications receive rational basis standard of review in an equal protection analysis?

Alienage. Signup and view all the answers

What must exist for the creation of an equitable servitude?

Writing, intent, touches and concerns the land, notice. Signup and view all the answers

Is an attorney's fee agreement with a client protected under the attorney-client privilege?

False Signup and view all the answers

If an attorney represents an organization, to whom does the attorney-client privilege apply?

Any employee authorized to speak to the attorney. Signup and view all the answers

What role does a forum state's interest play in determining whether the exercise of personal jurisdiction is fair?

The forum state must have an interest in providing redress for its residents or an interest in the outcome of the case. Signup and view all the answers

What are the three factors in determining if jurisdiction is fair for personal jurisdiction?

Relatedness of contacts and claims, convenience, state's interest. Signup and view all the answers

What constitutes depraved or malignant heart murder?

A killing committed with reckless indifference to an unjustifiable risk of human life. Signup and view all the answers

When would diminished capacity be an effective defense to criminal liability?

If the defendant can show a mental defect that prevented forming the required mental state for the crime. Signup and view all the answers

In what situations is a communication between an attorney and client protected by attorney-client privilege?

If it is intended to be confidential and made to facilitate legal services. Signup and view all the answers

If a document is used to refresh a witness's memory during testimony, what rules apply?

Anything can be used, but the witness cannot read aloud from it. Signup and view all the answers

What is the implied covenant of quiet enjoyment?

A tenant's right to quiet use and enjoyment of the premises without interference. Signup and view all the answers

What requirements must be satisfied for a recorded recollection to be read into evidence?

Witness must have had personal knowledge, memory insufficient, record made when fresh, and accurately reflects knowledge. Signup and view all the answers

If a defendant in a criminal trial introduces evidence of good character, what are potential consequences?

Plaintiff may rebut through cross-examination or calling witnesses to testify about the defendant's bad character. Signup and view all the answers

What is the standard of care expected of a professional in a given industry?

Expected to act with the care of an average member of the profession in good standing. Signup and view all the answers

If parties to a contract agree to accept different performance, is this an accord, a satisfaction, or both?

Accord. Signup and view all the answers

If a buyer notifies a seller that goods delivered are defective, can the seller cure? How?

Yes, if seller gives notice of intent to cure and time for performance has not expired. Signup and view all the answers

If a defendant invokes their 5th Amendment privilege and does not testify, can the prosecution comment on this?

False Signup and view all the answers

In what ways can a killing committed during an act of self-defense be reduced from murder to voluntary manslaughter?

Imperfect self-defense. Signup and view all the answers

Under common law, can there be a conspiracy where only one person has the requisite criminal intent?

False Signup and view all the answers

What is the definition of extortion?

Obtaining property through threats of future harm or exposing information. Signup and view all the answers

What is a detention under the 4th amendment? How is it different from an arrest?

A government seizure of a person that is less than a full custodial arrest. Signup and view all the answers

To what extent does a defendant have a right to be present at their criminal trial?

Defendant has a right to be present for all critical stages. Signup and view all the answers

May police search the contents of an arrestee's cell phone without a warrant?

False Signup and view all the answers

The right to a speedy trial is guaranteed in what part of the Constitution? What protection does it provide the defendant?

The 6th Amendment. Signup and view all the answers

Is withdrawal from a co-conspirator's crimes effective as a defense to liability for the target offense of the conspiracy?

False Signup and view all the answers

What act and intent requirements exist for the inchoate offense of attempt?

An act done with specific intent to commit a crime constituting an overt or substantial step toward committing the crime. Signup and view all the answers

What is the factor that distinguishes larceny by trick from false pretenses?

Possession vs. ownership. Signup and view all the answers

If a defendant commits a killing during an alleged robbery but is found not guilty of the robbery, can he be guilty of felony murder based on the robbery?

False Signup and view all the answers

What must be established to prove adequate provocation for voluntary manslaughter?

Provocation must cause sudden and intense passion, defendant was in fact provoked, insufficient cooling off time. Signup and view all the answers

What is evanescent evidence, and what authority do police have regarding a warrantless search or seizure of evanescent evidence?

Evanescent evidence is evidence that could disappear; police can search or seize it without a warrant under certain circumstances. Signup and view all the answers

What must one do to be liable for the inchoate crime of solicitation? At what point is solicitation a completed offense?

Inciting, urging, or asking another to commit a crime with intent, completed when solicitation is made. Signup and view all the answers

What is proximate cause for criminal law purposes? What could negate proximate cause?

The actual result is a natural consequence of defendant's conduct; superseding factors may negate causation. Signup and view all the answers

What is required for someone to effectively withdraw from a crime such that they are not liable as an accomplice?

Repudiate prior aid, counteract prior aid, do so before chain of events is in motion. Signup and view all the answers

What is continuing trespass, and at what point can it become larceny?

When one borrows property intending to return it but later keeps it; larceny arises when the intent to return is abandoned. Signup and view all the answers

What is required to detain someone at the border?

Reasonable suspicion. Signup and view all the answers

When police use force to effectuate an arrest, to what extent may they use non-deadly force?

Non-deadly force is permissible to reasonably effectuate an arrest. Signup and view all the answers

What is required for a defendant to show, on appeal, that they had ineffective assistance of counsel at their criminal trial?

Defendant must show there is a reasonable probability that the trial outcome would have been different absent deficient performance. Signup and view all the answers

In what situation can a finder of a lost item become criminally liable for larceny?

If the true owner is known or ascertainable, and the defendant decides to keep the property. Signup and view all the answers

Under the theory of assault as a threat, what conduct gives rise to assault?

Intentional creation of victim's reasonable apprehension of imminent bodily harm. Signup and view all the answers

What inchoate offenses merge with a completed substantive offense?

Solicitation and attempt. Signup and view all the answers

The 4th amendment only applies to government conduct, but in what situation might conduct by private citizens constitute government conduct?

When private persons act at the direction of government agents. Signup and view all the answers

What requirements must be satisfied for police to obtain valid consent to search?

Consent must be voluntarily made and the person giving consent must have authority to consent. Signup and view all the answers

When are Miranda warnings required for witnesses or suspects during grand jury proceedings?

False Signup and view all the answers

If police try to arrest a suspect in public, but she flees into a private dwelling without a warrant to effectuate the arrest?

Police can enter into a private dwelling if they have probable cause. Signup and view all the answers

What rights does a defendant have to challenge potential jurors in a criminal trial?

Right to an impartial jury, question potential jurors on prejudices, peremptory challenges allowed. Signup and view all the answers

Can a judge direct a verdict as to a defendant's guilt?

False Signup and view all the answers

Are prosecutors allowed to offer immunity in exchange for potentially incriminating grand jury testimony?

False Signup and view all the answers

Can illegally obtained evidence be used to impeach a defendant at trial? What about a non-defendant witness?

False Signup and view all the answers

What effect would an infancy defense have if the defendant is 9 years old?

Rebuttable presumption against criminal liability. Signup and view all the answers

In what narrow circumstances can mistake of law be an effective defense?

Reasonable reliance on an invalid statute or mistake negating knowledge of an element. Signup and view all the answers

The 8th amendment prohibition on cruel and unusual punishment bars what type of punishment?

False Signup and view all the answers

What is the knock and announce requirement with regard to executing a search warrant?

Police must knock, announce their purpose, and wait a reasonable time for admittance. Signup and view all the answers

Study Notes

Temporary Restraining Order

Notice to the adverse party isn't required when there is a showing of immediate and irreparable injury to the moving party, and efforts to notify have been described.

UCC Contract Remedies

Unpaid sellers can reclaim goods from an insolvent buyer, but cannot reclaim from subsequent buyers.

Double Jeopardy

Jeopardy attaches at the beginning of a trial: when a jury is impanelled for jury trials, when the first witness is sworn in for bench trials, and upon acceptance of a plea agreement.

Co-Defendant Confessions

A co-defendant's confession is inadmissible against the defendant during a joint jury trial but can be permissible in a bench trial.

Equal Protection Analysis

Rational basis review applies to classifications of alienage relating to self-government or congressional immigration actions; other classifications include age, disability, and wealth.

Equitable Servitude Requirements

Creation requires a written promise, intent to bind successors, the promise must touch and concern the land, and successors must have notice.

Attorney-Client Privilege

Attorney's fee agreements are generally not protected under attorney-client privilege, although communications intended to facilitate legal services remain protected.

Organizational Client Representation

Attorney-client privilege applies to any employee authorized to speak with the attorney on behalf of the organization.

Personal Jurisdiction Factors

The forum state's interest in providing redress for residents and the outcome of the case is crucial for determining fairness in personal jurisdiction.

Murder Definition

Depraved or malignant heart murder entails reckless indifference to an unjustifiable risk of human life.

Diminished Capacity Defense

Available if the defendant shows a mental defect preventing the formation of the requisite mental state for specific intent crimes.

Reviving Witness Memory

Anything can refresh a witness's memory during testimony; they can't read aloud but may look at the document briefly before continuing.

Implied Covenant of Quiet Enjoyment

Tenants are entitled to quiet use and enjoyment, with breaches possibly occurring through actual or constructive eviction.

Recorded Recollection as Evidence

Conditions include personal knowledge by the witness, inability to recall, freshness of the record, and accurate reflection of the witness's knowledge.

Character Evidence in Trials

If a defendant introduces evidence of good character, the prosecution may rebut with cross-examination of character witnesses or by presenting evidence of bad character.

Professional Standard of Care

Professionals are expected to act with the care typical of average members in their profession within similar communities.

Accord and Satisfaction

An accord is a new agreement to accept different performance, and satisfaction occurs once the new agreement is fulfilled.

Seller's Right to Cure Defective Goods

A seller can cure defects if they notify the buyer of the intent to cure and do so within a reasonable timeframe or had reasonable grounds to believe the initial goods would be acceptable.

Fifth Amendment Privilege

The prosecution cannot comment on a defendant's invocation of the Fifth Amendment or their silence at trial.

Voluntary Manslaughter

A killing in self-defense can reduce murder to manslaughter if the defendant initiated the confrontation or unreasonably perceived a need for deadly force.

Conspiracy Requirements

At common law, two individuals must have criminal intent for conspiracy, while the MPC allows for unilateral conspiracy.

Definition of Extortion

Extortion involves obtaining property through threats of future harm, differing from robbery that necessitates immediate threats.

Detention under the Fourth Amendment

Defined as a government seizure less than a full custodial arrest.

Right to be Present at Trial

The Sixth Amendment guarantees a defendant's right to be present for critical stages of their trial.

Cell Phone Searches

Police may not search digital information on an arrestee's phone without a warrant.

Speedy Trial Rights

The Sixth Amendment protects against unreasonable delays from charges being filed to trial commencement, applicable once the defendant is arrested or charged.

Withdrawal from Conspiracy

Under common law, once in a conspiracy, a defendant cannot withdraw, but the MPC allows withdrawal if the conspirator thwarts the plan.

Attempt Requirements

Requires an overt act beyond mere preparation reflecting specific intent to commit a crime.

Larceny by Trick vs. False Pretenses

The key distinction lies in possession (larceny by trick) versus ownership (false pretenses).

Felony Murder Doctrine

A defendant cannot be convicted of felony murder if not guilty of the underlying felony.

Adequate Provocation for Manslaughter

Must be shown that provocation causes intense passion, the defendant was actually provoked, insufficient time to cool off existed, and the defendant did not cool off.

Evanescent Evidence

Evidence that may disappear without a warrant can be seized based on the totality of circumstances.

Inchoate Crime of Solicitation

Requires inciting someone to commit a crime; complete upon asking, merging with conspiracy if the solicited party agrees.

Proximate Cause in Criminal Law

Constitutes a result being a natural outcome of conduct, negated by unforeseeable intervening acts.

Effective Withdrawal from Accomplice Liability

Requires repudiation of prior aid, taking action to counteract that aid, and doing so before the situation is irreversible.

Continuing Trespass to Larceny

Arises when one borrows property intending to return it but later decides against it.

Border Detention Requirements

Reasonable suspicion is required for detention at the border.

Non-Deadly Force During Arrest

Reasonable non-deadly force is permissible to effectuate an arrest while deadly force is allowed against fleeing felons posing serious threats.

Ineffective Assistance of Counsel Defense

A defendant must demonstrate a reasonable probability that the outcome would differ if not for counsel’s deficiencies.

Finder Liability for Larceny

Can incur larceny charges if they know the true owner of a lost item and decide to keep it.

Assault as a Threat

Represents an intentional act creating a reasonable apprehension of imminent harm in the victim.

Merging Inchoate Offenses

Solicitation and attempt merge with the completed substantive offense.

Government Conduct by Private Citizens

Conduct by private individuals can be deemed state action if executed under government direction.

Consent must be voluntary and the person providing it must have authority.

Miranda Warnings in Grand Jury Proceedings

These warnings are not required for witnesses or suspects during grand jury sessions.

Hot Pursuit and Arrest

Police may enter a private dwelling to arrest a suspect if they are in hot pursuit with probable cause.

Jury Selection Rights

The defendant has rights to question potential jurors for biases and to challenge jurors peremptorily but can't exclude based on race or gender.

Directed Verdicts

Judges cannot direct a verdict of guilt, as this would violate the right to a jury trial; however, they can direct a verdict of acquittal.

Granting Immunity for Testimony

Prosecutors can offer immunity for potentially self-incriminating grand jury testimony.

Use of Illegally Obtained Evidence

Confessions resulting from Miranda violations can be used for impeachment at trial, but not generally for non-defendant witnesses.

Infancy Defense

A child under 7 years has no criminal liability; ages 7-14 bear a rebuttable presumption against liability.

Mistake of Law Defense

Rarely valid, may apply if there is reliance on an invalid statute or if ignorance negates a required element of the crime.

Eighth Amendment Protections

Prohibits punishment that is grossly disproportionate to the offense committed.

Knock and Announce Rule

Police must announce their presence before entering to execute a search warrant unless dangerous or futile circumstances exist.

Illegal Evidence in Grand Jury

Evidence obtained through illegal searches may be used in grand jury proceedings, which are exempt from the exclusionary rule.

Extortion vs. Robbery

Extortion involves future harm threats, while robbery requires immediate threats and taking from the victim's presence.

Fourth Amendment Standing

A defendant must possess a reasonable expectation of privacy in the searched location to challenge a search or seizure.

Indictment Based on Exclusionary Evidence

Prosecutors can seek an indictment based on evidence inadmissible at trial due to exclusionary violations.

Deliberate and Premeditated Killing

Killing that is deliberate involves consideration or reflection preceding the act, with specific intent as a requirement.

Right to Jury Trial

The Sixth Amendment assures this right for serious offenses, involving potential imprisonment over six months.

Deadly Force by Police

Use of deadly force is permitted to prevent the escape of felons when they pose a threat of death or serious harm.

Emergency Arrest Warrant Requirement

Emergency arrests within a person's home generally do not require a warrant if the arrest follows the suspect into the home.### General Legal Definitions and Procedures
Emergency arrests in a home do not require a warrant.
Witnesses in grand jury proceedings do not have the right to counsel.
Defense of others follows the same principles as self-defense; defendants can protect others if they reasonably believe the person could lawfully defend themselves.
Non-deadly force is allowed if the defendant: is not the initial aggressor and reasonably believes unlawful force is imminent; force must be proportionate to the offense.

Police Procedures and Search Laws

Police cannot search the trunk of a vehicle without probable cause or consent after a lawful arrest.
A plain view search allows police to search from any legitimate location when viewing evidence.
A valid consent allows police to search any area or item.
At borders, routine searches do not require a warrant or probable cause.

Liability and Accomplice Rules

Accomplices are liable for crimes they committed, counseled, or any foreseeable crimes committed during the offense.

Crime Definitions

Felony murder occurs during the commission of an inherently dangerous felony.
Involuntary intoxication is when a person consumes an intoxicant without knowledge, under duress, or due to uninformed medical advice.
Voluntary manslaughter involves killings stemming from adequate provocation or imperfect self-defense.

Criminal Law Standards and Tests

Knowingly acting means awareness of the nature of one's actions, using a subjective standard.
A failure to act constitutes actus reus if there's a specific legal duty to act, knowledge of that duty, and the ability to perform it.

Searches and Seizures

Exigent circumstances, such as evanescent evidence, hot pursuit, and emergencies, justify warrantless searches.
The search incident to lawful arrest allows police to search the arrestee and immediate surroundings without a warrant; requirements include legal arrest, contemporaneous search, and limited area of search.

Plea Bargaining and Contract Law

Plea bargains follow contract theory; both parties are held to the agreement, but judges can reject the arrangement.
Fee simple subject to an executory interest automatically transfers to a third party upon a specified event.

Evidence Standards

Protected speech scrutiny varies: content-based restrictions require strict scrutiny, while content-neutral restrictions demand intermediate scrutiny.
Habit evidence must be specific and frequently demonstrated, reflecting a person's instinctive response to consistent circumstances.

Witness Competency and Legal Doctrine

Witnesses must be competent, demonstrating personal knowledge, memory, communication ability, and sincerity.
The doctrine of worthier title voids contingent remainders in favor of a grantor's heirs, affirming a reversion to the grantor.

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Description

Test your knowledge with this set of flashcards focused on key legal principles relevant to the Multistate Bar Examination (MBE). Covering topics such as temporary restraining orders and remedies in UCC contracts, these cards are designed for efficient review and retention of crucial information. Perfect for law students and bar exam candidates!