The answers that you see below are actual candidate answers that are unedited.

February 2009

Question #1
 

CRIMINAL

A and B drove through a neighborhood of vacation homes in the off season looking for an unoccupied residence.  They found a house with no lights on at the end of a cul-de-sac. Breaking a rear window, they entered the house.

Once inside, they located the master bedroom and began putting jewelry into a pillowcase. They were suddenly interrupted by the homeowners’ son C, who lived there in the off season. A struck C with his flashlight, knocking him unconscious. Panicked, A and B fled the home, with the pillowcase, in A’s vehicle. C recovered consciousness and called the police to report a break-in.

A and B drive several miles away and park the vehicle in order to examine the jewelry. Officer Smith, on routine patrol, notices the vehicle parked in an area known for drug trafficking. After viewing the car and its occupants for over 15 minutes, he approaches the vehicle and asks the occupants for identification. He shines his flashlight into the car and views the pillowcase on the passenger side floor. Suspicious, he asks the occupants to exit the vehicle and places them in handcuffs in his police car. He returns to A’s vehicle and examines the pillowcase, discovering the jewelry. He transports A and B to the police station where they are put in separate interrogation rooms for questioning after receiving the appropriate Miranda warnings.

 B is questioned by Detective Wesson for over one hour. He consistently denies any involvement in any crime. Detective Wesson leaves the room, telling B he is going to speak with the detective questioning A. Upon his return, Detective Wesson tells B that he thinks that A has told the police that “It was all B’s idea and B hit the kid.” At the time he makes the statement Detective Wesson does not know what A has said to the detective questioning him, if anything. B then admits his involvement, but denies hitting anyone, saying “A did that.”

B has retained your firm for representation in this matter. The partner to whom you report has asked you to review the above facts and prepare a memorandum setting out the possible crimes for which your client can be indicted and any defenses B may have in this matter.

Prepare the Memorandum

SAMPLE ANSWER A - CRIMINAL

MEMORANDUM

To: Partner
From: Candidate
Date: February 26, 2009
Re: State v. B

POTENTIAL CRIMINAL CHARGES.

B has admitted to the police his involvement in an incident at a local home.  As a result, there is a possibility that B could be charged with several crimes.  First, B may be charged with Burglary.  At common law, burglary is the breaking and entering the dwelling house of another at night with the intent to commit a felony therein.  B broke into the home via a rear window and entered the house belonging to C's parents.  Based on the presented fact, it cannot be stated for sure whether the entry was at night, however, we know that the house did not have lights on at the time of the crime which would have indicated that someone was home and that the police officer used his flashlight to see into the vehicle when he stopped A and B.  From this information, we can conclude that the breaking and entering occurred at night.  Many states are also either dropping the night (time) requirement or expanding its applicability.  B also had the requisite intent at the time of the breaking and entering.  He, and A, intended to enter the home without permission or consent in order to steal valuable items.  This can be shown because B went immediately up to the master bedtoom and located the owner's jewelry which he proceeded to take. 

B may also be charged with Larceny or theft.  Larceny is the taking and carrying away (however slight) of the personal property of another without consent with the intent to permanently deprive.  Here, B took the owner's personal property - her jewelry - without consent and carried it out of the house.  There was no indication that he thought the jewelry rightfully belonged to him.  Instead B and A intended to steal the jewelry. 

Additionally, B may be charged with assault and/or battery.  Battery requires a harmful or offensive contact with the person of the plaintiff without consent that causes injury.  Here, under the facts, A was the co-defendant who actually struck C with his flashlight, knocking him unconscious and satisfying the elements of battery.  If the contact caused an immediate apprehension in C, there could also be a charge of assault.  Even though A was the actual perpetrator of the assault and battery, B may be liable as a co-conspirator or accomplice.

A conspiracy requires a meeting of two or more guilty minds who enter into an agreement. The parties must intend to enter into the agreement and intend on accomplishing the goal of the agreement.  Generally, there must also be an overt act in furtherance of the conspiracy, even something as minor as mere preparation.  These elements are clearly met by the facts.  A and B agreed to drive through a neighborhood of vacation homes in the off season to look for an unoccupied residence which they could rob.  In a conspiracy, co-conspirators will be liable for all foreseeable consequences and results of their actions.  Similarly, accomplice liability may be invoked because accomplices are also liable for the criminal acts of their co-accomplices.  Thus, even though A perpetrated the assault and battery on C, B may still be liable and share in the charge.

B may also be liable for robbery which is a larceny and an assault.  Is is the taking and carrying away of the personal property of another without consent and from the person of the plaintiff with threats of force or bodily injury with the intent to permanently deprive.  This may be another charge based on the aforementioned elements under larceny and assault.

Finally, B may be charged with trespass or criminal trespass.  He intentionally entered the property of another without consent and he intended to commit a felony thereon.  This interfered with the owner's rights of possession. 

POSSIBLE DEFENSES

B will likely be able to assert that the jewelry discovered by the police officer at the site of the stop should be suppressed and B will likely succeed.  B and A were stopped by Officer Smith following the burglary.  There was no warrant for their arrest and Officer Smith had no information at the time regarding the burglary, the identity of the suspects or a description of their car.  Smith had no reason to believe that A and B were involved when he pulled them over.  Instead, Officer Smith noticed A and B because they were parked in an area known for drug trafficking.  After following A and B for approximately 15 miles, Smith then pulled them over.  The general rule, is that an officer must have reasonable suspicion that criminal activity is afoot to pull over a vehicle and make a stop.  Here, the fact that A and B were parked in an area known for drug-trafficking does not provide the officer with reasonable suspicion that they were invovled in criminal activity.  Additionally, there was no indication that during the 15 minutes that Smith followed A and B, that he obserrved any erratic driving or traffic violations that would justify the stop. 

Generally an officer may not make a warrantless search.  However, under an exception to this fourth amendment rule, an officer may make a warrantless search during a vehicle stop.  The vehicle stop must have been valid and made with reasonable suspicion which is not the case here.  Moreover, because Smith did not have a warrant or reasonable suspicion, the court would also consider the fact that it was an invasion of a place where A and B had a reasonable expectation of privacy in which an officer cannot interfere without meeting the exeception.  When Smith did make the stop and noticed a pillowcase in the car, there is no other evidence that would warrant the officer to believe that the pillow case contained contriband or illegal evidence.  Finally, when officer smith examines the jewelry, there was no indication that it was stolen at that time.  During the stop, A and B were outside of their vehicle and in handcuffs.

At no point during the stop was B told that he was arrested or given his miranda warnings.  It was not until A and B were brought to the police station for individual and separate interrogation that they were given their warnings.  the general rule is that miranda applies whenever a person is in police custody.  Custody means that a person is not free to leave.  A and B were placed in handcuffs at the scene, placed in the police vehicle and then taken to the station for questioning.  Interrogation includes any time in which the police are likely to know that the circumsntances or questioning could result in something incriminating against the defendant.  Here, A and B should have been given their Miranda warnings at the scene of the vehiclular stop.  Because they weren't, we could argue a violation of B's miranda rights and a violation of the fourth amendment's right against unreasonable searches and seizures.

SAMPLE ANSWER B - CRIMINAL

RE: Client B

Crimes of B

In the present case against B, the following crimes will possibly follow the indictment: conspiracy, burglary, larceny, battery, and robbery.

Based upon the facts presented, A and B have entered into a conspiray to commit burglary.  The elements of a conspiracy involve an agreement and an act in furtherance of the conspiracy.  Here, A and B had an agreement in place to search for an empty house in which they would attempt to enter for criminal purposes.  The act in furtherance is a minimal requirement, the driving through the neighborhood looking for a location would qualify.  Based upon the conspirator relationship, B will be liable for any act that the A commits while carrying out the crime. 

The crime in which the two perpetrators will be charged with is that of burglary.  The elements of burglary involve breaking and entering a dwelling with the intent to commit a crime.  In this case, the neighborhood of residences qualifies as a dwelling, the breaking of a rear window qualifies as entering, and the larceny of the jewelry inside the home was the crime.  Burglary requires a specific intent criminal state of mind.  In this case, based upon the fact the two perpetrators had actively sought out a residence of a particular kind to then enter and steal from, it is assumed that their intent was to specifically enter for criminal purposes. 

Once inside the residence, A and B committed larceny of the residence's jewelry.  Larceny is the unlawful taking of another's property with the intent to deprive that person of the use of the item in a permanent manner.  Larceny is theft of the item.  In this case, the two perpetrators actively began putting jewelry into the pillowcase for the purpsoes of depriving the true owners.  The two specifically intended to steal this jewelry, as eveident by the search and overall exigence of finding the master bedroom so that they could find the jewelry. 

When C interrupted the two perpetrators in the process of loading the pillowcase with jewelry, he was abruptly hit with a flashlight rendering him unconscious.  A committed the actual act of hitting C, however B is still llibable as this act was during the commission of the crime that the two perpetrators had conspired to perform.  In this case, there is a charge of battery against C to be brought agaisnt the defendants.  Battery is the unlawful application of force against a victim, there needs to be specific intent to batter as well.  In this case, A's hit of C with teh flashlight qualifies as unlawful application of force against the victim.  Further, A specifically intended to hit C with the light so that the two perpetrators could make a clean getaway from the residence.  Dependent upon the level of force applied against C, and whether or not that force rose to a level of deadliness, A and B could be charged with attempted murder dependent upon the agressiveness of the prosecution.  Any blow that will knock someone unconscious is serious enough to be considered as deadly.  However, this is a weaker claim that that of battery.

While the charge of battery and larceny are pending against A and B, the charge of robbery presents itself.  Robbery is the unlawful application of force for the intent of committing larceny.  Or, in other words, the use of force to steal an item from an individual.  In this case, the timeframe of the larceny and battery overlapped enough to amount to a charge of robbery.  Robbery requires a specific intent to perform, in this case, A and B specifically intended for the application of force against C to allow them the oppurutnity to fulfill the elements of the theft.  The overlap of the facts leads to a situation where the presecution will bring a charge of robbery of C as C was involved when discovering the two individuals in the room at a later time. 

Defenses of B

The initial defenses of B will relate to B not meeting the elements of the crimes to be charged.  Further, B has claims of unlawful search and seizure under the 4th Amendment, as well as unlawful interrogation methods in violation of the 5th and 6th Amendment.

In response to the charge of conspiracy against A and B, B will defend on the grounds that there was no agreement to commit the crimes.  However, the standard for the conspiracy agreement is a rather low standard, and a the facts as presented give a weak defense against the conspiracy charge.  B can defend this charge based upon not meeting the elements of conspiracy in that he never actually intended or meant to commit an act in furtherance of the conspiracy.  This is a weak argument though.  B's best defense against conspiracy is to create a situation in which impossibility plays a significant factor. In this jurisdiction, if A is not charged with any crimes or indicted for conspiracy, B cannot be charged for conspiracy.  There is no single person conspiracy by definition, as it would be an impossibility to have only a single culpable individual committing a conspiracy. 

In defense of burglary, B will make the claim that they did not intend to enter for the purposes of commiting a crime.  Based upon the facts as presented, they simply broke and entered to get into the house and then later on committed a crime.  There is a concurrence problem between the entering and the crimes committed.  A concurrence problem will break the chain of elements necessary for the burglary charge.  Further, the intent of the individual is always a defense to crimes of specific intent.  If B did not specifically intend to commit these crimes, he will further break the elements needed for this crime.

The defenses to battery will lie hand in hand to that of the defense to conspiuracy.  If there was no conspiracy, B will not be liable for the acts committed by A.  The acts will not be imputed upon him since a single person conspiracy cannot exist.  However, even so, B can be held for accomplice liablity as he provided considerable help in furtherance of the crime that resulted in teh battery to C.

The larceny charge against B will be the hardest to defend based upon the initial facts.  It is rather evident that the two individuals fled the home with the property that did not belong to them, and they intended to keep this property, and udnerstood it was someone else's.  The best defense to this crime results from the two individuals getting the evidence excluded from the case by means of an unreasonable search and seizure by the arresting police officer.

The office on routine patrol that eventually arrested A and B must comply with the constitutional protections afforded the citizens of this country.  A and B have a right to privacy and reasonable searches and seizures.

A reasonalble search and seizure can exist only in a location where the individuals have a no expectation or privacy or, with an appropriate search warrant and probable cause, in a location that the individuals have an expectation of privacy.

In the automobile of A and B, there existed a reasonable expectation of privacy from government intrusion.  For the officer to make a search there must be reason for him to do so.  The officer relies upon the Terry doctrine that gives him the reasonable suspicion necessary to make a brief stop and frisk of the individuals and the car.  Based upon the facts of the case, the two individuals stopped in a drug trafficking area for an extended time gave the officer the reaosnable suspicion that illicit activity might be going on.  Reasonable suspicion is not a hunch, it is a collective reasoning based upon the totality of the circumstances, that will give the officer a reason to investigate.  The officer had plenty of reason to approach the car and ask the two what was going on, he then frisked the individuals for protective reasons and gazed into the open area of the car. 

The open areas of the car led to an application of the plain view doctrine, in which the officer then saw the pillowcase on the back seat.  The seeing of the pillowcase gave the officer probable cause to search the car.  The probable cause to search the car came with an exception to the warrant requirement of exigent circumstances as the officer was alerted to the disappearance of a pillow case full of jewels and a pillowcase in the back seat of a car is not something that is standard to every individual. 

Further, the fact that the officer arrested the two individuals gave rise to a search incident to arrest. In a search incident to arrest, the officer may search the car, except for the trunk, for dangers to himself adn others.  In this search, the seraching of the pillowcase would be allowed as weapons or other dangers could be contained inside of this.

B's greatest defense to these searches and seizures come from breaking the chain of causation between the reasonable suspicion leading to the probable cause and search incident to arrrest.  If he can show the officer had not indication of reasonable suspicion, the evidecen that was gathered will be excluded as unlawfully obtained.  Further, the officer incorrectly arresting the  two inidividuals without any probable cause would exlude evidence gathered from this means.  The more that B can exclude from the prosecutions case, the better he will be.

In addition to challenging the valididty of the search and arrest by the officers, B has defenses against his eventual confession made to the detective.  However, this is weaker argument that the others as it apperas the detectives complied with teh Miranda doctrine fully in this interrogation.  Miranda requires that B is read his rights as pursuant to the 5th amendment right against self incrimination.  He was read his rights and then placed into police custody for the purpsoes of interrogation.  The fact the prosecution used a white lie to try and coerce the confession is perfectly legal, this is a police tactic that is in full compliance  with the consittution.  Further, the 1 hour confession was not an unreasonable lenght of time for questioning.  The overall defense against the confession is weak from a 5th amendment standpoint, unless the denfendant was due the right to counsel in this matter.  The 6th amendment will guaranty B a right to counsel if requested.  The charges to these crimes amount to a level where counsel will be appointed if needed as well.  The greatest defense to the confession will be that B was taken in due to an unreasonable arrest, and therefore the confession should be excluded as an unlawful interrogation was undertaken.  The fruits of the Miranda interrogation will be exlcuded as well if the interrogation was takne in an illegal manner.

The best advice to B from this law firm would be to seek a plea arrangement with the prosecutors, as the case against him and A is rather strong.