MBE Tip of the Day: Criminal Law
Welcome to our MBE tip of the day series. This “MBE tip of the day” post focuses on Criminal Law and Procedure.
You will see 25 scored Criminal Law and Procedure MBE questions. (About half the questions test Criminal Law and half test Criminal Procedure.) In this post, we will review a Criminal Law MBE question.
Note that we have posted several MBE tips (which you can find links to at the bottom of this post) that focus on a specific multiple-choice question that many students answer incorrectly. If you can master these questions, it could increase your MBE score by that many points if you see any of these issues tested again (which, by the way, you will!). These posts of MBE tips and tricks will not only cover substantive law but also strategy. So each “MBE tip of the day” post covers one highly-tested area of substantive law as well as an important MBE strategy. You can sign up to receive these posts directly to your inbox for the upcoming administration at the bottom of this page.
MBE Tip of the Day: Criminal Law
MBE Tip of the Day Instructions:
Do your best to answer this criminal law MBE question (before even looking at the answer choices and before looking at the answer below!) Ask yourself: What is the subject? What is the legal issue? What is the rule and analysis? Finally, what is the conclusion? Try to answer these beginning questions before even reading the answer choices. Then, uncover the answer as well as read more about our MBE tip of the day.
Show the MBE Question...
Criminal Law MBE Question
Knowing that the owner of a house owned a large collection of valuable jewelry, a man decided to break into the house to steal some. During the day when he thought the owner was at work, the man broke the lock on the door and entered. The owner was actually upstairs at the time, and the man could hear footsteps. Getting nervous, the man grabbed a necklace he saw laying on a coffee table. When he started to hear the owner coming down the stairs, the man panicked and smashed a window to escape quicker. The owner had actually started coming downstairs just after the man entered the house, witnessing both his grabbing the necklace and smashing the window. This latter action scared the owner immensely and the police were called.
In a common law jurisdiction, what crime(s) could the man be guilty of?
(C) Larceny and burglary
(D) Robbery and burglary
Legal Rule and Analysis:
Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect:
Show the Answer to the MBE Question...
Answer to the Criminal Law MBE Question
Subject: Criminal Law
Legal Issue: Theft crimes
Legal Rule and Analysis: Larceny is the trespassory taking and carrying away of personal property of another with the intent to permanently deprive them thereof. Robbery is a larceny plus the additional elements of taking from the other’s person or presence using force or threat of force. The force or threat of force must be used to gain possession of the property. Burglary is the breaking and entering the dwelling of another at night with the intent to commit a felony or larceny therein.
In this case, the man certainly committed a trespassory taking and carrying away of personal property of another with the intent to permanently deprive them thereof. The man grabbed a necklace belonging to the homeowner and escaped with it. There is no indication that he intended to merely borrow the necklace or give it back. However, the elements of robbery are not met. While there was a larceny and the necklace was stolen from the owner’s presence, there was no force used to gain possession of the property. The man merely picked it up off the coffee table. He did use force to break the window, but it was not used to obtain the necklace. The man never even saw the owner – he just panicked at the sound and broke a window to escape. There was no force directed toward the owner in order to obtain the necklace.
Further, the elements of burglary also are not met. We are told that this is a common law jurisdiction, and the common law definition of burglary requires that the breaking is done at night. The facts specifically tell us that the man broke into the house during the day.
Conclusion: The only crime the man is guilty of is larceny.
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided.
The answer choice (A) is therefore correct. (B) is incorrect because the elements of robbery are not met as no force was used to gain possession of the necklace. (C) is incorrect because the elements of burglary are not met as the theft occurred during the day. (D) is incorrect because the elements of both robbery and burglary are not met.
MBE Tip: Read the facts closely to identify what kind of jurisdiction you are in! This makes a big difference when trying to determine whether a defendant is guilty of a particular crime. The elements of each crime can be different depending on whether you are in a common law jurisdiction, model penal code jurisdiction, or a jurisdiction where a specific statute is provided for you. The examiners will likely leave clues to tell you what kind of jurisdiction you are in! A careful reading of the facts is necessary to make sure you are applying the right rules!
Show Summary of the Two Key Takeaway Points for the Day
Key Takeaways and MBE Tips From Prior Posts
Takeaway for the Law: To be guilty of robbery, the force or threat of force must be used to gain possession of the property. To be guilty of common law burglary, the breaking and entering must occur during the night.
MBE Tip: Read the facts closely to determine what kind of jurisdiction you are in!
If you would like to see “MBE tip of the day” posts from prior days, please check out all of our past MBE tip of the day archives here! We have several of them and we list them by subject!
Looking for additional MBE help? If you are looking for MBE help, read our 10 expert MBE tips here. Check out our step-by-step guide to improving your MBE score, please review this post for an overview of tips. If you would like to have the next MBE tip emailed to you when we come out with another one, please fill out the form below.
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