MBE Question of the Day – Answer

October 18, 2023

With results from the July 2023 bar exam being released in states around the country, we will be posting several real MBE questions every week, with the answer to be posted the following day. Please feel free to email us with any questions about these, and if you were unsuccessful on the bar exam, submit your score report here for a free score report evaluation from our bar exam experts!

D) is correct.

Issue: Whether co-conspirators are liable for crimes that are foreseeable results of the crime

they conspired to commit.

Rule: Under the common law, a conspiracy is defined as an agreement between two or more

persons to accomplish a criminal or unlawful purpose, or to accomplish a lawful purpose by

unlawful means. The elements of common law conspiracy are: (1) An agreement between two or

more persons; (2) An intent to enter into an agreement; and (3) An intent to achieve the objective

of the agreement. Note that unlike attempt, where a substantial step toward commission of the

crime is required, for a conspiracy charge the agreement itself is sufficient to constitute the

crime. In other words, the crime is the agreement itself. As such, the majority rule is that

conspiracy does not merge with the substantive offense; a defendant will be liable for the

conspiracy (the agreement) and, separately, the crime actually committed. Traditionally, under

the common law, no overt act besides the agreement itself is required. Most states do require an

overt act, but the overt act can be any minimal act taken in preparation.

A conspirator, by virtue of her participation in the criminal scheme, meets the requirements for

aiding and abetting the commission of a crime by co-conspirators. Therefore, the conspirator is

guilty for those crimes as an accomplice. An accomplice is responsible for the crimes she

committed or aided, and for those crimes that were probable or foreseeable.

Depraved heart murder is a murder that is caused be one’s reckless disregard of the value of

human life. Note the difference between depraved heart murder (reckless disregard for human

life) and involuntary manslaughter based on criminal negligence (death that results from gross

deviation from how a reasonable person should act). The former is murder and the latter is

manslaughter and the difference is in the degree of recklessness (i.e., the likelihood of causing

death and knowledge of that likelihood when committing the act); an example of reckless

disregard for human life is shooting into a crowded room without any specific intent to kill

someone. An example of criminal negligence is driving while intoxicated.

Analysis: Here, the CEO and the chairman entered into a conspiracy to destroy the garage. As

co-conspirators they are accomplices to each other’s crimes that are committed in furtherance of

the conspiracy and that were probable or foreseeable results of the conspiracy. Though they did

not intend to kill anyone, it is foreseeable that an act as violent and dangerous as blowing up a

garage – even one in which there should not be any occupants – might result in grave bodily

injury or even the death of a person who happens to be in the vicinity. Thus, since the death of

the homeless man was a foreseeable consequence of blowing up the garage, the co-conspirators

can be liable for his death.

Furthermore, the death of the homeless man would likely be considered murder. Causing the

explosion of a garage can demonstrate a reckless disregard to human life, even if the CEO and

the chairman had no intent to hurt anyone. Thus, both the CEO and the chairman can be guilty

of murder.

(D) is correct because they both, as co-conspirators, can be charged with murder.

(A) and (B) are incorrect because the chairman and CEO are accomplices and can be liable

for all crimes that are a probable or foreseeable result of blowing up the garage, including the

death of someone within the vicinity.

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MBE Question of the Day – Answer