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119 Cards in this Set
- Front
- Back
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Merger: generally there is no merger with the following limited exceptions
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1. solicitation merges into the completed crime
2. attempt merges into the completed crime Conspiracy DOES NOT MERGE with the completed offense |
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A crime always requires 3 things
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proof of a physical act and
a mental state and a concurrence of the act and mental state |
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Criminal elements: requirement of a physical act - 3 exceptions
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1. conduct which is no of your own volition
2. a reflexive action (seizure) 3. an act done while unconscious or asleep |
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Failure to act gives rise to liability only if (3)
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1. specific duty to act
2. D had knowledge of the duty 3. it was reasonably possible to perform the act |
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5 situations where there may be a duty and then an omission of action would be a breach of duty
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1. statute
2. K 3. special relationship 4. voluntarily assume the responsibility 5. you create the peril |
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4 mental states for criminal liability
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1. specific intent
2. malice 3. general intent 4. strict liability |
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Specific intent
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intent to commit the crime - it cannot be inferred from the doing of the act
Defenses: voluntary intoxication and unreasonable mistake of fact |
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Malice
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state of mind requiring reckless disregard of an obvious or high risk that a particular bad result will occur
Defenses: the defenses to specific intent crimes do not apply to malice |
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2 malice crimes on MBE
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murder and arson
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General intent crimes
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awareness of all factors constituting the crime - may be inferred from doing the act
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General intent - transferred intent: D can be liable under the doctrine if
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she intends the harm that is actually caused but injures the wrong person or thing
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The doctrine of transferred intent applies to what 3 crimes
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1. homicide
2. battery 3. arson A person found guilty of transferred intent is usually guilty of 2 crimes - the completed crime and attempt against the intended victim |
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Strict Liability
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these are crimes with no required mental state
often are regulatory or moral crimes that require no mental state |
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SL Crimes to know for the bar
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1. solicitation
2. attempt 3. conspiracy 4. 1st degree murder 5. assault 6. larceny and robbery 7. burglary 8. forgery 9. false pretenses 10. embezzlement |
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2 malice crimes on the MBE
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Murder - the unlawful killing of another human being with malice
Arson- the malicious burning of the dwelling hours of another |
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Accomplice liability - modern rule:
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all "parties to the crime" can be found guilty of the principle offense
Accomplices are liable for the crime itself and all other foreseeable crimes involved |
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Inchoate offenses means
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incomplete
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3 inchoate offenses tested on the MBE
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1. solicitation
2. conspiracy 3. attempt |
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Solicitation consists of a
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inciting, counseling, urging, or commanding another to commit a crime with the intent that the person solicited commits the crime
1. not necessary the person solicited agree 2. not a defense that the person solicited is guilty 3. solicitation merges into the completed crime |
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Conspiracy is
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an agreement b/t 2 or more people to commit a crime
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3 elements of conspiracy
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1. an agreement b/t 2 or more people
2. intent to enter into the agreement 3. AND intent by at least 2 people to achieve the objective agreement conspiracy does not merge w/ the substantive crime committed |
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Conspiracy and liability
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each co-conspirator is liable for all the crimes of the other co-conspirators if done in furtherance of the conspiracy and that were foreseeable
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Conspiracy agreements may be b/t
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various people who do not know each other. The agmt may be express or implied.
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Conspiracy - majority rule
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there must be some overt act done in furtherance of the conspiracy
-- any little act will do |
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Conspiracy - minority rule (Also FL rule)
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there is no need for an overt act and the agreement itself is enough to be liable for conspiracy
impossibility is no defense! |
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Conspiracy - withdrawal
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a co-conspirator can never truly withdraw from his role, but he may attempt to do some act to withdraw that that will allow him not to be liable for the other co-conspirators subsequent crimes
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Attempt - an attempted crime is the
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specific intent to commit a certain crime coupled with a substantial step beyond mere prep in the direction of completion of a crime
more than mere prep! |
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DEFENSES TO A CRIME
Insanity |
means that at the time of the crime, D was so mentally ill as to be entitled to acquittal
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DEFENSES TO A CRIME
The M'Naughten Rule Also the FL rule |
at the time of the conduct the D did not know his act would be wrong or he did not understand the nature and quality of his action
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DEFENSES TO A CRIME
Irresistible Impulse |
D was unable to control his actions or conform his conduct to the law
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DEFENSES TO A CRIME
Durham test |
the crime was the product of mental illness
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DEFENSES TO A CRIME
ALI or model penal code |
at the time the crime was committed, D lacked the capacity to appreciate the criminality of the conduct or conform her conduct to the requirement of the law
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DEFENSES TO A CRIME
Intoxication 2 types |
1. voluntary - defense to specific intent crimes only!
2. involuntary |
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DEFENSES TO A CRIME
insanity and involuntary intoxication are defenses to |
all crimes including SL crimes
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DEFENSES TO A CRIME
Infancy |
Children less than 7 = no crim liability
children 7-14 = rebuttal presumption of no liability |
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DEFENSES TO A CRIME
self-defense - minority rule and exceptions |
duty to retreat to the wall before using deadly force
Exceptions: 1. no need to retreat from one's home 2. no need to retreat if one is a victim of rape or robbery 3. police officers have no duty to retreat |
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DEFENSES TO A CRIME
defense of a dwelling |
deadly force may never be used solely to defend your property
if you're in your home, you can protect yourself and your family from an intruder w/ deadly force if necessary |
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DEFENSES TO A CRIME
Duress |
D reasonably believed that another person would imminently inflict death or great bodily harm upon him or a member of his family if he did not commit the crime
not a defense to homicide |
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DEFENSES TO A CRIME
mistake of fact applies to crimes with what mental state |
Specific intent - any mistake
malice and general intent - reasonable mistake only SL -NEVER |
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DEFENSES TO A CRIME
consent |
unless the crime requires lack of consent of the victim (rape), consent is usually not a defense
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DEFENSES TO A CRIME
entrapment is a very narrow defense because |
predisposition to commit a crime negates entrapment
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Battery
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an unlawful touching to the person of another resulting in either bodily injury or offensive touching
Need not be intentional! Force need not be applied directly (dog attack). |
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Assault
2 theories |
1. assault as an attempted battery (specific intent crime)
2. assault as a threat to commit battery (gen intent crime) |
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Homicide
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The unlawful killing of a human being
Specific intent crime if on MBE it is 1st degree pre-meditated murder |
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Homicide
Defenses |
voluntary intoxication and any mistake of fact
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Murder has 4 intents
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1. intent to kill
2. to inflict great bodily injury 3. reckless indifference 4. to commit a felony (felony murder) |
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Manslaughter
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the unlawful killing of a human being WITHOUT malice
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2 types of manslaughter
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1. voluntary - must have adequate provocation giving rise to sudden and intense passion. No time to cool off.
2. involuntary manslaughter - a killing committed with criminal negligence or during the commission of an unlawful act (misdemeanor or unenumerated felony) |
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5 defenses to felony murder
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1. D is not guilty of the underlying felony
2. there is no separate felony crime 3. death must have been foreseeable 4. death caused while fleeing is not a felony after the felon has reached a place of temporary safety 5. felon is not liable for the death of a co-felon as a result of resistance or police killing |
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Rape
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the unlawful carnal knowledge of a woman by a man, not her husband, w/o her consent
even the slightest penetration is sufficient |
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Statutory Rape
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the carnal knowledge of a female under the age of consent
SL crime, so reasonable mistake as to age is not a defense |
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Larceny
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trespassory taking and carrying away of personal property w/ the intent to deprive the person of the property
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Larceny - intent to steal must be present
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at the time of the taking
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Embezzlement
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the fraudulent conversion of personal property of another by a person in lawful possession of the property
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False Pretenses
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obtaining the title of personal property of another by an intentional false statement of past or existing fact w/ the intent to defraud
a future misrepresentation is not false pretenses! |
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Robbery
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the taking of personal property of another from the other person's person or presence by force or threats of death of physical injury with the intent to perm deprive the victim of the property
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Extortion
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obtaining property by means of threats to do harm or to expose info (blackmail)
Threats of future harm only! |
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Burglary
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breaking and entering of a dwelling house of another at night with the intent of committing a felony therein
felony need not be carried out intent to commit the felony must exist at the time of the breaking |
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Arson
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malicious burning of a dwelling house of another
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The exclusionary rule
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product of an illegal search or coerced confession can be excluded from criminal trial b/c a violation of D's 4th, 5th, & 6th amendment rights
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The Exclusionary Rule - exceptions (4)
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1. the search doesnt violate the fed constitution or a fed statute
2. its a civil proceeding 3. its a grand jury proceeding 4. its a parole revocation proceeding |
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The Exclusionary Rule - good faith reliance: the exclusionary rule does not apply when police act in good faith based on (3)
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1. case law that may have been overturned
2. facially valid statute or ordinance that may have been amended 3. computer report containing clerical errors not made by the police |
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The Exclusionary Rule - does not apply when police act in good faith reliance on a defective search warrant UNLESS:
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1. the affidavit was so lacking in probably cause that it couldn't be reasonably relied upon
2. warrant is defective on its face (doesn't state with particularity the place to be searched and the items to be seized) 3. affiant lied or misled the magistrate 4. the magistrate has holly abandoned his judicial role |
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The Exclusionary Rule - impeachment
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confessions that do not comply with Miranda and are not admissible in the gov's case in chief may be used to impeach D's testimony
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Fruit of the Poisonous Tree
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illegally obtained evidence is inadmissible at trial and all "fruit of the poisonous tree" that is, evidence obtained from exploitation of illegally obtained evidence, must also be excluded
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Fruit of the Poisonous Tree - exclusions (4)
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1. fruits obtained from statements obtained in violation of Miranda
2. an intervening act of free will by D 3. inevitable discovery 4. violations of knock and announce rule |
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Enforcing the exclusionary rule
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D has aright to have the admissibility of evidence or a confession decided as a matter of law by a judge out of the hearing of the jury
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Who bears the burden in an exclusionary rule?
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the gov bears the burden of est the admissibility by a preponderance of the evidence
D has a right to testify at a suppression hearing |
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4th Amendment Rule
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gov seizures of a person including arrests w/in the scope of the 4th must be reasonable
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Seizure occurs when a reasonable person
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would believe she is not free to leave or terminate an encounter with the gov.
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Arrest occurs when the police
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take a person into custody against her will for purpose of criminal prosecution or interrogation
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Probable cause
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there must be trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime.
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When is a warrant required for an arrest?
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Generally not required in a public place
Generally required for a non-emergency request in his home |
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Stop and Frisk: the police may detain a person for investigative purposes if they have a
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reasonable suspicion of criminal activity or involvement in a completed crime supported by articulatable facts and then may retain the person for investigative purposes
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Stop and Frisk: weapons
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the police may also frisk for weapons if they have reasonable suspicion that the suspect is armed an dangerous
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Stop and Frisk: limitations
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1. detention must be no longer than necessary to conduct a limited investigation to verify the suspicion
2. police may ask a person to ID themselves by name 3. the police may arrest a detainee for failure to comply 4. the detention may turn into an arrest if probably cause is found |
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Station house detentions
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police must have probable cause for arrest to bring a suspect to the station for questioning or fingerprinting
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Deadly force : there is a ______ seizure when a police officer uses deadly force unless
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4th amendment
it is reasonable under the circumstances |
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Deadly force: test
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whether the suspect poses a danger to his own life or the life of others
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Search and seizure: TEST to determine whether a 4th amendment right has been violated w/ respect to search and seizure - 3 questions
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1. Has there been gov conduct?
2. Is there a reasonable expectation of privacy? 3. Was there a search warrant? |
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Search and seizure: is the warrant valid on its face - ask 5 questions
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1. Was the underlying affidavit so lacking in probable cause that it could not be reasonably relied upon?
2. is the warrant defective on its face? 3. does the warrant state w/ particularity the place to be searched or the items to be seized? 4. did the affiant lie or mislead the magistrate? 5. did the magistrate wholly abandon his judicial role? |
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Reasonable Expectation of Privacy - under the 4th, a reasonable person must have
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his own reasonable expectation of privacy with respect to the place to be searched or the item to be seized
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A person has a legitimate expectation of privacy 3 times
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1. she owned or had the right of possession of a place to be searched
2. place to be searched was her home - regardless of ownership or right to possession 3. was an overnight guest of the place searched Passengers in an auto DO NOT have a reasonable expectation of privacy Drug dealers on premises only to cut and bag drugs for sale DO NOT have standing |
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A person has a legitimate expectation of privacy 3 times
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1. she owned or had the right of possession of a place to be searched
2. place to be searched was her home - regardless of ownership or right to possession 3. was an overnight guest of the place searched Passengers in an auto DO NOT have a reasonable expectation of privacy Drug dealers on premises only to cut and bag drugs for sale DO NOT have standing |
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9 things people do not have an expectation of privacy in
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1. sound of your voice
2. handwriting 3. paint on outside of vehicle 4. bank account in records 5. location of car on public roads or its arrival at a private residence 6. areas outside the home (barn) 7. garbage left for collection 8. land visible from a public place 9. smell of car or luggage |
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9 things people do not have an expectation of privacy in
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1. sound of your voice
2. handwriting 3. paint on outside of vehicle 4. bank account in records 5. location of car on public roads or its arrival at a private residence 6. areas outside the home (barn) 7. garbage left for collection 8. land visible from a public place 9. smell of car or luggage |
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Informants: A warrant is valid if based in part on an informants tip even though the informant is
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anonymous
- reliability and credibility of the informer need not be est informers id generally need not be revealed |
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Informants: A warrant is valid if based in part on an informants tip even though the informant is
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anonymous
- reliability and credibility of the informer need not be est informers id generally need not be revealed |
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For a warrant to be valid it must:(4)
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1. be based on probable cause
2. must be precise on its face 3. must state with particularity the place to be searched and items to be seized 4. must be issued by a neutral and detached magistrate |
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Exceptions to the Warrant Requirement (6)
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1. search incident to arrest
2. auto 3. plain view 4. consent 5. stop & frisk 6. hot pursuit and evanescent evidence |
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Search incident to a lawful arrest - what can be searched
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A person and their wingspan (anywhere they could reach a weapon or destroy evidence)
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Automobile exception to the warrant requirement
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1. person may be asked to step out of car
2. everything but the trunk can be searched 3. if police have PC to believe a vehicle contain fruits, instrumentalities, or evidence of a crime, they may search the whole vehicle and containers |
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Automobile exception - the Gant case: the police may conduct a search of the passenger compartment of an auto incident to an arrest only if at the time of the search (2)
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1. the arrestee is unsecured and may still gain access to the vehicle
2. the police reasonable believe that evidence of the offense for which the person was arrested may be found |
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Plain View Exception:
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police must be legitimately present when they see the contraband
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Consent Exception -
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must be voluntary and intelligent
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Consent Exception - 3rd party consent
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when 2 or more people have equal rights to the property, either one can give consent
If one says yes and the other says no - NO SEARCH |
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Consent Exception - a parent can give consent for their children's room if
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parent has a right to go into the room
May probably give consent to search the remainder of the house |
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Stop and frisk: police may detain you if
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there is reasonable suspicion that you're involved in a crime
If suspect you are armed- then can frisk you. "Reasonable suspicion" is less than probable cause! |
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Warrantless searches are allowed in 3 situations
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1. to seize a contaminated/spoiled food
2. highly regulated industries (liquor, gun manuf., junk yards) 3. airline passengers |
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Public school searches will be reasonable if
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1. offers a moderate change of finding evidence of wrongdoing
2. measures adopted to carry out search are reasonably related to the items searching for 3. no excessively intrusive |
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Wiretapping and eavesdropping
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all require a warrant!
exception: the unreliable ear - assume risk that the gov can be monitoring your convo |
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Miranda warnings are required in 2 situations
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1. suspect is in custody
2. subject to interrogation |
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What is interrogation?
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any conduct where police know or should have known they would get a damaging statement
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To prove a waiver of right to counsel, the prosecution must show the waiver was made
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knowingly, voluntarily, and intelligently
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A waiver of Miranda does not necessarily require presence of counsel if
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it has been appointed by the court
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Impeachment: a statement obtained in violation of D's 6th amendment right to counsel, while not admissible in the prosecutions case in chief may be used
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to impeach D's testimony
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Right to terminate interrogation: the accused may terminate police interrogation any time prior to an interrogation or during the interrogation by
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invoking either the right to remain silent or the right to counsel.
Re-interrogation w/o the attorney violates 5th amendment right to counsel! |
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Pretrial ID - to have an in-court ID, you must have a
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prior out of court ID
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Pretrial ID - right to counsel
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Accused has a right to the presence of an attorney at any line-up or show up. No right to counsel at the showing of a photo array
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An accused can attack an identification as denying due process if the id is
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unnecessarily suggestive and there is a substantial likelihood of misidentification
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Remedy - the remedy for unconstitutional ID is
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exclusion of an in court ID
EXCEPTION: an out of court ID is still admissible if the in-court ID has an independent source |
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Right to a jury trial exists when the sentence
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exceeds 6 months in jail
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Right to have an unbiased judge is violated if it is shown that the judge has
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actual malice against the accused or a financial interest in the trial resulting in a guilty verdict.
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Right to a jury selected from
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a representative cross-section of the community
If show an underrepresentation of a distinct and numerically significant group |
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Peremptory challenges - it is constitutional for either the prosecution or the defense to exercise its peremptory challenges to exclude jurors solely on account of
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race or gender
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Ineffective assistance of counsel you must show 2 things
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1. deficient performance by counsel AND
2. but for the deficiency the case would have turned out differently |
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Right to a speedy trial: factors to be considered (4)
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1. the length of delay (>1yr)
2. reason for delay 3. did D assert right to speedy trial 4. prejudice to D |
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Remedy for violation of right to a speedy trial
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dismissal w/ prejudice
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Exceptions to double jeopardy (5)
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1. 1st trial ends in a hung jury
2. mistrial 3. successful appeal --> retrial 4. at the retrial, D may not be prosecuted for a greater charge 5. D breaches a plea bargin |
