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75 Cards in this Set

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crim pro 4th amendment:

provides that people should be free from unreasonable searches and seizures)
4th amendment
crim pro 4th amend:

when the police take a person into custody against his will for purposes of criminal prosecution or interrogation
1. Must be based on probable cause (i.e., trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime)
2. A warrant is not required before arresting someone in a public place, however a warrant is required to effect a non-emergency arrest of a person in his home
crim pro 4th amendment:

Police may briefly detain a person for investigative purposes if they have a reasonable suspicion supported by articulable facts
1. Stationhouse detentions: police must have full PC for arrest in order to bring a suspect to the station for questioning or fingerprinting
2. Auto stop: police may stop a vehicle if they reasonably believe the stopped car violated a traffic law
crim pro 4th amend:

when a reasonable person would believe that she is not free to leave or terminate an encounter with the government
crim pro 4th amend:

1. He owns, or has a right to possess, the place or thing searched (e.g., ∆’s vehicle or luggage);
2. The place searched was in fact his home, whether or not he owned it or had a right to possess it; or
3. He was an overnight guest of the owner of the place searched
evidentiary searches: reasonable expectation of privacy
crim pro 4th amendment:

iii. ∆ does not have a reasonable expectation of privacy in things held out to the public
1. Exception: one does have a REP in luggage against physically invasive searches
2. Open Fields Doctrine: areas outside the curtilage are subject to police entry and search
3. Fly-overs: police may fly over a field to observe with a naked eye things therein (and can take photos)
4. VIN: an officer may reach into an auto to move papers to observe the auto’s VIN
evidentiary searches: did defendant have a reasonable expecation of privacy with respect oplace searched or item seized
crim pro 4th amend:

iv. Passengers in cars do not have standing to challenge a search, even if their property is taken out of the car
v. A drug dealer on the premises of another briefly for the sole purpose of conducting business does not have standing to object to a search of the premises
vi. A ∆ charged with a possessory offense may assert a legitimate expectation of privacy in the items at a suppression hearing without his testimony being used against him at trial (without claiming ownership)
evidentiary searches: did defendant have a reasonable expecation of privacy with respect oplace searched or item seized
crim pro 4th amend:

Probable cause; scope of warrant (describe); neutral and detached magistrate; proper execution (police)
if defendant had a 4th right, was the search conduct with or wthout a warrant?

with a warrant
crim pro 4th:

police may, contemporaneous in time and place with the arrest, search the person and areas into to which he might reach to obtain weapons or destroy evidence
1. Wingspan includes the entire passenger compartment of a car, but not the truck
2. Police may make a protective sweep of the area if they believe accomplices may be present
without a warrant:

incident to a lawful arrest
crim pro 4th amend:

if police have PC to believe that a vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the whole vehicle and any container that might reasonably contain the item for which they had PC to search
1. PC can arise after the car is stopped, but it must arise before the car is searched
2. If police have PC to believe that an auto itself is contraband, they may seize it from a public place without a warrant
without a warrant:

automobile exception
crim pro 4th amend
police may make a warrantless seizure when they are legitimately on the premises, discover evidence or contraband in plain view, and have PC to believe that the item is evidence
without a warrant:

plain view
crim pro 4th amend:

must be voluntary and intelligent; a person with apparent equal right to use or occupy the property may consent to a search, and any evidence found may be used against the owners or occupiers
without a warrant:

crim pro 4th amend:

police officer may stop a person without PC to arrest if he has an articulable and reasonable suspicion of criminal activity
1. If the officer reasonably believes that the person may be armed and presently dangerous, he may conduct a protective frisk
2. During a pat down, an officer may reach into the suspect’s clothing and seize any item the officer reasonably believes, based on its “plain feel,” is a weapon or contraband, and such items are admissible as evidence
without a warrant:

stop and frisk
crim pro 4th amend:

police may seize without a warrant evidence likely to disappear before a search warrant can be obtained
without a warrant:

evanescent evidence
crim pro 4th amend:

police in hot pursuit of a fleeing suspect may make a warrantless search and seizure and may even pursue the suspect into any private dwelling
without a warrant:

hot pursuit
crim pro 4th:

a. Public schools: drug tests of public school students who participate in extracurricular activities may be conducted without a warrant
b. Probationer: police may conduct a warrantless search of a probationer’s home when there is reasonable grounds for the search
persons and places searched
crim pro 4th:

i. Roving patrols inside the US border may stop a vehicle for questioning of occupants if an officer reasonably suspects that the vehicle contains illegal aliens
ii. Border officials may stop a vehicle at a fixed checkpoint inside the border for questioning of occupants even without reasonable suspicion, but to conduct a search, they must have PC or consent
border searches: no warrant is necessary for border searches
crim pro 4th:

constitutes a search under the 4th and a valid warrant authorizing a wiretap may be issued if:
i. There is a showing of PC;
ii. The suspected persons involved in the conversations to be overheard are named;
iii. The warrant describes with particularity the conversations that can be overheard;
iv. The wiretap is limited to a short period of time;
v. The wiretap is terminated when the desired information has been obtained; and
vi. Return is made to the court, showing what conversations have been intercepted
crim pro 4th:

prohibits the introduction of evidence obtained in violation of a ∆’s 4th, 5th, or 6th Amendment rights)
a. Illegally obtained evidence is inadmissible at trial, and all “fruits of the poisonous tree” must be excluded
exclusionary rule
crim pro 4th:

i. Evidence obtained from a source independent of the original illegality;
ii. An intervening act of free will by the ∆;
iii. Inevitable discovery (i.e., the prosecution can show that the police would have discovered the evidence whether or not the police acted unconstitutionally)
exclusionary rule: exceptions to fruit of the poisonous tree doctrine
crim pro 4th:

i. Rule does not apply to grand juries; civil proceedings; parole revocation proceedings; do not apply when police act in good faith reliance on (judicial opinion, facially valid ordinancance later declared unconstitutional, and defective search warrant).
exclusionary rule: limitations to rule
crim pro 5th:

requires that a suspect be advised of his constitutional rights before being subjected to custodial interrogation
5th amendment
crim pro 5th:

i. Privilege against self incrimination protects compelled testimonial evidence
ii. Miranda
1. Custodial interrogation
a. A person is in custody if, at the time of the interrogation, that person is not free to leave
b. Interrogation is direct questioning, including any words or conduct by the police that they should know would likely elicit a response from the ∆
incriminating statements
crim pro 5th:

2. Warning: a ∆ subject to custodial interrogation is entitled to Miranda warnings
3. Waiver: must be knowing, voluntary, and intelligent
4. Voluntary: for a self-incriminating statement to be admissible under the DPC, it must be voluntary, not the result of some official compulsion
a. If an involuntary confession is admitted into evidence, the conviction need not be overturned if there is other overwhelming evidence of guilt (Harmless error test)
incriminating statements: miranda
crim pro 5th:

the accused may terminate police interrogation at any time prior to or during the interrogation by invoking either the right to remain silent or the right to counsel)
right to terminate interrogation
crim pro 5th:

under the 5th, a person may not be retried for the same offense once jeopardy has attached)
i. Attaches in jury trial at the empanelling of the jury or at a bench trial when the first witness is sworn
ii. Exceptions: hung jury, mistrial, retrial after successful appeal, ∆ breaches plea bargain
iii. Same offense, or lesser included, unless new evidence
iv. Does not apply to separate sovereigns
double jeopardy
crim pro 6th:

6th guarantees the right to the assistance of counsel in all criminal proceedings, which include all critical stages of a prosecution after formal charges have been filed) (prohibits the police from eliciting an incriminating statement from ∆ outside the presence of counsel after the ∆ has been charged unless he has waived his right to counsel)
right to counsel
crim pro 6th:

i. Offense specific: ∆ may be questioned regarding unrelated, uncharged offenses without violating the 6th
ii. A suspect has a right to the presence of an attorney at any post-charge lineup or showup
iii. Critical stages of a prosecution
iv. No right at photo ID or taking of physical evidence
v. Waiver and right to defend oneself: a ∆ has the right to defend himself at trial if, in the judgment of the judge, his waiver is knowing and intelligent
vi. Effective assistance of counsel: an ineffective assistance claimant must show deficient performance by counsel and but for such deficiency, the result of the proceeding would have been different
right to counsel
crim pro 6th:

i. Totality of the circumstances: factors considered are the length of delay, reason for delay, whether ∆ asserted his right, and prejudice to ∆ (remedy is dismissal with prejudice)
ii. Attaches once ∆ is arrested or charged
right to a speedy trail
crim pro 6th:

i. Right only for serious offenses: if imprisonment for more than 6 months is authorized
ii. There is no constitutional right to a jury of 12, but there must be at least 6 jurors
iii. Right to venire selected from representative cross-section of the community
1. ∆ need only show the underrepresentation of a distinct and numerically significant group in the venire to show his jury trial right was violated
2. ∆ does not have the right to proportional representation of all groups on his particular jury
right to a jury trial
crim pro 6th:

iv. Use of peremptory challenges for racial and gender-based discrimination
1. EPC forbids the use of peremptory challenges to exclude potential jurors solely on account of their race or gender
2. EPC-based attack:
a. ∆ must show facts or circumstances that raise an inference that the exclusion was based on race or gender;
b. Upon such a showing, the prosecutor must come forward with a race-neutral explanation for the strike;
c. The judge then determines whether the prosecutor’s explanation was the genuine reason for striking the juror, or merely a pretext for purposeful discrimination
right to a jury trial
crim pro 6th:

v. Right to Impartial Jury
1. ∆ is entitled to questioning on voir dire specifically directed to racial prejudice whenever race is bound up in the case or he is accused of an interracial capital crime
2. In capital punishment cases, a juror’s view must not prevent or substantially impair his ability to perform duties
right to a jury trial
crim pro 8th:

prohibits cruel and unusual punishment)
a. A penalty that is grossly disproportionate to the seriousness of the offense committed is cruel and unusual
8th amendment
crim pro 8th:

i. Jury should be allowed to consider mitigating circumstances
1. State may not limit the mitigating factors allowed; all relevant mitigating evidence must be admissible or the statute is unconstitutional
2. There can be no automatic category for imposition of the death penalty
ii. Can be imposed for felony murder if ∆ participated in a major way and acted with reckless indifference
iii. Jury can consider impact on victim’s family
iv. Cannot be imposed on mentally retarded, insane and minors
death penalty
crim pro 8th:

c. A statute that makes it a crime to have a given status violates the 8th Amendment because it punishes a mere propensity to engage in dangerous conduct (however, it is permissible to make criminal specific activity related to certain crimes)
8th amendment
crim pro 14th:

i. Burden of proof on prosecution: DPC requires in all criminal cases that the state prove guilt BRD
1. HOWEVER, the state may generally impose the burden of proof upon the ∆ in regard to affirmative defenses such as insanity or self-defense
2. A mandatory presumption or a presumption that shifts the burden of proof to the ∆ violates the 14th Amendment’s requirement that the state prove every element of the crime BRD
due process
crim pro 14th:

a ∆ can attack an identification as denying due process if the identification is unnecessarily suggestive and there is a substantial likelihood of misidentification
1. In-court identifications will be excluded
2. However, the prosecution can defeat this exclusion if he can show an independent source for the in-court identification
due process: pre trail identification
crim pro 14th:

i. Most state constitutions create a right to be released on bail unless the charge is a capital one
ii. Generally, bail can be set no higher than is necessary to assure the ∆’s appearance at trial
iii. Refusal to grant bail or the setting of excessive bail may be appealed immediately
iv. However, arrestees may be held without bail if they pose a danger or would fail to appear at trial
v. Arbitrary denials of bail may violate 14th DPC
pre trial detention
crim law:

physical act or omission) (any voluntary bodily movement or failure to act under circumstances imposing a legal duty to act
actus reus
crim law:

a crime may require not only the doing of an act, but also the doing of it with a specific intent or objective (cannot be inferred from the doing of the act)
mens rea specific intent
crim law:

common law murder and arson) (requires only a reckless disregard of an obvious or high risk that the particular harmful result will occur)
mens rea: malice crimes
crim law:

awareness of all factors constituting the crime (may be inferred from the doing of the act) (intent may be transferred) (battery, rape, kidnapping, false imprisonment)
mens rea: general intent
crim law:

does not require awareness of all of the factors constituting the crime (selling liquor to minors, statutory rape (SL), bigamy)
mens rea: strict liability
crim law:

a crime almost always requires proof of a physical act and a mental state and concurrence of the act and mental state
crim law:

proof of that act caused the harmful result
accomplice liability:

i. Must be aiding, abetting, and counseling the crime: active aiding required
ii. Mere presence is not enough even if by his presence he seems to be consenting to the crime or even if he fails to notify the police
iii. Liability: the crime itself and all other foreseeable crimes
accomplice liability elements
accomplice liability:

i. Withdrawal (accomplice must withdraw from the crime by repudiating any encouragement or neutralizing any assistance before it is committed)
1. If the person merely encouraged the commission of the crime he must repudiate his encouragement
4. Must withdraw before the chain of events leading to the commission of the crime becomes unstoppable
defenses: withdrawal
accomplice liability:

1. Helping someone escape
a. Not liable for the crime itself
b. A separate lesser charge
defenses: accessory after the fact
inchoate defenses;

i. Element: asking someone to commit a crime
ii. Defense: the refusal of the solicitation is no defense
inchoate offenses:

i. Elements:
1. An agreement
2. An intent to agree
3. An intent to achieve the unlawful purpose or objective of the agreement
ii. Liability: each conspirator is liable for all crimes of other conspirators if foreseeable and in furtherance of the conspiracy
iii. Defenses
1. No impossibility defense
2. Can only withdraw from liability for future crimes—no withdrawal from liability for the conspiracy itself
3. No merger: can be convicted of conspiracy and for the completed crime
inchoate offenses:

i. Elements:
1. Specific intent to commit the crime +
2. A substantial step in the direction of the commission of the crime (mere preparation not enough)
ii. Defenses:
1. Factual impossibility no defense
2. Legal impossibility is a defense
3. Abandonment no defense after the substantial steps have been begun
attempt (SI)
common law crimes:

unlawful killing with malice aforethought
common law crimes:

(Common law murder) (transferred intent applies)
a. Malice aforethought exists if the ∆ has any of the following states of mind:
i. Intent to kill
ii. Intent to commit serious bodily injury
iii. Highly Reckless or Depraved Heart Murder
iv. Felony murder: killing during the commission of an inherently dangerous felony
b. First degree: premeditated + deliberate
c. Second degree: intentional, unjustified killing with malice aforethought, but without premeditation or deliberation
murder (MC)
common law crimes:

intentional killing with adequate provocation or imperfect self-defense
a. Adequate provocation
b. Heat of passion (no cooling off time): ∆’s liability mitigates murder to manslaughter if he acted in heat of passion (if a reasonable person would act as ∆ did under the circumstances and there was inadequate cooling time)
voluntary manslaughter (GI)
cmmon law crimes:

Unintentional killing
Misdemeanor manslaughter
involuntary manslaughter (GI)
common law crimes:

ii. Assault and Battery (SI) (GI) (intent to commit)
iii. Rape (GI) (unlawful sexual intercourse with a woman without consent)
iv. Kidnapping (false imprisonment + movement of victim)
crimes against a person
common law crimes:

i. Larceny (SI) (wrongful taking + intent to permanently deprive another of their interest in property)
ii. Embezzlement (SI)(lawful possession + illegal conversion with intent to defraud)
iii. False pretenses (SI) (persuading owner to convey under FP with intent to defraud)
crimes against personal property (theft)
common law crimes:

i. Robbery (SI) (larceny + assault): intent to perm. deprive other of interest in prop.
ii. Extortion (GI) (blackmail) (obtaining property by means of threat)
crimes against person and personal property
common law crimes:

i. Arson (malicious burning of the dwelling house of another leading to a material wasting of the fiber of the building) (transferred intent applies)
ii. Burglary (SI) (an actual or constructive breaking and entering the dwelling house of another at night with the intent existing at the time of the breaking and entering to commit a felony inside)
crimes against real property
cmmon law crimes:

i. Forgery (SI) (the making of a false writing or the altering of an existing writing with intent to defraud) (any writing that has apparent legal significance is a potential subject of forgery)
crimes against the public
crim law defenses:

i. Non-deadly force: a victim may use non-deadly force in self-defense anytime that the victim reasonably believes that force is about to be used on them
ii. Deadly force
1. Majority: a victim may use deadly force in self-defense anytime that the victim reasonably and in good faith believes that deadly force is about to be used on them
2. Minority: victim, prior to using deadly force in self defense, must retreat if it is safe to do so.
self defense
crim law defenses:

∆ entitled to use the same force as person protected as he reasonably believed was necessary (minority limits the use of force to the amount of force the actor was actually entitled to use)
defense of others
crim law defenses:

deadly force may never be used solely to defend property
defense of property
crim law defenses:

defense to all crimes, even strict liability crimes)
crim law defeneses:

∆ entitled to acquittal if the proof establishes that a disease of the mind caused a defect of reason, such that ∆ lacked the ability at the time of his actions to either know the wrongfulness of his actions or understand the nature and quality of his actions (∆ does not know right from wrong)
insanity: M'Naghten Rule
crim law Defenses:

∆ entitled to acquittal if proof establishes that because of mental illness he was unable to control his actions or to conform his conduct to the law (an impulse ∆ could not resist)
insanity irrestible impulse
crim law defenses:

∆ entitled to acquittal if the proof establishes that his crime was the product of mental disease or defect (but for the mental illness, ∆ would not have done the act)
insanity Durham Test
crim law Defenses:

∆ entitled to acquittal if the proof shows that he suffered from a mental disease or defect and as a result lacked substantial capacity to either appreciate the criminality of his conduct or conform his conduct to the requirements of the law
insanity - ALI/MPC
crim law defenses:

i. Voluntary: not a defense to common law murder, but is a defense to specific intent crimes, including premeditated and deliberate first degree murder
ii. Involuntary: involuntary intoxication is a defense to all crimes, even strict liability, if intoxication results from the taking of an intoxicating substance:
1. Without knowledge of its nature
2. Under direct duress imposed by another, or
3. Pursuant to medical advice while unaware of the substance’s intoxicating effect
crim law defenses:

(commission of crime was induced by government agent and ∆ was not predisposed to commit the crime) (predisposition means that ∆ was ready and willing to commit the crime whenever an opportunity was afforded)
crim law defenses:

i. Any mistake of fact, reasonable or unreasonable, is a defense to specific intent crimes
ii. Only a reasonable and good faith mistake of fact is a defense to malice and general intent crimes
iii. Never a defense to strict liability crimes
mistake of fact
crim law defenses:

(no criminal liability for under age 7; under 14, there is a RP of no criminal liability)
age infancy
crim law defenses:

(arises when ∆ is forced to choose between two courses of action, one which violates the literal terms of the law, and one that does not violate the law, but the conduct that technically violates the law will result in less harm than the conduct that complies with the law)
crim law defenses:

defense to all crimes, except homicide
crim law defenses:

(∆ is entitled to use reasonable force to prevent the commission of a crime) (actor may use nondeadly force to make an arrest if a crime was in fact committed and the person has reasonable grounds to believe the person arrested has in fact committed the crime) (deadly force may be used only when the person harmed was actually guilty of the offense for which the arrest was made)
crime prevention