Crim Law And Procedure

Front 1

SAC BIMARK ALBERT PURE CF

Back 1

1. Solicitation
2. Attempt
3. Conspiracy
4. Battery
5. false Imprisonment
6. Mayhem
7. Assault
8. Rape
9. Kidnapping
10. Arson
11. Larceny
12. Burglary
13. Extortion
14. Robbery
15. larceny by Trick
16. false Pretenses
17. Utterances (??)
18. Receiving stolen property
19. Embezzlement
20. Conversion
21. Forgery

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SOLICITATION

Back 2

Solicitation consists of
(1) inciting, counseling, advising, urging, or commanding another to commit a crime
(2) With intent that the person solicited commit the crime

DEFENSES: It is a defense that the solicitor could not be found guilty of the completed crime because of a legislative intent to exempt her

Front 3

ATTEMPT

Back 3

Attempt is an act,
(1) done with the intent to commit a crime
(2) that falls short of completion. D must commit an act beyond mere preparation for the offense. The D must take a substantial step in a the course of conduct

DEFENSES: legal impossibility IS a defense. Factual impossibility is NOT a defense.

Front 4

CONSPIRACY

Back 4

Conspiracy requires
(1) An agreement between two or more persons
(2) An intent to enter into the agreement, and
(3) An intent by at least two persons to achieve the objective of the agreement

Generally, withdrawal is not a defense because the conspiracy is complete as soon as the agreement is made and an act in furtherance is performed.

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BATTERY

Back 5

Battery is an
(1) Unlawful application of force to the PERSON OF ANOTHER
(2) Resulting in either (a) Bodily injury, or (b) offensive touching

Battery need not be intentional, and the force need not be applied directly(ie causing a dog to attack the victim is still battery)

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FALSE IMPRISONMENT

Back 6

False imprisonment consists of the
(1) Unlawful confinement of a person that substantially interferes
with the victim’s liberty
(2) Without his valid consent

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MAYHEM

Back 7

o At common law, the felony of mayhem required either dismemberment or disablement of a bodily part. Recent trend is to abolish mayhem as a separate offense and to treat it as a form of aggravated battery

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ASSAULT

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Assault is either:
(1) An ATTEMPT to commit a battery, or
(2) The INTENTIONAL CREATION, other than mere words,of a reasonable apprehension in the mind of the victim of IMMINENT bodily harm.

If there has been an actual TOUCHING of the victim, the crime can only be battery, not assault

Front 9

RAPE

Back 9

Rape is
(1) The unlawful carnal knowledge of a woman by a man
(2) Not her husband
(3) Without her effective consent
(4) slightest penetration is sufficient

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STATUTORY RAPE

Back 10

Carnal knowledge of a female under the age of consent

It’s not necessary to show lack of consent. Statutory rape is a STRICT LIABILITY crime.

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KIDNAPPING

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Kidnapping is the unlawful confinement of a person that involves either
(1)Some movement of the victim, or
(2) Concealment of the victim in a secret place

Front 12

ARSON

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Arson consists of
(1) The malicious (intentional or with reckless disregard of an obvious risk)
(2) Burning (requiring some damage to the structure caused by fire)
(3) Of the dwelling
(4) Of another

Front 13

LARCENY

Back 13

Larceny consists of
(1) A taking (obtaining control)
(2) And carrying away
(3) Of tangible personal property
(4) Of another with possession
(5) By trespass
(6) With intent to permanently deprive that person of his interest in the property. Intent must be there at the time of the taking

Front 14

BURGLARY

Back 14

Common law burglary consists of
(1) A breaking
(2) And entry
(3) Of a dwelling
(3) Of another
(4) At nighttime
(5) With the intent to commit a felony in the structure

Front 15

EXTORTION

Back 15

(1) Common law extortion consists of the corrupt collection of an unlawful fee by an officer under color of office
(2) Under modern statutes, extortion (blackmail) often consists of obtaining property by means of threats to do harm or to expose information.

Front 16

ROBBERY

Back 16

Robbery consists of
(1) A taking
(2) Of personal property of another
(3) From the other’s person or presence (including anywhere in his vicinity)
(4) By force or threats of immediate death or physical injury to the victim, a member of his family, or some person in the victim’s presence
(5) With the intent to permanently deprive him of it
 The victim must feel threatened into giving her property. If the d gives her property away for any other reason, the d will not be guilty of robbery.

Front 17

LARCENY BY TRICK

Back 17

If the victim is tricked—by a misrepresentation of fact—into giving up mere POSSESSION of property, the crime is false pretenses

Front 18

FALSE PRETENSES

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The offense of false pretenses is
(1) Obtaining title
(2) To personal property of another
(3) By an intentional false statement of past or existing fact
(4) With intent to defraud the other

Front 19

RECEIVING STOLEN PROPERTY

Back 19

Receipt of stolen property consists of
(1) Receiving possession and control
(2) Of stolen property
(3) Known to have been obtained in a manner constituting a criminal offense
(4) By another person
(5) With the intent to permanently deprive the owner of his interest in it.

Front 20

EMBEZZLEMENT

Back 20

Embezzlement is
(1) The fraudulent
(2) Conversion (ie. Dealing with the property in a manner inconsistent with the arrangement by which d has possession)
(3) Of personal property
(4) Of another
(5) By a person in lawful possession of that property

Front 21

CONVERSION

Back 21

Conversion of personal property by a person in lawful possession with specific intent to defraud

Front 22

FORGERY

Back 22

Forgery consists of
(1) Making or altering (by drafting, adding, or deleting),
(2) A writing with apparent legal significance (contract—not a painting)
(3) So that it is FALSE
(4) With the intent to defraud (although no one need actually have been defrauded)

Front 23

HOMICIDE

Back 23

Homicide is the killing of a human being by another with criminal intent. At common law, the term homicide was used to describe three different kinds of unlawful killings:
(1) murder
(2) voluntary manslaughter, and
(3) involuntary manslaughter

Front 24

MURDER

Back 24

Murder is the unlawful killing of another person with malice aforethought. Malice aforethought exists when there is either
(1) intent to kill
(2) intent to inflict great bodily injury
(3) reckless indifference to an unjustifiably high risk to human life
(4) intent to commit a felony that results in a killing (felony murder)

Front 25

FELONY MURDER

Back 25

Any death caused during the commission of, or in the attempt to commit a felony is murder. Malice aforethought is implied by the d's intent to commit a felony. Today, statutory law distinguishes between first-degree felony murder and all other felony murders

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FIRST DEGREE FELONY MURDER

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In many states, a killing committed during the commission of an enumerated felony is felony murder and called first degree murder. First degree felony murder occurs when a killing occurs during the course of an enumerated felony that is inherently dangerous. In most jurisdictions, the enumerated felonies are
(1) arson
(2) robbery
(3) burglary
(4) rape
(5) mayhem, and
(6) kidnapping

Front 27

ELEMENTS OF FELONY MURDER

Back 27

In order to convict a d of felony murder,
(1) the d must be GUILTY of the underlying felony (** analyze the actual crime itself and the elements)
(2) the felony must be DISTINCT from the killing itself
(3) the death must have been the FORESEEABLE result of the felony, and
(4) the death must have occurred DURING THE COMMISSION of the felony and not after it was terminated. Murders that take place after the d has reached a place of safety do not account. However, murders that occur while the d is fleeing the scene or running from the cops do count.

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STATUTORY DEGREES OF MURDER

Back 28

In some jurisdictions, common law murder has been re-classified into two different categories: first degree murder, and second degree murder.

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FIRST DEGREE MURDER

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First degree murder occurs when the d perpetrates a killing that was premeditated and deliberate

Front 30

PRE-MEDITATED AND DELIBERATE

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A premeditate and deliberate killing occurs when the d takes time to reflect on the idea of killing and makes the decision to kill while in a dispassionate state. Premeditation can occur in mere seconds

Front 31

SECOND DEGREE MURDER

Back 31

Second degree murder is all other killings that do not qualify as frst degree murder.

Front 32

VOLUNTARY MANSLAUGHTER

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Voluntary manslaugther is a killing that occurs with adequate provocation or during the heat of passion.

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PROVOCATION

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Provocation occurs when the d experiences a suddent and intense passion that causes him to lose control, and that passion causes the killing (ie. the d was actually provoked). There must not be sufficient cooling off period of time between the provocation and killing for the passion of a reasonable person to subside.

Front 34

INVOLUNTARY MANSLAUGHTER

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Involuntary manslaughter occurs when the d commits a killing with criminal negligence or during the commission of an unlawful act.

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CAUSATION

Back 35

In order to qualify as a homicide, the d's acts must have been both the actual cause and the proximate cause of the death.

Front 36

I DEMAND (my) POPS

Back 36

1. Insanity
2. Drunkenness
3. Entrapment
4. Mistake
5. Age
6. Necessity
7. Duress
8. Prevention of a crime
9. defense of Others
10. defense of Property
11. Self-defense

Front 37

INSANITY

Back 37

1. M’Naghten: D does not know right from wrong
2. Irresistible Impulse: an impulse that the d can’t resist
3. Durham: but for the mental illness, d would not have done the act
4. ALI/MPC: combination of m’naghten and irristible impulse

Front 38

M'NAUGHTEN RULE

Back 38

D is entitled to acquittal only if he had a mental disease or defect that caused him to either
(1) Not know that his act would be wrong, or
(2) Not understand the nature and quality of his action

Front 39

IRRESISTIBLE IMPULSE

Back 39

D is entitled to acquittal only if, because of a mental illness, he was unable to control his actions or conform his conduct to the law

Front 40

DURHAM TEST

Back 40

D is entitled to acquittal if the crime was the product of his mental illness(ie. Crime would not have been committed but for the disease).

This test is broader than M'Naughten and Irresistible Impulse

Front 41

ALI/MPC TEST

Back 41

D is entitled to acquittal if he had a mental disease or defect, and, as a result, he lacked the substantial capacity to either
(1) Appreciate the criminality of his conduct, or
(2) Conform his conduct to the requirements of the law

Front 42

VOLUNTARY INTOXICATION

Back 42

Voluntary intoxication is NO DEFENSE to crimes involving malice, recklessness, negligence, or strict liability.

Evidence of voluntary intoxication may be offered only if the crime requires PURPOSE OR KNOWLEDGE and the intoxication prevented the d form formulating the purpose or obtaining the knowledge

Front 43

INVOLUNTARY INTOXICATION

Back 43

Intoxication is involuntary only if it results from the taking of an intoxicating substance without knowledge of its nature, under direct duress imposed by another, or pursuant to medical advice while unaware of the substance’s intoxicating effect.

Front 44

ENTRAPMENT

Back 44

Entrapment exists only if
(1) The criminal design originated with law enforcement officers and
(2) The d was not predisposed to commit the crime prior to contact by the government. Merely providing the opportunity for a predisposed person to commit a crime is not entrapment

Front 45

MISTAKE OF FACT

Back 45

Mistake of fact is relevant only if it shows that the d lacked the state of mind required for the crime.

CONTRAST: Factual impossibility is NOT a defense to attempt. Factual impossibility arises when the d has failed to complete the crime because of his mistaken belief about the facts, and is being charged with an attempt to commit the crime.

Front 46

MISTAKE OF LAW

Back 46

Mistake of law is no defense. Generally, it is not a defense that the d believed that his activity would not be a crime, even if that belief was reasonable and based on the advice of an attorney

Front 47

AGE

Back 47

At common law, there could be no liability for an act committed by a child under age seven

Front 48

NECESSITY

Back 48

It is a defense to a crime that the person reasonably believed that commission of the crime was necessary to avoid an imminent and greater injury to society than that involved in the crime. However, causing the death of another person to protect property is NEVER justified

Front 49

DURESS

Back 49

One may excuse an actus reus (not involving violence to another) performed or caused by a showing that he acted under a threat from another to imminently inflict death or serious bodily harm to himself or a member of his immediate family.

Front 50

PREVENTION OF A CRIME

Back 50

Nondeadly force may be used to the extent that it reasonably appears necessary to prevent a felony or serious breach of the peace.

Deadly force may be used only to terminate or prevent a dangerous felony involving risk to human life

Front 51

PROPERTY DEFENSE

Back 51

NONDEADLY force may be used to prevent or terminate what is reasonably regarded as an unlawful entry into or attack on the defender's dwelling.

DEADLY FORCE
(1) may be used only to prevent a violent entry made with the intent to commit a personal attack on an inhabitant, or to prevent an entry to commit a felony in the dwelling
(2) deadly force may never be used in defense of property.

Front 52

SELF DEFENSE

Back 52

A person without fault may use such non-deadly force as reasonably appears necessary to protect herself form the imminent use of unlawful force upon himself. There is no duty to retreat.

A person may use deadly force in self-defense if
(1) He is without fault
(2) He is confronted with unlawful force, and
(3) He is threatened with imminent death or great bodily harm

Front 53

4TH AMENDMENT

Back 53

The 4th amendment generally prohibits unreasonable searches and seizures. In order to bring suit for a 4th amendment, the d must show that (1) there was governmental action
(2) involving a search or seizure, and
(3) that he has standing

Front 54

GOVERNMENT ACTION

Back 54

The 4th amendment only protects against government conduct and not actions by private individuals

Front 55

SEARCH AND SEIZURE

Back 55

(was there a search? was someone or something searched? was there a seizure?)

Front 56

STANDING

Back 56

In order to have standing to make a 4th amendment claim, the person must have a
(1) reasonable expectation of privacy in the place searched and a
(2) substantial ownership interest in the thing seized

Front 57

WARRANT REQUIREMENT

Back 57

In order for a search or seizure to be valid under the 4th amendment, the police must have a valid warrant or have a valid exception to the warrant requirement

Front 58

VALID WARRANT

Back 58

(1) A valid warrant requires a showing of probable cause that the seizable evidence will be found in the place searched.
(2) Prior to the issuance of a warrant however, officers must submit an affidavit to a detached and neutral magistrate
(3) setting forth the circumstances enabling the magistrate to make an independent, impartial determination of probable cause.
(4) Once issued, the warrant itself must be precise on its face in order to be valid. This means it must describe with precision the place to be searched and the items to be seized.

Front 59

EXCEPTIONS TO THE WARRANT REQUIREMENT

Back 59

All warrantless searches violate the 4th amendment unless a recognized exception applies.
1. Search incident to lawful arrest
2. Automobile exception
3. Stop and frisk
4. Plain view
5. Exigent circumstances/hot pursuit
6. Consent

Front 60

SEARCH INCIDENT TO A LAWFUL ARREST

Back 60

Incident to a LAWFUL ARREST, law enforcement may search the ARRESTEE and any areas into which he MIGHT HAVE CONTROL. An arrestee has control over those areas into which he might reach to obtain weapons or destroy evidence.

In the case where law enforcement has reason to believe that accomplices are present, a protective sweep of the entire area may be made

Front 61

LAWFUL ARREST

Back 61

A lawful arrest is one for which an officer has probable cause. Evidence discovered after the arrest may not be retroactively used to justify the arrest

Front 62

INCIDENT

Back 62

In order for a search to be incident to lawful arrest, the search must be contemporaneous at in time and place with the arrest

Front 63

AUTOMOBILE EXCEPTION

Back 63

Under the automobile exception, law enforcement may search an entire vehicle that they believe to contain fruits, instrumentalities, or evidence of a crime. They may also search any containers with the vehicle for which they have probable cause to search.

Front 64

STOP AND FRISK

Back 64

Under the stop and frisk exception, law enforcement may stop a person without probable cause for arrest if there is REASONABLE ARTICULABLE SUSPICION of criminal activity. if the officer believes that the person is ARMED AND DANGEROUS, he or she may also conduct a PROTECTIVE FRISK of the individual.

The frisk is limited to a PAT DOWN of the individual's clothing unless the officer has reason to believe that a weapon is hidden therein. If during the pat down, the officer believes "based on a plain feel" that there is a weapon or contraband contained in the suspect's clothing, the officer may reach inside the clothing to remove it

Front 65

PLAIN VIEW

Back 65

Under the plain view exception, law enforcement may make a warrantless search when they
1. are legitimately on the premises
2. discover evidence, fruits or instrumentalities of a crime, or contraband
3. see such evidence in plain view, and
4. have probable cause to believe that the item is evidence of a crime

Front 66

EXIGENT CIRCUMSTANCES/HOT PURSUIT

Back 66

Under the hot pursuit exception, law enforcement may
1. in pursuit of a fleeing felon make a warrantless search and seizure or even follow the felon into a private dwelling
2. make a warrantless seizure of any evidence likely to disappear before a warrant can be obtained, and
3. make a warrantless search or seizure of contaminated food or drugs, children in trouble, and burning fires

Front 67

CONSENT

Back 67

A warrantless search is valid if the police have voluntary and intelligent consent. The scope of the search is limited to the scope consented to and consent must be given by someone with the actual or apparent authority to offer it.

Front 68

IMPLIED CONSENT

Back 68

Implied consent exists when the surrounding circumstances lead a reasonable person to believe that consent has been granted, even though words of agreement were not direct, express, or explicit.

Front 69

EXCLUSIONARY RULE

Back 69

Under the exclusionary rule, any evidence obtained in violation of a d's 4th amendment rights is inadmissible. Under the exclusionary rule, unconstitutionally obtained evidence is inadmissible at trial

Front 70

INCRIMINATING STATEMENTS

Back 70

In order for an incriminating statement to be admissible in court, it must pass muster under both the 5th and 14th amendments

Front 71

14th AMENDMENT

Back 71

Under the 14th amendment due process clause, an incriminating statement or confession is admissible only if it was VOLUNTARY. Volunariness is determined by an evaluation of the totality of the circumstances. It generally means that the statement was the byproduct of rational intellect and free will and not official compulsion or coercion.

Front 72

5th AMENDMENT

Back 72

The 5th amendment provides for a privilege against self-incrimination. However, before the privilege can be invoked, a d must have standing. A d has standing when he is subject to custodial interrogation by government agents.

Front 73

GOVERNMENT CONDUCT

Back 73

(Was there governmental action?)

Front 74

CUSTODY

Back 74

A person is in custody when the person's freedom of action is denied in a significant way based on the objective circumstances (whether a reasonable person would feel prohibited from leaving)

Front 75

INTERROGATION

Back 75

Interrogation includes any words or conduct by the police that they should know would likely elicit an incriminating response from the d.

Front 76

MIRANDA WARNINGS

Back 76

Once the d is subject to custodial interrogation, an incriminating statement is only admissible after the d has been advised of his miranda rights. The miranda warnings include
1. the right to remain slient
2. anything said can be used against the d in a court of law
3. the right to an attorney, and
4. that an attorney will be appointed if the d cannot afford one

Front 77

EXCLUSIONARY RULE/FRUITS OF THE POISONOUS TREE

Back 77

Under the exclusionary rule, any evidence obtained in violation of the d's 4th, 5th or 6th amendment rights is inadmissible evidence. In addition, under the fruits of the poisonous tree doctrine, any evidence obtained from the exploitation of the illegally-obtained evidence is also inadmissible.

Front 78

INEVITABLE DISCOVERY DOCTRINE

Back 78

On major exception to the exclusionary rule is the inevitable discovery doctrine. under the inevitable discovery doctrine, otherwise inadmissible evidence becomes admissible if the prosecution can show that the police would have discovered it without violating the defendant's constitutional rights.

Front 79

FELONY MURDER REDLINE RULE

Back 79

The redline rule provides that felons are not liable for the deaths of any co-felons that occur during the commission of the crime, so long as the death is caused by the victim or a police officer attempting to prevent escape or further criminal activity.

Front 80

6th AMEND RIGHT TO A SPEEDY TRIAL

Back 80

The 6th amendment provides every d with the right to a speedy trial. To determine whether this right has been violated, the courts look at
1. the length of delay
2. the reason for the delay
3. whether the d asserted his 6th amendment right
4. any prejudice to the d.