Crim. Law And Procedure

Front 1

Murder - 1st and 2nd Degree

Back 1

First Degree - Murder that is deliberate and premeditated
2nd Degree - All murders not first degree unless mitigated down to manslaughter

Front 2

Common Law Murder

Back 2

Murder with malice aforethought. Malice includes:
Intent to kill
Intent to do serious bodily harm
Reckless disregard for human life
Felony Murder

Front 3

Voluntary Manslaughter

Back 3

Killing that is adequately provoked is reduced to voluntary manslaughter.
Provocation adequate if: D was actually provoked, reasonable person would've been provoked, D not actually cooled off, reasonable person would not have cooled off.

Front 4

Felony Murder

Back 4

Murder that occurs during commission of inherently dangerous felony (MRS. BARK: mayhem, robbery, sodomy, burglary, arson, rape and kidnapping)
Defenses - Defense to underlying felony, underlying felony is lesser offense like battery, death not foreseeable, D reached point of temporary safety (no longer commission).

Front 5

Misdemeanor Murder

Back 5

Murder that occurs during commission of a malum in se misdemeanor and where death is foreseeable.

Front 6

Battery

Back 6

Unlawful use of force to person of another resulting in either bodily injury or offensive touching.

Front 7

Assault

Back 7

Attempt to commit battery or intentional creation of reasonable apprehension in victim of imminent bodily harm.

Front 8

Kidnapping

Back 8

Unlawful confinement of a person that involves either 1) some movement or 2) concealment of victim in secret place.

Front 9

Rape

Back 9

Man has sexual intercourse with a woman, not his wife, w/o consent.
No consent =actual force, threat of imminent bodily harm, victim not capable of consenting

Front 10

Larceny

Back 10

The taking and carrying away of personal property of another without consent with intent to permanently deprive property owner.

Front 11

Embezzlement

Back 11

Fraudulent conversion of personal property of another by a person in lawful possession of property.

Front 12

False Pretenses

Back 12

Obtaining title to personal property of another by intentional false statement of past or existing fact with intent to defraud.

Front 13

Robbery

Back 13

Taking of personal property of another from other's person or presence by force or threats of immediate harm to victim or family with intent to permanently deprive him of property.

Front 14

Extortion

Back 14

Obtaining property by means of threat.

Front 15

Arson

Back 15

The malicious burning of the dwelling house of another.
Modern rules have expanded burning to include explosives and eliminated dwelling house requirement.

Front 16

Burglary

Back 16

The breaking and entering of a dwelling of another at nighttime with intent to commit a felony inside. Modern statutes eliminate dwelling and nighttime requirements.

Front 17

Accomplice Liability and Defenses

Back 17

D liable when: aids or encourages principal to commit illegal conduct, with intent to encourage crime. Accomplice liable for all foreseeable crimes.
Defenses - 1) Member of class protected by law 2) Withdrawal - If just encourage must repudiate. If provided actual assistance must neutralize by telling police. Must withdraw before crime becomes unstoppable.

Front 18

Solicitation

Back 18

Asking another to commit a crime with intent that the person commits the crime.
Solicitation merges into conspiracy.

Front 19

Conspiracy and Withdrawal Defense

Back 19

Agreement by two or more persons with: intent to enter into agreement, intent to achieve the objective of the agreement, and any act in furtherance of conspiracy.
Co-conspirator liable for all crimes in furtherance of conspiracy that are reasonably foreseeable.
Withdrawal defense - Notify others and withdraw while others can still abandon plan. Only relieves subsequent crimes.

Front 20

Attempt

Back 20

Specific intent to commit target crime and a substantial step.

Front 21

Insanity Defenses

Back 21

M'Naghten - D did not know his actions were wrong or understand nature and quality of acts
Irresistible Impulse - D lacked capacity to control impulses.
Durham - D's act is product of mental illness.
MPC - D did not know his actions were wrong or unable to conform conduct to law because of mental illness

Front 22

Minority Retreat Rule and Exceptions

Back 22

Prior to using deadly force victim of deadly attack must first retreat if safe to do so.
Except when: in own home, victim of violent felony, police don't have to retreat

Front 23

Self-Defense

Back 23

Must use reasonable force. deadly force then deadly force, non-deadly then no deadly force
In initial agressor no self-defense unless: has withdrawn, victim suddenly escalates minor to deadly and initial agressor no chance to withdraw.

Front 24

4th Amendment & Analysis

Back 24

4th A protects people against unreasonable searches and seizures. Applicable to states via 14th A.
In order for D to assert need:
Govt Conduct
Standing = REOP in place searched and substantial ownership interest in thing seized.
For search and seizure to be valid need search warrant or exception to search warrant.

Front 25

Exceptions to Search Warrant

Back 25

Consent
Auto Exception
Border Searches
Stop and Frisk
Hot Pursuit/Evanescent Evidence
Incident to Lawful Arrest
Plainview

Front 26

Auto Exception

Back 26

If police have articulable reasonable suspicion of criminal activity can stop person to investigate. If police reasonably believe person is armed and dangerous may protective frisk.

Front 27

Incident to Lawful Arrest Exception

Back 27

Home search - Incident to lawful arrest police may search person and areas that person may reach to get weapon.
Car search - Police can search car incident to arrest if arrestee is unsecured and may gain access to interior of car and police reas. believe evidence of the offense person arrested for may be found in car.

Front 28

Fifth Amendment Miranda & Analysis

Back 28

5th A prohibits compelled self-incrimination. Once person in custody must be read Miranda right prior to interrogation. If violate confession not admissible.
Custody - freedom of action denied in significant way (obj.)
Interrogation - Police knew or should've known might elicit incriminating response.
D must know Qs coming from gov't.
Waiver must be knowing, voluntary and intelligent.

Front 29

Right to terminate after being read Miranda

Back 29

If D invokes right to remain silent police must scrupulously honor.
If D invokes right to attorney police must stop all Qs and cannot resume until counsel provided or D reinitiates.

Front 30

5th Amendment Double Jeopardy

Back 30

Under 5th A person may not be retried for same offense once jeopardy has attached.
Attaches in jury trial when jury sworn. Attaches in bench trial when first witness sworn.
No double jeopardy if separate sovereigns (diff. states, state/feds.)
Retrial permitted when: hung jury, manifest necessity caused mistrial, D's reversal on appeal was based on weight of evidence at first trial.

Front 31

6th Amendment Right to Speedy Trial

Back 31

D has right to speedy trial. Right attaches once arrested or charged. Violation of right determined on totality of circumstances.

Front 32

Intoxication Defense

Back 32

Defense when it negates intent element of crime.
Voluntary - only a defense to specific intent crimes, but not if D purposely got intoxicated to do crime
Involuntary (under duress, unknowingly, on medical advice unaware effects) - defense to all crimes

Front 33

Infancy Defense

Back 33

Under 7 yrs. no crim. liability. Under 14 yrs. rebuttable presumption of no crim. liability.

Front 34

Mistake of Fact

Back 34

Defense only if shows D lacked mental state req. for crime. For specific intent crime mistake does not have to be reasonable. Gen. intent mistake must be reasonable.

Front 35

Duress Defense

Back 35

Defense to any crime, other than murder, that D reasonably believed that another person would imminently inflict death or great bodily harm on him or family member if didn't commit crime.

Front 36

14th A Due Process/Confessions

Back 36

For self-incriminating statement to be admissible under DPC must be voluntary from totality of circumstances. Not voluntary if official compulsion.

Front 37

Withdrawal of Guilty Pleas

Back 37

D may withdraw if plea involuntary, court lacked jurisdiction, ineffective assistance of counsel, prosecutor failed to keep agreed plea bargain.
To be voluntary D must address D on the record about: nature of charge, max. possible penalty and mandatory min. right not to plead guilty and if do waive right to jury trial.

Front 38

Valid Search Warrant

Back 38

Police in general must have search warrant. Valid search warrant issued on probable cause by neutral detached magistrate stating w/ particularity place to be searched and things to be searched.

Front 39

4th A. Arrest

Back 39

Arrest are seizures under 4th A and must be reasonable. Arrest must be based on probable cause. Arrest in public don't require arrest warrant.

Front 40

Good Faith Defense to Invalid Warrant

Back 40

Evidence admissible if police relied on good faith on search warrant.
4 exceptions where no good faith:
so lacking on prob. cause reas. officer would not have relied, affadavit so lacking in prob. cause reas. officer would not rely, lied or mislead magistrate, magistrate biased.

Front 41

Stop and Frisk

Back 41

If police have articulable reas. suspicion of crim. activity can stop person to investigate.
If believe person is armed and dangerous may do protective frisk.

Front 42

Plainview Exception

Back 42

Police may seize item in plain view when 1) legitmately on premises and 2) have prob. cause to believe item is evidence of crime or contraband.

Front 43

Exclusionary Rule

Back 43

Prohibits introduction of evidence obtained in violation of 4th, 5th and 6th A rights. Under rule unconstitutionally obtained evidence and fruit of the poisonous tree evidence (derived from uncon. evidence) not admissible.

Front 44

Exceptions to Exclusionary Rule

Back 44

Doesn't apply to:
grand jury, civil trials, parole proceedings.
violations of knock and announce
for violation of Miranda can still be used to impeach

Front 45

Exceptions to Fruit of Poisonous Tree Doctrine

Back 45

Fruits derived from Miranda viol. admissible.
Evidence from independent source.
Intervening act of free will.
Inevitable discovery.

Front 46

Miranda Right to Terminate Interrogation

Back 46

D may terminate interrogation by invoking right to remain silent and right to counsel.
Right to remain silent - If D asserts police must scrupulously honor.
Right to counsel - If D asserts must stop questioning and cannot resume unless counsel provided or D reinitiates questioning.

Front 47

5th A. Privilege against Self-Incrimination

Back 47

5th A prevents government from making D witness against himself. Any statement made under oath in civil or crim. case that might incriminate D is subject to privilege.

Front 48

Scope of Privilege against Self-Incrimination

Back 48

Applies only to compelled testimonial evidence.

Front 49

Elimination of PSI

Back 49

Under grant of immunity - immunity adequate if police cannot use any immunized testimony or anything derived from it.
No possibility of incrimination
Waiver

Front 50

6th A Right to Counsel

Back 50

6th A guarantees right to assistance of counsel at all critical stages of prosecution after charges have been brought.
Offense specific.

Front 51

Pre-trial identification Rights

Back 51

Pretrial ID may be excluded if:
No counsel
ID unecessarily suggestive in violation of DPC.
Remedy - Exclusion of in-court ID. However, prosecution can still get it in if shows adequate independent source.

Front 52

6th A Right to Fair Trial

Back 52

Right to unbiased judge, meaning no financial interest in case or actual malice against D.

Front 53

6th A Right to Jury Trial

Back 53

Right to jury trial if max. authorized sentence over 6 mos.
Must be at least 6.
Jury drawn from fair cross section of community, but no right that empanelled jury is fair cross section.
If jury deciding death juror's view must not prevent or substantially impair perf. of duties.

Front 54

6th A Right to Confront Witnesses

Back 54

6th A grants criminal D in crim. trial right to confront witnesses. But, face to face confrontation not req. when preventing confrontation serves an important public purpose.

Front 55

6th A Right to Confront re: 2 Ds?

Back 55

If two Ds tried together and one gives confession that implicates other, right to confront prohibits use of statement unless:
All portions referring to D eliminated.
Confessing D takes stand and is subject to cross.
Confession from non-testifying D is being used to rebut D's claim that his confession was obtained coercively.

Front 56

8th A Cruel and Unusual Punishment

Back 56

8th A prohibits cruel and unusual punishment. Punishment must be proportional to offense.
No death penalty for minors and mentally retarded.
Jury should be allowed to consider mitigating circumstances and impact on victim's family.