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95 Cards in this Set

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Common Law: Do solicitation and attempt merge into the substantive offense?
A legal duty to act can arise from what FIVE duties?
1) Statute
2) Contract
3) Relationship between D and V
4) Voluntary assumption of care of V
5) Creation of the peril of V by D
Define Specific Intent
To be guilty of SI crimes, D must have specifically intended to commit the act.
What are the 10 SI crimes?
1-Solicitation 2-Attempt 3-Conspiracy 4-First Degree Premeditated Murder 5-Assault
6-Larceny and Robbery 7-Burglary 8-Forgery 9-False Pretenses 10-Embezzlement

What are the two main defenses that can be used in SI crimes ONLY?
1- Voluntary Intoxication
2- Any mistake of fact
Define the mental state for Malice.
Requires a reckless disregard of an obvious or high risk that the particular harmful result will occur.
What are the two Malice crimes?
1- Common Law Murder
2- Arson
Define the mental state for General Intent crimes.
An awareness of all factors constituting the crime--D must be aware that she is acting in a proscribed way. D need not be certain that all the circumstances exist to commit the crime, only that there is a high likelihood that the will occur.
What is transferred intent? What are the three crimes where TI apply?
D can be liable under TI where she intends the harm that is actually caused, but to a different victim or object. TI applies to homicide, battery, and arson. TI does not apply to Attempt. (D can be found guilty for actual harm committed to third party and Attempt w/r/2 the intended target)
How do you determine whether a statute on the MBE is strict liability?
IF a crime is in the administrative, regulatory, or morality area, and there are no adverbs ("knowingly"), it's SL.
What are four GI crimes?
1- Battery
2- Rape
3- Kidnapping
4- False Imprisonment
What are accomplices liable for?
The crime itself and all other foreseeable crimes.

* Never give AL unless he is aiding, abetting, or participating in the crime. If he is just present, or didn't call the cops = NO AL *
What are the three inchoate offenses?
1- Solicitation
2- Conspiracy
3- Attempt
What is solicitation?
Asking someone to commit a crime.

Solicitation merges with conspiracy if the solicitation is accepted.
What is conspiracy? 3 elements
1) An agreement between two or more persons
2) Intent to enter into the agreement (intent does not have to be express--the people don't have to know each other)
3) Intent by at least two persons to achieve the objective of the agreement

REMEMBER: It takes TWO guilty minds. IF one person is undercover popo, or is just pretending to go along = no conspiracy at CL.
What is the majority rule and CL rule concerning "overt act" regarding conspiracy?
Most states require an act in furtherance of the conspiracy be performed. An act of mere preparation is usually sufficient.
- any act will do (such as just showing up at place agreed to rob)

CL = conspiracy is formed on agreement
What are the defenses to conspiracy?
Impossibility is not a defense.

Withdrawal: Is generally not a defense. Withdrawal may be a dfense to crimes committed in furtherance of the conspiracy.

D is usually guilty once the agreement is made.
Does conspiracy merge?
Nope. D may be convicted and punished for both.
Define Attempt
An act done with 1) specific intent to commit a crime that 2) falls short of completion

= Specific intent + a substantial step beyond mere preparation in the direction of commission of the crime
What crimes is insanity a defense for?
M'Naghten Rule trigger words
At the time of the conduct, D lacked the ability to understand and know wrongfulness of actions
Irresistible Impulse Test tw
D lacked capacity for self control and free choice
Durham Test tw
D's conduct was the product of mental illness
ALI or MPC Insanity tw
D lacked ability to conform to the requirements of law
Defense of Voluntary Intoxication definition and when is it a defense?
Intoxication is voluntary if it is the result of the intentional taking without duress.

VI is only a defense to SI crimes.
Defense of Involuntary Intoxication definition and when is it a defense?
You must be held down or have something slipped into your drink, etc... It is a form of insanity defense.

Can be used for ALL crimes.
Defense of Infancy has two easy rules, what are they?
1) No liability for an act committed by a child under the age of seven.
2) For acts between 7 and 14, there is a rebuttable presumption that the child was unable to
When is it allowable to use non-deadly force as self-defense?
When it reasonably appears necessary to protect yourself from imminent use of unlawful force. No duty to retreat.
When is it allowable to use deadly force?
Majority: Can use deadly force if V reasonably believes that DF is going to be used against her.

DF may never be used to solely defend your property.

The minority view requires retreat to the wall, unless: the attack occurs in the victim's home, the attack occurs while the victim is making a lawful arrest, or the assailant is in the process of robbing the victim.
What does the defense of mistake of fact negate?
Only intent.
When can the defense of mistake of fact be used in specific intent crimes?
When can the defense of mistake of fact be used in malice and general intent crimes?
With reasonable mistakes only.
Can mistake of fact ever be a defense for strict liability crimes?
How effective is consent as a defense?
It almost always never works.
Define the defense of entrapment?
Only applies if 1) the criminal design originated with law enforcement officers; 2) D was not predisposed to commit the crime prior to governmental contact.

Merely providing the opportunity for a predisposed person to commit a crime is not entrapment.
Define battery.
A completed assault. An unlawful application of force to the person of another resulting in bodily injury or an offensive touching.

A battery need not be intentional and the force need not be applied directly (causing a dog to attack the victim is battery).
Define assault. The SI kind and the GI kind.
(1) an attempt to commit battery (a SI crime)
(2) the intentional creation -- by more than words -- of a reasonable apprehension of imminent bodily harm (a GI crime).

Any touching becomes a battery.
What are the two main elements of common law murder?
1) intent to kill or intent to inflict great bodily injury or reckless indifference to an unjustifiably high risk to human life (abandoned and malignant heart)
2) intent to commit a felony (felony murder)
Define voluntary manslaughter.
A killing that would be murder but for the existence of adequate provocation.

NEVER attack D with VM unless you can find PASSION
Define involuntary manslaughter.
Act resulting in death of V committed with criminal negligence (driving while sleeping) or during the commission of an unlawful act.
Define first degree murder.
D made the decision to kill in a cool and passionate manner -- specific intent.
Define felony murder.
Any death caused in the commission of, or in an attempt to commit, a felony is murder.
What are the 5 limitations to felony murder?
1) D must be guilty of the underlying felony
2) The felony must be distinct from the killing itself
3) Death must have been a foreseeable result of the felony
4) The death must have been caused before D's immediate flight
5) D not guilty if co-felon is killed
What is the key thing to remember about rape?
Even the slightest penetration completes the crime.
Define Larceny.
1) Obtaining control (not as permanent as possession; possession = embezzlement)
2) Carrying away (ever so slightly)
3) Of tangible personal property
4) Of another
5) By trespass (if not given to you voluntarily)
6)**With intent to permanently deprive that person of her property interest at the time of taking. If D takes property with a wrongful state of mind but without the intent to steal, and later, while still in possession of it, forms the intent to steal it, the trespass involved in the initial wrongful taking is regarded as continuing and the defendant is guilty of larceny.**

***Taking property with a belief it is yours or you have some right to it = NOT CL Larceny

Larceny is the lesser included offense that merges into robbery.
Define Embezzlement.
**IN EBZ, D always has lawful possession**

1) Fraudulent 2) Conversion (no carrying away necessary, and embezzler does not have to benefit) 3) Of Personal property of another 4) by a person in lawful possession of that property.
Define False Pretenses.
1) Obtaining TITLE 2) to personal property of another 3) by Intentional false statement of past or existing fact (future facts don't count)4) with intent to defraud the other
Define Robbery.
Larceny + Assault. Must have threat of immediate death or physical injury.
Define Burglary.
CL. Breaking and entering a dwelling of another at nighttime with the intent to commit a felony in the structure (*at the time of b&e).
Define Arson.
The malicious burning of the dwelling house of another.

Burning requires damage cause by fire (not smoke or water).

Must burn the fiber of the building.
Define Exclusionary Rule
Judge-made doctrine that prohibits introduction of evidence obtained in violation of a D's Fourth, Fifth, and Sixth Amendment rights. Under the rule, illegally obtained evidence is inadmissible at trial, and all fruit of the poisonous tree must also be excluded.
4 situations that break F of PT causation.
1) Evidence obtained from a source independent of the original illegality.
2) An intervening act of free will by D. (D is illegally arrested, leaves, and returns to confess = not FoPT)
3) Inevitable discovery
4) Violations of knock and announce rule
4 Limitations to Exclusionary Rule
1) Inapplicable to grand juries, civil proceedings, and parole revocation proceedings
2) Good faith reliance on the law, defective search warrant, or clerical error
3) Use of excluded evidence for impeachment purposes
4) Miranda violations
Fourth Amendment Right
4th A protects people against unreasonable searches and seizures by the government and is incorporated to the states via the Fourteenth Amendment. Governmental seizures of persons, including arrests, must be reasonable.

To pursue a claim under the Fourth Amendment, there must be governmental conduct.

A seizure occurs when a person reasonably believes that he or she is not free to leave or terminate an encounter with an officer.

Investigatory detentions are NOT seizures if short in duration.

A person must have a reasonable expectation to privacy with respect to the place searched or the item seized to have a 4th A claim.

No REP with odors from body or property.
When is a warrant necessary, not necessary?
Necessary for nonemergency arrests of persons in their homes.

Not necessary before arresting a person in a public place.
What do police need to bring someone into the station for questioning or fingerprinting?
Must have full probable cause.
Three step approach to analyzing evidentiary searches and seizures questions.
1) Does D have a 4th A right?
- D must have a reasonable expectation to privacy
2) Did government have a valid warrant?
- Must be issued by a neutral and detached magistrate on a showing of probable cause and is reasonably precise as to the place to be searched and items to be seized
- If warrant is no good, try to use the "good faith" defense
3) If the police did not have a valid warrant, did they make a valid warrantless search and seizure?
Does the 4th A right apply to searches by private individuals?
No, unless they have been deputized by the police and been given power to arrest.
Define "reasonable expectation of privacy". If you have standing under REP, you can always object to the S&S.
1) D owned or had a right to possession of place searched
2) The place searched was his home, whether or not he owned or had a right to possession of it
3) He was an overnight guest of the place searched
Standing to object questions will usually involve the following situations:
1) An overnight guest. Has standing.
2) Passengers in cars not owning the car and not having a claim to property in the car DO NOT have have standing.
3) An individual briefly on someone's premises of someone else simply to cut up drugs does not have standing to object.
Things held out to the public do not have a REP. Name 9 of them.
1-The sound of one's voice 2-One's handwriting 3-Paint on the outside of one's vehicle 4-Account records held by a bank 5-Monitoring the location of one's vehicle on public roads 6-Curtilage 7-Garbage left for collection 8-Land visible (even from air) 9-Smell
Requirements for a valid warrant.
1) Must show PC (use of anonymous informers ok; use of hearsay ok)
2) Must be precise on its face
3) Search of 3rd party residences ok
4) Neutral and detached magistrate (AG not ok, court clerk ok)
When is a warrant not required? 6 situations.
1) Search incident to valid arrest (must be at same time as arrest; can only search within person's wingspan)
2) Automobile exception: If popo have PC (i.e. a n&d magistrate would issue a W if he were there), no warrant necessary
3)Plain view: a) popo validly on premises b)discover evidence c)in plain view and have d) PC that evidence is instrumentality of crime
4) Consent
5) Stop and Frisk (requires RS only
6) Hot pursuit, evanescent evidence, emergencies
Requirements for wiretapping and eavesdropping.
All require warrants.
Exception to WT and ED
A speaker assumes the risk that the person to whom he is talking is an informant.
Can Miranda be waived by saying nothing or shrugging shoulders?
5th A right to counsel contrasted with 6th A right to counsel
5th A only exists when Miranda warnings are given and person says he wants a lawyer. Right is not offense specific.

6th A warning is offense specific.
How to attack pre-trial ID.
1) 6th A right to counsel was violated. D has a right to attorney to any POST-charge lineup or showup. No right to counsel for photo id or taking physical evidence.
2) Denial of due process. ID is unnecessarily suggestive and there is a substantial likelihood of misidentification. (V said Perp was white and only 1 white guy in lineup).
Two main issues with bail.
1) Bail issues are immediately appealable.
2) Preventative detention is constitutional.
When is a right to jury trial?
Any time D is tried for an offense whose maximum sentence EXCEEDS 6 months.

Except for criminal contempt amounting to more than 6 months as long as sentence imposed during trial.
There is no constitutional right to a jury of 12 and no unanimous requirement. What is the fewest amount of jurors allowable?
6. And 6 person juries must be unanimous.
What is the cross-sectional requirement?
D has a right to have the jury selected from a representative cross-section of the community. BUT D does not have a right to proportional representation in his particular jury.
What is precluded by Equal Protection w/r/2 jury selection?
It forbids the use of peremptory challenges solely on basis of race or gender.
How do you show ineffective assistance of counsel?
1) Deficient performance by counsel
2) But for the deficiency, the outcome would have been different

- Does not include trial tactics and the failure to raise a constitutional defense that is later invalidated

- On essay questions, lay down the standard and then DENY relief.
Three main things to remember about guilty pleas and plea bargains?
1) SC will not disturb guilty pleas after sentencing
2) The Contract Theory of PB = treat PB as contracts
3)D does not have to plead guilty at soliloquy, only has to accept the terms.
What must the soliloquy of a plea bargain or guilty plea contain?
1) The nature of the charge
2) The maximum penalty and mandatory minimum
3) That D has a right not to plead guilty and if he does, he waives his right to trial
What is the remedy for failure to meet plea bargain standards?
The plea is withdrawn and D must plead anew.
What are 4 good reasons for withdrawing a guilty sentence?
1) Involuntariness (failure to meet standard)
2) Lack of jurisdiction
3) Ineffective assistance of counsel
4) **BAR FAVORITE** Failure to keep the terms of the plea bargain by the prosecution
How to answer any death penalty question?
Any death penalty statute that doesn't give D a chance to present mitigating facts and circumstances is unconstitutional. There can be no automatic category for the imposition of the DP. The state may not by statute limit the mitigating factors; all relevant mitigating evidence must be admissible or the statute is unconstitutional. Only a jury may determine the aggravating factors justifying imposition of the DP.
When does Double Jeopardy attach?
1) At a jury trial when the jury is sworn in.
2) At a judge trial when a judge is sworn in.
Does DJ attach to civil proceedings?
Exceptions to permit retrial:
1) Hung jury
2) Manifest destiny requires termination of trial
3) Retrial after successful appeal
4) **Charges may be reinstated after a D breaches terms of plea bargain.
When are two crimes the same offense?
When each crime requires the same elements.

Attachment of jeopardy for a greater offense bars jeopardy for a lesser included offense.
What is the rule regarding separate sovereigns and double jeopardy?
Separate sovereigns can try a defendant for the same offense.
Who may assert privilege against self incrimination?
Natural persons
When may the 5th privilege against self-incrimination be asserted?
Must be claimed right away. If you respond to a few questions and later claims privilege, that evidence cannot be barred.
What is the scope of 5th A privilege of self-incrimination?
It does not protect you from having the state use your body to incriminate (blood).
Stop and Frisk Rule
A police officer may stop a person without probable cause for arrest if he has an articulable and reasonable suspicion of criminal activity. If police have a RS that detainee is armed and dangerous, they may also frisk the detainee for weapons.
What are the "lesser" forms of malice necessary for involuntary manslaughter?
1) Criminal Negligence
2) Misdemeanor-Manslaughter
What is criminal negligence?
Conduct that creates a serious risk of death or great bodily injury to others--greater than ordinary negligence but less than the wantonness supporting a murder charge.
Describe the defense of necessity.
When D is forced to choose keeping the law and breaking the law and where breaking the law will result in less harm.

Most effective where both parties are doomed to die.
What are exceptions to obtaining a warrant?
1) Plain view
2) Consent
3) Incident to Lawful Arrest
4) Hot Pursuit
5) Automobile Search
How to answer 4th Amendment Questions
1) Was there a government agent?
2) Was there a reasonable expectation to privacy?
3) Did government agent have a warrant?
-If not--does it fit exceptions?
4) If warrant, was it executed properly?
What are exceptions to obtaining a warrant?
1) Plain view
2) Consent
3) Incident to Lawful Arrest
4) Hot Pursuit
5) Automobile Search
How to answer 4th Amendment Questions
1) Was there a government agent?
2) Was there a reasonable expectation to privacy?
3) Did government agent have a warrant?
-If not--does it fit exceptions?
4) If warrant, was it executed properly?