Criminal

Front 1

To satisfy the actus rea requirement an act must be _____--

Back 1

intentional

Front 2

Acts which are not intentional for the purposes of actus rea:

Back 2

1. reflexive or convulsive acts
2. acts performed while unconcsious or asleep

Front 3

When does intention exist even where the act itself was unintentional?

Back 3

Where the person intentionally did something in spite of knowledge that they had a dangerous preexisting condition which could result in harm. (such as eplieptic driving w/out meds)

Front 4

When can an omission form the basis for criminal liability?

Back 4

When there is a duty to act:
1. required by statute
2. contractual agreements relied on by others
3. relationship between the paries
4. voluntary assumption of duty (must perform reasonably)
5. D's conduct created the peril

Front 5

What is the definition of a strict liability crime?

Back 5

One in which intent is not required and there is no associated mental state.

Front 6

How can you identify a strict liability crime?

Back 6

The crime is regulatory, administrative, or moral AND the statute does not contrain adverbs (for intent)

Front 7

What defenses will not apply to strict liability crimes?

Back 7

Those that negate intention (eg mistake of fact, voluntary intoxication).

Front 8

What defenses are available for strict liability crimes?

Back 8

insanity, involuntary intoxication, duress

Front 9

Most crimes are ________ intent crimes.

Back 9

general

Front 10

Is mistake of fact a defense to a general intent crime?

Back 10

Reasonable mistake of fact is, but unreasonable mistake is not

Front 11

Name two commonly tested general intent crimes:

Back 11

rape and simple battery

Front 12

What defenses are available to a specific intent crime:

Back 12

1. mistake of fact (reasonable or not)
2. diminished capacity (eg in/voluntary intoxication
3. insanity
4. duress (generally)

Front 13

Name the specific intent crimes from the bar:

Back 13

1. inchoate crimes
2. 1st degree murder
3. assault
4. felonies against property

Front 14

Name the 3 inchoate offenses:

Back 14

1. solicitation
2. conspiracy
3. attempt

Front 15

Typically what result for a successful defense of voluntary intoxication or unreasonable mistake in murder 1 charge.

Back 15

reduced to murder 2

Front 16

Unless otherwise specified "murder" refers to what under the common law?

Back 16

2nd degree murder (a malice crime)

Front 17

what are the 6 felonies against property? What level of intent crimes are these?

Back 17

Specific intent
1. larceny
2. embesslement
3. false pretenses
4. robbery
5. burglery
6. forgery

Front 18

What malice crimes are tested on the bar?

Back 18

Murder and arson

Front 19

Is mistake of fact a defense to a malice crime?

Back 19

Generally, reasonable mistake is defense, but never unreasonable.

Front 20

what is the doctrine of transferred intent?

Back 20

an intent to commit a crime against one person is transferred to the actual victim

Front 21

Can intent be trasnferred between crimes?

Back 21

No. Felonious intent to do one crime cannot be trasnferred to a different felony.

Front 22

accomplices are liable for:

Back 22

1. the originally intended crime +
2. all other foreseeable crimes committed by the principals

Front 23

When is an accomplice liable?

Back 23

1. When he has actually done something with the intent to assist a criminal enterprise OR
2. assisted the principals in a significant way w/ knowledge that assistance would be used to commit a crime

Front 24

What is the rule where the accused accomplice provides a lawful product or service?

Back 24

Accomplice must
1. know that it is going to be used in a crime; AND
2. have a "stake in the outcome" (e.g., charging more for the product)
* on the bar, knowing provision tends = guilt

Front 25

When is the crime of soliciation complete?

Back 25

When the question is asked.

Front 26

How does the merger doctrine apply to solicitation?

Back 26

If the person solicited agrees to the crime then a conspiracy exists. The crimes merge and the person cannot be convicted of both.

Front 27

Does conspiracy merge with attempt or underlying crime?

Back 27

No, never.

Front 28

What are the elements of a conspiracy?

Back 28

1. an agreement
2. some overt act in furtherence of the conspiracy (ie predicate act, slight act ok)
3. intent to pursue an unlawful objective
4. a meeting of the minds

Front 29

When is mistake a defense undermining intent to pursue a unlawful objective for conspiracy?

Back 29

Mistake of fact is a defense where it is a defense to the underlying crime (no liability for conspiracy or the predicate crime). Mistake of law is not a defense.

Front 30

what result where D is charged w/ conspiracy where his "coconspirator" is in fact an undercover agent or otherwise unwilling to commit the crime?

Back 30

There is no meeting of the minds and therefore no liability for conspiracy. There may be liability for solicitation.

Front 31

what crimes are coconspirators liable for?

Back 31

all crimes of their coconspirators
1. committed in furtherance of the conspiracy; and
2. which were reasonably foreseeable

Front 32

Under the Common Law and in a minority of jurisdictions does conspiracy require an overt act?

Back 32

No, but the majority requires it.

Front 33

How can a person withdraw from a conspiracy?

Back 33

1. By informing all coconspirators of intent to withdraw; and
2. notice must be given while there is still time for the others to abandon criminal plan

Front 34

What is the effect of an effective withdrawal from a conspiracy?

Back 34

The conspirator is still liable for conspiracy and any foreseeable crimes already committed in furtherence of it. But he is not liable for further crimes of the coconspirators.

Front 35

What are the elements of attempt?

Back 35

1. specific intent to commit a target offense; and
2. take a substantial step towards completion of that offense (apply unless told otherwise. might also see dangerous proximity test)

Front 36

what intent is required to attempt a general intent or strict liability crime?

Back 36

a specific intent to attempt the crime.

Front 37

How does the merger doctrine work w/ attempt?

Back 37

Attempt merges into the completed crime. But in a transferred intent crime can be convicted of attempt w/ regard to one victim and target crime w/ regard to another.

Front 38

Insanity is a defense to what crimes?

Back 38

all including strict liability

Front 39

What does the M'Naghten test say?

Back 39

Insane if as a result of a mental defect the D lacked capaity to understand the nature and quality of his acts

Front 40

What does the irresistible impulse test say?

Back 40

As a result of a mental defect D lacked capacity for self control and free choice (a volitional test about whether you were capable of controlling action)

Front 41

What does the Durham Rule say?

Back 41

Was the D's conduct a "product" of a mental illness? (not really followed anymore)

Front 42

What does the Model Penal Code (ALI) insanity test say?

Back 42

1. D lacked the substantial capacity to either appreciate the wrongfulness of conduct; OR
2. conform conduct to the requirements of law as a result of mental disease or illness.

Front 43

What is the most commonly used insantity rule?

Back 43

The M'Naghten Test

Front 44

what is voluntary intoxication?

Back 44

toxin was knowingly and voluntarily ingested (even by addicts)

Front 45

What is involuntary intoxication a defense to?

Back 45

All crimes including strict liability (assuming intoxication caused the actus rea)

Front 46

what is the rule regarding infancy under common law?

Back 46

1. under 7, no criminal liability
2. under 14 there is a rebuttable presumption of no criminal libaility

Front 47

When may a person use non-deadly force in self defense?

Back 47

when they are:
1. not the initial aggressor; and
2. they reasonably believe that force is about to be used against them

Front 48

When may a person use deadly force in self defense?

Back 48

Maj. when they are:
1. not the initial aggressor; and
2. they reasonably believe that deadly force is about to be used against them
Min: duty to retreat prior to using deadly force where safe to do so

Front 49

Under the minority rule that retreat must be attempted prior to using deadly force, what exceptions apply?

Back 49

1. V is in their own home
2. V of a violent felony such as rape or robbery (even if retreat would be safe)
3. police officers have no duty to retreat

Front 50

Under what circumstances may an initial aggressor claim a right to self defense?

Back 50

1. the initial aggressor withdraws and tells the V that he is surrendoring/withdrawing
2. a non-deadly aggressor is defending against a deadly response
* but note, initial aggressor must make a retreat if it is safe to do so

Front 51

What right does a person have to defend someone else?

Back 51

Maj. when they reasonably believe force is about to be used against that person (an honest and reasonable mistake is a defense)
Min. Alter ego rule--defender's legal rights are the same as the person they are defending (so if person defending has no right, eg, they were initial aggressor) the defendor has no right

Front 52

What are the rules regarding defense of a dwelling?

Back 52

1. deadly force may never be used in defense of dwelling (eg., spring gun w/ person gone = no defense)
2. may use deadly force to defend self/family when reasonably believe its necessary during a burglery

Front 53

What is duress a defense to?

Back 53

All crimes except homocide.

Front 54

In order to establish the defense of entrapment D must show?

Back 54

D had no predisposition to commit the crime. Predisposition negates the defense.

Front 55

What is common law battery?

Back 55

A completed assualt. General intent.

Front 56

What is common law assualt?

Back 56

1. an attempted battery (specific intent); OR
2. a threat (general intent crime)

Front 57

What is a homocide?

Back 57

The taking of a life of a human being (even if only briefly shortening life)

Front 58

what intent is indicated when the bar mentions murder w/out further info?

Back 58

malice

Front 59

Homocide is murder when accompanied with what types of intent?

Back 59

1. intent to kill
2. intent to do serious bodily harm
3. a depraved heart
4. felony murder

Front 60

What is the definition of a depraved heart?

Back 60

An act performed inspite of knowledge that a substantial likelihood of cuasing death or great bodily harm exists (gross negligence)

Front 61

What is a felony murder?

Back 61

A homocide committed during the course of a felony.

Front 62

What defenses exist for felony murder?

Back 62

1. any defense to the underlying felony
2. underlying felony cannot be the killing (felony must be in addition to the homocide)
3. death was unforeseeable
4. death occurred after the felon had reached a point of temporary safety after fleeing crime
5. V is a co-felon at hands of 3rd party, but if innocent pty dies at hands of 3rd pty that is felony murder

Front 63

How do you get a murder reduced to voluntary manslaughter?

Back 63

1. provocation/heat of passion
2. imperfect claim of self-defense (honestly, but unreasonably believed they were in danger)
3. diminished capacity

Front 64

How do you establish provocation for voluntary manslaughter?

Back 64

1. V must have done something to provoke D
2. that would provoke a reasonable person
3. D acted while still in throes of passion
4. a reasonable person would still have been in throes of passion

Front 65

What type of murder can be reduced to involuntary manslaughter?

Back 65

depraved heart (gross negligence). not quite reckless enough to be murder

Front 66

what seperates involuntary manslaughter from reckless murder?

Back 66

1. less reckless than gross; or
2. lack of subjective awareness of creating a danger

Front 67

how does involuntary manslaughter arise?

Back 67

1. criminal negligence
2. misdemeanor manslaughter (death occurs during a misdemeanor or unlisted felony)

Front 68

how will you know that you are dealing with 1st degree murder on the bar?

Back 68

they will tell you, otherwise treat as 2nd degree

Front 69

What are the elements of kidnapping?

Back 69

1. some movement of the V; or
2. V kept in a secret place

Front 70

Is mistake a defense for rape?

Back 70

Yes, as a general intent crime reasonable mistake is a defense.

Front 71

What type of crime is statutory rape?

Back 71

A strict liability crime

Front 72

Is consent or mistake of fact a defense to statutory rape?

Back 72

No.

Front 73

What are the elements of larceny?

Back 73

1. a wrongful taking (can include mispresentation of fact)
2. a carrying away (however slight)
3. the personal property of another (from the rightful possessor)
4. without valid consent
5. with the intent to permanently deprive of rightful possession

Front 74

Does a larceny result when someone takes personal property with the intent to return it safely, but in fact destroys it.

Back 74

No, no intent to deprive permenantly

Front 75

Does a larceny result when someone unreasonably believes the property they are taking is their own?

Back 75

No, No, no intent to deprive rightful owner permenantly

Front 76

Is a mistake of law a defense for larceny?

Back 76

No.

Front 77

What are the elements of embezzlement?

Back 77

1. The lawful possessor of property improperly converts property to their own uses.

Front 78

need an embezzler carry away property? benfit from the conversion? kept the property?

Back 78

no, no, no

Front 79

What are the elements of false pretenses?

Back 79

1. D uses false pretenses to persuade owner to convey title of property.
2. lie must be about a past or present fact, not about future promises.

Front 80

Robbery = ? + ?

Back 80

larceny + assault

Front 81

What are the elements of robbery?

Back 81

1. all elements of larceny; and
2. taking from a person or his presence; and
3. by means of physical harm or threat of imminent physical harm against a person

Front 82

what constitutes use of physcial harm or threat for robbery?

Back 82

1. any use of a small amount of force (taking w/out V being aware is not robbery)
2. threats of imminent harm to a human life (no future threats)

Front 83

How is extortion different than robbery?

Back 83

1. no need to remove property from person or presence of V
2. threat may be of future harm
3. threatened harm need not be against a person
4. threat does not have to be of physical harm

Front 84

what is arson?

Back 84

the malicious burning of the dwelling house of another.

Front 85

what constitutes a burning for the purpose of arson?

Back 85

Maj. must be some charring of the property (mere damage by smoke or water is not enough)

Front 86

what constitutes a dwelling for the purpose of arson?

Back 86

At common law, required that it be somewhere that someone sleeps. For mbe, any structure will do.

Front 87

At common law could a person commit arson by burning their own home?

Back 87

No. (but maybe insurance law)

Front 88

what are the elements of burglary?

Back 88

1. breaking (removal of obstruction through force, fruad, or threat. includes internal doors)
2. entering (any part of the body crossing threshold)
3. dwelling house
4. at night
5. with intent to commit a felony or theft inside

Front 89

what result where a person breaks into a home and then forms the intent to steal? if they intend to steal and then do not commit theft?

Back 89

1. no burglary
2. burglary

Front 90

What is the exclusionary rule?

Back 90

Rule that prevents criminal prosecution from using unconstitutionally obtained info (but not necessarily illegally obtained info).

Front 91

In what settings does the exclusionary rule not apply?

Back 91

1. civil cases
2. deportation or parol cases
3. grand jury hearings
4. impeachment
5. good faith reliance

Front 92

What type of unconstitutionally obtained evidence may be used to impeach the accused?

Back 92

1. improperly mirandized statements
2. pre or post arrest UN-mirandized silence
3. unconstitutionally seized evidence

Front 93

When may unconstitutionally obtained evidence be used to impeach the accused?

Back 93

when the D personally testifies in a manner inconsistent with the unconstitutionally obtained statement

Front 94

What types of statements are not admissable as impeachment evidence?

Back 94

1. coerced confessions
2. post-Mirandized silence
3. 6th amendment right to counsel violations

Front 95

When does the good faith reliance exception to the exclusionary rule apply?

Back 95

police relied on
1. later changed judicial opinion
2. a statute or ordinence later found unconstitutional
3. a search warrant defective as a result of insufficient probable cause (but exceptions)

Front 96

What when can the police not rely in good faith on a defective warrant?

Back 96

1. the affidavit is so lacking in probable cause that no reasonable officer could rely on it
2. the law is so outlandish that no reasonable officer could rely on it
3. warrant is invalid on its face
4. the affiant lied to or intentionally misled the magistrate
5. the magistrate wholly abandoned his judicial role (insufficiently neutral and detached)

Front 97

In what situations is a magistrate insufficiently neutral and detached to allow good faith reliance on a warrant?

Back 97

1. magistrate is also prosecutor
2. is paid per warrant
3. acted in such a way as to become a member of the law enforcement team

Front 98

To be valid on its face a warrant must state ________

Back 98

the place or things to be searched with particularity.

Front 99

what does the fruit of the poisonous tree rule do?

Back 99

excludes all evidence obtained or derived from unconstitutional police acts

Front 100

How is the chain of taint broken in the fruit of the poisonous tree?

Back 100

Through a free will act by D (but only as applies to that D)

Front 101

What exceptions apply to the fruit of the posionous tree rule?

Back 101

1. intervening act of free will
2. inevitable discovery
3. physical evidence obtained through a Miranda violation
4. Knock and announce violations

Front 102

When does the inevitable discovery rule apply?

Back 102

when a preponderance of evidence establishes that evidence would inevitably have been discovered without the constitutional violation

Front 103

what is the knock and announce rule?

Back 103

police need to knock and announce their presence prior to entering to serve a warrant--but violating does not create fruit of poisonous tree exception

Front 104

when is an arrest warrent required?

Back 104

to arrest someone in their home (or a place they are spending the night)

Front 105

what do the police need to perform a valid arrest?

Back 105

probable cause

Front 106

when do the police not need a warrant to arrest someone in their home?

Back 106

in an emergency situation

Front 107

what is the search and seizure question model?

Back 107

1. was there state action
2. does D have standing to object
3. did the police have a search warrant
4. if no warrant, is search covered by an exception

Front 108

for the purposes of the 4th amendment is an off-duty police officer covered? a private citizen working at urging of the government?

Back 108

yes; yes

Front 109

in order to have standing to object to a search and seizure the D must have __________

Back 109

a reasonable expectation of privacy in the area searched or the items seized. no reasoanble expection where item has been exposed to the public.

Front 110

name some situations in which the Court has found no reasonable expectation of privacy?

Back 110

1. eavesdropping in public
2. scrapping paint off exterior of car
3. monitoring vehicles in public
4. search of open fields
5. observation during a fly-over in public airspace
6. search of garbage left for pickup in public street
7. search for contraband where only the presence of contraband will be found (drug dog)

Front 111

may the police pull over a car on the pretext of a traffic violation in order to peek into a car?

Back 111

yes, if they actually observe a traffic violation

Front 112

may the police constitutionally enter an open field protected by no tresspassing signs and fence?

Back 112

yes, no reasonable expectation of privacy in open fields

Front 113

standing to challenge search and seizure always exists where a person:

Back 113

1. owns the searched premises
2. lives on the premise searched
3. is an overnight guest at the premises

Front 114

standing to challenge search and seizure generally exists where a person:

Back 114

1. is legitimately on the searched premises
2. they owned the property seized

Front 115

does a drug dealer in another's premises for the purposes of illegal activity have standing to challenge search and seizure?

Back 115

no, because he is not there for legitimate purposes

Front 116

when does a passanger in a car have standing to object to evidence seized from a closed container?

Back 116

where the passanger can establish that the container belonged to them

Front 117

is the testimony of a passanger in a car testifying to ownership of a container in order to establish standing later admissable against that person

Back 117

no. no case on point, but might be admiss on impeachment

Front 118

what do the police need to obtain a search warrant?

Back 118

probable cause

Front 119

how is probable cause determined?

Back 119

based on a totality of circumstances

Front 120

can an anonymous tip provide probable cause?

Back 120

yes, depending on the totality of the circumstances

Front 121

what are the elements of a valid warrant?

Back 121

1. probable cause, supported by enough info for magistrate to make a commonsense evaluation
2. issued by a neutral and detached magistrate
3. properly executed (timely)
4. states place to be search and items with particularity

Front 122

when is search warrant unnecessary?

Back 122

1. search incident to lawful arrest

Front 123

how can police overcome an invalid warrant?

Back 123

the good faith exception or within a search warrant exception

Front 124

what are the rules regarding a search incident to arrest?

Back 124

1. arrest must occur first
2. must occur at time and place of arrest
3. limited to person's wingspan
4. special rules for cars

Front 125

what are the rules for a search incident to arrest as applies to cars?

Back 125

1. every place in passanger compartment can be searched (including closed containers) but not trunk
2. police can reenter the car after suspect is out and search
3. recent occupant rule allows search of car exited just prior to arrest

Front 126

During a search incident to arrest the police are permitted to search _________.

Back 126

in the area of the person's wingspan and areas immediately adjoining the place of arrest for others who might attack officers (need reasonable suspicion to search for non-adjoining rooms.

Front 127

A reasonable suspicion is ___________.

Back 127

something less than probable cause.

Front 128

The automobile exception requires __________, but it does not require _________. The police may search _________. Probable cause may arise __________.

Back 128

probable cause to search the car; a warrant;
anywhere in the car where the items being search for may be kept;
after stopping the car.

Front 129

Pretextual auto stops ___________.

Back 129

are permitted where the stop is objectively justified.

Front 130

Searches at a border require ________.

Back 130

no probable cause, reasonable suspicion, or anything else.

Front 131

Items may be seized by officers without a warrant when they are in ________. To qualify the officers must have been able to perceive the items from a place the officer was _________.

Back 131

plain view;
constitutionally permitted to be.

Front 132

To seize something in plain view the police must have __________.

Back 132

probable cause connecting the item to a crime (except abandoned property).

Front 133

A stop and frisk is __________.

Back 133

a brief detention during which the police may question and pat down a person with only reasonable suspicion

Front 134

A frisk is an _________. If an officer finds something during a pat down that they believe to be ______ they may then ___________.

Back 134

exterior pat down of clothing for a weapon only requiring reasonable suspicion;
contraband;
search for it with probable cause.

Front 135

During a pat down police get _______ to develop probable cause that something is contraband.

Back 135

one squeeze (plain feel)

Front 136

Consent must be _________.

Back 136

intelligent and voluntary.

Front 137

Before performing a search the police ______ a warning that consent is voluntary.

Back 137

do not need to give

Front 138

Where two or more persons are believed to have an equal right to possess property one of them ________, unless ___________.

Back 138

can consent to a warrantless search and bind the other;
an objecting co-occupant is present and informs the police of his objections.

Front 139

Police may seize evidence without a warrant where the evidence is __________.

Back 139

evanescent (could disappear in the time to get a warrant)

Front 140

Bodily intrusions to suspects must be _____. If the method is _______________ the intrusion may be deemed a violation of Due Process and the evidence excluded.

Back 140

reasonable;
too intrusive, painful, or dangerous

Front 141

In order to enter a dwelling without a warrant on hot pursuit the entry must be _____________. While in hot pursuit the police may seize items found in ______.

Back 141

within moments of the suspect entering the home;
plain view.

Front 142

As a general rule, wiretapping and eavesdropping require _________, however, the police may ________. Pin register numbers dialed are _________.

Back 142

a warrant based on probable cause;
listen in on conversations with another person with that person's permission;
not protected by the 4th amendment.

Front 143

As a general rule, under the principal of double jeopardy, a defendant cannot be retried ________.

Back 143

for the same offense by the same sovereign after a dismissal, acquittal, or conviction.

Front 144

Jeopardy attaches when _______________.

Back 144

the defendant pleads guilty, the jury is sworn in, in a bench trial when the first witness is sworn in.

Front 145

Retrying a defendant is permitted where _______.

Back 145

1. the jury was unable to reach a verdict,
2. a mistrial is granted at the defendant's request
3. it is manifestly necessary to abort the trial;
4. when the defendant has successfully appealed their conviction unless the appeal was for insufficient evidence (dismissal as a matter of law);
6. the D has breached their plea bargain

Front 146

A defendant may be retried after a successful appeal where __________. The defendant may be charged with ________. If the jury in the first trial found that __________ was inappropriate it may not be granted in the second trial.

Back 146

the appeal was granted on the basis of the weight rather than sufficiency of the evidence;
the same of a lesser crime (but not greater);
the death penalty

Front 147

Two crimes are different offenses where______________.

Back 147

each crime requires proof of an additional element (so mere addition of single element to one crime is insufficient).

Front 148

If two crimes have the same elements, punishment may be cumulative where ___________.

Back 148

there was legislative intent for that to occur.

Front 149

Attachment of jeopardy for ___________ bars retrial for a _____ and vice versa. The exception is ________. A state may continue to prosecute after a guilty plea ____________.

Back 149

a greater crime, lesser included offense (eg murder and attempted murder);
where the victim of a battery dies after jeopardy has attached (then murder prosecution is okay);
to a lesser or allied crime.

Front 150

The state may retry a person for a greater offense after jeopardy has attached for a lesser included offense where______________.

Back 150

1) the greater crime had not occurred at the time of prosecution or
2) had not been discovered yet despite due diligence.

Front 151

Double jeopardy prevents repetitive __________. The exception is where the civil statute is intended to ________.

Back 151

criminal prosecutions only, subsequent civil trials are allowed.

Front 152

The constitutional prohibition on double jeopardy only applies to multiple prosecutions by ___________.

Back 152

the same sovereign, so the federal government and a state government may both prosecute (but municipalities are considered the same sovereign as the state).

Front 153

The government may appeal any dismissal of criminal charges _________.

Back 153

that is not based on acquittal on the merits (even where a successful appeal would cause a retrial).

Front 154

A defendant may not be retried for a crime if an earlier trial by that sovereign resulted in __________ under the doctrine of________.

Back 154

an inconsistent factual determination with that required for conviction;
collateral estoppel

Front 155

Miranda only applies when the suspect is __________ and being _________.

Back 155

in custody; interrogated (conduct the police knew or should have known would obtain an incriminating response).

Front 156

In order to exercise the Miranda rights the suspect must ___________. The burden is on ________ to show the suspect waived his rights.

Back 156

unambiguously exercise the right;
police

Front 157

A suspect's silence before or after arrest may be used for impeachment, except ___________.

Back 157

after he has been given his Miranda warnings (violation of due process).

Front 158

Non-testimonial evidence obtained from an un-Mirandized suspect is _____________.

Back 158

admissible (no fruit of the poisonous tree problem)

Front 159

The requirement for Miranda can be satisfied by _______.

Back 159

substantial compliance with the articulation

Front 160

No Miranda warnings are required before questioning a suspect in a ___________, but the exception does not apply to ___________.

Back 160

public safety scenario;
coerced statements.

Front 161

Once a suspect has elected to exercise their Miranda rights the police may not_____________.

Back 161

again attempt to obtain a waiver with regard to the same crime.

Front 162

If a suspect exercises the right to remain silent, the police may question him about _________, but not about ____________. What result where the suspect requests a lawyer?

Back 162

a different crime with new Miranda warning;
the same crime;
the police can no longer question about any crime

Front 163

The police may not question a suspect about any crime after he has exercised his right to counsel under the _____________.

Back 163

5th amendment

Front 164

Confessions must be____________.

Back 164

voluntary (no coercion)

Front 165

The 6th amendment right to counsel applies when__________.

Back 165

the defendant has a lawyer and formal proceedings have commenced.

Front 166

Under the ___ th Amendment right to counsel, the government may not _____________.

Back 166

6th;
question the defendant about the crime without his attorney being present (in any setting).

Front 167

The 6th amendment right to counsel prohibits the government from questioning the defendant about __________. The 5th amendment right to counsel prohibits the government from questioning the suspect about ___________.

Back 167

the specific crime for which he has been charged and retained counsel;
any crimes without his lawyer while in custody

Front 168

The defendant is entitled to counsel during _____________ lineups.

Back 168

post-indictment, in person

Front 169

A lineup is a denial of Due Process where ______________.

Back 169

it is so unnecessarily suggestive as to create a substantial likelihood of misidentification.

Front 170

If a lineup identification is inadmissible due to lack of counsel or unnecessarily suggestive, the in court identification________

Back 170

will also be inadmissible unless the prosecution can show through clear and convincing evidence that there is an independent source for the witness' recognition of the defendant (such as knew him before the crime or got a really good look).

Front 171

Under the constitution there is only a right to a grand jury in __________.

Back 171

in federal court for felonies

Front 172

The _______ rule does not apply to grand jury proceedings.

Back 172

exclusionary

Front 173

The defendant in a grand jury proceeding does not have what customary rights?

Back 173

to be present, to have his attorney present, or to call or question witnesses

Front 174

Bail issues are _______ appealable.

Back 174

immediately

Front 175

Preventative detention is permissible (not a due process violation) where ___________.

Back 175

defendant has received a hearing about the detention and the court has determined that:
1. no amount of bail would guarantee defendant's return to court, or
2. there is no way to ensure the safety of the community if defendant is released.

Front 176

The speedy trial right only applies to _________.

Back 176

post-arrest delays

Front 177

In a criminal trial the jury must be _________ and the decision ____.

Back 177

at least 6;
need not be unanimous (9-3 is sufficient), but for juries of 6 the verdict must be unanimous

Front 178

There is only a right to jury trial for ________ as defined by ___________.

Back 178

non-petty offenses;
a possible punishment of more than 6 months sentence.

Front 179

The jury pool must represent __________. The jury itself _________.

Back 179

a fair cross-section of the community;
need not be a fair cross section

Front 180

As a general rule, lawyers may dismiss jurors with ________ challenges for ___________. However, it is unconstitutional to exclude a juror on the basis of ___________. Lawyer can avoid this problem by offering _________.

Back 180

peremptory, any reason;
race or gender (applies to both D and P);
any race or gender neutral reason.

Front 181

The prosecution cannot exclude a juror in a capital case for cause because __________. But they can be excluded if _______________.

Back 181

they are opposed to the death penalty;
their opposition would substantially impair their ability to follow the court's instructions in that regard.

Front 182

In order for a guilty plea to be valid the court must _______________. If this is not done ______________.

Back 182

determine on the record that the defendant has been advised of his rights and waived them by pleading guilty;
the guilty plea may be withdrawn

Front 183

A D pleading guilty must be advised of ________________.

Back 183

1. the rights that they are waiving
2. the nature of the charges
3. the maximum possible sentence and any minimum sentence
4. that he has a right to plead not guilty and have a trial

Front 184

Plea bargains are governed by the same principals as ____________. The D may demand ___________ in the P breaches its duty.

Back 184

contract theory;
rescission or specific performance.

Front 185

Pleas can be withdrawn on the basis of ineffective assistance of counsel where ___________.

Back 185

1. the advice of counsel was truly unreasonable, and
2. it effected the outcome of the case (D would not have plead guilty but for the advice).

Front 186

Please may only be revoked or appealed after sentencing where:

Back 186

1. the plea was involunary (including no advisement of rights or effective waiver)
2. trial lacked right to hear the case
3. P failed to keep plea bargain
4. ineffective assistance of counsel

Front 187

There is only a right to an appointed attorney for misdemeanors where__________. As a collerary ___________.

Back 187

jail sentence is imposed.
If the judge tries you without appointing a lawyer, then they cannot give you jail time.

Front 188

There is a right to an appointed attorney where:

Back 188

1. the charge is a felony
2. it is a misdemeanor and jail time is actually imposed

Front 189

In felonies the right to appointed counsel includes the right to _______.

Back 189

state funded experts where necessary

Front 190

The right to appointment of counsel applies to _____ appeals. It does not apply to __________.

Back 190

first appeals of right;
to writs for habeas or 2nd level appeals