Criminal Law And Criminal Procedure

Front 1

When can one's NON-volitional conduct that causes a harm to occur satisfy the actus rea requirement?

E.g., epileptic seizure

Back 1

When the ∆ has a preexisting knowledge of his dangerous preexisting condition.

-Do not confuse sleep walking with falling asleep at the wheel

Front 2

5 times you have an affirmative duty to act?

Back 2

(1) Statute
(2) Contract
(3) Relationship
(4) Assuming the duty
(5) Creation of peril

Front 3

Typical Sucker Answers

Back 3

(1) Consent
(2) Entrapment
(3) Infancy

Front 4

What are the ONLY defenses to strict liability crimes?

Back 4

(1) Insanity
(2) Involuntary intoxication
(3) Duress (possibly)

Front 5

What are the three classifications of "intent" for crimes?

Back 5

(1) Strict Liability
(2) General Intent
(3) Specific Intent

Front 6

Mistake of Fact is a defense to which:

(1) Strict Liability
(2) General Intent
(3) Specific Intent

Back 6

(1) Strict Liability
NEVER

(2) General Intent
ONLY if reasonable

(3) Specific Intent
ALWAYS

Front 7

What are the 4 categories of "specific intent" crimes?

Back 7

(1) Inchoate
-Solicitation
-Conspiracy
-Attempt

(2) 1st Degree Murder

(3) Assault (as attempted battery)

(4) Felonies against property
-Larceny
-Embezzlement
-False Pretenses
-Robbery
-Burglary
-Forgery

Front 8

What is transfered intent?

Back 8

(1) Intent to commit a criminal offense against person X is accidentally committed against person Y

(2) NOT
Intent to commit a criminal offense X and accidentally committing criminal offense Y

NOTE:
Under (1), the person would be charged with attempt against person X and the crime against person Y

Front 9

Elements of accomplice liability?

Back 9

(1) Any past act
(2) with intent to assist a criminal act

OR

(1) Assisting the actual perpetrator
(2) in some significant way
(3) with knowledge that the assistance would be used to commit a future crime

Front 10

What are the the 3 inchoate offenses?

Back 10

(1) Solicitation
(2) Conspiracy
(3) Attempt

Front 11

What are the elements of Solicitation?

Back 11

Asking someone to commit a crime


NOTE: If that person agrees to commit the crime, it is now a conspiracy and no longer a solicitation (merger).

Front 12

What are the elements of conspiracy?

Back 12

(1) Agreement
(2) Slight overt act
(3) Intent to pursue the crime
(4) Meeting of the minds

Front 13

Does conspiracy merge with the target offense?

Back 13

NO

The perpetrators will be guilty of both the conspiracy AND the target offense.

NOTE: This is unlike solicitation

Front 14

Each conspirator is liable for all the crimes of their coconspirator IF...

Back 14

(1) The crime was in furtherance of the target offense;
(2) They were reasonably foreseeable; and
(3) The conspirator has not properly withdrawn

Front 15

For conspiracy, what is the majority and minority rule regarding the element of "overt act"

Back 15

(1) Majority
Some overt act necessary

(2) Minority
No overt act necessary

Front 16

How does a coconspirator withdraw from the conspiracy?

Back 16

(1) Notify
-Inform all coconspirators of intent to withdraw

(2) Timely
-Withdrawal must be given with enough time for the others to also abandon

Front 17

What are the elements of attempt?

Back 17

(1) Specific intent to commit the target offense; and
(2) Substantial step towards the commission

Front 18

Does attempt merge with the target offense?

Back 18

YES

You cannot be charged for attempt and the crime attempted.

Front 19

What are the 4 test for the insanity defense?

Back 19

(1) M'Nagten
-Inability to appreciate the WRONGFULNESS of his conduct
OR
-Understand the NATURE and quality of his action


(2) Irresistible Impulse
-Lack of capacity for self-control and FREE CHOICE


(3) Durham Rule
-"PRODUCT" of a mental illness


(4) Model Penal Code (ALI)
-Inability to appreciate the CRIMINALITY of his conduct
OR
-CONFORM his conduct to the requirements of the law

Front 20

What is voluntary intoxication a defense to?

Back 20

ONLY specific intent crimes.

Front 21

What are the 5 typical criminal defenses?

Back 21

(1) Insanity
(2) Intoxication
(3) Infancy
(4) Defense (self, other property)
(5) Duress

Front 22

What is the infancy defense?

Back 22

(1) Children under 7 are NEVER criminally liable
(2) Children under 14 have a presumption of no criminal liability

Front 23

Elements of perfect self-defense?

Back 23

(1) Reasonable belief
(2) Force against him
(3) Imminent
(4) Responds immediately and proportionately

Front 24

What is the majority and minority rule regarding "retreat" for self defense?

Back 24

MAJORITY
(1) Non-initiating aggressor need not retreat
(2) Initiating aggressor MUST first retreat

MINORITY
(1) Non-initiating aggressor MUST first retreat
-UNLESS: at home; violent felony; PO
(2) Initiating aggressor MUST first retreat

Front 25

For defense of other, what is the majority and minority view on mistake?

Back 25

MAJORITY
(1) Allows reasonable mistake

MINORITY
(1) Alter Ego Theory
-if you kill a PO while defending a criminal, you are liable regardless of whether your mistake was reasonable

Front 26

When is duress NOT a defense?

Back 26

Homicide.

-All human lives are considered equal.
-Cannot kill one to save many either.

Front 27

What are the two ways an assault arises?

Back 27

(1) As an attempted battery (specific intent)

(2) As a threat (general intent)

Front 28

What are the 4 ways in which a "Murder" arises?

Back 28

(1) Intent to kill (1st degree)
(2) Intent to cause SBH (2nd degree)
(3) Depraved Heart (2nd degree)
(4) Felony Murder (2nd degree)

Front 29

What are the 5 traditional felonies that can be used for felony murder?

Back 29

BARRK

(1) Burglary
(2) Arson
(3) Robbery
(4) Rape
(5) Kidnapping

Front 30

What are the elements of Felony Murder?

Back 30

(1) Underlying felony (BARRK)

(2) Other than the homicide

(3) Death is foreseeable

(4) Proximity
-Death occurs prior to ∆ reaching a point of "temporary safety"

Front 31

What is the"Redline" rule?

Back 31

It is a rule used to determine whether a coconspirator is liable for the death of an individual during the commission of a crime.

RULE:
Liable for:
-PO kills PO, Victim, or Bystander
-Victim kills PO or Bystander
-Felon kills Felon

NOT liable
Felon killed by PO, bystander, or Victim

Front 32

To get to either voluntary manslaughter or involuntary manslaughter you must mitigate murder. How do you get to:

(1) voluntary manslaughter
(2) involuntary manslaughter

Back 32

(1) voluntary manslaughter
Mitigate:
-Intent to kill murder
-Intent to commit SBH

(2) involuntary manslaughter
Mitigate
-Depraved heard murder
-Felony murder

Front 33

What mitigating circumstances lead to voluntary manslaughter?

Back 33

(1) Provocation
(2) Imperfect Self-Defense
(3) Diminished Capacity

Front 34

What are the elements of provocation (mitigation to voluntary manslaughter)?

Back 34

(1) Subjective provocation
(2) Objective provocation (reasonable)
(3) Subjective lack of time to cool down
(4) Objective lack of time to cool down (reasonable)

Front 35

What are the two theories under involuntary manslaughter?

Back 35

(1) Criminal Negligence
-Mitigation for depraved heart murder
-Criminal negligence is higher than civil negligence

(2) Misdemeanor Manslaughter
-Mitigation for felony murder
-Misdemeanor or Unenumerated Felony

Front 36

Elements of Kidnapping?

Back 36

(1) Some movement of the victim
OR
(2) Concealment of the Victim in a "secret" place

Front 37

Elements of rape?

Back 37

(1) Slight penetration
(2) Without consent (mistake of fact defense)

Front 38

Elements of Larceny?

Back 38

(1) Wrongful taking
-includes misrepresentation of fact

(2) Carrying away
-Slightest movement

(3) Personal property of another
-Right to possess is the issue

(4) Without valid consent
-Consent via fraud or fear is not valid

(5) With intent to permanently deprive possessor
-intent to destroy is sufficient
-specific intent element

Front 39

What crime has been committed if:

(1) Property is wrongfully taken, initially without the intent to deprive, and the intent to deprive is later developed, what has occurred?

(2) Property is accidentally taken, and the mistake is later discovered and the negligent taker forms the intent to deprive upon that discovery, what has occurred?

Back 39

(1) LARCENY

(2) NO CRIME

If the property is taken wrongfully, the intent can be formed at anytime during that wrongful possession.

Front 40

What are the elements of embezzlement?

Back 40

(1) Lawful possession
(2) Property convert for embezzler's purpose

-Whether the accused embezzler is a low level EE is only a factor in determining whether that person was in lawful possession.

Front 41

What are the 5 property crimes?

Back 41

(1) Larceny
(2) Embezzlement
(3) False Pretenses
(4) Robbery
(5) Extortion

Front 42

What are the elements of false pretenses?

Back 42

(1) Lie to induce transfer of TITLE
(2) Lie must concern a present or past fact

-Title must pass

Front 43

What property crime passes title?

(1) Larceny
(2) Embezzlement
(3) False Pretenses
(4) Robbery
(5) Extortion

Back 43

False pretenses.

Front 44

What are the elements of Robbery?

Back 44

Larceny + Force

(1) Wrongful taking
(2) Carrying away
(3) Personal property of another
(4) Without valid consent
(5) With intent to permanently deprive possessor
(6) In the possessor's presences
(7) By means of physical force or threat of force against the person

Front 45

(1) How much "force" is necessary for a robbery?

Alternatively

(2) What kind of "threat" is necessary for a robbery?

Back 45

(1) Very little, but some.
-Watch for a pick pocket that is not detected by the possessor

(2) Threat of imminent bodily harm to a human

Front 46

What are the elements of extortion (blackmail)?

Back 46

(1) Obtaining a benefit
-does not have to be in the presence of the possessor

(2) Via a Threat
-present or future threat
-does not have to threaten harm to a human
-threat does not have to threaten physical harm
-even threatening to do something otherwise legal if done with malice

Front 47

Elements of arson?

Back 47

(1) Burning
-Today: charing will do

(2) Dwelling House
-Today: any building

(3) Of another
-Today: anyone's house

Front 48

Elements of Burglary?

Back 48

(1) Breaking
-Moving of any object connected to the building, even an interior door

(2) Entering
-Any part of the body

(3) Dwelling house
-Today: any building

(4) At night
-Today: not required

(5) Intent to commit a felony therein
-Formed prior to entering

Front 49

What types of words cannot be in a strict liability statute?

Back 49

Adverbs. "...ly"

Example:
knowingly, willfully, intentionally, etc.

Front 50

Does the act of drugging someone constitute "force" for purposes of robbery?

Back 50

YES.

If it is force sufficient to overcome the person's resistance.

Front 51

Can the right against self incrimination be violated during a criminal ∆'s testimony given at a grand jury proceeding?

Back 51

NO.

Not if it is given voluntarily.

Front 52

What are the elements for receipt of stolen property?

Back 52

(1) Receipt; and
(2) Control of;
(3) Personal property;
(4) Knowing it to have been stolen by another;
(5) With the intent to permanently deprive the owner

Front 53

What are the elements of accessory after the fact?

Back 53

(1) Assisting the perpetrator to;
(2) Avoid apprehension;
(3) Knowing that he committed a felony

Front 54

What are the exceptions to the "knock and announce" rule?

Back 54

When there is reasonable suspicion that it would be:
(1) Dangerous (searched home houses dangerous people);
(2) Futile (refuse to answer); or
(3) Inhibit the investigation (destruction of evidence)

Front 55

Does the exclusionary rule apply the 4th Amendment Violations?

Back 55

NO

Example:
-Failure to knock and announce

Front 56

If you see the word "knowing" in a statute, what type of criminal intent is necessary to convict?

Back 56

Specific Intent

Therefore, even unreasonable factual mistakes are a valid defense.

Front 57

Can the owner of an apartment be guilty of burglary if she enters a leased apartment with the intent to commit a felony therein?

Back 57

YES.

The tenant is the rightful occupant during the period of the lease.

[What about a hotel guest's room?]

Front 58

When does a ∆ have NO right to confront an informant?

Back 58

When the informant's affidavit it used as the basis for probable cause for issuance of a warrant and when the informant is NOT a material witness to the crime.

If the informant is a material witness to the crime, the ∆ has the right to confront him.

Front 59

What are the exceptions to the exclusionary?

Back 59

(1) Civil Cases
(2) Grand Jury Proceedings
(3) Impeachment of ∆'s own testimony
(4) Good Faith Reliance

Front 60

What type of evidence, otherwise inadmissible due to the exclusionary rule, may be used SOLELY to impeach the DEFENDANT'S testimony?

Back 60

(1) Improperly Mirandized statements
-?

(2) Pre or Post unMirandized Silence
-If ∆ is now claiming self defense, but 3 days passed before he came forward to the police. His silence may be used to impeach his claim of self defense.

(3) Unconstitutionally seized evidence

-These exceptions to the exclusionary rule are allowed because they usurp rights created by the court, NOT constitutional rights.

Front 61

What type of evidence is inadmissible, even to impeach the ∆'s own statements?

Back 61

(1) Coerced Confessions
(2) Post Miranda Silence
(3) Massiah Violations

-There are NO exceptions to the exclusionary rule for these situations because these violations violate rights found directly within the constitution, NOT court created rights.

Front 62

What can be relied upon for the Good Faith Reliance exception to the exclusionary rule?

Back 62

(1) Judicial opinion later changed by another opinion
(2) Statute later declared unconstitutional
(3) Defective search warrant due to insufficient probable cause

-The reliance must be in good faith.
-Therefore, if the statute, judicial opinion, or warrant cannot be relied upon in good faith, the exception does not apply.

Front 63

What are the exceptions to the Good Faith Reliance on a defective search warrant (exception to the exclusionary rule)?

Back 63

(1) The affidavit is so lacking in probable cause that no reasonable officer could rely upon it.

(2) The warrant is invalid on its face (to general)

(3) The PO lied to or intentionally misled the magistrate.

(4) The magistrate "wholly abandoned his judicial role."
-Also a prosecutor
-Paid per warrant
-Acted as a "member of law enforcement"

Front 64

What violations or situations are not susceptible to the Fruit of the Poisonous Tree Doctrine?

Back 64

(1) Free Will
-Wong Sun came back and confessed

(2) Inevitable Discovery

(3) Miranda Violations

(4) Knock and Announce Violations

Front 65

Is an arrest warrant required to make an arrest in a public place?

Back 65

NO, so long as there is probable cause.

Front 66

When is an arrest warrant required to make an arrest in a residence?

Back 66

(1) Non-emergency situation

AND

(2) Arrestee lives there

OR

(3) Arrestee is spending the night there

Front 67

What is the order of analysis for a search and seizure fact pattern?

Back 67

(1) State Action
(2) Standing
(3) Search Warrant
(4) Warrant Exception

Front 68

Is an off-duty police officer a state actor for purposes of the 4h amendment?

Back 68

YES.

There is actually no such thing as an off-duty police officer for purposes of the 4th amendment.

Front 69

Who has standing to raise a 4th amendment violation?

Back 69

Any person who has a reasonable expectation of privacy in the area search or the items seized

Front 70

What situations has the Court determined that no reasonable expectation of privacy exists?

Back 70

(1) Eavesdropping
(2) Scraping paint of the exterior of a vehicle
(3) Electronic monitoring vehicle in public
(4) Open fields (not curtilage)
(5) Fly-overs (naked eye & navigable air space)
(6) Garbage containers (left for pick up)
(7) Smells (drug dogs)

Front 71

When can standing be assumed?

Back 71

(1) Owns the premise searched
(2) Lives on the premises searched
(3) Overnight guest of the premises searched

Front 72

Under what situations does an accused often, but not always, have standing?

Back 72

(1) Legitimately present during the search
(2) Owned the property seized at the time it was seized

Front 73

When does a guess NOT have standing to object to the search of the residence?

Back 73

(1) Short Visit
(2) For Illegal Purposes

Front 74

What are the elements of a valid warrant?

Back 74

There is enough (1)Probable Cause to allow a (2) neutral and detached magistrate to make (3) "commonsense evaluation" (4) based on the "totality of the Circumstances" in order to issue a warrant with (5) sufficient particularity regarding the places to be searched and the types of items sought.

AND

(6) The warrant was properly executed (not stale).

_________________
(1) Probable Cause
(2) Neutral and Detached
(3) Commonsense Evaluation
(4) Totality of the Circumstances
(5) Sufficient Particularity
(6) Properly Executed

Front 75

What are the 8 exceptions to the warrant requirement?

Back 75

(1) Search Incident to a Lawful Arrest (SILA)
(2) Stop and Frisk
(3) Plain View
(4) Boarder Search
(5) Automobile Exception
(6) Consent
(7) Hot Pursuit
(8) Exigent Circumstances

Front 76

What 4 of the 8 warrant exceptions do NOT require probable cause?

Back 76

(1) Search Incident to a Lawful Arrest (SILA)
(2) Stop and Frisk
(3) Plain View
(4) Boarder Search

Front 77

What 4 of the 8 warrant exceptions REQUIRE probable cause?

Back 77

(5) Automobile Exception
(6) Consent
(7) Hot Pursuit
(8) Exigent Circumstances

Front 78

Elements of a SILA search?

Back 78

(1) Lawful Arrest

(2) Contemporaneous in time

(3) Geographic Scope
(a) Wingspan
-for evidence or weapons

(b) Immediately adjoining rooms
-for dangerous others

(c) NOT immediately adjoining rooms
-IF reasonable suspicion, for dangerous others

Front 79

What is the "Geographic Scope" w/in Automobile for purposes of a SILA search?

Back 79

Search may include the entire interior, including containers, even if the occupant is not in the vehicle.

However, locked containers and the trunk may NOT be searched

Rationale: searching for weapons.

Front 80

What are the elements for the Automobile Exception?

Back 80

(1) Probable cause
-May arise after a valid stop of the vehicle

(2) Exigency of vehicle's mobility
-Doesn't apply to immobile vehicles

(3) Geographic Scope
-Entire Vehicle, trunk and locked containers
-IF, container could contain items sought

Front 81

To seize an item in "plain view," what must be IMMEDIATELY apparent?

Back 81

The illegality of the item seen, heard, smelt, or felt.

-No additional observation allowed to determine its incriminating nature

Front 82

What must be shown for a Terry stop and frisk, and what is its extent?

Back 82

(1) Reasonable Suspicion
(2) Brief detention
(3) Pat down for weapons
-ONLY IF RS that suspect is armed

Front 83

What does "plain feel" refer to?

Back 83

If a PO, while conducting a terry stop and frisk (which is limited to weapons), feels an object that IMMEDIATELY gives him probable cause to believe to be contraband, he may conduct a search of the suspect.

NOTE:
The PO may not conduct a search with his hands before he has PC. A stop and frisk is limited to a pat down for weapons.

Front 84

Does a PO have to warn a suspect of their right to refuse a consent search?

Back 84

NO.

-There is NO 4th Amendment version of Miranda

Front 85

When is there a valid Consent search?

Back 85

(1) Voluntary
(2) Intelligent
(3) Consent
(4) From a person the PO reasonably believe to have authority

Front 86

When can a 3rd party give consent to search?

Back 86

When there are two or more persons who are
REASONABLY BELIEVED to have an
EQUAL RIGHT to use or occupy a piece of property:

(1) 1 can bind the others to a consent search

UNLESS

(2) 1 objects to the search

Front 87

When is the exigent circumstances warrant exception allowed?

Back 87

When evidence could significantly disappear in the time needed to obtain a warrant.
-Blood test for alcohol

NOTE:
-Any bodily intrusion must be reasonable
-If not, it will violate DP

Front 88

May a PO, while in "HOT PURSUIT," chase a suspect into the dwelling of another?

Back 88

YES

This may giver rise to a plain view exception.

Front 89

What is required for valid "plain view" warrant exception?

Back 89

(1) Observation must be made during a time and a place where the PO had a Constitutional right to be.

AND

(2) The incriminating nature of item seized must be IMMEDIATELY apparent.

Front 90

Although wiretapping requires a warrant, when can PO obtain information from a telephone conversation w/o a warrant?

Back 90

(1) One person involved in the conversation may consent to eavesdropping
(2) Pin-register (numbers called) are not protected

Front 91

When does jeopard "attach" for purposes of double jeopardy?

Back 91

(1) ∆ pleads guilty (no trial)
(2) Jury is sworn (jury trial)
(3) Witness is sworn (bench trial)

Front 92

Once jeopardy attaches, what is prohibited?

Back 92

(1) ∆ cannot be retried for the SAME OFFENSE
(2) By the SAME SOVEREIGN
(3) After a (a) dismissal, (b) acquittal, or (c) conviction

Front 93

When is retrial not barred by the Double Jeopardy rule?

Back 93

(1) Hung Jury

(2) Mistrail requested by ∆

(3) Mistrail for manifest necessity by prosecution
-Jury was bribed

(4) Successful appeal by ∆
-UNLESS based upon insufficiency of the evidence

(5) Failure of ∆ to keep an agreed plea

Front 94

When are crimes constitute the "same offense" for purposes of double jeopardy?

Back 94

When all the elements of one crime are present in the other.
-All elements of Joy Riding are in GTA

If, however, both crimes have at least one element not shared by the other, they are different crimes.

EXCEPTION:
Greater offense: Charged with battery then latter charged with murder b/c battered person dies.

Front 95

What are the 3 sovereigns for purposes of Double Jeopardy?

Back 95

(1) Federal
(2) State
(3) Native America Nation

-Municipalities and States are the SAME sovereign

Front 96

When must Miranda Rights be administered?

Back 96

(1) Custody
-Not free to leave (objective)

(2) Interrogation
-PO knew or should have known would obtain an incriminating statement

Front 97

What is NOT custody?

Back 97

(1) Probation interviews
(2) Tax audits interviews
(3) Routine traffic stops (if brief)

Front 98

What is required for a valid Miranda waiver?

Back 98

(1) Voluntary
(2) Intelligent

-Burden is on the suspect to exercise

-However, PO must obtain clear waiver

Front 99

What are the exceptions to Miranda?

Back 99

(1) Waiver

(2) Spontaneous statements

(3) Used for impeachment
-Pre or post arrest
-NOT post Miranda warning

(4) No fruit of the poisonous tree exception to non-testimonial evidence

(5) Substantial compliance
-Warning does not have to be verbatim

(6) Public safety exception
-"Where's your gun?"
-UNLESS coerced

Front 100

If a suspect has invoked his right to remain SILENT, may the PO later attempt to obtain a Miranda waiver with respect to:

(1) the same crime
(2) a different crime

Back 100

(1) the same crime
NO

(2) a different crime
YES

NOTE:
-Neither may be inquired if ∆ has invoked right to counsel
-6th amendment right to counsel is offense specific as well

Front 101

If a suspect has invoked his right to COUNSEL, may the PO later attempt to obtain a Miranda waiver with respect to:

(1) the same crime
(2) a different crime

Back 101

(1) the same crime
NO

(2) a different crime
NO

NOTE:
-A different crime may be inquired if ∆ has invoked right to silence
-6th amendment right to counsel is offense specific

Front 102

What 2 constitutional rights may a coerced confession violate?

Back 102

(1) Right against self-incrimination
-Nature of the statement

(2) Due Process
-Nature of the method used to obtain the statement

Front 103

Can an individual's right against self-incrimination be violated if that person cannot be convicted of the crime that the statements relate to?

Back 103

NO.

The statements cannot be incriminating if there is no threat of prosecution.

Front 104

When does the 6th Amendment Right to counsel apply?

Back 104

(1) ∆ is represented by counsel

AND

(2) Formal proceeding have commenced

-No questioning ∆ w/o counsel present, regardless if ∆ is in custody.

Front 105

Does questioning a ∆ about crimes not yet charged violate his 6th Amendment Right to Counsel?

Back 105

NO.

However, it will violate his 5th Amendment Right to Counsel if he is being interrogated while in custody and has invoke this right.

Front 106

Is a ∆ entitled to counsel under his 6th Amendment Right to Counsel during post indictment/arraignment In Person Line-Ups?

Back 106

YES.

If counsel is NOT present, prosecution has the burden to show that the in person line-up was NOT unnecessarily suggestive, as to create a substantial likelihood that it will produce a misidentification.

Front 107

If a line-up identification is inadmissible, is the in court identification also inadmissible?

Back 107

YES, UNLESS prosecution can show by clear and convincing evidence that there was an independent source for the witness's in court identification.

Front 108

What is necessary to be eligible for appointed counsel?

Back 108

(1) Indigent
(2) Possibility of jail time
(3) Trial or 1st appeal

Front 109

Is an indigent ∆, who may be sentenced to jail time, entitled to a court appointed psychiatrist expert?

Back 109

YES

If the insanity defense is likely to be used.

Front 110

Elements of ineffective assistance of counsel?

Back 110

(1) Unreasonably deficient
(2) But for the attorney's deficiencies, there would have been a different outcome.

Front 111

Does the exclusionary rule apply to grand jury proceedings?

Back 111

NO

Front 112

Does the ∆ or the ∆'s attorney have the right to be present at the grand jury hearing?

Back 112

NO

Neither

Front 113

When may a judge deny bail?

Back 113

(1) When no amount of money can insure the ∆'s return

OR

(2) There is no way to ensure the safety of the community

Front 114

What has been violated due to:

(1) Unreasonable Post arrest delays
(3) Unreasonable Pre arrest delays

Back 114

(1) Unreasonable Post arrest delays
-Right to a speedy trial

(3) Unreasonable Pre arrest delays
-Due process

Front 115

When is there a Constitutional right to trial by jury?

Back 115

When there is a possibility of more than 6 months in jail.
"non-petty offenses"

Front 116

Does the Constitution require unanimous conviction by a jury?

Back 116

NO

UNLESS only 6 juror panel

Front 117

Does the Constitution require that all juries be a "fair cross-section" of the community?

Back 117

NO

ONLY that the jury POOL be a a fair cross section of the community.

Front 118

What types of preemptory challenges are prohibited?

Back 118

Those based on

(1) Race
(2) Gender

This applies to both the prosecution and ∆.

Front 119

When can jurors be automatically excluded for cause due to their beliefs about the death penalty?

Back 119

ONLY when their view would substantially impair their ability to follow the court's instructions.

Front 120

What must the ∆ be advised of before a plea?

Back 120

(1) Consequences

AND

(2) Constitutional Rights Waived

Front 121

What jurisprudence govern plea bargains?

Back 121

Contract Law

Therefore, rescission and specific performance may be sought.

Front 122

When may ∆ withdraw his plea?

Back 122

ONLY when the plea was based upon ineffective assistance of counsel.

Front 123

When will the Supreme Court disturb a guilty plea?

Back 123

(1) Involuntary pleas
(2) Trial court lacked JDX
(3) Prosecution failed to keep its end of the bargain
(4) Ineffective assistance of counsel

Front 124

May a statute make the commission of a specific crime automatically publishable by death?

Back 124

NO

Front 125

May a statute limit the mitigating factors that a ∆'s is allowed to present to the jury at a death penalty case?

Back 125

NO

UNLESS the facts are irrelevant.

Front 126

It is unconstitutional to execute what classes of people?

Back 126

(1) Minors (under 18)
(2) Mentally retarded
(3) Legally insane at time of execution

Front 127

May the 5th amendment privilege against compelled testimony be invoked at a civil trial?

Back 127

YES

Criminal or Civil

Front 128

When may the 5th amendment privilege against compelled testimony be invoked?

Back 128

At anytime.

However, any statements elicited prior to its invocation may be used against that person.

Front 129

What does the 5th amendment privilege against compelled testimony protect?

Back 129

ONLY testimonial evidence.

Therefore, the privilege may not be used to prevent the administration of a lie detector test or a voice exemplar.

Front 130

What is the Griffin error?

Back 130

It prohibits any party from commenting negatively against an individual's choice to remain silent AFTER being given the Miranda warnings.

Front 131

What is the difference between:

(1) Derivative-use immunity
(2) Transactional immunity

Back 131

(1) Derivative-use immunity ("blanket" immunity)
-Completely protects the witness from future prosecution for crimes related to his or her testimony in that sovereign.

(2) Transactional immunity
-only prevents the prosecution from using the witness' own testimony, or any evidence derived from the testimony, against him. However, should the prosecutor acquire evidence substantiating the supposed crime (independent of the witness's testimony) the witness may then be prosecuted for same.

Front 132

Do Miranda warnings need to be given prior to questioning by a confidential informant in a jail cell?

Back 132

NO

The US Supreme Court has specifically held that Miranda warnings need not be given before questioning by a cellmate unknown to defendant to be covertly working for the police because the coercive nature of police interrogation that Miranda seeks to avoid is not present.

Front 133

Can two individuals be convicted of conspiracy to commit a strict liability crime if they did not know that their intended act was illegal?

Back 133

NO

Although the commission of a strict liability offense is punishable even if the actors did not know of the the act's illegality, a conspiracy requires such knowledge.

To have a conspiracy there must be: (1) agreement; (2) intent to enter into the agreement; and (3) intent to achieve the unlawful objective of the agreement. without knowledge of the act's illegality, element (3) cannot be satisfied.

Front 134

Does hiring someone to commit a crime establish the elements for a conspiracy?

Back 134

YES.

(1) Agreement
(2) Slight overt act (hiring)
(3) Intent to pursue the crime
(4) Meeting of the minds

Front 135

If ∆ burns down a building because he is forced to (duress), and during the fire someone dies, is he guilty of the murder?

Back 135

NO

Although duress is not a defense to homicide, the only theory of murder is felony murder with the underlying felony being arson. Because ∆ has a complete defense to the arson (duress), he cannot have committed felony murder.

Front 136

May a state seek reimbursement from an indigent who is appointed counsel?

Back 136

YES IF:

The ∆ subsequently becomes able to pay.

This does not take into account the outcome of the case.

Front 137

May an knowing and intelligent waiver of the right to counsel be ignored?

Back 137

NO

If counsel is appointed against a knowing and intelligent waiver, a subsequent conviction will be reversed.

Front 138

Can a homicide be committed by a company?

Back 138

NO

Not at common law

Front 139

Post-Miranda Warning Statement Analysis

Back 139

(1) Has ∆ invoked his right to counsel or silence

(2) If counsel, no further questions

(3) If silence, has he now made a knowing and voluntary waiver?

(4) If no, any statements will be excluded

(5) If yes, has the ∆ limited the manner in which he will speak (e.g., written or oral)

(6) If yes, only statements made in the manner waived are admissible
-E.g., "I will answer questions orally, but I won't make any written statements until my attorney is here"

Front 140

How is "knowingly" interpreted under the MPC in a statute?

Example:
If a statute makes it illegal to "knowingly cause over $200 in damages to another's property."

Back 140

Two parts: conduct and result

(1) Conduct:
∆ is aware that his conduct is of that nature or that certain circumstances exist

(2) Result:
∆ knows that his conduct will necessarily or very likely cause such a result

Front 141

May a state statute raise the individual protections above Miranda?

Back 141

YES

Most all Federal Constitutional protections are floors, not ceilings.

Front 142

Aider and Abettor

Back 142

One who aids, counsels, commands, or encourages another in the commission of a crime and who is present when the crime is committed.

Liable for the substantive crime.

EXCEPTION:
Members of the class sought to be protected by the statute that has been violated. E.g., selling alcohol to a minor.

Front 143

(1) Who has the burden of establishing that the ∆ is insane or not insane?

(2) And what is the burden of proof?

Back 143

(1) The ∆ has the burden.

(2) Clear and convincing evidence

Front 144

In determining "custody" for purposes of Miranda, does the questioning officer's subjective belief matter?

Back 144

NO

E.g., if PO told ∆ that he was free to leave but secretly had no intention of letting ∆ leave, the issue of custody rests on whether ∆ OBJECTIVELY believed he was not free to leave. PO's subjective intent cannot change this analysis because it was secret.

Front 145

Who bears the burden of establishing insanity?

Back 145

∆ carries the burden of persuasion

Federal:
-Clear and convincing

State: Jdx split
-Beyond a reasonable doubt
-Preponderance

Front 146

If statements are elicited prior to miranda, and also post miranda, are any of the statements admissible?

Back 146

NOT IF

The PO acted in bad faith in eliciting the first statements.

NOTE:
The first statement will almost certainly not be admitted.