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91 Cards in this Set
- Front
- Back
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What is the difference between voluntary and involuntary murder under the common law?
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Voluntary - intentional killing, committed after adequate provocation, in the the heat of the moment
Involuntary - criminal negligence, is commission of a non-felony |
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Under the common law felony murder rule the victim must not be a _______.
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Co-felon
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Under the common law felony murder rule, the killing must take place during the furtherance of a felony, True/False.
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True
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What are the elements of 1st degree murder in NY?
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1. intent to kill
2. D was at least 18 3. At least one aggravating factor |
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What are the aggravating factors for 1st degree murder in NY?
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1. Killing of a peace officer
2. Witness intimidation 3. Murder for hire 4. Killed more than one person 5. Intentionally killed during a serious felony |
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What are the three forms of 2nd degree murder in NY?
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1. Intent to kill
2. Extreme Recklessness (utter disregard for human life) 3. Felony murder |
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What are the 6 underlying felonies for felony murder in NY (BRAKES)
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1. Burglary
2. Robbery 3. Assault 4. Kidnapping 5. Escape 6. Sexual Assault Note -- don't need conviction |
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What are the elements of 1st degree manslaughter in NY?
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1. Intent to cause serious physical injury
2. Extreme emotional disturbance (D must prove by preponderance) |
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What are the elements of second degree manslaughter in NY?
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D knew of and consciously disregarded a substantial and unjustifiable risk.
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What are the elements of criminally negligent homicide in NY?
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D knew or should have known about a substantial and unjustifiable risk of death.
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What are the elements and mental state of battery under the MR?
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1. Unlawful
2. Application of force 3. Resulting in bodily injury or offensive touching Mental state - general intent |
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What are the elements and mental state for assault under the MR?
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Attempted battery OR
1. Intentional creation 2. Of a reasonable apprehension 3. Of imminent bodily harm Mental State - specific intent |
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What are the elements of assault under NY law?
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1. Intentionally
2. Causing injury 3. To another person |
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What are the aggravating factors for Assault under NY law?
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1. 1st degree - dangerous weapon
2. 2nd degree - intentionally causing serious physical injury 3. 3rd degree - intentionally causing physical injury |
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Name the two confinement offenses under the MR.
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1. False imprisonment
2. Kidnapping |
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What are the elements and mental state of false imprisonment under the MR?
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1. Unlawful
2. Confinement of a person 3. Without their consent Mental State - general intent |
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What are the mental state and elements of kidnapping under the MR?
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1. Unlawful
2. Confinement of a person 3. Without their consent 4. and moving the victim or keeping them in a secret place. Mental state - general intent |
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What are the elements of second degree unlawful imprisonment under NY law?
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1. Unlawfully restraining someone
2. Without their consent 3. With knowledge that the restriction is unlawful |
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What are the elements of first degree unlawful imprisonment under NY law?
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1. Unlawfully restraining someone
2. Without their consent 3. With knowledge that the restriction is unlawful 4. Plus risk of serious physical injury |
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What are the elements of 2nd degree kidnapping in NY?
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Abducting someone
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What are the elements of 1st degree kidnapping in NY?
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1. Abducting someone
2. for ransom OR 3. Restraint of V with intent to rape or injure OR 4. Cause death of victim |
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What are the elements of forcible rape?
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1. Sex
2. Without the victim's consent 3. Accomplished by force, threat, or when V was unconscious |
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What is the age of consent for the purposes of statutory rape in NY?
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17
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What are the elements and mental state of larceny under the MR?
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Trespassory taking and carrying away of the property of another with intent to permanently deprive them of the property.
Mental State - specific intent |
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Taking under _______ cannot be a larceny.
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1. Claim of right
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Define and name the mental state for embezzlement.
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D converts personal property that he already has lawful possession of with intent to defraud.
Mental State - specific intent |
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Define and name the mental state for false pretenses.
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Obtaining title to property of another by false statement with intent to defraud.
Mental State - specific intent |
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Define and name the mental state for larceny by trick.
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Obtaining possession of property of another by false statement with the intent to defraud.
Mental State - specific intent |
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What are the elements and mental state for robbery under the MR?
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1. a larceny
2. From the person or a person's presence 3. By force(sufficient to overcome resistance) or threat of force Mental State - specific intent to steal |
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Larceny, larceny by trick, false pretenses, and embezzlement are all called _______ in NY
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Larceny
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Define 3rd degree robbery in NY
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Forcible stealing
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Define 2nd degree robbery in NY
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Forcible stealing plus 1 factor
1. D is aiding and abetting another actually present 2. Victim is injured 3. Carjacking |
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Define 1st degree robbery in NY.
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Forcible robbery plus one factor
1. Victim is seriously injured 2. D uses or displays a firearm (unless unloaded or broken, then 2nd) |
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Define uttering.
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1. Offering as genuine
2. a forged instrument Mental state - specific intent to defraud |
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Define and name the mental state for malicious mischief
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1. Detroying or damaging someone else's property
2. With the intent to defraud Mental State - specific intent |
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What is malicious mischief called in NY?
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Criminal Mischief
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Under the possession offenses mere dominion and control are not enough, the D must have actual possession, True/False
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False. Dominion and Control is enough.
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What are the elements if burglary under the MR?
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Breaking and entering into the building of another with the intent to commit a felony.
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What are the elements of 3rd degree burglary under NY law?
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1. Entering or remaining
2. Unlawfully 3. In a building 4. With the intent to commit a crime inside |
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What are the elements of 2nd degree burglary under NY law?
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3rd degree with one more factor
1. Building was a dwelling 2. Non-participant was injured 3. Defendant carried a weapon |
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What are the elements of 1st degree burglary under NY law?
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D knows he is burglarizing a dwelling plus one other factor
1. non-participant is injured 2. Defendant carried a weapon |
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Define arson under the MR.
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Malicious (could be reckless) burning (not mere smoke damage) of a building.
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What are the elements of 3rd degree arson under NY law?
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Intentional burning of a building
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What are the elements of 4th degree arson under NY law?
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Reckless burning of a building
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What are the elements of 2nd degree arson under NY law?
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D knew or should have known there was a person inside.
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What are the elements of 1st degree arson under NY law?
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There was a person inside the building and D used an explosive device.
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What is an accomplice guilty of?
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1. Guilty of the crimes he aided and abetted as if he committed them himself
2. Guilty or all foreseeable crimes committed during the initial crime |
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An accomplice is guilty of the underlying offense even if the principal is _________.
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Acquitted
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What three actions by a potential accomplice makes that person not in fact an accomplice?
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1. Mere knowledge
2. Mere presence 3. Protected Class |
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How can a potential accomplice withdraw under the MR?
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Aider - neutralize assistance or prevent crime
Encourager -- must discourage |
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What must a potential accomplice do to withdraw under NY law?
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Must make substantial effort to prevent the crime.
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What are the elements of accessory after the fact?
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1. Assist a principal that has committed a felony
2. With knowledge that the crime has been committed 3. with the intent to help the principal avoid arrest or conviction |
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Under NY law what is being an accessory after the fact called?
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Harboring a fugitive
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Define and give the mental state for solicitation.
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Asking someone to commit the crime with the intent that the crime be committed.
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Define conspiracy.
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Agreement between to or more people to commit a crime plus an act in furtherance of that objective
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Can a person be convicted of conspiracy if all other defendants are acquitted?
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NY - Yes
MR - NO |
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What is rule for vicarious liability for crimes committed in furtherance of the conspiracy?
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CL - D is guilty if crimes foreseeable
NY - no liability |
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What is the test to determine whether a crime has gone far enough to be considered attempt?
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Substantial act test (more strict) - MR
Dangerous Proximity test - CL/NY |
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With respect to attempt, what are the rules of impossibility.
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Factual impossibility - no defense
Legal Impossibility (act not illegal) is a defense |
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Can a party withdraw from attempt?
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CL - NO
NY - yes, if D completely and voluntarily renounces (not because of fear of capture) |
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What is the rule of merger?
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Lesser included offenses will merge into greater offenses
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Which of the inchoate offenses merge?
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Attempt- merges
Conspiracy - doesn't merge Solicitation - merges (MR), does not (NY) |
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What is the M'naugten insanity test?
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1. D did not know his act was wrong or
2. Did not understand the nature of his act |
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What is the Irresistible Impulse Insanity test?
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1. D was unable to control his actions or
2. was unable to conform his conduct to law |
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What is the NY insanity test?
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D lacked substantial capacity to
1. Understand the nature of his act 2, Appreciate the wrongness of his conduct Affirmative defense that D must prove by preponderance |
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What violations of constitutional do not trigger the exclusionary rule?
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1. Cross examinations
2. Certain proceedings (civil trial, GJ, parole revocation hearing) 3. Knock and announce violations 4. Officer made reasonable mistake |
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When can evidence be admitted despite the fruit of the poisonous tree doctrine?
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1. Inevitable discovery rule
2. Independent source doctrine 3. Attenuation |
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What are the elements of a valid warrant for wiretapping (Polly Prefers Cranberry Tarts)
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1. Probable Cause
2. Persons to be heard must be named 3. Conversations (description) 4. Time - strictly limited |
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Under what circumstances does a confession violate the 14th amendment?
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If it was obtained in by police coercion
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When does the 6th amendment right to counsel attach?
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When the defendant is formally charged with a crime.
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What is NY's indelible right to counsel and when does it attach
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If D is represented by counsel and in custody on that charge, cannot be questioned on that charge or any other.
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What triggers Miranda?
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Custodial Interrogation
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When is a D in custody for the purposes of Miranda?
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1. police domination and coercion
2. freedom of action limited in a significant way |
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What is interrogation for the purposes of Miranda?
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1. Conduct (not necessarily questions) that the police knew or should have known would illicit an incriminating response.
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Name two exception to the need to give Miranda warnings
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1. Spontaneous Statements
2. Public safety concerns |
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A Miranda waiver must be _______ and ________.
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1. Knowing and
2. Intelligent |
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Do owners of a premises have standing to challenge a 4th amendment violation?
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Yes, always
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Do residents of a premises have standing to challenge a 4th amendment violation?
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Yes, always
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Do overnight guests of a premises have standing to challenge a 4th amendment violation?
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Yes, always
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Do users of a premises for business purposes only have standing to challenge a 4th amendment violation?
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No
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Do owners of seized property have standing to challenge a 4th amendment violation?
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Yes, but only if they have a REP in the pace from which the property was seized.
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Do the passengers in a car have standing to challenge a 4th amendment violation?
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Only if they have a REP in the item seized or searched (NY - can challenge if weapons attributed to them)
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What are the elements of a valid warrant?
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1. Probable cause
2. Particularity |
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Under the Aguillar and Spinelli Test used for NY warrants based on informant tips, the warrant must show _________.
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1. Veracity or reliability of the source
2. Basis of informants knowledge |
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What test does NY use to determine whether an informant tip provides enough probable cause for a warrant?
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The Aguilar and Spinelli test.
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What test do the majority of states use use to determine whether an informant tip provides enough probable cause for a warrant?
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The officer must corroborate so that the judge can make a common-sense determination about the reliability of the tip.
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Under the particularity requirement, the warrant must show ________ and _______.
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1. Place to be searched
2. Items to be seized |
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Is there a right to counsel in pre-trial identification procedures?
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5th - no
6th - yes, if after charging |
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Placing the burden of persuasion to show innocent intent violates _________.
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The due process clause
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It is NOT a defense to false pretenses that the victim ________ relied on the defendant's misrepresentation.
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Unreasonably relied.
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Can intentional infliction of emotional distress be inflicted recklessly?
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Yes.
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