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235 Cards in this Set

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How do you start a NV essay?
NV Criminal Code governs.
Important points to remember for the essay
1. Elements of a crime: A crime requires both a culpable act or failure to act (actus reus) and a culpable mental state (mens rea) of intent, knowledge, recklessness, or criminal negligence.

2. Jx: *NV has jurisdiction if the crime or any part of the crime is committed in *NV.

3.The criminal degree of proof : “beyond a reasonable doubt.”

4.Punishment:
•Every crime that is punished by death or prison is a felony
•Every crime punishable by $1,000 or less or 6 months jail or less is a misdemeanor.Every other crime is a gross misdemeanor
•All crimes require an Act and Intent which must occur at the same time
What is Crim Law divided into?
1. Jx
2. Elements of a crime
3. Defenses
What will we talk about in jx?
1. Acquisition
2. Merger
A state acquires jurisdiction to adjudicate a crime if that state is the ___________
legal situs
What is a legal situs?
1.The criminal conduct happened there;
2.The result happened there; or
3.For crimes involving omission, jurisdiction lies where the act should have been performed
What is the general rule about merging crimes?
There are no mergers of crimes
What are the exceptions to the general rule that there is no merger to a crime?
Solicitation and attempt do merge into the substantive offense
Thus, if you have completed that crime, you cannot be charged with attempting to commit that crime
What is a complete defense to attempt?
1.A complete defense to attempt is that you actually carried out the crime.
2. Attempt merges into the substantive offense
Almost all jx forbid the conviction (or at least punishment) of a criminal defendant for both a crime and its ______________, where a ____________ criminal act is at issue
lesser-included offense, single
What does the jury do when there a crime and its lesser included offense?
Jury can chose one crime or the other to convict on
What do you need to know about conspiracy and mergers?
Conspiracy does not merge with the substance offense
Thus, you can be convicted of conspiring to do something and doing it.
____________merge any crimes that have different victims
NEVER
What are the elements of a crime?
1. Physical Act/ omission of an act
2. Mental State
What is a physical act?
Any voluntary bodily movement
What acts are not considered "voluntary"?
1.An act performed which is not a product of your own volition
2. While in a reflexive or convulsive state, or
3. An act performed while you are unconscious or asleep (does not include falling asleep while driving)
What is an omission?
Failure to act when a legal duty imposes action
Which legal duties impose action, failure of which is considered omission?
1. Duty by statute
2. Duty by contract
3. Duty brought on by the relationship between the parties
4. Duty brought on by voluntarily assuming a duty of care towards someone and then failing to adequately perform it
5. Duty brought on by the fact that your conduct created the peril
Generally there is no legal duty to RESCUE, but sometimes there is a legal duty to act in the stated five circmstances

1. By Statute: e.g. reqr to file your tax return
2. By K : A nurse on duty
3. Relationship : spouse/ parent
4. Assuming duty of care and then not: "I'll save him, and then you don't"
5. You created the peril: pushed her in to the pool
What different types of crimes are divided by mental state?
1. Specific intent crimes
2. Malice crimes
3. General intent crimes
4. Strict liability crimes
Specific intent crimes, malice crimes, general intent crimes and SL crimes are the four common law mental states

1. SI List: SCA / BF & PAL in ER (solitation, conspiracy, attempt/ burglary, forgery, (false) pretenses, assault, larceny, embezzlement*, robbery ** (*generally doesn't need SI in NV, **never req. SI in NV)

2. Malice: murder, arson

3. GI: Is the catch all category. All crimes not so far mentioned are GI crimes (rape, battery) unless they qualify for SL.

4. SL are the NO INTENT crimes, so any defense that negates intention cannot be a defense to SL. How to tell that we have a SL crime? Is the crime in the admin., regulatory, or morality area? Yes. Does it's statute have adverbs like knowingly, willfully, intentionally,? No. => SL no intent crime.
What is the one special difference between SI crimes & all other crimes?
Qualify for additional defenses not available for other kinds of crimes
1. Voluntary intoxication
2. Mistake of fact
What are the specific intent crimes?
SCA / BF & PAL in ER

(solitation, conspiracy, attempt/ burglary, forgery, (false) pretenses, assault, larceny, embezzlement*, robbery ** (*generally doesn't need SI in NV, **never req. SI in NV)
What is solicitation?
Asking someone to commit a crime.
1. Solicitation, Conspiracy and Attempt are inchoate offenses => incomplete offenses.

2. The crime of solicitation ends when you ask. Thus, enunciation or withdrawal is not a defense.

3. Note, under the CL it is not nec that the person solicited has to agree to commit the crime. If he does agree, then we only have a conspiracy sinces solicitation merges.

When is the crime of solicitation completed?
Crime is complete when you ask someone to commit a crime
What happens to the crime of solicitation if the other person agrees?
It becomes a conspiracy and the two crimes merge so only conspiracy is left.
Is it solicitation if an unintended person decides to act upon the message?
Since the solicitor did not intend for the other, unintended person to receive the message and carry out the crime, there can be no liability for solicitation as to that unintended person
What crime can you be charged for if there is an unintended recipient for a solicitation?
1. Some courts hold that where the defendant’s message never reaches the target recipient, there has only been an attempted solicitation.
2. Other courts have held, however, that the solicitation is complete when the defendant dispatches the message, even if it never reaches its intended recipient
What are the elements of conspiracy?
1. An agreement
2. with the intent to agree
3. intent to pursue an "unlawful objective"
1. conspiracy does not merge into the substantive offense. So you can be convicted of both conspiracy to rob and robbery.

2. Each conspirator is liable for ALL the crimes of conspirators if those crimes were committed in FURTHERANCE of the conspiracy AND were FORESEEABLE.

3. The agreement for conspiracy does not need to be expressed. So no written or spoken words needed.

4. Majority rule requires an OVERT ACT, however slight, in furtherance of the conspiracy. Minority rule and the CL do not require an overt act. NV follows the minority rule.

5. Impossibility is not a defense to conspiracy
6. D can withdraw from liability of other conspirators subsequent crimes, but not his own conspiracy
7. At CL, conspiracy req two guilty parties. SO Acquittal of others precludes conviction of the remaining D.
Does the agreement have to be express or in writing? re:conspiracy
No
How can more than one person be in conspiracy without knowing who is involved?
Various people can be in a conspiracy even if they don’t know each other or interact with each other (but they have to at least be aware of the other’s participation)
What type of unlawful objective should the conspirator have? re:conspiracy elements
The conspirators must have the same criminal intent as is necessary for conviction of the target offense
Is it unlawful to sneak into your own home and take something? re:conspiracy
No
If one party did not intend to steal because he believed he was trying to help another party retrieve his rightfully owned property,is he guilty of conspiracy to steal?
No
What is a feigned conspirator?
one who merely pretends to go along with the illegal objective, but actually alerts the police to thwart the conspiracy
A feigned conspirator lacks the ________required for a conspirator
specific intent
What is a conspirator's liability?
(2) Each conspirator is liable for all of the crimes of co-conspirators if those crimes were committed in furtherance of the conspiracy and were foreseeable
_____________ is no defense to conspiracy
impossibility
What is the effect of withdrawal from a conspiracy on a D's conspiracy charge?
None. Withdrawal from the conspiracy, even if adequate, cannot release a defendant from the conspiracy charge
What is the effect of D's withdrawal on the conspiracy charge of others?
It can release D from liability for the other co-conspirators’ subsequent crimes
What are the elements of attempt?
1. Specific intent to commit the target offense; and
2. A substantial step (beyond mere preparation) in the direction of the commission of the crime (in the “zone of perpetration”) ( NOT IN NV: an overt act that goes beyond mere prep. and tends to accomplish the crime)
Note, mere preparation from a crime is not enough for liability. You need the substantial step or overt act ( as in NV)
What is legal impossibility?
(a) “Legal impossibility” is where the defendant does everything he intended to do, but his actions do not constitute a criminal offense
Is legal impossibility a defense to attempt crimes?
Yes
On the bar exam what does murder mean?
It is common law murder = second degree murder .
=> it is not the SI 1st deg murder => u dont have the additional defenses
What is larceny?
intent to permanently deprive the other of his interest in property-crime against possession
What are the elements of larceny?
CL larceny requires
1. Wrongful taking
2. A carrying away motion (asportation), however slight.
3. Intent to permanently deprive the owner AT THE TIME of taking.
Taking the property in the belief that it is yours is not CL larceny.
Any consent obtained by fear or fraud is not _______consent re:larceny
valid
Can objects that the owner cannot possess legally be subject to larceny?
Yes.
Because larceny is a cime against possession and so it is irrelevant if the property owner could not lawfully possess the item wrongfully taken (e.g. drugs)
Is it larceny if you take property in the belief that it is yours or that you have some right to it?
No
Mistake of fact is a defense for larceny
When is it larceny when you do not have the intent to steal?
In cases where the trespassory taking is due to fraud, a minority of jurisdictions do not require the defendant to have had the intent to steal at the time of the fraudulent inducement
An owner of lost property is still considered to be in __________of the property until it is _______ by a finder.
constructive possession, taken
If the lost property had clues to ownership then the finder has committed larceny
What are the NV rules for larceny?
1. CL larceny
2. Use of device to transfer another's money
3. Intentional enticing livestock/pets
4. Intent to defraud or prevent identification of livestock.animals
5. In NV it is not defense that the money or property was partly the property of the accused.
6. Taking personal goods or property witha value of $250+ is GRAND LARCENY.
For all cases, the acts must be done with the intent to permanently deprive.

For value of the property the NV courts will look to the fair market value , unless the property is partially destroyed, in which case, the cost of repairing and restoring the property will be its value.
What are the rules for embezzlement in NV?
1. Lawful possession followed by an illegal conversion
2.
a. Use or appropriation in any manner inconsistent with the trust arrangement of money, property etc.,
b. of another,
c. by an agent of the property or anyone to whom the property was entrusted.
NV does not always require specific intent to embezzle.
What are the elements of embezzlement?
1. A lawful possession
2. Followed by an illegal conversion
1. You don't have to carry away to be an embezzler - just need lawful possession

2. Also, embezzler doesn't have to get the benefits

3. With conversion embezzlement there must be SI to steal or defraud

4. With misappropration embezzlement, SI is not required.
Does a subsequent confession by the embezzler relieve him of his crime?
No. He is still guilty.
What are the elements of fraud pretenses?
1. Persuading the owner of property
2. to convey title to something
3. by a misrepresentation/false pretense

NV: does not limit FP to obtaining title to property. You can also obtain money or other valuable things, such as the labor of a person who is not an EE.
1. It is the conveyance of title that is the center if false pretenses
2. The false representation could be as to a present or past fact
3. A false promise to do something in the future CANNOT be grounds for liability of false pretenses

4. In NV a person commits identity theft by knowingly obtaining any personal info of another with the "intent to commit the unlawful act" and uses that info to cause harm or an unlawful purpose - class B felony.
The victim must actually _______ on the false representation in transferring title i.e. the false misrepresentation must be a ______in causing the victim to act.
rely, substantial factor
Does the reliance have to be reasonable? re:false pretenses
No
Can you be guilty of false pretenses if you have persuaded the owner of property to convey title to something by a misrepresentation/false pretense as to a false promise to do something in the future?
No. It has to be as to a present or past FACT (not promises)
Where the victim voluntarily permits the defendant to take physical charge of his property , what is D guilty of if he was in POSSESSION of the property?
Only embezzlement or larceny
Where the victim voluntarily permits the defendant to take physical charge of his property , what is D guilty of if he was in custody of the property?
larceny
How can a defendent defend himself of a larceny charge if he was given custody of the property by the victim?
He can defend himself against a larceny charge by claiming that he had possession.
If a third party delivers the property to the employee for the use of the employer, the employee gains possession of the property, what can he be charged with?
He can only be charged with larceny or embezzlement
What are the two exceptions of getting charged with larceny or larceny? re: 3rd party gives prop to EE
1. The transaction is to be completed in the third party’s presence; or
2. The employee places the property in a receptacle designed by the employer
What is robbery?
Larcent + assault
Does Nevada require specific intent for robbery?
No
What are the elements of robbery?
1. Taking of personal property of another
2. from the other person's presence
3. By force or threat
4. With the intent to permanently deprive him of it
1. The presence reqr is very broadly drawn
2. The threat must be a threat of imminent harm
What are the NV distinctions for robbery?
1. NV does NOT require an immediate threat.
2. NV does NOT include the intent to permanently deprive the victim of the property.
What are the elements of burglary
1. An actual or constructive breaking and entering
2. The dwelling house of another
3. At night
5. With the intent (at the time of the breaking and entering) to commit a felony inside
1. It is not actual breaking ( involving some force however slight) to come uninvited through an open door.
2. Constructive breakings are breakings by fraud or threat.
3. Entering occurs when any part of the body crosses into the house
4. Dwelling is a house, not a barn or a commercial structure.
What is entering? re: burglary
1. Whenever any part of the defendant’s body crosses into the home; or
2. Whenever the defendant uses an instrument to enter the building and to carry out the felonious purpose therein
If the instrument is only used to gain entry, and none of the body intrudes, there has been _____
No entry

(e.g. defendant uses an axe to break open a door and then runs away without ever entering)
What are the NV distinctions for burglary?
1. Elements of a burglary:
a. The entry
b. of a "protected structure"
c. By day or by night
d. with the intent to commit a felony, or grand or petit larceny, or assault, or battery

2. Under the circumstances not amounting to burglary, if a person goes into a building of another with the intent to vex or annoy the owner or occupant, they have committed the unlawful act of criminal trespass.
Note that the CL requirements of breaking, dwelling, nighttime, and intent to commit a felony have been eliminated in NV
Look at the intended ____itself and whether it constitutes a felony because it is _____whether the defendant thinks his _____ are actually felonious or not.
act, irrelevant, purposes
what intent is required for forgery?
Intent to defraud
What intent is required for assault?
1. Intent to commit a battery or
2. The intentional creation - other than mere words - of a reasonable apprehension of imminent bodily harm
Aggravated assault is an assault plus one of the following:
1. Use of a deadly weapon or dangerous weapon
2. With the intent to rape, maime or murder.
What rule does NV follow re: Assault?
NV follows the minority rule which states: Assault is defined ONLY as "intentionally placing another persin in reasonable apprehension of immediate bodily harm."
What is included in Homocide?
1. First Degree Murder
2. Second degree murder
3. Manslaughter
1. First degree murder includes: Premeditated killing, Felony Murder, Homocide of a police officer

2. Mansalughter includes: Voluntary manslaughter and Involuntary manslaughter
What is premediated murder?
1. Victim must be human
2. D must have acted with the intent or knowledge that his conduct would cause death
What is felony murder?
1. Any killing- even an accidental one- commited during the course of the felony
What are the defenses to felony murder?
1. If D has a defense to the underlying felony
1. The felony committed must be a felony other than the killing
2. The deaths must be foreseeable
3. Deaths caused by fleeing from a felony are felony murders but once D reaches a point of temporary safety, deaths caused there after are not felony murders
4. Under both the MBE and NV, D is NOT liable for the death of a co-felon as a result of resistance by the V or the police
What are the NV notes re:felony murder?
1. Felony must be independent of killing
2. Even if the trial judge dismisses the underlying felony charge because of insufficient evidence, the prosecution may still be able to argue felony murder at trial.
What are the elements for the first degree murder of a police officer?
1. D must KNOW that the victim is a law enforcement officer &
2. The victim must be acting in the line of duty
If you see the word "murder" by itself, the examiners always mean __________ - which is what we today call second degree murder
common law murder
Murder is a ___________ crime, not a SI crime
malice ( general intent)
What are the important points re: NV law for second degree murder?
1. Generally for the sake of analyzing an question an unlawful killing is considered a second degree murder
2. First degree murder in NV parallels 2 deg murder and include 1) deliberate and premeditated killing 2) first degree felony murder 3) murder commited to avoid unlawful arrest by a peace officer
What happens if you do get to use the two defenses of SI crimes in a 1st degree murder case?

They reduce 1st. deg mruder to the malice crime of 2nd. degree murder ( also called highly reckless, or depraved heart murder)
What is voluntary manslaughter?
1. Killing in the heat of passion resulting from an adequate provocation by the victim
2. The provocation must be one that would arouse sudden and intense passion in the mind of an ordinary person such to cause him to lose self control
3. There must not have been sufficient time between the provocation and the killing to cool off
4. And the D in fact did not cool off between the provocation and the killing
What are the elements of voluntary manslaughter in NV?
1. The unlawful intentional killing of a human being
2. Without malice or deliberation
3. Upon a sudden heat of passion
4. caused by a pirovocation
5. apparently sufficient to make the passion irresistible
For there to be an absence of malice or deliberation, and to satisfy the reqr of a sudden heat of passion, there must be NO INTERVAL between the assault or provocation given and the killing sufficient for the voice of reason and humanity to be heard
What are the elements of Involuntary manslaughter?
1. A killing of criminal negligence
2. Misdemeanor manslaughter
1. criminal negligence is something like falling asleep while driving and hitting a car and killing that driver
2. Misdemeanor manslaughter is killing someone while committing a misdemeanor or killing someone while committing an "unenumerated" crime
What are the elements of involuntary manslaughter in NV?
1. The unintentional and unlawful killing of a human being
2. without malice and
3. without any mixture of deliberation
4. During a lawful act ( w/o due caution & which might produce an unlawful consequence)
5. During an unlawful act ( which does not naturally tend to result in another's death and which is not committed in the prosecution of a felonious intent)
Does transferred intent apply to arsons?
Yes
What are the elements of arson?
1. Malicious burning
2. Of the dwelling of another
1. Only applies to burning - not to smoke damage
2. Has to be a dwelling , it cannot be a barn or a business
3. It has to be another's house, not your own.
What is malicious? re:elements of arson
1, The intent to burn the dwelling; or
2. Wanton and willful misconduct (conduct that creates a plain and substantial likelihood that a protected structure will be burned)
What are the elements of arson in NV?
1. The willful and malicious
2. Burning, causing to be burned, or setting fire to, or the aiding, counseling or procuring the burning of , either,
3. A dwelling house, building, structure, or of personal property at least worth $25 which is or was capable of being occupied (including mobile homes)
4. Any timber, plant life, vegetation or other flammable material owned by another
1. The structure can be occupied, vacant or abadoned and the property owner could be the accused himself
2. In addition to explicitly providing accomplice liability the arson statute explicitly provides liability for attempt , mere preparation, and acts in furtherance.
What is general intent?
1. An awareness of all the factors constituting the crime (e.g. an awareness that he is acting in the prohibited way and that any required attendant circumstances exist or there is a high likelihood that they will occur.
How may a jury infer general intent?
A jury may infer intent merely from the doing of the act
What crimes fall under the general intent category?
BARE FM

1. Battery
2. Assault
3. Rape
4. Extortion
5. False imprisonment or kidnapping
6. manslaughter
What is battery in general intent crimes?
A completed assault
1. It is the offensive touching to the P's person
2. It is a geneal intent crime and never a SL crime
What are the elements of battery in NV?
1. Unlawful and willful application of force to a P's person
Where the injury was accidental - there is no battery charge in NV
What is assault?
1. An attempt to commit a battery or
2. The intentional creation - other than mere words - of a reasonable apprehension of imminent bodily harm
What are the elements of assault in NV?
NV follows the minority rule where assault is defines as ONLY "intentionally placing another person in reasonable apprehension of immediate bodily harm."
What do you need to know about rape for the MBE?
the slightest penetration completes the crime of rape
Statutory rape is a SL crime - thus consent of the victim and mistake of fact is not a defense
What are the NV rules re: sexual assault (rape)
1. Subjecting another to sexual penetration , or forcing another to make a sexual penetration on themselves, another or a beast
2. Against the V's will or in conditions where the perpretor knows or should know that the V is physically or mentally incapable of resisting or understanding the nature of conduct
1. the victim must be alive
2. there is no reqr for the penetration to be just by a sexual organ
3. In contrast to the CL, it is no defense to rape that the perpetrator was married to the victim at that time

4. For stautory rape - the age of consent in NV is 16
What is extortion? re: GI crimes
1. Extortion is blackmail - knowingly seeking to obtain property or services by means of a future threat
The difference between extortion and robbery is that you do not have to take anything from the person for it to be an extortion and the threats are of future, not imminent, harm
What are the elements of extortion in NV?
1. A threat , direct or indirect ( to accuse any person of a crime, to injure a person or property, to publish or connive at publishing any libel, to expose or impute to any person any deformity or disgrace, or to expose anny secret)

2. Made with the intent to obtain money or other property, or cause another to make, subscribe, execute , alter or destroy anything of value, or to influence the actions of a public officer or to do, abet or procure any illegal or wrongful act

3. Whether or not that purpose is accomplished
Thus, the thing sought is not limited to money or property and the crime is complete when the threat is made with the requisite intent
What are NV offenses regarding judicial procedure?
1. Bribery: In NV it has been extended only to non-public officials who are involved in the judicial process (like lawyers). Generally, the offering and taking of bribes is criminal.

2. Reporting statutes: for the elderly a wide no. of professionals should report abuse of someone 60+ within 24 hrs. For the children , if abuse is not reported within 24 hrs it is a misdemeanor crime.
Other offenses : DUI - blood alcohol concentration equal to or greater than 0.08
What is FI?
False imprisonment is the intentional unlawful confinement of a person.
What is kidnapping?
Kidnapping is false imprisonment coupled with movement of the victim (even if only movement of half a block)
What are the SL crimes?
1. Statutory Rape
2. Selling liqor to minors
3. Bigamy
With Statutory Rape, _____-is no defense and ____________ is no defense
consent of victim, mistake of fact
Besides Bigamy, _______ is also a crime in NV
incest
What are the 2 SL crimes in NV?
1. Providing alcohol to minors (under 21)
2. Allowing gambling by minors (under 21)
What is the defense to the 2 SL crimes in NV?
Defendant demanded and was shown a government issued ID identifying the person as being of age immediately before the criminal act
What is the doctrine of transferred intent?
a) A defendant can be found liable under the doctrine of transferred intent where he intends the harm that is actually caused, but to a different victim or object
In transferred intent, defenses and mitigating circumstances may also usually be ______
transferred
Who is an accomplice?
1. A party who aides, abets, or encourages the commission of a crime
2. while at or near the scene of the crime is a principal in the second degree (modernly, called an accomplice)
What is the liability of accomplices?
Accomplices are liable for the crime itself and all other foreseeable crimes
Never give someone accomplice liability unless they are ________ involved in that crime . ________approval of the crime is not sufficient to impose accomplice liability
actively, silent
What are the defenses in criminal law? IIIDDDMEN
1. Insanity
2. Intoxication
3. Infancy
4. Self Defense
5. Defense of a dwelling
6. Duress
7. Mistake of fact
8. Consent
9. Entrapment
10. Necessity
Insanity is a defense to _______ crimes.
all (including SL)
What are the four tests for insanity? DIMM
1. Durham test
2. Irresistable Impulse test
3. M'naghten test
4. Model Penal Code Test.
What is the Durham test?
Defendant’s conduct was a product of a mental illness (“but for the mental illness, defendant would not have done the act”)
What is the standard of evidence for the Durham test and who has the burden?
Defendant has the burden of proving the defense of insanity by clear and convincing evidence.
What is the irresistable impulse test?
D lacked the capacity for self control and free choice
What is M'naghten test?
At the time of misconduct, defendant lacked the ability to know the wrongfulness of his actions or understand the nature and quality of his actions (“does not know right from wrong”)
What is the MPC test?
Defendant lacked the the ability t conform his conduct to the requirements of the law

(combination of M’Naghten and Irresistible Impulse)
Voluntary intoxication is a defense only for _________
SI crimes and no other crimes
VI is self induced intoxication and includes addicts and alcoholics
Involuntary intoxication is a defense to ______ crimes
all, including SL crimes
Involuntary intoxication is unknowingly being intoxicated unless you become intoxicated under duress.

It is a form of insanity
On the MBE, under age ____, there is no criminal liability, and under age 14, there is a _______ of no criminal liability
7, rebuttable presumption
In NV, under age ____ there is no liability, and between ages 8-14 it is _______ NO liability unless __________proof that at time of the act child knew it was wrong
8, presumed, clear
When can a victim use non-deadly force in self defense?
Anytime that the victim reasonably believes that force is about to be used on them
What is the majority rule for use of deadly force for self defense? (NV)
A victim may use deadly force in self defense anytime that the victim reasonably and in good faith believes that deadly force is about to be used on them
What is the minority rule for use of deadly force for self defense?
A victim, prior to using deadly force in self-defense, must retreat if it is safe to do so. Exceptions:
(1)You don’t have to retreat out of your home, car, or other dwellings.
(2)You don’t have to retreat if you are the victim of rape or robbery
(3)Police officers have no duty to retreat
What are the important NV notes re: self defense?
1. There is a presumption that a person using deadly force against an intruder in his residence had a reasonable fear of death or great bodily harm

2. NV allows evidence of domestiv violence in determining if D reasonably believed of bodily harm

3. Before using deadly force, there is no duty to retreat if you reasonably believe that you are about to be killed or seriously injured ( unless you are the original assailant)

4. NV does not recognize the imperfect self defense doctrine i.e. an honest but unreasonable belief in the need for self defense will not reduce murder to manslaughter.
How does the original aggressor get back the defense of self defense?
he must
1. withdraw
2. ad communicate his withdrawal
Almost never happens
Deadly force may ______ be used solely to defend your property
never
Duress is a defense to all crimes except ______
homocide
Duress is a defense to a criminal act if:
1. the person acts under the threat of imminent infliction of death or great bodily harm
2. that belief is reasonable
What is the mistake of fact defense for SI crimes?
Any mistake of fact (reasonable or unreasonable) is a defense
What is the mistake of fact defense for malice & GI crimes?
Reasonable and good faith mistake of fact is a defense
Mistake of fact defense is ______ available for SL crimes
never
Consent is almost _______ a defense to crime.
never
Fraud in the _______ does not vitiate consent.
inducement
Entrapment Defense is almost _____ available.
never
How is a defendant exonerated under the defense of entrapment?
1. The commission of the crime was induced by a government agent; and
2. The defendant was not predisposed to commit the crime (pre-disposition on the part of the defendant to commit the crime negates the defense)
What does pre-disposed mean? re: entrapment
That the defendant was ready and willing to commit the crime whenever an opportunity was afforded
What are the three necessity scenarios relating to human life?
1. Saving human life is always a greater good than saving property
2. The law does not regard one life as being more valuable than another, and the defense of necessity does not permit a defendant to kill the first person, even if it is to save himself
3. Where the choice is between killing one person who is certain to die regardless, and allowing both that person and oneself to die through inaction, it is permissible to save oneself.
What does the 4A include?
1. search & seizure
2. exclusionary rule
What does the 5A include?
1. Miranda
2. Privilege against self incrimination (PASI)
3. double jeopardy
What does the 6A include?
1. Counsel
2. Speedy public trial by jury
3. confront witnesses
What does the 8A include?
1. cruel and unsual punishment
What is the exclusionary rule?
It is a remedy of constitutional procedure where someone who has been a victim of an illegal search/ or coerced confession has a right to exclude the evidence from an subsequent criminal prosecution
Exclusion is one among other remedies
What are the limitations of exclusion?
1. Exclusion does not apply to grand jury and covil proceedings
2. Exclusion only applies to violations of federal law
3. Exclusion is not available in parole revocation proceedings
4. Exclusion is not available for the impeachment of defense witnesses
5. Exlusion is not available for violations of the knock and annouce rule if the officer reasonably believed that knocking would be futile, dangerous, or would inhibit the investigation
1. Thus a grand jury witness may be compelled to testify based on illegally seized evidence.
2. A defendant CAN be impeached himself using illegal evidence
What is the fruit of the poisonous tree doctrine?
It allows exclusion of ALL evidence obtained or derived from the illegally seized evidence
How can the govn break the chain between an unlawful police action and its evidence?
3I's of the chain
There are three ways:
1. Independent source
2. Independent discovery
3. Intervening acts of free will
In which situations is a warrant not generally required for arrest?
1. Arrest in a public space
When is a warrant required for arrest?
1. No emergency arrest of an individual in his own home
How can the police compel you to come to the station for finger printing or interrogation?
You go if they probable cause to arrest you.
What are the steps in a search and seizure model answer?
1. Government conduct?
2. REOP?
3. Valid search warrant?
4. If not, does police have a good faith defense to save the defective warrant?
5. If no defenses either, then do the 6 warrant exceptions apply?
How do you determine if there is governmental conduct?
If we have the:
1. Publicly paid police on OR off duty
2. Any private individual acting at the direction of the public police
Privately paid police does NOT consitute govn. conduct UNLESS they are deputized
When do you have a REOP/ what are the categories of standing?
1. Automatic category of standing: a) if u own the premises searched, b) if u live on the premises c) overnight guests

2. Sometimes standing situations: a) if you own the property seized and have a REOP in the item item or area searched b) passenger in a car: but note if u don't own the car or the item seized out of the car, u have NO standing even if u r legitimately present

c. No standing categories: no REOP on anything you hold out to th epublic
Things that you hold out to the public include:
1. sound of you voice
2. style of your handwriting
3. paint on the outside of your car
4. account records at your bank
5. Monitorinbg the location of ur car in a public driveway or ur driveway
6. Anything seen across the open fields
7. Anything seen flying in the public air space
8. The odors emanating from your luggae or car
9. Your garbage set out on the curb for collection
What are the requirements of a valid search warrant? 2Ps of search warrants
1. There are two requirements for a facially valid search warrant:

a) Probable Cause
b) Particularity
What is PC re: warrants?
PC is a "fair probability" that contraband or evidence of a crime will be found in the area searched.
1. Police can rely on hearsay and tips from (anonymous) informers for the issuance of warrants
What kind of particularity do you need for a valid warrant?
Warrant must state with particularity:
1. The place to be searched
2. The items to be seized
What is the general rule to determine if the police have a good faith defense for an invalid warrant?
An officer's good faith reliance on a search warrant overcomes defects with the PC and particularity reqr.
However there are 4 exceptions to a good faith reliance on a defective warrant
What are the four exceptions to a good faith reliance on a defective warrant?
1. Affidavit is so lacking in PC that no reasonable police officer would rely on it.
2. It is so lacking in particularity that no reasonable police officer would rely on it
3. Officer or prosecutor lied to or misled the magistrate
4. The magistrate is biased and therefore has wholly abadoned his neutrality
What are the 6 exceptions to the warrant requirement?
1. Search incident to arrest
2. Automobile exception
3. Plain view
4. Consent
5. Stop & Frisk
6. Hot pursuit & evanescent evidence
What is a lawful arrest and lawful search?
1. Arrest and search must be contemporaneou s in time and place
2. Geographic scope limitation: The person and the areas in to which he can reach either to procure a weapon or to destroy evidence (the wingspan)
The wingspan in a car will include the entire interior compartment and everything in it, but NOT the trunk of the car
What is the automobile exception?
1. If and only if , BEFORE searching anything or anybody, the police has PC then they can search the ENTIRE car, including the trunk.

2. Moreover, if there is PC the police can opem any package with out a warrant which could REASONABLY contain the item they had PC to look for
In other words, for the police to search anything or anybody and fall under the auto exception they must have
1. PC , and this std is the same that they would've needed to get a warrant

2. PC nec to justify the warrantless search of an auto under the auto exception CAN arise after the car is stopped, but MUST be before anything is searched.
What is the rule for the plain view exception?
1. Police must be legitimately present where he or she does the viewing.
What is the rule for the concept exception?
1. Consent must be voluntary and intelligent
Note: Having a search warrant negates consents. But the police has no duty to inform you of your right to refuse consent when they present you with a search warrant.
What is the rule for third party consent?
Where two or more ppl have equal right to use a piece of property, then the one who does not consent controls
What is a terry stop?
It is a brief detention for the purpose of investigating suspicious conduct
The legal std for a terry stop is RS ( which is less than PC)
What is a terry frisk?
It is the pat down of the outer clothing and body to chek 4 weapons
Terry frisk is justified by concern 4 the officer safety
What is evanescent evidence?
It is evidence that might disappear if the police took the time to get a warrant
drugs under the fingernails
What is the rule of thumb for the hot pursuit of a fleeing felon
If the police are not within 15 minutes behind the fleeing felon, it is not a valid hot pursuit exception
If the police are truly in hot pursuit they can enter anyone's home w/o a warrant , and any evidence they see in plain view will be admissable.
All wiretapping and eavesdropping requires a __________
warrant

exception: unreliable exception
What is the unreliable ear exception to wiretapping and eavedropping?
Everybodu in this society assumes the risk that the person to whom he is speaking is either consent to the govn. monitoring or will be wired
When do you require miranda warnings?
When there is custodial investogation
What is the legal std for custody?
You are in custody if at the time of the inetrrogation you are not free to leave
The not free to leave std covers being in the police car or being in jail, and also your home or a hospital bed.
What is not considered custodial?
1. Probation interviews
2. Traffic stops
What is interrogation under the 5A MIranda doctrine?
It is any conduct where the police knew or should have known that they might illicit an incriminating reponse from the suspect.
Miranda warnings are not required prior to the admissibility of what's known as a _____________---
spontaneous statement
When do you have a valid Miranda waiver?
If it is knowing, voluntary, and intelligent
Note: there is no waiver with silence or shoulder shrugging
What is the rule for the 5A right to counsel?
Once a D asserts his right to terminate the interrogation and asks for an attorney, reinitiation of the interrogation by the police, w/o the atty VIOLATES his 5A right to counsel
This right has been created by the USSC and arises in only one situation: custodial interrogation. So after you are issued your Miranda warnings
The 5A right to cousel is ______ offense specific
NOT
Police cannot reinitiate investigation ON ANY TOPIC w/o the atty because the USSC has interpreted the request for an atty as the need for help during the entire process of the interrogation.
What invokes your 6A right to counsel?
At all other times (other than hearing the Miranda Warnings)
The 6A right to counsel _____ offense specific
IS
Thus, the atty would only have to be present at the interrogation if the D is being asked questions re: that atty's case
What is the purpose of pretrial identification?
To give is a quick check that the V or W is remembering the guy from the crime and not from the trial proceedings
How can you attack a pretrial identification technique?
1. Denial of the right to counsel
2. Denial of due process
When is it a denial of the right to counsel re: identification techniques?
1. Denying counsel at post charge line ups
2. Show-ups (one on one)
Note: There is no right to counsel when V or W is shown photographs
How is D denied due process during a ID line up?
If the techniques are unnecessarily suggestive & substantially likely to produce misidentification
How can the state defeat the attacks on the pretrial ID technique?
If the state can show an adequate independant source for that in court ID
Thus, denial of right to counsel or due process does not automatically get the remedy of excluding the evidence in court
What are the pre-trial procedures?
1. Bail
2. Grand juries
Bail issues are immediately ___________and preventative detention is __________
appealable, consitutional
What do you need to know grand juries?
1. Exclusion does not apply
2. Proceedings are secret
3. D has no right to appear no right to send witnesses
What are your rights during a trial?
1. Right to an unbiased judge
2. Right to a jury trial
When does a judge have bias?
When he has a financial interest in the outcome of the case or some actula malice against the D
When does the consitutional right to jury attach?
Anytime the D is tried for an offense for which the sentence EXCEEDS 6 MO. (not including 6 mo)
If the sum of the sentences for criminal contempt exceeds 6 mo., u have a consitutional right to a jury trial
What is the minimum no. of jurors allowed?
6
1. But then, the verdict must be unanimous
2. There is no federally protected constitutional right to a unanimois 12 juror verdict ( 10-2 and 9-3 are ok)
What is the cross sectional requirement of jury pools?
You have a right to have the jury pool that reflects a fair cross section of the community.
But you have no right to have the empaneled jury reflect a fair cross section
What is the minimum no. of jurors allowed?
6
1. But then, the verdict must be unanimous
2. There is no federally protected constitutional right to a unanimois 12 juror verdict ( 10-2 and 9-3 are ok)
What are preemptory challenges?
Challenge to exclude a prospective juror for any reason whatsoever, except on account of their race or gender.
What is the cross sectional requirement of jury pools?
You have a right to have the jury pool that reflects a fair cross section of the community.
But you have no right to have the empaneled jury reflect a fair cross section
What is the rule for ineffective assistance of counsel?
There must be deficient performance by the attorney and but for that deficiency the result of the proceeding would have been different.
What are preemptory challenges?
Challenge to exclude a prospective juror for any reason whatsoever, except on account of their race or gender.
What do you need to know about guilty please and plea bargaining?
1. Supreme CT. will not disturb guilty plea after sentencing
2. USSC has adopted the K theory for plea bargaining
3. If D pleads guilty then judge must address D on the record of the nature of the crime, max penalty and mandatory min penalty, right to plead not guilty and demand a trial.
What is the rule for ineffective assistance of counsel?
There must be deficient performance by the attorney and but for that deficiency the result of the proceeding would have been different.
What do you need to know about guilty please and plea bargaining?
1. Supreme CT. will not disturb guilty plea after sentencing
2. USSC has adopted the K theory for plea bargaining
3. If D pleads guilty then judge must address D on the record of the nature of the crime, max penalty and mandatory min penalty, right to plead not guilty and demand a trial.
4. The 4 bases for withdrawing the guilty plea after the sentencing
What are the 4 good bases for withdrawing a guilty plea after sentencing?
1. The plea was involuntary (some mistake in the plea taking ceremony)
2. Lack of jx
3. Ineffective assistance of counsel
4. Failure of the prosecuto to keep an agreed upon plea bargain
1. Any death penalty statute that does not give D a chance to present _________is unconstituional
mitigating facts or circumstances
There can be no __________ for imposition of the death penalty
automatic category
The state may not by statute limit the ___________; all relevant __________ must be admissable otherwise the statute is unconstitutional
mitigating factors ; mitigating evidence
Only a ______ and not a __________ may determine the aggravating factors justifying a death penalty
jury and not the judge
When does double jeopardy attach?
It attached in a jury trial when the jury is sworn in, and in a bench trial when the 1st witness takes the stand.
Jeopardy does not generally attach when the proceedings are civil
What are the exceptions permitting re-trial?
1. Jury is unable to reach a verdict
2. Mistrials for manifest necessity (appendicitis)
3. Retrial after a successful appeal (is not doubnle jeopardy)
4. Breach of an agreed upon plea bargain by the D
When D breaches a plea bargain agreement, his plea and sentence can be withdrawn and the original changes reinstated.
Two crimes do not constitute the same offense if each crime requires proof of _______ that the other does not.
additional element
Being put in jeopardy for a greater offense _______ for any lesser included offenses
BARS RETRIAL
So if you are tried for robbery, you cannot be tried for the lesser included offense of larceny, similarly if you are tried for larceny, u cannot be tried for the greater offense of robbery later on.

Exception: you CAN be put in jeopardy for battery and prosecuted again for murder if the V later dies ( from the battery induced coma etc)
Double jeopardy bars retrial for the same offense by the ___________
same sovereign ( so different sovereign is ok)
When can you assert the 5A privilege agaisnt self incrimination be asserted?
If you are asked a question under oath in any kind of case, where the response might tend to incriminate you
1. You must assert the privilege the 1st time the question is asked or you WAIVE ur 5A privilege.
2. The privilege must be claimed in civil proceedings to prevent the privilege being waived for a later criminal prosecution
What is the scope of the 5A Privilege?
1. It does NOT protect citizens from having the govn. use their bodies in ways to incriminate them ( hair samples blood etc).

2. It protects citizens from compelled testimony
Note: it is unconsitutional for the prosecutor to make a negative comment on the defendant's failure to testify or on a D remaining silent after being given his Miranda Warnings.
How can the 5A privilege be eliminated?
1. Under the grant of immunity
2. No possibility of incrimination (SOL runs out)
3. Waiver : the criminal D who takes the witness stand waives the 5A privilege as to all legitimate subjects of cross examination
1. Government CAn prosecute u based on evidence obtained PRIOR to the immunity grant
What is the NV distinction regarding arrests and detentions?
60 min. Once an individual has been detained , officer has 60 min to release or arrest the individual
What is the NV distinction regarding auto stops?
Fact that motorist is driving slowly, does not by itself craete a reasonable suspivion justifying an investigative traffic stop
What is the NV distinction regarding search incident to arrest?
Consitution requires BOTH PC AND EXIGENT CIRCUMSTANCES to justifu warrantless search incident to arrest . Same rule for the automobile exception
In NV, mere _____________ will NOT justify warrantless entry to a private home
fear or apprehension alone
In NV, there is no state constitutional or statutory right to _________ in a post conviction proceeding.
assitance of counsel.
What does the 5A PASI rule apply to?
Only applies to “testimony”
the 5A PASI rule does not apply to ____________ or _________
physical evidence or identification
Witness can be charged with ________ if lied during _______ testimony
perjury, immunized
Does the jury verdict need to be unanimous?
1.Verdict need not be unanimous (9 of 12 is OK) but jury of 6 must be unanimous

2. In NV all criminal juries must be unanimous.

3. In NV civil cases require ¾ of jurors for verdict
Denial of right to jury is never _________
harmless error
What if D and P both want a private trial?
Th public has a right to a public trial unless prejudice to Defendant or necessary for order
When does a right to a speedy trial begin?
Until Defendant is charged or arrested
Is there a 6A violation if D was denied the right to counsel, got convicted but was not imprisoned?
No
D has a right to counsel for ___ appeal
one
Defendant has __________ right to waive counsel, however in NV, D has no right to counsel on __________
absolute, appeal
What is the only defect that can quash a grand jury indictment?
Exclusion of minorities is the only defect sufficient to quash grand jury indictment
What are the standards of evidence in criminal procedure?
Plaintiff must prove all elements beyond reasonable doubt BUT state can require Defendant to prove defenses by preponderance of evidence