Criminal Law & Procedure

Front 1

Good faith reliance defense of police officers

Back 1

We will not exclude evidence where police relied on good faith on:
1. judicial opinion later changed by another opinion,
2. a statute or ordinance later declared unconstitutional
3. a defective search warrant

Front 2

Police can break the fruit of the poisonous tree chain if:

Back 2

1. police can show independent source,
2. inevitable discovery, or
3. intervening acts of free will on the part of th DEF

Front 3

Model Form for search and seizure questions

Back 3

1. Does he have a 4th Amendment right? (Meaning, is there governmental conduct? AND Does he have reasonable expectation of privacy?)

2. Did the police have a search warrant? (i.e., test the validity of the search warrant, and if invalid, is there good faith defense?)

3. Is an exclusion exception applicable?

Front 4

There IS governmental conduct if action by...

Back 4

1. publicly paid police (on OR off duty)
2. any private individual acting at direction of public police
3. private police are NOT governmental conduct unless they are deputized with power to arrest you

Front 5

When do you have standing to challenge legality of search?

Back 5

1. you own the premises of the search
2. live on the premises of the search
3. are an overnight guest at premises of search

Front 6

SOMETIMES you have standing to challenge legality of the search if...

Back 6

1. you were legitimately present when search took place
2. you won the property seized

Front 7

Elements of valid search warrant

Back 7

1. probable cause
2. warrant must be precise on its face - must state with particularity the place to be searched and things to be seized
3. neutral and detached magistrate

Front 8

6 exceptions to warrant requirement

Back 8

1. search incident to lawful arrest
2. automobile exception
3. plain view
4. consent
5. stop & frisk
6. hot pursuit and evanescent evidence

Front 9

Search incident to lawful arrest elements

Back 9

1. arrest must be lawful
2. search must be contemporaneous in time and place w/arrest
3. geographic scope limitation (wingspan or if in car, everything but trunk)

Front 10

Automobile exception elements

Back 10

1. still need probable cause to search entire car (including trunk)
2. Ross - can open all containers w/in car that could conceivably contain the items they have p/c to seize.
3. probable cause can arise after car is stopped but before any search begins

Front 11

Consent to warrantless search and seizure

Back 11

1. must be voluntary
2. any premise owner can give valid consent

note: not consent if police come to door saying they have fraudulent warrant

Front 12

stop and frisk elements

Back 12

1. just need reasonable suspicion to stop
2. result of frisk - how much does it look like a weapon?

Front 13

time limit of hot pursuit

Back 13

15 mins

Front 14

Does wiretapping/eavesdropping require a warrant?

Back 14

Yes

Front 15

Miranda requirements

Back 15

1. must be in custody
2. there must be an interrogation

Front 16

What constitutes custody

Back 16

if at time of interrogation you were free to leave. probation interviews and routine traffic stops are NOT custodial

Front 17

What constitutes interrogation

Back 17

any conduct where police knew or should have known they would get damaging statement

Front 18

5th Amendment right to counsel

Back 18

once DEF asserts his right to terminate the interrogation and requests an attorney, re-initiation of the interrogation by police w/o attorney present violates the DEF's 5th Am right to counsel.

NOT offense specific

Front 19

6th Amendment right to counsel

Back 19

Attorney only needs to be present only when police interrogate the DEF about a certain offense.

IS offense specific.

Front 20

2 ways to attack pre-trial identification

Back 20

1. DEF was denied the right to counsel (n/a to merely showing photos)
2. DEF was denied due process

Front 21

When are you entitled to right to trial?

Back 21

Anytime DEF faces crime with max imprisonment of >6 month.

Up to and INCLUDING 6 months there is no constitutional right.

Front 22

6 jurors

Back 22

is minimum and you need unanimity

Front 23

4 bases of withdrawing guilty plea

Back 23

1. plea was involuntary
2. CT that took plea lacked jurisdiction to do so
3. ineffective assistance of counsel
4. failure of PL to keep an agreed upon bargain

Front 24

Death Penalty essay answer:

Back 24

Any death penalty statute that does not give DEF the chance to present mitigating facts or circumstances is unconstitutional.

There can be no automatic category for imposition of the death penalty.

The state may not by statute limit the mitigating factors - all relevant mitigating evidence must be admissible or the statute is unconstitutional

Only a jury, and not a judge, may determine the aggravating factors justifying the imposition of the death penalty.

Front 25

When does double jeopardy attach in jury trial?

Back 25

when jury is sworn in

Front 26

when does double jeopardy attach in judge trial?

Back 26

when first witness sworn ing

Front 27

When does double jeopardy attach in civil proceedings?

Back 27

never attaches

Front 28

Retrial is permitted when...

Back 28

1. jury is unable to agree on verdict
2. mistrials for manifest necessity (DEF gets sick or has surgery)
3. retrial after successful appeal
4. breach of agreed upon plea bargain by DEF

Front 29

Effect on 5th Amendment rights when criminal DEF takes the stand

Back 29

he waives all privileges as to all legitimate subjects of cross examination

Front 30

Jurisdiction of criminal acts

Back 30

state acquires jurisdiction if its the legal site of the RESULT of the crime or conduct

Front 31

jurisdiction of criminal omission

Back 31

state acquires jurisdiction if it is the legal site where the act SHOULD HAVE BEEN PERFORMED

Front 32

Specific intent crimes

Back 32

1. inchoate offenses (solicitation, conspiracy, attempt)
2. 1st degree murder
3. assault (as an attempted battery)
4. property crimes

Front 33

malice crimes

Back 33

1. murder
2. arson

Front 34

Elements of conspiracy

Back 34

1. an agreement
2. an intent to agree
3. an intent to pursue an unlawful objective

Front 35

effect of withdrawal from conspiracy

Back 35

will apply to subsequent crimes of co-conspirators, but never your own liability for conspiracy itself.

Front 36

M'Naghten Test

Back 36

At time of conduct, DEF lacked the ability to know the WRONGFULNESS of his action or understand the NATURE and QUALITY of his action

Front 37

Irresistable Impulse Test

Back 37

DEF is entitled to acquittal only if because of mental illness he lacked self-control or had no free choice in conforming his conduct to the law

Front 38

Model Penal Code insanity defense

Back 38

could not conform his conduct to the requirement of the law

Front 39

Majority rule of deadly force self defense

Back 39

victim can use deadly force anytime he reasonably believes deadly force is about to be used on him

Front 40

minority rule of deadly force self defense

Back 40

victim must first try to retreat if safe to do so.

no duty to retreat if:
1. at home
2. crime is rape or robbery
3. you are police

Front 41

6 defenses to felony murder

Back 41

1. if there is a defense to the underlying felony
2. felony must be something different than killing
3. deaths must be foreseeable
4. death caused while fleeing from felony are felony murder
5. once DEF has reached safety, deaths afterwards are not felony murder
6. DEF not liable for death of co-felon as a result of resistance by store owner or police officer

Front 42

Elements of larceny

Back 42

1. wrongful taking
2. asportation - slightest movement
3. without consent
4. with INTENT to permanently deprive owner if his property right

Front 43

Burglary elements

Back 43

1. need actual or constructive break in
2. must be at night
3. must have intent to commit felony inside AT THE TIME of breaking in

Front 44

Common law murder if...

Back 44

1. intent to kill
2. intent to inflict great bodily harm
3. highly reckless, depraved heart murder, or
4. felony murder

Front 45

Accessory after the fact requires...

Back 45

knowing that he committed the felony and you assisted in avoiding apprehension

Front 46

Receipt of stolen goods requires...

Back 46

knowledge at inception that goods were stolen

Front 47

voluntary manslaughter is...

Back 47

a provoked killing or killing from passion

Front 48

involuntary manslaughter is either

Back 48

killing from criminal negligence (like falling asleep at the wheel) or misdemeanor manslaughter (killing someone while committing a misdemeanor or unenumerated felony)

Front 49

General rule of self-defense for aggressors

Back 49

An aggressor has no right to use force in his own defense during the fight. However, he can re-gain his right to use self-defense either by (1) withdrawing and communicating withdrawal to the other party, or (2) when the other person suddenly escalates a minor fight into one involving deadly force w/o giving aggressor chance to withdraw (i.e., if aggressor has chance to withdraw, he must)