Criminal Law/procedure

Front 1

Criminal Law: Jurisdiction

Back 1

Situs: conduct or result happened there.
Crimes of omission: where the act should have been performed.

Front 2

Merger of crimes

Back 2

Generally no merger but solicitation/attempt merge into the substantive offense.
Conspiracy DOES NOT merge w/ substantive offense.

Front 3

GA: Merger of Conspiracy

Back 3

In GA, conspiracy DOES merge with the substantive offense.

Front 4

Essential elements of a crime (5)

Back 4

1) Act or Omission: any bodily movement. EXCEPTIONS: not product of own volition, reflexive/convulsive act or unconscious act (asleep).
Omission can arise from statute, K, relationship, voluntarily assuming the duty of care or your conduct created the peril.
2) Mental state
3) Concurrence in time of actus reus and mens rea
4) Causation
5) Harm

Front 5

CL Mental states (4)

Back 5

Specific intent
Malice (murder/arson)
General intent
Strict Liability

Front 6

Specific Intent Crimes (11)

Back 6

Solicitation
Conspiracy
Attempt
Murder (1st degree)
Assault
Larceny
Embezzlement
False pretenses
Robbery
Burglary
Forgery

Front 7

General Intent crimes (7)

Back 7

All crimes not specific intent nor strict liability.
1. rape
2. battery
3. arson
4. kidnapping
5. false imprisonment
6. involuntary manslaughter
7. depraved-heart murder

Front 8

Transferred intent

Back 8

Two crimes: one committed (person you shoot) and one attempted (person you aimed at). NEVER MERGE crimes w/different victims.

Front 9

Strict Liability

Back 9

If in the admin/reg/morality area & no words such as knowingly or intentionally = probably SL.
Sometimes give you a statute on MBE to apply as SL.
Can't use defenses that negate intent.

Front 10

Consent of victim as a defense

Back 10

RARELY the correct answer.

Front 11

Accomplice Liability

Back 11

Liable for the crime itself and all other foreseeable crimes. Never give accomplice liability unless ACTIVELY INVOLVED. Presence is NOT enough.

Front 12

The three inchoate offenses

Back 12

Solicitation
Conspiracy
Attempt

Front 13

Solicitation ends when you...

Back 13

ask the person to commit the crime. If they agree = conspiracy (solicitation merges with conspiracy).

Front 14

Conspiracy - the ppl in question must have an...

Back 14

UNLAWFUL OBJECTIVE.
*watch for this trick on the MBE.

Front 15

Elements of Conspiracy

Back 15

1. Agreement
2. Intent to agree
3. Intent to pursue an unlawful objective.

Front 16

Conspiracy does _____ merge...

Back 16

NOT merge with substantive crime (GA- DOES merge).

Front 17

Conspiracy and Co-con liability

Back 17

Each conspirator is liable for all crimes of co-cons if the crimes committed in furtherance of conspiracy and foreseeable.

Front 18

Agreement requirement of conspiracy

Back 18

Does NOT have to be express (no writing/words req) & can be co-cons even if don't know one another.

Front 19

Overt act req of conspiracy

Back 19

Majority & GA rule: in order to ground liability in conspiracy need agreement & OVERT ACT. Any act constitutes overt act (attempt requires more).
Minority & CL: agreement only.

Front 20

Impossibility ____ a defense to conspiracy.

Back 20

IS NOT

Front 21

Withdrawal from conspiracy

Back 21

Even if adequate can never w/draw D from conspiracy but can from other subsequent crimes by co-cons.

Front 22

Elements of Attempt

Back 22

Specific intent and a substantial step beyond mere prep in direction of the commission of the crime.

Front 23

The Four Insanity Defenses

Back 23

1. M'Naughten
2. Irresistible Impulse
3. Durham
4. MPC

Front 24

M'Naughten Insanity Defense

Back 24

Majority rule. D laboring under such a defect of reason from a disease of the mind as not to know the nature/quality of the act he was doing, or if he did know it, he did not know that what he was doing was wrong.
Disease of the mind includes all mental abnormalities but not a psychopathic personality.

Front 25

Durham Insanity Defense

Back 25

Conduct product of a mental illness.

Front 26

Irresistible Impulse Defense

Back 26

Lacked capacity for self-control and free choice.

Front 27

MPC "Substantial Capacity" Insanity defense

Back 27

As a result of mental disease, lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.

Front 28

GA follows the _____ Insanity defenses.

Back 28

M'Naughten and Irresistible Impulse.

Front 29

Involuntary intoxication (someone drugs you) and Insanity are defenses to...

Back 29

all crimes including SL.

Front 30

Voluntary intoxication is a defense to _____ crimes.

Back 30

Specific intent

Front 31

Infancy defense

Back 31

Under 7: no criminal liability.
Under 14: rebuttable presumption of no criminal liability.

Front 32

Self-Defense

Back 32

Nondeadly: anytime reasonably believe force is about to be used against you.
Deadly: Reasonably believe deadly force is about to be used against you.

Front 33

Self-defense, deadly force, retreat jurisdiction

Back 33

Minority rule: retreat if it is safe to do so. Exceptions: Victim of rape/robbery, in home, police officers.

Front 34

GA is/is not a retreat jurisdiction.

Back 34

IS NOT

Front 35

Self-defense and original aggressor

Back 35

Original aggressor can only claim SD if w/draw and fully communicates to victim that he w/draws. Not often the case. Or by escalation of force by the V of the initial aggression.

Front 36

Defense of a dwelling

Back 36

Deadly force may NEVER be used solely to defend property.

Front 37

Defense of duress

Back 37

D reasonably believes that the only way to avoid unlawful threats of great bodily harm or imminent death is to engage in conduct proscribed by law. Treat must come from human forces. Not defense to murder BUT may be a defense to FM if it negates the underlying felony.

Front 38

Mistake of fact/Specific intent crime

Back 38

Any mistake, reasonable or not, is a defense to a specific intent crime.

Front 39

Mistake of fact/Malice-general intent crimes

Back 39

Reasonable mistakes only.

Front 40

Mistake of fact/SL crimes

Back 40

NEVER a defense to strict liability.

Front 41

Entrapment defense

Back 41

Very narrow defense: exists where the criminal plan is the product of creative activity originating w/police and the D is in no way predisposed to commit the crime.

Front 42

The CL Crimes (5)

Back 42

1. Battery: aggravated assault
2. Assault (two theories)
Specific intent: as attempted battery (duck at punch)
General intent: as a threat
3. Homicide: Victim must be human.
4. Manslaughter
5. First degree murder

Front 43

CL Homicide

Back 43

Homicide = CL murder if show one of these"
1. intent to kill
2. intent to cause serious bodily harm
3. depraved heart (substantial likelihood of causing death)
4. Felony murder

Front 44

CL Manslaughter

Back 44

Voluntary - must have passion, some provoking event.
Involuntary - killings from criminal negligence, misdemeanor manslaughter (killing someone while committing misd. or unenumerated felony).

Front 45

CL First degree murder

Back 45

CL didn't have degrees - created by statute. So exam will tell you FDM or give you a statute to apply FDM.

Front 46

Defenses to felony murder

Back 46

1. Defense to underlying felony
2. felony must be something other than the murder
3. death must be foreseeable
4. death caused by fleeing felon: FM but once D reaches some pt of temp safety, subsequent death does not = FM.
5. D not liable for death of co-felon as result of resistance by victim or police.

Front 47

GA Felony Murder

Back 47

Narrow Concept: one participant must do the killing and some non-participant must die.

Front 48

Russian roulette

Back 48

= depraved heart murder

Front 49

Statutory Rape

Back 49

Strict liability - consent/mistake of fact are NOT defenses.

Front 50

Larceny

Back 50

Requires taking,
carrying away (asportation),
personal property of another,
with intent to deprive person permanently of that item.

Front 51

Larceny Intent

Back 51

Must exist at time of taking. Taking property you believe is yours is NOT larceny.

Front 52

Embezzlement

Back 52

Always has lawful possession followed by illegal conversion. No carrying away necessary and no self-benefit required.

Front 53

Larcenist and Embezzlers have

Back 53

possession only, not title.

Front 54

False pretenses

Back 54

D persuades owner to convey title by false pretense. Must be based on present/past fact. Future false pretense is not sufficient.

Front 55

Robbery

Back 55

Larceny & Assault
Must take from person or his presence; against his will; either by violence or putting in fear (threat must be imminent, not future harm).

Front 56

Extortion

Back 56

2 distinctions from robbery -
don't have to take from person/presence and threats are of future harm.

Front 57

Burglary

Back 57

Requires breaking -
actual (force) or constructive (threat/fraud); coming thru open window/door does not = breaking but opening interior door = breaking; entering dwelling house of another at night; w/intent to commit felony inside & must exist at time of breaking/entering.

Front 58

Arson

Back 58

Malicious burning of the dwelling house of another. only applies to burning, not water/smoke damage. Must be material wasting of bldg material - hallway carpet only is not arson. If you own the home does not = arson.

Front 59

Exclusionary rule

Back 59

Product of illegal search/coerced statement excluded from evidence.

Front 60

Limitations on exclusionary rule

Back 60

1. doesn't apply to grand jury hearings
2. doesn't apply in civil cases
3. Search in question must violate federal con/stat
4. Not available in parole revocation proceedings

Front 61

Good faith exclusion

Back 61

1. Police rely in good faith on judicial opinion later changed by another opinion.
2. Policy rely in good faith on statute/ordinance later declared unconstitutional.
3. Good faith reliance on defective search warrant.

Front 62

GA - Defective search warrant

Back 62

GA does not recognize reliance on defective search warrant based in good faith.

Front 63

Use of excluded evidence for impeachment purposes

Back 63

All illegally seized real or physical evidence may be used to impeach D's trial testimony. Does not apply to other defense witnesses.

Front 64

Exclusion is not available for...

Back 64

violation of knock/announce rule in execution of search warrants.

Front 65

Fruit of poisonoustree doctrine

Back 65

Excludes all evidence from unlawful search. Does not apply when original police illegality is a Miranda warning violation.

Front 66

Three ways to break chain in fruit of poisonous tree...

Back 66

1. Govt can show they had an independent source for the evidence.
2. Inevitable discovery
3. Intervening acts of free will by D.

Front 67

Arrest Warrants

Back 67

Generally not required before arresting someone in public but non-emergency arrest of individual in their own home requires warrant. Police need PC to arrest you or compel you to come to station for fingerprinting/interrogation.

Front 68

First Qs to ask w/search & seizure problems

Back 68

Does this person have a 4th amendment right?
Govt conduct is necessary and must have reasonable expectation of privacy.

Front 69

Govt conduct...

Back 69

Police (on/off duty)
Any private person acting @ direction of police.
Privately paid campus police usually allowed to arrest = govt conduct.
Privately paid security guards is NOT govt conduct.

Front 70

Reasonable expectation of privacy

Back 70

Own premises searched.
Live on premises searched.
Overnight guests.

Front 71

Sometimes = REOP

Back 71

Legitimately present for search; own property seized.

Front 72

No standing...

Back 72

passengers in car w/no property interest; drug dealers on premises solely for cutting drugs.

Front 73

No REOP when the item is something you hold out to the public everday...

Back 73

sound of voice
handwriting
paint on outside of car
acct records held by bank
monitoring location of car
anything seen across open fields/fly overs
odors emanating
garbage on curb

Front 74

Valid search warrant requires...

Back 74

1. Showing of PC (fact specific; can rely on hearsay/informers; don't have to rely solely on own observation)
2. Warrant must be precise on its face (state w/particularity the place to be searched/things seized & issued from neutral magistrate).

Front 75

If SW good or defective....

Back 75

good = valid search
defective = GA (no good) MBE (save w/good faith exception?)

Front 76

If no SW at all is is there an exception? (6)

Back 76

1. search incident to lawful arrest
2. Auto exception
3. Plain view
4. Consent
5. Stop/frisk
6. Hot pursuit and evanescent evidence (might go away if take time to get SW)

Front 77

Search incident to legal arrest

Back 77

1. arrest must be lawful
2. search must be contemporaneous w/arrest
3. person and areas he can reach only (wingspan rule)
*when in car wingspan = everything but trunk

Front 78

Auto Exception

Back 78

1. Need PC
2. Can open anything w/in car that could reasonably contain the item they have PC for.
3. PC can arise after stop so long as arises before anyone searched.

Front 79

Plain view

Back 79

Police must be legitimately present when make plain view sighting.

Front 80

Consent

Back 80

Voluntary & Intelligent.
If police come to door w/SW and you allow in & SW is defective, there is no consent. But police don't have to warn of right not to consent.
Where two or more ppl have equal right to use property, anyone of them can consent to warrantless search.

Front 81

Stop and Frisk

Back 81

Reasonable suspicion (less than PC).
Find weapon - always admissible so long as reaosnable suspicion. Evidence of crime but not weapon - how much like a weapon or contraband could it have seemed from outside determines admissibility.

Front 82

Hot pursuit and effenesance evidence

Back 82

HP of fleeing felon, must be w/in 15 minutes of felon. Not every pursuit = hot. Once police enter home on HP, no other limit and can enter anyone's home. Very broad power if HP.

Front 83

Wiretapping/Eaves-dropping

Back 83

All require SW.
Everyone assumes the risk that person talking to is wearing wire.

Front 84

Miranda

Back 84

Must find two things:
1) Custody (if at time of interrogation not free to leave); can be anywhere; routine traffic stops are not custodial.
2) Interrogation: warning not necessary before spontaneous statement (any conduct where police do or should know they may get a damaging statement).

Front 85

Waiver of Miranda

Back 85

Voluntary and intelligent.
No waiver from silence/shoulder shrug.

Front 86

RTC and interrogation

Back 86

Once D asserts right to terminate interrogation and requests attorney, re-initiation of the interrogation w/out atty = violation 5th RTC. Arises when someone hears Miranda and requests atty.

Front 87

5th RTC v. 6th RTC

Back 87

6th RTC is offense specific.

Front 88

Post-charge line-ups and show-ups give...

Back 88

rise to RTC.

Front 89

Right to jury trial

Back 89

attaches anytime D tried for offense where authorized max is more than 6mths. Up to & including 6mths - no RTJT.

Front 90

Jurors

Back 90

Minimum 6 - must be unanimous - but no right to unanimous 12 person jury verdict.

Front 91

Jury pool must represent

Back 91

fair cross section of community but your own jury does not.

Front 92

Standards for IAC

Back 92

1. deficient performance by counsel
2. but for such deficiency, result would be different.

So unless there is a reason to find D not guilty, deny D relief.

Front 93

Guilty pleas...Judge must disclose...

Back 93

1. nature of charge
2. max/mandatory sentences
3. right to plead not-guilty and right to jury trial

Front 94

Remedy for defective Guilty Plea

Back 94

Withdraw plea and plea again

Front 95

4 good basis for w/drawing GP after sentence...

Back 95

1. plea involuntary (mistake in plea "ceremony")
2. lack of jurisdiction
3. IAC
4. breach of plea by prosecutor

Front 96

Death penalty - recite this on exam

Back 96

Any death penalty statute that does not give the D a chance to present mitigating facts is unconstitutional. There can be no automatic category for imposition of death. The state may not by statute limit mitigating factors; all relevant evidence must be admitted or statute is uncon. Only a jury may determine aggravating factors justifying imposition of death penalty.

Front 97

Double Jeopardy

Back 97

-attaches when jury sworn
-or at judge trial when 1st W is sworn
-doesn't attach when proceeding is civil - that's why we can have civil/criminal trials for same crime

Front 98

DJ: 4 exceptions permitting retrial

Back 98

1. hung jury
2. mistrial for manifest necessity (D gets sick)
3. retrial after successful appeal
4. breach of plea by D

Front 99

DJ: What constitutes same offense?

Back 99

Two crimes do not equal the same offense if each crime requires proof of an additional element that the other does not.
*Can't try for lesser included offense & greater offense. But can try for battery and if later V dies, can try for murder also.

Front 100

DJ doesn't bar charges by...

Back 100

separate sovereigns - ie federal /state charges for same drug offense.

Front 101

5th privilege against compelled testimony

Back 101

Anyone can assert it
Any type of case/hearing
In civil proceeding you MUST assert privilege if the question asked would incriminate - otherwise you waive for future criminal prosecution.

Front 102

5th privilege against compelled testimony does not protect from

Back 102

use of urine/hair samples.

Front 103

Unconstitutional for prosecution to make negative comments re:

Back 103

D's failure to testify or remaining silent after Miranda.