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103 Cards in this Set

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  • Back
Criminal Law: Jurisdiction
Situs: conduct or result happened there.
Crimes of omission: where the act should have been performed.
Merger of crimes
Generally no merger but solicitation/attempt merge into the substantive offense.
Conspiracy DOES NOT merge w/ substantive offense.
GA: Merger of Conspiracy
In GA, conspiracy DOES merge with the substantive offense.
Essential elements of a crime (5)
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
CL Mental states (4)
Specific intent
Malice (murder/arson)
General intent
Strict Liability
Specific Intent Crimes (11)
Murder (1st degree)
False pretenses
General Intent crimes (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
Transferred intent
Two crimes: one committed (person you shoot) and one attempted (person you aimed at). NEVER MERGE crimes w/different victims.
Strict Liability
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.
Consent of victim as a defense
RARELY the correct answer.
Accomplice Liability
Liable for the crime itself and all other foreseeable crimes. Never give accomplice liability unless ACTIVELY INVOLVED. Presence is NOT enough.
The three inchoate offenses
Solicitation ends when you...
ask the person to commit the crime. If they agree = conspiracy (solicitation merges with conspiracy).
Conspiracy - the ppl in question must have an...
*watch for this trick on the MBE.
Elements of Conspiracy
1. Agreement
2. Intent to agree
3. Intent to pursue an unlawful objective.
Conspiracy does _____ merge...
NOT merge with substantive crime (GA- DOES merge).
Conspiracy and Co-con liability
Each conspirator is liable for all crimes of co-cons if the crimes committed in furtherance of conspiracy and foreseeable.
Agreement requirement of conspiracy
Does NOT have to be express (no writing/words req) & can be co-cons even if don't know one another.
Overt act req of conspiracy
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.
Impossibility ____ a defense to conspiracy.
Withdrawal from conspiracy
Even if adequate can never w/draw D from conspiracy but can from other subsequent crimes by co-cons.
Elements of Attempt
Specific intent and a substantial step beyond mere prep in direction of the commission of the crime.
The Four Insanity Defenses
1. M'Naughten
2. Irresistible Impulse
3. Durham
4. MPC
M'Naughten Insanity Defense
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.
Durham Insanity Defense
Conduct product of a mental illness.
Irresistible Impulse Defense
Lacked capacity for self-control and free choice.
MPC "Substantial Capacity" Insanity defense
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.
GA follows the _____ Insanity defenses.
M'Naughten and Irresistible Impulse.
Involuntary intoxication (someone drugs you) and Insanity are defenses to...
all crimes including SL.
Voluntary intoxication is a defense to _____ crimes.
Specific intent
Infancy defense
Under 7: no criminal liability.
Under 14: rebuttable presumption of no criminal liability.
Nondeadly: anytime reasonably believe force is about to be used against you.
Deadly: Reasonably believe deadly force is about to be used against you.
Self-defense, deadly force, retreat jurisdiction
Minority rule: retreat if it is safe to do so. Exceptions: Victim of rape/robbery, in home, police officers.
GA is/is not a retreat jurisdiction.
Self-defense and original aggressor
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.
Defense of a dwelling
Deadly force may NEVER be used solely to defend property.
Defense of duress
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.
Mistake of fact/Specific intent crime
Any mistake, reasonable or not, is a defense to a specific intent crime.
Mistake of fact/Malice-general intent crimes
Reasonable mistakes only.
Mistake of fact/SL crimes
NEVER a defense to strict liability.
Entrapment defense
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.
The CL Crimes (5)
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
CL Homicide
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
CL Manslaughter
Voluntary - must have passion, some provoking event.
Involuntary - killings from criminal negligence, misdemeanor manslaughter (killing someone while committing misd. or unenumerated felony).
CL First degree murder
CL didn't have degrees - created by statute. So exam will tell you FDM or give you a statute to apply FDM.
Defenses to felony murder
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.
GA Felony Murder
Narrow Concept: one participant must do the killing and some non-participant must die.
Russian roulette
= depraved heart murder
Statutory Rape
Strict liability - consent/mistake of fact are NOT defenses.
Requires taking,
carrying away (asportation),
personal property of another,
with intent to deprive person permanently of that item.
Larceny Intent
Must exist at time of taking. Taking property you believe is yours is NOT larceny.
Always has lawful possession followed by illegal conversion. No carrying away necessary and no self-benefit required.
Larcenist and Embezzlers have
possession only, not title.
False pretenses
D persuades owner to convey title by false pretense. Must be based on present/past fact. Future false pretense is not sufficient.
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).
2 distinctions from robbery -
don't have to take from person/presence and threats are of future harm.
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.
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.
Exclusionary rule
Product of illegal search/coerced statement excluded from evidence.
Limitations on exclusionary rule
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
Good faith exclusion
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.
GA - Defective search warrant
GA does not recognize reliance on defective search warrant based in good faith.
Use of excluded evidence for impeachment purposes
All illegally seized real or physical evidence may be used to impeach D's trial testimony. Does not apply to other defense witnesses.
Exclusion is not available for...
violation of knock/announce rule in execution of search warrants.
Fruit of poisonoustree doctrine
Excludes all evidence from unlawful search. Does not apply when original police illegality is a Miranda warning violation.
Three ways to break chain in fruit of poisonous tree...
1. Govt can show they had an independent source for the evidence.
2. Inevitable discovery
3. Intervening acts of free will by D.
Arrest Warrants
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.
First Qs to ask w/search & seizure problems
Does this person have a 4th amendment right?
Govt conduct is necessary and must have reasonable expectation of privacy.
Govt conduct...
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.
Reasonable expectation of privacy
Own premises searched.
Live on premises searched.
Overnight guests.
Sometimes = REOP
Legitimately present for search; own property seized.
No standing...
passengers in car w/no property interest; drug dealers on premises solely for cutting drugs.
No REOP when the item is something you hold out to the public everday...
sound of voice
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
Valid search warrant requires...
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).
If SW good or defective....
good = valid search
defective = GA (no good) MBE (save w/good faith exception?)
If no SW at all is is there an exception? (6)
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)
Search incident to legal arrest
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
Auto Exception
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.
Plain view
Police must be legitimately present when make plain view sighting.
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.
Stop and Frisk
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.
Hot pursuit and effenesance evidence
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.
All require SW.
Everyone assumes the risk that person talking to is wearing wire.
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).
Waiver of Miranda
Voluntary and intelligent.
No waiver from silence/shoulder shrug.
RTC and interrogation
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.
5th RTC v. 6th RTC
6th RTC is offense specific.
Post-charge line-ups and show-ups give...
rise to RTC.
Right to jury trial
attaches anytime D tried for offense where authorized max is more than 6mths. Up to & including 6mths - no RTJT.
Minimum 6 - must be unanimous - but no right to unanimous 12 person jury verdict.
Jury pool must represent
fair cross section of community but your own jury does not.
Standards for IAC
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.
Guilty pleas...Judge must disclose...
1. nature of charge
2. max/mandatory sentences
3. right to plead not-guilty and right to jury trial
Remedy for defective Guilty Plea
Withdraw plea and plea again
4 good basis for w/drawing GP after sentence...
1. plea involuntary (mistake in plea "ceremony")
2. lack of jurisdiction
3. IAC
4. breach of plea by prosecutor
Death penalty - recite this on exam
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.
Double Jeopardy
-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
DJ: 4 exceptions permitting retrial
1. hung jury
2. mistrial for manifest necessity (D gets sick)
3. retrial after successful appeal
4. breach of plea by D
DJ: What constitutes same offense?
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.
DJ doesn't bar charges by...
separate sovereigns - ie federal /state charges for same drug offense.
5th privilege against compelled testimony
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.
5th privilege against compelled testimony does not protect from
use of urine/hair samples.
Unconstitutional for prosecution to make negative comments re:
D's failure to testify or remaining silent after Miranda.