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55 Cards in this Set
- Front
- Back
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What are the three types of crimes
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Felony-max punish is death or life in prison
misdemenor-1 yr in JAIL per charge Infraction-max pun. is a fine |
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Who has the burden of proof
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Prosecution
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What is Burden of proof
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standard of proof: requirement to prove facts beyond a reasonable doubt
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What are the three types of burden of poorf and what courts use them.
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Preponderance = lowest std of proof (51%) (civil case)
Clear and Convincing = mostly family court >51% Beyond a Reasonable Doubt-criminal/ must be unanimus |
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What is the 5th Amendment
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Due Process-fair hearing(adequate and competent counsel)
-Speedy Trial -Impartial jury |
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What are the Stages if criminal Trial
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-Investigation
-Probable Cuase established -Arrest -Initial Apprearance(within 72 hrs) -Bail set or release on own recognizance -Representation is assigned -Plea Bargining -If felony it goes to preliminary hearing -Pretrial motions -Trial -opening statements -Presentation of evidence -Closing Sumation -Verdict -Sentencing -Appeals Process |
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What two things are looked at when considering release on own recognizance
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-Flight Risk
-Threat or danger to community |
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What are the presumptions when deciding to release
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-For Felony presumtion of guilt
-For misdemeanor presumption of innocence |
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What is the Exclusionary Rule
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bars fruits of illegal searches and seizures from
being used as evidence in criminal trials. |
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What are examples of Pretrial Motions
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a. Suppress
b. Dismiss c. Change of venue d. Continuance e. Compel |
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What is Voir Dire
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Jury Selection-qustions ask to jurors and they may be relieved for based on their answers
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What are the two Challenges when doing a voir dire
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Preemptor-for no reason
For cause there is a specific answer they gave that you didnt like or someother reason |
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What are the types of Sentencing
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1. Probation
2. Incarceration (f) 1yr to life 3. Work release 4. Monetary fines – most common for (m) 5. Forfeiture of property 6. Community service – 1st time non-violent offenders 7. Restitution - $ paid to the victims 8. Loss of civil rights – vote, hold public office, own firearm 9. Death |
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What are the types of Criminal Punishemnet Characterized as
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a. Retribution
b. Deterrence c. Incapacitation d. Rehabilitation |
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What does Utilitarian and Retribution mean
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-punish today to prevent future wrongs
-eye for an eye, because it is deserved |
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What is Actus Reus
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-Voluntary act
-Causing a social harm |
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When is there punishment for failure to act
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1. Contract – lifeguard, medical care
2. Relationship – husband/wife, parent/child (food, sanitary home) 3. Statutory Duty – pay taxes |
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What are two types of possession that the act of possessing alone is a crime
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1.Possession of a controlled substance
2.Felony in possession of a firearm |
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Two types of possessing something
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1. Actual – under direct physical control
2. Constructive – has the power and intention to control something, either directly or through another person. |
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What are the two types of prosecutors
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Federal-US attorneys appointed by the president and Asst. US attorneys do the presecution
State- District Attorneys (Bonnie Domonez)and Deputy D.A.s prosectue crimes in a manner that is ethical |
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What is the job of Defense Attorneys
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Protect the rights of the defendant, zelous advocacy, Provide a Balance, presumption
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What is the main purpose of the Juvinille Jusice System?
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Rehabilitation
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What is Mens Reus
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Mental intent of commiting a crime
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what are the three types of intent?
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-General intent – the intent to do an act but not cause the results
-Specific intent – actors’ mental purpose is to accomplish a particular result beyond the act itself -Strict liability – breach of an absolute duty i.regulatory (selling liquor to a minor) ii.public offenses |
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What is Transferred Intent
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when a person intends to commit one criminal act, but commits another, the law implies the necessary criminal intent for the 2nd wrongful act. Can be prosecuted for the act and then sued by the 3rd party for the tort.
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What is Freedom of Expression
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1.Has there been state or federal action?
-arrest, fine, some form or punishment 2.Is there expressive activity? (trying to convey a message) 3.Is the expressive activity protected? -we assume all expressive activity is protected, unless, it falls in an unprotected class. -fighting words (unprotected) (old) - words that create clear and present danger -imminent lawless action (new) – prohibited only in situations when there is imminent lawless action being advocated |
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What is Obscenity?
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Unprotected expressive activity that,
1.appeals to a pervient interest in sex 2.depicts sex in an offensive way 3.lacks serious literary, artistic, political or scientific value |
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Is Cross Burning Protected under Freedom of Expression
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-hate speech protected, resulting unlawful actions can be prosecuted
-time, place, manner |
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What are the Two tests when determining causation of a social harm?
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1. But for: but for the accused action, the harm would not have occurred
2. Forseeability: based on totality of the circumstances |
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what are the crimes against property?
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Larceny, Robery, Burglary, Arson
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What are the elements of Larceny?
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C.L.
-wrongful/willful taking and carrying away -the personal property of another -with the intent to permanently deprive the owner of that property (mens) M.A. Degrees -Grand theft - $400+ (Felony) -Petty Theft - $0-399 (misdomenor) Some states add “temporary” |
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What are the elements of Robbery?
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-taking of personal property of another
-of value -from the person’s possession or presence -by force or fear -with the intent to permanently deprive the other person of that property Strike – subject to 3 strikes law Estes Law – take to a place of safety Robbery is larceny except add “by force or fear” California adds “temporary” Asportation = any movement |
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What are the elements of Burglary?
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C.L. It is a specific intent crime.
-breaking and entering(actual) -of a dwelling -of another -at night with intent to commit a felony inside M.A. includes all stractures and vehicles can happen during the day time -and with intent to commit theft as well. |
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What are the elements of Arson?
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(general intent)
-willful and malicious -burning -of a dwelling (cl and ma) -of another Some measurable amount of damage (scorching) |
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What are the elements of Drunk in Public?
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(general intent)
-willfully -intoxicated -in public -to the degree that you are a danger to self or others |
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What are the elements of a DUI?
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(General Intent)
-under the influence of alcohol - 0.08 or above - CVC 23152 (m) |
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what are the crimes against persons?
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Assault, Battery, Homicide, Murder, Manslaughter,Rape
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What are the elements of Assault?
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-an unlawful attempt
-coupled with the present ability -to commit a violent injury on the person of another |
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What are the elements of Battery?
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Generla Intent Crime
-any willful and unlawful -use of force -upon the person of another |
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What are the elements of Homicide?
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Dead body = Homicide
-Willful taking of the life -of one human being -by another human being Hb expanded to actions of hb |
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What are the elements of Murder?
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Specific intent crime
-the killing of a human being -by another human being -with malice aforethought 4 proofs -intent to kill (1st°) -intent to create great bodily injury -extreme (not negligent) disregard for human life (depraved heart) -felony murder M.A. – degrees – 1st and 2nd |
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What are the elements of manslaughter?
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-the killing of a human being
-by another human being -without malice aforethought Voluntary – intentional killing of a hb without malice aforethought or premeditation and usually occurring during a sudden quarrel or heat of passion Involuntary – unintentional killing of a hb as the result of gross negligence Provocation – that a reasonable person would lose control without sufficient cooling off period (adq prov necessary) Words not enough for heat of passion defense |
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What are the elements of Rape?
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C.L.
-When a male -has carnal knowledge(p on v) -of a female -by force and against her will -could not be against wife or under 14 yrs old M.A. person by a person any invasion into body |
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what is an affirmativ defense?
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-a defense that must be specifically pleaded as such
-a defense that does not simply negate an element of the defense, but rather consists of new matters relied on as an excuse or justification -yes…but… -example: self-defense, insane -burden now on the defense |
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What are the three types of lack of capacity?
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Infancy, Intoxication, and Insanity.
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What are the ages categories for infancy and what protection do they provide?
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-Under 7-absolute defense, peron cannot comprehend outcome/consequences
-7-14-presume incaplable of forming intent, but rebutible -over 14-treated lkie an adult M.A.--Under 18 for most part, juvinile court system 25 yrs old, max sentence from juvinile court. |
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What are the two defenses for intoxication
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Voluntary- yes defense, but only to specific intenet crimes
Involuntary-defense to all crimes general and specific. |
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What are the element of insanity?
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Very dificult to prove M'Nnaghton Rule(2 Part)
-at times of commiting the act, the defendant was suffering such a defect of reason, from disease of the mind as to not knowing the nature and/or quality of the act he was doing -or if he did know it, that he did not know what he was doing was wrong. |
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What are the elements of Duress?
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-The use or threatened use
-Of unlawful force -to compel someone -to commit an unlawful act -Threat must be immenent and pending -death or great bodily injury -cannot use for murder charge |
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What is the defense of necessity?
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When a charged act must be done to prevent significant evil, There is no adequate alternative, The harm caused must not be disporportionate to that was going to occure
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What are the elements of self-Defense?
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The person has the right to be there, act without fault,act in iminent fear against force against them.
For Deadly force must reasonably believe death or SBI is about to be inflicted on you. |
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What are the Defenses on property
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More limited to the defense of home, C.L. use of reasonable, but nit deadly force to protect property,
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What are the defenses of others
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C.L. use of reasonable force to provent commission of a felony or to protect members of the household who were endangered
M.A.-must stand in the victims shoes Have right to use firce in those who you reasonably believe they need protection |
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What is entrapment?
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Occures when criminal conduct involved os the product of the creative avtivity of police.
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What are the two typs of entrapment?
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Subjective-the focus is on pre-disposition of defendant-whether the def criminal intent originated in the mind of the police officer or the def was predisposed to commit the offense
Objective-a court inquires whether the police mthods were so improper as likely to induce or ensnare a reasonable person into committing a crime. |
