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57 Cards in this Set

  • Front
  • Back
Inevitable discovery under the exclusionary rule
Gov must prove with

"great specificity and detail that discovery was certain as a practical matter"

--also consider severity of constitutional violation
--also consider bad faith of police
Additional exclusionary remedies under MA constitution
Evidence excluded when:

1. unauthorized secret use of electronic surveillance devices

2. searches conducted incident to illegal arrest

3. deaf person's custodial right to interpreter
Right to make phone call
after being brought to police station, but not when already incarcerated

--no expectation of privacy if within obvious earshot of police
consequences of police pursuit
pursuit = seizure

1) requires reasonable suspecision to justify pursuit

2) Pursuit if:
- activate siren/flasshers
- impede d's passage
- control/direct d's speed
- command d to halt
Evauation of informer's tip
1. informant's reliability

2. informant's basis of knowledge

--weaknesses can be supplemented by indpendent corroboration by police
Permissible police inquiry in routine traffic stop
1. only license and registration unless grounds for further inquiry

2. can't request id from passenger unless objective basis for suspicion
Reqs for roadblocks
1. strong public interest

2. neutral guidelines

3. AND in MA conducted acording to plan devised in advance by law enforcement supervisory personnel
automatic standing rule to contest legality of search and seizure
D has automatic standing to contest legality of search and seizure WHEN

1. search and seizure took place and

2. possession of seized evidence is essential element of crime

(no requirement of reasonable expectation of privacy)
req for routine inventory searches
must follow specific and obvious policy
Random urinalysis drug tests by state or instrument of state
constitutionally prohibited unless

1) consent or

2) reasonable suspicion or

3) substantial government interest
warrantless electronic surveillance

(wiretapping, eavesdropping)
violates consitution if:

1) done in private home

2) with only consent of one party

3) done willfully

** can't be used to impeach or substantively
blood samples
If not charged, entitled to hearing

Must show probable cause that person commitec crime and
blood sample relevant

--if grand jury request, then ok if reasonabl basis
How does MA courts determine voluntariness?
Humane practice rule

1) determine whether statement voluntary at preliminary hearing w/out jury

2) then jury must be instructed not to consider confession if find unvoluntary
confession subsequent to a miranda violation
Presumption that statement is tainted

Can be overcome by showing:
1) break in stream of events between tainted and non-tainted statement
2) illegally obtained statement didn't incriminate defendant

**also consider wehther second confession was actually voluntary
Can prosecution admit into evidence that d refused to submit to testing?
No, bc constitutes compelled self-incrimination
Defense to pre-trial identification
Any unnecessarily suggestive identification is automatically excluded
when is pretrial detention ok
When judge finds that no condition of release will reasonably assure safety of other person or community, then must issue pretrial detention order
safe harbor period of arrestee
police only have six hours to question arrestee prior to arraignment UNLESS
waiver of right to arraignment without unreasonable delay

--all interrogation after 6 hours is inadmissible
After warrantless arrest
judicial determination of probable cause must be made within 24 hours unless extraordinary circs caused delay
what rights does d and public have to be present in proceedings
all critical stages including individual voir dire

--not prelminary voir dire where court hears requests of prospective jurors to be excused
Jury req
Criminal verdict must be unanimous
when atty identifies self to police and wants to assist suspect
Police have constitutional duty to stop the questioning of the suspect AND

immediately inform her of atty's offer of assistance
effective assistance of counsel
1. serious incompetency, inefficiency, inattention
falling measurably below that expected of ordinary lawyer AND

2) shortcomings deprived him of substantial ground of defense OR materially affected outcome
rt to confront witnesses
d has right to confront witness face to face

* must be able to see each other while testifying
is d's confession enough to convict?
No, some corroboratoin necessary to satisfy req of proof beyond a reasonable doubt
when consciousness of guilt evidence presented
court must instruct

1) cant convict on basis of evidence of flight or concealment alone
transactional immunity
Witness can't be prosecuted even if prosecutor can produce evidence from source independent of immunized testimony.
felony v. misdemeanor
1. felony if carries possible state prison sentence

2. misdemeanor has max of 2.5 yrs in house of corrections
Limitation on accessory after the fact
not for spouses, parents, grandparents, siblings, children, grandchildren
Joint venture

1. relevance

2. reqs
1. When in joint venture, d is guilty of crime of principal

2. reqs
(a) present at scene of crime
(b) share mental state required for crime with principal
(c) knowledge that he or another intends to commit crime, and
(d) by agreement willing and available to help if necessary
- can be inferred by actions
felony for hire
creime when one commits felony for payment or consideratoin OR
promise of payment
Effect of accomplice testimony
conviction can be based solely on accomplice testimony unless accomplice granted immunity
Conspiracy reqs
No overt act required.

1. unlawful objective, meaning
(a) strong probability that execution will cause significant harm to individual or public SO THAT
seriously contrary to public interest

(b) unlawfullness is substantial and clear
co-conspirator liability
conspirator not liable for crimes of co-conspirator UNLESS

accessory or joint venturer
statutory offense to threaten to commit crime agaisnt person or property of another
diminished capacity defense
No defense in MA

But, evidence not amounting to insanity is admissible to reduce 1st degree to second degree
duty to retreat
No duty to retreat from person unlawfully in dwelling.

Otherwise duty to retreat to wall
viablefetus for purposes of murder adn vehicular homicide statute
considered human being
No requirement that victim be placed in apprehension or fear or bodily harm
voluntary manslaughter elements
1) intentional infliction of injury likely to cause death which causes death

2) lack of legal justification or excuse

* judicially defined as killing from sudden transport of passion or heat of blood on reasonable provocation AND without malice or on sudden combat
Provocation for voluntary manslaughter
words alone are not adequate provocation (unless inflammatory info such as discovering infidelity)
Statutory crime for killing by drunk driving
vehicular homicide by reckless or negligent operation of a vehicle while under the influence of an intoxicating substance
First degree murder elements
1) premeditated or deliberate

2) particularly vicious

3) commited in course of commission or attempted commission of felony punishable by death or life imprisonment
Second degree murder
1) all murder that is not first degree

2) unlawful killing with malice aforethought

3) first degree murder while voluntarily intoxicated

4) felony murder not puniwhable by death or life imprisonment
When is co-felon liable for killings of co-felons
Only liable when d or co-felon did the killing

**not liable when killed by police or victim
(1) forcibly or secretly confines or imprisons another w/in MA against will


2) forcibly carries or sends person out of MA against will
1) sexual intercourse

2) compels such person to submit by force and agsint will OR by threat of bodily injury

3) penetration required

Grand larceny
1. Larceny includes
(a) stealing, false pretenses, embezzlement
(b) making delivering check, draft or order with knowledge of insufficient funds and intent to defraud

2. grand larceny when over 250

3. larceny of motor vehicle is felony
Extended by statute to crime against property in general including vessels, ships, vehicles, railroad cars

Also criminal to enter withour breaking, in daytime, and with intent to commit misdemeanor
1. breaking and entering

2. criminal trespass
Both statutory offenses

1. intent to commit felony or misdemeanor therein

2. remains on premises after being forbidden to do so
includes one's own dwelling

includes putting flammable or explosive materials against building for purpose of setting fire to building
Operating under the Influence
operation of motor vehicle while under influence

--shifting gears is operation even if engine not running
confine, maim or putting person in fear for purpose of stealing motor vehicle with intent to steal

* don't need to actually succeed in stealing
computer crimes
crime to knowingly gain access to computer system without authorization

Also crime to attempt or obtain commercial computer service by tampering, installing, false represntation, false statement etc.
1) wilfully and maliciously engage in knowing pattern of conduct or series of acts over period of time

2) directed at specificd person which seriously alarms or annoys that person

3) and would cause reasonable person to suffer substantial emotional distress


4) make threat with intent to place person in imminent fear of death or serious bodily injury
intimidation of witness
unlawful to interfere through intimidation, force, threat of force
compensation of crime victims
victims of crimes (and dependents if dead) are eligible for compensation up to 25000.

Must have been promptly reported and result in injury