New York Bar Exam: Criminal Law (Ny And Mbe)

Front 1

What are the 4 common law categories of criminal actors?

Back 1

1) Principal 1st degree - P1D
2) Aidor or abbetor - P2D
3) Accessory before the fact - ABF
4) Accessory after the fact - AAF

Front 2

What is an aidor/abettor (P2D)?

Back 2

- Is present at the time of the crime

- intentionally renders some assistance,

- stands by w/ an intent to render aid if needed, or

- who encourages or urges the commission of the crime w/ the same 'community of purpose' as the principal in the 1st degree (the same CRIM K mental element).

- An accomplice must assist even in a trivial way the principal in the 1st degree; e.g., preventing others from aiding the victim, driving the P1D to the crime scene or acting as a lookout.

Front 3

What is required to convict an aidor or abettor?

Back 3

the court requires proof that the aidor or abettor of the intended crime shared the guilty purpose w/ the P1D and actually rendered some assistance, i.e., she did something w/ the purpose of promoting, facilitating, or encouraging that crime. This is also referred to as the 'acting in concert theory.'

Front 4

What is the ABF?

Back 4

is the criminal who is not present when the crime takes place but who intentionally solicits, assists, encourages, acts, or commands another engaged in a crime. He has the same mens rea as the principal except he is not present at the time of the crime.

Front 5

In NY may an ABF be convicted solely upon the uncorroborated testimony of another accomplice?

Back 5

In NY, accomplice testimony is viewed w/ suspicion especially where circumstances suggest that the acc. D's test. was motivated to gain favor w/ the prosecutor.
Thus, a NY D may not be convicted solely on the uncorroborated testimony of an accomplice.
Moreover, one accomplice may not corroborate a 2nd accomplice's testimony to convict a 3rd accomplice.
(Under FRE, it is possible to convict solely upon uncorr. test. of another ABF.)

Front 6

What's an AAF?

Back 6

one who w/ knowledge of another's guilt, intentially assists felon in avoidng arrest, trial or conviction.

It occurs when D renders assistance to one he knows has committed a crime and D acts w/ specific intent to prevent, impede, or delay the discovery of evidence for the criminal.

not responsible to the extent of the P1D.

Front 7

Can an AAF be convicted of a crime more serious than P1D?

Back 7

An AAF can't be convicted of a crime more serious than the crime of which the P1D was convicted except for the crimes of homicide, where the AAF can be convicted of intentional murder, even though the p1d is convicted only of voluntary manslaughter (Heat Of Passion)

Front 8

Generally, what is attempt?

Back 8

MBE loves it. To try to commit a crime w/o success.

Front 9

When is a NY D guilty of attempt?

Back 9

Not until she is 'dangerously near' or 'on the verge' of accomplishing the intended crime.
Mere discussion of the crime, preparation, or some overt act that would be sufficient for conspiracy is not enough in NY for the crime of attempt.

Front 10

How does the federal/majority standard broadly define the crime of attempt

Back 10

In terms of the 'taking a substantial step' toward the completion of the crime. It shifts the emphasis from what little remains to be done (NY approach) to what steps the D has already taken.
Distinction between NY and MBE ex: H barks for dinner and drinks until passing out. One night W goes and gets poison and determines that she will kill him. Tonight, though he turns a new leaf. She doesn't give him the bottle.

Front 11

Can D attempt to commit a crime by negligent or reckless conduct?

Back 11

No. The crime of attempt requires intentional conduct and one can't be convicted of the crime of attempting to bring about an unintended result.
Thus there can be no crime of attempted felony murder, attempted manslaughter, or attempted reckless conduct crimes.

Front 12

When is factual impossibility not a D to the crime of attempt?

Back 12

Where D intends to commit a criminal act but the crime can't be accomplished unknown to D, then D is nevertheless guilty of an attempt to commit that crime if the crime could have been committed had the circumstances been as D believed them to be and what D intended was prohibited by the penal law; e.g., picking an empty pocket is attempted larceny.

Front 13

What was the CL rule on burglary?

Back 13

CL Burglary required:
1 an unauthorized act
2 of breaking
3 and entering
4 at night
5 into another's dwelling
6 w/ a specific intent
7 to commit a felony therein (underlying crime).

Front 14

What's a breaking?

Back 14

1. A breaking (which NY doesn't require) is exerting force to remove a barrier in order to enter the dwelling; e.g., breaking a window or opening an unlocked door or window. If the entry occurred during the day the intruder was charged w/ criminal trespass plus the felony intended w/in the dwelling.

Front 15

What's an entering?

Back 15

An entering occurs where any part of the D's body crosses the plane and enters the premises; e.g., to reach in a window and steal a diamond ring.

Front 16

Must an entry in burglary always occur w/o consent?

Back 16

For burglary the entry must occur w/o consent, but if consent to enter is obtained by fraud or intimidation, it constitutes a constructive breaking and entering. An intruder intending criminal conduct who breaks the barrier w/ a lie or deception, is no less dangerous to the inhabitants of the dwelling.

Front 17

As a crime against habitation, for what else can a burglary D be charged?

Back 17

D can be charged w/ both burglary and the crime attempted or committed w/in dwelling.

Front 18

How far does the modern definition of burglary extend?

Back 18

today most juris, including NY, expand burglary to any crime, e.g., felony or misdemeanor, and in any structure, night or day. NY goes so far as to define a structure as an enclosed motor truck, watercraft, or trailer, used for overnight lodging, or to carry on a business therein. However, a burglary involving a dwelling will constitute a higher degree of burglary and thus carry a stronger sentence.

Front 19

What is a conspiracy?

Back 19

A consp is an agreement with an intent that an unlawful objective be achieved. It is an offer, an acceptance to enter into a K to violate a penal law.

Front 20

What if the offer to go into a conspiracy is not accepted?

Back 20

If offer is not accepted, the crime is criminal solicitation, but the crime of crim sol merges into consp if the offer is accepted.

Front 21

How does the CL differ from modern view of what act is required to show a conspiracy?

Back 21

At common law, no additional overt act was required but today most federal and state statutes require some overt act in furtherance of the crime, i.e., at least one of the co-conspirators must take a step to accomplish the illegal goal. If a particular statute doesn't expressly require an overt act, then none is required.

Front 22

To what extent is a co-consp liable for crimes committed by other co-consp's?

Back 22

A co-consp is liable for all foreseeable crimes committed by other co-consp's in furtherance of the conspiracy.

Front 23

Does the crime of conspiracy merge with the crime agreed upon?

Back 23

The crime of conspiracy will not merge w/ the actual crime committed. Possible to be convicted of both the consp. and if you have the same mens rea, the crime. The underlying crime as well as the attempted underlying crime (if you get caught before completion).

Front 24

Can a D be acquitted of the underlying crime but be convicted of the conspiracy to commit the crime?

Back 24

Even if Ds are found not guilty of the completed crime, they may nevertheless be found guilty of conspiracy.

Front 25

Do co-consp's have to know each other?

Back 25

A person is guilty of conspiracy when he knows that a person with whom he has conspired has also conspired w/ a 3rd person to commit the same ongoing crime.

Front 26

Will providing goods or services knowing that they will be used for illegal purposes give rise to conspiracy?

Back 26

No, unless the provider did so w/ the intent that the crime occur. However, this intent may be inferred if D has a stake in the outcome such as when he charges grossly inflated prices or his business greatly profits from the crime.

Front 27

How do CL conspiracy and modern conspiracy differ where one party is either pretending to agree or is unable to due to infancy, insanity, or duress?

Back 27

CL - No CL conspiracy if one party was pretending to agree or could not due to I I D. Also, where one of 2 co-consp's was acquitted, no consp.
Majority (inc NY + MPC) - D can be convicted under doctrine of 'unilateral conspiracy' even though D's other K-ing party lacked intent or capacity to form intent.

Front 28

What's the Wharton rule?

Back 28

Where a crime requires 2 people to cooperate for its commission (incest, adultery, bigamy, receiving/selling drugs, handguns, stolen goods) there cannot be a conspiracy unless an additional person is involved who is not essential to the commission of the crime. Thus if 3 people agree to commit such a crime then all 3 may be charged w/ conspiracy.

Front 29

When can an ABF be convicted as a consp?

Back 29

ABF is also a conspirator but only if the 2 Ds have entered into an agreement. If he quietly assists the D at the crime scene, then in the absence of an agreement, D is an acc. w/o being a co-conspirator.

Front 30

Can an AAF be convicted as a co-consp or an ABF?

Back 30

AAF can't be convicted either as ABF or co-consp because his intent and criminal act occurred after the crime had been completed or attempted.

Front 31

What are the Criminal Ds? (17)

Back 31

EVADE NICE WASP MICE
1) ENTRAPMENT
2) VAGUE criminal statute
3) Bill of ATTAINDER
4) DURESS
5) EX POST FACTO criminal law
6) NECESSITY
7) INOPERABLE or unloaded gun (for burglary or robbery in NY)
8) CLAIM of Title or CLAIM of right
9) EXCESSIVELY broad penal statute
10) Accomplices WITHDRAWAL from crime (aka D of renunciation)
11) ALIBI
12) SELF-DEFENSE aka JUSTIFICATION
13) Heat of PASSION
14) Legal or Factual MISTAKE
15) INSANITY, INFANCY, or INTOXICATION
16) CUB FELONY MURDER DEFENSES
17) EXTREME EMOTIONAL DISTURBANCE

Front 32

What is an affirmative D?

Back 32

Defendant has burden of proof to establish an affirmative defense by a preponderance of the evidence, but only after the People have proven every element of the crime beyond a reasonable doubt.
Affirmative Ds
Justification (MBE only),
Insanity,
Intoxication,
Entrapment,
Duress,
Necessity.

Front 33

What is an ordinary D?

Back 33

Prosecution has burden of disproving an ordinary defense beyond a reasonable doubt. A D only has the burden of production to establish with some evidence fairly and timely raising the ordinary defense issue, but does not have the burden of proof (persuasion) with respect to his ordinary defense.
Ordinary Ds:
Alibi
Claim of Right
Justification (NY only)

Front 34

When is the Justification D (Self defense D in mnemonic)asserted?

Back 34

When D charged with crime of violence (criminal battery, assault or homicide).
Violent acts, otherwise criminal, may be justified if carried out:
- In defense of person (self-defense) or property,
- In making arrest/preventing escape,
- In preventing a crime, under public authority, or in suppressing a riot.

Front 35

How is the Justification D pleaded differently in NY/MBE?

Back 35

MBE - an affirmative D.
NY - ordinary D.

Front 36

When is the Claim of Right COR D properly raised?

Back 36

The COR D is properly raised when D in good faith honestly (even mistakenly) believed that property he was accused of taking was his own. If the jury believes mistaken, good D.
In NY, public policy limits COR only to larceny and embezzlement.

Front 37

When does the Entrapment D arise and what are its elements?

Back 37

where a law enforcement official or someone cooperating undercover w/ police unfairly (due process) induces or entices the D into committing the crime that D otherwise wouldn't have committed.
Entrapment has 2 elements:
D has burden of proving by a prepond of the evidence, that the gov'ts conduct of inducing and encouraging D to act criminally,

[which is an objective standard involving persistent persuasion by the gov't that created a substantial risk that a crime would be committed by a person not otherwise inclined to commit that crime]; and

the pros has the burden of proving beyond a reasonable doubt that D was predisposed to commit that crime when 1st contacted by the gov't which is a subjective standard based on the D's state of mind just before he was contacted.

NB - Courts have shifted emphasis away from 1st element by holding that if D's pre-disposition to commit the crime is present, gov't inducement will not be considered entrapment unless gov't conduct = 'outrageous.'

Front 38

What is the Duress D

Back 38

Duress D Duress arises when a D is forced to commit a crime by the imminent of death or serious bodily injury to the D or a 3rd person.

The D asserting duress must show
He didn't intentionally or recklessly place himself in a situation in which it was probable that he would be forced to choose criminal conduct, and
D had no reasonable opportunity to refuse to perform the criminal act.

Front 39

What is the insanity D?

Back 39

A D is not considered responsible for crimes committed while insane. A State may requireD to prove this w/ a pre-ponderance of the evidence.

M'Naughton test: To establish an insanity D, D must prove that he was laboring under such a defect of reason or disease of the mind, that he lacked total capacity or in NY, the substantial capacity to know or to appreciate
The nature and quality of what he was doing, e.g., he thought he was squeezing a lemon as he stangled his father, or
That his acts were morally wrong, e.g., he thought God had told him to kill his father.

MBE may use ALI that D knew that what he was doing was wrong, but he couldn't control it.

Front 40

WHat is the Extreme Emotional Disturbance or Heat Of Passion D

Back 40

EED or HOP are intentional murder Ds only. The D must demonstrate that although his mental infirmity didn't rise to the level of insanity, he never the less should be less severely punished by reducing the crime to murder to voluntary manslaughter.

Front 41

What prevents a mentally disturbed D who is not competent to stand trial from doing so?

Back 41

Due process prohibits D's prosecution. It doesn't violate due process to require a D to prove his own incompetency by a pre-ponderance of the evidence at a pre-trial hearing. If the court finds D incompetent, it will delay the criminal trial until the D is competent.

Front 42

What is the standard for competency for standing trial, pleading guilty, or waiving the right to trial counsel?

Back 42

Whether the D understood the 'nature' of the criminal charges against him, is 'able to assist in his defense,' and can intelligently decide whether to waive a right.

Front 43

Where does HOP D arise from?

Back 43

From a suden or exteme provocation that would cause an RPP to lose emotional self-control. Requires that a D's criminal conduct be undertaken in a fit of rage or passion as an immediate response to some provocation that prevented the D from reflecting on his misconduct and under similar circumstances, an RPP also would have suffered from an irresistible passion to kill. In an HOP jurisdiction, if there existed any 'cooling off' period, then the D's conduct is not deemed provoked but rather is pre-meditated and intentional.

Front 44

What is EED?

Back 44

EED is an outgrowth of HOP doctrine, but EED is significantly broader in scope (NY Rule). EED requires proof of
D's loss of self control, which is a subjective element, and
An objective reasonable excuse for losing self-control.

Front 45

Does EED require the criminal act to have been a spontaneous reaction?

Back 45

No. It points to something perhaps over a longer period of time, that causes an RPP to act criminally. The EED test is how a RPP would react to the circumstances, not how D would react based on individual characteristics.

Front 46

What are the limits of EED D in NY?

Back 46

NY - EED is only availbable as defense to intentional murder, but not any other crime, including Depraved Mind Murder.

Front 47

What governs the use of force needed in Justification D?

Back 47

D is based on a reasonable use of force, and whether a reasonable person would have used a similar amount of force under similar circumstances. Reasonableness determined by the gravity of the harm D intended to prevent.

Front 48

What other relevant circumstances may be looked at?

Back 48

May also include D's prior life experiences, such as previously being mugged or attacked. The jury should be instructed to consider both subjective and objective factors in determining whether D's use of force was reasonable.

Front 49

When is deadly force justified?

Back 49

Deadly force is justified
If theD's home is threatened to be or has been invaded unlawfully even though D's physical well-being is not in jeopardy,
to prevent the commission of a serious felony, even one that is not life threatening (rape), or
to prevent the imminent or unlawful use upon the D or a 3rd person of deadly physical force (faced w/ deadly force, can retaliate in kind).

Front 50

In NY, and a minority of other states, what is the rule regarding deadly force where a person can retreat w/ complete safety?

Back 50

A person who reasonably believes that another is about to use unlawful deadly physical force is not free to reciprocate w/ deadly physical force if he can retreat w/ complete safety.

Front 51

In NY, where does the duty to retreat rule not apply? (3)

What's the MBE twist on #3?

Back 51

There is no duty to retreat before using deadly force in NY if
1 D was inside his dwelling but not on his lawn or apt. stairwell/lobby,
2 D was a police officer,
3 D reasonably believed (even mistakenly in NY) that deadly force was necessary to prevent or terminate a BRAKERS crime (MBE, belief must be correct).

Front 52

When may an initial aggressor assert a J D?

Back 52

When
1 A non-deadly agressor was met w/ deadly force and was unable to retreat, or
2 He withdrew or expressly or impliedly indicated that the assault and battery was over, and the other party then became the aggressor.

Front 53

What's a homicide?

Back 53

an unlawful causing of death of another living human being.

Front 54

How does NY define death?

Back 54

the 'irreversible cessation' of the victim's heartbeat and breathng, or where these functions are artificially maintained, when the brain ceases to function.

Front 55

How are the degrees of homicide distinguished?

Back 55

according to the D's mental state at the time the act was committed. To obtain a homicide conviction, the DA must establish beyond a reasonable doubt that the D proximately caused another's death.

Front 56

What are the different degrees of murder?

Back 56

FIGS MAN (kills):
1) FELONY murder (CL 1st Deg, NY 2nd deg)
2) INTENTIONAL murder (CL 1st Deg, NY 2nd deg)
3) homicide caused by GROSS recklessness (NY 2nd deg)
4) homicide caused by SERIOUS bodily harm (intent)
5) MANSLAUGHTER

Front 57

What's a felony murder?

Back 57

A homicide during the commission or attempt at commission of an underlying dangerous felony, or an attempt to flee.

Front 58

Is intent necessary for FM?

Back 58

No. Intent is replaced by the intent to commit the underlying dangerous felony.

If D acquitted of underlying felony, felony murder charge can't stand.

Front 59

When are accomplices guilty for any deaths cause during the felony?

Back 59

if the death was a foreseeable proximate result of the underlying felony.

Front 60

What's the distinction between NY and MBE regarding FM?

Back 60

In NY a FM occurs even though D didn't commit the act that caused the death. In MBE, under the 'agency doctrine' one of the felons must cause the death.

Front 61

What are the predicate felonies for FM? (7)

Back 61

BRAKERS

1 BURGLARY
2 ROBBERY
3 ARSON
4 KIDNAPPING
5 ESCAPE
6 RAPE
7 SODOMY

Front 62

What don't count as FM predicate felonies? (3)

Back 62

LAB

1 LARCENY
2 ASSAULT
3 BATTERY

Front 63

What is a death that occurs during from LAB classified?

Back 63

It's misdemeanor manslaughter.

However if death occurred during a misdemeanor under circumstances evidencing a depraved indifference to life, a murder may result.

Ex: D tried for attempted rape and battery. D acquitted of the attempted rape charge but convicted of battery. Thereafter the victim died from the battery. Could D be convicted of felony murder? No. Because battery is not a predicate felony for felony murder.

Front 64

What is an affirmative D to FM in NY and many other jurisdictions?

Back 64

In NY + many other jurisdictions, CUB:

1 Did not COMMIT, COMMAND, or request a homicide
2 Was UNARMED
3 Had no reason to BELIEVE that another co-consp was armed or intended to engage in conduct likely to result in death.

Front 65

What is intentional murder?

Back 65

where D with premed and delib desires to cause the death of another and in fact causes the death of that person or a 3rd person. It involves a premeditated, preconceived (even momentarily) intent to kill.

Front 66

What inference may a jury draw as to the intent of a person who intentionally uses a deadly weapon on another and death results?

Back 66

the jury may infer that the D intended to kill that person.

Front 67

What is the rule of transferred intent?

Back 67

if D intended to kill X but the bullet missed X and killed Y then D is guilty of Y's murder under the doctrine of transferred intent.

D intended to kill a human being, and D did in fact kill one. Thus the mens rea and actus reus were present.

D is no less culpable than a murderer whose aim is better, and thus D should be punished to the same extent.

D also is guilty of the attempted murder of X.

Front 68

What is depraved mind murder DMM?

Back 68

DMM is recklessly causing the death of another under circumstances under which a RPP would believe evidences a gross debase devaluing of human life.

Front 69

When does DMM arise?

Back 69

DMM arises when the D's conduct creates such a grave risk of death and the D was aware of that grave risk yet consciously disregarded it and in doing so evidenced an utter disregard for the value of human life.

The D acted not because he intended harm but because he simply didn't care whether or not grievous harm resulted.

Front 70

Examples of DMM?

Back 70

Firing shots into house/crowded bar and killing someone.
Letting a lion out of cage at zoo.
Dropping cinderblocks off an overpass
Driving at high speed on sidewalk and not braking.

Front 71

What does a DMM jury focus on?

Back 71

not upon the subjective intent of the D as it is w/ intentional murder but rather the focus is on an objective degree of foreseeable grave risk of death created by D's reckless conduct.

Front 72

What if NY D engages in DM behavior but victim doesn't die but 'only' suffers serious physical injury?

Back 72

D guilty of 1st deg assault.

If no one injured as a result of NY D's reckless conduct, reckless endangerment.

***NB -- you can't intentionally engage in DMM.***

Front 73

What is NY voluntary manslaughter?

Back 73

When D intended to cause serious bodily injury but death resulted.

This is also:
CL def of murder,
MBE 2nd deg murder

Ex: X and Y decided to defraud D's insurance co by submitting a fraudulent claim on D's toe. Y sawed off D's toe, and X contracted infection and died. Y guilty, because he perfomed serious bodily injury that resulted in D's death. The most serious crime for which he can be convicted for is serious bodily injury murder.

Front 74

What is manslaughter?

Back 74

Manslaughter occurs when D intended to commit murder, but D's intent arose in extreme circumstances of duress or in the heat of passion. In NY, it is also intent to commit serious bodily injury resulting in death.

Front 75

Are verbal insults typically sufficient provocation to reduce an intentional killing to voluntary manslaughter.

Back 75

No. However, adultery, an aggravated battery, or a serious criminal assault may be sufficient provocation.

Front 76

What is involuntary manslaughter (InvM)?

Back 76

Where the D is aware of a condition which presents a substantial risk of death but despite this knowledge proceeds to act in a reckless manner causing the death of another.

NY calls IM Mans2D

Front 77

What else might encompass InvM?

Back 77

A crim. neg homicide which arises where D fails to perceive a substantial risk of death, and this failure amounts to a gross deviation from the conduct expected of an RPP.

e.g., when a kid is killed whilst playing w/ a parents loaded fire arm negligently stored at home; a hunter who negligently shoots and kills another hunter; a person who points a firearm at another in jest and the firearm accidentally discharges.

Front 78

What are the 5 criminal states of mind?

Back 78

CRIM K
1) CRIMINAL NEGLIGENCE
2) RECKLESSNESS
3) INTENT
4) MALICIOUS
5) KNOWINGLY

Front 79

5 Types of murder?

Back 79

FIGS MAN kills
1) FELONY Murder
2) INTENTIONAL Murder
3) Homicide cause by GROSS RECKLESSNESS indicating D's depraved indifference to the value of human life.
4) Intent to cause SERIOUS bodily harm resulting in death (this is voluntary manslaughter in NY)
5) MANSLAUGHTER (voluntary or involuntary).

Front 80

Who can commit a felony murder? (7)

Back 80

BRAKERS can:

1) BURGLARY
2) ROBBERY
3) ARSON
4) KIDNAPPING
5) ESCAPE from police custody.
6) RAPE
7) SODOMY or aggravated sex abuse 1st degree.

Front 81

What are the criminal defenses? (17)

Back 81

EVADE NICE WASP MICE

1) ENTRAPMENT
2) VAGUE criminal statute
3) Bill of ATTAINDER
4) DURESS
5) EX POST FACTO criminal law
6) NECESSITY
7) INOPERABLE or unloaded gun (for burglary or robbery in NY)
8) CLAIM of Title or CLAIM of right
9) EXCESSIVELY broad penal statute
10) Accomplices WITHDRAWAL from crime (aka D of renunciation)
11) ALIBI
12) SELF-DEFENSE aka JUSTIFICATION
13) Heat of PASSION
14) Legal or Factual MISTAKE
15) INSANITY, INFANCY, or INTOXICATION
16) CUB FELONY MURDER DEFENSES
17) EXTREME EMOTIONAL DISTURBANCE

Front 82

What are defenses to felony murder? (3)

Back 82

CUBS
1) Defendant did not COMMIT, COMMAND, or request homicide
2) Defendant was UNARMED
3) Defendant had no reason to BELIEVE another co-conspirator was armed or intended to engage in conduct likely to result in death.

Front 83

What are the exceptions to the warrant requirement? (9)

Back 83

BACH'S PIES:
1) BORDER searches
2) AUTOMOBILE searches
3) CONSENT searches
4) HOT PURSUIT searches
5) SCHOOL searches
6) PLAIN VIEW searches
7) Searches INCIDENT to lawful arrest
8) EMERGENCY searches
9) Proper SEARCHES and/or SEIZURES.

Front 84

Is a warrantless search of a car OK?

Back 84

So long as it is predicated on PC that the vehicle contains contraband or evidence of a committed crime. Police may also conduct a 'protective sweep' search if the circumstances are such that the stopping officer reasonably believes that a weapon may be in the car.

Front 85

When does RS rise to PC?

Back 85

When based on all the facts and circumstances viewed together, a reasonable belief may be formed that a crime has been committed and that
For a search, evidence would be found in a designated place, or
For an arrest, the person seized has committed the crime. Generally, if an occupant of a vehicle is found to possess contraband, e.g., syringe, bullets, wearing a bulletproof vest, PC exists to justify a search of the entire vehicle for weapons or drugs.

Front 86

What does PC that contraband or evidence of a crime is concealed w/in a vehicle permit?

Back 86

A warrantless search of the vehicle as well as of the trunk, and any closed containers that might conceal the contraband is permitted.

Front 87

if a vehicle is impounded, may police search it w/o any probable cause that it contains contraband? (2)

Back 87

They may inventory the car provided
(1) the inventory is conducted according to police department's defined, standardized criteria to limit what can be seized, and
(2) provided the inventory was not undertaken in bad faith for purposes of uncovering evidence of criminality.

Front 88

Do passengers have standing to challenge the illegality of a stop of a vehicle?
Can they have standing to challenge an illegal search of a vehicle?

Back 88

Passengers can challenge the illegality of a vehicle stop, but they don't have standing to challenge an illegal search of the car in which they are passengers because the SC no longer recognizes the automatic standing rule.

Front 89

What's the NY rule on standing?

Back 89

In NY, where the criminal inference of possession is the sole basis of charging D w/ possession of unclaimed drugs or a weapon, that NY D has automatic standing to challenge the legality of the search.

Front 90

What REP do people have in their automobiles?

Back 90

People have a diminished expectation of privacy in their automobiles.

Front 91

What must exist to stop an auto? (2)

Back 91

either
PC that a traffic violation has occurred; or
Reasonable Suspicion (RS) of criminal activity. As a protective measure, police who have lawfully stopped a vehicle may order the driver and passengers to step out of or to stay in the car.

Front 92

May police use even a minor traffic infraction to stop a car suspected of being involved in criminal activity?

Back 92

Yes, as long as the 'pretextual stop' was supported by a traffic infraction. It is not whether the RP Police Officer 'would have' made the stop w/o the suspicion or hunch but whether the officer legally 'could have' stopped the car for the traffic infraction.

Front 93

May police briefly stop a motorist on the basis of an anonymous phone tip suggesting that the motorist has engaged in criminal activity?

Back 93

Yes, provided the details of the caller's tip are confirmed by police observation.

Front 94

May police make random stops of police cars?

How about DWI checkpoints?

Back 94

Random vehicle stops based on a hunch are unconstitutional.

However, road blocks and safety check points to check for drunk drivers, to verify drivers' licenses for highway safety, to catch dangerous or thwart imminent terrorist attacks are not 4A violations. The police must uniformly stop vehicles in a non-discriminatory and non-arbitrary manner, thus minimizing police discretion as to whom to stop.

Front 95

What will the court weigh to determine whether random stops can be made w/o individualized suspicion? (3), [1]

Back 95

The public interest served by the seizure,
The degree to which the seizure advances that interest,
The severity of the individual liberty interference.

[The 'primary purpose' must not be to find evidence of ordinary criminal activity or 'general crime control,' e.g., walking a drug sniffing dog at a roadblock or a street crime unit stopping pedestrians in a high crime area w/o individualized suspicion.]

Front 96

When may police search a person or place w/o a warrant and w/o PC? In MBE, what else can police do?

Back 96

If they obtain the prior voluntary consent of the person in control of that area.

In MBE but not NY, even if officers have no suspicion, they may request consent to search.

Front 97

In NY, what must police have before requesting consent to search?

Back 97

Must have 'founded suspicion' that D engaged in criminal activity before requesting consent to search. Where founded suspicion exists, the police may ask D for consent to search w/o first stating that she is free to go or that she has a constitutional right to refuse the search.

Front 98

Who may consent to search on behalf of D?
When can they not consent?
Who may never consent to a search of D's place?

Back 98

A spouse, parent, or roommate may consent to a search of common areas.

The above can't consent to searches of areas to which the D had exclusive control (an REP).

When another with the authority to consent is present but refuses, a babysitter, landlord, or hotel manager, may not validly consent to a search.

Front 99

May parolees validly relinquish REP?

Back 99

Parolees who sign a statement may validly relinquish their REP and consent to be searched randomly w/o a warrant or PC.

Front 100

What if the police are mistaken as to consent?

Back 100

If police mistakenly but reasonably believe that the consenter had authority to consent to the search, the police search is valid.

Front 101

Can consent be coerced/induced?
Factors? (3)

Back 101

No. Consent must be voluntary and affirmative (generally, silence is not constued as consent).

Key factors in considering whether consent is voluntary are:
1. The number of police officers present;
2. Whether the consenter was under arrest and handcuffed;
3. The consenter's past experience w/ law enforcement.

Front 102

What is required to extract evidence from a body cavity?

Back 102

Consent or a warrant is required. The court, based on probable cause, may order only minor surgery involving no risks and only minor pain.

Front 103

Is the consent arising from an illegal arrest valid?

Back 103

No, unless the people demonstrate that the consent was sufficiently attenuated (a sufficient lapse of time) from the illegal arrest.

Front 104

What does 4A provide? 2

Back 104

1) prohibits unreasonable searches and seizures and
2) guarantees that no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons and things to be seized.

Front 105

Through what Amendment is 4A applicable to states? How does NY interpret it.

Back 105

Through the 14th Amendment. NY courts interpret the language to afford more generous protection to criminal suspects.

Front 106

What does 4A not prohibit? 2

Back 106

1) a warrant for reasonable searches and seizures, and
2) private reasonable or unreasonable searches or seizures.

Front 107

What must gov't do to obtain a valid search/arrest warrant? 2

Back 107

1) Demonstrate Probable Cause PC
2) Gov't showing must be sufficiently particular as to the place and/or person to be searched or seized.

Front 108

What must magistrate find before issuing a warrant?

Back 108

That the gov't has demonstrated by oath or affirmation a substantial basis for probable cause.

Front 109

What must gov't show to magistrate? 2

Back 109

1. In an arrest warrant, it is more probable than not that a crime has been committed, and the person to be arrested committed that crime, or
2. For a search warrant, that it's more probable than not that evidence of a crime or contraband presently is located in a certain place. These 'more probable than not' showings properly may be based on hearsay.

Front 110

What does a warrant require as SPECIFICITY and PARTICULARITY?

Back 110

1) A search or arrest warrant must be particular as to be place to be searched and persons or things to be seized and
2) Must be sufficiently specific so as to leave nothing to the discretion of the searcher, e.g., a warrant to search a suspect's home for ‘contraband' w/o more is too broad.

Front 111

What if a warrant contains specific as well as overly broad aspects?

Back 111

The court may sever it.

Front 112

What sanctions for defective/missing warrants? 2

Back 112

Absent an exception, the suspect may be entitled to
1) suppression of the illegally obtained evidence (the exclusionary evidence rule) or
2) money damages in tort (§ 1983 civil rights claim).

Front 113

Is there REP in telephone conversations, emails, and faxes?

Back 113

Yes. The police may not record or listen to conversations by means of an instrument, device or equipment (bug or wiretap) w/o
1. A court order (warrant); or
2. The consent of 1 party to the conversation.

Front 114

What does NY require for wiretap warrant apps?

Back 114

for eavesdropping warrant applications CPL (NY) requires A 'particular description of the nature and location of the communication facilities,' and a limited and definite time duration not to exceed 30 days w/o an application for an extension. CPL says nothing about telephone number.

Front 115

What if if the 4A is violated by a wiretap, and incriminating evidence is obtained against a 3rd person who is not a party to the conversation?

Back 115

The 3rd person has no REP and therefore no standing to challenge the 4A search.

Front 116

What are the civil/criminal rules on eavesdropping in NY?

Back 116

Eavesdropping evidence unlawfully obtained by anyone is not admissible against 'an aggrieved person' in a NY civil or criminal case. Unlawful eavesdropping is also a crime in NY.

Front 117

What's the REP for phone calls/convos in prison?

Back 117

None.
SC 2006 - D incarcerated, made phone calls from prison. All calls taped; made incriminating statements. Special facts – when you are admitted to prison, you are notified that your conversations may be taped. In phone room – signs saying we'll tape your conversations. He mightn't have given express consent, but he was on notice that his calls might be taped.

Front 118

What must suspect be able to demonstrate to assert his 4A privilege?

Back 118

A reasonable expectation of privacy in the area searched or thing to be seized. Absent this showing, D lacks standing to challenge the search/seizure, or to suppress the incriminating evidence obtained as a result.

Front 119

Does a car thief have REP in a stolen car?

Back 119

No.

Front 120

How about if the car is in his garage?

Back 120

If the thief locks the stolen car in his garage at home, then he has REP in that car and garage and would have standing to challenge the illegal search.

Front 121

Does a person have REP when moving about in public?

Back 121

No. But if you go into a place where police would've needed a warrant to enter, then you may be able to show REP.

Front 122

What about overnight guests and family.

Back 122

An invited overnight guest or a family has an expectation of privacy in a dwelling and standing to contest its search. This is based more on their status than whether they wound up staying there on a given night.

Front 123

Is a search or seizure w/o warrant per se unreasonable?

Back 123

Yes, except for BACH'S PIES.
BORDER searches
AUTOMOBILE searches
CONSENT to search
HOT PURSUIT searches
SCHOOL searches
PLAIN VIEW searches
searches INCIDENT to lawful arrest
EMERGENCY searches
Proper SEARCHES and/or SEIZURES

Front 124

What sanction for failure to obtain a warrant or fit a search or seizure w/in the BACH's PIES exceptions?

Back 124

Will result in the suppression of evidence under the exclusionary rule designed by SC to deter 4A police misconduct.

Front 125

May a warrantless search may be made of persons and property entering the US? 2

Back 125

Yes. The elements of a border search are
1. It must be conducted at the border or its functional equivalent and
2.'Reasonable certainty' that the border has been crossed.

Front 126

How do border searches escalate in their intrusiveness? (2),[1]

Back 126

1- Initially warrantless border searches of a person are limited to some form of inspection or frisk of the person and his luggage.
2 - Anything more intrusive than a frisk requires an articulable level of suspicion.
3 - [Privacy concerns of dignity simply don't apply to vehicles.]

Front 127

May police question and detain a traveler entering the country whose profile appears to fit the profile of a drug trafficker w/o a warrant and w/o administering Miranda warnings?

Back 127

Yes.

Front 128

What does a crime generally consist of?

Back 128

Both an illegal criminal act (actus reus) and a particular mental state (mens rea). To sustain an indictment, the people must establish by the preponderance of the evidence to convict beyond a reasonable doubt.

Front 129

Is criminal liability imposed for a failure to act?

Back 129

"Generally, no. Exceptions:
1) Where a statute imposes a duty to act
2) Where D's wrongful conduct created the danger
3) Where a special dependent relationship exists
4) Where a duty to act arises from a K

Front 130

When is a person criminally culpable as an accomplice?

Back 130

When she had a legal duty to act, oppose, prevent or lessen the harm caused by the criminal conduct of another and her inactivity was coupled with a culpability state of mind (reckless, negligent, or intentional). We need a duty to act, and we also need some mental element of culpability.

Front 131

What are the five main mental elements (mens rea)?

Back 131

CRIM K
1) Criminal negligence
2) Recklessness
3) Intent
4) Malice
5) Knowing

Front 132

What is criminal negligence?

Back 132

When a D objectively fails to perceive a substantial risk of harm and that failure amounts to a gross deviation from the conduct of RPP.

Front 133

What is recklessness?

Back 133

When D perceives a substantial and unjust. risk but consciously disregards it and his conduct constitutes a gross deviation from the behavior expected from RPP.

Front 134

What is Intent?

Back 134

(purposely) Exists when D consciously desires to bring about a result or is aware that his conduct is 'substantially certain' to bring it about.

Front 135

What does specific intent require?

Back 135

specific intent requires more than the mere intentional commission of an act, it requires both a prohibited act plus proof of an intent to cause some specified results or further consequences. It involves general intent, which is the desire to commit a prohibited act coupled w/ D's subjective purpose of bringing about an additional prohibited consequence or result.

Front 136

What is an example of specific intent?

Back 136

The crime of larceny is not just the taking of a property of another (general intent). It also requires proof of the additional specific intent to permanently deprive the owner of the property.

Front 137

What is malice?

Back 137

exists when D acts either intentionally or recklessly, but it does not refer to criminal negligence.

Front 138

What is Knowingly?

Back 138

exists when D acts with an awareness that certain facts or circumstances existed, e.g., the crime of perjury is to knowingly make a false statement under oath.

Front 139

Do recklessness and negligence involve intent?

Back 139

do not involve intent and are inferred from an objective assessment of the D's conduct in view of the surrounding circumstances.

Front 140

Can a D be found guilty of an intent crime for engaging in reckless or negligent conduct?

Back 140

By engaging in reckless or negligent conduct, a D may not be found guilty for the crime of intent, because the crime requires the element of specific intent.

Front 141

When does the need to prove specific attempt arise in a fact pattern?

Back 141

the need to prove specific intent arises whenever the def. of the crime requires the mens rea of intentionally , knowingly, purposely, or with specific intent.

Front 142

Does Knowingly involve a culpable state of mind?

Back 142

knowingly does not necessarily involve a culpable state of mind, but only requires that the accused have knowledge of existing facts.

Front 143

When can mistake as a matter of fact be a D?

Back 143

if it negates a CRIM K mental state required to establish a particular crime. Because of the D's mistake the D doesn't have the mental state required by the penal law.

Front 144

What do you need to make D liable in most CL crimes?

Back 144

1. Specific intent.
2. Malice.
3. Recklessness on D's part.

Front 145

If mental state is Specific Intent:

Back 145

1. Q will tell you.
2. Mental state must be established, depraved indifference won't work.
3. If D made mistake, it doesn't matter whether it was reasonable or not, D not guilty.
4. Voluntary intox is a recognized D, but D has to be so drunk that he doesn't know what's going on (like insane).

Front 146

If mental state is Malice:

Back 146

Fact pattern will be murder or arson, or malice by statute.
1. Mental state can be established either by that D intended, or D had depraved indifference state of mind.
2. If mistake defense, mistake must be reasonable.
3. Voluntary intoxication not a defense.

Front 147

If mentals state is Reckless:

Back 147

Q will tell you (battery), or by statute.
2. Mental state will be established either by showing D acted intentionally or was reckless.
3. If D made mistake, must be reasonable to be defense.
4. VI no defense.

Front 148

Search Seizure rules:

Back 148

1. D has a right to be free from unreasonable SS in all areas where D has REP. Home, car, business, personal effects. Person has no REP in somebody else's home, car, open field, garbage at curtilage, etc.
2. If D no REP, can't complain about search now matter how unreasonable. If D had REP, can complain about unreasonable searches, but not reasonable ones.
3. MBE search reasonable if police have warrant based on PC, or a warrant exception applies.
4. MBE - 7 exceptions to warrant req:
+ SILA
+ Consent
+ Automobile search (eliminates warrant req, but not PC req)
+ Plain view
+ Stop and frisk - lesser intrusion doesnt' amount to full scale search, but still require SS (Terry).
+ True emergency - HP, evanescent evidence, public safety.
+ Administrative inventory search.
5. When police make valid arrest of car's driver, can search area of car w/in driver's immediate control-> Entire passenger compartment OK.
6. Police can't search trunk ILA of driver. Need other exception (automobile, PC, consent)
7. If police conducting legitimate search, can seize any illegal items found.
8. If search unreasonable, and there is REP, no warrant, and no warrant exception applies, usual remedy is to suppress evidence seized. Except:
+ Good faith belief that warrant was valid.
+ Evidence used at a proceeding other than trial on merits (like GJ)
+ Evidence used to impeach D who has testified to show D not telling truth.

Front 149

Confession problems:

Back 149

Fact pattern - P trying to intro confession, D trying to exclude.
1. Always start with the proposition that D's confession will be admissible against D.
+ Ev: it's a party admission offered by opponent relevant to the case.
2. To keep out, D must establish a constitutional violation that has as a remedy suppression of confession:
+ Confession was involuntary
+ Miranda not complied with
+ D formally charged (on MBE indicted) and confession occurs w/o counsel present.
3. If no violation, confession is admissible.
4. If you find a violation, confession is excluded.

Front 150

Double jeopardy:

Back 150

If each of 2 crimes requires proof of fact that other doesn't, not considered same offense for purposes of double jeopardy. On MBE, if 2 crimes not same, D can usually be charged on both.

Front 151

What are the elements of the crime of issuing a bad check?

Back 151

1) drawer puts a check into circulation

2) knowing that there are insufficient funds to cover it,

3) with the bleief that payment will be refused by the drawee, and

4) payment is in fact refused by the drawee.

Note: knowledge and intent of the drawer are presumed if:

1) no account exists with the drawee or

2) he has insufficient funds in the bank at the time of issuance and presentation of the check.