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47 Cards in this Set

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double jeaopardy
prohibits reprosecution for a crime after there has been a final judgment. Final judgments include acquitals and convicitons. Can't be reporsecuted for the same criminal offense a second time.
res judicata
claim preclusion. once a claim has been litigated, i.e. negligence, assault, battery, then that same claim can't be re-litigated a second time. applies in civil, not criminal cases.
collateral estoppel
issue preclusion. once an issue has been litigated i.e. identity, that same issue can't be relitigated a second time between the same parties.
self defense
a person is priv. to use reasonable force in self-defense when he or she reasonably believes that he or she is in imminent danger of unlawful bodily harm or injury.
deadly force
if he or she reasonably believes that he or she is in imminent danger of death or serious bodily injury.
malicious burning of the dwelling house of another. recklessness satisfies the malice requirement. a g.i. crime.
a defense for a SI crime if it negates the specific intent required for the commission of the crime. not for g.i. crime.
insanity - how to approach
most involve insane delusions. determine if the facts were the way the defendant believed them to be, would htey provide a valid defense?
Model Penal Code
The court may take into account the defendant's personal feelings, sensitivities, and idiosynchrasies in determining adequate provocation.
VI and murder
Again, VI will NEVER reduce a murder to a manslaughter. The most that VI can do is to reduce a 1st degree murder to a 2nd degree if it negates the defendant’s premeditation , deliberation , or intent. .
no legal duty to rescue. but a duty could be based on contract like a lifeguard. also statute - some jurisdictions have enacted good samaritan statutes making docs and nurses have a duty. or a relationship - parent and child, husband and wife.
4 types. 1. Intentional killing of another where the defendant acts with premedidation, deliberation, i.e. you poison your victim. 2. Intent to inflict serious bodily injury murder - victim dies formhis wounds. 3. felony murder - an unintentional killin goccuring during commission or attempted commisison of a serious or an inherently serious felony. 4. depraved heart murder: an unintentional killing that results from the defendant's reckless conduct.
F-M crimes - inherently dangerous.
burglary, arson, rape, robbery, kidnapping.
FM vs intent to inflict serious bodily injury murder.
FM is only for inherently dangerous felonies.
conduct creates an unjustifiable risk of death or serious bodily injury and there is a conscious disregard of that risk.
depraved heart murder vs. IVM
DHM: Reckless - conduct creates an unjustifiable risk of death or serious bodily injury and there is a conscious disregard of that risk.
Invol Mansl: crim neg / gross neg.
Look at these 2 types of negligence.
Ordinarily negligent – 1-5 is ordinary tort negligence. Subjects you to civil and not criminal liability.
5,6,7 range is Gross or Criminal negligence – a high degree of negligence.
8,9,10 is reckless conduct. Where this causes unintended death, that’s depraved heart murder liability.
*Do the examples in the PMBR workbook.
If a person drives 90 mph 12 noon downtown LA and person steps out and is killed, reckless and depraved heart murder. BUT if 90 mph 3am in Smyrna Delaware, that’s criminal negligent conduct.
Fire gun in room knows is occupied- depraved heart.
Fire gun and someone unexpectedly inside, IVM.
DHM: 2nd degree.
Intent to inflict serious bod inj : usually 2nd
FM – 1st deg
Intent w/ premed and delib – 1st.
3 incohate offenses
Solicitation: where the defendant solicits, entices, encourages, advises, someone else to commit a criminal offense. If the crime is committed, solicitation merges into the completed crime/target offense.
Attempt: a S.I. crime. Defendant must have specific intent to commit the target offense. Defendant must also do an act which is a substantial step in the commission or the attempted commission of a crime. Attempt also merges.
Conspiracy: S.I. crime and defendant must have the S.I. to commit the target offense. And, there must be an agreement b/w 2 + indiv. To commit the crime. This is also called the plurality requirement – must have 2 or more guilty party for a conspiracy. *Conspiracy does not merge.
Defense of legal impossibility
Defense of Legal Imposs. At common law, leg impos was a valid defense to attempt. LI is where the def. did everything he or she intended to do, but his or her acts did not constitute a crime. i.e. arson and you set fire to your own home. Must be dwelling house of ANOTHER.
Factual imposs – no defense to attempt.
attempted IVM?
defendant must have the specific attempt to commit the target offense and there must be an agreement between 2 or more guilty parties in order to convict them of conspiracy.
Co-conspirator liability
each co-c is held criminally liable for all foreseeable crimes that are committed in the course of or in furtherance of the conspiracy.
Withdrawal as a defense
At cl, once the parties have entered into their agreement they are guilty of conspiracy and they can't renounce or w/d from conspiracy. No defense to conspiracy after the parties enter into thier agreement. W/d may be a defense for subsequent crimes. Comm. intent to w/d to other participants to give them time to renounce or you must thwart the success of the criminal endeavor.
accomplice liability
Accomplice liability: Accomplice must have the SI that the crime be committed and they must aid, abet, or encourage the principal in the 1st degree in the commission or attempted commission of the crime. Accomplice is guilty of the substantive crime committed.
accessory after the fact
Accessory after the fact: not subject to accomplice liability – only guilty of obstruction of justice.
Criminal Assault
Criminal assault: an attempted battery under the majority view. Under minority view, assault is an intent to frighten.
1. LARCENY: CL – trespassory taking; carrying away; personal property of another w/ the intent to steal
Larceny by trick
3. FALSE PRETENSES: larc by trick vs. false pretenses. Taking of property accomp. By lies, deceit or false statements, difference here is defendant acquires title AND possession of the property. Remember, title passes with money.
Cc fraud
Confidence game schemes
Worthless stocks
Worthless securities
Bad checks
4. EMBEZZLEMENT: the misappropriation of the tangible property of another by one who is in lawful possession.
5. ROBBERY: larceny + 2 added elements – the taking must be accomplished by force, violence or intimidation, and the taking must be from the victims person or presence. Look to the subjective mind of the victim – fear or reasonable apprehension then it’s robbery. If the victim was placed in fear and believed, reasonably, being threatened by knife or gun then it’s robbery.
6. RECEIVING OF STOLEN PROPERTY: when he receives stolen property which he knows or should know to be stolen. *Person’s diamond necklace – and victim contacts police and police recover the necklace. When police recover stolen property it looses its legal status as being stolen. 2 weeks later police recover it. Police call her and tell her they recovered her necklace. Detective asks to hold onto it to break a fencing operation. Undercover tries to sell it to someone else. So it looses its legal status as being stolen and guy can’t be guilty of RSP from an undercover who’s using a former stolen and recovered necklace.
custody vs. lawful possession.
Lower echelon employees have mere custody over the property so when they steal they are guilty of larceny. Upper echelon employees are in lawful possession. When they steal they are guilty of embezzlement
forcible abduction and movement
Misdemeanor offenses – does defendant have a right to a jury trial and /or a right to counsel?
Jury Trial: if imprisonment of more than 6 mos is authorized, defendant does have a right to a jury trial.
Right to counsel: if there is a possibility of imprisonment, the defendant has a right to counsel.
A suspended sentence may end up in actual deprivation nof a person’s liberty therefore def has a right to assistance of counsel even where def has received a suspended sentence.
plain v. harmless error
Harmless error: where the trial court error has not resulted in any damage to the defendant. If HE, then no new trial will be had.
Plain error: where trial court error has resulted in a grave injustice to the defendant in which case the appellate court may order a new trial even though no timely objection was made. Ref. to lie detector has been held to be plain error.
inventory searches
Inventory searches: when person arrested and booked as station house, police can conduct inventory search of their personal belongings so they can safeguard those items and return them to the defendant after he is released from custody. These items may be used as evidence for commission of other crimes.
consent searches
Consent searches – common auth rule – any occupant or co-occupant has the authority to consent to search of premises. One person gives police permission and they have apparent authority. B4 police can enter the home, they must inquire and ask the person what is your status. Do you live here? In this Q no inquiry was made.
protective sweep
ok if police have RS that accomplices are present in the dwelling and pose a danger to the police on the scene.
search of car incident to lawful arrest - ny v. belton
search of a car incident to a lawful arrest is permissible. this is true even after the defendant has been removed from the car, handcuffed, and placed in a squad car.
Miranda: always tested… look for essays too. Custodial interregation. Once the police have a person in custody, before interrogating them, the police must give def. M advisement. Right to remain silent, anything he says may and will be used against him, def has right to an attorney, and if he can’t afford one, one will be appointed to him.
Areas of Miranda - custody
Custody is when they are not free to leave. Follow an objective, not subjective, with regard to custody - look to see how many police involved, how long was def detained, where did the interrogation take place?
Areas of Miranda - waiver
Waiver – holding in Colorado v. coddle – USSC ruled that the police need not take into account the defendant’s personal characteristics. Apply the voluntariness test – is it voluntary or coerced. Where do we have overreaching by the police – or coercion?
Pre-arrest silence of defendant if no M warnings
Genreally, prosec can’t comment on silece of def. in closing. But exception, flecther v. wier – if a def hadn’t been given M warnings, then the prosecution, for impeachment purposes, may comment on defendant’s pre-arrest silence.
When dealing w/ 4th S&S cases, the defendant must have an ownership or possessory interest in order to challenge the legality of a search or seizure.
Auto passengers & standing:
Auto passengers & standing: they generally lack standing except for when the car stop was unlawful. Like a random stop of a car, and then the passengers have standing to challenge the search and seizure.
double j and final j
48&49. double j: prohibits reprosecution for a crime after there’s been a final j.
Final js are acquittals and convictions. After that, they can’t be reprosecuted a second time for the criminal offense.
exception to double j
Exception – the separate sovereignty doctrine – def. can be, though might have been final j in one state, def can be prosecuted in another state and that’s not violative of double j. same logic in state or federal. A city w/in the state IS the same sovereign.
NJ v. Tiello
NJ v. Tiello: the USSC upheld warrantless school searches by school authorities as long as there is a RS that a criminal law or school regulation has been violated. The police can’t be the ones to provide the info to the school official and be present when the search is conducted otherwise they will be considered an agent of the police and then police would first have to obtain a search warrant to search the personal belonging of the student.