Crim And Crim Pro

Front 1

"Automobile" Exception

Back 1

If police have prob cause to believe that fruits, instrumentalities, or evidence from a crime are contained in a vehicle, they may search the whole vehicle and any containers that might reasonably contain the item
- may tow to station and search later
- if prob cause that car it self is contraband, may seize from public place w/o warrant
May search packages belonging to passengers as well.
If the police ONLY have probable cause to search a container in a vehicle, may ONLY search the container - not the rest of the vehicle.

Front 2

"Emergency Circumstances" That May Justify Warrantless Searches and Seizures

Back 2

(1) Evidence likely to disappear before a warrant can be obtained.
(2) Contaminated food or drugs.
(3) Children in trouble.
(4) Burning fires.

Front 3

"Knock and Announce" Rule and exception

Back 3

15-20 second delay UNLESS it would be dangerous/futile/would inhibit the investigation

Front 4

10 specific intent crimes

Back 4

1. Solicitation
2. Attempt
3. Conspiracy
4. First degree premeditated murder
5. Assault
6. Larceny and robbery
7. Burglary
8. Forgery
9. False pretenses
10. embezzlement

Front 5

2 additional defenses for specific intent crimes

Back 5

1. Voluntary intoxication
2. mistake of fact (need not be reasonable)

Front 6

2 trends in Supreme Court since 1970 re: guilty pleas and plea bargaining:

Back 6

1. Courts won’t disturb guilty pleas after sentencing
2. Adoption of contract theory of plea bargaining: terms of plea bargain should be revealed in record at plea taking; both sides are held to that deal.

Front 7

2 ways aggressor can regain the right to self-defense

Back 7

1. Withdrawal - Has to run and communicate (running along not enough)
2. Sudden Escalation - if the victim of the initial aggression suddenly escalates a "minor" fight into one involving deadly force and does not give aggressor time to withdraw

Front 8

3 automatic categories of standing for 4th amendment purposes

Back 8

1. You OWN the premises searched
2. You LIVE on the premises searched, regardless of your ownership interest
3. You are an OVERNIGHT GUEST on the premises

Front 9

3 inchoate offenses

Back 9

1) Solicitation
2) Conspiracy
3) Attempt

Front 10

3 ways that the 5th amendment privilege against self-incrimination can be eliminated:

Back 10

1. Grant of immunity- state won’t use immunized testimony or anything derived from it to convict you (but it can prosecute you based on evidence prosecution had before the immunity grant)
2. No possibility of prosecution eg, S of L has run on underlying crime
3. Waiver - criminal def, by taking witness stand, waives 5th Amendment privilege as to all legitimate subjects of cross examination.

Front 11

4 common law mental states for a crime

Back 11

1. Specific Intent
2. Malice
3. General Intent
4. Strict Liability

Front 12

4 common law mental states, and crimes associated with each

Back 12

(1) specific intent --solicitation; conspiracy; attempt; first degree murder; Assault; Larceny; Embezzlement; False pretenses; Robbery; Burglary; Forgery
(2) malice -- murder (2nd degree); arson
(3) general intent -- all other crimes (eg, battery and rape)
(4) strict liability - statutory rape [formula for knowing if it's SL: if the crime is in administrative, regulatory, or morality area, and statute has no adverbs (knowingly, willfully, intentionally, etc), it’s an SL crime]

Front 13

4 sentences to regurgitate if the death penalty comes up:

Back 13

a. Any death penalty statute that does not give the defendant a chance to present mitigating facts and circs is unconstitutional.
b. There can be no automatic category for imposition of the death penalty
c. The state may not by statute limit the mitigating factors; all relevant mitigating evidence must be admissible or the statute is unconstitutional
d. Only a jury and not a judge may determine the aggravating factors justifying imposition of the death penalty.

Front 14

5 circumstances in which a duty to ACT arises

Back 14

1. by statute. (Eg, file a tax return)
2. by contract (Eg, lifeguard, nurse)
3. relationship btw parties (parent/child; spouses to one another)
4. ** voluntarily assuming a duty of care toward s/o else and then failing to perform it
5. Where your conduct created the peril

Front 15

5th amendment protection against compelled testimony

Back 15

1) Any person under oath in any proceeding may assert the privilege
(a) Witness, D, V (not corporation)
(b) Civil, criminal, congressional hearing!
2) Right not asserted is waived
(a) Must assert the first time Q is asked i.e. 1st asked in civil waived if not asserted, in later hearing including criminal.

Front 16

5th amendment right to counsel: terminating interrogation

Back 16

Requires D unambiguously indicates wish to speak to counsel, all Q must cease. Continued Q violates 5th amendment right to counsel. Note: Miranda requests for counsel under 5th amd right. 5th amendment right to counsel is not offense specific. 6th amendment right to counsel is offense specific atty only need be present for questioning re that attys case.

Front 17

6 exceptions to the warrant requirement

Back 17

1. SIA
2. Automobile exception
3. Consent
4. Plain view
5. Stop & frisk
6. Hot pursuit and evanescent evidence

Front 18

A Bill of Attainder is a legislative act that

Back 18

Inflicts punishment or denies a privilege without a judicial trial

Front 19

A search warrant on the basis of an affidavit will be held invalid if...?

Back 19

Defendant establishes all three of the following:
(1) false statement was included by affiant (police),
(2) affiant intentionally or recklessly included a false statement, and
(3) false statement was material to finding of probable cause.

Front 20

A search warrant will be invalid where D establishes (3)

Back 20

1. Affidavit included False Statement of officer filing
2. Affiant Intentionally or Recklessly include such statement
AND
3. False statement was Material to finding probable cause

Front 21

Accessory After the Fact

Back 21

Need a FELONY and a COMPLETED crime (usually a five yr. max sentence)

Front 22

Actus reus

Back 22

Physical act by def. physical act is a voluntary bodily movement.

Front 23

Additional defenses for specific intent crimes

Back 23

1. Voluntary intoxication (can be used, eg, to reduce first degree murder to murder)
2. mistake of fact

Front 24

Admissibility of D’s silence

Back 24

1) Unconstitutional for prosecutor to make negative comment re D’s failure to testify or Remaining silent upon Miranda warnings.

Front 25

Aggravated Battery

Back 25

- Deadly weapon
- Serious bodily injury
- Victim is a child, woman, or police officer

Front 26

Aggravated Robbery

Back 26

Robbery with a deadly weapon

Front 27

Agreement of Co-conspirators

Back 27

1. Need not be express
2. parties need not all know each other

Front 28

Agreement requirement for conspiracy

Back 28

1) Need not be express. Members of conspiracy need not know one another.
2) There must be an overt act in furtherance of the conspiracy.
3) Overt act can be committed by any one of the co-conspirators
(a) Just showing up is enough

Front 29

Model Penal Code Test of Insanity

Back 29

suffered from a mental disease and as a result lacked capacity to appreciate the criminality of his conduct OR conform his conduct (combination of M'Naghten and irresistible impulse tests)

Front 30

If D wants to use an alibi defense

Back 30

must give the prosecution a list of the witnesses, and prosecution must give the defendant a list of their rebuttal witnesses

Front 31

Ambiguous statements are construed how?

Back 31

In favor of defendant

Front 32

Can a prosecutor make a negative comment on the defendant’s failure to testify, or on his/her remaining silent upon hearing the Miranda warning?

Back 32

No -- it is unconstitutional

Front 33

Can a suspect waive his Miranda rights?

Back 33

Yes, but it must be a knowing, voluntary, and intelligent waiver.

Front 34

Can D argue abandonment to attempt

Back 34

General rule: it is never a defense
MPC: withdrawal will be a defense if 1.)Fully voluntary and 2.) complete abandonment

Front 35

Can exclusion be raised as a remedy for violation of the "knock and announce" rule

Back 35

No

Front 36

Can you ever give back to an aggressor the defense of self-defense?

Back 36

Yes, but it almost never happens. Can happen if: person in Q WITHDRAWS (run for door), then stops, turns to original victim, and COMMUNICATES withdrawal to victim.

Front 37

6th Amendment Right to Counsel

Back 37

- Includes all critical stages of a prosecution after formal charges filed.
- Prohibits police from deliberately eliciting an incriminating statement from D outside the presence of counsel after D has been charged unless D waives his right to counsel.
- The 6A right is offense-specific. Even though the right attached regarding one charge, the D may be questioned regarding an unrelated, uncharged offense without violating 6A (thought it might violate Miranda).

Front 38

Accomplice liability – Rule

Back 38

Accomplices are liable for the crime itself and all other foreseeable crimes.
Exam tip: NEVER give accomplice liability unless the person is actively aiding, abetting, or counseling the crime. Even if person seems to be going along w/ it, or doesn't call the police, this alone doesn't give rise to accomplice liability.

Front 39

Appeals by Prosecution

Back 39

Even after jeopardy has attached, prosecution may appeal any dismissal on D's motion that doesn't constitute an acquittal on the merits.
- Double jeopardy does not bar appeals by P if successful appeal wouldn't require a retrial.
- No bar to government appeal of a sentence pursuant to statute allowing such review.
NB: if jury fails to impose death, P may not seek death on retrial after successful appeal.

Front 40

Automobile Stops

Back 40

Generally, police may not stop a car without at least reasonable suspicion that a law has been broken. Police may order car's occupants out after lawfully stopping the vehicle in the interest of officer safety. If he reasonably believes them to be armed, he may search for weapons.

Front 41

Bail

Back 41

- Bail can be set no higher than necessary to ensure defendant's appearance at trial.
- Refusal to grant bail or setting of excessive bail can be appealed immediately; however SCOTUS upheld portions of the Bail Reform Act allowing arrestees to be held without bail if they pose a danger or would fail to appear at trial. Try a due process argument.

Front 42

Basic model for answering search and seizure questions:

Back 42

1 - Look for whether the person has a 4A right.
2 – Did police had a search warrant, and is it valid. (If they have a warrant, test validity of the warrant; If it’s good, you have a VALID search. If no warrant, see if you can save evidence anyway using good faith defense for reliance on a defective warrant.
3 - if no warrant, or invalid, see if the search falls under one of the 6 exceptions to the warrant requirement

Front 43

Burden of Proof and Sufficiency of Evidence

Back 43

DP requires proving guilt beyond a reasonable doubt.
The state may generally impose the burden of proof upon the defendant in regard to an affirmative defense.
Mandatory presumption or presumption that shifts the burden of proof to the defendant violates the 14A requirement that the state prove every element of a crime beyond a reasonable doubt.

Front 44

Burglary

Back 44

Breaking and entering another person's house at night w/ intent to commit a felony inside
- ACTUAL (force) or CONSTRUCTIVE (threats or fraud) breaking.
- EXAM TIP: Not a breaking for to come uninvited through an open door/window! But if person then pushes open INTERIOR door, THAT is a breaking
- B&E has to be with the INTENT TO COMMIT A FELONY INSIDE. That intent has to exist at the time of the breaking!

Front 45

Can a defendant be made to use counsel to represent her?

Back 45

NO. A defendant has an absolute right to waive counsel and represent himself. The waiver must be knowing and intelligent, and the defendant need not be found capable of representing himself. Denial of this right constitutes reversible error. You cannot recover costs if an attorney is appointed for someone against their will.

Front 46

Can someone "withdraw" from a conspiracy? What is the effect of withdrawal?

Back 46

NO. Withdrawal from a conspiracy is no defense to a charge of conspiracy.
But withdrawal IS a defense to subsequent crimes committed by other members of the conspiracy *if the withdrawing party affirmatively notifies via (an affirmative act) all members of the conspiracy in time for them to have opportunity to abandon their plans.

Front 47

Challenges to pretrial ID (two)

Back 47

1) Right to counsel
- Post-charge lineup or showup. No right to counsel at photo id. Or taking of physical evidence i.e. handwriting, fingerprint.
2) Due process violation pre or post charge
- If ID is unnecessarily suggestive and there’s substantial likelihood of miss-ID. I.e. one black guy in lineup.

Exclusionary rule applies no in-court ID allowed! Unless Indept source for ID i.e. at time of crime!

Front 48

Circumstances constituting ineffective assistance of counsel

Back 48

1. Deficient performance
AND
2. Result of the proceeding would have been different

Front 49

Co-conspirator liability – Rule

Back 49

Each conspirator is liable for the crimes of all other co-conspirators if:
1. the crimes were committed in furtherance of the objectives of the conspiracy AND
2. The crimes were a natural and probable consequence of the conspiracy.

Front 50

Collateral Attacks on Guilty Pleas After Sentencing

Back 50

A plea can be set aside for:
(1) involuntariness (failure to meet standards for taking the plea);
(2) lack of jurisdiction;
(3) ineffective assistance of counsel; or
(4) failure to keep the plea bargain.

Front 51

Collateral Effects of Guilty Pleas

Back 51

A guilty plea conviction may be used as a conviction in other proceedings when relevant. However, a guilty plea neither admits the illegality of incriminating evidence nor waives the 4th Amendment claims in a subsequent civil damages action.

Front 52

Collateral Estoppel and Double Jeopardy

Back 52

Under the doctrine of collateral estoppel, defendant may not be tried or convicted of a crime if a prior prosecution by that sovereignty resulted in a factual determination is inconsistent with one required for conviction.

Front 53

Common law arson requires

Back 53

Common law arson requires
1) Malicious
2) Burning
(a) Not just smoke or water damage not explosion
3) Of the dwelling house
4) Of another

Front 54

Common Law Criminal Homicide - 3 offenses

Back 54

1. Murder
2. Voluntary Manslaughter
3. Involuntary Manslaughter

Front 55

Common Law Embezzlement

Back 55

1) Embezzler initially has lawful possession
2) And Engages in Illegal Conversion
(a) No need for carrying away
(b) No need for benefit to D
(c) Embezzler takes possession only, not title.

Front 56

Common law prop crimes (3)

Back 56

1- Larceny
2 - Embezzlement
3 - False pretenses

Front 57

Consent as a defense

Back 57

Consent of the victim is almost never a defense. One can't consent to the commission of a crime

Front 58

Consent to false announcement of a warrant

Back 58

Negates the consent - no authority to search

Front 59

When does Conspiracy merge?

Back 59

Conspiracy DOES NOT MERGE with the substantive offense.

Front 60

Constitutionality of pretrial detention

Back 60

Not a violation of due process

Front 61

Contemporaneous requirement for search of autos

Back 61

Not required - vehicle may be towed

Front 62

Criminal contempt jury right

Back 62

1) If the sum of the sentences for criminal contempt exceeds 6 mos then D has right to jury.

Front 63

Cross-Sectional Requirement for Juries:

Back 63

Ds have a right to have the county jury POOL reflect a fair cross section of the community in that county.

But NO right to have your OWN JURY reflect a cross section of the county population.

Front 64

Any death penalty statute that does not allow mitigating facts and circs

Back 64

unconstitutional

Front 65

Defendant's lack of access regarding grand juries (4)

Back 65

1- No right to notice
2- No right to be present
3- No right to introduce evidence
4- No right to counsel or Miranda

Front 66

Defendant's right regarding admissibility of evidence

Back 66

- Right to a hearing by a judge out of the presence of the jury;
- Govt must establish admissibility by a preponderance;
- Right to testify without this being used against him

Front 67

Defense of a Dwelling

Back 67

Deadly force may never be used solely to defend your property.

Front 68

Defense of duress (compulsion or coercion)

Back 68

Duress is a defense to all crimes except homicide

Front 69

Defense of self defense for original aggressor

Back 69

Never applies, unless
(a) Originally aggressor withdraws and
(b) Communicate withdraw to the victim!

Front 70

Defense to strict liability offenses (4):

Back 70

1) NOT mistake of fact
2) NOT absence of intent i.e. intoxication
3) NOT consent of the V
4) Maybe unconstitutional

Front 71

Defenses to Charge of Conspiracy

Back 71

1. Impossibility is not a defense.
2. Withdrawal not a defense BUT can be a defense to subsequent crimes of co-conspirators provided there is an affirmative act to notify all members of the conspiracy of the withdrawal

Front 72

Defenses to liability for attempt

Back 72

Legal impossibility

Front 73

Detention to obtain warrant

Back 73

If probable cause exists police may detain person from house to get warrant to search

Front 74

Determining if a crime is strict liability

Back 74

If the statute is:
1. administrative
2. Regulatory
3. morality
and the statute does not contain an adverb, i.e. knowingly, purposely THEN strict liability crime and a defense that negates intention cannot be a defense

Front 75

Development of probable cause

Back 75

- Investigatory detention
- Probable cause
- Arrest
- Full search incident to arrest

Front 76

Distinguish False Pretenses and Larceny by Trick

Back 76

if only possession is what is obtained by the D then the offense is larceny by trick not false pretenses which requires obtaining TITLE

Front 77

Do Miranda requirements apply to a witness testifying at the Grand Jury?

Back 77

No, not even if compelled by subpoena to be there.

Front 78

Doctrine of transferred intent is most commonly applied to (3 crimes) and does not apply to (1 crime)

Back 78

Applies to: homicide, battery, and arson
DOES NOT Apply to: attempt

Front 79

Does the D have a Fourth Amendment right

Back 79

1. Was there govt. conduct
2. Did D have a reasonable expectation of privacy
3. If so, did police have a valid warrant
4. No valid warrant - did police make a valid warrantless search/seizure (6 possibilities)

Front 80

Dog sniffs at traffic stops

Back 80

Okay so long as does not extend beyond time to issue ticket and conduct ordinary inquiries incident to stop

Front 81

When does Double jeopardy attach for civil and criminal trials?

Back 81

At a jury trial when jury is empanelled and sworn
jeopardy does not apply to civil proceedings i.e. criminal and civil prosecution for smuggling & forfeiture.

Front 82

Double jeopardy requires

Back 82

1) Retrial for
2) The same offense
3) By the same sovereign

Front 83

Due Process standard relating to identification

Back 83

- Unnecessarily suggestive
AND
- Substantial likelihood of misidentification
(a difficult test to meet)

Front 84

Duress

Back 84

A DEFENSE to ALL CRIMES EXCEPT HOMICIDE. The threat of harm must be imminent, not future.

Front 85

Durham or New Hampshire Test for Insanity

Back 85

crime is "product of the mental disease or defect" i.e. the crime would not have been committed but for the disease

Front 86

Effect in criminal proceeding of failure to claim privilege against self incrimination in civil matter

Back 86

Privilege waived

Front 87

Effect of an invalid arrest on subsequent criminal prosecution

Back 87

By itself, no impact; look for fruit of the poisonous tree

Front 88

Effective Assistance of Counsel

Back 88

The 6th Amendment right to counsel includes a right to EFFECTIVE ASSISTANCE of counsel. This right extends to the first appeal. Effective assistance is generally presumed.

Front 89

Elements of a crime

Back 89

1. Act
2. Intent
3. Concurrence
4. Harmful result/causation

Front 90

Elements of adequate provocation

Back 90

1. Sudden and intense passion as an ordinary person
2. D was in fact provoked
3. Not time to cool down
4. D did not in fact cool down

Front 91

Elements of Arson

Back 91

1. Malicious
2. Burning
3. Of the Dwelling
4. Of Another

Front 92

Elements of Burglary (common law)

Back 92

1. A Breaking
2. And Entry
3. Of the Dwelling
4. Of Another
5. At Night
6. With the Intent to commit a felony therein

Front 93

Elements of Conspiracy

Back 93

1. An agreement between two or more persons (need not be express, court will infer)
2. An intent to enter into an agreement
AND
3. An intent to achieve the objective ("meeting of guilty minds")
(4). An overt act (mere preparation will suffice)

Front 94

Elements of Larceny (possession not title)

Back 94

1. A taking (D takes control)
2. And carrying away
3. of tangible personal property
4. of another (someone with a superior possessory interest)
5. by trespass
6. with intent to permanently deprive

Front 95

Eliminating 5th amendment protection against compelled testimony (3 types)

Back 95

1) Grant of immunity 2 types
- Use & derivative use immunity
2) No possibility of incrimination i.e. SOL has run.
3) Waiver
- Def waives by taking the stand. W/r/t all relevant areas of legit cross

Front 96

Elimination of the privilege against self-incrimination (3 means)

Back 96

1. Grant of immunity
2. No possibility of incrimination (statute of limitations has run)
3. Scope of immunity

Front 97

Embezzlement

Back 97

1. The fraudulent
2. Conversion (need not result in the direct personal gain to the D)
3. of property
4. of another
5. by a person in lawful possession of that property

Front 98

Entrapment

Back 98

Very narrow defense and almost never available b/c the predisposition to commit crime negates the defense.
1. The criminal design must have original with law enforcement and
2. the D must not have been predisposed to commit the crime

Front 99

Entrapment defense

Back 99

Predisposition on the part of D to commit the crime negates the defense of entrapment.

Front 100

2 defenses for specific intent crimes

Back 100

1) voluntary intoxication
2) any mistake of fact even if unreasonable

Front 101

4 exceptions to double jeopardy rule (when retrial can occur):

Back 101

1. Jury unable to agree to agree on a verdict
2. Mistrials for manifest necessity
3. Retrial after successful appeal
4.** Breach of an agreed upon plea bargain by the defendant

Front 102

4 Insanity Tests and Definitions of each

Back 102

1- M’Naghton test: At the time of her conduct, def lacked the ability to know the wrongfulness of her actions or to understand the nature and quality of her actions
2 - Irresistible impulse test - Def lacked capacity for self control and free choice.
3 - Durham rule - Def’s conduct was a product of a mental illness.
4 - MPC test - Def lacked the ability to conform her conduct to the requirements of law.

Front 103

Attempt

Back 103

Attempt is an act, done with intent to commit a crime, that falls short of completing the crime. To be guilty of attempt, the D must intend to perform an act and obtain a result that, if achieved, would constitute a crime. The act must be more than mere preparation.

Front 104

Common law burglary requires

Back 104

1) breaking - Actual or constructive - by threat or fraud
- Open door alone not breaking. But push open bedroom door = breaking
2) Entering
3) The dwelling house of another
4) At night!
5) W intent to commit a felony inside
- Intent must exist at time of breaking & entering

Front 105

Common law larceny

Back 105

1) Requires a wrongful taking 2) and a carrying away (asportation)
- Carrying away however so slight 3) W/out consent. Consent by fear invalid. 4) And the intent to permanently deprive permanently at the time of the taking. - If no intent to permanently deprive permanently at the time of the taking no larceny
- No larceny if you believe its yours or you have rt.

Front 106

Common law murder

Back 106

at common law, murder is the unlawful killing of another with malice aforethought. Malice aforethought may be found on the basis of the following four mental states: 1) intent to kill; 2) intent to cause severe bodily harm; 3) reckless indifference to a severe risk to human life; or 4) intent to commit a felony

Front 107

Competency to Stand Trial

Back 107

D is incompetent to stand trial if he either (1) lacks a rational as well as factual understanding of the charges and proceedings, or (2) lacks sufficient present ability to consult with his attorney with a reasonable degree of understanding.

The state may place the burden on the D by a preponderance of the evidence standard, but requiring clear and convincing evidence is unconstitutional.

Front 108

Conflicts of Interest

Back 108

Joint representation is not per se invalid.
- if the attorney advises the court of the resulting conflict of interest at or before trial, and court refuses to appoint separate attorneys, the D is entitled to automatic reversal. - D conflict of interest with attorney is rarely grounds for relief. - D has no right to be jointly represented with his co-defendants if the government can show a potential conflict of interest.

Front 109

Consent to Search

Back 109

Must have voluntary and intelligent consent.
- Knowledge of the right to withhold consent NOT a prerequisite to establish consent.
- Scope of search is limited by the scope of consent, but extends to all areas which a reasonable person in the circumstances would believe it extends to. Any person with apparent equal right to use or occupy the premises may consent to the search, and any evidence found may be used against other owners/occupants.

Front 110

Ambiguity of request

Back 110

Must be unambiguous; police may continue to interrogate until unambiguous request is made

Front 111

An arrest must be based on

Back 111

Probably cause present when the officer makes the arrest

Front 112

Anticipatory probable cause

Back 112

Sufficient that there is reason to believe seizable evidence will be found when search is conducted

Front 113

Any automatic category for imposition of death penalty is

Back 113

Unconstitutional

Front 114

Any limits on number of mitigating factors presentable in death case

Back 114

Unconstitutional

Front 115

Appealing Bail or preventive detention

Back 115

Bail is immediate appealable & preventative detention is constitutional

Front 116

Applicability of the year and a day rule

Back 116

Outdated; mostly abolished

Front 117

Are bail issues appealable? When?

Back 117

Yes, immediately.

Front 118

Arresting a Person

Back 118

Arrest must be based on probable cause. A warrant is generally not required before arresting someone in a public place. Must have warrant, though, to effect a non-emergency arrest of a person in his home.

Front 119

Arson

Back 119

The malicious burning of the dwelling house of another
- ONLY applies to BURNINGS/FIRES NOT water/smoke/soot damage, or explosion
- DAMAGE required: a material harming of the building by firing.
- If you OWN it, it can't be common law arson

Front 120

Article I of the Constitution places these two substantive limitations on both federal and state legislatures

Back 120

1. No Ex Post Facto Laws
AND
2. No Bills of Attainder

Front 121

As a physical act must be voluntary these acts are NOT considered "voluntary"

Back 121

1. Conduct not the product of the actor's determination (shoved into something)
2. Reflexive or convulsive act (epileptic seizure)
OR
3. Acts performed while unconscious or asleep (unless D knew likely to happen)

Front 122

As a prerequisite to the admissibility of any statement made by the accused during a custodial interrogation there must be (2)

Back 122

1. Miranda warnings
AND
2. Valid waiver

Front 123

Assault - definition/elements

Back 123

2 theories of assault at common law:
1. Assault as an attempted battery (I swing, you duck, I miss). This is a specific intent crime (an attempt)
2. Assault as a threat. (I threaten you with bodily injury.) This is a general intent crime.

Front 124

Assault (2 possibilities)

Back 124

1. An attempt to commit a battery (specific intent)
OR
2. Intentional creation of a reasonable apprehension (more than just words)

Front 125

At what point is the crime of solicitation complete

Back 125

At the time the solicitation is made

Front 126

Attempt

Back 126

The specific intent AND a substantial step beyond mere preparation

Front 127

Authority to use roadblocks

Back 127

1. Must stop cars on the basis of some neutral, articulable standard (every third car)
AND
2. Be designed to serve purpose closely related to a particular problem related to autos and their mobility

Front 128

Differentiate between Right to Remain Silent and Right to Counsel

Back 128

- Silent: all questioning related to the particular crime must stop
- Counsel: all questioning must cease (not offense specific)

Front 129

Did the government have a valid warrant?

Back 129

(1) Issued by a neutral and detached magistrate?
(2) On a showing of probable cause?
(3) Reasonably precise as to the place to be searched and items to be seized?

Front 130

Withdrawal from conspiracy

Back 130

Withdrawal requires:
1)Affirmative act
2)That notifies all co-conspirators
3)In time for all to abandon
4)Defendant withdrawing must attempt to neutralize any assistance.

Front 131

Basis for an attack on a guilty plea after sentence

Back 131

1. Plea involuntary
2. Lack of jurisdiction
3. Ineffective assistance of counsel
4. Failure to keep the plea bargain

Front 132

Battery - definition/elements

Back 132

A completed assault.
"An unlawful application of force to the person of another resulting in either bodily injury or an offensive touching."
- general intent crime.

Front 133

Test for "different offenses"

Back 133

Different if each requires proof of an additional element that the other crime does not

Front 134

Breach of plea bargain by D allows prosecutor to

Back 134

Reinstate original charges

Front 135

Breaking Required for Burglary

Back 135

1. Actual breaking - minimal force is sufficient such as pushing a door open but walking through an open door is not enough
2. Constructive Breaking - gaining entry by means of fraud, threat or intimidation

Front 136

Withdrawal of guilty plea requires

Back 136

1) plea was involuntary
(a) show mistake in plea making
2)lack of jxn
3)ineffective assistance of counsel
4) failure of prosecutor to keep agreed to plea bargain
5) Supreme court won’t disturb guilty plea after sentence (immune from collateral attack)
- Supreme Court treats plea bargain like K.

Front 137

When may a wiretap warrant be issued

Back 137

(1) probable cause shown,
(2) persons sought to be overheard named,
(3) warrant describes with particularity conversations that can be overheard,
(4) limited to short period of time,
(5) terminated when the desired information is obtained, and
(6) return made to court, showing conversations intercepted.

Front 138

Is there a 4th Amend issue for people who were in a convo with a person being wiretapped?

Back 138

Only if they actually made attempt to keep convo private

Front 139

Who can invoke the Fifth Amendment Privilege against Compelled Testimony?

Back 139

Anybody under oath, in any kind of case: civil, administrative hearing, congressional hearing, etc.
EXAM TIP: if you don’t assert it the first time you’re asked the question, you waive the privilege for all subsequent criminal prosecutions.

Front 140

When is VOLUNTARY intoxication a defense?

Back 140

only if the crime requires purpose or knowledge, AND the intoxication prevented the D from formulating the purpose or obtaining the knowledge required for the crime.

Thus, it is a good defense to specific intent crimes.

Front 141

When is there a "lack of effective consent" for rape?

Back 141

1 - Intercourse is accomplished by actual force
2 - Intercourse is accomplished by threats of great and immediate bodily harm.
3 - The victim is incapable of consenting, or
4 - the victim is fraudulently caused to believe that the act is not intercourse.

Front 142

When someone MIGHT have standing for 4th amendment purposes (not automatic in all situations):

Back 142

1. You’re legitimately present when search takes place 2. You own the property seized
NB: Car passengers who don’t claim they own car/property taken out of car do NOT have standing just b/c they were present when search occurred
- An indiv (drug dealer) briefly on premises of s/o else solely for biz purpose, does NOT have standing to object to search of those premises.

Front 143

When is Right to Counsel NOT applicable?

Back 143

(1) Blood sampling/fingerprinting
(2) Taking of handwriting or voice exemplars
(3) Pre-charge/investigative line-ups
(4) Photo identifications
(5) Preliminary hearings to determine probable cause to detain
(6) Brief recesses during defendant's testimony at trial
(7) Discretionary appeals
(8) Parole and probation revocation proceedings
(9) Post-conviction proceedings

Front 144

When is Mistake or ignorance of fact a defense to a crime?

Back 144

only if it shows that the defendant lacked the state of mind required for the crim;
-- > irrelevant if the crime imposes strict liability.

For specific intent, mistake does not have to be reasonable.

Front 145

When is Right to Counsel applicable?

Back 145

(1) Custodial police interrogation
(2) Post-indictment interrogation, custodial or not
(3) Preliminary hearings to determine probable cause to prosecute
(4) Arraignment
(5) Post-charge lineups
(6) Guilty plea sentencing
(7) Felony trials
(8) Misdemeanor trials when imprisonment or suspended jail sentence is imposed
(9) Overnight recesses during trial
(10) Appeals as a matter of right
(11) Appeals of guilty pleas

Front 146

Felony murder

Back 146

= first degree murder
- doctrine is limited to felonies that are inherently dangerous.
A defense to the underlying offense, i.e., robbery, is a defense also to felony murder.

Front 147

Fruit of the Poisonous Tree Doctrine

Back 147

Not only must evidence illegally seized be excluded, but all evidence obtained or derived from exploitation of that original police illegally is also excluded.
EXAM TIP: FOPT does NOT apply when the original police illegal action was a Miranda violation

Front 148

General intent

Back 148

General intent is an awareness of all factors constituting the crime,
- D must be aware that she is acting in the proscribed way and that any required attendant circumstances exist.
- D need not be certain that all the circumstances exist, it is sufficient that she is aware of a high likelihood that they will occur.

Front 149

Grand Jury Proceedings

Back 149

D has no right to notice that Grand Jury is considering an indictment, to be present and confront witnesses, or to introduce evidence. Witnesses (even if potential defendants) have no right to counsel or Miranda warnings. - Evidence that would be inadmissible at trial may be presented to the Grand Jury, and the defendant cannot have the indictment quashed on those grounds.
- no right to challenge a subpoena to be a witness at a Grand Jury proceeding for ANY REASON.

Front 150

Guilty pleas & plea bargaining (right to trial)

Back 150

1) Must be voluntary & intelligent
2) And on the record
3) D must understand the nature of the charge
4) And judge must state max possible sent and any mandatory min sentence.
5) judge must state right to plead not guilty, & that plea is waiver of jury right.

Front 151

Habeas Corpus Proceeding

Back 151

- Indigent has no right to counsel at a habeas corpus proceeding.
- Petitioner has burden of proof by a preponderance of the evidence to show unlawful detention.
- State may appeal grant of writ of habeas corpus.
- D generally may bring a habeas petition only if in custody. Generally, this includes anyone who has not fully served the sentence about which he complains.

Front 152

Exceptions to the general rule that courts will not disturb guilty pleas after sentencing:

Back 152

There are 4 good bases for withdrawing guilty pleas after sentencing
1. the plea was involuntary (a mistake in the plea taking process)
2. lack of jurisdiction - court that took the plea didn’t have the jurisdiction to take it
3. ineffective assistance of counsel
4.** failure of prosecutor to keep an agreed-upon plea bargain.

Front 153

EXCEPTIONS to the Good Faith Defense to the Exclusionary Rule -- when the GF Defense does NOT apply

Back 153

1. affidavit underlying the warrant is so lacking in PC that no reasonable police officer would have relied on it.
2. warrant is invalid on its face (eg, failure of warrant to state with particularity the place to be searched and the things to be seized)
3. cop lied to or misled the magistrate
4. magistrate has wholly abandoned her judicial role

Front 154

Exclusionary Rule

Back 154

Prohibits introduction of evidence obtained in violation of defendant's 4th, 5th, and 6th Amend rights. Inadmissible at trial and all "fruit" must be excluded as well.
Exceptions:
(1) obtained from an independent source,
(2) intervening act of free will by the defendant, and
(3) inevitable discovery.
Note: It is difficult to have live testimony excluded on these grounds.

Front 155

Execution of warrant (6)

Back 155

1. By police
2. Without unreasonable delay
3. Must knock and announce
4. May seize any contraband product of search
5. CANNOT search persons on premises not named in warrant (unless probable cause arises)
6. Implicit authority for limited detention of persons on premises

Front 156

Extortion

Back 156

the corrupt collection of an unlawful fee by an officer under color of office.
- Under modern statutes, extortion often consists of obtaining property by means of threats to do harm or to expose information.
The threat is future and the property need not be obtained from the victim's person or presence.

Front 157

CONSPIRACY – elements

Back 157

There must be
(i) an agreement,
(ii) an intent to enter into an agreement, and
(iii) an intent to achieve the objective of the agreement. The parties must agree to achieve the same objective by mutual action. Requires a meeting of at least two "guilty minds"
EXAM TIP: Unwitting agents are not conspirators

Front 158

Continuing trespass doctrine

Back 158

If D takes property with a wrongful state of mind but without the intent to steal, and later, while still in possession of it, forms the intent to steal it, the trespass involved in the original wrongful taking is regarded as continuing and the defendant is guilty of larceny!

Front 159

Custody

Back 159

A person is in custody if, at the time of interrog., they are not free to leave. (Location doesn’t matter.)
EXAM TIPS: probation interviews & routine traffic stops are NOT CUSTODIAL. Police can ask you questions and use those answers with no Miranda requirement.

Front 160

Deadly force in self-defense requires

Back 160

D reasonably believes deadly force is about to be used on them.
- Minority rule requires D to retreat to the wall before using deadly force in self defense
- Exceptions in the home, rape or robbery, or if police officer

Front 161

Deadly Weapon Rule

Back 161

Use of a deadly weapon authorizes a permissive inference of intent to kill.
Deadly weapon = any instrument or in some cases any part of the body - used in a manner calculated or likely to produce death or serious bodily injury.

Front 162

Defenses to Felony Murder

Back 162

1 - defense to the felony = defense to FM
- felony must be independent of the killing
2 - once the def reaches a point of temporary safety (spending night at s/o’s house), deaths caused thereafter are NOT felony murder

NB: if a death is caused by circumstances coincident to the felony, it is not felony murder. There has to be a causal connection btw the murder and the felony.

Front 163

Double jeopardy exceptions permitting retrial

Back 163

1) hung jury
2) mistrials for manifest necessity i.e. D serious illness
3) retrial after successful appeal does not violate double jeopardy
4) breach of agreed plea bargain by D
- when D breaches plea, plea & sent may be vacated. I.e. turns state’s then renege.

Front 164

Double jeopardy rule

Back 164

- Prohibits trial or conviction of a person for a lesser included offense if he has been put in jeopardy for the greater offense.
- A court can impose multiple punishments at a single trial where the punishments are for 2 or more statutorily defined offenses specifically intended by the legislature to carry separate punishments, even though the offenses arise from the same transaction and constitute the same crime.

Front 165

Elimination of Privilege Against Compelled Self-Incrimination

Back 165

Witness may be compelled to answer questions if granted adequate immunity from prosecution. "Use and Derivative Use" immunity is sufficient.
Person has no privilege against self-incrimination if no possibility of incrimination (i.e., statute of limitations has run).

Front 166

Entering a Guilty Plea

Back 166

1 - Judge must determine that the plea is voluntary and intelligent.
2 - Must be done by addressing the defendant personally, in open court, on the record.
3 - Specifically, the judge must be sure the defendant knows and understands (1) the nature of the charge and elements of the crime, (2) max possible penalty and the mandatory minimum, and (3) that he has a right not to plead guilty and if he does plead guilty, he waives his right to trial.

Front 167

Entrapment -- definition/elements

Back 167

almost never available b/c predisposition
2 prerequisites: 1. The criminal design or plan must have originated with law enforcement officers 2. There's no entrapment if an officer merely provides opportunity for commission of a crime to one otherwise ready and willing to commit it.
NOTE: a mere inclination to engage in illegal activity isn’t adequate proof of predisposition

Front 168

Entry Required for Burglary

Back 168

Placing any part of the body inside the structure - even momentarily.
Insertion of tool is entry if inserted for the purposes of accomplishing the felony BUT not if for purposes of gaining entry. EX Shooting a bullet through a window with the intent to kill B is burglary

Front 169

Ex Post Facto Laws operate to retroactively

Back 169

1. Make criminal an act that when done was not criminal 2. Aggravate a crime or increase punishment thereafter 3. Change the rules of evidence to the detriment of criminal defendants as a class OR
4. Alter the law of criminal procedure to deprive substantive rights

Front 170

Exceptions for Permitting Retrial After Jeopardy Has Attached

Back 170

(1) Hung Jury
(2) Manifest necessity to abort original trial or when termination at behest of defendant on any ground not constituting acquittal on the merits (mistrial)
(3) Defendant who has successfully appealed conviction unless grounds was insufficient evidence (on retrial, may not be tried for greater offense than previously convicted of)
(4) After defendant breaches plea bargain

Front 171

Larceny

Back 171

-Wrongful taking, AND Carrying away
-of tangible personal property
-of another
-by trespass (w/o consent or consent by fraud)
-w/ intent to permanently deprive (must exist at taking)
* The intent to permanently deprive must exist AT THE TIME OF THE TAKING -- UNLESS the doctrine of continuing trespass applies.
* The "carrying away" can be VERY VERY SLIGHT
* Taking property in the belief that it is yours or that you have some right to it is NOT larceny

Front 172

Legal Duty to Act

Back 172

1. statute (income tax return)
2. contract (lifeguard or nurse)
3. relationship (parent-child, husband-wife)
4. voluntary assumption of care (no duty to save stranger you see drowning but if you start to swim out then duty)
5. creation of peril by the D

Front 173

Murder

Back 173

Murder is the unlawful killing of a human being w/ malice aforethought. Malice aforethought exists if there are no facts reducing the killing to voluntary manslaughter or excusing it, and it was committed w/ one of the following states of mind:
1. Intent to kill
2. Intent to inflict great bodily injury
3. Reckless indifference to an unjustifiably high risk to human life or
4. Intent to commit a felony.

Front 174

Non-specific intent types of murder?

Back 174

All malice crimes
1) Intent to inflict serious bodily injury and ensuing death
2) Felony murder-unintentional murder that occurs:
-during the commission of or attempted commission of an inherently dangerous felony (BARK - burg, arson, rape, robbery, kidnapping)
3) depraved heart murder/involuntary manslaughter
-depraved heart = unintentional killing by reckless conduct
-involuntary manslaughter = unintentional killing by criminal negligent act

Front 175

Number and Unanimity of Jurors

Back 175

There is no constitutional requirement for 12 jurors, but there must be at least 6 to satisfy the right to a jury trial. The Supreme Court has upheld convictions that were less than unanimous, but probably wouldn't approve something like an 8-4 vote for conviction. 6-person juries must be unanimous.

Front 176

Omission as act

Back 176

Generally no duty to act: 5 exceptions
1) Duty arise by statute. I.e. taxes
2) Contract. I.e. nurse has legal duty to act
3) Relationship between the parties. I.e. parent child, spouses.
4) Voluntary assumption of care. Cant turn back from rescue.
5) Conduct created the peril

Front 177

Plain View

Back 177

The police may make a warrantless seizure when they are:
(1) legitimately on the premises;
(2) discover evidence, fruits or instrumentalities of a crime, or contraband;
(3) see such evidence in plain view; and
(4) it is immediately apparent that the item is evidence, fruits or instrumentalities, or contraband.

Front 178

Prisoner's Rights

Back 178

1 - Due Process: only if regulations impose "atypical and significant hardship" in relation to ordinary incidents of prison life. 2 - 4th Amend: no reasonable expectation of privacy in cells. 3 - Reasonable access to courts. 4 - 1st Amendment: incoming mail can be broadly regulated, but not outgoing. Federal statute prohibits states from interfering with religious practices, absent a compelling interest. 5 - Right to Adequate Medical Care: under the 8th Amendment.
6 - Misc: Person convicted of a felony may not vote, and this deprivation may constitutionally continue after term of sentence.

Front 179

Breaking requirement for burglary

Back 179

minimal; can be constructive (i.e. fraud, threat);

Front 180

Burden of proof on insanity

Back 180

Presumed sane; D must present some evidence

Front 181

Burning requirement for arson

Back 181

1. Must have a fire; water, smoke or explosions are enough
2. Damage required - scorching is insufficient - charring is sufficient; A material wasting of the fiber of the building.

Front 182

Arson

Back 182

The malicious burning of the dwelling house of another

-In a least likely answer, look for lack of malice
- DAMAGE REQUIRED greater than mere blackening--charring is sufficient

Front 183

Assault

Back 183

Assault is either (i) an attempt to commit a battery [specific intent crime] or (ii) the intentional creation--other than by mere words-- of a reasonable apprehension in the mind of the victim of imminent bodily harm [general intent crime].

Front 184

Battery

Back 184

Battery is an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching.

Front 185

Embezzlement

Back 185

-Fraudulent
-Conversion
-Of personal property
-Of another
-By a person in lawful possession of that property

--Disting from larceny--
-misappropriates property of which he's in lawful possession v. larceny where misappropriates property not in lawful posession

Front 186

Evanescent Evidence Exception

Back 186

police may seize without a warrant evidence likely to disappear before a warrant can be obtained

Front 187

Evidentiary Search and Seizure Analysis

Back 187

(1) Does the defendant have a 4th amendment right?
(2) Did the government have a valid warrant?
(3) If police didn't have a valid warrant, did they make a valid warrantless search and seizure?

Front 188

Exception to bar against retrial for lesser included offense or greater offense

Back 188

New evidence

Front 189

Exception to the no retrial for the "same offense" double jeopardy rule:

Back 189

If D is in jeopardy for battery, and the victim then dies … they CAN then try the Def for murder.

Front 190

Exception to the scope of the fruit of the poisonous tree doctrine

Back 190

Does not apply where police illegality is a violation of Miranda

Front 191

Exceptions permitting retrial

Back 191

1. Hung jury
2. Mistrial for manifest necessity
3. Retrial after successful appeal
4. Breach of plea bargaining

Front 192

Exceptions to the Duty to Retreat in retreat jurisdictions

Back 192

3 exceptions to the duty to retreat:
i. You don’t have to retreat out of your home
ii. You don’t have to retreat if you are the victim of a rape or robbery
iii. Police officers have no duty to retreat

Front 193

Exceptions to the warrant requirement

Back 193

1. Search incident to a lawful arrest
2. Automobile exception
3. Plain view
4. Consent
5. Stop and Frisk
6. Hot Pursuit, Evanescent evidence, and other emergencies

Front 194

Exclusions from liability

Back 194

1. Members of the protected class
2. Withdrawal (before crime is actually committed)

Front 195

Extortion distinguished from Robbery

Back 195

Extortion = future rather than imminent harm
- don't have to take anything from the person or his presence

Front 196

Failure of death penalty statute to provide D bopportunity to show mitigating factors is

Back 196

Unconstitutional

Front 197

Failure to act will result in criminal liability provided three requirements are satisfied

Back 197

1. Legal duty to act
2. Knowledge of facts giving rise to duty (law may impose duty to learn - i.e. lifeguard)
AND
3. Reasonably possible to perform

Front 198

False imprisonment

Back 198

-Unlawful confinement
-of a person
-without his valid consent

Front 199

False pretense

Back 199

1)D persuades owner of prop to convey title
2)On false pretense (intent to defraud)
3)Based on present or past fact
- Future promises not sufficient for liability
EXAM TIP: The conveyance of TITLE is the key.

Front 200

Federal criminal law is governed entirely by

Back 200

statute (i.e. there is no federal common law)

Front 201

Felony Murder - Limitations on Liability

Back 201

- Majority view is that a felon is not liable for the death of a co-felon caused by resistance from the victim or police
- states are split on whether felon is liable for the killing of an innocent party due to resistance by the victim or police

Front 202

Forgery -- definition

Back 202

Forgery consists of the making of a false writing or the altering of an existing writing with intent to defraud

EXAM TIP: Any writing that has potential legal significance is a potential subject of forgery.

Front 203

Formula for identifying strict liability crimes

Back 203

The crime concerns administrative, regulatory, or morality issues and no adverb in the statute

Front 204

Four common law mental states

Back 204

1) Specific intent - Qualify for defenses not avail for other crimes
2) Malice
(a) Murder & arson
3) General intent - Almost all crimes are general intent, i.e. rape and battery
4) Strict liability - Defenses that negate intent don’t apply

Front 205

General rule for when you do NOT have an REOP.

Back 205

You have no REOP when the government seizes something that is held out to the public.

Front 206

Generally there is NO MERGER EXCEPT for

Back 206

1. Solicitation or Attempt
AND
2. Lesser included offenses merge into greater offenses

Front 207

Government conduct (2)

Back 207

1. Publicly paid officers
2. Citizens acting at their direction

Front 208

Harmless Error Test

Back 208

If illegal evidence is admitted, a resulting conviction should be overturned on appeal unless government can show, beyond a reasonable doubt, that the error was harmless.

Denial of right to counsel at trial is NEVER harmless.

Front 209

Hastening an inevitable result

Back 209

Is a legal cause of that result

Front 210

How the FOPT chain can be broken:

Back 210

1. Show they had an INDEPENDENT SOURCE
2. Show INEVITABLE DISCOVERY
3. Intervening acts of FREE WILL on part of def (often tested)

Front 211

How to balance the reasonableness of searches into a persons body

Back 211

Balance society's need for the evidence against the magnitude of intrusion

Front 212

Homicide is murder if

Back 212

1) Intent to kill
2) Intent to do serious bodily harm
3) (depraved heart / highly reckless) intentional performance of an act with an unjustifiable high risk to human life
4) Felony murder

Front 213

Hot Pursuit

Back 213

Police in hot pursuit of a fleeing felon may make a warrantless search and seizure and may even pursue the suspect into a private dwelling.

Front 214

How can a suspect waive Miranda rights?

Back 214

Any waiver must be KNOWING, VOLUNTARY, & INTELLIGENT (Exam Tip: shoulder shrug doesn’t count as knowing/intelligent.)

Front 215

How can you use excluded evidence for impeachment purposes

Back 215

Evidence obtained illegally may still be used to impeach the defendant's credibility (but no other witness)

Front 216

How do you determine whether someone's in custody?

Back 216

Depends on whether their freedom of action is denied in a significant way based on objective circumstances.

Front 217

Imprisonment of Indigents for Non-Payment

Back 217

Where aggregate imprisonment exceeds the maximum fixed by statute and results directly from involuntary non-payment of a fine or court costs, there is an impermissible discrimination and violation of Equal Protection.

Front 218

Inchoate crimes and definitions

Back 218

1) solicitation: asks, encourages, requests another to commit a crime
-does not need 2 guilty minds
2) Attempt: specific intent, close proximity substantial step
3) Conspiracy: specific intent, agreement + overt act, 2 guilty minds

Front 219

Inconsistent Verdicts

Back 219

Verdicts where a defendant is found guilty, but a co-defendant is not on the same evidence are not reviewable.

Front 220

In-Court Identification

Back 220

The witness may make an in-court identification despite the unconstitutional pre-trial ID if the in-court ID has an independent source. The most common is an opportunity to observe at the time of the crime.

Front 221

Indigence and Recoupment of Cost

Back 221

The state generally provides counsel in close cases of indigence, but then may seek reimbursement from those convicted defendants who later become able to pay.

Front 222

Infancy defense

Back 222

Under 7 no criminal liability
Under 14 Rebuttable presumption of no criminal liability

Front 223

Informant's tip as basis for reasonable suspicion

Back 223

Must be accompanied by indicia of reliability

Front 224

Interrogation

Back 224

Any conduct where police officers know or should have known they might get a damaging statement from the person in custody.

This is not just ANY questioning.

Front 225

Intoxication Defense

Back 225

1. Voluntary intoxication - Includes addicts/alcoholics; a defense ONLY to specific intent crimes!
2. Involuntary intoxication - a form of insanity. This & insanity ARE defenses to ALL crimes, INCLUDING SL crimes

Front 226

Involuntary confessions

Back 226

Inadmissible for any purpose

Front 227

Involuntary intoxication

Back 227

1. Under duress
2. Without knowledge
OR
3. Pursuant to medical advice
treated as a mental illness - so apply the insanity test

Front 228

Involuntary Manslaughter - 2 types

Back 228

1. Criminal negligence - i.e driving while tired and killing someone
2. "unlawful act" - killing in the course of commission of a misdemeanor or a felony not listed for felony murder

Front 229

Irresistible Impulse test

Back 229

D unable to control his actions or conform conduct to the law (no self control and no free choice)

Front 230

Is a warrant required to arrest someone in a public place? In their own home?

Back 230

Arrest warrants are generally NOT required prior to arresting s/o in a public place.

BUT non-emergency arrest of indiv in own home requires arrest warrant.

Front 231

Is abandonment a defense to attempt?

Back 231

Not usually. Abandonment is NOT a defense to attempt if you have the specific intent to commit, say, a robbery, and you went beyond mere preparation (attempt).

Front 232

Is preventative detention Constitutional?

Back 232

Yes

Front 233

Is the judge required to accept a plea that has been agreed upon by prosecution and defense?

Back 233

No, he can reject it.

Front 234

Jeopardy attaches for bench trials when

Back 234

When the first witness is sworn

Front 235

Jeopardy attaches for jury trials when

Back 235

Empanelling and swearing in of the jury

Front 236

Jeopardy in civil proceedings

Back 236

Generally does NOT attach

Front 237

jury cross-section of society requirement

Back 237

Right to county jury pool fairly reflect cross sectn of society in that community
- No right to individual jury reflect cross sectn of community

Front 238

Kidnapping

Back 238

-Unlawful confinement
-involving either some movement of victim or
-concealment in a secret place

Front 239

Larceny by trick

Back 239

All of the elements of larceny...BUT: if the victim consents to the defendant’s taking possession of the property, but such consent was induced by a misrepresentation, the consent is not valid, and the offense is called larceny by trick.

Front 240

Larceny of lost or mislaid property

Back 240

Considered constructively in the owner's possession

Front 241

Larceny among joint owners or against abandoned property

Back 241

Cannot be committed

Front 242

Offenses against Habitation

Back 242

- Burglary
- Arson

Front 243

Offenses against Person include

Back 243

- Assault and Battery
- Homicide
- Voluntary Manslaughter
- Involuntary Manslaughter
- Statutory Rape

Front 244

Opening International Mail

Back 244

Permissible border searches include opening of international mail when postal authorities have reasonable cause to suspect that the mail contains contraband.

Front 245

Other 8th Amendment Prohibitions on the Death Penalty

Back 245

8th Amendment prohibits imposing the death sentence on the mentally retarded. Also prohibits the execution of those under 18 at the time the offense was committed.

Front 246

Overt Act for a conspiracy (majority rule)

Minority and common law rule grounded in the agreement

Back 246

An act will suffice, even mere preparation.

Front 247

Physical Act for criminal liability - Involuntary acts

Back 247

1. conduct that is not the product of the actor's determination
2. reflexive or convulsive acts (i.e. seizure)
3. acts performed while unconscious or asleep (i.e. sleepwalking but not driving while tired and falling asleep)

Front 248

Plain meaning rule

Back 248

when statutory language is plain and the meaning is clear, the court must give effect to it

Front 249

Police will NOT get the benefit of a good faith defense where

Back 249

1. Affidavit so lacking in probable cause
2. Warrant defective on its face
3. Police lied/misled magistrate
4. Magistrate has wholly abandoned his judicial role

Front 250

Preemptory challenge limited by Equal Protection clause how

Back 250

Forbids use of preemptory challenge to exclude based on race or gender

Front 251

Pretrial ID: presence of attny required

Back 251

D has right to counsel at any post-charge lineup or showup. No right to counsel at photo id. or taking of physical evidence i.e. handwriting, fingerprint.

Front 252

Pre-Trial Publicity

Back 252

Excessive pre-trial publicity that is prejudicial to the defendant may require a change of venue or retrial.

Front 253

Property Offenses

Back 253

1 - Larceny
2 - Embezzlement
3 - False Pretenses
4 - Robbery

Front 254

Public safety exception to Miranda

Back 254

If police interrogation is reasonably prompted by concern for public safety, questions obtained in violation of Miranda may be used in court (scope unclear, probably limited)

Front 255

Public school searches

Back 255

Do not need a warrant or probable cause; only reasonable grounds for the search

Front 256

Rape

Back 256

Rape is the unlawful carnal knowledge of a woman by a man, not her husband, without her effective consent. The slightest penetration is sufficient. Most states have rejected the "by a man not her husband" aspect.

Front 257

Reasonable suspicion defined

Back 257

Totality of the circumstances

Front 258

Rebuttable presumption of no criminal liability on infancy under age

Back 258

Fourteen

Front 259

Refusal to grant bail or the setting of excessive bail appealable when

Back 259

Immediately

Front 260

Remedy for an unconstitutional identification

Back 260

Exclusion of the in-court identification; severe and rarely granted

Front 261

Required Intent for Burglary

Back 261

Must intend to commit a felony at the time of entering - if the intent is formed after entry burglary is not committed.

Front 262

Required use of grand jury

Back 262

1) States not required to use grand jury - Tx uses Information signed by DA
2) Exclusionary rule doesn’t apply to GJ.
3) GJ proceedings secret, has no right to appear or offer witnesses

Front 263

Requirements for a valid search incident to arrest (SIA):

Back 263

1. The arrest MUST BE LAWFUL.
2. The search must be CONTEMPORANEOUS in time and place with the arrest
3. GEOGRAPHIC SCOPE limitation on what can be searched - PERSON and the areas they can reach to procure weapon/destroy evidence ("wing span")

Front 264

Right to effective assistance of counsel requires

Back 264

1) Deficient performance by counsel
2) But for such deficiency, result of proceeding would be different. Harmless error. Unless facts suggest not-guilt, probably no relief
3) ESSAY analyze the facts!

Front 265

Right to jury attaches

Back 265

If max authorized sentence exceeds 6 mos then right to jury

Front 266

Right to counsel applies to what parts of a criminal prosecution

Back 266

All critical stages - adversarial judicial proceedings

Front 267

Right to Counsel During Testimony

Back 267

Defendant has no right to consult with attorney while testifying, and may be sequestered from her attorney during short breaks (not overnight).

Front 268

Right to counsel is offense

Back 268

Specific

Front 269

Right to Appeal

Back 269

No federal constitutional right to an appeal.

Front 270

Retreat from deadly force

Back 270

Majority: no duty
Minority: only if could do so safely and never from home or while being robbed

Front 271

Right of the aggressor to use self-defense (2 requirements)

Back 271

1. Must remove from fight
AND
2. Must communicate such
OR
Upon sudden escalation from a minor fight to one of deadly force without a chance to withdraw

Front 272

Right to Support Services for Defense

Back 272

Where the defendant made a preliminary showing that he is likely to be able to use the insanity defense, the state must provide a psychiatrist for the preparation of the defense.

Front 273

Right to trial by jury limited to what kind/level of offense

Back 273

Serious offenses only - imprisonment for over 6 months

Front 274

Right to unbiased judge

Back 274

Violation of due process where judge shown to have
- Actual Malice
OR
- Financial Interest

Front 275

Right to Venire Selected from Representative Cross-Section of the Community

Back 275

The defendant only need to show underrepresentation of a distinct and numerically significant group in the venire to show his jury trial right violated. No right to proportional representation on all groups on his personal jury, though.

Front 276

Rights NOT Afforded in Juvenile Court Proceedings

Back 276

(1) Right to jury trial
(2) Pre-trial detention allowed when juvenile is a "serious risk" to society, as long as detention is for a strictly limited time before trial may be held.

Front 277

Rights That Must Be Afforded in Juvenile Court Proceedings

Back 277

(1) Written notice of charges
(2) Assistance of counsel
(3) Opportunity to confront and cross-examine witnesses
(4) Right not to testify
(5) Right to have "guilt" established by proof beyond a reasonable doubt

Front 278

Robbery

Back 278

1. A taking
2. Of personal property of another
3. From the other's person or presence
4. By force or threats of immediate death or physical injury
5. With the intent to permanently deprive him of it.

Front 279

Scope of 5th amendment protection against compelled testimony

Back 279

1) 5th amendment does not protect physical evidence, i.e. blood , hair, urine.
2) Does not apply to doc production

Front 280

Scope of Accomplice Liability

Back 280

1. The crime itself
2. All other foreseeable crimes

Front 281

Scope of conspirator liability

Back 281

Each conspirator liable for all crimes of co-conspirator if committed w/in scope of crime and foreseeable.

Front 282

Same offense for double jeopardy

Back 282

1) 2 crimes do not constitute the same offense if each crime requires proof of an additional element.

Front 283

Scope of protection against self incrimination limited to

Back 283

Testimonial evidence; physical evidence not protected

Front 284

Scope of search based on consent

Back 284

Limited to those areas to which a reasonable person under the circumstances would believe it extends

Front 285

Scope of search incident to a lawful arrest

Back 285

Without a warrant: Wingspan and protective sweep for accomplices (must be contemporaneous in time and place)

Front 286

Scope of search incident to incarceration

Back 286

an arrestee's personal belongings and an entire impounded vehicle

Front 287

Scope of search incident to Stop and Frisk

Back 287

Pat down of outer clothing

Front 288

Scope of search of Auto based on full probable cause

Back 288

Entire vehicle (including trunk) and any containers within the vehicle that may contain the suspected contraband

Front 289

Scope of search of auto incident to a properly stopped traffic violation

Back 289

- May remove driver from car and
- IF reasonable belief person is dangerous
- May search area limited to those in which a weapon may be placed or hidden

Front 290

Scope of search of auto incident to lawful arrest

Back 290

Passenger compartment (including containers) but NOT the trunk (must be contemporaneous in time and place)

Front 291

Search incident to incarceration

Back 291

Inventory search at station doesn't require a warrant. Ditto for an impounded vehicle.

Front 292

Search of Auto without warrant

Back 292

Probable cause it contains contraband (same level as needed to get a search warrant)

Front 293

Split in jurisdiction regarding overt act to a conspiracy

Back 293

Majority: agreement and overt act

Minority/Common law: agreement is enough

Front 294

Spontaneous statements and Miranda warnings

Back 294

Miranda warnings aren’t needed before a spontaneous statement (EXAM TIP: “blurted”)

Front 295

Separate Sovereigns and Double Jeopardy

Back 295

Constitutional prohibition on double jeopardy doesn't apply to trials by separate sovereigns. Person may be tried for same conduct by state and federal government, two states, but not a state and its municipalities.

Front 296

Solicitation

Back 296

Asking someone to commit a crime.
- The crime ends when you ask, if the person agrees then it is conspiracy and the crime of solicitation merges.

Front 297

Source of reasonable suspicion

Back 297

Need not arise from officer's personal knowledge

Front 298

Searches of persons found on searched premises

Back 298

Warrant founded on PC to search for contraband authorizes police to DETAIN occupants of the premises during a proper search, but NOT to SEARCH person found on the premises who were not named in the warrant.

Front 299

Searches on probationers

Back 299

Where statute provides that probationer consents Court has upheld search of person and home even where no reasonable suspicion

Front 300

Seizure based on Plain Feel

Back 300

Incident to a Terry stop, officer may seize any item reasonably believes is contraband based on its "plain feel"

Front 301

Seizure of Funds

Back 301

Right to counsel does not forbid the seizure of drug money and property obtained with drug money, even where defendant was going to use such money or property to pay an attorney.

Front 302

Self Defense - non-deadly force rule

Back 302

A victim may use non-deadly force in self-defense any time s/he reasonably believes that force is about to be used on him/her.

Front 303

Sentence after appeal (upon new trial)

Back 303

1) Def may not be given a harsher sent on retrial after successful appeal.
2) Usual course after successful appeal is remand for new trial.

Front 304

Standard for reviewing improperly obtained evidence to admit at trial

Back 304

Harmless error test

Front 305

Standard for the right to a "speedy trial"

Back 305

TOTC test.
Factors include:
- length of delay
- reason for delay
- whether D asserted the right
- prejudice to the D

Front 306

Standard of proof for prosecuting malice crimes

Back 306

D recklessly disregarded an obvious or high risk that the particular harmful result would occur (note: these crimes are not open to the specific intent defenses)

Front 307

Standard required for administrative searches (and two exceptions)

Back 307

- Need a showing of a general and neutral enforcement plan to secure warrant
- EXCEPTIONS: contaminated food and highly regulated industries

Front 308

State of mind for battery

Back 308

Intent not required; criminal negligence sufficient

Front 309

Statements obtained in violation of Miranda, but otherwise voluntary may be used how

Back 309

To impeach defendant's trial testimony

Front 310

Statutory Modification of Common Law Classifications

Back 310

All murders are 2nd degree unless the prosecution proves one of the following:
1. Deliberate and premeditated
2. First degree felony murder
3. other ways as the statue may indicate - such as lying in wait, poison or torture

Front 311

Strict liability statutes

Back 311

If the crime is administrative, regulatory, or a moral crime. And no state of mind on the face, then statute is strict liability offense.

Front 312

Substantive ways to attack a pre-trial identification:

Back 312

1. Denial of right to counsel
2. Denial of due process

Front 313

Successful conspirators can be convicted of

Back 313

1. The criminal conspiracy
AND
2. The completed crime

Front 314

Technologically enhances search of homes

Back 314

Issue: is the technology in question in general public use

Front 315

Test for whether someone has a fourth amendment right in a given situation:

Back 315

1. Was the search GOVERNMENT CONDUCT? (Private action does not implicate the 4th Amendment.)
2. Did the person have an REOP? (Did they have standing to object to the S/S?)

Front 316

The "situs" of the crime is defined by

Back 316

1. where the proscribed act (or omission) takes place
OR
2. the place of harmful result

Front 317

The levels of mens rea?

Back 317

1) Purposely: conscious object to commit crime
2) Knowingly
3) Recklessly: knows of a substantial/unjustifiable risk and disregards
4) Negligently: fails to be aware of a substantial/unjust risk

Front 318

The threat of imminent death or great bodily harm (2 requirements)

Back 318

1. D must reasonably believe the threat exists
AND
2. Threat must be a present one

Front 319

Things held out to the public

Back 319

1. Sound of your voice
2. Handwriting
3. Paint on car
4. Smell of luggage
5. Account records at bank
6. Car's movement
7. Anything visible in open fields
8. Anything visible from a flyover
9. Garbage set out on curb for collection

Front 320

To detain for a Stop and Frisk police must have

Back 320

- Stop: Reasonable suspicion supported by articulable facts of criminal activity
- Frisk: reasonable suspicion detainee is armed and dangerous

Front 321

To what is voluntary intoxication a defense?

Back 321

The specific intent crimes + inchoate crimes
-1st degree murder, assault, larceny, robbery, burglary, forgery, false pretenses, embezzlement

Front 322

Transferred Intent

Back 322

EX - A shoots at B, intending to kill him but hits C instead. Intent to kill B is transferred to C and A is guilty of murdering C. Also, attempted murder of B.

BUT: If C is only wounded then A is not guilty of the attempted murder of C.

Front 323

Trier of fact to determine aggravating factors justifying imposition of death must be

Back 323

Jury (not a judge)

Front 324

Two elements to Entrapment

Back 324

1. Criminal design originated with law enforcement
AND
2. Defendant must NOT have been PREDISPOSED to commit the crime
(vary narrowly interpreted)

Front 325

Two malice crimes

Back 325

1. Common law murder
2. Arson

Front 326

Two provisions of the Bill of Rights not held binding on the states

Back 326

1. Right to indictment by a grand jury
2. Prohibition against excessive bail

Front 327

Unanimity of jury

Back 327

No right to a unanimous verdict (9-3 okay)

Front 328

Under enterprise liability, corporations may be held liable under the following conditions

Back 328

1. Acts within scope of office (look for agent acting on behalf of corp.)
OR
2. Superior Agent rule (agents sufficiently high to presume acts reflect corp. policy)

Front 329

Under the M'Naghten Rule a D is entitled to an acquittal if

Back 329

Lacked the ability at the time to know the wrongfulness and understand the nature and quality of his actions

Front 330

Unreliable ear exception to wiretapping/eavesdropping warrant rule

Back 330

You take the risk that person you talk to will consent to government monitoring convo or will be wired themselves

Front 331

Use of informers to establish probable cause - sufficiency established by

Back 331

Totality of the circumstances; reliability, credibility NOT a prerequisite

Front 332

Use of informers/informants -- ok or not for warrant purposes? Rule?

Back 332

Police don’t have to rely on own observations to get warrants; USE OF INFORMERS IS OK.

Rule: You can have a valid warrant based in part on an informer’s tip, even though the informer is anonymous.

Front 333

Use of Non-deadly force in self-defense

Back 333

One who is w/o fault may use non-deadly force in self-defense. There is no duty to retreat.

Front 334

Use of Peremptory Challenges for Racial and Gender Based Discrimination

Back 334

Rule: It is unconstitutional for prosecutor/defense to exercise peremptory challenges to exclude prospective jurors on account of race or gender.

Front 335

Use of preemptory challenge on the basis of race or gender

Back 335

Unconstitutional for either side to exercise preemptory to exclude on account of race or gender

Front 336

Uttering - definition

Back 336

Uttering consists of offering as genuine an instrument that may be the subject of forgery, and is false, with intent to defraud.

Front 337

Validity of imprecise warrant based on precise affidavit

Back 337

Not valid; Warrant must be precise on its face

Front 338

Validity of pretextual stops

Back 338

Valid to stop where traffic law violated even where ultimate motive is to investigate whether some other law violated

Front 339

Venire must be selected from

Back 339

A representative cross-section of the community

Front 340

Voluntariness of confessions determined in light of

Back 340

Totality of circumstances
If an involuntary confession is entered into evidence, the harmless error test applies.

Front 341

Voluntary assumption of care

Back 341

Battery is an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching.

Front 342

What are the key words for the various tests for insanity defense?

Back 342

1 - M'Naghten - D doesn't know right from wrong.
2 - Irresistible impulse - an impulse the D cannot resist;
3 - Durham-but for the mental illness, the D would not have done the act.
4 - ALI or MPC -- combination of M'Nagten and irresistible impulse.

Front 343

Warrant requirement for arrests

Back 343

In public, generally not required, even if there is time to get a warrant

Front 344

Was there a valid warrantless search and seizure?

Back 344

(1) Consent?
(2) Search Incident to lawful arrest?
(3) Plain View?
(4) Stop and Frisk?
(5) "Automobile" exception?
(6) Hot Pursuit?
(7) Evanescent Evidence?
(8) Exigent circumstances/emergency?

Front 345

What a judge has to tell the defendant ON THE RECORD if the defendant pleads guilty:

Back 345

1. The nature of the charge
2. The max authorized sentence and any mandatory minimum sentence
3. Tell the def that they have a right to plead not guilty and demand a trial
4. Tell def that by pleading guilty, they are waiving the right to trial

Front 346

What are the Constitutional requirements for number and unanimity of jurors?

Back 346

Minimum # of jurors = 6. If use 6, they have to be unanimous.
No federally-protected right to a unanimous verdict of 12-person jury. Votes of 10-2 and 9-3 have been upheld by SC.

Front 347

What constitutes a seizure of the person

Back 347

When a reasonable person would believe that he is not free to leave (requires a physical application of force or a submission to show of force)

Front 348

What constitutes government conduct for purposes of a search/seizure?

Back 348

1. Publicly paid police – on or off duty
2. Any private indiv acting at the direction of the public police
3. privately paid police are NOT government conduct UNLESS they are deputized with the power to arrest you

Front 349

What constitutes interrogation?

Back 349

Words or conduct by police that they should know would likely elicit a response from the defendant. Routine booking questions are NOT interrogation.

Front 350

What Constitutional Rights are not binding on the states?

Back 350

Right to Indictment by grand jury for capital and infamous crimes.

Right against excessive bail (unsure - most states have their own provisions).

Front 351

What crimes "merge"?

Back 351

Solicitation + completed crime
Attempt + completed crime
But not conspiracy + completed crime.

Front 352

What does the Def have to show to prove a violation of DP based on the prosecutor's duty to disclose exculpatory information?

Back 352

1. That the evidence is favorable to him b/c it impeaches or is exculpatory

2. prejudice has resulted (eg, the outcome of the case would likely have been different had the evidence been presented)

Front 353

What elements are required in a crime?

Back 353

1) Actus reus
2) Mens rea
3) Concurrence between the two
4) Causal connection
5) Harm

Front 354

What happens if a defendant breaches a plea bargain agreement?

Back 354

Rule: When a def. breaches a plea bargain agreement, the plea and sentence are vacated, and original charges can be reinstated.

Front 355

What is aiding and abetting?

Back 355

GR: one who aids, counsels, commands, or encourages another in the commission of a crime & is present at commission, generally guilty of aiding and abetting

EX: members the statute sought to protect generally exempt from liability

Front 356

What is the effect of the Miranda violation?

Back 356

The evidence obtained in violation of Miranda is inadmissible at trial (exclusionary rule). The statements may, however, be used to impeach defendant's trail testimony, but not as evidence of guilt.

Front 357

What rights does the defendant have in grand jury proceedings?

Back 357

Proceedings are secret.

Def has no right to appear, no right to send witnesses, and no right to counsel present. The defendant must appear if called, but CAN refuse to answer specific questions on the grounds of self-incrimination.

Front 358

What will break the causal chain to nullify the fruit of the poisonous tree doctrine

Back 358

1. Independent source
2. Intervening act of free will by the D
OR
3. Inevitable discovery

Front 359

When a defendant will NOT be allowed to withdraw a guilty pleas:

Back 359

1. it was an “intelligent choice”
2. it was a choice made from among alternatives
3. it was on advice of a competent attorney

Front 360

When are Miranda warnings required?

Back 360

They are required prior to interrogation by police (if in custody and accused of a crime). They are only necessary if the defendant knows he's being interrogated by a government agent.

Front 361

What kind of defect is always sufficient to quash a grand jury indictment?

Back 361

Exclusion of members of a minority group

Front 362

What kind of sentence can be given a defendant at a retrial that occurs after a successful appeal?

Back 362

Rule: def may not be given a harsher sentence on retrial after a successful appeal

(Why: Avoid chilling the exercise of the right to appeal.)

Front 363

What kind of statements does Miranda apply to?

Back 363

Inculpatory AND exculpatory statements.

Front 364

When can station house detention occur?

Back 364

Police need PC to arrest you in order to compel you to come to the police station for either fingerprinting OR interrogation

Front 365

When does 6th Amendment Right to Counsel exist

Back 365

At any pot-charge lineup or showup; NOT for a photo identification

Front 366

When does a pre-trial ID technique raise the right to counsel?

Back 366

Post-charge line-ups & show-ups give rise to right to counsel

There is NO right to counsel when victims/witnesses are shown photographs!

Front 367

When does a pre-trial ID technique violate due process?

Back 367

When a lineup is:
1. unnecessarily suggestive, &
2. substantially likely to produce a misidentification

Front 368

When does a state have jurisdiction over a crime?

Back 368

if the state is the legal situs of the crime

Front 369

When does double jeopardy attach at a jury trial? at a bench trial?

Back 369

Attaches at a jury trial when the jury is sworn

Attaches at a judge trial when the first witness is sworn

Front 370

When is duress a defense to a crime?

Back 370

Duress is a defense to a crime other than a homicide that the D reasonably believed that another person would imminently inflict death or great bodily harm upon him or a member of his family if he did not commit the crime.

Front 371

When is entrapment a defense?

Back 371

Entrapment exists only if 1. the criminal design originated w/ law enforcement officers and 2. the Defendant was not predisposed to commit the crime prior to contact by the government.

Front 372

When does the right to a jury trial attach?

Back 372

Whenever D is tried for an offense for which the maximum authorized sentence EXCEEDS 6 months.

EXAM TIP: “up to” or “including” 6 months creates NO Constitutional right to a jury trial.

Front 373

When does the right to a speedy trial attach?

Back 373

When the Defendant has been ARRESTED or CHARGED. If neither of these has happened, then the right does NOT attach.

Front 374

When is a defendant liable for co-conspirators' crimes?

Back 374

A conspirator may be held liable for crimes committed by other conspirators if the crimes were committed in furtherance of the objectives of the conspiracy and were foreseeable.

Front 375

When is a Miranda warning required?

Back 375

When someone is
(1) in CUSTODY and
(2) there is INTERROGATION

Front 376

Withdrawal as a defense to conspiracy

Back 376

Not a Defense: the crime is complete as soon as the agreement is made and the overt act taken

Front 377

Identity of informer

Back 377

May remain anonymous

Front 378

If a juvenile court adjudicates a child a delinquent, can he be tried as an adult for the same behavior?

Back 378

No - jeopardy has attached.

Front 379

What is the remedy for an Unconstitutional identification?

Back 379

Exclusion of the in-court identification - but this is rarely granted.

Front 380

What is the type of strict liability offenses?

Back 380

Strict liability offenses are administrative, regulatory, or deal with morality. Typically, a statute with no adverbs.

Example: speeding, statutory rape, selling liquor to minors, and bigamy (some jxd)

Front 381

When does jeopardy attach?

Back 381

Jeopardy attaches in a jury trial at the empaneling and swearing of a jury. In a bench trial, when the first witness is sworn. In juvenile proceedings, when the proceeding is commenced. Jeopardy doesn't attach in civil proceedings.

Front 382

When/what is an accomplice liable for?
Who is an accomplice?

Back 382

A person actively involved in committing a crime is liable for the crime itself and all other foreseeable crimes. (can be liable for the crimes of his partner)

An accomplice is someone who is actively aiding, abetting , or counseling a crime.

Front 383

Where solicitor proceeds far enough to be liable for attempt, what happens?

Back 383

1) Solicitation merges with attempt

Front 384

When is the right to an unbiased judge violated?

Back 384

When the judge has either
(1) a financial interest in outcome of case OR
(2) actual malice against def.
Exam Tip: It is NOT when a judge warns a def that if show up in court again, they'll get the max

Front 385

Who has authority to consent to a search of a home?

Back 385

Any person with apparent equal right to use or occupy the property.

Where 2 or more people have equal right to use a piece of property, any ONE of them can consent to its warrantless search.

Front 386

Who may consent

Back 386

Any person with an apparent equal right to use or occupy the property

Front 387

When does the right to a jury trial attach for criminal contempt proceedings?

Back 387

If the SUM of the sentences for criminal contempt exceeds six months, the alleged contemptor has the right to a jury trial.

(There is no right to jury trial for civil contempt proceedings)

Front 388

Voluntary intoxication is no defense to

Back 388

Crimes requiring malice, recklessness or negligence, or to strict liability crimes

Front 389

Immigration Enforcement Actions

Back 389

Immigration Services Division may do a "factory survey" of the workforce in a factory to determine citizenship of each employee. Moreover, even illegally obtained evidence may be used in a civil deportation hearing.

Front 390

Home arrest warrant requirement

Back 390

Must have an arrest warrant to effect a non-emergency arrest in a home

Front 391

Homicide - 3 classifications at Common Law

Back 391

1. Justifiable
2. Excusable
3. Criminal

Front 392

Legal duty to act can arise from the following sources

Back 392

1. Statute (file taxes)
2. Contract obligation (lifeguard)
3. Certain relationships(parent-child/spouse)

Front 393

Legitimate expectation of privacy where (3); (automatically confers standing)

Back 393

1. Owned or had a right to possess place searched
2. Place searched was in fact person's home
3. Overnight guest

Front 394

Liability of Co-conspirator for crimes committed by other conspirators

Back 394

Two requirements
1. crimes were committed in furtherance of the conspiracy
2. crimes were foreseeable

Front 395

Liability of one conspirator for crimes committed by other conspirators - two requirements

Back 395

1. Crimes were committed in furtherance of the conspiracy AND
2. They were foreseeable

Front 396

Limitations on the Exclusionary Rule (i.e. not applicable to what)

Back 396

1. Grand Juries
2. Civil Proceedings
3. Internal Agency Rules
4. Parole Revocation proceedings
5. Good faith reliance
6. Defective search warrant
7. Clerical error

Front 397

Limitation on scope of Miranda warnings

Back 397

Inapplicable to grand jury hearing

Front 398

List of things in which you do NOT have an REOP:

Back 398

- Sound of your voice
- Style of your handwriting
- Paint on the outside of your car
- Account records held by a bank
- Monitoring location of your car on public street or in your driveway
- Anything that can be seen across the open fields

Front 399

Malice

Back 399

1. Intent to kill
2. Intent to inflict great bodily injury
3. Reckless disregard to an unjustifiably high risk to human life
OR
4. Intent to commit a felony

Front 400

Malice aforethought - definition

Back 400

Malice aforethought exists if the defendant has ONE of the following:
1.intent to kill,
2.intent to inflict great bodily injury
3.awareness of an unjustifiably high risk to human life
4.intent to commit a felony

Front 401

Malice crimes

Back 401

Common law murder and arson
D recklessly disregarded an obvious or high risk that the particular harmful result would occur

Front 402

Manslaughter.

Back 402

Voluntary: some form of passion, provoked killing
Involuntary: criminally negligent killing or unlawful act (misdemeanor murder, unenumerated felony - not BARK)

Front 403

May have standing where (2)

Back 403

1. Ownership of property seized
2. Present at search

Front 404

May limit liability for subsequent acts of other members of the conspiracy if

Back 404

1. Perform an affirmative act notifying ALL members
AND
2. Must be done in time for them to abandon their plans

Front 405

May the prosecutor comment on Defendant's failure to produce a witness supporting the alibi?

Back 405

No - and he may not comment on the failure to present an alibi itself.

Front 406

May use deadly force if (3 things)

Back 406

1. Without fault
2. Confronted with unlawful force
AND
3. Threatened with imminent death or great bodily harm

Front 407

MERGER

Back 407

Generally no merger at common law. solicitation merges into the underlying offense. Conspiracy does not.

Never merge crimes w different V

Front 408

Minimum number of jurors required

Back 408

Six (must be unanimous)

Front 409

Mistake of fact defense

Back 409

Depends on mental state of the crime charged

1 - Specific intent: Any Mistake of Fact (reasonable or unreasonable)
2 - Malice & general intent: Reasonable Mistakes Only
3 - Strict Liability: Never

Front 410

Mistake of Facts as a defense to malice or a general intent crime

Back 410

Reasonable mistake only

Front 411

Mistaken offense for arrest

Back 411

Will not invalidate so long as officer had some other grounds on which to base probably cause

Front 412

M'Naghten Rule for Insanity

Back 412

Disease of the mind that caused a defect such that the D lacked the ability at the time of the crime to either:
1. know the wrongfulness of his actions or
2. understand the nature and quality of his actions

Front 413

MPC insanity

Back 413

Def lacked ability to conform conduct to requirements of law

Front 414

Need for Miranda warnings triggered by

Back 414

1. Custody
AND
2. Interrogation

Front 415

Neutral and detached magistrate requirement

Back 415

- State attorney general NOT
- Clerk of court may issue for violations of city ordinances

Front 416

No criminal liability based on infancy under age

Back 416

Seven

Front 417

Non-deadly force self defense requires

Back 417

Requires D reasonably believe force is about to be used on them.

Front 418

Non-defenses to solicitation
- Potential defense

Back 418

- Impossibility and withdrawal
- Exemption from intended crime (minor female not guilty of soliciting statutory rape)

Front 419

Not a violation of Double Jeopardy where statute provides

Back 419

Multiple, separate punishments for single act

Front 420

Requirements for a valid, warrantless consent search:

Back 420

A warrantless search is valid if the police have VOLUNTARY and INTELLIGENT consent.

Knowledge of the right not to consent is not a prerequisite.

Front 421

Waiver of Miranda warnings

Back 421

Must be knowing, voluntary, and intelligent; look at totality of circumstances; will not be presumed from silence

Front 422

Waiver of Privilege Against Compelled Self-Incrimination

Back 422

Criminal defendant, by taking the stand, waives privilege to extent necessary to subject him to any cross-examination. Witness waives privilege only if he discloses incriminating information.

Front 423

Warrant authorizing a wiretap must meet the following requirements (6)

Back 423

1. Probable cause of a specific crime
2. Suspected persons to be heard are specifically named
3. Describes with particularity
4. Limited to short duration
5. Provisions for termination
6. Return to court to show conservations intercepted

Front 424

What is the remedy for a pre-trial ID technique that is found to have violated DP or right to counsel? Can the state defeat this remedy?

Back 424

Exclusion of the in-court identification.

The state can defeat the claim for a remedy by showing an *independent source for the in-court ID.* (Independent of the lineup - eg, ample oppty to look at person at the time of the crime.)

Front 425

If a mock robbery results in injuries, what crime was committed?
(a) robbery
(b) larceny
(c) assault
(d) no crime
(e) robbery, larceny, and assault

Back 425

(d) No crime because the mock robbery aspect negates all intent
-Robbery = larceny + assault, so couldn't be robbery + either of them

Front 426

If the guilty plea is entered in response to Prosecutor's threat to charge the defendant with a more serious crime, is the plea involuntary?

Back 426

No, not without other evidence of involuntariness. There is no prosecutorial vindictiveness here.

Front 427

If you aim to shoot A, and hit B instead (by accident), what doctrine covers the killing of B? What crimes can you be charged with?

Back 427

Transferred intent.

The intent to kill one person is transferred to govern the death of the person you actually killed.

Murder and attempted murder. (** There are always 2 crimes in a transferred intent scenario. No merger b/c there are 2 victims.)