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131 Cards in this Set

  • Front
  • Back
Elements of Crimes
Physical Act
Mental State

Criminal Defenses

Self-Defense, Duress, Entrapment, necessity , mistake
Intoxication, Infancy, Insanity

Jurisdiction - Criminal Law
Any place where act that was part of the crime took place OR the result took place
Burden of Proof
Elements = P Beyond a Reasonable Doubt

Defenses = Prosecution (after D raises) Beyond a Reasonable Doubt
- Exception = insanity defense on D
Physical Act Requirement
Voluntary bodily movement (i.e. not a convulsion, unconscious, reflex, etc.)
Omissions Rule - Criminal Liability for Failure to Act
DKA - Duty, Knowledge, Ability
- Legal Duty (SCRAP)
- Statute (tax returns, abuse)
- Contract
- Relationship
- Assumption of duty/rescue
- Created the Peril

Physical Act Requirement - Possession

M/h control for a period of time such that there is opportunity to terminate possession
Constructive Possession = close enough to exercise dominion and control

Common Law Mental States
Specific Intent = desire to do the act and to achieve a specific result

General Intent = intent inferred from the doing of the act

Malice = intentionally or reckless disregard of obvious known risk

Strict Liability = no mental state
Specific Intent Crimes
False Pretenses
First Degree Murder
General Intent Crimes
False Imprisonment
Forcible Rape
Malice Crimes
Strict Liability Crimes
Public Welfare Offenses
Statutory Rape
CL Defense - Mistake of Law
Never a defense u/l statute makes knowledge of the law an element of the crime
CL Defense - Mistake of Fact
Specific Intent = any mistake is a defense
General Intent = only reasonable mistake is a defense
Malice = only reasonable mistake is a defense
SL = never a defense
Model Penal Code - Mental States
Purposely = D's conscious objective to accomplish a particular result

Knowingly = D is aware of his acts

Recklessly = D was aware of substantial and unjustifiable risk AND disregarded it consciously

Negligently = D s/h/k of substantial and unjustifiable risk

Strict Liability = no mental state
MPC Defense - Mistake of Fact and Law
Mistake of Law NEVER a defense

Mistakes of Fact
- Purpose, Knowing, Reckless = any mistake is a defense
- Negligent = only reasonable mistake is a defense
Crimes - Causation Requirement
Actual and Proximate Causation
Actual Causation
But For Causation = bad result w/n/h happened "but for" D's conduct

Includes accelerating causes!

Proximate Causation

D is a PC if the bad result is a natural and probable consequence of his conduct (includes Vs w/ pre-existing weaknesses and intervening things like medical malpractice)
- Foreseeability
- Fairness
Exception = unforeseeable intervening causes (lightning strike)

Concurrence Requirement
D M/h mental state at the same time she engages in the act
Common Law Battery
General Intent

Unlawful application of force to another resulting in bodily injury OR offensive touching
Common Law Assault
Specific Intent

Intentional creation by more than mere words of a reasonable fear in V's mind of imminent bodily harm (fake punch!)
Statutory Aggravated Assault and Battery
Requires use of a weapon, that V is a child, elderly, disabled or other such vulnerable person, OR intent is to commit robbery or rape.
Homicide - Year and a Day Rule
CL = death M/occur w/in 1y +1d of the homicidal act

MPC (majority) = death c/occur at any time
Common Law Murder
Malice Mental State

Causing the death of another person (not unborn fetuses) w/ Malice Aforethought
- Intent to kill
- Intent to inflict great bodily harm
- Extreme recklessness / depraved heart
- Felony Murder
Deadly Weapon Rule
Use of a deadly weapon creates inference of intent to kill (malice aforethought)
Transferred Intent
If D intends to harm V1 but accidentally harms V2, her intent transfers
- Does NOT apply to attempt - only completed crimes
First and Second Degree Murder
Any killing committed w/ premeditation AND deliberation (cool, calm)

Second Degree = all other murders except FM
Voluntary Manslaughter
Intentional killing committed in the heat of passion after adequate provocation (no cooling off, would arouse sudden and intense passion in the mind of an ordinary person)

Adequate Provocation = serious assault or battery, finding spouse in bed w/ another... M/b more than words!
Involuntary Manslaughter
Killing committed w/ criminal negligence OR during a non-felony crime
CL Felony Murder
Any killing during the commission of or attempt to commit a felony
- First Degree = during rape, arson, kidnapping
- Second Degree = any other felony
CL Felony Murder - Limitations
D M/b guilty of underlying Felony

Felony M/b inherently dangerous, separate from the killing itself (i.e. c/n include aggravated battery)

Killing M/b during felony or immediate flight therefrom, and in furtherance of it

Death M/b foreseeable

V c/n/b a co-felon!
CL Felony Murder - Vicarious Liability
All co-felons guilty of a death caused by one co-felon, even if a bystander did the actual killing
MPC Murder
Intent to kill (premeditation and deliberation unnecessary)
Extreme Recklessness
Felony Murder
MPC Felony Murder
Limited to BRAKES
- Burglary
- Robbery
- Arson
- Kidnapping
- Escape from custody
- Sexual Assault
MPC Manslaughter
Intentional = committed under influence of reasonable extreme emotional disturbance

Unintentional = reckless killing where D is aware of AND consciously disregards substantial and unjustifiable risk of death
MPC Criminally Negligent Homicide
Negligence Mental State

D s/h/k of substantial and unjustifiable risk of death
False Imprisonment
General Intent

Unlawful confinement of a person w/o her consent
General Intent

False imprisonment involving either moving V or concealing her in a secret place
Aggravated Kidnapping
Generally requires purpose to collect ransom, commit robbery or rape, OR where V is a child
Forcible Rape
General Intent

Sex w/o V's consent accomplished by force, threat of force, OR while V is unconscious
Statutory Rape
Strict Liability

Sex w/ someone under the age of consent

MPC/Minority = reasonable mistake as to age c/b a defense
CL Larceny
Trespassory taking and carrying away of another's personal property w/ intent to permanently deprive of rightful possession

C/n/b guilty of larceny if it's valid possession or if D erroneously thought the property was his
CL Larceny - Continuing Trespass
If D wrongfully takes PP w/o intent to steal but later forms intent to steal, D w/b guilty of larceny.
CL Embezzlement
Specific Intent

Conversion of another's PP by D already in lawful possession w/ intent to defraud
- possession requires authority to exercise some discretion over the property
- guilty u/l D intends to return property in exact form
CL False Pretenses
Specific Intent

Obtaining title to another's PP by intentional false statement w/ intent to defraud

D gets title here! C/n involve future promise.
CL Larceny by Trick
D obtains only possession as result of intentional false statement
CL Robbery
Specific Intent

Larceny from another's person or presence (V's vicinity or house while she's in it) by force or threat of immediate injury
Statutory Consolidation of Theft Crimes
MPC and most states = consolidate larceny, embezzlement, false pretense, larceny by trick into Theft/Larceny w/ grading as to serious of the offense (due to value of property stolen)
Receipt/Possession of Stolen Property
Knowledge Mental State

Receiving possession of stolen property w/ knowledge that it was stolen
Specific Intent

Making or altering a writing so that it is false w/ intent to defraud
Specific Intent

Offering as genuine a forged instrument w/ intent to defraud
Malicious Mischief
Malice Mental State

Destroying or damaging someone else's property w/ malice
CL Burglary
Breaking and entering another's dwelling at night w/ intent to commit a felony inside (specific intent)
CL Arson
Malicious burning of a building - more than just scorching
Accomplice Liability
Specific Intent

Aids or Encourages principal w/ intent that crime be committed

Accomplice w/b guilty of all crimes she aided or encouraged AND other foreseeable crimes committed along w/ the aided crime

Remains guilty even if principal is not prosecuted

Does NOT include those w/ mere presence, mere knowledge, or a member of a protected class
Accomplices - Withdrawal
Encourager M/discourage the crime before it is committed

Aider M/take affirmative steps to neutralize assistance or prevent the crime
CL Accessory After the Fact
Requires D to:
- Help principal who has committed a felony
- W/knowledge of that the crime h/b committed AND
- W/intent to help principal avoid arrest or conviction
Specific Intent

Asking someone to commit a crime w/ intent that crime be committed

Completion unnecessary - person d/n/h to agree or commit crime
Specific Intent

Agreement b/t 2+ people to commit a crime PLUS overt act in furtherance thereof (i.e. act of preparation)
Conspiracy - One Person?
CL = no one person conspiracies

MPC = allows D to be guilty of conspiracy even if all other parties pretended to agree or were acquitted
Conspiracy - Vicarious Liability
D is liable for crimes committed by co-conspirators which were in furtherance of the conspiracy's objective AND foreseeable
CL = Dangerous Proximity to commission of the crime (needs D and V in same place)

MPC/Majority = conduct that is a Substantial Step towards crime AND strongly corroborative of criminal purpose

CANNOT attempt unintentional crimes (reckless, negligent, FM)
Attempt - Impossibility Defense
Factual Impossibility = not a defense to attempt

Legal Impossibility = defense to attempt (what D was trying to do was not illegal)
CL = not a defense, but once D w/draws from conspiracy, she is not liable for crimes committed after he left

MPC = defense only if D voluntarily and completely renounced solicitation AND it's based on a change of heart - not fear of being caught
Lesser Included Offenses merge w/ the greater offense (i.e larceny merges w/ robbery, but not burglary)

Conspiracy never merges, but Solicitation and Attempt do.
Insanity Defense
D M/h mental disease or defect

M'Naughten = d/n/k act was wrong OR d/n understand nature of act

Irresistible Impulse = unable to control actions OR conform conduct to the law

Durham Test = product of mental illness

MPC = D lacked substantial capacity to appreciate the criminality of his conduct OR conform conduct to the law
Insanity vs. Incompetence
Insanity = at time of crime (not guilty)

Incompetence = at time of trial (w/b postponed until D is competent)
Intoxication Defense
Involuntary = defense to any crime, apply insanity tests, but it MUST be completely involuntary

Voluntary = defense to Specific Intent crimes, provided intoxication prevented D from forming necessary intent
- NEVER a defense to malice, GI or SL crimes
Common Law Infancy Defense
Under 7 - c/n/b prosecuted

Under 14 = rebuttable presumption against prosecution

14 or Older = prosecution allowed
MPC Infancy Defense
Under 16 = c/n criminally prosecute - go to juvenile proceedings in family court

16 or 17 = criminal prosecution allowed if juvenile court agrees
Non-Deadly c/b used where it is reasonably necessary to protect against an immediate use of unlawful force

Deadly = m/b used if D faces imminent threat of death or serious injury
- Never for defending property u/l inside home to prevent burglary
- To protect 3Ps if just as D w/use to protect herself
- Note Aggressor and Retreat Rules
Self-Defense - Aggressor Rule
D m/n use deadly force where she is the first aggressor

D c/REGAIN right to use deadly force if she w/draws AND communicates that to the other person OR V escalates into a deadly fight
Self-Defense - Retreat Rule
Majority = retreat not required

CL = retreat required u/l D is at home, c/n retreat in complete safety OR defending against BRAK.
Self-Defense - Resisting Arrest
If D knows or reasonably s/h/k that person performing arrest is a cop

Majority = unlawful arrest allows D to use non-deadly force to resist

MPC = no force, even if unlawful arrest, unless arresting officer uses excessive force
Duress Defense
If D was forced to commit crime under threat of imminent death or serious injury
- NOT a defense to homicide
Entrapment Defense
Where gov't unfairly tempted D to commit crime
- Criminal design M/h originated w/ gov't AND
- D was not predisposed to commit the crime
Fourth Amendment Search and Seizure Analysis
Gov't conduct?
Did S & S invade an individual's reasonable expectation of privacy?
Was search authorized by a valid warrant?
Does officer's GF save a defective warrant?
Was search warrant properly executed?
Is search valid under warrant exceptions? (ESCAPIST)
Can P use E obtained in an un-USC S & S against D in court?
Is any of P's E Fruit of the Poisonous Tree - and if so, is it admissible?
S & S - Government Conduct
Publicly paid police on or off duty
Private citizens acting at police direction
Privately paid police if deputized w/ power to arrest
Reasonable Expectation of Privacy - Protected Areas
Reasonable Expectation of Privacy - Unprotected Items

Paint Scrapes from outside car
Account records held by banks
Garbage at the curb
Open Fields
Reasonable Expectation of Privacy - Standing to Challenge
M/invade individual's personal privacy rights, not a 3P's.

Owners of premises always have standing
Residents of premises always
Overnight guests always w/r/t areas they c/b expected to access
Individuals Using Residence for Only Business Purposes = never
Passengers in Cars = only if has REP in item searched or seized
Owners of seized property = if REP in the area from which the property was taken
Warrant Requirements
Probable Cause = fair probability that contraband or some E of crime w/b found in the area searched
- Informant Tips c/b relied - sufficiency relies on police corroboration to allow magistrate to make "common sense practical determination"

Particularity = M/specify:
- Place to be searched and items to be seized

Any affidavit descriptions M/b incorporated explicitly into warrant
Invalid Warrants - Saved by Officer's GF
GF overcomes USC defects in PC and particularity

- affidavit is egregiously lacking PC such that no reasonable officer w/h relied on it
- application so egregiously lacking...
- Officer or DA misled magistrate
- Magistrate was biased - wholly abandoned neutrality
Search Warrants - Proper Execution
Officers M/comply w/ scope (items and areas to be searched)

Knock and Announce Rule complied with
Knock and Announce Rule
Police M/knock and announce presence and purpose before entering a place to be searched

Exceptions = reasonable belief that KAA w/b futile, dangerous OR inhibit investigation
Warrant Requirement - Exceptions
- Exigent Circumstances
- Search Incident to Arrest
- Consent
- Automobile Exception
- Plain View
- Inventory Searches
- Special Needs of law enforcement, gov't EEs and school officials
- Terry Stops/Frisks
Warrant Exceptions - Exigent Circumstances
Evanescent E
Hot Pursuit/Fleeing Felon - and any E discovered in plain view w/b admissible
Warrant Exceptions - Search Incident to Arrest
Custodial Arrest M/b lawful = need to preserve E and officer safety

Search M/b
- Contemporaneous w/ time and place of arrest
- Wingspan scope - includes containers and effects

Automobiles - NOT the trunk, and so long as arrestee was recent occupant
Warrant Exceptions - Consent
M/b voluntary and intelligent

Police d/n/h to inform of right to refuse consent

Apparent Authority
- valid if officer reasonably believed consenting party had actual authority
- shared premises = either party c/g consent
- co-tenants who disagree = objector wins as to areas of shared dominion and control
Warrant Exceptions - Automobile Exception
M/h PC to believe contraband or E of crime w/b found in vehicle
- traffic stops = d/n need PC at time of stop, but M/prior to search

Can search cabin and trunk, including containers, etc., that m/reasonably contain item for which PC to search
Warrant Exceptions - Plain View
- lawful access to place from which item c/b seen plainly
- lawful access to item AND
- criminality of item M/b immediately apparent
Warrant Exceptions - Inventory Searches
Common when arrested/booked into jail

USC if:
- regulations governing are reasonable in scope AND
- search complies w/ regulations
Warrant Exceptions - Special Needs
Random Drug Testing = okay for RR EEs post-accident, customs officials responsible for drug interdictions, and public school children in extra-curriculars

Probationers homes = warrantless search okay w/ reasoned grounds to believe contraband is present

Gov't EE desks and files = to investigate work-related misconduct

Students' Effects in Public Schools = to investigate violations of school rules

NO ONE has rights at the border w/r/t routine searches of persons and effects
Warrant Exceptions - Terry Stops and Frisks
Reasonable Suspicion

STOPS (criminal activity) = brief detention or seizure for purposes of investigating suspicious conduct

FRISKS (suspect is armed and dangerous) = pat-down for weapons only out of safety concern
- seize only if officer recognizes as contraband w/o manipulating
- weapon always c/b seized
When Individuals are Seized (4th A)
On totality of circumstances, RP w/n feel free to leave OR to decline officer's request to answer questions
- most encounters w/n/b seizures

Airports/Buses = consider officer's tone, weapon, and if told consent c/b refused

Pursuit = seizure ONLY when individual submits to officer's authority by stopping OR is physically restrained

Traffic Stops = driver and all passengers are seized
- Dog Sniffs = if d/n unreasonably delay stop and PC
Exclusionary Rule
Physical or Testimonial E obtained in violation of federal or USC statutory provision is inadmissible against individual whose rights were violated
Exclusionary Rule - 4th A Limits
- to impeach D's testimony on C-E
- in GJ proceedings, civil proceedings, or parole revocation hearings
- KAA violations
- Officers' reasonable mistake
Fruit of the Poisonous Tree
E derived by exploiting un-USC conduct

To Nullify - break causal link b/t original illegality and later-discovered criminal E:
- Independent Source - distinct from original illegality
- Inevitable Discovery - E necessarily w/h/b obtained lawfully
- Attenuation Doctrine - derivative E admitted where D's free will restored through passage of time and intervening events
Warrant required
- PC
- Name persons expected to be overheard
- Particularly describe conversations that c/b overheard
- Time M/b strictly Limited
Unreliable Ear Doctrine - if you speak to someone who agreed to wiretapping or other electronic monitoring, you have NO 4th A claim

Assumption of Risk = assume risk that other person w/n keep conversation confidential
Arrests - When do they Occur?
PC required

When police take a person into custody against her will for interrogation
- 4th A permits custodial interrogation for any offense
De Facto Arrests
PC required

When police compel someone to come to station for fingerprinting OR questioning
Warrants to Arrest
Necessary for:
- arrests in a person's home (u/l emergency)
- arrest someone in a 3P's home

Not needed to arrest someone in a public place
Common Enterprise Theory
Traffic stops where officer discovers E of crime suggesting a common unlawful enterprise b/t driver and passengers = any and all c/b arrested

Based on reasonable inference of shared dominion and control over the contraband
Confessions - USC Challenges
DPC of 14th A

6th A Right to Counsel

5th A Miranda Doctrine
14th Amendment DPC
Standard = involuntariness

Confession c/n/b result of police coercion
6th Amendment Right to Counsel
Offense-Specific right

Attaches when D is formally charged, NOT upon arrest
Miranda Doctrine - Generally
Implied in 5th A's self-incrimination clause and is NOT offense specific - interrogation following request for counsel is totally prohibited.

Right to remain silent
Anything you say can and will be used against you in a court of law
Right to an attorney
If you c/n afford one, you have right to have an attorney appointed for you
Miranda Warnings - When Necessary
- when atmosphere is characterized by police domination and coercion such that suspect's freedom of action is significantly limited

- any conduct police knew or s/h/k was likely to elicit incriminating response
- Exception = immediate public safety concern means no Miranda necessary and incriminating statements are admissible

Note: d/n apply to spontaneous statements!
Miranda Waiver
Knowing and intelligent - M/understand rights and consequences of waiver


P will bear BOP on valid waiver - silence or shoulder-shrugging NOT ENOUGH
Miranda Rights Asserted
When suspect requests counsel, ALL interrogation M/stop u/l suspect initiates it.

Resumption = police M/scrupulously honor request not to answer questions AND obtain a valid waiver before initiating questioning
Miranda Violations - Limits on Exclusion of Evidence
Inadmissible in P's case-in-chief BUT c/b used to impeach D on C-E.
- Admission of improper Testimonial E will not overturn D's guilty verdict if gov't proves BRD that error was harmless b/c D w/h/b convicted even w/o tainted E

Tangible = no requirement to suppress physical fruits of unwarned but voluntary statements
Pre-Trial Identifications
Line Ups

Show Ups = one on one confrontations b/t W and suspect

Photo Arrays
Pre-Trial Identifications - Rights to Counsel
5th A right does NOT apply

6th A right to counsel exists for line ups and show ups taking place AFTER formal charging and not for photo arrays
Pre-Trial Identification DP Standard
Violates DPC when it is so unnecessarily suggestive that there is a substantial likelihood of mis-identification
- will result in exclusion of W's in-court ID

C/b Remedied:
- P M/prove it's based on observations of suspect other than the un-USC ID
- Factors = W's opportunity to view D, certainty of her ID, AND specificity of her description to police
Grand Juries - Generally
Issue indictments

Proceedings are not public

States d/n/h to use GJs as part of the charging process
Pre-Trial Detentions
Standard = PC to bind P over for trial AND to detain her in jail pre-trial

Detention hearings to determine PC not necessary if GJ issued indictment or magistrate issued warrant
First Appearance (after arrest)
D M/b brought before magistrate who will:
- advise her of her rights
- set bail (immediately appealable) AND
- appoint counsel if necessary
Trial Rights & Voir Dire
P M/disclose all material exculpatory E to criminal D

Right to unbiased judge (w/ no financial stake in outcome and no actual malice towards D)

Right to jury trial if maximum sentence exceeds 6m

6-12 jurors representing a cross-section of the community

Peremptory Challenges
- both sides m/exclude w/o stating reasons
- c/n exclude on basis of race or gender
Exception to D's Right to Confront Adverse Ws
Does not apply when face-to-face confrontation contravenes important public policy concerns
Right to Effective Assistance of Counsel
- counsel's performance was deficient AND
- but for that the outcome w/b different

Pretty much always denied u/l colorable argument that D is not guilty
Plea Taking Colloquy
Judge M/address to D on the record:
- nature of the charge
- maximum authorized sentence and any mandatory minimums
- D's right to plead not guilty and proceed to trial
- by pleading guilty, D waives trial and proceeds directly to sentencing
Withdrawal of Guilty Pleas After Sentencing
Problem w/ Plea Taking Colloquy

Jurisdictional defect

D prevailed on ineffective assistance of counsel claim

P fails to fulfill her part of the bargain (GPs treated like Ks!)
Death Penalty & 8th Amendment
8th A prohibits criminal penalties that are grossly disproportionate to the seriousness of the offense

Death Penalty violates 8th A when it creates automatic category for imposition of DP. Prohibited against:
- mentally retarded
- presently insane Ds
- minor Ds (at time of relevant offense)

Note: Jurors M/b allowed to consider ALL potentially-mitigating E in deciding whether to impose DP
Double Jeopardy
Being put twice in jeopardy for the same offense of life or limb by the same sovereign
- jury trial when jury is sworn
- bench trial when first W is sworn
- guilty plea = when court accepts it unconditionally
Double Jeopardy - Same Offense
Not the same for DJ if each has an element the other does not
Double Jeopardy - Same Sovereign
State and federal gov'ts not the same, or different states

States and municipalities are the same sovereign
Double Jeopardy - Exceptions When Retrials are Permitted
Hung jury

Mistrial for manifest necessity (hospitalization)

Retrial after successful appeal

D's br/plea bargain
5th Amendment Privilege Against Compelled Testimony
Use it or lose it!
- anyone can assert at any proceeding in which an individual testifies under oath (civil, administrative and Congressional hearings)
- does NOT apply to state's use of our bodies

Note: P c/n comment on its assertion (negative or otherwise)
Eliminating 5th Amendment Privilege
Use and Derivative Use Immunity = P c/n use D's testimony or anything derived from it to convict D if she offers this

D takes the stand - waived as to anything w/in C-E scope

SOL = if run on underlying crime, M/testify