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131 Cards in this Set
- Front
- Back
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Elements of Crimes
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Physical Act
Mental State Causation Concurrence |
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Criminal Defenses
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Self-Defense, Duress, Entrapment
Intoxication, Infancy, Insanity |
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Jurisdiction - Criminal Law
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Any place where act that was part of the crime took place OR the result took place
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Burden of Proof
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Elements = P Beyond a Reasonable Doubt
Defenses = Prosecution (after D raises) Beyond a Reasonable Doubt - Exception = insanity defense on D |
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Physical Act Requirement
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Voluntary bodily movement (i.e. not a convulsion, unconscious, reflex, etc.)
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Omissions Rule - Criminal Liability for Failure to Act
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DKA - Duty, Knowledge, Ability
- Legal Duty (SCRAP) - Statute (tax returns, abuse) - Contract - Relationship - Assumption of duty/rescue - Created the Peril |
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Physical Act Requirement - Possession
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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 |
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Common Law Mental States
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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 |
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Specific Intent Crimes
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Assualt
Attempt Burglary Conspiracy Embezzlement False Pretenses First Degree Murder Forgery Larceny Robbery Solicitation |
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General Intent Crimes
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Battery
False Imprisonment Forcible Rape Kidnapping |
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Malice Crimes
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Murder
Arson |
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Strict Liability Crimes
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Public Welfare Offenses
Statutory Rape |
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CL Defense - Mistake of Law
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Never a defense u/l statute makes knowledge of the law an element of the crime
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CL Defense - Mistake of Fact
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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 |
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Model Penal Code - Mental States
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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 |
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MPC Defense - Mistake of Fact and Law
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Mistake of Law NEVER a defense
Mistakes of Fact - Purpose, Knowing, Reckless = any mistake is a defense - Negligent = only reasonable mistake is a defense |
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Crimes - Causation Requirement
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Actual and Proximate Causation
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Actual Causation
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But For Causation = bad result w/n/h happened "but for" D's conduct
Includes accelerating causes! |
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Proximate Causation
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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) |
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Concurrence Requirement
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D M/h mental state at the same time she engages in the act
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Common Law Battery
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General Intent
Unlawful application of force to another resulting in bodily injury OR offensive touching |
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Common Law Assault
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Specific Intent
Intentional creation by more than mere words of a reasonable fear in V's mind of imminent bodily harm (fake punch!) |
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Statutory Aggravated Assault and Battery
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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.
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Homicide - Year and a Day Rule
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CL = death M/occur w/in 1y +1d of the homicidal act
MPC (majority) = death c/occur at any time |
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Common Law Murder
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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 |
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Deadly Weapon Rule
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Use of a deadly weapon creates inference of intent to kill (malice aforethought)
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Transferred Intent
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If D intends to harm V1 but accidentally harms V2, her intent transfers
- Does NOT apply to attempt - only completed crimes |
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First and Second Degree Murder
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Any killing committed w/ premeditation AND deliberation (cool, calm)
Second Degree = all other murders except FM |
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Voluntary Manslaughter
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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! |
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Involuntary Manslaughter
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Killing committed w/ criminal negligence OR during a non-felony crime
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CL Felony Murder
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Any killing during the commission of or attempt to commit a felony
- First Degree = during rape, arson, kidnapping - Second Degree = any other felony |
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CL Felony Murder - Limitations
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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! |
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CL Felony Murder - Vicarious Liability
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All co-felons guilty of a death caused by one co-felon, even if a bystander did the actual killing
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MPC Murder
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Intent to kill (premeditation and deliberation unnecessary)
Extreme Recklessness Felony Murder |
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MPC Felony Murder
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Limited to BRAKES
- Burglary - Robbery - Arson - Kidnapping - Escape from custody - Sexual Assault |
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MPC Manslaughter
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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 |
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MPC Criminally Negligent Homicide
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Negligence Mental State
D s/h/k of substantial and unjustifiable risk of death |
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False Imprisonment
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General Intent
Unlawful confinement of a person w/o her consent |
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Kidnapping
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General Intent
False imprisonment involving either moving V or concealing her in a secret place |
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Aggravated Kidnapping
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Generally requires purpose to collect ransom, commit robbery or rape, OR where V is a child
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Forcible Rape
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General Intent
Sex w/o V's consent accomplished by force, threat of force, OR while V is unconscious |
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Statutory Rape
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Strict Liability
Sex w/ someone under the age of consent MPC/Minority = reasonable mistake as to age c/b a defense |
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CL Larceny
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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 |
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CL Larceny - Continuing Trespass
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If D wrongfully takes PP w/o intent to steal but later forms intent to steal, D w/b guilty of larceny.
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CL Embezzlement
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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 |
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CL False Pretenses
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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. |
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CL Larceny by Trick
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D obtains only possession as result of intentional false statement
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CL Robbery
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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 |
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Statutory Consolidation of Theft Crimes
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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)
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Receipt/Possession of Stolen Property
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Knowledge Mental State
Receiving possession of stolen property w/ knowledge that it was stolen |
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Forgery
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Specific Intent
Making or altering a writing so that it is false w/ intent to defraud |
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Uttering
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Specific Intent
Offering as genuine a forged instrument w/ intent to defraud |
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Malicious Mischief
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Malice Mental State
Destroying or damaging someone else's property w/ malice |
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CL Burglary
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Breaking and entering another's dwelling at night w/ intent to commit a felony inside (specific intent)
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CL Arson
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Malicious burning of a building - more than just scorching
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Accomplice Liability
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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 |
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Accomplices - Withdrawal
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Encourager M/discourage the crime before it is committed
Aider M/take affirmative steps to neutralize assistance or prevent the crime |
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CL Accessory After the Fact
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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 |
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Solicitation
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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 |
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Conspiracy
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Specific Intent
Agreement b/t 2+ people to commit a crime PLUS overt act in furtherance thereof (i.e. act of preparation) |
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Conspiracy - One Person?
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CL = no one person conspiracies
MPC = allows D to be guilty of conspiracy even if all other parties pretended to agree or were acquitted |
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Conspiracy - Vicarious Liability
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D is liable for crimes committed by co-conspirators which were in furtherance of the conspiracy's objective AND foreseeable
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Attempt
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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) |
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Attempt - Impossibility Defense
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Factual Impossibility = not a defense to attempt
Legal Impossibility = defense to attempt (what D was trying to do was not illegal) |
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Withdrawal/Renunciation/Abandonment
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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 |
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Merger
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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. |
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Insanity Defense
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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 |
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Insanity vs. Incompetence
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Insanity = at time of crime (not guilty)
Incompetence = at time of trial (w/b postponed until D is competent) |
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Intoxication Defense
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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 |
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Common Law Infancy Defense
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Under 7 - c/n/b prosecuted
Under 14 = rebuttable presumption against prosecution 14 or Older = prosecution allowed |
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MPC Infancy Defense
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Under 16 = c/n criminally prosecute - go to juvenile proceedings in family court
16 or 17 = criminal prosecution allowed if juvenile court agrees |
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Self-Defense
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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 |
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Self-Defense - Aggressor Rule
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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 |
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Self-Defense - Retreat Rule
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Majority = retreat not required
CL = retreat required u/l D is at home, c/n retreat in complete safety OR defending against BRAK. |
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Self-Defense - Resisting Arrest
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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 |
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Duress Defense
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If D was forced to commit crime under threat of imminent death or serious injury
- NOT a defense to homicide |
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Entrapment Defense
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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 |
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Fourth Amendment Search and Seizure Analysis
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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? |
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S & S - Government Conduct
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Publicly paid police on or off duty
Private citizens acting at police direction Privately paid police if deputized w/ power to arrest |
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Reasonable Expectation of Privacy - Protected Areas
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Persons
Houses Effects Papers |
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Reasonable Expectation of Privacy - Unprotected Items
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PAAGVOHO
Paint Scrapes from outside car Account records held by banks Airspace Garbage at the curb Voice Open Fields Handwriting Odors |
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Reasonable Expectation of Privacy - Standing to Challenge
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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 |
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Warrant Requirements
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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 |
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Invalid Warrants - Saved by Officer's GF
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GF overcomes USC defects in PC and particularity
Unavailable: - 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 |
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Search Warrants - Proper Execution
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Officers M/comply w/ scope (items and areas to be searched)
Knock and Announce Rule complied with |
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Knock and Announce Rule
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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 |
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Warrant Requirement - Exceptions
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ESCAPIST
- 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 |
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Warrant Exceptions - Exigent Circumstances
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Evanescent E
Hot Pursuit/Fleeing Felon - and any E discovered in plain view w/b admissible |
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Warrant Exceptions - Search Incident to Arrest
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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 |
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Warrant Exceptions - Consent
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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 |
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Warrant Exceptions - Automobile Exception
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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 |
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Warrant Exceptions - Plain View
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M/h:
- lawful access to place from which item c/b seen plainly - lawful access to item AND - criminality of item M/b immediately apparent |
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Warrant Exceptions - Inventory Searches
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Common when arrested/booked into jail
USC if: - regulations governing are reasonable in scope AND - search complies w/ regulations |
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Warrant Exceptions - Special Needs
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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 |
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Warrant Exceptions - Terry Stops and Frisks
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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 |
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When Individuals are Seized (4th A)
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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 |
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Exclusionary Rule
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Physical or Testimonial E obtained in violation of federal or USC statutory provision is inadmissible against individual whose rights were violated
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Exclusionary Rule - 4th A Limits
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Admissible:
- to impeach D's testimony on C-E - in GJ proceedings, civil proceedings, or parole revocation hearings - KAA violations - Officers' reasonable mistake |
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Fruit of the Poisonous Tree
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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 |
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Wiretapping
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Warrant required
- PC - Name persons expected to be overheard - Particularly describe conversations that c/b overheard - Time M/b strictly Limited |
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Eavesdropping
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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 |
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Arrests - When do they Occur?
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PC required
When police take a person into custody against her will for interrogation - 4th A permits custodial interrogation for any offense |
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De Facto Arrests
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PC required
When police compel someone to come to station for fingerprinting OR questioning |
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Warrants to Arrest
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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 |
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Common Enterprise Theory
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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 |
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Confessions - USC Challenges
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DPC of 14th A
6th A Right to Counsel 5th A Miranda Doctrine |
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14th Amendment DPC
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Standard = involuntariness
Confession c/n/b result of police coercion |
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6th Amendment Right to Counsel
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Offense-Specific right
Attaches when D is formally charged, NOT upon arrest |
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Miranda Doctrine - Generally
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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 |
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Miranda Warnings - When Necessary
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Custody
- when atmosphere is characterized by police domination and coercion such that suspect's freedom of action is significantly limited Interrogation - 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! |
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Miranda Waiver
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Knowing and intelligent - M/understand rights and consequences of waiver
Voluntary P will bear BOP on valid waiver - silence or shoulder-shrugging NOT ENOUGH |
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Miranda Rights Asserted
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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 |
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Miranda Violations - Limits on Exclusion of Evidence
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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 |
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Pre-Trial Identifications
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Line Ups
Show Ups = one on one confrontations b/t W and suspect Photo Arrays |
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Pre-Trial Identifications - Rights to Counsel
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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 |
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Pre-Trial Identification DP Standard
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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 |
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Grand Juries - Generally
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Issue indictments
Proceedings are not public States d/n/h to use GJs as part of the charging process |
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Pre-Trial Detentions
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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 |
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First Appearance (after arrest)
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D M/b brought before magistrate who will:
- advise her of her rights - set bail (immediately appealable) AND - appoint counsel if necessary |
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Trial Rights & Voir Dire
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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 |
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Exception to D's Right to Confront Adverse Ws
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Does not apply when face-to-face confrontation contravenes important public policy concerns
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Right to Effective Assistance of Counsel
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M/show
- 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 |
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Plea Taking Colloquy
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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 |
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Withdrawal of Guilty Pleas After Sentencing
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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!) |
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Death Penalty & 8th Amendment
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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 |
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Double Jeopardy
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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 |
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Double Jeopardy - Same Offense
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Not the same for DJ if each has an element the other does not
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Double Jeopardy - Same Sovereign
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State and federal gov'ts not the same, or different states
States and municipalities are the same sovereign |
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Double Jeopardy - Exceptions When Retrials are Permitted
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Hung jury
Mistrial for manifest necessity (hospitalization) Retrial after successful appeal D's br/plea bargain |
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5th Amendment Privilege Against Compelled Testimony
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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) |
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Eliminating 5th Amendment Privilege
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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 |
