Criminal Law Flash Cards/ Crime Pro

Front 1

[Intro]

What are the 3 sources of law on the MBE?

1

Back 1

-Common Law

-MPC

-Majority Statutory Rules

Front 2

Limitations on Exclusionary Rule

Back 2

1) Does not apply to conduct of the grand jury
2) Does not apply to civil proceedings
3) To qualify, the search must violate either the federal constitution or a federal statute
4) Does not include to use of evidence for impeachment purposes (this includes non-Mirandized confessions and illegally seized evidence)
5) Does not apply to parole revocation proceedings
6) Does not apply to violations of the knock and announce rule
7) There is a good faith defense to exclusion at commone law when the police rely in good faith on a judicial opinion later changed, a statute or ordinance later declared unconstitutional, or a defective search warrant
For NY:
NY does NOT recognize the good faith reliance limitation

Front 3

[Intro]

What the 4 essential elements of proving ANY crime?

1

Back 3

-Actus Reus

-Mens Rea

-Causation

-Concurrence of act and mental state

Front 4

The "situs" of the crime is defined by

Back 4

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

Front 5

[Intro]

What are the three Incoate offenses?

1

Back 5

**SAC

-Solicitation

-Attempt

-Conspiracy

Front 6

Exclusionary Rule

Back 6

A victim of an illegal search or coerced statement can have that search or statement excluded from subsequent prosecution. If illegal evidence is admitted, a resulting conviction should be overturned unless the government can show beyond a reasonable doubt that the error was harmless. Denial of right to counsel is never harmless.

Front 7

[Intro]

What are the 6 defenses to crimes?

1

Back 7

IIISED

-Insanity
-Intoxication
-Infancy
-Self-defense
-Entrapment
-Duress

Front 8

What are the typical elements of a crime?

Back 8

1) act or omission(actus reus);
2) mental state (mens rea); and
3) concurence of act and mental state.

**May also require proof of a result and causation.

Front 9

[Preliminary matters - Jurisdiction]

Where must a crime be prosecuted?

2

Back 9

Anywhere where the ACT took place or the RESULT took place

Front 10

Fruit of the Poisonous Tree

Back 10

Excludes evidence that was obtained or derived from unlawful police action. Ways to break the chain from the original police action:
1) Demonstrate an independent source
2) Inevitable discovery
3) Intervening acts of free will on the part of the defendant
4) Live witness testimony
5) In court identification
This does NOT apply if the original police illegality is a Miranda violation - evidence resulting from that violation can be admitted.

Front 11

[Preliminary matters - Burden of Proof]

What's the burden of proof for prosecution?

2

Back 11

Beyond a reasonable doubt

Front 12

Federal criminal law is governed entirely by

Back 12

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

Front 13

[Preliminary matters - Burden of Proof]

What's the burden of proof for defenses?

2

Back 13

**Burden on PROSECUTION to DISPROVE each element of the defense Beyond a reasonable doubt

EXCEPT: Insanity - burden is on the D

Front 14

Law of Arrest

Back 14

Arrest warrants are generally not required prior to arresting someone in a public place but the non-emergency arrest of an individual in his own home requires an arrest warrant.

Front 15

[Preliminary matters - Classification of Crimes]

What is considered a felony, and what is considered a misdemeanor?

2

Back 15

Felony = > 1 year

Misdemeanor = anything 1 year or less

Front 16

Name the 10 specific intent crimes.

Back 16

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

Front 17

[Essential Elements - Physical Act: Requirement]

What is a sufficient act to satisfy "actus reus"?

3

Back 17

ANY Voluntary bodily movement

NOTE: Not when someone else moves you, or unconsciousness

Front 18

Stationhouse Arrest

Back 18

Police need probable cause to arrest you to compel you to come to the police station either for interrogation or fingerprinting

Front 19

[Essential Elements - Physical Act: Omissions]

What are the basic elements that must be met before a FAILURE to act is enough to satisfy "actus reus"?

3

Back 19

-Legal duty

-Knowledge of facts giving rise to the duty

-Ability to help

Front 20

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

Back 20

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

Front 21

[Essential Elements - Physical Act: Omissions]

What 5 ways can there be a legal duty to act?

3

Back 21

-Statute
-Contract (babysitter)
-Status (parent/spouse)
-Voluntary assumption
-Creation of peril

Front 22

Automobile Stops

Back 22

Police generally need reasonable suspicion that the law is being violated to stop a car. If special law enforcement needs are involved, then the police can set up roadblocks to stop cars without individual suspicion but the roadblock must:
1) Stop cars on the basis of some neutral, articulable standard and
2) Be designed to serve purposes more closely related to a particular problem related to cars and their mobility

Front 23

[Essential Elements - Physical Act: Possession]

What are the two types of possession?

4

Back 23

-Actual
-Contructive

Front 24

What is the actus reus?

Back 24

1) Voluntary physical act; or
2) Omission under a legal duty to act.

Front 25

[Essential Elements - Physical Act: Possession]

What is enough to there to be actual possession?

4

Back 25

-Control, for a long enough period for there to be

-An opportunity to terminate possession

Front 26

Request for Information in NY

Back 26

This is the least intrusion of police into a person's life. Police can request informaiton based on anything except a whim or caprice and the individual has the right to not respond to the request and even run away without giving probable cause for arrest.

Front 27

[Essential Elements - Physical Act: Possession]

What is enough to there to be constructive possession?

4

Back 27

-Dominion

-Control

Front 28

Ex Post Facto Laws opertate to retroactively

Back 28

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 29

[Essential Elements - Mental States: Common Law]

What are the 4 common law mental states?

4-5

Back 29

-Specific intent
-Malice
-general intent
-strict liability

Front 30

Common Law Right to Inquire in NY

Back 30

The police must have founded suspicion of criminal activity. They can ask questions and the detention must be brief. If the individual gives an explanation, the police must release him.

Front 31

[Essential Elements - Mental States: Common Law]

What are the 11 specific intent crimes?

4

Back 31

-Assault
-1st Degree Premeditated Murder
-Larceny
-Embezzlement
-False Pretenses (larceny by trick)
-Robbery
-Forgery
-Burglary
-Solicitation
-Conspiracy
-Attempt

Front 32

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

Back 32

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

Front 33

[Essential Elements - Mental States: Common Law]

What is the definition of the "malice" common law mental state?

5

Back 33

Acting intentionally or w/ reckless disregard of an obvious or known risk

Front 34

Stop and Frisk in NY

Back 34

Police need reasonable suspicion. Note: if they stop a person at gun point, the police always need at least reasonable suspicion.

Front 35

[Essential Elements - Mental States: Common Law]

What are the two malice common law crimes?

5

Back 35

-Murder
-Arson

Front 36

A Bill of Attainder is a legislative act that

Back 36

Inflicts punishment or denies a privilege without a judicial trial

Front 37

[Essential Elements - Mental States: Common Law]

What is the definition of the "general intent" common law mental state?

5

Back 37

General awareness of the factors of the crime

Can be inferred simply by doing the act!

Front 38

Police Pursuit in NY

Back 38

This impedes the individual's freedom of movement so it must be based on a reasonable suspicion that a crime has been, is being, or is about to be committed

Front 39

[Essential Elements - Mental States: Common Law]

What are the 4 general intent common law crimes?

5

Back 39

-Battery
-Kidnapping
-Rape
-False Imprisonment

Front 40

When can D be held liable for an omission?

Back 40

1) There is a specific duty act imposed by law;
2) D has knowledge of the facts giving rise to the duty to act; and
3) It is reasonable to perform the duty.

Front 41

[Essential Elements - Mental States: Common Law]

What are the two times of strict liability common law crimes?

5

Back 41

-Public welfare crimes (alcohol to minors)

-Statutory rape

Front 42

Arrest in NY

Back 42

A full arrest requires probable cause that a felony or misdemeanor has been committed by the offender whether in the officer's presence or not. This does not require a warrant.

Front 43

[Essential Elements - Mental States: Common Law Mistake]

What is the effect of mistake of fact on common law crimes?

6

Back 43

Acts to negate mental state

Front 44

Plain meaning rule

Back 44

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

Front 45

[Essential Elements - Mental States: Common Law Mistake]

What effect of any mistake on a specific intent crime?

6

Back 45

Mistake will be a defense, even if mistake was unreasonable

Front 46

Warrant of Arrest in NY

Back 46

Must be subscribed by the issuing judge and contain:
1) The name of the issuing court
2) The date of the issuing court
3) The name or title of an offense charged in the underlying accusatory instrument
4) The name of the defendant to be arrested or description with reasonable certainty if the name is unknown
5) The police officer(s) to whom the warrant is addressed
6) A direction that the police officer arrest the defendant and bring him before the issuing court

Front 47

[Essential Elements - Mental States: Common Law Mistake]

What effect of any mistake on a general intent or malice crime?

6

Back 47

Mistake will be a defense, BUT only if it's a reasonable mistake

Front 48

What are the two defenses for specific intent crimes?

Back 48

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

Front 49

[Essential Elements - Mental States: MPC]

Definition of purposely

7

Back 49

Contious object to accomplish

Front 50

Private Arrest in NY

Back 50

A private person can make a warrantless arrest when:
1) A felony has in fact been committed by the offender or
2) Any crime has in fact been committed by the offender in the presence of the arresting private person

Front 51

[Essential Elements - Mental States: MPC]

Definition of Knowingly

7

Back 51

Awareness of actions

Front 52

Ambigous statements are construed how?

Back 52

In favor of defendant

Front 53

[Essential Elements - Mental States: MPC]

Definition of Recklessly

Back 53

Aware of a substantial and unjustifiable risk

Front 54

4th Amendment Right: Government Conduct

Back 54

1) Publicly paid police on or off duty
2) Any private individual working at the direction of the public police
3) Privately paid police/secuirty workers ONLY if they are deputized with the power to arrest

Front 55

[Essential Elements - Mental States: MPC]

Definition of negligently

7

Back 55

D SHOULD have known (but didn't) of the risk

Front 56

What can give rise to a duty to act?

Back 56

1) Statue (eg, file taxes)
2) Contract (eg, life gaurd)
3) Relationship with victim (eg, parents, spouses)
4) Voluntary assumption of care for the victim
5) Creation of peril for the victim (eg, pushing someone in river)

Front 57

[Essential Elements - Mental States: MPC Mistake]

Under the MPC, a mistake of fact, even an unreasonable one, will work to negate which mental states?

7

Back 57

Purposely, knowingly, and Recklessly

Front 58

4th Amendment Right: Reasonable Expectation of Privacy

Back 58

This gives you standing to object to an illegal search
Automatic standing:
1) You own the premises searched
2) You live on the premises searched, whether you own it or not
3) Overnight guests
Sometimes standing:
1) You are legitimately present when the search takes place
2) You own the property seized
Note: if you are in the car and do not claim to own the seized you do not have standing just because you were in the car and if you are on property only to do something illegal like cut up drugs for sale, you do not have standing to object to the search
For NY:
If you are in the car when a weapon is seized, you do have standing to object to the search becaues there is a presumption of possession attributed to all the passengers in the car

Front 59

[Essential Elements - Mental States: MPC Mistake]

Under the MPC, a reasonable mistake of fact, will work to negate which mental states?

Back 59

Purposely, knowingly, Recklessly, and Negligently

Front 60

Generally there is NO MERGER EXCEPT for

Back 60

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

Front 61

[Essential Elements - Causation]

What two types of causation are needed to prove a crime?

8

Back 61

Actual and proximate

Front 62

4th Amendment Right: Things Held out to the Public

Back 62

You have no right of privacy to these things which include:
1) The sound of your voice
2) The sytle of your handwriting
3) The paint on the outside of your car
4) Account records held by a bank
5) Monitoring the locaiton of your car in a public street or in your driveway
6) Anything that can be seen across the open fields
7) Anything that can be seen from flying over in the public airspace
8) The odors emanating from your luggage
9) Your garbage set out on the curb for collection

Front 63

[Essential Elements - Causation: Actual]

Test for actual causation
and EXCEPTION

8

Back 63

"But for cause"

EXCEPTION: accelerating cause is enough

Front 64

Fruit of the poisonous tree doctrine

Back 64

All evidence obtained or derived from exploitation of illegaly obtained evidence

Front 65

[Essential Elements - Causation: Proximate]

What's required for proximate cause?

8

Back 65

D is prox cause if bad result is a natural and probable consequence of D's conduct

Front 66

Valid Search Warrant

Back 66

Requires
1) Probable cause
2) Must be reasonably precise on its face
3) Search of 3rd party premises is permissible as long as there is probable cause to believe that the evidence will be there
4) The warrant msut be issued by a neutral and detached magistrate (neutral and detached from the often competitive law enforcement business)
5) Only police and not private citizens may execute a warrant and it must be executed without delay - police must knock, announce their purpose and wait a reasonable time for admittance unless they have reason to suspect such announcement would be dangerous/futile/inhibit investigation

Front 67

[Essential Elements - Causation: Proximate]

Effect of Eggshell victim?

9

Back 67

Still guilty

Front 68

Not a violation of Double Jeopardy where statute provides

Back 68

Multiple, separate punishments for single act

Front 69

[Essential Elements - Causation: Proximate]

Effect of Unforeseeable intervening event? (lightning strike after mugging)

9

Back 69

NOT guilty

Front 70

Search Warrant Informer Affidavits

Back 70

Affidavits of informers are used to show probable cause and have these characteristics:
1) They need enough information about the informer for the magistrate to make a common sense evaluation of probable cause
2) The identity of the informer is not usually required
3) When the defendant attacks the validity of the affidavit, he can go "behind the face" of the affidavit

Front 71

[Essential Elements - Concurrence]

Test for concurrence

9

Back 71

Must have mental state at the same time as the act

(Issue w/ larceny and burgary)

Front 72

What are the 3 mental states recognized at common law?

Back 72

1) Specific intent
2) Malice
3) General intent

Front 73

[Against Person/Assault & Battery - Common Law]

Common law definition of battery, including mental state

10

Back 73

-Application of force
-Resulting in either injury or offensive touching

Mental state: General intent

Front 74

Invalidity of Search Warrant Informer Affidavits

Back 74

To be invalid, the defendant must show ALL of the following:
1) A false statement was included in the affidavit by the affiant (officer applying for the warrant)
2) The affiant intentionally or recklessly included the false statement and
3) The false statement was material to the finding of probable cause

Front 75

[Against Person/Assault & Battery - Common Law]

Common law definition of assault, including mental state

10

Back 75

TWO VERSIONS!!!

Version 1: Attempted battery (swing and miss)

Version 2:
-Intentional creation (more than words)
-Of reasonable fear
-Of imminent bodily harm

Mental state: SPECIFIC INTENT (wants to create fear/intimidation)

Front 76

Elements of a crime

Back 76

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

Front 77

[Against Person/Homicide - Year+Day Rule]

What is the year + day rule?

11

Back 77

At common law, Death of victim must occur w/i year + day

(MPC does NOT have this rule)

Front 78

Search Warrant Informer Affidavits in NY

Back 78

A search warant must:
1) Set forth sufficient underlying facts and circumstnaces to allow the magistrate to know how the informer got her information and
2) The affidavit must establish the reliability and credibility of the informer (generally by pointing to prior success with the informer)

Front 79

[Against Person/Homicide - Common Law]

Common law murder definition, including mental state

11

Back 79

-Causing death of another
-With malice aforethought

MENTAL STATE can be one of FOUR possibilities:

-Intent to kill
-Intent to inflict great bodily harm (inferred from deadly weapon!)
-Extreme recklessness (malignant heart)
-Felony murder

Front 80

What are the malice crimes?

Back 80

1) Arson
2) Murder

Front 81

[Against Person/Homicide - Common Law]

What's the transferred intent rule?

12

Back 81

If D intends to harm one victim, but accidentally harms another, will be guilty of attempt to kill one, and intent will transfer to actual victim as well (only applies to completed harms)

Front 82

Search Warrant Exception:
Search Incident to a Lawful Arrest

Back 82

1) Arrest must be lawful
2) Search must be contemporaneous to the time and location of the arrest
3) The search must be of the individual and areas the individual could reach either to get a weapon or destroy evidence ("wingspan")
4) At the police station, police may take an inventory search of the arrestee's belongings and search impounded vehicles

Front 83

[Against Person/Homicide - Common Law]

Common law definition of voluntary manslaughter

13

Back 83

-Intentional killing of another
-In the heat of passion
-After adequate provocation
-Without time to cool off

Front 84

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

Back 84

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 unconsious or asleep (unless D knew likely to happen)

Front 85

[Against Person/Homicide - Common Law]

Common law definition of INvoluntary manslaughter

13

Back 85

-Killing w/ criminal negligence, OR

-Killing during commission of a NON-felony

Front 86

Search Warrant Exception:
Automobile Exception

Back 86

1) Before the police can use this exception, the police need probable cause
2) If, but only if, before ht epolice search anything or anybody then they can search without a warrant the entire car including the interior compartment and the trunk and any package/luggage/container they find within the car that could reasonably contain the item they have probable cause to be searching for, regardless of who owns the item. If they find what they are searching for, they can arrest the person searched.
The police cannot open things that could not possibly contain what they are searching for.
3) Probable cause to search teh car can arise after the car is stopped, as long as it arises befor eyou search anybody or anything
4) If a warrantless search is valid, the police may tow the vehicle to the police station and search it later

Front 87

[Against Person/Homicide - Common Law]

Name 3 of the 6 Limitations of Felony Murder

14

Back 87

-D must be guilty of the underlying felony
-Felony must be inheritly dangerous
-Felony must be separate from killing itself
-Actually during the felony or immediate flight
-Killing must be IN FURTHERANCE of felony
-Victim must not be co-felon

Front 88

What constitutes specific intent?

Back 88

Intent to engage in crime.

Front 89

[Against Person/Homicide - MPC]

6 limitations of felony murder under MPC

15

Back 89

Only felony murder if during commission of "BRAKES" crimes:

-Burglary
-Robbery
-Arson
-Kidnapping
-Escape
-Sexual Assault

Front 90

Search Warrant Exception:
Plain View Seizure

Back 90

Police officer must be
1) Legitimately present
2) Where he or she sees the evidence, fruits, or instrumentalities of the crime or contraband in plain view and
3) Have probable cause to believe the item is evidence, contraband, fruit, or instrumentality of the crime

Front 91

[Against Person/Homicide - MPC]

MPC definition of intentional manslaughter

15

Back 91

Similar to 'heat of passion' voluntary manslaughter under common law

-reasonable extreme emotional disturbance

Front 92

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

Back 92

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 93

[Against Person/Homicide - MPC]

MPC definition of involuntary manslaughter

15

Back 93

Reckless killing (aware of risks and contentiously disregards of them)

Front 94

Search Warrant Exception:
Consent

Back 94

The consent must be voluntary and intelligent
Does not work if the police say "we have a warrant, can we look around"
Police do NOT have to warn you that you have the right not to consent
Authority to Consent:
1) If 2 people have equal right to use a piece of property, either can consent.
2) Parent can consent to search son's room unless he clearly does not allow parent's entry (signs on the door, locked room, he's the only one with the key)
3) Police cannot act on the consent from one occupant if a co-occupant is present and objects to the search and the search is directed against the co-occupant

Front 95

[Against Person/Confinement]

Definition of false imprisonment, with mental state

16

Back 95

-Confinement +
-W/o consent

MENTAL STATE: general intent

Front 96

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

Back 96

Does not apply where police illegality is a violation of Miranda1

Front 97

[Against Person/Confinement]

Definition of kidnapping, with mental state

16

Back 97

-False imprisonment +
-Moving or concealing victim

MENTAL STATE: general intent

Front 98

Search Warrant Exception:
Stop and Frisk

Back 98

Police must have a reasonable suspicion to stop suspects and if they think the suspect is armed they can pat them down and frisk them.
If they find weapons, they are admissible so long as the stop and frisk was reasonable.
If they find other evidence, it is admissible if it could have seemed like weapon/contraband from the outside.

Front 99

[Against Person/Sex]

Definition of rape, with mental state

17

Back 99

-Sex
-W/o consent
Done by:
-Force
-Threat of force, OR
-During victim's unconsciousness

MENTAL STATE: general intent

Front 100

Legal duty to act can arise from the following sources

Back 100

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

Front 101

[Against Person/Sex]

Definition of statutory rape, with mental state

17

Back 101

-Sex
-W/ someone under age of consent

MENTAL STATE: strict liability

Front 102

Search Warrant Exception:
Hot Pusuit and Evanescent Evidence

Back 102

Evanescent Evidence:
Evidence that would disappear very quickly if took the time to get the warrant (like a scraping under the fingernails)
Hot Pursuit:
Needs to be HOT and
1) Police can pursue suspect into a private dwelling
2) Police may seize wihtout a warrant evidence likely to disappear before a warrant can be obtained
3) Contaminated food or drugs, children in trouble, burning fires may justify warrantless search or seizures
4) Warrantless entry is proper whenver hte police see someone is injured or threatened with injury

Front 103

[Against Property/Theft - Common Law]

General rule for mental state required for property crimes

18

Back 103

SPECIFIC INTENT!

Front 104

What are the major specific intent crimes?

Back 104

BRAM ACTS

B = Burglary
R = Robbery
A = Attempt
M = Murder (1st Degrees)
A = Arson
C = Conspiracy
T = Theft (Larceny, Robbery, etc)
S = Solicitation

Front 105

[Against Property/Theft - Common Law]

Definition of larceny, including mental state

18

Back 105

-W/o permission
-Taking (includes MOVING)
-Property OF ANOTHER (no right to legal possession)
-Intent to PERMANENTLY deprive

MENTAL STATE: specific intent to steal

Front 106

NY Search Warrant Exception:
Lawful Arrest

Back 106

Officer must suspect that the arrested person may be armed to search containers in the "wingspan" and once an occupant is removed from teh car the police may NOT remove closed containers or bags to look for weapons or other evidence

Front 107

[Against Property/Theft - Common Law]

What is the erroneous takings rule?

18

Back 107

Taking under a claim of right (thought property was his)

Front 108

Voluntary assumption of care

Back 108

once aid is rendered may be liable for not satisfying a reasonable standard of care

Front 109

[Against Property/Theft - Common Law]

Effect of taking w/ intent to return, then later intent to keep

19

Back 109

Concurrance problem

"Continuing trespass" exception -- will be larceny at the time D decided to keep

Front 110

NY Search Warrant Exception:
Traffic Violations

Back 110

NY COA says police can stop moving vehicles for "inspection" if they have reason to believe that there is a traffic violation. A stop is also valid if it is made pursuant to a roadblock at which passing vehicles are stopped uniformly and nondiscriminatorily

Front 111

[Against Property/Theft - Common Law]

Definition of embezzlement, including mental state

19

Back 111

-Conversion of property
-Already in lawful possession

Mental state: specific intent to steal/defraud

Front 112

What are the general intent crimes?

Back 112

All crimes not specific intent or malice

Front 113

[Against Property/Theft - Common Law]

Definition of false pretenses, including mental state

20

Back 113

-Obtaining TITLE (permanent dominion)
-False statement about PAST or PRESENT event

MENTAL STATE: specific intent to defraud

Front 114

NY Search Warrant Exception:
Emergency Doctrine

Back 114

1) Police must have reasonble grounds to believe that there is an emergency at hand and an immediate need for assistance for proteciton of life or property
2) The search must not be primarily motivated by intent to arrest and seize evidence and
3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched

Front 115

[Against Property/Theft - Common Law]

Definition of larceny by trick, including mental state

20

Back 115

-Obtaining something under the auspices of mere POSSESSION (lease, temporary -- ex: will take $ to another person)
-False statement about PAST or PRESENT event

MENTAL STATE: specific intent to defraud

Front 116

Enumerated specific intent crimes (10 of them)

Back 116

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 117

[Against Property/Theft - Common Law]

Definition of robbery, including mental state

21

Back 117

-Larceny
-from person OR PRESENCE
-By force or threat of IMMEDIATE injury (force must be enough to overcome resistance)

MENTAL STATE: specific intent to steal

Front 118

Evanescent Evidence

Back 118

Any person who operates a motor vehicle shall be deemed to have given his consent to blood or chemical tests

Front 119

[Against Property/Theft - Common Law]

Definition of extortion, including mental state

21

Back 119

-Larceny
-with threat of FUTURE INJURY

MENTAL STATE: specific intent to steal

Front 120

What mental state is required the crime when attempted is not specific?

Back 120

With any charge of attempt specific intent must be proven, even though if the crime is not specific intent.

Front 121

[Against Property/Theft - Common Law]

Definition of black mail, including mental state

21

Back 121

-Larceny
-with threat of EMBARASSMENT

MENTAL STATE: specific intent to steal

Front 122

Administrative Inspecitions and Searches

Back 122

Probable cause for a warrant for inspectors to search private homes/commercial buildings is more lenient than other searches - just show a general and neutral enforcement plan.

Front 123

[Against Property/Theft - Misc]

Definition of receipt of stolen property, including mental state

22

Back 123

-Receiving possession
-Of stolen property

MENTAL STATE: with KNOWLEDGE that property was stolen

Front 124

Two malice crimes

Back 124

1. Common law murder
2. Arson

Front 125

[Against Property/Theft - Misc]

Definition of forgery, including mental state

22

Back 125

-Making/altering a writing
-So that it is false

MENTAL STATE: specific intent to defraud

NOTE: the mere act of making the writing is the crime -- don't have to give it to anyone

Front 126

Administrative Inspecitions and Searches in NY

Back 126

Warrantless impoundment and inspection of a person's vehicle is valid as an administrative search under the highly regulatory industry of motor vehicle safety

Front 127

[Against Property/Theft - Misc]

Definition of uttering, including mental state

22

Back 127

-offering as genuine
-forged instrument

MENTAL STATE: specific intent to defraud

Front 128

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

Back 128

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

Front 129

[Against Property/Theft - Misc]

Definition of malicious mischief, including mental state

22

Back 129

-destroying or damaging someone else's property

MENTAL STATE: malice

Front 130

Other Exceptions Permitting Warrantless Searches

Back 130

1) Administrative searches to seize spoiled or contaminated food
2) Searches of businesses within a highly regulated industry
3) Inventory searches of arrestees
4) Searches of airline passengers prior to boarding
5) Searches of probationer's homes even wihtout reasonable suspicion where a statute provides that as a condition of probation the probationer agrees to searches by police or probation officers at any time, with or wihtout a warrant or probable cause
6) Searches of government employee's desk and file cabinets whereh the scope is reasonable and there is a work related need or reasonable suspicion of work related misconduct
7) Drug tests of railroad employees involved in an accident
8) Drug tests of persons seeking customs employment in positions connected with drug interdiction and
9) Drug tests of public school students who participate in extracurricular activities

Front 131

[Against Property/Habitation - Burglary]

Definition of burglary, including mental state

23

Back 131

-Breaking (minimal force)
-Entering
-Home (where someone sleeps)
-Of another
-At night

MENTAL STATE: with INTENT TO COMMIT A FELONY INSIDE

Front 132

Standard of proof for prosecuting malice crimes

Back 132

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 133

[Against Property/Habitation - Arson]

Definition of arson, including mental state

24

Back 133

-Burnging of a building (Scorching IS enough)

MENTAL STATE: Malice (MPC recklessness)

Front 134

Searches in Foreign Countries, Border, and International Mail

Back 134

These are permitted without warrants
If officials have a reasonable suspicion that a travelr is smuggling contraband in his stomach they can detain the traveler
Roving patrols that reasonably suspect a vehicle inside the US border contians illegal aliens can stop the vehicle for questioning and border officials at fixed checkpoints inside the border can stop vehicles for quesitoning and dissemble the vehcile without reasonable suspicion

Front 135

[Accomplice Liability - Definitions]

What must person to do become an accomplice, including mental state

25

Back 135

ACT: - aid or encourage

MENTAL STATE: - intent crime be committed

Front 136

What constitutes malice?

Back 136

reckless disregard of an obvious or high risk that the particular harmful result will occur.

Front 137

[Accomplice Liability - Scope]

Scope of accomplice liability

25

Back 137

Full vicarious liability for all crimes

-aided and encouraged, AND
-all crimes foreseeable

Front 138

Search of Parolee in NY

Back 138

A parole officer can make a warrantless search of the parolee's apartment that is rationally and reasonably related to the parole officer's duties

Front 139

[Accomplice Liability - Scope]

What people are NOT accomplices?

26

Back 139

-Mere presence (must actually help)
-Mere knowledge (must have intent)
-Members of protected class

Front 140

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

Back 140

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

Front 141

[Accomplice Liability - Scope]

How can an accomplice withdraw?

26

Back 141

Encourager: Just discourage

Aider: must neutralize assistance of prevent by calling cops

Front 142

Wiretapping and Eavesdropping

Back 142

Requires a warrant EXCEPT for unreliable ears
For NY:
"Eavesdropping" includes "bugging" and "wiretapping" - both are felonies without a warrant or consent
Any person can record their own conversations.
Wiretap warrants are good for 30 days and the person being tapped must be informed of that within 90 days of the termination of the warrant.
If a 3rd party is incriminated by teh conversation it is admissibe if the 3rd party was not a party to the conversation and his premises or area of privacy was not invaded.

Front 143

[Accomplice Liability - Accessory after the fact]

What's the definition of an accessory after the fact, including mental state

27

Back 143

-Help felon
-With knowledge of past crime

MENTAL STATE: specific intent to help felon avoid arrest

Front 144

What elements are required in a crime?

Back 144

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

Front 145

[Inchoate]

What are the 3 Inchoate crimes?

27

Back 145

-Solicitation
-Attempt
-Conspiracy

Front 146

Miranda Warnings

Back 146

The Miranda warnings are the constitutional prerequisite of admissibility of any product of custodial interrogation.
The warnings are unnecessary for a spontaneous statement or "blurting out."
The right to counsel under the Miranda rights is not offense specific.
Failure to give the Miranda Warnings is a 5th Amendment violation.

Front 147

[Inchoate - Solicitation]

Definition of solicitation, including mental state

27

Back 147

-Asking someone to commit a crime

MENTAL STATE: Specific intent that crime be done

NOTE: mere asking is enough!

Front 148

Formula for identifying strict liability crimes

Back 148

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

Front 149

[Inchoate - Conspiracy]

Definition of conspiracy, including mental state

27

Back 149

-Agreement b/w 2 or more people to commit a crime
-Overt act (mere preparation is enough)

MENTAL STATE: Specific intent to accomplish objective (meeting of minds - TWO GUILTY MINDS)

NOTE: Crimes is the AGREEMENT

Front 150

Miranda Warnings: Legal Standard for Custody

Back 150

If at the time of the interrogation you are not free to leave, you are in custody. This covers the police station but also can cover your home or hospital bed if you are not free to leave.
Probation interviews and routine traffic stops are not custodial.

Front 151

[Inchoate - Conspiracy]

Rule for vicarious liability for co-conspirators

28

Back 151

Co-conspirators subject to vicarious liability if:

-acts in furtherance of conspiracy's objection
-acts were foreseeable

Front 152

What are the major malice crimes?

Back 152

1) Murder
2) Arson

Front 153

[Inchoate - Attempt]

What two elements must exist for there to be an attempt

29

Back 153

An act + mental state

Front 154

Miranda Warnings: Legal Standard for Interrogation

Back 154

Interrogation includes more than just asking questions and is defined as ANY conduct where the police knew or should ahve known that there might be a damaging statement given.
This does not include spontaneous statements.
Once the defendant asks for an attorney, all interrogation must end until the attorney is present.

Front 155

[Inchoate - Attempt]

What act is required for attempt?

29

Back 155

And act in furtherance of a crime

Front 156

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

Back 156

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 157

[Inchoate - Attempt]

What act in furtherance must there be under MPC and under common law?

29

Back 157

MPC: substantial step

Common law: dangerously close

Front 158

Miranda Waiver

Back 158

Must be knowing, voluntary and intelligent. There is no waiver based on silence or shoulder shrugging.
For NY:
If the police know or should have known that the defendant was represented by counsel, waiver is only effective if the knowing, intelligent, voluntary waiver is done in the presence of counsel.

Front 159

[Inchoate - Attempt]

What mental state is required for attempt?

30

Back 159

Specific intent to commit the crime

Front 160

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

Back 160

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 161

[Inchoate - Doctrines: Withdrawal]

What effect does withdrawal have on Inchoate crimes?

32

Back 161

Common law:
-NONE -- b/c inchoate crimes are committed by the agreement/attempt/asking
-However, withdrawal with stop any new vicarious liability for co-conspirators

MPC:
-D must voluntarily and completely renounce
-Renouncement must b/c change of heart, not fear of getting caught

Front 162

Right to Counsel in NY

Back 162

Attaches:
1) When the defendant is in custody and the police engages in activity overwhelming to the layperson and the defendant requests counsel or
2) At arraignment or
3) At the filing of an accusatory instrument (ex: grand jury, charge) or
4) When there has been significant judicial activity.

Front 163

[Inchoate - Doctrines: Merger]

What inchoate crimes are merged, and which aren't?

32

Back 163

Conspiracy - NOT merged

Attempt and solicitation - ARE merged

Front 164

Scope of Accomplice Liability

Back 164

1. The crime itself
2. All other foreseeable crimes

Front 165

[Defenses - Capacity]

What are the 3 capacity defenses?

34

Back 165

3 "I"s

-Insanity
-Intoxication
-Infancy

Front 166

Sixth Amendment Right to Counsel

Back 166

When you ask for an attorney other than after hearing Miranda rights in interrogation. The Sixth Amendment right to counsel is offense specific and the attorney will only have to be present if the defendant was being asked questions about the attorney's case.

Front 167

[Defenses - Capacity: Insanity]

What is the first requirement for ANY insanity defense?

34

Back 167

D must have mental disease or defect

Front 168

What are the major general intent crimes?

Back 168

1) Battery
2) Rape
3) Kidnapping
4) False Imprisonment
5) Assault (threatened harm)

Front 169

[Defenses - Capacity: Insanity]

NAME the 4 different insanity tests (don't give definitions)

34

Back 169

-M'Naughten
-Irresistible impulse
-Durham
-MPC

Front 170

Arthur Hobson Rule - NY

Back 170

The length of an interrogation and custody are factors in determining the voluntariness of confessions

Front 171

[Defenses - Capacity: Insanity]

M'Naughten test

34

Back 171

-Doesn't know right from wrong

Front 172

Define Accomplice

Back 172

One who, WITH THE INTENT THE CRIME BE COMMITTED, aids, counsels, or encourages the principal before or during the commissions of the crime (KNOWLEDGE INSUFFICIENT)

Front 173

[Defenses - Capacity: Insanity]

Irresistible impulse test

34

Back 173

Impuse can't resist

Front 174

Confessions - Infants

Back 174

Attempts to keep parents from children held by police may invalidate a child's confession. There is no invalidation if there is no attempt to conceal a child or deceive the family even when the parent refused permission to see the child.

Front 175

[Defenses - Capacity: Insanity]

Durham test

34

Back 175

But for illness, would not have done

Front 176

What are the non-specific intent types of murder?

Back 176

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 = untinentional killing by reckless conduct
-involuntary manslaughter = unintentional killing by criminal negligent act

Front 177

[Defenses - Capacity: Insanity]

MPC test

34

Back 177

M'Naughten OR Irresistible impulse:

-Doesn't know right from wrong, OR
-Impulse can't resist

Front 178

Spontaneous Statement in NY

Back 178

It will be admitted if it is "forced" on the police officer without any inducement, provocation or encouragement by the police.

Front 179

[Defenses - Capacity: Insanity]

Distinguish insanity from incompetence

34

Back 179

Insanity: insane at time of crime

Incompetence: insane at time of trial (result if trial is postponed)

Front 180

Define Accesory After the Fact

Back 180

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

Front 181

[Defenses - Capacity: Intoxication]

What effect of INvoluntary intox?

35

Back 181

-Defense to ANY crime
-Treat like insanity

Front 182

Emergency Exception to Right to Counsel in NY

Back 182

When police search for a person recently disappeared, the continued questioning of suspected kidnappers need not terminate although the right to counsel has attached.

Front 183

[Defenses - Capacity: Intoxication]

What effect of voluntary intox?

35

Back 183

Only negates specific intent crimes (property crimes)

NOT a defense to arson or murder

Front 184

What is general intent?

Back 184

Intending to do all factors constituting the crime.

Front 185

[Defenses - Capacity: Infancy]

What are the age levels for infancy under the common law and under the MPC?

35

Back 185

Common Law:
- <7 = no prosecution
- 7-13 rebuttable presumption against prosecution
- 14 + up: prosecution allowed

MPC:
- <16 no criminal prosecution
- 16 or 17: juvenile court only

Front 186

Pretrial Identification: Possible means of attack

Back 186

1) Right to counsel if lineup/showup is post charge. There is no right to counsel when police show victim/witness photographs.
2) If the lineup/showup is so unnecessary and substantially suggestive or unlikely to result in a mistaken identity then it denies due process of law
If you show either of the above, the lineup/showup is excluded UNLESS the prosecutor can show the witness/victim has an independent source for identification

Front 187

[Defenses - Other]

What are the other 3 defenses?

36

Back 187

-Self-defense
-Duress
-Entrapment

Front 188

Exclusions from liability

Back 188

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

Front 189

[Defenses - Other: Self-defense]

Rule for allowed to use NON-deadly force

36

Back 189

-Reasonably necessary
-Protect against immediate use
-against unlawful force

Front 190

Requirements for Post-Charge Identification Evidence

Back 190

1) Counsel was present
2) Accused waived counsel or
3) There is an independent source for the in court idetnification

Front 191

[Defenses - Other: Self-defense]

Rule for allowed to use deadly force

36

Back 191

-Reasonably necessary
-To protect against imminent threat of death or serious injury
-Not the initial aggressor

Front 192

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

Back 192

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 193

[Defenses - Other: Self-defense]

What's the exception to the not initial aggressor requirement?

36

Back 193

-Initial aggressor withdraws and communicates withdrawal

OR

-The victim escalates a non-deadly fight into a deadly fight

Front 194

Pretrial Identification in NY

Back 194

No right to counsel at "investigatory lineups" held prior to formal prosecutorial action except when:
1) Police are aware that defendant is represented by counsel on another charge and
2) Defendant explicitly requests his attorney (police must contact attorney and give him a reasonable amount of time to come to the lineup)

Front 195

[Defenses - Other: Self-defense]

What is the common law and majority rule for retreat?

37

Back 195

Majoirty rule: Retreat is NOT required

Common law: Retreat required unless:
-D cannot retreat in complete safety
-D is in his home (castle doctrine)
-D is defending against any felony risking human life

Front 196

Methods of withdrawal
- encouraged:
- provided materials to assist:

Back 196

- encouraged: repudiate
- provided materials: neutralize the assistance
OR
- notify authorities; take some action to prevent

Front 197

[Defenses - Other: Self-defense]

What if D is mistaken about need for self-defense?

37

Back 197

Reasonable mistake - can use self-defense

Unreasonable mistake at common law = murder

Unreasonable mistake under MPC = "imperfect self-defense" = voluntary manslaughter

Front 198

Bail

Back 198

Immediately appealable and preventitve detention is constitutional

Front 199

[Defenses - Other: Self-defense]

What level or force may be used to resist an UNLAWFUL arrest under MPC, and under common law?

38

Back 199

Common law: Non-deadly force

MPC rule: NO force, unless cop is using excessive force

Front 200

How can general intent be proven?

Back 200

A jury may infer the required general intent merely from the doing of the act.

Front 201

[Defenses - Other: Self-defense]

What level of force may a private person use to prevent a crime?

38

Back 201

Can use NONDEADLY to prevent ANY crime

Can use DEADLY to prevent a felony risking human life

Front 202

Grand Juries

Back 202

Done in secret.
The defendant has no right to notice that the grand jury may be considering indicting him or to confront the victim/witnesses and a witness doesn't have a right to get the Miranda warnings or know that he may be a potential defendant.
Grand jury may base its indictment on evidence not admittable at trial.
There is no right to challenge a grand jury subpoena
If minorities are excluded from a grand jury, any conviction resulting from that indictment will be reversed regardless to harmless error

Front 203

[Defenses - Other: Self-defense]

What level of force may a private person use to apprehend a criminal?

--

Back 203

Can use NONDEADLY if crime was ACTUALLY committed + reasonable grounds

Can use DEADLY if person killed was ACTUALLY GUILTY

Front 204

List the inchoate offenses (3)

Back 204

1. Solicitation
2. Attempt
3. Conspiracy

Front 205

[Defenses - Other: Duress]

What are the elements of duress (and exception)

38

Back 205

D was forced to commit a crime under threat of imminent death or serious bodily harm

EXCEPTION: Duress is NOT a defense to homicide

Front 206

Grand Juries in NY

Back 206

1) Between 16 and 23 people, 12 must agree to indict
2) Witness who has not been granted immunity may consult with counsel but not in the grand jury room. A witness that waived immunity may be accompanied by trial to the grand jury room.
Waiver must be in writing, signed by the witness, and it must be sworn before the jury. The waiver can be limited to certain subjects.
3) Grand jury indictment in NY must be aesd on legally competent/sufficient evidence that could be used at trial
4) Any witness testifying before the grand jury gets transactional immunity unless he chooses to waive that immunity
5) If defendant requests an opportunity to testify that request will be granted as long as he waives immunity

Front 207

[Defenses - Other: Entrapment]

What are the elements of entrapment

38

Back 207

-Plan originated w/ Gov't (easy to prove)
-D was not predisposed (extremely hard to prove)

NOTE: Under PA law the focus is ONLY on conduct of police - NOT if D was predisposed

PA test is to objectively look at cops conduct to see if one who is INNOCENTLY disposed would have done it

Front 208

na

Back 208

na

Front 209

Waiving Indictment in NY

Back 209

Can waive grand jury indictment if:
1) He is being held for grand jury action
2) The crime is punishable other than by death or life imprisonment and
3) The district attorney consents

Front 210

Define Solicitation

Back 210

Asking someone to commit a felony with the intent that the person solicited do the crime

Front 211

Grand Jury Indictments in NY

Back 211

Grand Jury may indict when:
1) Evidence establishes all the elements of the crime
2) The evidence is legally sufficient and
3) The evidence establishes reasonable cause to belive the accused committed the crime

Front 212

When can D be held liable via transfered intent?

Back 212

When he intend harm that is actually caused, but the harm occurs to different victim or object.

**Doctrine applies to homicide, battery, and arson.
**Always results in 2 crimes, the one committed and the one attempted.

Front 213

Grand Jury Dismissal in NY

Back 213

If the grand jury does not indict and dismisses:
1) Defendant must be released if being held in custody upon the charge
2) The matter may not be resubmitted to the same or another grand jury unless the court allows resubmission and
3) The defendant must be notified within 90 days of filing the dismissal unless resubmission has been allowed or the court for good cause and exigent circumstances postpones giving notice

Front 214

At what point is the crime of solicitation complete

Back 214

At the time the solicitation is made

Front 215

Right to Speedy Trial

Back 215

Evaluated on totality of the circumstnaces considering:
1) Length of delay
2) Reason for delay
3) Whether defendant asserted his right and
4) Prejudice to defendant
Remedy for a violation is dismissal with prejudice.
Right to speedy trial does not attach until defendant has been arrested or charged an dprosecution cannot indefinitely suspend charges. The defendant does not need to know of the charges for the speedy trial right to attach.

Front 216

How can you use excluded evidence for impeachment purposes

Back 216

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

Front 217

Right to Speedy Trial in NY

Back 217

If prosecution isn't ready for trial, defendant may be released from custody or have the charge dismissed, depending on the delay. Unexcused delay requires dismissal upon the defendant's motion with the exception of:
1) Homicide or
2) Sudden unavailability of material evidence
Exceptions from Time Periods:
Reasonable delay from other proceedings, continuance, absence of defendant if defendant causes delay, reasoanble delay caused by joinder of defendants, delay caused by defendant detention in another jurisdiction, delay by exceptional circumstances, and period during which action is adjourned in contemplation of dismissal

Front 218

- Non-defenses to soliciation
- Potential defense

Back 218

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

Front 219

Prosecutorial Duty to Disclose Exculpatory Information

Back 219

Prosecution must disclose exculpatory evidence and failure to do so is grounds for reversing a conviction if defendant can prove:
1) Evidence is favorable to defendant because it is either impeachement or exculpatory evidence and
2) Prejudice has resulted

Front 220

What is a strict liability offense?

Back 220

One that does not require intent/awareness of all of the factors constituting the crime. (ie, no intent required... just doing the act is enough)

**statutory rape, selling liquor to minors, etc.

Front 221

Defendant Notification of Use of Alibi or Insanity Defense

Back 221

Defendant must notify the prosecutor if he intends to use an alibi or insantiy defense and if he uses either he must give the prosecution a list of witnesses. The prosecution must give the defendant a list of rebuttal witnesses.

Front 222

Successful conspirators can be convicted of

Back 222

1. The criminal conspiracy
AND
2. The completed crime

Front 223

Incomptetency

Back 223

Incompetency bars trial and is shown if defendant:
1) Lacks a rational as well as factual understanding of the charges and proceedings or
2) Lacks sufficient present ability to consult with his lawyer with a reasonable degree of understanding

Front 224

What are the levels of mens rea?

Back 224

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 225

Right to Fair Trial

Back 225

The 6th and 14th Amendments guarantee the right to a public trial. Pretrial proceedings can be limited and closed in circumstances but the press and public have a 1st Amendment right to attend the trial.
A judge cannot show malice agains tthe defendant or have a financial interest in a guilty verdict.
Defendants have a right to a judge that is law-trained in trials for serious crimes.
Other Due Process Violations:
1) Trial conducted in a manner makin git unlikely that the jury gave the evidence reasonable consideration
2) State compels defendant to stand trial in prison clothing
3) State compels defendant to be visibly shackled, unless there is a justification for courtroom security or preventing escape
3) The jury is exposed to influence favorable to the prosecution

Front 226

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

Back 226

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

Front 227

Right to Jury Trial

Back 227

Attaches whenever defendant is tried for an offense with a maximum authorized sentence exceeding 6 months (no right to jury trial if maximum sentence is up to and including 6 months).
For criminal contempt, the sum of the sentence imposed governs.
Minimum amount of jurors is 6 and they must be unanimous, if there are more jurors, unanimity is not required.
You have a righ tto a fair cross-sectioned jury pool from your community (even though your own jury may not be cross-sectioned).
It is unconstitutional for parties to exercise preemptory challenges on account of a juror's race or gender.
Inconsistent verdicts are not reviewable

Front 228

Standard for reviewing improperly obtained evidence to admit at trial

Back 228

Harmless error test

Front 229

Right to an Impartial Jury

Back 229

1) Defendant is entiteld to question on voir dire about racial prejudice whenever race is bound up in the case or he is accused of an interracial capital crime
2) In capital punishment cases, a state may not automatically exclude for cause all lpotential jurors who express doubt or scruple about the death penalty, it must be determined that the juror's views would prevent or substantially impair performance of his duties in accordance with his instructions and oath
3) If the jury is deciding the death sentence, the defendant has the right on voir dire to ask potential jurors if they would automatically give the death penalty upon a guilty verdict and a juror who answers affirmatively must be excluded because such a juror cannot perform his duties according to instructions on mitigating circumstances
4) There is no constitutional violation if a trial court refuses to exclude for cause a juror it should exclude, and the defendnat uses a peremptory challenge to exclude the juror

Front 230

Elements of Conspiracy

Back 230

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 acheive the objective ("meeting of guilty minds")
(4). An overt act (mere preparation will suffice)

Front 231

Right to Fair Trial

Back 231

The 6th and 14th Amendments guarantee the right to a public trial. Pretrial proceedings can be limited and closed in circumstances but the press and public have a 1st Amendment right to attend the trial.
A judge cannot show malice agains tthe defendant or have a financial interest in a guilty verdict.
Defendants have a right to a judge that is law-trained in trials for serious crimes.
Other Due Process Violations:
1) Trial conducted in a manner makin git unlikely that the jury gave the evidence reasonable consideration
2) State compels defendant to stand trial in prison clothing
3) State compels defendant to be visibly shackled, unless there is a justification for courtroom security or preventing escape
3) The jury is exposed to influence favorable to the prosecution

Front 232

What is a vicarious liability offense?

Back 232

One in which a person with or without personal fault is held liable for criminal conduct of another (usually an employee).

Front 233

Right to Jury Trial

Back 233

Attaches whenever defendant is tried for an offense with a maximum authorized sentence exceeding 6 months (no right to jury trial if maximum sentence is up to and including 6 months).
For criminal contempt, the sum of the sentence imposed governs.
Minimum amount of jurors is 6 and they must be unanimous, if there are more jurors, unanimity is not required.
You have a righ tto a fair cross-sectioned jury pool from your community (even though your own jury may not be cross-sectioned).
It is unconstitutional for parties to exercise preemptory challenges on account of a juror's race or gender.
Inconsistent verdicts are not reviewable

Front 234

Split in jurisdication regarding overt act to a conspiracry

Back 234

Majority: agreement and overt act
Minority/Common law: agreement is enough

Front 235

Right to an Impartial Jury

Back 235

1) Defendant is entiteld to question on voir dire about racial prejudice whenever race is bound up in the case or he is accused of an interracial capital crime
2) In capital punishment cases, a state may not automatically exclude for cause all lpotential jurors who express doubt or scruple about the death penalty, it must be determined that the juror's views would prevent or substantially impair performance of his duties in accordance with his instructions and oath
3) If the jury is deciding the death sentence, the defendant has the right on voir dire to ask potential jurors if they would automatically give the death penalty upon a guilty verdict and a juror who answers affirmatively must be excluded because such a juror cannot perform his duties according to instructions on mitigating circumstances
4) There is no constitutional violation if a trial court refuses to exclude for cause a juror it should exclude, and the defendnat uses a peremptory challenge to exclude the juror

Front 236

What is aiding and abetting?

Back 236

GR: one who aids, consels, 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 237

Jury Trial in NY

Back 237

Prosecutor's opening statement cannot be waived.
Indictment (felonies): 12 jurors with up to 4 alternates at the discretion of the court.
Information (crimes less than felonies): 6 jurors with up to 2 alternates, and if punishment is for 6 months or less there is no jury.
Under certain circumstances, a child witness may testify from a separate room via two way closed circuit television

Front 238

Withdrawal as a defense to conspiracy

Back 238

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

Front 239

Challenging Jurors in NY

Back 239

1) Lack of qualification (less than 18 years old)
2) Not impartial because of juror's state of mind
3) Juror is related within the 6th degree of consanguinity or afinity to the defendant, a person allegedly injured, a prospective witness, or counsel
4) Prospective juror was a party adverse to a defendant, victim, witness, or counsel in any civil action or was complained against or accused by any such person in a criminal action
5) Juror was a witness at any preliminary examination or before the grand jury or is to be a witness at trial
6) Juror served on teh grand jury or served as a juror in a prior civil or criminal action involving the same conduct charged

Front 240

What is the MPC standard on intent?

Back 240

It eliminates general/specific intent distinction and adopts the following categories:
1) Purposely
2) Knowingly
3) Recklessly
4) Negligently

Front 241

Waiver of Jury Trial in NY

Back 241

Unless indictment charges murder in the 1st degree, defendant at any time before the trial may waive a trial by jury if the waiver is:
1) In writing
2) Signed in open court
3) In the presence of the judge and
4) With the judge's approval

Front 242

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

Back 242

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

Front 243

Times When Defendant has a Right to be Represented by Counsel

Back 243

1) Custodial Police Interrogation
2) Post-indictment Interrogation, whether custodial or not
3) Preliminary Hearings to determine probable cause to prosecute
4) Arraignment
5) Post-charge Lineups
6) Guilty Plea and Sentencing
7) Felony Trials
8) Misdemeanor Trials when imprisonment is actually imposed or when a suspended jail sentence is imposed
9) Overnight recesses during trial
10) Appeals as a matter of right and
11) Appeals of guilty pleas

Front 244

Harmelss error test

Back 244

A conviction can be upheld if the conviction would have resutled despite the improper evidence (govt. carries the burden to show harmless beyond a reasonable doubt)

Front 245

Times When Defendant does NOT have a Right to be Represented by Counsel

Back 245

1) Blood Sampling
2) Taking handwriting or voice samples
3) Precharge or investigative lineups
4) Photo identifications
5) Preiminary hearings to determine probable cause to detain
6) Brief recesses during the defendant's testimony at trial
7) Discretionary appeals
8) Parole and probation revocation proceedings and
9) Post-conviction Hearings

Front 246

Define Attempt

Back 246

The specific intent AND a substantial step beyond mere preparation

Front 247

Standard for Ineffective Assistance of Counsel

Back 247

Deficient performance by counsel and but for such deficiency the result of the proceeding would have been differnt.
Defendant must point to specific deficiencies and cannot raise claims based on lack of experience, time to prepare, gravity of charges, complexity of defenses, or accessibility of witnes to counsel.
Trial tactics and failure to raise a constitutional defense that is later invalidated do not constitute ineffective assistance of counsel

Front 248

When does a person act purposely?

Back 248

When his conscious objective is to engage in certain conduct or cause a certain result.

** purposely = to common law specific intent

Front 249

Standard for Ineffective Assistance of Counsel in NY

Back 249

Defendant must show:
1) Attorney failed to provide "meaningful respresentation"
2) A single error can constitute ineffective assistance, but only when the error is "sufficinetly egregious and prejudicial as to compromise a defendant's right to a fair trial"
3) The absence of any strategic explanation for the attorney's performance and
4) Citing ineffective assistance for failure to make a motion, defendant must prove that the motion had a reasonable chance of succeeding

Front 250

Defenses to liability for attempt

Back 250

Legal impossibility

Front 251

Guilty Pleas and Plea Bargaining Generally

Back 251

1) Supreme Court is unwilling to disturb guilty pleas after sentencing
2) Supreme Court has adopted the contract theory of plea bargaining - treating plea bargaining like contracts and saying the terms should be revealed at the plea taking

Front 252

What are the inchoate crimes and definitions?

Back 252

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 253

Taking the Plea

Back 253

Judge must tell the defendant:
1) The nature of the charge
2) The maximum authorized sentence and any mandatory minimum sentence
3) Defendant has a right to plea not guilty and demand a trial

Front 254

Can D argue abandonment to attempt

Back 254

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

Front 255

Bases for Withdrawing a Guilty Plea After Sentencing

Back 255

1) The plea was involuntary (mistake in plea taking)
2) Lack of jurisdiction to take the plea
3) Ineffective assistance of counsel
4) Failure of the prosecutor to keep an agreed upon plea bargain

Front 256

When does a person act knowingly?

Back 256

When a D is aware that his conduct is of a particular nature or knows it is very likely to cause a result.

** equivalent to common law malice

Front 257

Guilty Plea in NY

Back 257

At time of sentencing, judge has the discretion to allow a defendant to withdraw a plea of guilty to all or part of an indictment.
Sentencing court has the power to impose a lighter sentence than that bargained for and the prosecution can apply to withdraw consent to the plea if a lighter sentence is imposed. If the court breaks a promise which the defendant relied on when pleading, the remedy is to withdraw the plea.

Front 258

Formulations of Insanity Defenses

Back 258

1. M'Naghten rule
2. Irresistible Impluse Test
3. Durham Test
4. ALI/MPC Test

Front 259

In NY, Defendant who Pleads Guilty can Appeal Pretrial Orders Denying Motions for Supppression of

Back 259

1) Confessions
2) Evidence from illegal searches and seizures
3) Identification testimony

Front 260

Defendant's right regarding admissibility of evidence

Back 260

- 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 261

Sentencing

Back 261

Defendant has a right to counsel during sentencing.
In death penalty cases, defendant must have more of an opportunity for confrontation than in other sentencing proceedings.
Re-sentencing afer successful appeal and re-conviction generally may not be harsher.

Front 262

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

Back 262

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

Front 263

Death Penalty

Back 263

1) Any death penalty statute that does not give defendant a chance to present mitigating facts and circumstances is unconstitutional
2) There can be no automatic category for imposition of the death penalty
3) States may not by statute limit the mitigating factors; all relevant mitigating evidence must be admissible or the statute is unconstitutional
4) Only a jury and not a judge may determine the aggravating factors justifying imposing the death penalty

Front 264

When does a person act recklessly?

Back 264

When he knows of a substantial and unjustifiable risk and consiously disregards it.

Front 265

Prisoner's Rights

Back 265

1) Prison regulations impinge on due process rights only if the regulations impose "atypical and significant hardship" in relation to ordinary incidents of prison life
2) There is no 4th Amendment protection in cells (no reasonable expectation of privacy)
3) Prisoners must be given reasonable access to the courts
4) 1st Amendment rights to freedom of speech, association, and religion may be burdened by regulations reasonably related to penological interests (incoming mail can be regulated but not as much with outgoing)
5) Prisoners have a right to adequate medical care under the 8th Amendment prohibition against cruel and unusual punishment
Note: felons may be unable to vote in state elections even after released from prison

Front 266

Irresistible Impulse test

Back 266

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

Front 267

Double Jeopardy

Back 267

Jury trial: Attaches when jury is sworn
Judge Trial: Attaches when first witness is sworn
Civil Trials: Does NOT usually attach
Generally 2 crimes are not the same offense if each crime requires proof of an adidtional element that the other does not. Cannot try a lessor or greater offense after you tried the other one although if a victim later dies after your trial for battery, you can be tried for that murder.

Front 268

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

Back 268

1) Solicitation merges with attempt

Front 269

When Re-Trial is Permitted

Back 269

1) Jury is unable to agree on a verdict and the jury is "hung"
2) Mistrials for manifest necessity
3) Re-trial after successful appeal
4) Breach of an agreed upon plea bargain by the defendant (plea and sentence can be vacated and original charge reinstated)

Front 270

Durham Test

Back 270

crime was a product of mental diseas or defect (but for the disease)

Front 271

Double Jeopardy and Different Sovereigns

Back 271

Different sovereigns can both try you for the same crime. Different sovereigns include 2 different state courts or the federal and state courts. But you cannot be separately prosecuted for a violation of a state and a municipality statute since they are within the same sovereign.

Front 272

When does a person act with negligence?

Back 272

When he fails to be aware of a substantial and unjustifiable risk, where such failure is a substantial deviation from the standard of care. (objective standard)

Front 273

Double Jeopardy in NY

Back 273

All crimes arising from a single transaction must be tried together.
A person is "prosecuted" when he is charged by an accusatory instrument filed in a court of NY or any jurisdiction within the US and the action eitehr:
1) Terminates in a conviction up on a plea of guilty or
2) Proceeds to the trial stage and a jury has been impaneled and sworn in or in teh case of trial without a jury, a witness is sworn in

Front 274

ALI/MPC approach to insanity

Back 274

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 275

Appeals to Intermediate Appellate Court as of Right by the Defendant in NY

Back 275

1) Judgment other than one including a death sentence, unless appeal is solely based on the gorund that a sentence was harsh or excessive when made on a guilty plea and the sentence did not exceed what the defendant agreed to as a condition of the plea
2) Sentence, other than death, if the sentence is either invalid as a matter of law or is harsh or excessive
3) Sentence including an order of criminal forfeiture
4) Order setting aside a sentence other htan one of deaht upon motion of the prosecution

Front 276

What constitutes a seizure of the person

Back 276

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 277

Appeals to Intermediate Appellate Court as of Right by the Prosecution in NY

Back 277

1) Order dismissing an accusatory instrument or count thereof
2) Trial order of dismissal
3) Order setting aside a verdict
4) Motion to set aside the verdict before sentencing
5) Sentence, other than one of death (may only be based on invalidity as a matter of law)
6) Motion made by the defense to suppress evidence

Front 278

Burden of proof on insanity

Back 278

Presumed sane; D must present some evidence

Front 279

Exceptions Permitting Retrial in NY

Back 279

A person is not deemed to have been prosecuted when:
1) Such prosecution occurred in a court which lacked jurisdiciton over the defendant or offense or
2) Such prosecution was for a lesser offense that could have been charged under the facts of the case and the prosecution was procured by defendant without the knowledge of the appropriate prosecutor, for the purposes of avoiding prosecution of the greater offense

Front 280

What is the significane of concurrence of the mental fault and physical act?

Back 280

D must have the necessary intent for the crime at the time he committed the act constituting the crime.

Front 281

Transaction Test in NY

Back 281

Defendant has to be charged with all offenses arising from any single transaction except when:
1) The offenses have substantially different elements
2) Each contains an element not in the other and is designed to prevent very different harms
3) One is criminal possession, the other is criminal use (other than sale)
4) Each involved death, injury, loss, etc to different victims
5) Violation of another jurisdiction's statute, terminated by court order in the other jurisdiction for lack of evidence as to an element not in NY crime or
6) One offense is NY RICO and the other is federal RICO

Front 282

A good defense to specific intent crimes

Back 282

Voluntary intoxication

Front 283

Fifth Amendment Privilege Against Compelled Testimony

Back 283

Anyone can assert the privilege in any case where they are asked a question under oath that the response to which may incriminate them, whether civil, criminal, administrative, or congressional
Corporations and partnerships may not use this privilege
If you ever give up the privilege on a question, it is given up for any future proceedings

Front 284

What is robbery?

Back 284

Larceny + assault
-Can't be guilty of robbert and one of the LIIs

Front 285

Scope of the Fifth Amendment Privilege Against Compelled Testimony

Back 285

It does NOT protect us from having the government use our bodies in ways to incriminate us
It does protect us against compelled testimony
Prosecutor cannot make a negative comment about a defendant's failure to testify or decision to remain silent after hearing the Miranda warnings

Front 286

Voluntary intoxication is no defense to

Back 286

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

Front 287

Elimination of the Fifth Amendment Privilege Against Compelled Testimony

Back 287

1) Grant of Immunity (use and derivative use immunity - can use whatever had before the immunity)
2) There is no possibility of incrimination (SOL has run)
3) Waiver (when defendnat takes the stand)

Front 288

Who are the parties to the crime under most modern statutes?

Back 288

1) Principle (person who committs the offense)
2) Accomplice (person who aids or encourages the principle - active involvement)
3) Accessory (person who aids another to escape, knowing he has committed a felony)

Front 289

Elimination of the Fifth Amendment Privilege Against Compelled Testimony in NY

Back 289

NY grants the broader immunity of transactional immunity rather than use and derivative use immunity - immunizing you from any transaction you testify to

Front 290

Establish involuntary intoxication

Back 290

1. Under duress
2. Without knowledge
OR
3. Pursuant to medical advice

Front 291

Juvenile Court Proceedings Rights

Back 291

1) Written notice of the charges
2) Assistane of counsel
3) Opportunity to confront and cross-examine witnesses
4) Right not to testify
5) Righ tto have "guilt" established by proof beyond a reasonable doubt
There is no right to a jury in delinquency proceedings. Pretrial detention is allowed when the juvenile is a "serious risk" to society as long as that detention is for a strictly limited to the time before the trial
If the juvenile court finds the child delinquent, jeopardy attaches and the child cannot be tried again as an adult for the same behavior

Front 292

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

Back 292

No

Front 293

Forfeiture Actions

Back 293

Actions are brought directly against property and generally regarded as quasi-criminal.
The owner of personal property is not constitutionally entitled to notice and hearing before the proeprty is seized for purposes of a fofeiture proceeding. A hearing is required before final forfeiture of the property.
Where real property is seized, notice and an opportunity to be heard are required before the seizure of the property unless the government cna prove exigent circumstances justifying immediate seizure.
8th Amendment can apply for penal forfeitures where the forfeiture is "excessive" meaning that it is grossly disproportionate to the gravity of the offense.

Front 294

Infacny is determined by

Back 294

Physical age at the time of the crime

Front 295

What is the scope of accomplice liability?

Back 295

He is responsible for:
1) the crimes he committed or encourage the prinicipal to do; and
2) any other forseeable crimes committed by the principle in the course of committing the crime contemplated.

Front 296

No criminal liability based on infancy under age

Back 296

Seven

Front 297

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 297

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

Front 298

Rebuttable presumption of no criminal liability on infancy under age

Back 298

Fourteen

Front 299

What is the liabilty of an accessory?

Back 299

Liable for seperate, less serious crime of being an accessory after the fact.

Front 300

May use deadly force if (3 things)

Back 300

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

Front 301

An arrest must be based on

Back 301

Probably cause present when the officer makes the arrest

Front 302

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

Back 302

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

Front 303

What mental state is required to be liable as an accomplice?

Back 303

Most jurisdictions require that the person acted with the intent to encourage the crime.

Front 304

Retreat from deadly force

Back 304

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

Front 305

To what is voluntary intoxication a defense?

Back 305

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

Front 306

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

Back 306

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 307

Is the inability to be a principal a bar to accomplice liability?

Back 307

No. (eg, a woman can be an accomplice to rape)

Front 308

For defense of property

Back 308

Deadly force may NEVER be used

Front 309

Mistaken offense for arrest

Back 309

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

Front 310

Duress is a defense to

Back 310

All crimes except homicide

Front 311

What is necessary for withdrawal by an accomplice to be an effective defense?

Back 311

1) Repudiation if party merely encouraged;
2) Attempt to neutralize assistance or notifying the police is required otherwise;

Front 312

Mistake of Fact as a defense to a specific intent crime

Back 312

Any mistake will serve as a defense

Front 313

What is arson?

Back 313

The malicious burning of the dwelling house of another
-In a least likely answer, look for lack of malice

Front 314

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

Back 314

Reasonable mistake only

Front 315

Who is excluded from accomplice liability?

Back 315

1) Members of the protected class
2) Necessary parties not provided for (eg, if sale but not purchase of drugs is illegal, the purchaser can't be an accomplice)
3) Party who withdraws before the crime becomes unstoppable

Front 316

Mistake of Facts as a defense to strict liability

Back 316

NEVER a defense

Front 317

Warrant requirement for arrests

Back 317

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

Front 318

Consent as a defense

Back 318

NEVER indulge consent of the victime as a defense

Front 319

List the elements of battery.

Back 319

-General intent
-Completed assault

Front 320

Two elements to Entrapment

Back 320

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

Front 321

Home arrest warrant requirement

Back 321

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

Front 322

Offenses against Person include

Back 322

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

Front 323

List the elements of assault.

Back 323

2 theories:
1) attempted battery: reqs specific intent
2) threat of bodily injury: general intent

Front 324

Define Battery

Back 324

A completed assault; force to another resulting in either bodily injury or and offensive touching

Front 325

What are the inchoate crimes?

Back 325

1) Solicitation
2) Cospiracy
3) Attempt

Front 326

State of mind for battery

Back 326

Intent not required; criminal negligence sufficient

Front 327

Effect of an invalid arrest on subsequent criminal prosecution

Back 327

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

Front 328

Aggravated Battery

Back 328

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

Front 329

What are the elements of solicitation?

Back 329

1) Inciting, counseling, urging, or commanding another to committ a crime,
2) with the intent that the person actually committ it.

**act is completed upon asking.

Front 330

Define Assault (2 possibilities)

Back 330

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

Front 331

List the elements of homocide.

Back 331

1) Intent = 4 types
a) Intent to kill
b) intent to inflict great bodily harm
c) depraved heart (highly reckless)
d) involuntary manslaughter (criminally negligent)
2)

Front 332

Common law criminal homicide subdivided into three different offenses

Back 332

1. Murder
2. Voluntary Manlaughter
3. Involuntary Manslaughter

Front 333

Is it a defense that the person solicited is not convicted or the offense could not have been successful?

Back 333

No.

Front 334

Define Murder

Back 334

Unlawful killing of a human with malice

Front 335

To detain for a Stop and Frisk police must have

Back 335

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

Front 336

Define Malice

Back 336

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 337

Is withdrawal a defense to solicitation?

Back 337

No.

Front 338

Define Voluntary Manslaughter

Back 338

Intentional killing by provocation (i.e. passion)

Front 339

List the elements of manslaughter.

Back 339

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

Front 340

Elements of adequate provocation

Back 340

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 341

Does the crime of solicitation merge?

Back 341

Yes, the solicitor cannot be punished for both solicition and attempt, conspiracy, or the crime comitted.

Front 342

Involuntary Manslaughter - two forms

Back 342

1. Criminal Negligence
2. "Unlawful Act"/"Misdemeanor Manslaughter"

Front 343

Reasonable suspicion defined

Back 343

Totality of the circumstances

Front 344

Involuntary Manslaughter - Criminal Negligence

Back 344

Death caused by criminal negligence (some states require subjective awarenss of risk)

Front 345

In VA, when is it 1st Degree murder without premeditation?

Back 345

1) The following types: lying in wait, imprisoning, starving, felony murder

Front 346

Involuntary Manslaughter -"Unlawful Act"/"Misdemeanor Manslaughter"

Back 346

Killing caused by an unlawful act; in the commission of a misdemeanor (inherently wrong act or foreseeable)

Front 347

Source of reasonable suspicion

Back 347

Need not arise from officer's personal knowledge

Front 348

Define Felony Murder

Back 348

A killing committed during the course of a felony (malice is implied from the intent to commit the underlying felony)

Front 349

What are the elements of larceny?

Back 349

-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)

Front 350

Defenses to Felony Murder

Back 350

- a defense to the felony is a defense to felony murder
- felony must be independant of the killing
- death must have been forseeable (broadly interpreted)
- death must have been "caused during" the commission of the felony (includes fleeing)
- death of co-felon caused by resistance from victim or police pursuit

Front 351

Informant's tip as basis for reasonable suspicion

Back 351

Must be accompanied by indicia of reliability

Front 352

Applicability of the year and a day rule

Back 352

Outdated; mostly abolished

Front 353

What are the elements of conspiracy?

Back 353

1) An agreement between 2 or more persons;
2) An intent to enter into the agreement; and
3) An intent by at least 2 person to achieve the objective of the agreement
4) An overt act in furtherance (majority and NY rule)

Front 354

Hastening an inevitbale result

Back 354

Is a legal cause of that result

Front 355

What are the elements of embezzlement?

Back 355

-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 possession

Front 356

List Property Offenses

Back 356

- Larceny
- Embezzlement
- False Pretenses
- Robbery

Front 357

What is necessary for an agreement in a conspiracy?

Back 357

The parties must agree to accomplish the same objective by mutual action.

**can be infered from joint activity

Front 358

List Offenses against Habitation

Back 358

- Burglary
- Arson

Front 359

Development of probable cause

Back 359

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

Front 360

Elements of Larceny (possession not title)

Back 360

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 361

What is the Wharton Rule?

Back 361

Where 2 or more people are necessary for commission of the offense (eg, adultery) there is no crime unless more parties agree to the crime than necessary.

Front 362

Larency among joint owners or against abandoned property

Back 362

Cannot be committed

Front 363

What are the elements of kidnapping?

Back 363

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

Front 364

Larceny of lost or mislaid property

Back 364

Considered constructively in the owner's possession

Front 365

What is the conspiracy rule regarding protected classes?

Back 365

The nonprotected person cannot be guilty if the agreement was only with the protected person.

Front 366

Embezzlement generally requires

Back 366

1. The fraudulent
2. Conversion (manner inconsistent with trust arrangment; need not benefit D)
3. Of Property (real property and services not included)
4. Of Another
5. By a person is lawful possession

Front 367

Authority to use roadblocks

Back 367

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 368

False Pretenses general consists of

Back 368

1. Obtaining title
2. To the property of another
3. By an intentional (or knowing) false statement of past or existing fact
4. With intent to defraud

Front 369

What is the effect of acquital of some conspirators?

Back 369

If D is charged and all others have been acquitted, D cannot be convicted.

Front 370

Robbery (larceny + assualt) consists of

Back 370

1. A taking
2. Of personal property of another
3. From the other's person or presence (broadly construed)
4. By force or intimidation (threat of imminent harm)
5. With the intent to permanently deprive

Front 371

What are the elements of rape?

Back 371

-Unlawful carnal knowledge
-of a woman
-by a man, not her husband
-without her effective consent

Front 372

Aggravated Robbery

Back 372

Robbery with a deadly weapon

Front 373

Can a person conspire with an undercover police officer?

Back 373

Generally No, because only D intended that the object crime be completed.

Front 374

Extortion disinguished from Robbery

Back 374

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

Front 375

Validity of pretextual stops

Back 375

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

Front 376

Elements of Burglary (common law)

Back 376

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 377

What is the MPC approach to conspiracy?

Back 377

D can be convicted of conspiracy regardless of whether the other parties have all been acquited or were feigning agreement.

Front 378

Breaking requirement for burglary

Back 378

- minimal force sufficent; can be constructive (i.e. fraud, threat); must be a trespass; must be to gain entry

Front 379

What are the elements of false imprisonment?

Back 379

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

Front 380

Elements of Arson

Back 380

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

Front 381

What intent is required for conspiracy?

Back 381

Specific intent to:
1) agree
2) achieve the object of the conspiracy.

Front 382

Detention to obtain warrant

Back 382

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

Front 383

What is the scope of a conspirator's liability?

Back 383

May be liable for crimes of other conspirators if:
1) They were committed in furtherance of the objective of the conspiracy; and
2) They were foreseeable.

Front 384

What are the elements of false pretenses?

Back 384

-obtaining title
-to personal property of another
-by an intentional false statement of past/existing fact (not future fact)
-with intent to defraud the other

Front 385

When does the conspiracy terminate?

Back 385

Upon completion of the wrongful objective.

Front 386

Does the D have a Fourth Amendment right

Back 386

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 387

Is withdrawal a defense to conspiracy?

Back 387

No, but may be a defense to crimes in furtherance of the conspiracy and the target crime.

Front 388

What are the elements of robbery?

Back 388

-a taking
-of personal property of another
-from the other's person or presence
-by force or threats of immediate death or injury
-with the intent to permanently deprive

Front 389

Does the merger doctrine apply to conspiracy?

Back 389

No, there's no merger.

Front 390

Government conduct (2)

Back 390

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

Front 391

What are the elements of burglary?

Back 391

-a breaking
-and entry
-of a dwelling
-of another
-at nighttime
-with the intent to commit a felony in the structure

Front 392

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

Back 392

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

Front 393

What are the elements of arson?

Back 393

-malicious
-burning
-of the dwelling
-of another

DAMAGE REQUIRED greater than mere blackening--charring is sufficient

Front 394

May have standing where (2)

Back 394

1. Ownership of property seized
2. Present at search

Front 395

What are the elements of attempt?

Back 395

1) An overt act
2) Done with intent to commit a crime
3) That falls short of completing the crime

Front 396

Things held out to the public

Back 396

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 397

What is the mental state required for attempt?

Back 397

An attempt always requires a specific intent.

**Regardless of the intent necessary for the completed offense

Front 398

Dog sniffs at traffic stops

Back 398

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

Front 399

What will constitute an overt act for attempt?

Back 399

D must committ an act beyond mere preparation, as easured by the proximity test or the substanial step test.

Front 400

Technologically enhances search of homes

Back 400

Issue: is the technology in question in general public use

Front 401

What is the proximity test for attempt?

Back 401

The act must be dangerously close to completion of the crime. (traditional view)

Front 402

Requirments of a Warrant

Back 402

1. Issued by a Neutral and Detached Magistrate
2. Based on Probable Cause
3. Particularly describes the place and items

Front 403

What is the substanial step test?

Back 403

For attempt, the act must be a substantial step in a course of conduct planned to culminate in the commission of the crime that strongly corroborates criminal purpose (modern view).

Front 404

Anticipatory probable cause

Back 404

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

Front 405

Is impossibilty of success a defense to attempt?

Back 405

Factual impossibility is not. (eg, couldn't rob someone because they had no money)

Legal impossibility is a defense. (eg, it isn't a crime to do what D intended).

Front 406

Use of informers to establish probable cause - sufficiency established by

Back 406

Totality of the circumstances; reliability, credibility NOT a prerequisite

Front 407

Is abandonment a defense to attempt?

Back 407

Abandonment is not a defense if D had the intent and did the overt act.

Front 408

Identity of informer

Back 408

May remain anonymous

Front 409

Does the merger doctrine apply for attempt?

Back 409

Yes, attempt merges with the completed crime.

Front 410

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

Back 410

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

Front 411

Validity of imprecise warrant based on precise affidavit

Back 411

Not valid; Warrant must be precise on its face

Front 412

Neutral and detached magistrate requirement

Back 412

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

Front 413

Execution of warrant (6)

Back 413

1. By police
2. Without unreasonable delay
3. Must knock and accounce
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 414

What are the defenses negating criminal capacity?

Back 414

1) Insanity
2) Intoxication
3) Infancy

Front 415

"Knock and Announce" Rule and exception

Back 415

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

Front 416

What are the tests used to determine whether D was so mentally ill as to be acquitted?

Back 416

1) M'Naghten Rule
2) Irresistible impulse test
3) Durham test
4) MPC Test (aka ALI)

Front 417

Exceptions to the warrant requirement

Back 417

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 418

What is the M'Naghten rule for insanity?

Back 418

D does not know right from wrong

Front 419

Scope of search incident to a lawful arrest

Back 419

Withous a warrant: Wingspan and protective sweep for accomplices (must be contemporaneous in time and place)

Front 420

What is the irresistible impulse test?

Back 420

D is unable to control his actions/impulses

Front 421

Scope of search of auto incident to lawful arrest

Back 421

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

Front 422

What is the Durham test for insanity?

Back 422

But for the mental illness, D would not have done the act.

** broader than irresistible impulse or M'naghten rule.

Front 423

Scope of search incident to incarceration

Back 423

an arrestee's personal belongings and an entire impounded vehicle

Front 424

What is the MPC test for insanity?

Back 424

1) D didn't know right from wrong, or
2) D couldnt control his actions

**really just a combo of irresistible impulse and m'naghten.

Front 425

Search of Auto without warrant

Back 425

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

Front 426

Scope of search of Auto based on full probable cause

Back 426

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

Front 427

Who bears the burden of proof on sanity?

Back 427

D must raise the issue, but jurisdictions are split on who has the burden of proof on the issue.

Front 428

Contemporaneous requirment for search of autos

Back 428

Not required - vehicle may be towed

Front 429

What does due process require regarding insanity?

Back 429

D may not be tried or convicted, if due to mental defect he can not:
1) Understand the nature of the proceedings against him; or
2) Assist in his defense.

Front 430

Plain View Doctrine

Back 430

1. Legitimately on the premises
2. Discover evidence, fruits or instrumentalities of crime or contraband
3. Such evidence is in plain view
AND
4. Have probable cause the item is contraband

Front 431

What is the diminished capacity defense?

Back 431

D need only show that his mental defect prevented him from having the requisite mental state for the crime.

**Only some states recognize this defense

Front 432

Consent to false announcement of a warrant

Back 432

Negates the consent - no authority to search

Front 433

Who may consent

Back 433

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

Front 434

What is the defense of intoxication?

Back 434

D may raise it if intoxication negates one of the elements of the crime.

** important to distinquish between voluntary and involuntary intoxication

Front 435

Scope of search based on consent

Back 435

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

Front 436

What is the effect of voluntary intoxication?

Back 436

It acts only as a defense to specific intent crimes.

Front 437

Scope of search incident to Stop and Frisk

Back 437

Pat down of outer clothing

Front 438

What is the effect of involuntary intoxication?

Back 438

It is treated as a mental illness, and defendant is acquited if she meets the jurisdiction's insanity test.

Front 439

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

Back 439

- 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 440

What is the modern rule regarding the defense of infancy?

Back 440

Under most mondern statutes, no child can be convicted of an adult crime until age 13 or 14.

Front 441

Seizure based on Plain Feel

Back 441

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

Front 442

Hot pusuit exception

Back 442

Officers in hot pursuit of a Fleeing Felon may make a warranltess search and seizure (even into a dwelling)

Front 443

What are the exculpatory defenses?

Back 443

1) Justification
2) Duress
3) Mistake of fact
4) Mistake of law
5) Consent
6) Entrapment

Front 444

Evanescent Evidence Exception

Back 444

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

Front 445

What is the defense of justification?

Back 445

Although D committed a proscibed act he should not be pusished because the circumstances justify the crime.

Front 446

Standard required for administrative searches (and two exceptions)

Back 446

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

Front 447

What are the sub-defenses of justification?

Back 447

1) Self defense
2) Defense of others
3) Defense of a dwelling
4) Defense of other property
5) Crime prevention
6) Use of Force to Effectuate Arrest
7) Resisting improper arrest
8) Necessity
9) Public policy
10) Domestic Authority

Front 448

Public school searches

Back 448

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

Front 449

Searches on probationers

Back 449

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

Front 450

When may a person use non-deadly force in self defense?

Back 450

A person without fault may use force reasonably necessary to protect himself from imminent unlawful force.

** No duty to retrat

Front 451

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

Back 451

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 452

When may a person use deadly force in self defense?

Back 452

If:
1) He is without fault
2) He is confronted with unlawful force; and
3) He is threatend with imminent death or great bodily harm

**Majority holds no duty to retreat

Front 453

How to balance the reasonableness of searches into a persons body

Back 453

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

Front 454

Voluntariness of confessions determined in light of

Back 454

Totality of circumstances

Front 455

Right to counsel applies to what parts of a criminal prosecution

Back 455

All critical stages - adversairal judicial proceedings

Front 456

When may an agressor use self defense?

Back 456

Only if:
1) He effectively withdraws from the altercation and communicates desire to do so; or
2) V suddenly escalate a minor fight into a deadly altercation and he has no chance to withdraw

Front 457

Right to counsel is offense

Back 457

Specific

Front 458

When may a person use defense of others?

Back 458

May defend others if he reasonably believes that the person has legal right to use force.

Front 459

Blockburger Test for "different offenses"

Back 459

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

Front 460

When may defense of dwelling be used?

Back 460

1) Nondeadly force may be used to prevent or terminate what is reasonably regarded as unlawful entry int D's dwelling
2) Deadly force may only be used to protect the saftey of the inhabitant rather that the dwelling itself.

Front 461

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

Back 461

1. Miranda warnings
AND
2. Valid waiver

Front 462

When can defense of property be used?

Back 462

Nondeadly force may be used to defend property in one's possession from unlawful interference.

**Unless a request to desist would suffice.

Front 463

Need for Miranda warnings triggered by

Back 463

1. Custody
AND
2. Interrogation

Front 464

When can crime prevention be used as a defense?

Back 464

1) Nondeadly force may be used to the extent it reasonably appears necessary to preve a felony or serious breach of peace.
2) Deadly force can only be used to terminate or prevent a dangerous felony involving risk to human life

Front 465

Waiver of Miranda warnings

Back 465

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

Front 466

When can police use force effectuate an arrest?

Back 466

1) Nondeadly force if it reasonably appears necessary, or
2) Deadly force if it is necessary to prevent a felon's escape.

Front 467

Limtitation on scope of Miranda warnings

Back 467

Inapplicable to grand jury hearing

Front 468

When can a private person use force effectuate an arrest?

Back 468

1) Nondeadly force if a crime was in fact committed and he has reasonable grounds to believe the person arrested did it
2) Deadly force only if the person harmed was actually guilty

Front 469

Differentiate between Right to Remain Silent and Right to Counsel

Back 469

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

Front 470

When can person use force to resist arrest?

Back 470

1) Nondeadly force to resist an improper arrest even if he knows its an officer
2) Deadly force to only if a person does not know its an officer arresting

Front 471

Amiguity of request

Back 471

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

Front 472

What is the defense of necessity?

Back 472

It is a defense that the person reasonably believed the crime was necessary to prevent imminent and greater injury.

**no right to cause death of others, no right if D created the situation.

Front 473

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

Back 473

To impeach defendant's trial testimony

Front 474

What is the defense of duress?

Back 474

It is a defense to a crime other than a homicide that the defendant reasonably believed that another person would imminently inflict death or great bodily harm upon him or a member of his family.

Front 475

Involuntary confessions

Back 475

Inadmissible for any purpose

Front 476

When is mistake or ingonrance of fact a defense?

Back 476

Relevant to criminal liability only if it shows that D lacked the state of mind required for the crime.

**mistake need only be a reasonable one for non-specif intent crimes

Front 477

Public safety exception to Miranda

Back 477

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 478

When mistake of law of law a defense?

Back 478

Generally never.

Front 479

When does 6th Amendment Right to Counsel exist

Back 479

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

Front 480

What are the exceptions to mistake of law rule?

Back 480

1) Reliance on an atty may negate mental element
2) The statute proscribing conduct was not published
3) Reasonable reliance on a judical decision
4) Reliance on offical interpetation of advice

Front 481

Due Process standard relating to identification

Back 481

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

Front 482

What is the defense of entrapment?

Back 482

Exists only if
1) the criminal design originated w/ officers; and
2) D was not predisposed to commit the crime

**very difficult defense to established b/c D will be found predisposed

Front 483

Remedy for an unconstitutional identification

Back 483

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

Front 484

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

Back 484

Immediately

Front 485

Constitutionality of pretrial detention

Back 485

Not a violation of due process

Front 486

What are the offenses against the person?

Back 486

1) Battery
2) Assualt
3) Mayhem
4) Homicide
5) False Imprisonment
6) Kidknapping

Front 487

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

Back 487

- No right to notice
- No right to be present
- No right to introduce evidence
- No right to counsel or Miranda

Front 488

What is battery?

Back 488

1) Unlawful application of force to the person of another,
2) resulting in either bodily injury or an offensive touching.

** Need not be intentional and need not be directly applied.

Front 489

Right to unbiased judge

Back 489

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

Front 490

What is aggrivated battery?

Back 490

Most jurisdiction treat the following as felonies:
1) Battery with a deadly weapon
2) Battery resulting in serious bodily harm
3) Battery of child, female, or officer.

Front 491

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

Back 491

Serious offenses only - imprisonment for over 6 months

Front 492

What is assualt?

Back 492

Either
1) an attempt to commit a battery, or
2) the intentional creation of a reasonable apprehension in the mind of the victim of

Front 493

Minimum number of jurors required

Back 493

Six (must be unanimous)

Front 494

What is mayhem?

Back 494

Old common law crime of disablement of a body part, now treat as a form of aggrivated battery.

Front 495

Unanimity of jury

Back 495

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

Front 496

What are the 3 common law categories of homicide?

Back 496

1) Murder
2) Voluntary manslaughter
3) Involuntary maslaughter

Front 497

Venire must be selected from

Back 497

A representative corss-section of the community

Front 498

What is murder?

Back 498

The unlawful killing with malice aforethought.

Front 499

Preemptory challenge limited by Equal Protection clause how

Back 499

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

Front 500

What constitutes malice aforethought?

Back 500

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 501

Effective assistance of counsel right extends to

Back 501

First right of appeal

Front 502

What is voluntary manslaughter?

Back 502

A killing that would be murder but for the existence of adequate provocation.

Front 503

Circumstances constituting ineffective assistance of counsel

Back 503

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

Front 504

What is adequate provocation?

Back 504

1) Provacation that would arouse sudden and intense passion in a ordinary person;
2) D was in fact provoked;
3) No sufficient time for a reasonable person to cool off; and
4) D did not actually cool off.

Front 505

Basis for an attack on a guilty plea after sentence

Back 505

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

Front 506

What are the statutory degrees of murder?

Back 506

1) First degree: Decision made in a cool and dispasionate manner.
2) Second degree: Anything that's not first degree.

Front 507

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

Back 507

Unconstitutional

Front 508

Any automatic category for imposition of death penalty is

Back 508

Unconstitutional

Front 509

Any limits on number of mitigating factors presentable in death case

Back 509

Unconstitutional

Front 510

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

Back 510

Jury (not a judge)

Front 511

Jeopardy attaches for jury trials

Back 511

Empaneling and swearing in of the jury

Front 512

Jeopardy attaches for bench trials

Back 512

When the first witness is sworn

Front 513

What is felony murder?

Back 513

Murder commited during certian felonies, which will constitute first degree murder.

**Felony must be distinct from the killing and death must be a foreseeable result.

Front 514

Jeopardy in civil proceedings

Back 514

Generally does NOT attach

Front 515

What felony will be sufficient for felony murder?

Back 515

Most common list includes:
1) Arson,
2) Robbery,
3) Burglary,
4) Rape,
5) Kidknapping

Front 516

Exceptions permitting retrial

Back 516

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

Front 517

What is false imprisonment?

Back 517

1) unlawful confinement of a person
2) without his valid consent.

**It is not confinement to simply prevent a person from going where she desires to go, as long as alternative routes are available to her.

Front 518

Breach of plea bargain by D allows prosecutor to

Back 518

Reinstate original charges

Front 519

What is kidnapping?

Back 519

Unlawful confinement of a person that involves either:
1) some movement of the victim, or
2) concealment of the victim in a “secret” place.

Front 520

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

Back 520

New evidence

Front 521

What is aggravated kidnapping?

Back 521

1) kidnapping for ransom;
2) kidnapping for the purpose of comiitting other crimes;
3) kidnapping for offensive purposes; or
4) child stealing.

Front 522

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

Back 522

Privilege waived

Front 523

What are the offenses against property?

Back 523

1) Larceny
2) Embezzlement
3) False pretenses
4) Robbery
5) Receipt of stolen property
6) Theft
7) Forgery
8) Malicious mischief

Front 524

Scope of protection against self incrimination limited to

Back 524

Testimonial evidence; physical evidence not protected

Front 525

What is Larceny?

Back 525

1) A taking (obtaining control);
2) And carrying away (asportation);
3) Of tangible personal property;
4) Of another with possession;
5) By trespass (without consent or by consent induced by fraud);
6) With intent to permanently deprive that person of her interest in the property.

Front 526

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

Back 526

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

Front 527

What is embezzlement?

Back 527

1) The fraudulent;
2) Conversion (i.e., dealing with the property in a manner inconsistent with the arrangement by which defendant has possession);
3) Of personal property;
4) Of another;
5) By a person in lawful possesion of that property.

**Different from larceny because D is in rightful possession when he misappropriates, while D is not in possession in larceny.

Front 528

What is false pretenses?

Back 528

1) Obtaining title;
2) To personal property of another;
3) By an intentional false statement of past or existing fact;
4) With intent to defraud the other.

Front 529

What is the difference between larceny and false pretenses?

Back 529

If the victim is tricked into giving up possession it's larceny. If tricked into giving up title, its false pretenses.

Front 530

What is robbery?

Back 530

1) A taking;
2) Of personal property of another;
3) From the other’s person or presence (including anywhere in his vicinity);
4) By force or threats of immediate death or physical injury to the victim, a member of his family, or some person in the victim’s presence;

Front 531

What is extortion?

Back 531

Often consists of obtaining property by means of threats to do harm or to expose information.

**some statues do not actually require obtaining the property. Different from robbery b/c it can be future threats and need not be in V's presence.

Front 532

What is receipt of stolen property?

Back 532

1) Receiving possession and control;
2) Of "stolen" personal property;
3) Known to have been obtained in a manner constituting a criminal offense;
4) By another person;
5) With the intent to permanently deprive the owner of his interest in it.

**Note, intent and act must be concurrent (eg, you must know it's stolen when you take it.)

Front 533

What is theft?

Back 533

Under many modern statutes, some or all of the above property offenses are combined and defined as the crime of “theft.”

Front 534

What is forgery?

Back 534

1) Making or altering (by drafting, adding, deleting);
2) A writing with apparent legal significance;
3) So that it is false; (i.e., representing that it is something that it is not)
4) With intent to defraud.

**No one need actually be defrauded. If 3rd person is caused to sign but doesn't realize he's signging it's forgery. If he realizes he's signing it, it's not forgery.

Front 535

What is malicious mischief?

Back 535

1) The malicious;
2) Destruction of or damage to;
3) Property of another.

Front 536

What are the offenses against habitation?

Back 536

1) Burglary
2) Arson

Front 537

What is burglary

Back 537

1) A breaking (creating or enlarging an opening by at least minimal force, fraud, or intimidation);
2) And entry (placing any portion of the body or any instrument used to commit the crime into the structure);
3) Of a dwelling (a structure used with regularity for sleeping purposes, even if used for other purposes such as conducting a business);
4) Of another (ownership is irrelevant; occupancy by someone other than defendant is all that is required);
5) At nighttime;
6) With the intent to commit a felony in the structure (felony need not be carried out to constitute burglary).

Front 538

When must the intent to commit a felony be present for burglary?

Back 538

At the time of entry.

Front 539

What is arson?

Back 539

1) The malicious (i.e., intentional or with reckless disregard of an obvious risk);
2) Burning (requiring some damage to the structure caused by fire);
3) Of the dwelling;
4) Of another.

**MBE Q's often assume that arson extends to structures other than dwellings.

Front 540

Will an explosion constitute arson?

Back 540

No, the damage must be caused by fire.

Front 541

When does an accomplice have an affirmative defense to felony murder?

Back 541

if:
(1) he did not commit or aid in the commission of the homicidal act;
(2) he was not armed with a deadly weapon or substance;
(3) he had no reasonable grounds to believe others were armed with deadly weapons or substances; and
(4) he had no reason to believe any participant intended to engage in conduct likely to result in death.