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36 Cards in this Set
- Front
- Back
Crim Law elements of a crime
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In order to be guilty of a crime, the prosecution must prove that the defendant is guilty of all elements of the crime beyond a reasonable doubt. Every crime has four elements: (1) a physical act (also called the actus reus); (2) a mens rea or mental state element; (3) causation; and (4) concurrence. The physical act of the defendant must be voluntary.
The mens rea element is explicitly stated in the statute for the specific crime in which the defendant is charged. Causation has two parts: (a) actual or “but for” causation and (b) proximate cause. Both are required. Actual causation requires asking if the defendant had not done this physical act, would the crime have occurred. Proximate cause has to do with foreseeability, and requires asking was it foreseeable that the injury would have resulted from the defendant's physical acts. Finally, there needs to be a concurrence of the physical act and the mental state (the mental state and physical act occur at the same time). |
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Felony murder
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Under the New York Penal Law, the crime of felony murder arises where a defendant causes the death of a non-participant during the commission of an enumerated felony or during the immediate flight
therefrom. The enumerated felonies include arson, burglary, robbery, kidnapping, escape, rape, and sexual assault. The killing must be independent of the felony and it must be a foreseeable result of the felony. It is important to note that a defendant is NOT liable for the death of a co-felon in New York. Intent is irrelevant for second degree felony murder. All that is necessary is the perpetrator intended to commit the felony and an innocent person was killed during the commission thereof. However, if a defendant intentionally kills a nonparticipant victim during one of the enumerated felonies, they are guilty of first degree felony murder. |
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Felony murder affirmative defense
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(1) he did not commit or aid in the commission of the homicidal act, (2) he was not armed, (3) he had reasonable grounds to believe the other participants
were not armed, AND (4) he had no reason to believe the other participants intended to engage in conduct likely to result in death. This affirmative defense can only be successful for a co-felon that did not commit the actual murder |
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Burglary
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Under the New York Penal Law, Third degree burglary requires: (1) entry or unlawfully remaining in, (2) a building, (3) with the intent to commit a crime therein. Note that under the common law, the building
had to be a dwelling, the entrant had to break-in after dark, and the entrant must have had the intent to commit a felony inside. New York statutory law is therefore considerably broader than the common law definition. Second degree burglary requires one of the three following aggravating elements: (a) the building was a dwelling; (b) the burglar was armed; or (c) someone was injured. First degree burglary requires the following aggravating elements: (a) the defendant knows he is burglarizing a dwelling AND (b) either a non-participant is injured or the defendant was armed with a weapon. |
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Arson
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Under the New York Penal Law, fourth degree arson is the reckless
burning of a building by intentionally setting fire to it. An affirmative defense exists to fourth degree arson when the defendant recklessly damages a building by intentionally setting fire to it and the building is owned by him alone. However, this defense is NOT available to one who intentionally sets fire to a building. Third degree arson is intentionally damaging a building by intentionally starting a fire. Second degree arson is third degree arson plus either (a) knowledge that a non-participant is inside OR (b) setting the fire under circumstances indicating that the presence of a third party is a reasonable possibility. First degree arson is second degree arson plus the use of an incendiary or explosive device. The affirmative defense referenced above is not a defense to any other degree of arson besides fourth degree arson. |
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Larceny
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Under the New York Penal Law, larceny is the trespassory taking away
of the personal property of another with the intent to permanently deprive them of that property. In New York, larceny encompasses all forms of common law larceny, including embezzlement, larceny by trick, and false pretenses. Embezzlement is the taking of property of another by a person with lawful possession who is in a position of trust. Larceny by trick is obtaining possession (NOT title) of property as a result of a false statement. False pretenses is obtaining title of personal property of another by an intentional false statement with the intent to defraud (the false statement must be of a past or present event, not a future promise). A complete defense to larceny is that the taking is under a claim of right (i.e. the property actually belongs to the person taking it). |
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Accomplice liability
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An accomplice is one who renders aid, encouragement, or help to another with the intent that such aid or encouragement will help another to commit a crime or further the commission of a crime. An accomplice
is liable to the full extent to which the principal (the person who actually committed the crime) is liable and for all crimes committed by the principal which are foreseeable. It is irrelevant whether the accomplice actually committed the crime. |
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Accomplice liability principal acquitted
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In New York, an accomplice can be convicted of the crime of criminal
facilitation even if the principal is acquitted or not prosecuted. However, an accomplice may not be convicted solely on the testimony of another party to the crime. In order to convict the accomplice, the testimony of the other perpetrator/criminal must be sufficiently corroborated by other evidence, including circumstantial evidence. |
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Attempt
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Under the New York Penal Law, a party is guilty of attempt when he has
the intent to complete the crime AND comes dangerously close to committing the actual crime. Mere preparation is NOT enough. Withdrawal is an affirmative defense to an attempt crime. A party can only withdraw if: (1) he voluntarily and completely renounces the crime AND (2) the renunciation is the result of a change of heart, not fear of getting caught. If mere abandonment is insufficient to accomplish avoidance of the crime, the defendant must take affirmative steps to prevent the commission of the crime. |
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Conspiracy
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Under the New York Penal Law, conspiracy is a specific intent crime
and it does not merge with the substantive offense. The elements of conspiracy are: (1) an agreement, (2) intent to agree, (3) intent to pursue an unlawful objective, AND (4) an overt act in furtherance of the conspiracy. The crime is complete the moment there is an agreement and an overt act. Therefore, in order to withdraw and avoid liability for the conspiracy, the defendant must voluntarily renounce the crime AND prevent commission of the crime. Under the common law, a coconspirator is vicariously liable for all other crimes committed by the coconspirators in furtherance of the conspiracy. In New York, however, a co-conspirator is NOT vicariously liable for the crimes of its coconspirators. It is not necessary that the other co-conspirator be found guilty as an accomplice or even that the other person had the intent to achieve the unlawful objective (ex: an undercover police officer). This is called the unilateral theory of conspiracy. However, a defendant may not be convicted of conspiracy solely on the uncorroborated testimony of a co-conspirator. There must be some other evidence, including circumstantial evidence, to corroborate the co-conspirator’s testimony. |
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Self defense
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Self-defense is a justification of an otherwise unlawful act. In New
York, self defense is an ordinary defense, not an affirmative defense. The general rule is that a person can use non-deadly force in self defense if the force is reasonably necessary to prevent against an imminent use of unlawful force against the person. To use deadly force, there must be an imminent threat of serious injury or death. Deadly force is NEVER justified when used solely for the protection of property. Under New York law, one has a duty to retreat before using deadly force when he safely can do so, unless (a) he is in his home or (b) the party using deadly force is a police officer. In addition, a person may NOT use deadly force if he was the initial aggressor or provoker who had the intent to cause injury, unless he (1) withdraws from the fight AND (2) communicates it to other person. |
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Burden of proof for ordinary v. affirmative defenses
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Under the New York Penal Law (NYPL), all affirmative defenses must be raised by the defendant and proved by a preponderance of the evidence. However, the prosecution always bears the burden of proving the non-existence of an ordinary defense beyond a reasonable doubt, as well as proving each element of the crime beyond a reasonable doubt.
An alibi defense goes to the elements of the crime and the burden is on the prosecution to disprove the alibi beyond a reasonable doubt. Under the NYPL, the defenses of insanity, duress, extreme emotional disturbance, and entrapment are affirmative defenses, but self-defense is an ordinary defense. |
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Arrests: Probable Cause Req't and when warrant is req'd
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Under the 4th Amendment of the U.S. Constitution, a person has the
right to be free from unlawful searches and seizures by the government. Seizure under the 4th Amendment includes arrests. For an arrest to be proper, the police officer MUST have probable cause. Probable cause arises when the circumstances gives a police officer reasonable suspicion to believe that a crime has occurred. A police officer does not need firsthand knowledge to have probable cause; it can be based on the firsthand knowledge of another. If an arrest is conducted in a public place, probable cause is all that is required. But, if a police officer arrests someone in or at their home, a warrant is required unless exigent circumstances exist. |
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Auto stops (arrest and detention)
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A stop of a vehicle may be conducted properly so long as the police have
some reasonable suspicion to believe that the law has been violated. The reasonable suspicion required for a valid stop does not have to rise to the level of probable cause. However, for a search after a traffic stop to be lawful, the police officer needs to acquire probable cause before initiating the search. Probable cause requires proof of a “fair probability” that evidence or contraband will be found in area being searched. |
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Warrant req't for all searches, unless an exception applies:
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The 4th Amendment of the U.S. Constitution provides that everyone should be free from unreasonable searches and seizures.
To assert one's 4th Amendment right, there has to be government action and a defendant must have a reasonable expectation of privacy in the areas searched and the items seized. A police officer will need a warrant to conduct a search and to seize items. Evidence obtained without a valid warrant should be excluded unless it falls under the exceptions that permit a warrantless S & S. |
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Warrantless search exceptions:
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(1) a search incident to an arrest;
(2) plain view doctrine; (3) the automobile exception; (4) consent; (5) stop and frisk; (6) inventory searches; (7) exigent circumstances; and (8) where the U.S Supreme Court has concluded there is a special need. A police officer’s good faith reliance on a defective warrant is irrelevant in New York because New York DOES NOT recognize the "good faith" exception to the warrant requirement rule. |
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Search incident to arrest
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Under the 4th Amendment of the U.S. Constitution, a police
officer who has probable cause to make an arrest can make a warrantless search incident to a lawful arrest. In this regard, he can search not only the suspect’s person, but also areas within the suspect’s "wingspan". If the suspect is arrested in an automobile, the "wingspan" includes the passenger’s compartment. In addition, pursuant to a lawful arrest, a police officer can make a warrantless search of an automobile if he has reason to believe it contains contraband. The police officer can search any containers found in the car that might contain the contraband. However, New York affords a suspect greater 4th Amendment protection in that after the suspect has been removed from the car, the police will need a warrant to search the car. |
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Consent
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Consent is an exception to the warrant requirement if it is given
freely, voluntarily, and intelligently. A third person with possessory rights in property may consent to a search, but that person must have authority. If the police have reason to know that the person consenting might not have authority, and they continue the search, the search is unlawful. |
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Two or more ppl living there (consent)
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Where two or more people share common authority over the residence or premises, any one of them may consent to a lawful search. However, a police officer may only search common areas of the residence and private areas of the person providing the consent. A warrantless search of private areas (i.e. bedrooms and
locked areas) of persons not present is generally unlawful. |
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Automobile exception to search warrant:
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The automobile exception allows a warrantless search of a car
where the police have probable cause that either contraband OR evidence of a crime will be found in the vehicle. If there is probable cause, the police can search the entire car AND any packages, luggage, or containers that may reasonably contain the items for which there is probable cause. In order to search a vehicle after a traffic stop, the police officer would need to acquire probable cause prior to searching the vehicle. A police officer does not need firsthand knowledge to have probable cause; it can be based on the first hand knowledge of another. |
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plain view exception
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Under the plain view exception, the police may seize evidence
without a warrant if (1) the police are lawfully present on the premises, (2) the police have lawful access to the evidence, AND (3) it is clear that the evidence is illegal by just looking at it. |
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Stop and frisk
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The police may make a request for information anytime except
on "whim or caprice." A police officer may stop and inquire if the police officer has reasonable suspicion that criminal activity is afoot. A stop and inquire allows only a brief detention for questioning, after which the suspect must be released. A police officer may only stop and frisk a person if the police officer has reasonable suspicion that the person is committing, has committed, or is about to commit a crime. Under the plain feel doctrine, during the frisk a police officer may only seize items he or she reasonably believes is a weapon. Reasonable suspicion is defined as the quantum of knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe that criminal activity is at hand. Courts use a sliding scale based on the particular factual circumstances to determine whether reasonable suspicion was present to conduct a stop and frisk. |
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Prosecution's comment on D's silence after miranda rights attach
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If a defendant has invoked his right to remain silent, the defendant’s
silence cannot be commented on by the prosecution or be used to incriminate him. However, if the prosecution improperly comments on the defendant's invocation of his Miranda rights, such comment will not provide grounds for reversal (should the defendant ultimately be convicted) if the prosecution can prove that such error was harmless error. A showing of harmless error requires the prosecution to prove that there was sufficient evidence for a finding of guilt beyond a reasonable doubt even absent the constitutional violation. |
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Prosecutor duty to disclose exculpatory information
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Under the New York Criminal Procedure Law, upon request by the
defendant, the prosecutor in a criminal case MUST turn over certain relevant evidence to the defense. This includes past grand jury testimony, any reports (scientific or medical) the prosecution has in its possession, along with other materials, including the prior statement of a prosecution witness made to any law enforcement official to be used at trial, as well as statements in possession of law enforcement officials even if they will not be used by the prosecution at trial. This rule extends to ALL statements that the prosecutor has in his possession, as well as any statements he could obtain through reasonable efforts. In addition, under the Rosario doctrine, the prosecutor must turn over to the defense any relevant prior or recorded statements of persons to be called as witnesses |
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prosecutor fails to disclose exculpatory evidence
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Generally, a prosecutor's failure to disclose material exculpatory
evidence is grounds for overturning a conviction. However, a conviction may stand if the failure to disclose was harmless error. Harmless error occurs when the evidence against the defendant is overwhelming, such that the prosecution could and would have proved all of the elements of the crime beyond a reasonable doubt even if the potentially exculpatory evidence had been disclosed. |
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Exclusionary rule/fruit of poisonous tree
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Under the exclusionary rule, evidence MUST be suppressed if it was
obtained illegally. The exclusionary rule DOES NOT apply to evidence erroneously obtained when executing a valid search warrant if the officer’s mistake was reasonable. Moreover, any "fruits" of the illegal search must also be suppressed, unless (a) it is shown that the police had an independent source for the secondary evidence (where there is a source for discovery and seizure of the evidence that is distinct from the original illegal source), (b) the discovery of evidence would have been inevitable regardless of the illegality, OR (c) through the attenuation doctrine (which admits evidence where a defendant’s free will has been restored through the passage of time and/or intervening events). |
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Miranda violation exclusionary rule stuff
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In addition, there are limitations on the exclusionary rule as applied to
Miranda violations. Statements obtained in violation of a suspect’s Miranda rights are inadmissible in the Prosecution’s case-in-chief. BUT, they may be used to impeach a defendant on cross examination. However, such statements cannot be used to impeach the testimony of third-party witnesses. In addition, the following exceptions apply toMiranda violations: (1) Failure to give Miranda warnings DOES NOT require suppression of the physical fruits found because of the statements (as long as the statements are voluntary); (2) Subsequent statements made after Miranda warnings are admissible, UNLESS a non-Mirandized previous statement was obtained through the use of inherently coercive police tactics offensive to due process; and (3) if the Harmless Error Rule applies – if evidence in violation of Miranda rights was improperly admitted at trial, a guilty verdict will stand if the prosecution can prove beyond a reasonable doubt that the error was harmless because the defendant would have been convicted even without the tainted evidence. |
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5th amednemtn pre-charge Lineup challenge
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Under the 5th Amendment of the U.S. Constitution, upon request a
defendant is entitled to have counsel present during a pre-charge interrogation. However, the right to counsel under the 5th Amendment does not apply to pre-charge lineups because lineups are not considered interrogatory in nature as they are not likely to elicit a verbal response from the defendant. |
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6th amendment lineup
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Under the 6th Amendment of the U.S. Constitution, a person has a right
to counsel after being formally charged with a crime. Therefore, the 6th Amendment mandates that a person has a right to counsel at a postcharge lineup. However, a person does not have a 6th Amendment right to counsel at a pre-charge lineup because the 6th Amendment right has not yet attached because the person has not been formally charged with a crime. |
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NY approach to lineups
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The New York approach is somewhat broader than the federal
requirements discussed above. New York protects the indelible right to counsel whenever there is significant judicial activity in the case. In New York, the general rule is that before the defendant is formally charged with a crime, he has NO right to counsel at a pre-charge lineup. However, there is a narrow exception to this rule in New York. Where the police are aware that the defendant is represented by counsel AND the defendant makes a request for counsel, the police MUST provide it at a pre-charge line-up. |
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Excluding confessions based on Constitution
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If a confession is obtained in violation of the defendant's constitutional rights, such evidence is inadmissible under the exclusionary rule. A confession may be excluded in any one of the four following ways.
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14th amend confession
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if a confession is the product of police coercion that
overbears the suspect’s will, then confession is inadmissible. |
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5th amendment
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a person has a right
not to incriminate himself and must be given Miranda warnings. Those warnings include the right to remain silent and the right to counsel. Miranda rights attach when there is a custodial interrogation of a suspect. A custodial interrogation occurs when (1) the atmosphere, viewed objectively, is characterized by police domination and coercion such that a person’s freedom of action is limited in a significant way AND (2) the police knew or should have known that their conduct was likely to elicit an incriminating response. However, Miranda rights do not apply to any spontaneous statements made by a person. In addition, a suspect may waive his Miranda rights. |
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Waiving rights confession
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Under federal law, a waiver is only valid if it is knowingly, intelligently
and voluntarily made. However, New York has a much more defendant-protective right to counsel and provides for an indelible right to counsel. Once protection under New York’s indelible right to counsel attaches, a waiver MUST be made in the presence of counsel. |
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NY indelible right to counsel
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Under the 6th Amendment of the New York State Constitution, a person has an indelible right to counsel, which attaches when: (a) the person is subject to police activity overwhelming to a lay person and the person requests counsel; (b) upon the filing of an accusatory instrument; (c) upon arraignment; OR (d) upon significant judicial activity. After the indelible right to counsel attaches, if the police know that a person is
represented by counsel on that specific charge, then the person CANNOT be questioned without his lawyer present regarding those charges, unless there is a valid waiver. |
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6th amendment confession rights
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a criminal defendant has a right to counsel when formally charged. After a defendant is formally charged, he CANNOT be questioned without his lawyer present regarding the charges filed against him. If a defendant is
questioned without his attorney after he is formally charged, any statements he makes are inadmissible, unless there is a valid waiver |