Criminal Law/Procedure

Question 1

Criminal Proximate Causation

Answer 1

Required; can’t hold D responsible for extraordinary results.

Negligence/Recklessness Crimes: within the risk created by D’s reck/neg conduct.

Specific Intent Crimes: sufficiently similar to the intended crimes

Question 2

Superseding Intervening Cause

Answer 2

Break in chain of proximate causation; unforeseeable act.

Question 3

Elements of Crime

Answer 3

1) Actus reus
2) Mens rea
3) Concurrence
4) Causation

Question 4

Homicide

Answer 4

The killing of one human being by another.

Question 5

Murder - Types of Mens Rea

Answer 5

1) Intent to kill - specific intent
2) Intent to cause serious bodily harm
3) Depraved heart
4) Felony murder - BARRK

B - urglary
A - rson
R - ape
R - obbery
K - idnapping

Question 6

Intent to Kill

Answer 6

Inference from use of any instrument which, judging from manner of use, is calculated to cause death or serious injury.

Question 7

Intent to Cause Serious Bodily Harm

Answer 7

Intent to inflict serious bodily injury is proven by examining surrounding circs (words/behavior of D).

Question 8

Depraved heart murder

Answer 8

Unintentional killing resulting from conduct involving a wanton indifference to human life and a conscious disregard of an unreasonable risk of death or serious bodily injury.

Question 9

Felony Murder

Answer 9

MBE:
Killing proximately caused during commission/attempted of serious or inherently dangerous felony. Includes intentional and accidental killings, as well as accomplice liability.
(a) MAJ: killer must be a felon/co-felon.
(b) MIN: Killer can be anyone.

NC:
(1) Felony Murder is first degree when a person is killed during BAR(sex offense)RK or any felony
(A) involving use of deadly weapon, OR
(B) inherently dangerous to life

(2) Death of Co-felon not felony murder by D if committed by V or law enforcement. Killing can be done by anyone, though.

Question 10

Degrees of Murder

Answer 10

MBE
First: Intent to kill murder w/ P&D, felony murder, and some specific methods (lying in wait, poison, terrorism, torture)
Second: Any murder not first degree.

NC
First: Unlawful killing w/ malice, P&D; felony murder, special means.
Second: Murder w/ malice but no P&D.

Question 11

NC Special Means

Answer 11

1) Nuke/biolog/chem WMD
2) poison
3) lying in watit
4) imprisonment
5) starving
6) torture

Question 12

NC P&D

Answer 12

Premeditation: quantity of thought; enough time to form “fixed intent to kill.”

Deliberation: quality of thought; undisturbed by hot blood (but not absence of hot blood)

Question 13

NC Murder and Malice

Answer 13

Malice is:
(A) Intent to kill (express)
(B) Implied from depraved heart

Question 14

NC Manslaughter

Answer 14

CL definitions apply.

Question 15

Manslaughter

Answer 15

Voluntary Manslaughter:

(1) Intentional killing w/ adequate provocation, OR
(2) NC No intent to kill, but imperfect self-defense (D at fault in starting provocation or honest but unreasonable belief that deadly force necessary)

Question 16

Involuntary Manslaughter

Answer 16

Unintentional killing without malice aforethought caused by either reckless or criminal negligence or commission or attempted commission of unlawful act.

NC
Unintended killing w/o malice resulting from:
(A) Commission of a non-felonious unlawful act, OR
(B) Act done in an unlawful or culpably negligent way, if death was not an unforeseeable outcome considering all the facts.

Question 17

Criminal Negligence

Answer 17

High degree of risk of death or serious injury; worse than tortious negligence.

Question 18

Criminal Battery & Aggravated Battery

Answer 18

Criminal battery: intentional/reckless/crim-neg unlawful application of force to the person of the victim.
(A) Consent is valid defense if no duress or fraud.
(B) Felony of 3rd Degree if great bodily harm, perm disability/disfigurement, or repeat offense.

Aggravated battery: offender intent/know causes great bodily harm or perm disability/disfigurement, or uses deadly weapon, or when V is pregnant and D knows pregnant.

Question 19

Criminal Assault & Aggravated

Answer 19

Assault:
When R person wouldn’t expect imminent bodily harm, no assault.

• *NC**
  1) Attempt to commit battery, OR
  2) An act done to frighten.
  3) Act causes R apprehension of immediate bodily harm, causing V to engage in course of action that would not otherwise have been followed.
  4) Apparent ability of D to accomplish the act.

Aggravated Assault:
Deadly weapon w/o intent to kill or w/ intent to commit a felony.

Question 20

NC A&B Aggravating Factors

Answer 20

1) Attempted/actual infliction of serious bodily harm (or uses deadly weapon),
2) Male over 18 against female,
3) V is child under 12,
4) V is cop or employee of government discharging duty,
5) V is school employee or volunteer during school activities,
6) V is public transit worker
7) V is rent-a-cop
8) V is handicapped

NC Assault w/ Deadly Weapon:
1) Misdemeanor
2) Felony if:
(A) intent to kill,
(B) intent to inflict serious injury, or
(C) intent to kill and inflicts serious injury.

Question 21

Kidnapping

Answer 21

MBE

1) Unlawful
2) Restraint on person’s liberty,
3) By force or show of force,
4) So as to send V to another location.

NC
1) False imprisonment is a lesser included of kidnapping.
2) Kidnapping is
(A) unlawful confinement, restraint, or removal from one place to another of:
(i) V 16+ and no consent
(ii) V under 16 and no guardian consent
(B) For purpose of
(i) ransom/hostage/shield
(ii) facilitating felony or flight therefrom
(iii) serious bodily harm or terrorize V, OR
(iv) involuntary servitude

3) First-Degree Kidnapping when V:
(A) Not released safe place,
(B) Seriously injured, OR
(C) Sexually assaulted

Question 22

False Imprisonment

Answer 22

Definition: Intentional and unlawful restraining or detaining another without their consent.

Shopkeeper’s Privilege: If person detained on or reasonably near store premises as long as:

1) Detention for reasonable amount of time
2) Detention effectuated reasonable manner
3) Probable cause to believe person stole merchandise.

Question 23

Rape

Answer 23

CL: rape was unlawful sexual intercourse by male against female. Penetration, not emission, required.

NC: Nonconsensual vaginal penetration.

Second-degree if:
1) by force and against V's will, OR
2) person knew or should have that V was:
     (A) mentally disabled,
     (B) mentally incompetent, OR
     (C) physically helpless.

First-degree if:

1) Used weapon to force V,
2) Inflicted serious injury on V or 3P (can be mental injury),
3) had helper or helped,
4) V under 13, defendant over 12, and defendant 4+ years older than V.

Spousal Defense? Nope.

Custodial Position: Even if V consents, if D was in custodial relationship to V or held parental position in minor’s household and V was minor = rape. Also employer/agent of govt agency with custody of child.

Question 24

Sex Offenses (NC)

Answer 24

All other sex acts besides vaginal penetration, same 1/2 degree divide as rape.

Question 25

Statutory Rape

Answer 25

1) Strict liability as to age.
2) B1 Felony if V is 13/14/15 and D is 6+ years older.
3) C Felony if V is 13/14/15 and D is 4-6 years older.

Question 26

Larceny

Answer 26

CL: Trespassory taking and carrying away of tangible personal property w/ intent to permanently deprive owner thereof.

NC: “Doctrine of Recent Possession” –> Can infer that D is the thief if:

1) property described in indictment is stolen,
2) property found in D’s possession was stolen proeprty, and
3) possession was recently after theft

Question 27

Shoplifting (NC)

Answer 27

“Larceny from merchant” = taking prop $200+ through exit door w/ notice/sign/poster providing info about offense and punishment.

Also in-store concealment w/o consent.

Question 28

Embezzlement

Answer 28

Fraudulent conversion/misappropriation of property of another by one who is already in lawful possession.

NC:

1) Fraudulently/knowingly & willingly misapplied or converted prop of another,
2) that was entrusted to D,
3) for an unauthorized purpose.

Question 29

Robbery

Answer 29

NC Common Law Robbery = Commit larceny, plus:

1) taking from the person or presence of V, AND
2) taking accomplished either by force/violence or intimidation/thread of violence (V must actually fear).

NC Armed Robbery =

1) Committing/attempting larceny,
2) from the person or their presence,
3) by use or threatened use of firearm or dangerous weapon,
4) that endangers or threatens the life of the person.

NC DOES NOT HAVE A TAKING REQUIREMENT FOR ARMED ROBBERY. Common law robbery and attempted CL robbery are distinct offenses.

Question 30

False Pretenses

Answer 30

1) D made false rep of material fact,
2) w/ intent to deceive,
3) which deceives V,
4) which causes V to pass title to property to D.
* *NC** just requires D to obtain value, not title; overlaps w/ Larceny by Trick in NC (by which D obtains possession, not title).

Question 31

Extortion

Answer 31

Any threat or communication of a threat made with the intent of wrongfully obtaining:

1) anything of value,
2) any acquaintance,
3) any advantage, or
4) any immunity.

Question 32

Receiving Stolen Property

Answer 32

1) Receiving stolen property,
2) known to be stolen,
3) with intent to permanently deprive owner.

CL: Subjectively honest belief is valid defense.
NC: Reasonable ground to belief stolen is enough mens rea.

Question 33

Burglary

Answer 33

CL:

1) Breaking,
2) Entering,
3) of a dwelling,
4) w/ intent to commit felony therein,
5) at night.

NC:

1) Breaking: slightest force/fraud/deceit/intimidation;
2) Entering: any entry, even slightest (except tool used for breaking),
3) AT NIGHT, when person could only be ascertained by moonlight,
4) Intent to commit felony OR LARCENY,
5) Dwelling house/sleeping apartment.

NC First Degree: occupants present

NC Second Degree: occupants absent

Question 34

Arson

Answer 34

CL: malicious burning of the dwelling of another. Had to be burning of structure.

NC:

1) First degree if occupied.
2) Second degree if unoccupied.
3) Also felony:
- burn any building or other structure
- fraudulently set fire to occupied dwelling
- wantonly or willfully set fire to or burn (incl. attempts), or to aid, conceal, or procure the burning of any personal prop, goods, wares, etc., with intent to injure or prejudice an insurer, creditor, owner, or any other person, AND
- if a firefighter or emergency medical tech is seriously injured during any arson or other burning offense.

Question 35

Solicitation

Answer 35

CL misdemeanor: encouraging/requesting another to commit a felony or breach of peace.

NC grading of solicitation: If solicited crime is felony, then solicitation is two degrees lower felony than solicited crimes.

NC & Soliciting misdemeanors: soliciting misdemeanor assault and obstructing justice recognized; not clear what other misdemeanors count.

Question 36

Attempt

Answer 36

Two elements:

1) Specific intent to bring about a criminal result, and
2) significant act in furtherance of that intent.

NC TEST: Proximity (more than mere prep, but not last act; dangerous proximity, time/distance)

Intent required is elevated; can’t have attempted 2nd degree murder because the level of intent needed for attempt would be P&D for 1st degree.

Question 37

Conspiracy

Answer 37

MBE:

1) Intent to agree,
2) Intent to achieve criminal objective,
3) Agreement, and
4) OVERT ACT in furtherance.

NC: NO OVER ACT REQUIRED. Crime complete upon agreement.

Question 38

Accomplice

Answer 38

1) Gives assistance or encouragement or failed to act when has legal duty to oppose another’s crime, AND
2) Purposefully intends to effectuate commission of the crime.

Question 39

Accomplice Liability

Answer 39

Responsible for all reasonably foreseeable criminal consequences of the acts the accomplice aided or abetted.

Question 40

Accessory after the fact

Answer 40

1) Completed felony has been committed,
2) accessory knew of the commission of the felony, AND
3) accessory personally gave aid to felon to deter felon’s apprehension/conviction/punishment.

Separate, stand-alone crime; not liable for previous felony.

Question 41

Crim Defenses - Insanity

Answer 41

NC: M’Naghten Test = D didn’t know the nature/quality of his act, or knew nature without knowing it was wrong.

Must be proven “to satisfaction of jury.”

MPC: D couldn’t appreciate criminality of his act or couldn’t conform his conduct to it.

Question 42

Crim Defenses - Intoxication

Answer 42

Negates specific intent.

Question 43

Self-Defense

Answer 43

1) Reasonable belief,
2) imminent danger of unlawful bodily harm
3) Reasonable force to prevent,
4) Unless original aggressor.

Agressor can regain right to self-defense:
(A) complete withdrawal, perceived by other P, or
(B) escalation of force by V of initial aggression (but doesn’t allow deadly force in NC)

Question 44

Self-Defense - Deadly Force

Answer 44

NC requires necessity, either real or apparent; reasonable ground to believe deadly force necessary to prevent death or great bodily harm to self or FAMILY MEMBER.

No rule of retreat unless not a felonious assault. No duty to retreat, ever, from home or business.

If Aggressor uses deadly force after V escalates, imperfect self defense and liable for voluntary manslaughter.

Defense of home/habitation: deadly force allowed if:

(a) reasonable belief danger of death/great bodily harm, OR
(b) reasonably believe felony intended.
(c) Applies equally to intruder already inside and to prevent unlawful entry.

Question 45

Entrapment

Answer 45

If D predisposed to commit offense, no entrapment defense. Has to show cops’ actions were but-for cause of committing offense.

Question 46

Garbage and Expectation of Privacy

Answer 46

1) Garbage not automatically considered held out to public.
2) Depends on:
(A) location,
(B) how exposed,
(C) whether picked up yet.

Question 47

NC Plain View

Answer 47

Discovery must be inadvertent; any extra effort takes outside scope of warrant.

Question 48

Executing search warrants

Answer 48

1) Search warrant void if not executed w/in 48 hours.
2) No CL requirement of daytime execution.
3) Warrant must be read to subject.
4) Subject must be given copy of warrant application, affidavits, and list of items seized.
5) Outbuildings w/in curtilage of premises may be searched pursuant to warrant.

Question 49

Search Warrant Requirements

Answer 49

1) Issued by neutral and detached magistrate.
2) Probable cause, from testimony/affidavit of facts/circs still relevant and not out of date; reasonable person would conclude MPTN that evidence of named items/persons will be found.
3) Describe w/ particularity the place to be searched and items/persons to be seized.

Question 50

Valid Warrantless Searches

Answer 50

1) Voluntary/uncoerced consent by D or 3P w/ joint control over prop. If anyone objects, though, no consent.
2) Reasonable pursuit of fleeing felon
3) Search of mobile vehicle and cops have probable cause to believe carrying contraband (or other exigent circs) [can search containers in car even if no PC to search entire vehicle]
4) Exigent circs, and cops believe evidence may be lost/destroyed or a person is in imminent danger.
5) Momentary detention w/ very limited questioning
6) Incident to valid arrest (D’s person and area w/in immediate control; includes entire passenger area and containers w/in that area in a vehicle) (must be contemporaneous w/ arrest, or even precede it)
7) Reasonable hour and premises subject to regulatory licenses.
8) Stop by customs officials at permanent checkpoint located at or near international border.
9) Object searched is in official custody
10) Terry stop if: reasonable belief based on own observations that criminal activity afoot, may pat down for weapons.

Question 51

Arrests - Warrant

Answer 51

Without warrant, cops must have PC to believe person:
1) committed felony,

2) committed misdemeanor and (A) D’s permanent escape likely and (B) risk D will harm himself or others.
3) shoplifted
4) committed domestic abuse offense (even misdemeanor)

With warrant: cop doesn’t need warrant with her when arresting D.

Question 52

Identification Procedures

Answer 52

1) NC: when suspect subject to non-testimonial identification order, ENTITLED TO COUNSEL.
(a) Any statement made without counsel is inadmissible, regardless of warnings/waiver.

2) No PC needed, just reasonable suspicion, to carry out identification procedures.

3) Still need a court order to compel a person in custody to participate in ID procedure.
(a) For blood, need PC and a search warrant except in exigent circs (then PC enough).

4) If testimonial identification procedure is unduly suggestive, violates Due Process.
(a) If excluded for suggestiveness, later in-court identification not allowed.
(b) If excluded b/c of 6A, may be allowed in court if prosec can C&C show independent source of identification.

Question 53

NC-required ID Procedures

Answer 53

1) Lineup administrator
2) Lineup w/ only one suspect
3) Witness should be told suspect may not be there.
4) Witness told investigation will continue w/o ID.
5) If live: 4 fillers. If photo: 5 fillers.
6) If live and requiring speech/act, ALL must perform.
7) If possible, videotape proceedings. Otherwise, detailed report.

Question 54

Bail

Answer 54

1) D has right to individualized hearing to determine bail.
2) NC allows following kinds of bail: written promise, unsecured appearance bond, custody of designated person/organization, secured appearance bond, AND restrictions on travel/association/conduct/dwelling.
3) NC exceptions to pretrial release: Ds in capital cases, Ds accused of crimes committed after escaping from mental health facility, and domestic violence offenders who pose danger or would intimidate future victim (hold 48 hours to determine conditions of release).

Question 55

Grand Jury

Answer 55

1) 18 people, need 12 to indict.

2) Failure to indict results in discharge w/o prejudice.

Question 56

Pretrial - Initial Appearance

Answer 56

1) Upon request, D brought before magistrate.

2) Must be advised of:
(a) charges
(b) right to bail
(c) right to communicate

3) Also, if arrested w/o warrant, magistrate determines whether probable cause (very low, special threshold).

Question 57

Pretrial - Felony First Appearance

Answer 57

1) D arrested for felony and not released must be brought before District Court judge w/in 96 hours of custody.
2) D must be advised of rights, including 5A, and judge must determine whether D has counsel and legal sufficiency of charges.

Question 58

Pretrial - Felony Probable Cause Hearing

Answer 58

1) Like all prelim hearings, hearsay inadmissible unless (A) exception, (B) scientific testing of evidence, or (C) no serious contest and proves value/ownership/possession/consent/signature.
2) D’s rights at hearing: counsel, present witnesses, subpoena witnesses, and testify.
3) If District Court finds no probable cause: D can still lose if MPTN that D committed crime; charges don’t have to be dropped and prosecutor can still proceed to GJ.

Question 59

Plea Bargaining

Answer 59

1) Judge can’t reject based on which charges are pled/dismissed.
2) If judge rejects b/c of sentence recommendation, required to give parties chance to modify, grant continuance.
3) Nolo contendere –> can only be entered w/ DA and judge consent.

Question 60

Pretrial Rights

Answer 60

1) Speedy trial: 6 months upon D’s request.

2) Jury: any crime w/ potential sentence of longer than 6 months.

Question 61

Severance

Answer 61

1) Joint trial, one D’s confession implicates other: have to sever or can’t use confession.
2) Defense must move for severance before trail unless grounds unknown before trial.

Question 62

Discovery

Answer 62

1) D can only request discovery if voluntary disclosures are first made and rejected.

2) State must provide D w/:
(A) the file: D’s statements, witness statements, co-D statements, investigating officer’s notes, test/exam results, and other investigation evidence.
(B) notice of expert witnesses, including resumes and reports/opinions
(C) written notice of all witnesses (names can be withheld if some threat to witnesses)

3) D need only provide the state w/ discovery requested, though state can ask for docs/tangible objects, reports/exams/tests, physical evidence/samples, and witnesses.
4) Failure to comply need not result in dismissal; variety of sanctions available.

Question 63

Appeals

Answer 63

From District Court by D: de novo in Superior Court w/ jury, as of right, even if pled guilty at District Court.

From Superior Court: Must be prejudice –>
(A) Violation of Constitutional Rights is prejudicial unless found harmless beyond reasonable doubt.
(B) Prejudiced by non-Constal rights when there is reasonable possibility of different result at trial without error.