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BAR Prep > Criminal Law > Flashcards

Criminal Law Flashcards

1
Q

Rule for Merger for Crimes

A

No Mergers Generally but Solicitation and/or Attempt are exceptions.

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2
Q

Elements of a Crime

A
  1. Physical Act (Actus Reus), 2. Mental Act (Mens Rea), 3. Concurrence of Physical and Mental
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3
Q

Define “Physical Act”

A

A voluntary physical act or failure to act - a bodily movement.

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4
Q

Criminal Liability for Involuntary Actions

A

No liability for involuntary actions (Acts not of own volition, Reflective or convulsive acts, Asleep or unconscious, Epilepsy, etc.)

BUT… culpability for knowingly having epilepsy and driving killing someone; first voluntary act of driving with knowledge of risk to life and safety.

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5
Q

Rules of Duty to Rescue

A

No Duty to Rescue but if you start you must finish.

Legal Duty arises from:
- Statute or Contract
- Relationship
- Voluntary assumption or defendant created duty

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6
Q

Omission to Act

A

Culpability when there is a duty to act.

A legal duty arises when:
- specific duty to act imposed by law
- defendant knows the facts given rise to the duty
- reasonably possible to perform the duty

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7
Q

Mens Rea - Four types (categories)

A
  • Specific Intent
  • General Intent
  • Malice (reckless disregard of obvious harm)
  • Strict Liability (no intent)
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8
Q

Attempted Battery vs. Assault

A

Attempted Battery is a specific intent crime (all attempt crimes are specific intent) and assault is a general intent crime.

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9
Q

Specific Intent Defenses

A

All General Defenses plus:
Mistake of Fact
Voluntary Intoxication (diminished capacity)

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10
Q

Specific Intent definition

A

Objective intent to commit the act.

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11
Q

General Intent

A

Defendant need only be generally aware of the factors constitute the crimes - not need a specific result.

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12
Q

General Intent Defenses

A

All General Defenses:
- Involuntary intoxication (voluntary not allowed)
-Mistake of Fact (Mistake of law not allowed)
-Self-Defense
-Insanity
-Entrapment
- Legal impossibility

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13
Q

General Defenses

A
  • Involuntary intoxication (voluntary not allowed)
    -Mistake of Fact (Mistake of law not allowed)
    -Self-Defense
    -Insanity
    -Entrapment
    Legal impossibility
    Necessity
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14
Q

Malice

A

Requires only the reckless disregard of an obvious risk of harm (murder, arson, etc.)

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15
Q

Malice Defenses

A

All General Defenses and
- Voluntary intoxication (can show lack of mens rea)
- Reasonable mistake of fact

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16
Q

Strict Liability

A

A public welfare offense where state of mind is irrelevant.

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17
Q

Strict Liability Defenses

A
  • Involuntary Intoxication
  • Insanity
  • Infancy
  • Duress

Best defenses: Argue law is too vague or requires a mens rea

BUT NOT: Mistake of Fact or Consent (rarely valid)

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18
Q

Transferred intent

A

For intent crimes (felony murder is an exception)

Intent may be transferred from the intended victim of the crime to the actual victim.

NOTE: Defendant is guilty of two crimes - the completed crime and the intended crime.

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19
Q

The Inchoate Offenses

A

Solicitation, Attempt, Conspiracy

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20
Q

Solicitation

A

1) When one requires, commands, encourages or entices another

2) to commit a crime

3) with specific intent that the crime be committed by the solicitee

The solicitation of another to commit a crime with specific intent for the crime. There is no overt act required, so withdrawing is generally not a defense. If the solicited agrees to commit the crime solicitation merges with conspiracy, and no one may be convicted of both.

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21
Q

Solicitation Considerations

A

No overt act required (thus withdrawal unlikely a defense)

A successful solicitation merges into conspiracy (thus a conspiracy started with solicitation)

No communications received by the solicitee?
Common Law: No crime
Modernly: Crime occurred

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22
Q

“Attempt”

A

1) Performance of an act, 2) done with intent to commit a crime, and 3) an affirmative act or substantial step (alternate standard) in furtherance of the intent to commit the crime. 4) that is beyond mere preparation

“Attempt” is a specific intent crime ALWAYS. Even when the crime they are trying to commit is a general intent crime

Common Law: An act dangerously close to success

Modern view: Substantial Step and strongly connected to the criminal purpose

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23
Q

Overt Act defined

A

The act must be dangerously close to success is the common law rule. Mere preparation is not enough. The majority of states and the MPC state that conduct that is a substantial step toward the crime and strongly demonstrate a criminal purpose.

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24
Q

Inchoate Crimes Analysis

A

Solicitation
Intent (specific)
Withdrawal
Merger

Conspiracy:
Meeting of minds
overt act
withdrawal
merger

Attempt
Intent (specific)
Dangerously close to success
Withdrawal
Merger

*Defenses when/where appropriate

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25
Q

“Attempt” defenses

A
  • Withdrawal (generally not applicable)
    -Legal Impossibility
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26
Q

Legal Impossibility Definition

A

A claim that it is impossible to complete the crime because of some circumstances beyond the defendant’s control.

Compare to Factual impossibility - not a defense

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27
Q

Conspiracy

A

An agreement between two or more people to commit either an unlawful act or a lawful act by unlawful means.

Majority requires an overt act

Specific intent is required to enter into the requisite agreement and to achieve the unlawful purpose. A conspiracy requires at least two (2) people have the meeting of the minds regarding their specific intent to agree and pursue the objective. States following the Wharton Rule required at least one more person than is necessary for the crime be involved for the conspiracy conviction.

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28
Q

Conspiracy Elements

A

1) Specific intent to enter an agreement 2) to achieve an unlawful objective.

Modernly: An overt act by any one conspirator.

Common Law: All you need is an agreement.

Must have meeting of the minds - thus no conspiracy for undercover agents at common law.

Merger: Does not merge

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29
Q

Wharton Rule

A

Where two or more people are necessary for the commission of the substantive offense (e.g. adultery), there is no crime of conspiracy unless more parties participate in the agreement than are necessary for the crime.

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30
Q

Pinkerton Rule

A

Conspirators are agents of one another.

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31
Q

Unilateral conspiracy

A

Allowed under Model Penal code, such that a party who agrees to commit the unlawful act can be convicted of conspiracy even if the other party lacks intent or does not agree to the conspiracy.

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32
Q

Overt Act - Conspiracy

A

Act in furtherance of a conspiracy. MAJORITY: Agreement, plus an overt act. MINORITY: Agreement itself is sufficient for liability (common law)

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33
Q

Independent Conspiracies

A

Under Chain and Wheel conspiracies any independent conspiracy will not make other parties liable unless they are connected by the same party (pg 53)

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34
Q

Conspiracy Withdrawal

A

May be a defense But 1) must inform ALL co-conspirators of withdrawal and 2) notice is given when there is time for others to withdrawal.

Will not alleviate liability for foreseeable past crimes to further conspiracy.

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35
Q

Factual Impossibility

A

The claim that it was impossible to complete the crime because of some circumstances is not a defense to conspiracy or attempt.

Legal impossibility: Its not illegal so there is no crime. This is a defense.

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36
Q

Battery

A

1) An unlawful application of force 2) to the person of another 3) resulting in either bodily injury or an offensive touching. Need not be intentional or applied directly.

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37
Q

Assault

A

Two theories:
1) An attempted to commit a battery (specific intent)
2) An intentional creation of reasonable apprehension in victim of an immediate bodily harm (general intent)

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38
Q

Mayhem

A

Common Law: Dismemberment or disablement of a body part
Modern: Includes permanent disfigurement.
Others: Treated just as an aggravated battery rather than a separate offense.

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39
Q

Rape

A

Unlawful carnal knowledge of a woman by a man, not her husband, without her effective consent (general intent).

Slightest penetration completes crime of rape.

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40
Q

Statutory Rape

A

Sex with a minor (strict liability)

Consent or Mistake of Fact (age) - not defenses

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41
Q

False Imprisonment

A

Unlawful confinement of a person wihtout valid consent.

Model penal code requires confinement that substantially interferes with victims liberty

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42
Q

Kidnapping

A

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

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43
Q

Larceny

A

Taking and carrying away personal property of another without consent and with intent to deprive permanently at time of taking

  • Picking up is enough
  • intent to deprive must be at taking
  • person taking only gets possession, not title.
  • larceny by trick - obtaining possession using false representations
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44
Q

Forgery

A

Making or altering a writing so that it is false (must have intent to defraud)

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45
Q

Uttering

A

Offering as genuine a forged instrument with intent to defraud.

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46
Q

Extortion

A

Blackmail; future use/threat of force

  • Do not have to take anything
  • threats of future harm count
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47
Q

Receiving stolen property

A

1) Receiving possession of stolen property 2) with knowledge that it was stolen

NOTE: Knowledge is the mental state for most possession crimes

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48
Q

Malicious Mischief

A

1) Destroying or Damaging someone else’s property 2) with malice

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49
Q

Embezzlement

A

Person with lawful possession engages in illegal conversion of personal property of another.

Person taking it only gets possession, not title.

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50
Q

Robbery

A

Taking and carrying away personal property of another without consent by force or fear.

Person OR presence: Very broad
Fear: Threat of imminent harm, can’t be future harm

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51
Q

False Pretenses

A

Conveyance of title through means of a false promise.

False promise: Must be present or past, not future promise.
Person taking gets title: Title = transfer property without intent to get it back

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52
Q

Four types of Homicide

A

First Degree, Second Degree (common law murder), involuntary manslaughter and voluntary manslaughter

All murders are second degree unless the prosecution can prove deliberation and premeditation

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53
Q

First Degree Murder

A

First Degree murder occurs when the defendant possesses 1) a specific intent to kill that was also 2) premediated and 3) deliberate

Intentional Killing
Predmediation
Deliberation
Defenses

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54
Q

Premeditation

A

Requires merely a moment’s reflection upon the killing

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55
Q

Deliberation

A

the comiting of the killing in a cool and dispassionate manner

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56
Q

First-Degree Felony Murder Rule Summary

A

A person is guilty of first-degree felony murder if she/he kills another person during the commission of an enumerated felony (BARRK)
Burglary, Arson, Rape, Robbery, and Kidnapping. Malice is implied by the defendant’s intent to commit the felony.

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57
Q

Common Law Murder

A

Second-Degree felony murder; 1) the act of homicide, 2) which is the actual and proximate cause of the victim’s death and 3) malice.

Act
Cause
Malice x 4
Defenses

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58
Q

Types of Malice Murder

A

Intent to kill, Intent to inflict great bodily injury, reckless indifference to an unjustifiably high risk to human life, felony-murder rule.

Malice is a substitute for Specific intent

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59
Q

Malice Murder Causation

A

Cause in Fact and Proximate cause

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60
Q

Definition for murder

A

Murder is the killing of another with malice aforethought.

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61
Q

Felony Murder Rule

A

Any death caused during the commission of, or in the attempt to commit a felony is murder. Malice is implied by the defendant’s intent to commit a felony.

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62
Q

Reckless Indifference

A

Malice aforethought is implied if a person’s conduct manifests an extreme indifference to the value of human life.

Also known as an abandoned, malignant, or depraved heart murder.

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63
Q

Felony Murder Essay Headings

A
  • Defendant must be guilty of the underlying felony
    - Inherently dangerous felony (BARKK - Burglary, Arson, Robbery, Mayhem Kidnapping)
  • Distinct from the killing (independent of the felony)
  • Foreseeability
    -During the Commission of the felony
    - Temporal and geographical proximity

Malice is implied by the defendant’s intent to commit a felony.

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64
Q

Felony Murder Rule Limitations

A

Third-party killings:
- Most jurisdictions; Defendant is not liable for felony murder when a co-felon is killed.
- Killing by a non-felon Agency Theory; the defendant is not liable for the death of a third party or innocent bystander unless the death is caused by the defendant or his or her agent (accomplice).
- Proximate Cause theory; defendant may be liable.

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65
Q

Voluntary Manslaughter

A

An intentional killing will be reduced to voluntary manslaughter by a provision that arouses a killing in the heat of passion.

1) A provocation that would arouse intense passion in the mind of an ordinary person; 2) the defendant in fact was provoked; 3) no reasonable time for the defendant to cool between the provocation and the killing, and 4) the defendant in fact did not cool.

*** Words alone do not constitute adequate provocation. Insulting words may, however, in some jurisdictions.

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66
Q

Involuntary Manslaughter

A

A murder will be reduced to involuntary manslaughter if it was 1) committed with criminal negligence (grossly negligent), or 2) during the commission of a misdemeanor.

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67
Q

Criminal Negligence

A

A person who kills another recklessly is guilty of manslaughter. Criminal negligence involuntary manslaughter occurs when the defendant was aware of the risk of death.

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68
Q

Misdemeanor-Manslaughter Rule

A

An accidental homicide that occurs during the commission of an unlawful act not amounting to a felony (or, at least, not amounting to a felony that would trigger the felony murder rule) constitutes involuntary manslaughter.

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69
Q

Search of an Item

A

Under the 4th Amendment which is applicable to the states under the 14th Amendment, there can be no unreasonable search or seizure. In order to bring a suit for a 14th Amendment violation the claimant must be establish 1) government conduct and 2) standing.

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70
Q

Burglary

A

Breaking and entering of a dwelling house, of another, at night with intent to commit a felony inside

  1. Breaking (actual or constructive however slight).
    • Going through an open door not enough but opening an interior door would work.
  2. Entering - anytime body crosses at all
  3. Dwelling house: A place where regularly sleep; not barns etc.
  4. Night: Only at common law, modern situations eliminate
  5. Intent to commit felony inside:
    * Must exsist at time of breaking and entering
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71
Q

Arson

A

Malicious burning of the dwelling house of another (malice).

72
Q

Arson - Burning element

A

Must be burning or charring (material wasting of building fiber by fire).

Not blacking, scorching (discoloration), smoke damage, or explosion.

73
Q

Perjury

A

The intentional taking of a false oath in regard to a material matter (one that may affect the outcome) in a judicial proceding.

74
Q

Bribery:

A

The corrupt payment or receipt of anything of value for official action.

Modernly: it may be extended to nonpublic officials and either the offering of a bribe or the taking of a bribe may constitute the crime.

75
Q

Defenses related to Responsibility and Capacity

A

Insanity - Defense to ALL crimes, including strict liability crimes. Several formulations of the test.
- All defendants are presumed sane; the defendant must raise the insanity defense.
-Pretrial Psychiatric Examination: If the defendant does not raise the insanity issue, s/he may refuse a court-ordered psychiatric examination to determine his/her competency to stand trial. However, if the defendant does raise the insanity defense, s/he cannot refuse the court-ordered test.
Involuntary Intoxication: Defense to all crimes, including strict liability. Examples include taking without knowledge, under direct duress, or pursuant to medical advice.

Infancy -Under 7: No liability for an act committed by a child under age seven. Defense to all crimes.
b. Age 7 to 14: Rebuttable presumption that the child was unable to understand the wrongfulness of his/her acts. (On the Bar, never really the right answer as a defense).

Intoxication - Caused by substances (drugs, alcohol, medicine). An intoxication defense may be raised by defendant to negate intent.

76
Q

Insanity:

A

Defense to all crimes

Tests: M’Naghten Rule, Irresistible Impulse test, Durham (New Hampshire test), Model Penal Code Test.

77
Q

Insanity M’Naghten Rule/Test

A

Lacked the ability to know the wrongfulness of actions or did not understand the nature and quality of actions.

78
Q

Irresistible Impulse Test

A

Unable to control actions or conform to conduct to law

79
Q

Durham (New Hampshire)

A

Conduct was product of mental illeness

80
Q

Model Penal Code Insanity Test

A

Lacked substantial capacity to either appreciate the criminality of conduct or to conform conduct to the law.

81
Q

Individual Rights NOT binding on the states after the 14th Amendment

A

Right to a grand jury for capital and infamous crimes

Prohibition against excessive bail

82
Q

Arrest

A

An arrest occurs when police take a person into custody against his or her own will for the purposes of prosecution and/or interrogation.

The inquiry is whether a reasonable person would feel they are being held against their will.

83
Q

Probable Cause

A

Reasonable grounds to believe a suspect has committed or is committing a crime or that the place to be searched contains specific items connected with a crime.

Must be more than mere suspicion and established before an arrest warrant or search warrant may be issued.

84
Q

Routine Stops

A

A temporary restraint that prevents a person from walking away - requires only reasonable suspicion

85
Q

Standing for Searches

A

To object to the legality of a search a defendant must have standing, which means having a reasonable expectation of privacy in the places searched or items seized by the police officer. One does not have standing in those things held out to the public (i.e. sound of voice, garbage cans on street).

86
Q

Privacy tests

A

Minority- A subjective expectation

Majority - Whether society is willing to accept the expectation of privacy as reasonable.

87
Q

No Privacy Rights

A

No privacy rights in things held out to the public

88
Q

Standing of passengers in a vehicle

A

Passengers in a detained vehicle are seized for 4th Amendment purposes BUT has no standing to object to a search unless they have a reasonable expectation in the area actually searched (e.g. - their personal purse).

89
Q

Valid Search Warrant Requirements

A
  • Issued by a neutral magistrate
  • Showing of probable cause
  • valid affidavit Reasonably precise on its face as to the places to be searched and items to be seized
    -the magistrate was given enough info to make a common sense evaluation based on the totality of the circumstances
90
Q

Warrantless Search Exceptions

A

BASE PICS
-Border checkpoints (includes Sobriety, Border, TSA, Drug) but know that each one has slightly different rules
- Automobile Exception
- Stop and Frisk
- Exigent Circumstances
- Plain View Doctrine
- Inventory Search
- Search incident to a lawful arrest

91
Q

Automobile Exception

A

Police need probable cause to justify the search and no warrant is required.

Police may search the entire car or is limited to where ever the evidence may reasonably be found.

92
Q

Infancy

A

No liability for an act committed by a child under age seven. Defense to all crimes.

Ages 7 to 14: Rebuttable presumption that child was unable to understand the wrongfulness of his acts. (Rarely the correct answer on Bar).

93
Q

Intoxication

A

Voluntary Intoxication - Defense only to specific intent crimes (negates intent). Includes addicts and alcoholics.

Involuntary intoxication - Defense to all crimes because it is a form of insanity.

94
Q

Self Defense Non-Deadly Force

A

May be used anytime victim reasonably believes unlawful force is about to be used on them immediately and may only use force that is reasonable.

heavily tested

95
Q

Self Defense Deadly Force

A

Majority rule is that may be used anytime victim reasonably believes deadly force is about to be used against them.

Minority rule: Requires victim to retreat, if safe, prior to deadly force.

Exceptions: No duty to retreat 1) from home, 2) if victim of rape or robbery or 3) if you are a police officer.

96
Q

Self Defense - Original Aggressor

A

Do not give them back self-defense, unless 1) they withdraw and original victim comes after them, or 2) original victim unreasonably escalates situation new level (i.e non-deadly –> deadly).

97
Q

Defense of Others

A

Can use force anytime the other person could use it. All that is necessary is the reasonable appearance of the right to use the force.

98
Q

Defense - Crime Prevention

A

Non-deadly force can be used to prevent a felony when it appears reasonably necessary. Deadly force is permitted to prevent a dangerous felony involving a risk to human life.

99
Q

Defense of Property

A

Non-deadly force can be used to prevent what is reasonably regarded as an unlawful entry into or attack on one’s dwelling; however, one may never use deadly force soley to defend property.

100
Q

Necessity Defense

A

It is a defense to a crime if the person reasonably believed that commission of the crime was necessary to avoid an imminent and greater injury to society than that involved in the crime.

Objective test. A good faith belief is not sufficient.

101
Q

Mistake of Fact defense

A

Mistake of Fact:
Specific intent crimes - is a defense
General intent crimes - Only reasonable mistakes of fact are a defense
Strict liability - never a defense

102
Q

Consent

A

Almost never a defense and definitely not a defense to crimes of serious bodily injury.

103
Q

Duress

A

Defense to a crime (other than homicide) if reasonable belief of imminent death or great bodily harm upon defendant or member of defendant’s family.

104
Q

Entrapment

A

The law enforcement official, or someone cooperating with him/her, induces the defendant to commit the crime; and
b. The defendant was not predisposed to commit the crime prior to contact by the government. (Predisposition by a defendant negates entrapment.)
c. Note: Entrapment is hardly ever a correct answer on the MBE because it is hard for a defendant to establish.

105
Q

4th Amendment Searches

A

An action under the Fourth Amendment is a search if it 1) violates a subjective expectation of privacy by the defendant 2) which society is prepared to recognize as reasonable.

if the actions were a
search, it would be presumptively unconstitutional

106
Q

Checkpoint rule

A

1) Non-discriminatory manner and 2) administratively related.

Can’t use it for the purposes of finding contraband.

107
Q

Imperfect Self Defense

A

Where a person kills in self-defense as a result of an unreasonable believe that they faced deadly force against them, murder charges can be reduced to charges of voluntary manslaughter.

108
Q

Search of an Item - Government Conduct

A

The unreasonable search or seizure must have been conducted by someone working for the government.

109
Q

Warrant Requirement (Generally)

A

IN order to have a valid search under the 4th Amendment, the police must have a valid warrant or there must be a valid exception to the warrant requirement.

110
Q

Affidavit (Heading)

A

There must be an affidavit to a neutral and detached magistrate.

111
Q

Precise on its face (heading)

A

The warrant must describe with particularity the place(s) to be searched and or the items to be seized.

112
Q

Automobile Exception (heading)

A

Under the automobile exception, states may allow the warrantless search of an automobile, if the officer reasonably believes that the vehicle holds evidence of a crime. The US Supreme Court has determined that this exception is not a violation of the 4th Amendment since drivers have a reduced expectation of privacy and a vehicle is inherently mobile. The scope of the search is limited to only where the officer has probable cause to believe the item will be found.

113
Q

Search incident to arrest in the context of a car

A

Under Gant, a search incident to a valid arrest can only occur when (1) the arrested person is unsecured and within reaching distance of the passenger compartment at the time of the search, or (2) the police can conduct such a search when it is reasonable to believe that evidence relevant to the crime for which the occupant was arrested might be found. (i.e., If the police arrest a defendant for cocaine possession it is probably reasonable to search inside the car for narcotics.)

114
Q

Lawful Arrest (Heading)

A

A lawful arrest is one in which the police have probable cause to arrest.

115
Q

Unsecured and within reaching distance

A

Police can search a car following a lawful arrest only if they have a reasonable belief that the person arrested could have accessed his car at the time of the search.
* Note: Police can search the entire car, but not the trunk here.

116
Q

Search for evidence related to arrests at car (heading)

A

Police can search the car for evidence of the offense for which the defendant was arrested.
* Clarity on this Rule: Thus, if there is a lawful arrest, the police may only search the car if the defendant is still unsecured, (i.e., not in the police car yet and may still be able to access his car) or if the police search for evidence related to why the defendant was arrested in the first place.
* Note: Under Search Incident to Arrest, the police can make a protective sweep if they believe there may be accomplices in the area.

117
Q

Search incident to arrests outside of car context

A

In order for the police to search incident to an arrest the search must be contemporaneous in place and time to the arrest.

This search is limited to only the person arrested and the area immediately surrounding the person (i.e., the person’s “wingspan”) in which the person may gain possession of a weapon, in some way effect an escape, or destroy or hide evidence.

118
Q

Inventory Search

A

Generally, a police officer does not need a warrant to search a car if s/he has lawfully seized a person’s car and is inventorying the content of the vehicle.

119
Q

Plain View

A

When officers, in the course of a bona fide effort to execute a valid search warrant, discover articles which, although not included in the warrant, are reasonably identifiable as contraband, they may seize them whether they are initially in plain sight or come into plain sight subsequently, as a result of the officers’ efforts.

120
Q

Consent Search

A

Generally, officers must obtain consent to search from a person who has a
reasonable expectation of privacy in the item to be searched. The consent must be voluntary and intelligent based on the totality of the circumstances.

121
Q

Shared Expectations of Privacy

A

Sometimes, two or more people (i.e., spouses or roommates) share a reasonable expectation of privacy in the same place. In such a situation, either may provide valid consent in the absence of the other, or when both parties are present and neither voices an objection.
* However, if more than one person with an expectation of privacy in the area to be
searched is present and one objects, then the area cannot be searched
without a search warrant or exigent circumstances.

122
Q

Spouses (Heading for Searches)

A

Either spouse may consent to a search of a property that they share, unless, both spouses are present at the time of the search, and one voices an objection. In any event, one spouse may not consent to the search of a place where the other spouse clearly has exclusive private interests.

123
Q

Roommates (Heading for searches)

A

Either roommate may consent to a search of a property that they share, unless, both roommates are present at the time of the search, and one voices an objection.

124
Q

Parents and Children

A

Generally, a parent has authority to consent to a search of a child’s room (although this authority is less likely to be held if the child is not a minor) unless the child has established exclusive use and access to his or her room that would negate a parent’s authority to consent to a search there.
* Parents may not have the authority to consent to a search of personal possessions if the child has exclusive access and use of those items (i.e., locked containers or diary). Generally, a minor child cannot consent to a search of his or her parents’ home.

125
Q

Guests in a Home

A

An overnight guest in another’s home has a legitimate expectation of privacy despite the fact that he or she does not have the authority to determine who may or may not enter the household. The permanent resident of the premises may consent to a search anywhere within his or her own home, except for the guest’s bedroom and the guest’s personal belongings.

126
Q

Border Searches

A

The border search exception permits government officials to conduct ‘routine’ searches at border entry points based on no suspicion of wrongdoing whatsoever. On the other hand, when warrantless border searches are particularly invasive, and thus ‘non-routine,’ they are permissible only when customs officials have, at a minimum, a “reasonable suspicion” of wrongdoing.

127
Q

Stop and Frisk

A

Police may stop a suspect so long as there is a reasonable suspicion of a criminal act. The evidence necessary for “reasonable suspicion” here is something beyond mere suspicion, but is less than the level required for probable cause. If there is reason to believe that the person may be armed and dangerous, the police can also frisk the suspect.
* Note: If during the pat down or frisk officers believe based on plain feel that a weapon and/or contraband is present, they may reach inside the suspect’s clothing to remove it, but police must have probable cause to reach inside.

128
Q

Exigent Circumstances / Hot Pursuit

A

Evidence that can be easily moved, destroyed or otherwise made to disappear before a warrant can be issued may be seized without a warrant. Furthermore, if a suspect enters private property while being pursued by officers, no warrant is required to enter that property in order to continue pursuit, even if the suspect is in no way connected with the property owner.

129
Q

Exclusionary Rule

A

All evidence obtained from an illegal search and seizure is inadmissible in violation of the Fourth Amendment under the Exclusionary Rule.

130
Q

Exclusionary Rule Exceptions:

A

There are certain exceptions where even if the search was unreasonable, the evidence may still be admissible.

Good Faith: Illegally obtained evidence will not be excluded if (1) The police rely in good faith on a judicial opinion later changed by another opinion; (2) The police rely in good faith on a statute or ordinance later declared unconstitutional or (3) Where police have good-faith reliance on a defective search warrant.

Impeachment: All illegally seized evidence may be used to impeach the credibility of the defendant’s trial testimony where the defendant testifies in a manner inconsistent with the unconstitutionally obtained evidence.

**If there is no fruit of the poisonous tree evidence, conclude whether the evidence should be admitted under the Exclusionary Rule. However, if there is “fruit of the poisonous tree” evidence trying to come in, go to the next analysis.

131
Q

Fruit of the Poisonous Tree Doctrine

A

If the Exclusionary Rule applies, all evidence obtained as a result of the illegal search and seizure will also be excluded. However, there are exceptions where the fruit of the poisonous tree evidence may still be admitted.

Inevitable Discovery
Intervening Acts
Violations of Miranda
Independent Source Rule

132
Q

Inevitable Discovery

A

Fruit of the Poisonous Tree evidence will not be excluded where police would have discovered the evidence anyhow without the illegal search. It needs to be established by a preponderance of the evidence that the evidence inevitably would have been discovered.

133
Q

Intervening Acts

A

Fruit of the Poisonous Tree evidence will not be excluded where it was derived from an act of free will by the defendant, between the illegal police action, and the derived information.

134
Q

Violation of Miranda

A

There will be no Fruit of the Poisonous Tree exclusion for real or physical evidence obtained as a result of a Miranda violation.

135
Q

Independent Source Rule

A

Evidence from a source independent of the original illegality will not be excluded under the Fourth Amendment.

136
Q

Harmless Error Test

A

If illegal evidence is admitted and results in conviction, on appeal it should be overturned unless the prosecution can show harmless error, which is measured by beyond a reasonable doubt standard.

137
Q

4th Amendment Analysis Headings

A

Search of Item/Place
Government Conduct
Standing
Warrant
Warrant Exceptions
Exclusionary Rule

Consider:
Fruit of the Poisonous Tree
Harmless Error Test

138
Q

Confessions Analysis Headings

A

5th Amendment Miranda
6th Amendment Right to Counsel
14th Amendment Voluntariness
4th Amendment Fruit of the Poisonous Tree

139
Q

Fifth Amendment Miranda (Heading)

A

In order for a confession to be admissible under the Fifth Amendment Privilege against Self-Incrimination, a person in custody must, prior to interrogation, be informed, with the following words: “You have the right to remain silent, anything you say can be used against you, you have the right to an attorney, and you have the right to terminate the interrogation.”
In order for the Miranda warning to be triggered, the person must be in (1) custody and (2) there must an interrogation. There are also exceptions.

Headings:
Fifth Amendment: Miranda
Custody
Interrogation
Exceptions:
Waiver
Spontaneous Statement
Impeachment

140
Q

Custody

A

An individual is in custody if at the time of the interrogation or questioning by the police a reasonable person would not believe that s/he was free to leave.

Note: Avoid jumping to conclusions that a defendant is not free to leave merely because s/he is in a police car or a jail cell.

141
Q

Interrogation

A

An interrogation is any conduct that the police knew or should have known was likely to elicit a damaging response from the defendant.

142
Q

Miranda Exceptions:

A

An individual’s right to Miranda warnings may be negated by a valid waiver, spontaneous statement or if it is being used for impeachment purposes.
○ Only discuss exceptions that apply, and headnote and underline each separately.

143
Q

Miranda Waiver

A

A valid waiver must be knowing, intelligent, and voluntary. A defendant’s silence after being read his or her Miranda rights does not constitute a valid waiver.

144
Q

Spontaneous Statement

A

A spontaneous statement is a statement made by a person in response to a startling or shocking event or condition, made while still under the stress of excitement from the event or condition.

145
Q

Impeachment Statements outside Miranda

A

Prior statements inconsistent with a declarant-witness’ present testimony may be used to impeach his or her credibility because such inconsistencies tend to show that the declarant-witness’ current testimony is not credible.

146
Q

Sixth Amendment Right to Counsel

A

Under the Sixth Amendment Right to Counsel, after judicial proceedings have begun (formal charges), police may not deliberately elicit incriminating statements from a defendant outside the presence of counsel after the defendant has been charged unless he or she waives his or her right to counsel. Moreover, the Sixth Amendment Right to Counsel is offense specific.

Headings:
6th Amendment Right to Counsel
Formal Charges
Offense Specific
Exceptions

147
Q

Formal Charges

A

A criminal defendant has an automatic right to counsel under the Sixth Amendment after formal charges have been brought against him or her. Thus, where a defendant’s Sixth Amendment Right to Counsel has automatically attached, the police may not interrogate him or her related to the charged offense and any confession obtained subsequent to the formal charge will be inadmissible.

148
Q

Proceedings which are considered formal charges

A

● After any prosecution resulting in imprisonment or juvenile proceedings which could lead to imprisonment;
● Parole or probation revocation hearings on a case-by-case basis;
● Post charge line-ups or show-ups;
● Trial, plea, sentencing, custodial interrogation by police;
● Post-indictment interrogation by police or their agents; and
● Preliminary hearings.

149
Q

Offense Specific

A

The Sixth Amendment is offense-specific, i.e., the interrogation that is the subject of the Sixth Amendment inquiry must relate to the crime for which criminal proceedings have commenced. The Sixth Amendment right to counsel does not attach to other crimes for which the accused may be under investigation, but which are unrelated to the pending prosecution.

150
Q

Sixth Amendment Exceptions

A

Same as Miranda:

An individual’s right to Miranda warnings may be negated by a valid waiver, spontaneous statement or if it is being used for impeachment purposes.

151
Q

Fourteenth Amendment Voluntariness

A

Under the Fourteenth Amendment Due Process Clause, a self-incriminating statement is only admissible if it was voluntary and not the result of official compulsion as determined by the totality of the circumstances.

152
Q

Official Compulsion

A

A statement will be involuntary only if there is some official compulsion

Exception: Harmless Error Test: If an involuntary confession is admitted into evidence, the conviction need not be overturned if there is overwhelming evidence of the defendant’s guilt.

153
Q

Fourth Amendment: Fruit of the Illegal Search

A

A confession that is obtained after an illegal search may be the fruit of the poisonous tree, or “fruit” of the illegal search, and thus, it is inadmissible under the Fourth Amendment.

154
Q

Defenses Mnemonic

A

The prosecutor PACED as his charges against defendant fell like DOMINOS

Property - Defense of
Age (7-13 rebuttable presumption child did not understand)
Entrapment
Duress
Drunkenness
Other party consented
Mistake of fact
Insanity
Necessity - avoid a greater evil
Others - Defense of
Self-Defense

155
Q

Felony Murder Rule Essay Headings

A
  1. Matt guilty of underlying felony
  2. Distinct from killing
  3. Foreseability
  4. During commission of felony and not after it was concluded
    (temproral and geographical proximity + casual relationship)
  5. Defenses (ie imperfect self defense)

Transition paragraph –> Matt for FM in 2nd

156
Q

Homicide Essay Approach

A
  1. Matt for First Degree Murder
    Specific Intent
    Premediation
    - Mere moments reflection
    Deliberation
    - Cool and dispasionate
    Defenses
  2. Matt for Common Law murder
    (second degree form)
    Act
    Causation
    Malice (4)
    • Intent to kill
    • Intent to inflict great bodily harm
    • reckless disregard
    • Felony Murder
      Defenses
  3. Matt for Voluntary Manslaughter
    (second degree form)
    Sufficient provocation
    was in fact provoked
    no reasonable time to cool
    did not in fact cool
    defenses
  4. Matt for involuntary manslaughter
    (second degree form)
    a. criminal negligence
    b. misdemeanor manslaughter
    defenses
157
Q

6th Amendment Right to Counsel (Essay Headings)

A

Formal Charges
Offense Specific
Exceptions

158
Q

good bases for withdrawing guilty plea after sentence:

A

a. The plea was involuntary (some mistake in plea taking ceremony);
b. Lack of jurisdiction;
c. Ineffective assistance of counsel; and
d. Failure of the prosecutor to keep an agreed upon plea bargain.

159
Q

Pre-Trial Identification Attacks

A

Four Basic Attacks:

  1. 6th Amendment Right to Counsel
    - A suspect has the right to counsel at any post charge lineup or showup
  2. Denial of Right to Due Process
    - If ID is unnecessarily suggestive and there is a substantial likelihood of misidentification
    - Remedy: Exclude the ID but government can defeat exclusion if there is an adequate independant source.
  3. Fifth Amendment: Protects only testimonial, not real or phyisical evidence. No fifth amendment right to refuse
  4. Fourth Amendment: Defendant was illegally detained thus furit of the illegal detention.
160
Q

Bystander Rule: Agency Theory

A

Courts that follow the agency theory will hold that a defendant is not liable for the death of third party unless it is done by the defendant or the defendant’s accomplice.

161
Q

Bystander Rule: Proximate Theory

A

Courts that follow the proximate theory will hold the defendant liable for a co-felon’s death unless the death is by a victim or police officer in an attempt to stop the felon from fleeing the scene or committing further crimes.

162
Q

Malice aforerthought

A

Murder is the killing of another with malice aforethought. Malice aforethought exists where there is either: 1) intent to kill; 2) intent to cause great bodily harm; 3) reckless indifference to an unjustifiably high risk to human life; 4) or during the commission or attempted commission of a felony.

163
Q

Sufficient Provocation

A

There is sufficient provocation when the defendant is ignited with intense passion which would provoke the mind of an ordinary person to lose self-control.

164
Q

Accomplice Liability

A

The person who actually engages in the act or omission is the principal and any other parties are accomplices.

Accomplices are liable for the crime and all foreseeable crimes that happen afterwards, Accomplices must be actively involved in the crime and not merely present. Accessories must give aid, counsel or encouragement with intent to encourage the crime. Merely having knowledge of the crime or silent approval is not enough.

165
Q

Accomplice Liability - Common Law

A

The principal must be convicted for the accessory to be convicted. Principals can be first or second degree if they actually engaged in the crime or merely assisted in the crime without participating. Accessories can be before or after the fact if they assist the principal knowing that the principal has committed a felony to help the principal escape.

166
Q

Accomplice Liability - Modern Law

A

All parties to a crime can be found guilty of the principal offense. An accessory after the fact is not guilty of the primary crime, and they are often guilty of a lesser offense.

167
Q

Withdrawal

A

A party who effectively withdraws before a crime is committed and before the crime is unstoppable cannot be guilty as an accomplice. If the party’s participation goes beyond mere encouragement, then withdrawal requires attempts to neutralize the crime. Parties cannot withdraw from solicitation, conspiracy, or attempt.

168
Q

Aggregated Kidnapping

A

Aggravated kidnapping is kidnapping with the intent to commit a further crime.

169
Q

Receiving Stolen Property

A

Receiving stolen property with knowledge of its unlawful obtaining and the intent to permanent deprive the owner.

170
Q

Intoxication

A

Involuntary intoxication is a defense to all crimes as a form of insanity. Voluntary intoxication is only a defense to specific intent crimes.

171
Q

Mistake

A

Mistake of fact is a defense to specific intent crimes. Reasonable mistakes may be a defense to malice or general intent crimes. However, mistake of fact is never a defense to strict liability. Mistake of law may negate the specific intent requirement.

172
Q

Due Process Violations for Identifications

A

A defendant can attack the identification if it is unnecessarily suggestive and there is a substantial likelihood of misidentification.

173
Q

Right to a Speedy Trial

A

The defendant has a right to a speedy trial. When determining whether a post-arrest delay has violated the defendant’s due process, the courts will look to the totality of evidence including the length and reason for delay, whether the defendant has asserted their right to a speedy trial, and whether prejudice towards the defendant has occurred.

174
Q

Confrontation Clause

A

Prior testimonial evidence may not be admissible unless the declarant is unavailable and the defendant had an opportunity to cross-examine the declarant at the time the statement was made.

175
Q

Right to Effective Assistance of Counsel

A

Defendant has the right to effective assistance of counsel under the 6th Amendment. When determining whether counsel is defective, courts will look to whether performance was unreasonably deficient, and whether the outcome of the matter would be different without the defective performance.

176
Q

Guilty Pleas

A

A guilty plea waives the right to a jury trial. If a defendant pleads guilty, the court must specifically address the defendant on the record regarding the following: 1) the nature of the charge; 2) the maximum authorized penalty and mandatory minimum penalty; 3) right to plead not guilty and demand a jury trial; 4) the judge must ask whether the defendant has been coerced; and this must all be on the record.

177
Q

Competency to Stand Trial

A

Incompetency is a bar to trial. Court’s will look to the defendant’s mental condition at the time of trial. If the defendant later gains competency, they can be tried and convicted. The defendant is incompetent to stand trial if they 1) lack rational basis and understanding of the charges, or 2) lacks sufficient present ability to consult with an attorney with a reasonable degree of understanding.

BAR Prep (16 decks)

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