Crim Flashcards
(235 cards)
1
Q
Actus reus elements
A
A voluntary affirmative act (physical) or an omission, causing a criminally proscribed result.
2
Q
Is an unconscious/asleep/under hypnosis act voluntary?
A
No
3
Q
What counts as a failure to act for actus reus?
A
When a duty exists either by statute, contract, special relationship, detrimental undertaking or causation.
4
Q
Define mens rea
A
A guilty mind or legally proscribed mental state.
5
Q
Do you need to establish mens rea for strict liability crimes?
A
No
6
Q
Define specific intent crimes.
A
D has subjective desire, specific objective, or knowledge to accomplish prohibited result.
7
Q
Which crimes are specific intent crimes.
A
FIAT: First-degree murder, inchoate offenses, assault with intent to commit battery, theft offenses
8
Q
Define malice crimes.
A
Reckless disregard of a high risk of harm. Requires only a crim act without excuse, justification, or mitigation. Intent can be inferred from accomplishment of the act.
9
Q
Define a general intent crime
A
Require the intent to perform the unlawful act. Intent can be purposely, knowingly, recklessly, or negligently.
10
Q
What kind of crime is battery?
A
General intent crime
11
Q
What kind of crime is rape?
A
General intent crime
12
Q
What kind of crime is kidnapping?
A
General intent crime
13
Q
What kind of crime is false imprisonment?
A
General intent crime
14
Q
What kind of crime is CL murder?
A
Malice crime
15
Q
What kind of crime is arson?
A
Malice crime
16
Q
What kind of crime is first-degree murder?
A
Specific intent crime
17
Q
What kind of crime is an inchoate crime?
A
Specific intent crime
18
Q
What kind of crime is assault with intent to commit battery?
A
Specific intent crime
19
Q
What kind of crimes are theft offenses?
A
Specific intent crimes
20
Q
What is the principle of transferred intent?
A
When D causes with intent to cause harm to one person or object and that act directly results in harm to another person or object. Usually confined to homicide, battery, and arson. Does not apply to attempted crimes, only completed ones.
Doesn’t apply to mistaken ID???
21
Q
What is the MPC rule around transferred intent?
A
Not specifically recognized, but liability is recognized when PKRN causing a particular result is an element of an offense???
22
Q
What are the MPC mens rea standards?
A
Purposely: D’s conscious objective is to engage in the conduct or to cause a certain result.
Knowingly/willfully: D is aware or knows that the result is practically certain to occur based on his conduct.
Recklessly: D acts with a conscious disregard of a sub and unjustifiable risk
Negligently: D should be aware of a sub and unjustifiable risk that a material element of a crime exists or will result from his conduct (i.e. a gross deviation from the standard of care)
23
Q
What is a strict liability crime?
A
No mens rea required; proof of the actus reus is sufficient for conviction.
24
Q
What kind of crime is statutory rape?
A
Strict liability
25
What kind of crime is bigamy?
Strict liability
26
What kind of crime is regulation of food and drugs?
Strict liability
27
What is required for a crime to be deemed strict liability?
Clear leg intent to dispense with the mens rea bc generally disfavored
28
Define vicarious liability
No actus reus by D; imposes crim liability on D for the actus reus of a third party
29
What kind of crimes are generally vicarious liability crimes?
regulatory crimes
30
What is the typical punishment for vicarious liability?
Generally limited to fines
31
When can corps be held vicariously liable?
When act is performed by a high-ranking corp agent who likely reps corp policy
32
What is the causation requirement?
D's mens rea if required must cause the actus reus and the act must cause the particular result made unlawful by statute.
33
What are the rules around mistakes of fact?
May negate crim intent (if honest). It's a defense to specific intent crimes, even if unreasonable. It's a defense to gen intent or malice crimes but only if reasonable. Mistake of fact is only a defense if it negates the defendant’s state of mind.
34
What are the rules around mistakes of law?
Only valid if D relied in court decision/admin order or official interp; statutory definition of malum prohibitum crime not available before conduct; or an honestly held mistake of law negates required intent or mental state.
35
Define an accomplice
a person who, with the requisite mens rea, aids or abets a principal prior to or during the commission of a crime
36
Define a principal in the second degree
an accomplice who is physically or constructively present during the commission of the crime
37
Define an accessory before the fact
an accomplice who is neither physically nor constructively present during the commission but who possesses the requisite intent
38
Accomplices (regular, principal in the second degree, or accessory before the fact) may be held liable for...
the crime and all other crimes that are the natural and probable consequences of the accomplice's conduct
A defendant is not guilty as an accomplice when that person's action is itself an essential element of the crime.
At common law, an accomplice could be convicted of a crime only if the principal was also previously convicted of the crime. In the majority of jurisdictions today, an accomplice may be convicted of a crime even if the principal is not tried, is not convicted, has been given immunity from prosecution, or is acquitted.
39
To withdraw, an accomplice must:
repudiate prior aid; do all that is possible to countermand prior assistance; and do so before the chain of events is in motion and unstoppable.
40
define an accessory after the fact
Aids or assists a felon to avoid apprehension or conviction after commission of the felony. Must know the felony was committed.
41
What are accessories after the fact liable for?
Only for the separate crime (ex: obstruction of justice or harboring a fugitive)
42
What is the diff insanity rules?
M'Naghten: D did not know either i) the nature and quality of the act, or ii) the wrongfulness of the act, bc of a defect of reason due to mental disease ("right from wrong" test).
Irresistible impulse test: D lacked capacity for self-control and free choice due to mental disease or defect (inability to conform conduct to the law).
Durham rule: The unlawful act was the product of D's mental disease or defect ("but for" test).
MPC: Combines M'Naghten and irresistible impulse. At the time of the conduct, D lacked substantial capacity to appreciate the wrongfulness of the act or to conform his conduct to law, as a result of mental disease or defect.
43
What counts as voluntary intoxication?
Intentional taking of a substance known to be intoxicating. Need not intend actual intox.
44
What is voluntary intox a defense for?
Specific intent crimes if it prevents the formation of the required intent. Under the MPC, it's a defense to crimes with a mental state that is "purposely" or "knowingly" and the intox prevents the formation of that mental state.
45
What counts as involuntary intox?
Taken without knowledge of the intoxicating nature, or under duress.
46
When is involuntary intox a defense?
When it negates an element of a general intent, specific intent, or malice crime.
47
Define homicide
The killing of a living human being by another.
48
Define murder (bar jx version)
CL murder: The unlawful killing of another living human being with malice aforethought.
49
What counts as malice?
1) Intent to kill: + conduct that is the legal cause of death.
2) Intent to do serious bodily injury: + unintentional killing.
3) Reckless indifference to human life: results from reckless indifference to an unjustifiably high risk to human life + unintentional killing ("depraved heart"); need not have had the intent to cause either death or serious bodily injury. OR
4) Intent to commit a felony: proximately caused by and during the commission or attempted commission of an inherently dangerous felony + unintentional killing (felony murder).
50
What is the felony murder rule
Unintended and foreseeable killing proximately caused by and during the commission or attempted commission of an inherently dangerous felony (most common: BARRK (burglary; arson; robbery; rape; and kidnapping)).
Battery is not generally one of the crimes on which felony murder can be based.
51
What must P establish for felony murder?
The underlying felony and that D committed that felony.
52
What is the agency theory under the felony murder rule?
It's the majority position. D is not liable for a bystander's death caused by a felony victim or police officer.
53
What is the proximate cause theory under the felony murder rule?
The minority position. A bystander's death falls under the rule bc the death is a direct consequence of the felony.
54
Is D liable for a co-felon's death by a victim or police officer under felony murder rule?
No
55
Can the felony murder rule encompass death occurring after flight from the scene of the crime?
No
56
Define first-degree murder
Deliberate and premeditated murder, or after forming the intent to kill D had time for reflection?? Specific intent crime?? Also felony murder is first-degree murder.
57
Define second-degree murder and the kind of crime it is.
Malice crime. Committed with the necessary malicious intent (CL murder) or the default category if not first-degree murder.
58
Define voluntary manslaughter
Homicide committed with malice aforethought, but also with mitigating circs.
59
What is "heat of passion"?
A mitigating circ for voluntary manslaughter. Murder committed in response to a situation that could inflame a a reasonable person (ex: serious battery, threat of deadly force, but usually not mere words). It's not a defense, just reduces murder to voluntary manslaughter. If there was sufficient time btw the provocation and the killing for a reasonable person to cool down, then not mitigated. Transferred provocation applies if D misidentified her provoker or accidentally kills the wrong person.
60
Imperfect defense?
Many states reduce murder to voluntary manslaughter if D started the altercation (???) or unreasonably believed in the necessity of using deadly force.
61
Define involuntary manslaughter
An unintentional homicide committed with crim neg or during an unlawful act.
62
Define crim neg for purposes of involuntary manslaughter
grossly neg action (or inaction when there is a duty to act) that puts another person at a significant risk of serious injury or death
63
Define and unlawful act for the purposes of involuntary manslaughter
A killing committed during the commission of a malum in se misdemeanor (ex: assault, battery) or a felony that is not treated as a first-degree felony murder or second degree murder.
64
Define larceny
Trespassory taking and carrying away of the personal prop of another with the specific intent to permanently deprive the owner of the prop.
65
Define larceny by trick
CL: The taking of personal property known to be owned by another that results in conversion of the property, with the intent to permanently deprive the victim of that property, by fraudulently inducing the victim to deliver possession of such property. A person who obtains possession of, but not title to property owned by another by lies, with the intent to permanently deprive the victim of that property and resulting in the conversion of the property, is guilty of larceny by trick.
66
Define forgery
Making of a false writing with apparent legal significance and with the intent to defraud.
67
Define embezzlement
Fraudulent conversion of the prop of another by a person who is in lawful possession of the prop.
Requires that the embezzler have been in lawful possession of the property at the time the intent to defraud occurs. If a man intended to sell the property at the time he obtained it, he was not in lawful possession of it ever, so the crime is larceny, not embezzlement.
68
Define false pretenses
Obtaining title to the prop of another through the reliance of that person on a known false representation of a material past or present fact and the rep is made with the intent to defraud.
Requires title to the property to pass from the victim to the defendant (not mere possession).
69
Define robbery
Larceny from the person or presence of the victim by force or intimidation
70
Define extortion
The taking of money or prop from another by threat. Making the threat (not obtaining the prop) is the essence of the crime (majority view). The threat need not be of immediate harm or of physical nature. The prop need not be on the victim or in his presence.
71
Define burglary (per bar jx)
CL: Breaking and entering of the dwelling of another at nighttime with the specific intent to commit a felony therein.
Counts as "breaking in" even if you use a key if you use it in a manner that exceeds the scope of the permission that was given to you.
72
Define arson
Malicious burning of the dwelling of another.
73
Define possession offenses
D exercises dominion and control of prohibited object or substance. D is not required to be aware that possession of the object is illegal. Must be for a period long enough to have provided D with an opp to cease such dominion and control.
74
Define receipt of stolen prop
Receiving control of stolen prop, knowing that the prop is stolen, and with the intent to permanently deprive the owner of the prop.
75
Define battery
Unlawful application of force to another person that causes bodily harm to that person or constitutes an offensive touching.
76
Define assault
An attempt to commit a battery or intentionally placing another in apprehension of imminent bodily harm.
77
Define mayhem
A CL felony battery that causes the dismemberment or permanent disfigurement of a person.
78
Define kidnapping
Unlawful confinement of a person against their will coupled with either the movement or the hiding of that person.
79
Define false imprisonment
Unlawful confinement of a person without consent
80
Define rape
Unlawful sexual intercourse with a female against her will by force or threat of immediate force. Most modern statutes are gender-neutral and have replaced force req with lack of consent. Required intent is negated if D reasonably believes that V's lack of resistance indicates consent.
81
What is the concept of merger?
D may be tried but not punished for i) solicitation and the completed crime; ii) attempt and the completed crime; iii) under the MPC, more than one inchoate offense, but conspiracy and attempt do not merge under the CL???
82
Define solicitation
An inchoate crime. Enticing, encouraging, requesting, or commanding another person to commit a crime with the intent that the other person commits the crime.
83
Can a D renounce solicitation?
Under the MPC if D thwarts the commission of the solicited crime.
84
Define conspiracy
An inchoate crime. An agreement btw 2 or more persons (bilateral conspiracy) to accomplish an unlawful purpose with the intent to accomplish that purpose. Under MPC, can just have unilateral conspiracy, but not recognized under CL.
85
Is an overt act required for conspiracy?
CL: No overt act required.
Majority/fed law/MPC: Require a lawful or unlawful overt act in furtherance of the conspiracy, but MPC does not require an overt act if the conspiratorial crime is a first or second degree felony.
86
What is the scope of what the conspirator is liable for?
For conspiracy and the co-conspirators' substantive crimes committed in furtherance of the conspiracy (Pinkerton rule).
87
Can a D withdraw from a conspiracy?
Wrt liability for conspiracy:
- -Fed/majority rule: withdrawal is possible after the agreement and before the commission of an overt act, but D must give notice to co-conspirators or give timely notice to the police.
- -MPC/minority rule: Subsequent(?) withdrawal is possible only if D acts voluntarily to thwart the success of the conspiracy.
- -CL: the conspiracy is complete as soon as the parties enter into the agreement.
Wrt liability for the substantive crimes: D may withdraw by giving notice to his co-conspirators or timely advising legal authorities of the existence of the conspiracy even though such an action does not thwart the conspiracy.
88
Define attempt
An inchoate crime. A substantial step toward commission of a crime (beyond mere prep) couple with the specific intent to commit the crime.
89
Is factual impossibility a defense to attempt?
No.
Impossibility is not a defense to an attempt charge if the crime attempted is factually impossible to commit due to circumstances unknown to the defendant.
Factual impossibility is not a defense to conspiracy.
90
Is legal impossibility a defense to attempt?
Yes
91
When is abandonment a defense to attempt?
CL: Until a substantial step is taken
92
Self-defense (standard; deadly force; retreat;
One who is not the aggressor is justified in using reasonable force against another person to prevent immediate unlawful harm to himself. The harm to the defendant must be imminent, not a threat of future harm. The defendant can use only as much force as is required to repel the attack.
Deadly force: May be justified only when it is reasonably necessary to prevent death or serious injury or to prevent the commission of a serious felony involving a risk to human life.
Retreat: There is never an obligation to retreat before employing nondeadly force.
a) Majority: Retreat is not required even when deadly force is used in self-defense.
b) Minority view (“retreat doctrine”): Retreat is required if it can be safely accomplished.
c) Castle doctrine: Under both views, however, retreat is never required when the person employing deadly force is in his own home.
Imperfect right of self-defense: When the person claiming self-defense unjustifiably kills the attacker. Reduces the charge from murder to voluntary manslaughter. Ex: D may honestly but unreasonably believes that deadly force is required to prevent death or serious bodily injury.
Aggressor’s right to use self-defense: It is possible for an initial aggressor to gain the right to act in self-defense in two circumstances:
(i) an aggressor using nondeadly force is met with deadly force, or
(ii) the aggressor has, in good faith, completely withdrawn from the altercation and has communicated that fact to the victim.
93
Defense of others:
A person has the right to defend others under the same circumstances in which self-defense would be acceptable. Defense of others is not limited to defending family members but extends to anyone the defendant reasonably believes has the right of self-defense.
94
Defense of property:
A person in lawful possession of property that is threatened by the conduct of another, and who has no time to seek assistance from law enforcement, may take reasonable steps, including the use of nondeadly force, to protect the property. Must reasonably believe that the real property is in immediate danger of unlawful trespass or that personal property is in immediate danger of being carried away, and that the use of force is necessary to prevent either. The force cannot be unreasonably disproportionate to the perceived harm.
Deadly force: No right to use deadly force in defending property. Exception: Generally, a person may use deadly force to prevent or terminate forcible entry into a dwelling if the occupant reasonably believes that the intruder intends to commit a felony inside. The use of deadly force against an intruder exiting the dwelling is generally not permissible. A deadly mechanical device cannot be used to protect property, although non-deadly mechanical devices or objects (such as barbed wire) may be used.
95
Resisting unlawful arrest:
A defendant may use nondeadly force to resist an unlawful arrest, but never deadly force. Some jurisdictions do not permit the use of force at all and require defendants to seek legal redress for an unlawful arrest.
96
Duress:
A third party’s unlawful threat that causes a defendant to reasonably believe that the only way to avoid death or serious bodily injury to himself or another is to violate the law, and that causes the defendant to do so, allows the defendant to claim the duress defense.
Duress is not a defense to intentional murder. A defendant charged with felony murder may claim duress as a defense to the underlying felony and avoid conviction for felony murder.
97
Necessity defense:
If the forces of nature (e.g., storm, fire) cause the defendant to commit what would otherwise be a crime, the defendant may be justified in doing so based upon necessity (lesser of two evils).
The defendant is not entitled to assert necessity if he set the natural forces in motion (e.g., set the fire) or if there is a reasonably apparent noncriminal alternative. In addition, economic necessity does not justify theft.
While the defendant may escape criminal liability, the defendant may be compelled by tort law to reimburse the victim for any losses.
MPC does not explicitly limit the defense of necessity to natural forces.
98
Consent as defense:
Consent of V is not a defense to a crime unless the consent negates a required element of the crime or precludes the harm sought to be avoided by the crime. Such consent must be voluntarily and freely given, involve no fraud, and be given by one competent to consent.
Defense to rape (unless the woman is a minor), and kidnapping if an adult (but not a minor) consents to traveling with the defendant.
Consent to bodily injury or to conduct that may cause bodily injury may constitute a defense when the injury is not serious or, with regard to a sporting event or similar activity, the conduct and injury are reasonably foreseeable (e.g., boxing).
Consent may be ineffective when given by a legally incompetent person; by V who is unable to make a reasonable judgment due to age, mental disease or defect, or intoxication; or by V whom the law seeks to protect. Consent obtained by fraud, duress, or deception may also be ineffective.
99
Entrapment:
The conception and planning of an offense by a law-enforcement officer, and his procurement of its commission by D who would not have committed that offense except for the trickery, persuasion, or fraud of the officer. Defendant must lack any predisposition to commit the crime. Entrapment can occur through the use of an undercover agent but not by a private citizen.
Modern trend allows D to deny participation in an event, yet still raise the defense of entrapment. Traditionally, D was precluded from using the entrapment defense if he denied his participation in the event.
Subjective approach (majority): Focus is on D. Entrapment occurs when:
(i) the crime is induced by a government official or agent, and
(ii) D was not predisposed (i.e., ready and willing) to commit the crime. If a defendant is predisposed to committing the crime, then the entrapment defense is not available, even if the government agent has engaged in misconduct, such as by supplying contraband.
Objective approach (MPC/minority): Focus is on the government’s action and the effect those actions would have on a hypothetical innocent person. Requires the government official or agent to have induced or encouraged D to commit a crime by employing methods of persuasion or inducement that create a substantial risk that the crime will be committed by an otherwise law-abiding citizen.
100
What is the exclusionary rule?
Prevents intro at a subsequent crim trial of evidence unlawfully seized. Exceptions: at fed habeas corpus review, grand jury proceedings, preliminary/bail/sentencing hearings, proceedings to revoke parole, evidence used as impeachment evidence against D, or civil proceedings. Judge makes suppression decision. Factual finding review for clear error while findings of law reviewed de novo??
101
4A standard
Reasonable expectation of privacy wrt place searched or item seized.
102
Define seizure
When police, by means of physical force/show of authority, terminate/restrain freedom of movement and D actually submits.
103
If police intent to restrain is ambiguous or D's submission is only passive acquiescence, then seizure occurs if...
totality of circs would lead reasonable innocent person to believe he is not free to leave.
104
Define stop and frisk
Temp detention that constitutes seizure if the officer, by means of physical force/show of authority, has in some way restrained (physical restraint or an order to stop) the liberty of a citizen.
105
Warrant requirements for arrest
Must be issued by a detached/neutral magistrate upon finding of probable cause and describe with particularity the D and crime.
106
Will a deficient warrant invalidate an arrest?
Not as long as there was probable cause. No warrant required for proper arrest based on probable cause.
107
Warrant requirements for a search
Must be issued by detached/neutral magistrate upon finding of probably cause, supported by oath or affidavit, and must describe with particularity places to be searched and items to be seized (reasonable belief that contraband will be found).
108
Facts that support probable cause
officer's personal observations; info from reliable, known informant or verified unknown informant (NOT unverified unknown informant); evidence seized during stop and based on reasonable suspicion, discovered in plain view, or during consensual search
109
Define the particularity requirement for a warrant
must specify place to be searched and objects to be seized. Can also refer to contraband as "other fruits, instrumentalities, or evidence of crime at this time unknown" and still be valid.
110
What is the knock and announce rule and the consequence of its violation?
Police must generally announce purpose when executing a warrant (unless state allows exception for exigent circs). But violation does not trigger exclusionary rule. Failure to knock and announce only invalidates the arrest.
111
What are the rules around warrantless arrests?
Arrest warrant not needed in public place or for felony or misdemeanor in arresting party's presence, but invalid arrest alone not a defense to crime charged (but will affect any seizure of evidence). In determining whether a crime has been committed, question is whether an officer could conclude considering all the surrounding circs that there was a substantial chance of crim activity.
112
Search and seizure elements
Search must be by gov employee or agent. There must be a reasonable expectation of privacy or physical intrusion on protected area.
113
When is search and seizure of an automobile ok?
Need reasonable suspicion of law violation to effectuate a stop. Can have probably cause for pre-textual stops when traffic law violated to investigate whether another law has been violated??? Just because rental car doesn't mean person doesn't have reasonable expectation of privacy. No reasonable expectation of privacy over an odor coming from the car.
114
What are the rule about tech devices wrt searches and seizures?
Attaching a tracking device to a person without their consent is a search. Collecting cell-site location info from a wireless carrier to track a person requires a warrant. Physically intruding on a suspect's prop to install tech device may be a search. Use of sense-enhancing devices not used by general public is a search.
115
Exceptions to the search warrant requirement
Search incident to lawful arrest; exigent circs; stop and frisk; automobile exception; "plain" view doctrine; consent; warrant authorizing wiretapping
116
Requirements surrounding search incident to lawful arrest (scope)
Must be reasonable in scope and incident to a lawful arrest.
Includes contemporaneous search of person/immediate surrounding area including pockets/containers, but not cell phone or laptop unless exigent circs.
In the home, a protective sweep is permissible even without probable cause or reasonable suspicion. Includes places immediately adjoining place of arrest in home from which an attack could be launched in which a person might be hiding. Can be broadened if based on reasonable suspicion that confederates are hiding beyond these immediately adjacent areas.
In vehicles, anything within reach of arrestee or if it is reasonable that evidence of the offense of arrest might be in vehicle.
117
How to determine if exigent circs for warrant exception
TOC test: Must have probable cause and exigent circs. Police may not create the exigency by threats or conduct that violates 4A.
Hot pursuit: Can seize mere evidence (not fruits/instrumentalities of crime) from a private building if they have probable cuase to believe suspect committed a felony.
Emergency: If reasonable apprehension that delay in getting warrant would result in immediate danger of evidence destruction, police/public safety or fleeing felon (judged by police officer's objective reasonable belief).
118
Stop and frisk requirements for warrant exception
Terry stop: If reasonable suspicion per TOC based on articulable facts that detainee is involved in crim activity, and is a limited/temp intrusion on D's freedom of movement.
Frisk: Officer without probable cause may pat down a person's outer clothing if he has reasonable suspicion that suspect was/is involved in crim activity and that frisk necessary for safety. Remember plain feel exception. Least intrusive means reasonably available for weapons only, but if suspicion becomes probable cause, can make arrest and conduct full search.
119
Plain feel exception:
If officer conducting a valid frisk feels an object whose ID is immediately obvious (ex: contraband) it can be seized.
120
What is the scope of stop and frisk wrt cars?
Police can search passenger compartment if reasonable belief suspect is dangerous and may get immediate control of weapons, and the search is limited to places where a weapon could be hidden.
121
What is the automobile exception to warrant requirement?
Can search any part of car (including luggage and particular containers) if probably cause that it contains contraband/evidence of crime. Does not permit warrantless entry of home or curtilage in order to search vehicle therein.
122
What is the plain-view doctrine?
No reasonable expectation of privacy in public view. No reasonable expectation of privacy in private view if officer is on premises for lawful purpose, incriminating nature of item immediately apparent, and officer has lawful access to the item.
123
Rules around the consent exception to the warrant requirement
Voluntary: no threats of harm, compulsion or false assertion of lawful authority (TOC). But gov agent may pretend to be someone else.
Third party: can consent to own prop search, but D's prop only if agency relationship to D or D assumes the risk of search when giving right to third party to consent to search
124
Rules around warrant authorizing wiretapping
It must be for limited period of time. There must be probable cause that specific crime has been or is about to be committed. Must ID persons and describe particular conversations to be tapped. Must reveal intercepted convo to court???
125
To have standing to object to search and seizure, D must show...
A legit expectation of privacy wrt the search.
126
What is the scope of the exclusionary rule?
Fruit of the poisonous tree: applies not only to evidence initially seized as a result of gov illegality but also to secondary derivative evidence resulting from primary taint.
127
What are the exceptions to the exclusionary rule?
1) Inevitable discovery: in same condition through lawful means
2) Independent source: unrelated to tainted evidence
3) Attenuation: passage of time and/or intervening events may purge primary taint
4) Good faith: police relying in objective good faith on either facially valid warrant later found invalid or existing law later held unconstitutional; does not apply if no reasonable officer would rely on affidavit underlying warrant, warrant defective on its face, warrant obtained by fraud, magistrate wholly abandons judicial role, or warrant improperly executed
5) Isolated police neg: must be sufficiently deliberate that exclusion can meaningfully deter
6) Knock and announce: rule doesn't apply when police fail to knock and announce their presence
7) In-court ID: not fruit of an unlawful detention
128
Will court always order a new trial if exclusionary rule was misapplied?
No--court can refuse to order new trial if error harmless BARD (i.e. illegal evidence did not contribute to result)
129
What is the privilege against compulsory self-incrimination (5A)?
No person (does not apply to corps even if individuals would be criminally liable personally) shall be compelled in crim case to testify against himself. Applies to states through 14A. Applies only to testimonial evidence, not nontestimonial physical evidence like blood, urine, breathalyzer, etc. Applies to civil/crim, formal/informal proceedings if answers provide reasonable possibility of incriminating D in future crim proceeding.
Although the custodian of corporate records as an individual enjoys the Fifth Amendment privilege against self-incrimination, the request for production is being made to the custodian in his capacity as a corporation employee, and, as such, the Fifth Amendment does not apply.
If given immunity, can't then invoke this privilege? Derivative-use immunity protects a witness from the use of the witness’s own testimony, or any evidence derived from that testimony, against the witness in a subsequent prosecution, but does not protect him from its use in a civil suit. immunity, whether transactional or derivative-use immunity, does not apply to subsequent civil actions. immunity is not limited to federal prosecution despite the “separate sovereignty” doctrine. However, it is limited to criminal prosecutions.
130
How can Ds and witnesses waive the 5A privilege against self-incrimination?
Ds: by taking the stand and answering P's questions
Witness: by disclosing self-incriminating info in response to a specific question
131
Any incriminating statement obtained as result of custodial interrogation may not be used against suspect at subsequent trial unless...
police inform subject of Miranda rights
But, a statement taken in violation of Miranda may be used to impeach the credibility of a criminal defendant if he takes the witness stand and gives testimony at variance with his previous admissions (as long as not coerced).
132
What counts as a custodial interrogation for 5A self-incrimination purposes?
Custodial: Substantial seizure; Would a reasonable person believe he could leave? Questioning at police station not automatically custodial.
Interrogation: Questioning/words/actions reasonably likely to elicit incriminating response. Voluntary statements not protected. Confessions involuntary only if coerced by police (TOC analysis).
133
When must Miranda rights be given?
Before interrogation begins, and again if stopped for a long time (which could be even just a couple of hours).
134
What must the content of the Miranda rights be?
Need not be verbatim, but must inform suspect of right to remain silent, any statement can be used in court, right to attorney (or one will be appointed).
135
What are the rules around right to counsel and interrogations?
Suspect must make a specific, unambiguous statement asserting his desire to have counsel present. Once invoked, all interrogation must stop until counsel is present, unless suspect voluntarily initiates comms with police (including spontaneous statements) or there's been a 14-day break in custody and fresh Miranda warnings.
136
What are the rules around right to silence and interrogations?
Suspect must make a specific, unambiguous statement asserting his desire to remain silent. Mere silence is not enough. Interrogator must scrupulously honor right if invoked, but if suspect indicates desire to speak, subsequent interrogation lawful if suspect not coerced and Miranda warnings given again.
137
Exceptions to Miranda warnings
1) public safety
2) routine booking questions
3) undercover police
138
Can Miranda rights be waived?
Yes--suspect may knowingly, voluntarily, and intelligently waive right. Silence is insufficient.
139
What are a D's and witnesses's 5A privileges in trial context?
D: Can refuse to testify at crim trial or other proceedings that might incriminate him in future crim proceedings.
Witness: May also invoke 5A but may raise Confrontation Clause issues if partial testimony given already.
140
What rights are included in 6A?
1) Jury
2) Public trial
3) Confront witnesses against him
4) Cross-examine witnesses
5) Be present at his own trial
6) Assistance of counsel for his defense
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For what cases is there a right to counsel?
Any case in which actual/suspended incarceration is imposed.
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What stages of a case does right to counsel apply?
Automatically for critical stages of prosecution after formal proceedings begin. Automatically attaches when formal judicial proceedings have begun (e.g. post-arrest initial appearance before a judicial officer, formal charge, preliminary hearing, indictment, information, or arraignment).
No right to counsel at post-conviction proceedings (e.g. parole, probation).
143
Can right to counsel be waived, and if so what are the requirements?
Yes. must be voluntary, knowing, and intelligent.
144
What are the presumptions for subsequent waivers of your right to counsel?
If accused was automatically appointed counsel bc didn't assert it himself: No presumption that any subsequent waiver of the right was involuntary.
If accused actually asserts the right: Subsequent waivers are presumed involuntary, but only in custodial setting.
145
What is the rule around non-custodial interactions with the accused without lawyer after his 6A right to counsel has attached?
Fine, no presumption that any knowing waiver of the right to have counsel present for the interaction is involuntary.
146
What are the rules around proceeding pro se?
D can refuse counsel and proceed pro se at trial. Court should warn D of dangers/disadvantages and may appoint standby counsel. D may be competent to stand trial but incompetent to rep himself.
147
Do police have an obligation to inform D that counsel has been trying to reach him?
Not unless 6A right has attached.
148
What is the Blockburger test?
two different crimes committed in one criminal transaction are deemed to be the same offense for Sixth Amendment purposes unless each offense requires proof of an element that the other does not
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5A vs. 6A right to counsel
6A attaches automatically; 5A does not.
6A only applies to interrogations about offense charged.
For 6A, police must deliberately elicit the incriminating statement to create a violation.
Miranda warnings have no effect on a D's 6A rights.
For both, D may make knowing/voluntary waiver of right.
150
What is the effect on conviction of denial of counsel under 6A?
Automatically reversed even without specific showing of unfairness.
151
What is the effect on a guilty plea of denial of counsel under 6A?
D has right to withdraw it and it can't be used against him as an admission.
152
What is the effect on a nontrial proceedings of denial of counsel under 6A?
harmless error analysis
153
What is the effect on D's statements to informants of denial of counsel under 6A?
Post-indictment statement to informant where situation is likely to induce D to incriminate himself without counsel is inadmissible, but police may place an informant in D's cell to listen without questioning D.
154
Can incriminating evidence obtained in violation of 6A be used for impeachment?
Yes
155
How can a claimant show ineffective assistance of counsel?
1) Counsel's rep fell below objective standard of reasonableness; and
2) Counsel's deficient performance prejudiced D, resulting in reasonable probability that outcome would have been diff.
Mere inexperience, strategy, or failure to produce mitigating evidence insufficient.
Prejudice presumed if deficient perf costs D an appeal, even if D signed waiver of his right to appeal as part of guilty plea.
156
When will conflict of interest amount to ineffective assistance of counsel?
Must show actual conflict and an adverse effect on counsel's performance.
Actual conflict: When court determines that attorney is subject to an obligation/unique personal interest that would lead her to adopt a strategy other than that most favorable to D.
Adverse impact: When plausible alternative strategy/tactic might have been pursued but was inherently in conflict with or not undertaken due to attorney's other loyalties or interests.
157
What is the rule around right to counsel for eyewitness IDs and the effects of a violation.
Pursuant to the Sixth Amendment, a defendant is entitled to have counsel present at any post-indictment lineup or show-up in which the defendant is required to participate. But a defendant is entitled to counsel only at a corporeal identification that takes place after an indictment.
The right to counsel does not apply to a pre-indictment witness identification.
Inadmissible if violated but witness can ID the D at trial if ID has independent reliability.
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How can a D show an ID was impermissibly suggestive
1) D must prove ID was impermissibly suggestive and
2) Substantial likelihood of misidentification
P may prove nonetheless reliable (opp to view, degree of attention, accuracy of witness's description, level of certainty, length of time).
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How is it decided if ID was impermissibly suggestive and what is the remedy?
Suppression hearing (usually outside jury's presence) to determine admissibility. If impermissibly suggestive, suppression.
160
What are the procedures around probable cause to detain?
Must be held within 48 hours of arrest to determine probable cause. 4A guarantees D right to be released if no probable cause. No remedy if detention unlawful other than exclusion of evidence.
161
What happens at an initial appearance before a judge?
Judge advises D of the charges and his rights and appoints counsel if the D is indigent. Judge may also decide conditions of bail and accept a plea.
162
What is the right to bail?
No constitutional right to bail, but denial of or excessive bail must comply with DPC.
163
What are the competency requirements (for D)?
D must comprehend nature of proceedings against him and have ability to consult with lawyer with reasonable degree of rational understanding to be competent to stand trial.
164
What are a D's rights in front of a grand jury?
No right to present/confront witnesses or into evidence, and no dismissal due to procedural defect unless sub impact on decision to indict. The prosecutor has no legal obligation to present evidence exculpating the defendant to the grand jury, even if it is requested by the grand jurors. Thus, a grand jury indictment cannot be dismissed for the prosecutor’s failure to present exculpatory evidence, unless the prosecutor violated a preexisting constitutional or legislative rule.
165
What is the state's duty to disclose evidence to D?
Affirmative duty to disclose to D any material evidence favorable to D and relevant to P's case-in-chief that would negate guilt or diminish culpability/punishment.
166
Consequences of failure to disclose evidence to D
Grounds for reversal if D shows:
1) Evidence is favorable to D and
2) Caused prejudice against the D
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When does D have right to be present?
With some exceptions, initial arraignments, every trial stage, and sentencing.
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When does right to jury trial attach?
Right attaches for non-petty offenses for which authorized sentence is more than 6 months imprisonment, regardless of actual penalty imposed.
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Can right to jury trial be waived and how?
D can waive and opt for trial by judge by obtaining court's approval, and freely/intelligently entering a voluntary waiver.
170
What are the jury size requirements for fed/state court?
FRCP: requires 12 unless waived in writing and approved by court, but verdict by 11 is ok if 12th juror is excused for good cause after deliberations begin
State: juries of fewer than 6 are unconstitutional; if 6, must return unanimous verdicts, but unanimity not required if 7 or more
171
What are jury composition requirements?
Jury pool must be representative cross-section of community, but actual jury selected need not be
172
When does D have standing to challenge selection process for jury?
Can challenge without showing actual bias
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When is there a prima facie case for absence of representative cross-section in jury pool?
1) Distinctive group excluded
2) Group not fairly repped in jury pool, and
3) Underrep resulted from systematic exclusion of group
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What happens when a party challenges a peremptory challenge for discrimination based on race/ethnicity/gender?
A prosecutor is free to exercise peremptory challenges in any manner he sees fit unless such exercise violates the Equal Protection Clause. The Equal Protection Clause prevents the use of peremptory challenges for racially or gender motivated reasons.
Moving party must establish prima facie case of discrim. Party who exercised the peremptory challenge must provide race neutral explanation. Moving party carries burden of proving other party's reason was pretextual. Defendant need not be a member of the excluded group in order to have standing to contest the prosecution’s use of its peremptory challenges.
175
What kind of review happens when judge in good faith erroneously denies D's peremptory challenge?
State can choose btw harmless error review or automatic reversal.
176
What kind of review are claims of juror bias/misconduct subject to?
Harmless error rule
177
When can D question potential jury members' views on race
When racial prejudice involved in case or when race is inextricably bound up in the case
178
Can jurors opposed to the death penalty be removed for cause in capital punishment cases?
Yes, if opposition substantially impairs duties during sentencing.
179
When is sentencing enhancement by judge ok?
Enhancement of sentence by judge for reasons other than D's prior conviction absent jury determination of existence of additional facts violates D's right to jury trial.
180
What are the requirements for a guilty plea?
Must be intelligent and voluntary, and made in the presence of judge. Judge must advise D and determine that plea not due to force or promises other than in plea agreement.
Under fed rules, judge must determine there is some factual basis for the plea.
181
What are a D's rights surrounding plea bargaining?
D has no constitutional right to plea bargain. Plea made in response to P's threat to bring more serious charges does not violate DPC. P not required to disclose impeachment info or info related to affirmative defense.
182
What are the rules surrounding enforcement of a plea bargain?
Plea bargain is enforceable against P and D, but not judge (judge can reject plea). If P violates bargain, judge can decide whether to order specific perf of bargain or whether D can withdraw plea. If D violates bargain, P can have sentence vacated and reinstate original charges.
183
What challenges does a D have against a plea?
D can attack plea for ineffective assistance of counsel, lack of jx, or violation of DP.
184
Where does a D's right to a speedy trial come from?
DPC protects pre-accusation delay and SoL is primary safeguard. 6A protects post-accusation delay and time period starts at time of arrest/formal charge.
185
How does a court analyze whether right to speedy trial has been violated?
Balancing test: length and reason for delay, D's assertion of right, and prejudice to D
186
What is the remedy for violating a D's right to a speedy trial?
Dismissal of charges with prejudice.
187
What are the requirements for judge impartiality?
No actual/apparent bias
188
What are requirements on P for fair trial?
Cannot misstate law/fact, talk to D without counsel present, express opinions about D's guilty/innocence, make improper remarks about D, or comment on D's failure to testify.
189
What is D's right to confrontation?
At trial, accused has right to encounter and cross adverse witnesses and be present at any stage of the trial.
But face-to-face is not an absolute right and may be prevented for public policy reasons.
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What are the hearsay rules around the Confrontation Clause?
Testimonial out-of-court statements by witnesses generally are barred under Confrontation Clause, unless i) the witnesses are unavailable and D had a prior opp to cross those witnesses, or ii) witness is unavailable bc D acted with purpose to prevent witness from testifying.
But out-of-court testimonial statements not barred by CC when used for purpose other than establishing truth of matter asserted.
191
How do you define testimonial vs. non-testimonial for purposes of the confrontation clause?
Testimonial: Declarant would reasonably expect it to be used in prosecution
Non-testimonial: Statements made for primary purpose of assisting police in investigation of an ongoing emergency are not testimonial.
192
What is the Bruton rule?
Admission of a confession by non-testifying co-D at joint trial against D violates 6A
193
When are permissive vs. mandatory presumptions DP violations?
Mandatory: per se violation
Permissive: not DP violation unless irrational
194
What are the burdens of proof in a trial?
P must prove all elements BARD; state may place burden of proving affirmative defenses on D; court may grant acquittal if there is insufficient evidence for a jury reasonably to find D guilty.
A state (or the federal government) may not require a person on whom a criminal penalty would be imposed (e.g., a defendant) to disprove an element of the offense.
195
What are a D's rights at sentencing?
Right to counsel, confrontation, cross-exam.
Any fact other than prior conviction that can be used to increase statutorily prescribed max must be charged indictment, submitted to jury, and established BARD.
196
How to establish violation of 8A bc cruel and unusual punishment
Non-death penalty: Prisoner must show prison officials had actual knowledge of sub risk to prisoners or serious injury, or sentence grossly disproportionate to crime.
Capital punishment: Can only be imposed under statute that provides clear/objective standards, specific/detailed guidance, and opp for rational review of process.
197
What is the 5A double jeopardy clause?
Protects against second prosecution for same offense after acquittal/conviction and against multiple punishments for the safe offense.
Doesn't apply to civil penalties?
198
What counts as a safe offense for double jeopardy purposes?
Generally bars successive prosecutions for greater/lesser included offenses unless jeopardy attache to lesser included offense before event necessary for greater offense.
If the defendant has been acquitted of the underlying offense on which a felony murder charge would be based, the double jeopardy prohibition prevents the defendant's retrial on this offense, even if the events necessary to establish the greater offense took place after trial.
199
What counts as attachment moment for double jeopardy purposes?
When jury is impaneled/sworn in or when first witness is sworn in for bench trial.
200
Can D be charged/convicted in fed and state court?
Yes
201
Are civil actions precluded by crim punishment for same conduct?
No
202
When does collateral estoppel apply?
Applies when earlier decision must have necessarily determined issue on which collateral estoppel is sought by D.
In the context of the Fifth Amendment's Double Jeopardy Clause, the collateral estoppel doctrine operates to prevent the defendant's retrial on an issue that was necessarily determined in the defendant's favor at an earlier trial. It does not operate in the government's favor to prevent the defendant from relitigating the issue of whether he had harmed the victim.
203
Does the Constitution guarantee a right to appeal?
No
204
What is D guaranteed for his first appeal as of right?
D is guaranteed EP and right to counsel, but an attorney may withdraw and there is no right to self-rep??
205
What is D guaranteed for a discretionary appeal?
Indigent D does not have right to appointment of counsel unless conviction was based on a guilty or nolo contendere plea
206
Must errors be preserved for consideration on appeal?
Yes, timely
207
What is a harmless error?
An error that does not affect substantial rights. Will not serve as grounds for reversal.
208
D who failed to preserve claim of [plain] error is entitled to appellate relief when:
i) district court committed error under the law in effect at the time the appeal is heard;
ii) the error is obvious under that law; and
iii) the error affected the D's sub rights.
209
What is writ of habeas corpus?
D can attack conviction after unsuccessful appeal under writ. Civil action, so standard is preponderance of the evidence.
210
What are the rules about entering a home to serve an arrest warrant?
A warrant to arrest an individual implicitly authorizes entry into the arrestee's home to serve the warrant if the police have reason to believe that the arrestee is present.
A police officer may not arrest a person in another person's home without a search warrant, however, absent exigent circumstances or valid consent from the person whose home is being entered.
211
Does deceit or fraud by the interrogators, such as lying about a co-conspirator’s confession, itself make a confession involuntary?
No
212
What are D's rights wrt racial comp of grand juries?
A defendant who is indicted by a grand jury from which members of a racial group have been deliberately excluded has standing to raise Equal Protection claims of the excluded racial group, even though the defendant is not a member of the excluded racial group.
213
Are “three-strikes” laws violative of the Eighth Amendment’s prohibition against cruel and unusual punishment?
No, such laws serve a state’s legitimate goal of deterring and incapacitating repeat offenders.
214
What are ex post facto laws?
Ex post facto laws criminalize acts that were not criminal when originally committed or imposes a more severe penalty after the act was committed. Unconstitutional.
215
Requirement for imposing death penalty
In order for a judge to impose the death sentence in a jury trial, the Sixth Amendment Right to a Jury Trial as made applicable to the states through the Due Process Clause of the Fourteenth Amendment requires that jury must find at least one aggravating circumstance beyond a reasonable doubt.
216
Parental authority defense:
The use of reasonable force in the exercise of parental authority (i.e., discipline) by a parent or by a person in charge of a child (e.g., a teacher) is justified if exercised for the benefit of the minor child.
No physical harm? No limitation that parental discipline be delivered only in private.
217
What kind of crime is "fear of harm" assault/"apprehension assault"?
“fear of harm” type of assault (also called “apprehension assault”) is a general-intent crime
218
What is the Pinkerton rule?
Every co-conspirator is guilty of any foreseeable substantive offense committed in furtherance of the conspiracy, regardless of actual knowledge of its commission.
219
Can a conspirator be convicted of conspiracy if all other conspirators are acquitted at the same trial?
At CL, no, because there must be more than one conspirator to have a conspiracy.
220
Are actions by a third party (e.g., negligence by the doctor treating the victim) generally foreseeable?
Yes
221
What kind of crime is conspiracy?
A specific intent crime
222
Does fraudulent conduct negate consent?
No
223
Do arson and felony murder merge?
arson will merge with felony murder
224
Wharton rule:
Requires that a conspiracy have more parties than are necessary to complete the crime.
225
Defense of arrest:
A police officer or a person acting under police direction is justified in using reasonable force to make a lawful arrest or to prevent the escape of one already in lawful custody.
A police officer can lawfully arrest a suspect, with or without a warrant, if the suspect has committed a crime in the officer’s presence or if the officer has probable cause to believe that the defendant committed a felony offense outside of his presence. A police officer can use nondeadly force to arrest a suspect. A police officer can use deadly force to arrest a suspect if the suspect represents a threat to either the officer or third parties.
A civilian acting without police direction in making an arrest (e.g., a “citizen’s arrest”) who makes a mistake, even a reasonable mistake, as to the commission of the crime is not entitled to rely on this defense, but may do so if the civilian makes a reasonable mistake as to the identity of the perpetrator of the crime.
226
Defenses list:
1. Self-defense
2. Defense of others
3. Defense of property
4. Arrest
5. Prevention of crimes
6. Public authority
7. Parental authority
8. Duress
9. Necessity
10. Consent
11. Entrapment
12. Alibi
227
Prevention of crimes defense:
Anyone can use deadly force to prevent the commission of a serious felony involving a risk to human life, and may use nondeadly force to prevent the commission of a felony or a breach-of-the-peace misdemeanor.
A private citizen who makes a mistake, even a reasonable mistake, as to the commission of a serious felony by the victim is not entitled to rely on this defense.
228
Public authority defense:
Actions taken by public officials pursuant to legal authority (e.g., court-ordered seizure of property, state-sanctioned executions) are justified.
229
Alibi defense:
D denies his participation in a crime because he asserts that he was elsewhere when the alleged crime was committed.
Not an affirmative defense; the defendant is not required to prove that he was elsewhere when the crime was committed. Instead, the burden remains on the prosecution to prove that the defendant was the person who committed the crime.
230
Terry stop rules:
A stop (also known as a “Terry stop”) is a limited and temporary intrusion on an individual’s freedom of movement short of a full custodial arrest.
A stop is justified on the reasonable suspicion that the detainee is or was involved in criminal activity. An officer who does not have probable cause to arrest may make a limited search of the person, such as a pat-down of the outer clothing, if she has reasonable suspicion that the suspect was or is involved in criminal activity and that the frisk is necessary for the preservation of her safety or the safety of others.
"Plain feel” exception: If an officer conducting a valid frisk feels with an open hand an object that has physical characteristics that make its identity immediately obvious as a weapon, contraband, or evidence of a crime, then the officer may seize the object.
231
Reasonable expectation of privacy rules/examples (financial statements; canine sniffing; cars; outside curtilage; plain view doctrine):
Generally a reasonable expectation of privacy must exist in places or property for right against unreasonable searches and seizures by gov actors to exist.
Financial statements maintained by a bank are bank records in which the customer has no reasonable expectation of privacy.
Canine sniffing is an invasion of reasonable expectation of privacy if it physically intrudes onto constitutionally protected prop. But not wrt luggage.
Just because rental car doesn't mean person doesn't have reasonable expectation of privacy. No reasonable expectation of privacy over an odor coming from the car.
No reasonable expectation of privacy in your outside curtilage?
Plain view doctrine: No reasonable expectation of privacy in public view. No reasonable expectation of privacy in private view if officer is on premises for lawful purpose, incriminating nature of item immediately apparent, and officer has lawful access to the item.
232
Can a statement taken in violation of Miranda be used in trial?
A statement taken in violation of Miranda may be used to impeach the credibility of a criminal defendant if he takes the witness stand and gives testimony at variance with his previous admissions (as long as not coerced).
233
Can a judge impose a harsher sentence upon retrial of a D who successfully appealed conviction?
DPC prohibits the imposition of a harsher sentence upon retrial of a defendant who successfully appeals a conviction, when the harsher sentence constitutes a penalty imposed on the defendant for the exercise of her right to appeal her conviction.
Double jeopardy does not generally prevent the imposition of a harsher sentence upon the retrial of a defendant after a successful appeal of a conviction.
234
If a statute does not state the culpable mind applicable to all material elements of the crime, then the mens rea applicable is...
Mens rea applicable to one material element is applicable to all material elements unless a contrary purpose plainly appears.
235
Derivative-use immunity:
Derivative-use immunity protects a witness from the use of the witness’s own testimony, or any evidence derived from that testimony, against the witness in a subsequent prosecution, but does not protect him from its use in a civil suit.
