Crim & CrimPro Flashcards

Question

6th Amendment right to impartial jury in a capital punishment case

Answer 1

In a capital punishment case, the defense and prosecution can challenge potential jurors for cause (e.g., people who would never vote for the death penalty being taken off jury).

Answer 2

The breaking and entering element of burglary requires the perpetrator entering the dwelling without the owner's consent. Even if the perpetrator entered the dwelling with a key, if she does not have consent, it's "breaking and entering." e.g., pushing an already open door still counts as "breaking"

Answer 3

A burglary ∆ who fails to complete the underlying felony is also guilty of the attempted commission of that felony.

Answer 4

Miranda rights may be expressly or impliedly waived. A waiver is implied when a suspect: * has not asserted his Miranda rights; * understands those rights; and, * engages in a course of conduct indicating a knowing and voluntary waiver (e.g., by making an uncoerced incriminating statement).

Answer 5

In most jurisdictions, a ∆ is guilty of involuntary manslaugther when the ∆ causes the death of another human being by engaging in conduct that creates an **unreasonable (or high and unreasonable) risk of death or serious bodily injury**. Under the majority view, the ∆ must have acted "**recklessly**" (i.e., had a conscious disregard of a known risk). In other jurisdictions, a ∆ is guilty of involuntary manslaughter for the **criminally negligent killing** of another. Criminal negligence requires a **substantially greater deviation from the reasonable person standard** of civil liability. In these states, even if the ∆ was unaware of the risk, the ∆ could be found guilty if an ordinary person in the ∆'s situation would have been aware that his conduct created an unreasonable (or unreasonable and high) risk of death or serious bodily injury.

Answer 6

Attempt always requires: * the specific intent to commit a crime; * an act by the ∆ or her agent in furtherance of that crime; * target crime must not have been completed.

Answer 7

Battery requires proof of both intent and contract with the π's person. Intent exists when ∆ acts with either purpose of causing contact with the π or knowledge that such contact is substantially certain to occur.

Answer 8

Under the 4th Amendment, the constitutional reasonableness of a traffic stop does not depend on the motivation of the officer involved or the petty nature of the offense charged, so long as state law permits arrest. If the officer has probable cause to believe that a suspect has committed an offense, then a stop and arrest of that suspect is reasonable if authorized under state law.

Answer 9

A search of the accused requires a warrant, unless an exception applies.

Answer 10

No warrant is required if the item is in plain view and the officer had the right to be there.

Answer 11

A ∆ is in custody if she is not free to leave or rasonably does not feel free to leave. e.g., if a person goes to a police station voluntarily (not under arrest) and could have terminated the encounter, the person is not in custody. e.g., Since drivers are generally not in custody during traffic stops, Miranda warnings do not need to be provided before brief police questioning.

Answer 12

Interrogation is any statement or conduct reasonably likely to elicit an incriminating response from the accused.

Answer 13

A Miranda wanring must be knowing and voluntary. Courts will employe a totality of the circumstances test in making this determination.

Answer 14

Under the 5th Amendment, a ∆ must be given Miranda warnings before any custodial interrogation.

Answer 15

If an accused makes an unambiguous and unequivocal request or demand for an attorney, police must cease interrogation and honor the request.

Answer 16

In *Elstad*, the Court held that the initial failure to administer Miranda warnings before quesitoning does NOT taint a subsequent **voluntary confession** that was given after Miranda warnings were given and waived.

Answer 17

Court will only suppress evidence obtained from an unlawful search if ∆ has standing to challenge it--i.e., a legitimate expectation of privacy.

Answer 18

A ∆ cannot challenge an unlawful search of a 3rd party's premises since it infringed on 3rd party's right to privacy--not ∆'s.

Answer 19

False pretenses is a type of theft offense that is: * a false representation of material fact; * that causes another person to transfer title to property (including money) to the ∆.

Answer 20

The false representation must be one of material present or past fact. Commercial puffery is not generally considered false pretenses.

Answer 21

The mens rea requireed is knowledge that the representation of fact is false and an intent to defraud. Most courts find that a ∆ acts knowingly and has knowledge of a particular fact when the ∆ is **aware of a high probability of the facts** existence and **deliebrately avoids learning the truth**.

Answer 22

Non-deadly force (e.g., hitting someone with a shoe) may be used to prevent a lesser felony (e.g., burglary) or a breach of the peace misdemeanor. For crime prevention defenses, doesn't need to be directed against a person/habitation/property of ∆. It can be against a 3rd person (e.g., neighbor).

Answer 23

* Principals: persons who commit a criminal act with the requisite mental state * accomplices: persons who 1) intentionally aid or encourage the principal to commit a crime 2) with the specific intent that the principal complete that crime.

Answer 24

Adequate provocation is conduct that would cause a reasonable person to lose control. e.g., a reasonable person would not hit someone on the head with a hammer in response to a broken television screen--no adequate provocation. Instead, this would be considered murder because the man acted with malice aforethought.

Answer 25

Due process requires that guilty pleas be made: * **voluntarily**: a free and deliberate choice; and, * **knowingly and intelligently**: with sufficient awareness of the nature and essential elements of the charged offense, the ranges of possible punishment, and the constitutional rights being waived (e.g., that ∆'s have right to jury trial).

Answer 26

Malice crimes (e.g., malicious damage to property) require proof that the ∆ was practically certain his act would cause a particular result (knowledge) or consciously disregarded a substantial and unjustifiable risk of harm (recklessness).

Answer 27

The 5th Amendment double jeopardy clause prohibits multiple punishments or a second prosecution for the **same offense**. Two crimes are considered the same offense when they have **identical elements** or when **every element of one crime** (e.g., underlying felony like rape) is also an element of the other crime (e.g., felony murder).

Answer 28

Murder may be reduced to voluntary manslaugther if the ∆ acted in imperfect self-defense. This occurs when ∆: * **honestly but unreasonably believed** that deadly force was necessary to prevent serious bodily injury or death; or, * started the altercation that led to the necessary use of deadly force. Think of Menendez brothers case.

Answer 29

Fraud in factum occurs when the fraud pertains to the nature of the act itself and ***negates*** a rape victim's consent. In contrast, fraud in the inducement occurs when fraud is used to gain consent to what the victim knows is an act of sexual intercourse and ***does not negate*** the victim's consent.

Answer 30

2nd degree murder includes unlawful kiling with intent to kill (even if there was adequate provocation).

Answer 31

Under the modern view, kidnapping is the unlawful and intentional confinement of another against the person's will (e.g., by threat, force, or fraud) that involves the movement or concealment of that person. Only a short distance is required. For a kidnapping to occur incident to the commission of another offense, the victim must be moved more than is necessary to complete the other offense.

Answer 32

Since confinement occurs when a person's movement is restricted against his/her will, consent is a defense to kidnapping. There is no kidnapping if a victim consents to confinement--e.g., person is locked in an apartment voluntarily (even if under false pretenses).

Answer 33

Abandonment is NOT a defense to attempt if it was motivated by: * a desire to avoid detection; * a decision to delay the commission until a more favorable time; or, * the selection of another similar objective or victim. Basically, abandonment needs to be permanent for it to be a defense.

Answer 34

The M'Naghten insanity test is met if a mental disease prevented the ∆ from understanding the nature and quality of the criminal act or knowing that it was wrong. Under the M'Naghten test for not guilty by reason of insanity (NGRI), the defense must prove that, at the time of the offense: * the ∆ suffered a defect of reason, from disease of the mind; and, * as a result of this mental disease or defect, the ∆ at the time of the act did not know the nature and quality of the act, or that the act was wrong.

Answer 35

The Model Penal Code insanity test is met if a mental disease prevented the ∆ from appreciating the wrongfulness of his conduct or conforming to the law.

Answer 36

Attempt always requires proof that the ∆ specifically intended to commit a crime--even if the target crime does not require specific intent (e.g., statutory rape).

Answer 37

An administrative search of a highly regulated industry is an exception to the warrant requirement since it furthers administrative objectives (e.g., to protect public welfare)--not traditional law enforcement objectives (e.g., to gather evidence for criminal prosecution). Thus, a statute permitting warrantless administrative searches of highly regulated industries is valid if: * its purpose concerns a **substantial government interest**; * warrantly searches are **necessary to further that purpose**; and, * it is a **c****onstitutionally adequate substitute** for a warrant (i.e., it gives notice of right to search and limit officer discretion).

Answer 38

A 4th amendment violation is not a proper basis to dismiss an indictment. However, evidence obtained from an illegal arrest can be suppressed at trial. e.g., girlfriend's arrest was invalid so it was a 4th amendment violation. court will not dismiss the indictment on this basis but she can move to suppress any evidence.

Answer 39

At common law, a person can raise an affirmative defense of self-defense based upon the use of non-lethal force, a ∆ must prove that she: * **reasonably believed** that the force was necessary to protect her from another person's **imminent use** or attempted use of unlawful force; and, * used an amount of force **proportionate** to the force encountered. In some jurisdictions, a ∆ must also prove that: * she was not the initial aggressor; or, * if she was the initial aggressor, she withdrew from or abandoned the conflict before acting in self-defense.

Answer 40

The government does not need a warrant to inspect items left in a public area or exposed to the public since: * public areas are not constitutionally protected; and, * persons have no reasonable expectation of privacy. e.g., garbage in alleyway

Answer 41

Due process requires that the prosecution prove every element of a criminal offense **beyond a reasonable doubt** to convict a ∆--even when the ∆ asserts a defense that negates an element of the crime. The BOP cannot be put on the ∆.

Answer 42

A ∆ is guilty of murder when his voluntary act or omission: * actually and proximately caused another's death; and, * was committed with malice aforethough. An omission is the failure to perform a legal duty when the ∆ could have reasonably done so.

Answer 43

A ∆ can be convicted of possession of a controlled substance (or other prohibited object) if the prosecution establishes that the ∆ knowingly possessed the controlled substance. The possession element requires proof that ∆: * knowingly received an illegal item; or, * exercised dominion and control over the item after learning of its illegal character.

Answer 44

For robbery, a taking by intimidation occurs when there is immediate threat of death or serious physical injury to the victim, a close family member, or another person present. But a threat to damage or destroy property other than the victim's home, is not sufficient.

Answer 45

Robbery requires the taking of the victim's property by force or intimidation.

Answer 46

Robbery requires a taking of the victim's property by force or intimidation. Since larceny satisfies the taking requirement and battery/assault satisfies the force or intimidation requirement, they are lesser included offenses that merge with robbery.

Answer 47

When a ∆ is charged with a specific intent crime (i.e., assault, attempted murder), evidence of voluntary intoxication may be offered to show that the intoxication prevented the ∆ from forming the required intent.

Answer 48

Under the 6th Amendment, defense counsel was ineffective when: * his performance was deficient; and, * there is a reasonable probability that the trial's outcome would have been different absent the deficient performance.

Answer 49

Competence to stand trial is a legal requirement that defers to a ∆'s ability to particcipate in criminal proceedings. To be competent, it is not enough that the ∆ be oriented to time and place and have some recollection of events. Under the Dusky test, the ∆ must have: * sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding; * a rational as well as factual understanding of the proceedings against him. The ∆ must be able to assist in preparing his defense, which requires the ∆ to be able to make decisions such as whether to go to trial or plead guilty. Whenever the defense can establish a bona fide doubt regarding the ∆'s decision-making abilities, the court must hold a hearing to determine competence to stand trial.

Answer 50

In most states, the defense must prove the affirmative defense of NGLI by a preponderence of the evidence.

Answer 51

For a court to find a ∆ NGRI, the ∆'s mental defect must be so severe to cause the consequences in prong 2. The court must balance the evidence at trial against the evidence at the time the crime occurred. Various state laws differ on the definition of wrongfulness. Some states define wrongfulness as legally wrong (i.e., criminal violations) and other states define "wrongfulness" as morally wrong (i.e., the type of acts society would condemn).

Answer 52

A person cannot be convicted of solicitation if: * the solicited crime requires more than one participant (e.g., sale of narcotics requires a buyer & seller); * the criminal statute only imposes liability on one participant (e.g., only the seller of narcotics can be convicted); and, * the soliciting party is the type of person the law was enacted to protect (e.g., buyer).

Answer 53

No warrant is required to search under the 4th Amendment if there is an emergency. However, once an emergency ends, a subequent search is unconsitutional absent a valid reason to do so. E.g., an emergency ends once victim was taken to hospital. Since the police searched the house again to look for guns used in the shoooting and had no search warrant, no other exception applied. The search was unreasonable.

Answer 54

In most jurisdictions, a person who recklessly causes the death of another can be charged with so-called "depraved-heart" murder if the person acted with extremember indifference to the value of human life. This is common law murder or 2nd degree murder.

Answer 55

The typical affirmative defense of duress excuses ∆s from criminal liability if their conduct was committed under the pressure of an **unlawful threat** from another human being to harm the ∆. The unlawful threat must cause the ∆ to **reasonably believe** that the only way to avoid imminent death or serious bodily injury to himself or to another is to engage in conduct which violates the literal terms of the criminal law. The ∆ must also prove that he engaged in the criminal behavior because of the threat and not for some other reason.

Answer 56

A jury instruction violates the Due Process Clause if it creates either: * an irrebuttable conclusive presumption; or, * a rebuttable mandatory presumption.

Answer 57

A conclusive presumption is an irrebutable direction by the court to find intent once convinced of the facts triggering the presumption. This is usually a per se violation of the DPC.

Answer 58

Unlike irrebutable conclusive presumptions, rebuttable mandatory presumptions are not always per se violations of the DPC. However, the Supreme Court has held that jury instructions that could reasonably be understood as shifting the burden of proof to the ∆ on an element of the offense are unconstitutional.

Answer 59

Under *Apprendi v. New Jersey*, the Supreme Court held that, other than other prior convictions, **any fact that increases the penalty for a crime** **beyond the prescribed statutory max** must be submitted to the jury, and proved beyond a reasonable doubt. The statutory maximum is the maximum sentence a judge may impose soley on the basis of the facts reflected in the jury verdict or admitted by the ∆. Any fact that is necessary to support a sentence exceeding the max authorized by the facts established by a plea of guilt or a jury verdict must be admitted by the ∆ or proved to a jury beyond a reasonable doubt.

Answer 60

Larceny requires the intent to permanently deprive another of his property, so a person who takes property under the belief that he owns it is not guilty of this crime. And if larceny serves as the intended felony for common law burglary, this belief would be a defense to both crimes.

Answer 61

The 5th Amendment privilege against self-incrimination can be asserted only by natural persons--not artificial entitiesl like corporations.

Answer 62

The dual sovereignty doctrine allows different sovereigns to prosecute a ∆ for the same criminal act without violating the 5th Amendment double jeopardy clause. Each jurisdiction/state has the right to enforce its laws.

Answer 63

In-court identification testimony may be unreliable if it stems from **unnecessarily suggestive out of court ID procedures arranged by police** (e.g., police detective showed store owner a photo of the ∆ and explained the police were "pretty sure" that ∆ was robber). Therefore, such in-court ID testimony is only admissible if the **prosecution demonstrates that it is sufficiently reliable** and poses no substantial likelihood of misidentification.

Answer 64

An interrogation occurs when police direct questions, words, or actions at a suspect that they know or should know are reasonably ikely to elicit an incriminating response. Since volunteered statements (i.e., spontaneous and unprompted remarks) are freely offered, they are not elicited by an interrogation. Volunteered statements are admissible even if the speaker had not been Mirandized.

Answer 65

Attempted murder occurs when the ∆: * has the specific intent to kill; * commits an act in furtherance of the killing, but; * does not complete the killing. An overt act occurs when ∆ was dangerously close to completing crime. And once the ∆ comes dangerously close to completing the crime (act), he cannot avoid criminal liability by abandoning his plan.

Answer 66

School officials may search a student without a warrant if: * they have **reasonable suspicion** that the student violated a law or school rule; * the **scope** of the search is reasonably related to the suspected offense; and, * the search is **not excessively intrusive**. However, a warrant is required if the search is conducted at the direction of the police. e.g., two officers ask principal to call a student out of class and search his backpack. The principal did so without a warrant and found jewelry that she then turned over to the officers. Since principals' search was conducted at direction of the police, warrant based on PC was required.

Answer 67

Due process does not apply to affirmative defenses (e.g., insanity), so state law can require the ∆ to prove an affirmative defense by any standard. e.g., instructing the jury that the BOP is on the ∆ to prove a consent defense is OK and does not violate the ∆'s constitutional rights. Additionally, a legislature can freely modify or eliminate these defenses.

Answer 68

A ∆ can be criminally liable if he: * personally commits a crime or uses an innocent agent to do so (principal liability); or, * intentionally aids or encourages the principal before or during a crime with the intent that the crimebe completed (accomplice liability). But an accomplice is only liable to the same extent as the principal.

Answer 69

Larceny occurs when there is a trespassory taking and carrying away of another's personal property with the specific intent to permanently deprive that person of the property. A conviction can stem from either principal liability (e.g., innocent agent) or accomplice liability.

Answer 70

A ∆ can only waive her 6th Amendment right to counsel and engage in self-representation if the trial court confirms that the ∆: * knows the nature of the charges, range of punishment, and disadvantages of self-representation; and, * is not being forced to choose between incompetent counsel and self-representation.

Answer 71

Double jeopardy does not bar a second prosecution following a mistrial if the ∆ requested the mistrial or it was based on a **manifest necessity**: * when an unforeseeable event made it highly necessary to end the proceedings; and, * the judge exercised sound and rational discretion before doing so. e.g., judge learned that his mother in law had suddenly died (unforeseeable event) and declared a mistrial. But the judge did so without considering other alternatives like postponing the trial or substituting another judge (no exercise of sound and rational discretion). As a result, there was no manifest necessity for the mistrial, and second trial would violate the double jeopardy clause.

Answer 72

Under the *Ker/Frisbie* doctirne, a ∆ can be prosecuted in the U.S. even if he was forcibly abducted from another country without a warrant or the other country's permission.

Crim & CrimPro Flashcards

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