Crim Law & Pro Flashcards

Question

# merger lesser-included offenses

Answer 1

an offense in which each of its elements appears in another offense, but the other offense has something additional can't be convicted of both, but can be tried for both like if offense 1 requires circle and square and offense 2 requires circle, square, triangle --> offense 1 is lesser-included offense, D can be convicted of #2 but not #1 b/c #1 merges into #2

Answer 2

nope, crimes against each victim do not merge

Answer 3

D who actually completes a crime CANNOT also be convicted of attempting that crime

Answer 4

merges into the completed offense

Answer 5

nope! D can be convicted of both conspiracy to commit a crime + crime itself

Answer 6

* under age 7: NEVER capable of committing a crime * 7 - 14: rebuttably presumed to be incapable * 14+: can be charged as adults

Answer 7

D whose acts or omissions form the actus reus of the crime can be more than one principal to a particular crime "who committed the actus reus that gives rise to the offense?"

Answer 8

* theory for holding people other than the principal responsible for the crime committed by the principal * same degree of responsibility as the principal * assist principal before or during the commission of a crime * **must act with the intent** of assisting the principal to commit the crime * EXCEPTION: person protected by statute can't be an accomplice in violating the statute (ex. victim of statutory rape)

Answer 9

no, even approving bystanders

Answer 10

both the planned crime + **any other foreseeable crimes** that occur in the course of the criminal act crimes that are the **natural and probable consequnece** of their conduct

Answer 11

yes, accomplice can be criminally liable EVEN IF they can't be principal or if the principal can't be convicted | NOTE: this is the modern view. Under common law, accomplice can only be convicted if principal was convicted (PQs Set 3, Crim Law)

Answer 12

people who assist the D AFTER the crime has been committed | ex. obstruction of justice, harboring a fugitive

Answer 13

idv who aid or abet a D to commit a crime may also be guilty of the separate crime of **conspiracy** IF there was an agreement to commit the crime + overt act was taken in furtherance of that agreement

Answer 14

accomplice (1) must act with the purpose of promoting or facilitating the commission of the offense AND (2) must intend that their acts will assist or encourage the criminal conduct

Answer 15

accomplice is liable IF they **intentionally or knowingly** aids or causes another person to commit an offense

Answer 16

person who is NOT guilty of the substantive crime (b/c lacks intent) may still be guilty of the lesser offense of criminal facilitation for simply assisting

Answer 17

1. mistake 2. insanity 3. intoxication

Answer 18

D will claim that some mistake (about facts or law) negates their mens rea SO they cannot be convicted of a crime for which there are mens rea + actus reus elements mistakes of law + mistakes of fact

Answer 19

* mistakes about what the law forbids and permits * ignorance of the law is NOT an excuse

Answer 20

1. reliance on high-level govt interpretation 2. lack of notice 3. mistake of law that goes to an element of a specific-intent crime (only for FIAT crimes) | relying on your lawyer's advice is NOT within these exceptions

Answer 21

first determine whether the crime is a specific intent crime (FIAT), general intent crime, or strict liability crime

Answer 22

mistake of fact is NEVER a defense to SL crimes must be a voluntary act D's state of mind is irrelevant

Answer 23

defense ONLY IF mistake is reasonable + goes to criminal intent

Answer 24

are a defense whether the mistake is reasonable or unreasonable question is whether the D held the mistaken belief

Answer 25

1. M'Naghten test 2. Irresistible impulse test 3. Durham rule 4. MPC

Answer 26

D either did not know the nature of the act OR did not know the act was wrong B/C OF mental disease or defect

Answer 27

D has a mental disease or defect that prevents D from controlling themself

Answer 28

D would not have committed the crime BUT FOR having a mental disease or defect | D friendly so rarely used

Answer 29

due to a mental disease or defect, D did not have **substantial capacity** to appreciate the wrongfulness of their actions OR to confirm their conduct to the law

Answer 30

* D has the burden of proving insanity either by a preponderance of the evidence OR clear and convincing evidence. * some juris require D to intro evidence of insanity THEN burden of persuasion shifts to prosecution to prove sanity beyond a reasonable doubt

Answer 31

alcohol, drugs, and medications

Answer 32

occurs when a person 1. doesn't realize they received an intoxicating substance 2. is coerced into ingesting a substance OR 3. has an unexcited or unanticipated reaction to prescription medication

Answer 33

* general intent * specific intent * malice crimes when it negates the mens rea necessary for the crime

Answer 34

person intentionally ingests the substance, knowing that it is an intoxicant

Answer 35

1. agreement 2. b/t 2+ people 3. to commit an unlawful act

Answer 36

1. agreement 2. b/t 2+ people 3. to commit an unlawful act 4. **performance of an overt act in furtherance of the conspiracy** MPC doesn't require overt act if conspiratorial crime is felony 1st or 2nd | #4 is difference from common law

Answer 37

ONLY D must actually agree to commit the unlawful act (so undercover agents can be the other people)

Answer 38

* explicit or implicit * simply knowing a crime is going to occur and doing nothing does NOT turn bystander into co-conspirator (lacks agreement)

Answer 39

* must be an unlawful act * if conspirators agree to do something that is not a crime, then it's not conspiracy

Answer 40

can be lawful or unlawful as long as it furthers the conspiracy

Answer 41

each co-conspirator can be convicted of both (1) conspiracy AND (2) all substantive crimes committed by any other conspirator acting in furtherance of the conspiracy

Answer 42

1. chain conspiracy co-conspirators are engaged in an enterprise consisting of many steps, each participant is liable for substantive crimes of their co-conspirators ex. everyone on the supply chain of a drug ring is liable 2. spoke-hub conspiracy involves many people dealing with a central hub, participants are NOT liable for substantive crimes of co-conspirators each spoke is treated as separate agreement rather than one large general agreement ex. pawn shop operating as a fence, each robber is not responsible for goods of the other robbers

Answer 43

impossible to withdraw b/c crime is complete the moment the agreement is made

Answer 44

conspirator can withdraw **prior to the commission of any overt act** by communicating her intention to withdraw to all other conspirators OR by informing law enforcement after an overt act, conspirator can withdraw only by helping to thwart the success of a conspiracy

Answer 45

informing other conspirators of the withdrawal OR timely advising legal authorities

Answer 46

1. specific intent to commit a particular criminal act AND 2. substantial step towards perpetrating the crime specific intent crime even when completed offense is only a general intent crime

Answer 47

defenses for specific intent crimes apply certain defenses (voluntary intoxication, unreasonable mistake of fact) are available EVEN IF they wouldn't be available had the crime been completed

Answer 48

* attempt merges into a completed offense * CANNOT be convicted of both attempted murder + murder of the same person in the same episode * CAN be convicted of conspiracy to commit murder + murder

Answer 49

occurs when an individual intentionally invites, requests, or commands another person to commit a crime | the ask is the crime

Answer 50

it's conspiracy instead

Answer 51

solicitation merges into the completed offense

Answer 52

killings of a living human being by another human being animals don't count victim can't be dead already suicide is not, but assisting someone can be

Answer 53

must be a causal relationship b/t D's actions and what happened to victim **actual causation** - victim wouldn't have died but for what D did AND **proximate causation** - D's act is a foreseeable cause of victim's death / death is the natural and probable result of the conduct independent actions by 3p are not a foreseeable cause

Answer 54

common law murder

Answer 55

1. first degree murder 2. common law murder 3. manslaughter

Answer 56

* specific intent crime * **deliberate and premeditated** murder OR * a killing that results during the commission of an inherently dangerous felony | felony murder is frequently classified as M1

Answer 57

unlawful killing of another human being committed with **malice aforethought** lawful killing of another is not murder (ex. state execution)

Answer 58

1. **intent to kill** - D acted with desire that the victim end up dead, intent need not be premeditated 2. **intent to inflict serious bodily harm** - D intended to hurt the victim badly and victim died 3. **abandoned or malignant heart or depraved heart** - D acted with cavalier disregard for human life and death resulted D must realize their conduct is really risky, but doesn't need intent regarding outcome of actions majority + MPC: D must actually realize there is danger minority: reasonable person would have recognized the danger 4. **felony** - death occurred during the commission or attempted commission of a dangerous felony (BARRK felonies) dangerous felony must be independent of killing itself can involve someone who resists the felony includes when bystander is killed during a felony can include 3p killed by resistor or police (majority uses agency theory - D is only responsible for crimes of D's agents)

Answer 59

majority: D is not guilty of felony murder minority: D might be guilty of felony murder

Answer 60

BARRK * burglary * arson * robbery * rape * kidnapping

Answer 61

nope, misdemeanor manslaughter

Answer 62

all unlawful killings of another human being that are not M1 or common law murder (catch-all) voluntary + involuntary manslaughter

Answer 63

* occurs when a D intends to kill the victim, but mens rea is less blameworthy than murder * acted in heat of passion or under extreme emotional disturbance * test: is this situation one in which most people would act w/o thinking and w/o time to cool off? | ex. walking in to your spouse in bed with someone else (not hearing about it)

Answer 64

* criminally negligent killing OR killing someone while committing someone other than those covered by felony murder (BARRK) * D who engages in a criminally negligent conduct and causes a death

Answer 65

1. larceny 2. robbery 3. burglary

Answer 66

1. **taking** any movement of property 2. **another person's property** tangible personal property only 3. **without their consent** (trespassory) AND consent must be real (not by a trick) D has burden of proving there was consent 4. **with the intent to deprive them of it permanently** borrowing is not larceny specific intent crime (part of theft)

Answer 67

no if you intended to give it back

Answer 68

D starts out with victim's consent to have the property BUT commits embezzlement by converting the property to their own use

Answer 69

D obtains title to someone else's property through an act of deception mens rea: with the specific intent to defraud (intent to steal) | PQs Set 3, Crim Law

Answer 70

treated as single statutory crime of theft that includes tangible and intangible property

Answer 71

robbery = larceny + assault 1. taking 2. another person's property 3. without their consent 4. with intent to deprive them of it permanently 5. taking occurs from victim's person or in their presence 6. either by violence or putting victim in fear of imminent physical harm

Answer 72

involves threats of fixture harm (including non-physical harm) majority: threat alone is sufficient minority: threat + actually obtaining the property

Answer 73

1. breaking and 2. entering 3. the dwelling (structure regulars lived in) 4. of another (can't burgle yourself) 5. at night 6. with specific intent to commit a felony once inside (usually larceny)

Answer 74

1. breaking and 2. entering 3. _the property_ (can include commercial buildings) 4. of another 5. _at any time_ 6. with specific intent to commit a felony once inside

Answer 75

breaking can involve pushing open or smashing a door or window, or obtaining entry by fraud or threat entering involves breaking the plane of the dwelling

Answer 76

1. unlawful (consent is a complete defense) 2. application of force 3. to another person 4. that causes bodily harm OR an offensive touching general intent crime doesn't require actual physical contact b/t D and victim

Answer 77

1. attempted battery 2. fear of harm

Answer 78

* if D has taken a substantial step toward completing a battery but fails * specific attempt crime b/c attempt

Answer 79

* intentionally placing another in reasonable apprehension of imminent harmful or offensive contact * general intent crime | PQs Set 2 Crim Law

Answer 80

1. unlawful 2. sexual intercourse 3. with a female 4. against her will by force or threat of force

Answer 81

1. unlawful 2. sexual intercourse 3. _with anyone (gender neutral)_ 4. _without their consent_ (no force requirement)

Answer 82

* general intent * voluntary intoxication CANNOT be a defense

Answer 83

* strict liability offense * ignorance or mistake about victim's age is not a defense

Answer 84

1. unlawful 2. confinement of another person 3. against that person's will 4. either by moving or hiding the victim

Answer 85

1. malicious intent to act in a way that will cause burning or is substantially likely to do so 2. burning 3. of another person's 4. dwelling

Answer 86

common law - had to be a burning (fire) not just explosion or smoke damage required to damage structure of building not just contents modern - arson even if no damage to structure or fire caused by explosion

Answer 87

common law - can't torch your own home modern - it's still arson if it's your home (insurance fraud concerns)

Answer 88

common law - had to be a dwelling, not another structure modern - commercial buildings count

Answer 89

willful act of falsely promising to tell the truth (verbally or in writing) about material matters 1. person must know what they are saying is false 2. person must intend to say something that is false AND 3. falsity must go to a material matter

Answer 90

person persuades someone else to commit perjury

Answer 91

corrupt payment of something of value for purposes of influencing an official in the discharge of their official duties

Answer 92

allows a bribery charge even if person being bribed is not a public official offering a bribe + receiving one are both felonies can be convicted of bribery even if person could not "be bribed"

Answer 93

1. intoxication 2. insanity 3. mistake of fact 4. self defense 5. defense of others 6. defense of property 7. duress 8. necessity

Answer 94

* specific intent crimes - voluntary or involuntary intoxication available as a defense IF **D could not maintain the state of mind necessary for the offense** * general intent crimes - only voluntary intoxication not valid defense if D got drunk to commit the crime

Answer 95

D is unable to confirm their conduct to the law b/c of a mental defect or disease

Answer 96

* general intent crimes - ONLY reasonable mistakes of fact * specific intent crimes - ALL mistakes of fact

Answer 97

* deadly force - intended or likely to cause death or serious injury only if reasonably believes that deadly force will be used against him OR (MPC) reasonably believes that the crime will result in serious bodily injury doctrine of retreat * non-deadly force allows if reasonably fears imminent unlawful harm

Answer 98

* majority: retreat is not required even if entitled to use deadly force * minority: must retreat rather than using deadly force if safe to do so * retreat is NEVER required when employing deadly force in your own home

Answer 99

idv has same right to defend others against criminal that they have to defend themself

Answer 100

right to use ONLY non-deadly force to protect property booby traps or spring guns to protect your property --> not appropriate use of force

Answer 101

D claims they 1. committed a crime only b/c they were threatened by 3p AND 2. reasonably believed that hte only way to avoid death or injury to himself or others was to commit the crime must be a threat of death or serious bodily harm (not just mere injury) defense for all crimes except intentional murder

Answer 102

available in response to natural forces (choice was lesser of two evils)

Answer 103

govt only EXCEPT private persons acting as govt agents defense counsel (public + private) for purposes of 6th Amendment for effective assistance of counsel

Answer 104

can approach anyone in a public place no real contract on what they can/can't do or what they can discover

Answer 105

* occurs when an officer, by means of physical force or show or authority, intentionally terminates or restrains a person's freedom of movement * whether a reasonable person would feel free to disregard the officer

Answer 106

* stop and frisk / Terry stop * traffic stops * arrests * warrants * warrantless arrests * searches incident to arrest

Answer 107

* officer stops an individual when officer has **reasonable suspicion** based on **articulable facts** to believe suspect is or about to be engaged in criminal behavior * officer's reasonable mistake of law can give rise to reasonable suspicion

Answer 108

* beyond a reasonable doubt --> conviction * probable cause (more likely than not) --> arrest * reasonable suspicion --> stop

Answer 109

only weapons, not evidence if pat down reveals objects whose shape makes their identity obvious, officer can seize

Answer 110

if probable cause develops during a Terry stop, officer can make an arrest

Answer 111

* if initial stop is unlawful but officer develops basis for a lawful arrest during stop --> evidence seized can be used at trial * if initial stop is unlawful + no basis for making a lawful arrest --> evidence cannot be used

Answer 112

* must be **probable cause** to believe that the idv has committed a crime * can be w/ or w/o arrest warrant

Answer 113

* officers must have **reasonable suspicion** to stop a car * once lawful stop, officers may pat down an occupant for weapons IF they have reasonable suspicion that person has a weapon * do not need reasonable suspicion at a checkpoint (stop everyone)

Answer 114

as long as police have probable cause to believe an individual committed a crime, it's irrelevant whether officer stopped that person for the crime for which there is probable cause or another crime allowed under 4th but probs an Equal Protection issue

Answer 115

no, need consistency in verdicts returned by single jury conspirator cannot be convicted if ALL other co-conspirators are acquitted at the same trial

Answer 116

Yes, Pinkerton Rule conspirator is criminally liable for any foreseeable crimes committed by a co-conspirator acting in furtherance of the conspiracy

Answer 117

authorizes an officer to arrest a particular person 1. must be issued by a neutral and detached magistrate 2. must be based on finding of **probable case** to believe that they committed a particular crime AND 3. name the person and ID the offense

Answer 118

* allows officers to enter an idv's home to arrest them * does NOT allow them to enter 3p's home or business * need to have a search warrant to search the premises for the idv

Answer 119

only if * there are exigent circumstances OR * there is consent to enter

Answer 120

can arrest idv w/o warrant in public place for crime committed in officer's presence OR based on probable cause to believe idv committed a felony (only a felony)

Answer 121

no, but might result in exclusion of evidence discovered during the event illegal arrest = no probable cause

Answer 122

can make a contemporaneous search of person + immediately surrounding area to * protect officers from weapons or other danger * prevent destruction or concealment of evidence

Answer 123

can be used against person arrested

Answer 124

suspect + their wingspan (immediate surrounding area)

Answer 125

suspect + immediate arrest area can also do a protective sweep for people

Answer 126

passenger compartment of vehicle as long as suspect still has access to vehicle at the time can't start searching the car once suspect is in the back of the squad car b/c no longer a threat to officers and no longer risk of destruction of evidence (but can search car if it is reasonable that evidence of the offense of arrest might be found in the vehicle)

Answer 127

may seize the phone but can't search for digital info need a search warrant to search a phone

Answer 128

when (1) govt conduct violates a (2) reasonable expectation of privacy

Answer 129

* physical intrusion upon private property * can occur without a physical intrusion * using some types of technology (ex. thermal imaging device) can constitute a search

Answer 130

do have: * houses * hotel rooms * offices * luggage * curtilage (yard) * cars but limited don't have: * public streets * open fields (even private property) * garbage cans on the street * abandoned property * prison cells

Answer 131

* who is claiming the search * who holds the reasonable expectation of privacy gov't actions are valid UNLESS D has a reasonable expectation of privacy only govt actions

Answer 132

1. must be issued by neutral magistrate 2. must be based on probable cause to believe that the items sought are fruits, instrumentalities, or evidence of crime 3. must describe the property and place to be searched with particularity | ex. bank robbery --> loot is fruit of the crime, gun is instrumentality, bloody shirt robber wore is evidence

Answer 133

generally govt needs search warrant to conduct a search if there is a reasonable expectation of privacy

Answer 134

* warrant is invalid * items seized pursuant to the warrant are excluded from prosecution's case in chief

Answer 135

* constitutes a search * must have probable cause + warrant * need to specifically ID whose convos are to be intercepted, include an end date, perform minimization

Answer 136

ESCAPES from the warrant requirement **E**xigent circumstances **S**earch incident to arrest **C**onsent **A**utomobiles **P**lain view **E**vidence obtained from administrative searches **S**top and frisk

Answer 137

* if officers are in **hot pursuit** or there is **an immediate danger**, may conduct a search w/o a warrant * officers are entitled to secure premises while they obtain a warrant, but sometimes not sufficient * does not apply if police created the exigency * need warrant for DUI blood draw absent exigent circumstances

Answer 138

if arrest is lawful, search warrant is unnecessary to search the person being arrested and wingspan (immediate surrounding area) for weapons or evidence

Answer 139

don't need warrant if D consents to a search officer can engage in outright deception 3p consent - officer cannot search over objection of present occupant, but can search if other occupant consents when suspect is not present

Answer 140

if police have **probable cause** to believe car contains contraband, can search those parts of the vehicle **that might contain contraband** even without an arrest ex. can't search the money holder for a machine gun (obvi too small to hold the gun)

Answer 141

if police are **legally present,** can seize any item in plain view or plain smell, even if that item wasn't named in the warrant

Answer 142

don't need search warrant for administrative searches 1. administrative warrants (ex. health inspection of building) 2. warrantless administrative searches (ex. airplane boarding areas, international borders, stu in public schools)

Answer 143

Terry stops merely require reasonable suspicion may conduct limited frisk for weapons

Answer 144

no person shall be compelled in any criminal case to be a witness against himself "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; _nor shall any person be subject for the same offense to be twice put in jeopardy of life_ or limb; nor shall be compelled in _any criminal case to be a witness against himself_ , nor be deprived of life, liberty, or property, _without due process of law_ ; nor shall private property be taken for public use, without just compensation."

Answer 145

* applies to natural persons (not corporations or unions) * applies to testimonial evidence, not physical evidence * applies to testimony that would be a link in chain leading to prosecution or conviction * if given immunity, can't continue to refuse to answer

Answer 146

* must be made by idv to the govt * statements made as result of **custodial interrogation** are inadmissible UNLESS accompanied by procedural safeguards (Miranda warnings)

Answer 147

**custodial** person being questioned has been arrested or is otherwise not free to leave if not in custody, no warning is required **interrogation** official asking questions or engaging or words or conduct that police know/should know will elicit a response does not include volunteered statements or routine booking questions

Answer 148

before conducting custodial interrogations 1. you have right to remain silent 2. any statement you make may be used against you in court 3. you have right to consult an atty and have atty present during questioning 4. right to have atty appointed if you can't afford one 5. must ask whether D understands the rights no magic words

Answer 149

1. invoking right to remain silent must be affirmatively invoked (have to say you don't want to talk, can't just be silent) can resume interrogation after substantial period of time and give Miranda warnings again 2. invoking right to counsel must be affirmatively invoked all must questioning must stop until lawyer is present OR D affirmatively initiates contact with police police can't question D again police don't have to tell D that lawyer is trying to reach them "I think I should talk to somebody" isn't enough

Answer 150

when public safety is at risk, police don't have to give Miranda warnings

Answer 151

* confessions must be voluntary * statements obtained by threats are inadmissible (even after Miranda) * confessions can be product of deceit

Answer 152

NEVER admissible against D whether to overturn conviction - harmless error standard evidence obtained as result of involuntary statement is fruit of poisonous tree is presumptively inadmissible

Answer 153

inadmissible in prosecution's case in chief, BUT may be admissible to impeach witness to challenge credibility evidence obtained as result of voluntary statement taken in violation of Miranda is admissible

Answer 154

explicitly provides criminal defendant with "assistance of counsel for his defense"

Answer 155

5th: must be affirmatively invoked by D 6th: auto attaches once there has been an indictment, info, or other formal charges exists unless D knowingly and intelligently waives

Answer 156

5th: applies to custodial interrogation for ANY charge, but not to non-custodial interrogation 6th: ONLY applies to offense for which D has actually been charged (including any lesser-included offenses) doesn't apply to unrelated charges - D can be questioned still applies whether you're in custody or not

Answer 157

applies to all felony prosecutions + any misdemeanor prosecutors for which jail time or suspended jail sentence is imposed

Answer 158

applies to **all critical** stages of the prosecution critical stages * evidentiary hearings * post-indictment lineups * post-indictment interrogations * all parts of trial process non-critical stages * investigative lineups (pre-indictment) * witnesses looking at photo arrays * discretionary appeals and post-conviction proceedings

Answer 159

* photo arrays * pre-indictment lineups * post-indictment

Answer 160

* photo arrays - neither D nor atty have right to be present, but police must turn over array to D * pre-indictment lineups - D has no right to counsel * post-indictment lineups - D has right to counsel present if right is violated, evidence that witness ID'd D at lineup must be excluded

Answer 161

If D moves to suppress evidence that a witness picked the D out of lineup, court will consider **whether the lineup was impermissibly suggestive** if so, court can exclude the testimony

Answer 162

prosecution must establish by **clear and convincing evidence** that witness would have ID'd the D even without the suggestive lineup | like pointing to the D at trial "that's the guy"

Answer 163

1. was the identification before or after the indictment? 2. was the lineup or photo array impermissibly suggestive

Answer 164

illegally obtained evidence (physical evidence obtained by illegal search OR statement from illegal interrogation) is **inadmissible** at criminal trial of **person whose rights were violated** to prove their guilt applies at trial, not pretrial proceedings (like grand jury) evidence obtained in violation of 4th, 5th, or 6th applies to states through 14th

Answer 165

violation must have been the D's rights, NOT someone else's BUT if driver of car is arrested w/o probable cause, passengers are deemed to have been seized as well + can challenge constitutionality of the stop

Answer 166

yep, Fruit of the Poisonous Tree

Answer 167

* knock and announce * inevitable discovery * independent source * attenuation in causal chain * good faith * negligence (half exception)

Answer 168

officers executing an arrest warrant at a residence are required to knock and announce they are police if they fail to do so + discover evidence, that evidence does NOT have to be suppressed (if they were entitled to enter)

Answer 169

if evidence would have been discovered anyway through lawful means, it will be admissible

Answer 170

evidence discovered on basis of an independent source will be admissible

Answer 171

intervening events + passage of time can remove the taint of the unconstitutional conduct

Answer 172

applies to officers who violate an individual's rights BUT have **good faith reason** to believe their conduct is constitutional --> allowed to use that evidence officers who rely on an existing law that's later unconstitutional OR warrant that is facially valid and is later found defective can rely on a warrant UNLESS * warrant is obtained by fraud * warrant was facially defective * magistrate wholly abandoned judicial role

Answer 173

isolated negligence by law enforcement personnel does NOT necessarily trigger this rule police conduct must be **sufficiently deliberate** so that exclusion could meaningfully deter it

Answer 174

1. was there an underlying cons violation? * 4th - was there a search? Seziure? If yes, was there probable cause? * 5th - was D in cusotdy? Was there an interrogation? Was the D given warnings? did he invoke his rights? * 6th - did right to counsel under 6th attach? Was this a critical stage? 2. if there was a violation, does exclusionary rule apply? 3. was there an exclsuion to the exclusionary rule that makes the evidence admissible anyway? 4. if question is about overturning a conviction (so not about whether evidence should be suppressed), apply harmless error rule: if this evidence had not been admitted, would it make a difference to the outcome?

Answer 175

all **federal felony charges** MUST be intiiated by indictment by grand jury unless D waives indictment indictment requires **probable cause** to believe D committed the crimes charged

Answer 176

nope, has not been incorporated to states SO states can choose whether to proceed by grand jury indictment or by info if by info, there must be a preliminary hearing before a neutral judge to determine whether there is probable cause

Answer 177

can consider evidence that has been obtained illegally AND hearsay evidence in deciding whether there is probable cause

Answer 178

* D do NOT have right to testify or call witnesses * witnesses don't have right to counsel (but can leave the room to consult w/ their lawyers) * held in secret * does not have to be unanimous (majority vote)

Answer 179

whether D comprehends the nature of the proceedings against him + can assist his lawyer in defending the case if competent to stand trial, also competent to plead guilty + waive right to trial

Answer 180

waives various trial rights (right to put prosecution to its proof, confront and produce witnesses, trial by jury, challenge intro of evidence, appeal if conviction)

Answer 181

D must **knowingly and intelligently** waive these rights through plea allouction where judge asks questions * informs D of his rights and ensures that D understands * informs D of possible sentences * informs D of immigration consquences (but judge isn't required to inform of other collateral consequences) * determines that plea didn't come from force, coercion, threats, or promises * makes sure there is a factual basis for the plea

Answer 182

yes, if succeeds in reopening the case, proseuciton can bring charges again + reinstate any charges that were dropped D is entitled to competent assitance from counsel in plea bargaining process

Answer 183

bail is available unless D poses flight risk OR danger to the community presumption in favor of bail 8th forbids setting of excessive bail cts can impose pretrial release conditions on D (house arrest, avoiding certain people, reporting, etc.)

Answer 184

D has right to jury trial for **all serious offenses** for which authorized punsihment is **more than 6 mo**

Answer 185

only if a sentnece of incarceration is **actually imposed**

Answer 186

* federal criminal case - 12 jurors * states - can use 6+ jurors * must be unanimous to convict

Answer 187

venire (jury pool) --> petit jury (the jury that actually decides)

Answer 188

must represent a fair cross-section of the community from which no distinctive group is excluded

Answer 189

1. for cause something that prevents them from being impartial and deliberating fairly no limit 2. peremptory challenges can be made for any reason, incl hunches BUT can't remove based on race or sex (Batson doctrine) statutory limit for each side

Answer 190

needs to be impartial BUT doesn't have to reflect a fair cross-section of the community

Answer 191

begins to run when crime occurs for contuining offenses, beings when the offense ends statute of limitations give D repose

Answer 192

* DP Clause protects against pre-accusation delay * Speedy Trial Clause of 6th protects D against delays that occur b/t time of arrest/indictment and time of tiral

Answer 193

1. length of delay 2. reason for delay 3. whether D asserted their right to a speedy trial AND 4. risk of prejudice to D

Answer 194

6th protects rights of D + 1st to have a public trial cts have some discretion to close particular proceedings if there is a substnatial likelihood of prejudice to the D

Answer 195

1. right to confront witnesses against them (Crawford Doctrine) 2. right to compulsory process to produce their own witnesses (Bruton Doctrine)

Answer 196

if statement is testimonial, 6th bars admission IF declarant is unavailable AND D had no prior oppy to cross-examine the witness if non-testimonal statement, look at rules of evidence

Answer 197

D's own statements are **always admissible against him** even if the D doesn't testify at trial if co-D, a non-testifing co-D's statemetns are NOT admissible against the other D

Answer 198

made under circumstances which would lead a reasonable person to believe that the statemnet would be used at a later trial

Answer 199

D has right to testify on his own behalf has right to compulsory process to obtain witnesses in his defense

Answer 200

prosecution must prove every element beyond a reasonable doubt govt can place the burden of proof for affirmative defenses on the D affirmative defenses - insanity, self-defense, entrapment, mistake

Answer 201

DP Clause requires judges possess neither actual nor apparent bias actual bias - interests that would impair judge's impartiality

Answer 202

1. Brady Doctrine must turn over all material exculpatory evidence including evidence that tends to show that D is not guilty of crimes charged evidence that would enable defnese to impeach credibility of prosecution witnesses evidence within control of govt (like police) if D pleads guilty after negotiations, prosecution is not required to turn over Brady info 2. may not knowingly present false testimony 3. may not contact a D oustide presence of his counsel (can't violate 6th right to counsel) 4. may not comment on D's failure to testify at trial or make unfiar remarks about D to jury but can comment on D's silence **before** Miranda attached

Answer 203

if it has a reasonable possibility of affecting the verdict - may require a mistrial or reversal of a conviction subject to **harmless error rule**

Answer 204

**effective** assistance of counsel at all critical stages of prosecution

Answer 205

* joint representation * prior representation of a witness

Answer 206

judge must warn D that joint representation is a risk + give them oppy to get separate counsel need a waiver if they don't get separate counsel if COI actually affects counsel's behavior, there is a **presumption of prejudice** and **D is not requried** to show actual innocence in order to obtain a new trial

Answer 207

Strickland test - assesses whether D was denied effective assistance 1. performance - did defense counsel's performance fall below wide range of reasonable conduct that lawyers might engage in? 2. prejudice - reasonable probability that the result would have been different if counsel performed effectively cases that go to trial - D must show there was a reasonable probabilty that he would not have been convicted if lawyer had done a proper job guilty pleas - D must show that he would not have pleaded guilty if lawyer had not given him bad advice or performed ineffictively

Answer 208

conviction must be reversed b/c D has already shown he was prejudiced

Answer 209

if they are entitled to waive the right to counsel + represent themselves as long as they do it knowingly and voluntarily

Answer 210

1. Cruel and Unusual Punishment of 8th 2. Double Jeopardy of 5th 3. Apprendi cases under 6th

Answer 211

govt has free rein to authorize virtually any length sentence for virtually any crime

Answer 212

death penalty only in cases where victim dies can't be imposed on D under 18 when crime was committed can't be imposed on D with cognitve impairment can't be imposed on D who are insane at time of execution states need a bifurcated trial process, oppy to present mitigating evidence, process that sufficinetly narrows the class of death sentence eligible offenses

Answer 213

you must have been convicted of a crime

Answer 214

1. protection against prosecution for same offense after acquittal 2. protection against prosecution for same offense after conviction 3. protection against multiple prosectuions or punishments for same offense

Answer 215

* Blockburger test: ask whether each statutory provision requires proof of an element that the other doesn't * like if offense 1 requires A + B and offense 2 requires A + B + C --> can't be convicted of both * offenses with diff victims are separate offenses for double jeopardy

Answer 216

if two diff sovereigns have juris over the crime committed, both can try D separately ex. state + fed govt OR two different states

Answer 217

D can be charged and tried for an offense + lesser-included offense at same trial BUT can only be punished for one offense

Answer 218

when jury is sworn in OR first witness is sworn in (for bench trial)

Answer 219

if D is acquitted, end of the case + can't be retired by same jurisdiction for same offense, prosecution can't appeal

Answer 220

if D convicted + doesn't appeal or conviction is affirmed --> end of jeopardy, can't be retired by same juris for same offense if appeals and gets conviction reversed, can't be retried UNLESS reversal was based on a finding of insufficient evidence

Answer 221

* manifest necessity - D can be retried (ex. jury is deadlocked, defense counsel engaged in misconduct) * no manifest necessity - D cannot be retried by that juris

Answer 222

6th right to jury trial prohibits judges from enhancing sentences beyond statutory maximums based on facts other than those decided by jury beyond a resonable doubt BUT this doesn't apply to sentence enhancement based on prior criminal convictions (don't need to be found by a jury) ALSO judge is allowed to determine whether offenses are consecutive or concurrent (MBE Practice Exam #4)

Answer 223

if info is from a reliable, known informant --> okay for probable cause if from an unknown informant --> police must independently verify the info

Answer 224

nope, only criminal

Answer 225

nope, custodian of corporate records or other corporate officer can NOT refuse to produce corp docs under this privilege even if the docs would incriminate them personally

Answer 226

merely to determine whether enough evidence exists to bring a criminal charge (not determine guilt or innocence)

Answer 227

yes as long as the statement was not coerced

Answer 228

nope, cannot be used against suspect at a subsequent trial

Answer 229

doesn't violate double jeopardy if it imposes a stiffer punishment for a new crime (deter repeat offenders) instead of imposing an additional punishment for the first two crimes

Answer 230

nope, Miranda not required.

Answer 231

* intentional killing --> first degree murder, common law murder based on intent to kill or cause bodily harm, voluntary manslaughter * unintentional killing --> second degree murder based on felony murder or depraved heart, involuntary manslaughter

Answer 232

strict liability crime so proof of the actus reus is sufficient to support a conviction poor Sister Wives

Answer 233

only if court determines the connection b/t arrest + statement is so attenuated that the statement is considered voluntary

Answer 234

1. at time of issuance, there is probable cause to believe the triggering condition will occur AND 2. if condition does occur, there is fair probability that contraband or evidence of crime will be found at place to be searched anticipatory search warrant = warrant that becomes effect only upon occurrence of a triggering condition | ex. once warehouse receives a shipment of stolen goods

Answer 235

* 4th - no b/c no reasonable expectation of privacy of one's handwriting * 5th - no protection against self-incrimination for physical evidence (blood, urine, handwriting) * 6th - not a critical stage of prosecution so right to counsel doesn't apply

Answer 236

6th protects non-indigent criminal defendants' right to choose attorney erroneous denial of choice of counsel = structural error + requires automatic reversed of conviction

Answer 237

if a crime requires two or more participants, there is no conspiracy UNLESS more parties than are necessary to complete the crime agree to commit the crime ex. of incest - both parties agreed, so both have to commit incest for them to be charged with conspiracy to commit incest

Answer 238

four-factor test applies 1. the proximity of the area to the home 2. whether the area is included within an enclosure surrounding the home 3. the nature of the uses to which the area is put AND 4. the steps taken by the resident to protect the area from observation by passersby

Answer 239

* statements that a defendant makes to a police informant are inadmissible WHEN the police intentionally create a situation likely to induce the defendant into making incriminating statements without the assistance of counsel * Sixth Amendment offense-specific standard, requirement for counsel to be present applies **only to interrogations about the offense charged** * Fifth Amendment protections are implicated ONLY in the context of a custodial interrogation, and NOT in the case of questioning by an undercover police officer, AS LONG AS the suspect does not know that the interrogator is a police officer

Answer 240

1. D must receive control of the stolen property 2. D must know the property is stolen AND 3. D must intend to permanently deprive the owner of the property * property unlawfully obtained through larceny, embezzlement, or false pretense * some jurisdiction require defendant to have actual, subjective knowledge that property had been stolen * others allow inference from facts that reasonable person would know

Answer 241

totality of the circumstances applies standard, objective analysis (whether reasonable person would feel free to leave) * consideration of language used in summoning the prisoner to the interview * manner in which interrogation is conducted 14 days for Miranda warnings to be valid, then need to do again

Answer 242

no grand jury only has power to charge, not convict

Answer 243

yes to impeach the criminal defendant for inconsistent testimony BUT NOT for deciding ultimate issue of guilt or innocence

Answer 244

* false pretenses - person obtained title to the property * larceny by trick - obtained mere possession of property and converted it

Answer 245

1. obtaining title to the property 2. of another person 3. through the reliance of that person 4. on a known false representation of a material past or present fact AND 5. the representation is made with the intent to defraud

Answer 246

value of the property at the time of conversion

Answer 247

act occurs when D is so close to completing the target crime that it is essentially unstoppable

Answer 248

* does NOT protect from use in a civil suit * 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

Answer 249

* D uses deadly force as self-defense * belief was unreasonable but honest * can reduce charge from murder to voluntary manslaughter

Answer 250

false pretenses false representation to get title (you have a receipt)

Answer 251

* voluntary confessions are not protected by Miranda * involuntary ONLY IF police coerced D into making it * based on totality of circumstances - conduct of police, characteristics of D, time of the statement

Answer 252

MUST 1. repudiate prior aid 2. do all that is possible to countermand prior assistance AND 3. do so before the chain of events is in motion and unstoppable mere change of heart isn't enough

Answer 253

ONLY if thought they were home at the time "Under 4th, the arrest warrant would have authorized forcible entry only if the officers had reason to believe that the woman was at home at the time of the entry." this house was boarded up and looked abandoned

Answer 254

use and derivative-use immunity (grant the woman immunity from any future use against her of her grand jury testimony or any evidence derived from it) not if transactional immunity (grant the woman immunity from any future prosecution for any crime she might disclose in the course of her testimony) | pulled from the question

Answer 255

1. deficient performance - atty's representation fell below an objective professional standard of reasonableness 2. prejudice - reasonable probability that outcome would have been different but for the deficiency

Answer 256

* parolee has general obligation to appear and answer questions truthfully when summoned by parole officer * parolee is NOT in custody in that situation UNLESS arrested or restrained

Answer 257

nope, not a requirement under Double Jeopardy

Answer 258

1. defective grand jury proceedings 2. deficiencies in indictment 3. violations of certain constitutional rights (5th double jeopardy, 6th speedy trial, and 5th/14th DP ONLY) | note how 4th violations are NOT included as a ground to dismiss indictment

Answer 259

prosecution bears the burden by a preponderance of evidence

Answer 260

prevents govt from using self-incriminating testimonial communications + any evidence derived from them against the suspect in any way that could lead to a criminal prosecution

Answer 261

protects the suspect from being prosecuted for any crimes associated with self-incriminating testimonial communications

Crim Law & Pro Flashcards

(288 cards)