Crim Law & Procedure Flashcards

Question

Larceny

Answer 1

Taking and carrying away [asportation] of tangible personal property of another by trespass (w/o consent/intent induced by fraud) with intent to permanently deprive. The intent to permanently deprive must be concurrent with the taking and carrying away. -Mistake of law is no excuse! Insufficient intent for larceny: -Belief that property is D's -Intent to borrow property -Intent to keep property as repayment of debt -D has some right to it -Larceny can be committed with lost or mislaid property that has been delivered by mistake, but not with abandoned property. Continuing trespass: D wrongly takes property w/o intent to permanently deprive and later decides to keep it = larceny. It is possible to commit larceny of your own property if another person, such as a bailee, has a superior right to possession of the property at that time. E.g. Because the mechanic had a right to possession of the van until he was paid for the repairs, the student committed larceny when he had his friend take the van without the mechanic's consent. Contrast with larceny by trick: larceny is taking WITHOUT consent whereas larceny by trick is taking WITH consent.

Answer 2

Fraudulent conversion of personal property of another by person in lawful possession of that property -Often a trustee is the embezzler -Don't have to carry away or get the benefit to be an embezzler; just possession of the property is required. If the defendant intended to restore the exact property taken, it is NOT embezzlement. But if he intended to restore similar or substantially identical property, it is embezzlement, even if it was money that was initially taken and other money-of identical value-that he intended to return.

Answer 3

Obtaining TITLE to personal property of another (including money!) by intentional false statement of past or existing fact (under majority view, fraudulent promise to do something in the future also counts) with intent to defraud. Look for misrepresentations. False pretenses: victim gives up title to property.

Answer 4

Victim consents to the D taking POSSESSION of the property, but that consent is induced by misrepresentation or deceit. Different than larceny because larceny is taking and carrying away without consent.

Answer 5

Taking of personal property of another from other's person or presence by force or threats with intent to permanently deprive. -A threat to damage or destroy property (other than the victim's home) is NOT sufficient. Need imminent harm, i.e. "I'm going to beat you up in a couple of days" is not sufficient.

Answer 6

At common law, consists of the corruption or the corrupt collection of an unlawful fee by an officer under color of office. Under modern statutes, obtaining property by means of threats to do harm or expose information.

Answer 7

Receiving, possession, and control of stolen personal property known to have been obtained in a manner constituting a criminal offense by another person tending to permanently deprive the owner. But property is no longer considered stolen once the police recover the property, i.e. locate and exercise control over it.

Answer 8

Often, all the property crimes are aggregated together under the broad bucket of "theft."

Answer 9

Making or altering a writing (a will, a check) with apparent legal significance so that it is false with intent to defraud.

Answer 10

Common law: breaking and entering of dwelling (any part of the body crosses into the house) of another at nighttime with intent to commit a felony in the structure. -Most modern statutes have eliminated the nighttime requirement and have expanded the dwelling to include all kinds of buildings. -Breaking: can be actual or constructive. But if a door is wide open and you just walk through and steal stuff and walk out, at common law you're not on the hook for burglary! But if same scenario, but you also push open some interior doors (e.g. door to the bedroom), then that is "breaking." -Constructive breaking: breaking by fraud (e.g. using an entrusted key for a purpose other than the reason you were given the key) or threat. -Intent to commit a felony: must exist at the time of breaking and entering.

Answer 11

Common law: malicious burning of dwelling of another. Modern: not just dwelling; includes explosions, etc. No specific intent required (b/c it's a malice crime). Damage required for arson: -Scorching (blackening by smoke or discoloration by heat) is not sufficient. -Charring is sufficient.

Answer 12

Four tests: (1) M'Naghten/right-wrong test (most popular): D entitled to acquittal if disease of the mind caused defect of reason such that D lacked ability to know wrongfulness of actions or understand nature and quality of actions. (2) Irresistible impulse test: D entitled to acquittal if, because of mental illness, unable to control actions or conform conduct to the law. (3) Durham/products test (only in New Hampshire): D entitled to acquittal if crime was product of mental illness. (4) MPC test: D entitled to acquittal if D had mental disease or defect and, as a result, lacked substantial capacity to either appreciate criminality of conduct or conform conduct to the law. Burdens of proof and persuasion: -All Ds are presumed sane, so D must raise issue and prove their insanity by a preponderance of the evidence.

Answer 13

May be caused by any substance (incl. medicine). -Voluntary intoxication: result from intentional taking, w/o duress, of substance known to be intoxicating. -Defense to specific intent crimes. Voluntary even if alcoholic or drug addict. EXCEPTION: if you have the intent to commit a crime and then you drink to work up the nerve to commit it, voluntary intoxication is not a defense. -But under MPC approach, voluntary intoxication may be a defense to crimes for which the requisite mens rea is purposely or knowingly. -Involuntary intoxication: results from taking substance w/o knowledge of its nature, under duress, or pursuant to medical advice while unaware of intoxicating effect. -Can be defense to ALL crimes.

Answer 14

Common law: -Under age 7 = no criminal liability -Ages 7-14 = rebuttable presumption that child unable to understand wrongfulness of acts. -Age 14 and older = treated as adult

Answer 15

Nondeadly force: person w/o fault may use such force as person reasonably believes is necessary to protect themselves from imminent use of unlawful force. Rule for deadly force: person may use deadly force in self-defense if person: -is without fault -is confronted with unlawful force -reasonably believes they are threatened with imminent death or great bodily harm Retreat: no duty to retreat under majority view

Answer 16

If one is the aggressor in the confrontation, they may use force in defense of themselves only if: -They effectively withdraw from the confrontation and communicate their desire to do so, OR -The victim of initial aggression suddenly escalates a minor fight into one involving deadly altercation that the initial aggressor has no chance to withdraw from.

Answer 17

Right to defend others if D reasonably believes person has right to use force in own defense. Majority view = no need for special relationship b/w D and the person they're defending.

Answer 18

A person may use nondeadly force in defense of their dwelling when, and to the extent that they reasonably believe that such conduct is necessary to prevent or terminate another's unlawful entry or attack upon their dwelling. Deadly force may be used only to prevent a violent entry and when the person reasonably believes the use of force is necessary to prevent a personal attack on themselves or another in the dwelling or to prevent entry to commit a felony.

Answer 19

Deadly force may never be used in defense of property. Reasonable, nondeadly force may be used to defend property in one's possession from what they reasonably believe is an imminent, unlawful interference. But force may not be used for requests to desist or refrain from activity. Can't try to regain your property by force / take the law into your own hands. It's only upon immediate pursuit that you have any chance of force being valid.

Answer 20

Defense to crime, other than intentional homicide, that D reasonably believed another person would imminently inflict death or great bodily harm upon them or a member of their family if D did not commit crime. A number of states now allow a threat to property to give rise to a duress defense, assuming that the value of the property outweighs the harm done to society by the commission of the crime.

Answer 21

Defense that D reasonably believed commission of crime was necessary to avoid imminent and greater injury to society. At common law, it had to be natural forces like an earthquake. Limitation on faults: no necessity defense if D is the one that's at fault in creating the situation that required the choice b/w the two evils.

Answer 22

Relevant to criminal liability if it shows D lacked state of mind required for crime. -Specific intent --> mistake can be unreasonable. -Any other state of mind --> mistake must be reasonable.

Answer 23

Generally not a defense.

Answer 24

Occurs if the intent to commit the crime (1) originated not with the D but with LE officers and (2) D was not predisposed to commit the crime prior to contact by the gov't. E.g. undercover officer buying/selling drugs --> in this sort of fact pattern, the D will almost always have some predisposition to commit the crime. So very high bar for defense.

Answer 25

(1) Intentional (2) with regard to a material matter Subornation of perjury: procuring or inducing another to commit the perjury.

Answer 26

Common law: corrupt payment receipt of anything of value in exchange for official action. Modern statutes: may be extended to non-public officials in either the offering of a bribe.

Answer 27

-Police officers -Governmental agents -Private individuals acting at direction of police (e.g. police informant or cooperator); but e..g mall cops don't qualify.

Answer 28

Reasonable expectation of privacy with respect to place searched or item seized. Determination based on totality of circumstances. When person has reasonable expectation of privacy: -Person owned or had right to possess place searched -Placed searched is person's home -Person is overnight guest of owner

Answer 29

-Probable cause -Particularity: warrant must describe with particularity place to be searched and items to be seized; but SWs can be anticipatory (the item will be there). A search warrant does not authorize the police to search persons found on the premises who are not named in the warrant.

Answer 30

-Only police may execute warrant -No third parties can accompany warrant execution unless identifying stolen property -Violation of knock and announce rule will NOT result in suppression of evidence. No announcement needs to be made if the police reasonably suspect that knocking and announcing would be dangerous or futile or inhibit the investigation. -Absent exigent circumstances, the police executing an arrest warrant may not search for the subject of the warrant in the home of a third party without first obtaining a separate search warrant for the home. If the police do execute an arrest warrant at the home of a third party without obtaining a search warrant for the home, the arrest is still valid but evidence of any crime found in the home cannot be used against the owner of the home because it is the fruit of an unconstitutional search. -BUT the arrested party can't have the evidence of stuff found on their person (SILA) excluded just because police didn't have search warrant for that home, because the arrested party can't raise a violation of somebody else's 4A rights at your own suppression hearing.

Answer 31

...a physical application of force (e.g., handcuffing or otherwise subduing a person) OR submission to an officer's show of force.

Answer 32

-Police can search AFTER valid arrest -Police can make protective sweep of area if they believes accomplices may be present -Search must be contemporaneous in time and place w/ arrest -But can't do SILA w/o warrant if the arrest itself is unconstitutional -Geographic scope limitation: only person and the areas within the person's wingspan (e.g. where they can easily reach for weapons) -Car: police may search passenger compartment incident to arrest if: (1) arrestee is unsecured and may gain access to vehicle, or (2) police reasonably believe evidence of offense for which was person was arrested may be found. Technological searches: -Warrantless breath test permitted, but NOT blood test. -Physical attributes of cell phone may be searched, but NOT data. Search incident to incarceration or impoundment: Police may make an inventory search of the arrestee's belongings, including car and containers within the car, pursuant to established department procedure.

Answer 33

If police have probable cause to believe vehicle contains fruits, instrumentalities, or evidence of a crime, they may search entire vehicle and any container that might reasonably contain the item. -Make sure there is probable cause for each particular container to be searched! (E.g. if probable cause that stolen TVs are in van, you can't search a small satchel in the car.) Probable cause necessary to justify search of car CAN arise after car is stopped. Merely being a passenger in someone else's car doesn't create a legitimate expectation of privacy with regard to a search of the car. You do have standing to challenge the STOP (b/c both you and the driver were seized).

Answer 34

Police may make warrantless seizure when: -Legitimately on the premises -Discover evidence, contraband, or fruits or instrumentalities of crime -See evidence in plain view -Have probable cause to believe item is evidence, contraband, or fruits or instrumentalities of crime

Answer 35

Warrantless search is valid if police have voluntary consent. -Police saying they have a warrant negates consent, so that if the warrant turns out to be invalid, your consent doesn't let LE off the hook. -Any person with apparent equal right to use or occupy property may consent. -Occupant can't give valid consent when co-occupant is present and objects. -If co-occupant is removed for unrelated reason, police may act on consent of remaining occupant.

Answer 36

Terry stop: brief detention for purpose of investigating suspicious conduct. Terry frisk: pat down of outer clothing and body to check for weapons, UNLESS the officer has specific information that a weapon is hidden in a particular area of the suspect's clothing. -Officer may seize any item that officer reasonably believes, based on plain feel ("manipulated feel" = invalid), is weapon or contraband.

Answer 37

If officer believes driver or passenger may be armed and dangerous, officer may: -Frisk suspected person -Search vehicle in areas where weapon may be placed

Answer 38

Evidence that might disappear quickly if police took time to get a warrant.

Answer 39

Police in hot pursuit of a fleeing felon may make warrantless search and seizure and may pursue suspect into private dwelling.

Answer 40

Police may enter premises w/o warrant if officer faces emergency that threatens health or safety.

Answer 41

E.g. drug test of public school kids for extracurriculars; airplane passengers before boarding. Public school search reasonable if: -Offers moderate chance of finding evidence of wrongdoing. -Measures reasonably related to search objectives. -Search not excessively intrusive in light of age and sex of student and nature of infraction.

Answer 42

Generally a search that needs a warrant, but exceptions: -Unreliable ear - speaker assumes risk other person consents to gov't monitoring or is an informer. -Uninvited ear - speaker has no 4A claim if they make no attempt to keep conversation private (no REP).

Answer 43

-Must be voluntary (determined by totality of circumstances). -Harmless error test applies --> conviction need not be overturned if overwhelming evidence of guilt.

Answer 44

-Applies to all critical stages of prosecution after judicial proceedings have begun. -There can be no 6A violation BEFORE formal proceedings have begun (e.g. arrested but not yet charged --> no 6A right to counsel). -6A right is offense-specific -> police can ask you q's about other offenses. -Invocation of right to counsel must be unambiguous. All questioning must cease until counsel has been provided, unless detainee: waives right to counsel OR is released back to normal life and 14 days have passed since release. -Waiver of right to counsel must be knowing, intelligently made, and voluntary. I.e. D must be aware of the nature of the charges, the range of punishment, and the disadvantages of self-representation + is not being forced to choose b/w incompetent counsel and self-representation. Stages when 6A right to counsel applies (but even if violated, can be used to impeach D's trial testimony): -Post-indictment interrogation -Prelim hearings to determine probable cause to prosecute -Arraignment -Post-charge lineups (attaches as soon as the accused is within sight of a potential identification witness) -Guilty plea and sentencing -Felony trials -Misdemeanor trials when imprisonment actually imposed -Overnight recesses during trial -Appeals as matter of right -Appeals of guilty pleas Stages when 6A right does NOT apply: -Blood sampling -Taking of handwriting or voice examplars -Precharge or investigative lineups -Photo IDs -Prelim hearings to determine PC to detain -Brief recesses during D's testimony -Discretionary appeals -Parole and probate revocation proceedings -Post-conviction proceedings

Answer 45

-Required when person in custodial interrogation. -Necessary only if detainee knows they are being interrogated by gov't agent. -Waiver must be knowing and voluntary. Requirements: (1) Custody: whether reasonable person would feel free to terminate interrogation and leave; whether environment presents same inherently coercive pressures as station house questioning. -Drivers generally not in custody during traffic stops. (2) Interrogation: any words or conduct by police that they should know would likely elicit an incriminating response; Miranda warnings not required before spontaneous statements by suspect. -NOT interrogation when D makes spontaneous statement/blurts something out not in response to interrogation/questioning. Person must be told: -Right to remain silent -Anything said can be used against them in court -Right to attorney -If person can't afford attorney, one will be appointed Effect of Miranda violation: -Evidence generally inadmissible -Statements may be used to impeach D's trial testimony but not used as evidence of guilt. -A confession obtained in violation of Miranda, but otherwise voluntary, can be used for the limited purpose of impeaching a defendant who testifies at trial. In contrast, an involuntary confession cannot be used to impeach. -If detainee gives police info that leads to nontestimonial evidence (e.g. finding murder weapon based on what detainee's statements) --> evidence will be suppressed if failure to give Miranda warnings was purposeful but likely admitted if failure not purposeful. Public safety exception: police can interrogate w/o Miranda warnings when reasonably prompted by concern for public safety.

Answer 46

-Must be unambiguous (sitting there and not answering questions is NOT sufficient) -Police must scrupulously honor request by not badgering detainee

Answer 47

Unconstitutionally obtained evidence excluded at trial. -Fruit of the poisonous tree: evidence obtained from exploitation of unconstitutionally obtained evidence.

Answer 48

-Fruits derived from statements in violation of Miranda -Evidence obtained from independent source -Attenuation: causal link b/w police misconduct and evidence is broken -D's intervening act of free will (e.g. D returns to police station and confesses a couple of days after initial illegal arrest) -Inevitable discovery -Violation of knock and announce rule

Answer 49

-Inapplicable to grand juries unless evidence was obtained in violation of the federal wiretapping statute. -Inapplicable at parole revocation proceedings. -Civil proceedings -Only violated state law or agency rules. -Good faith reliance [on defective warrant], but four exceptions: -(1&2) affidavit so lacking in probable cause and/or particularity no reasonable officer would rely on it -(3) officer or prosecutor lied to or misled magistrate -(4) magistrate is biased and wholly abandoned neutrality.

Answer 50

-Voluntary confession taken in violation of Miranda admissible for impeachment

Answer 51

If illegal evidence admitted, conviction should be overturned on appeal unless gov't can show beyond a reasonable doubt that error was harmless

Answer 52

Not required by 5A, but some states require them. -Conducted in secret. -D has no right to notice or right to confront witnesses. -No right to counsel. -No right to have evidence excluded. -No right to challenge subpoena on 4A grounds. -Conviction from indictment issued by grand jury from which minority group excluded will be reversed.

Answer 53

-Length of delay -Reason for delay -Whether D asserted right -Prejudice to D Right doesn't attach until D has actually been arrested or charged.

Answer 54

-Waiver is knowing and intelligent -Defendant is competent to proceed pro se

Answer 55

-Deficient performance by counsel -But for the deficiency, result of proceeding would have been different -Allegations of ineffectiveness need to be specific (can't just say "my attorney is inexperienced).

Answer 56

Right to confront and question witnesses testifying against you. Exceptions/limitations: -Not required when such confrontation serves an important public purpose: insulating a child witness from trauma of testifying; disruptive D. In a joint jury trial (tried before same jury on charges related to same facts), a D's right to confrontation is violated when: -the court admits a co-D's out-of-court statement that implicate the other D in the crime AND -the co-D does not testify at trial and cannot be compelled to testify due to his 5A privilege Co-defendant's confession may be admitted if: -All portion referring to other D can be eliminated -Confessing D takes stand and is subject to cross, or -Confession used to rebut D's claim that confession was obtained coercively Prior testimonial evidence not admitted unless: -Declarant unavailable and -D had opportunity to cross declarant at time statement was made

Answer 57

-Involuntariness -Lack of jurisdiction -Ineffective assistance of counsel -Failure to keep plea bargain Plea bargain enforced against prosecutor and defendant but NOT judge, who doesn't have to accept plea.

Answer 58

Person may not be re-tried for same once jeopardy has attached, which attaches: -Jury trial: empaneling and swearing of jury -Bench trial: when first witness is sworn / judge starts hearing evidence Exceptions: -First trial ends in hung jury -Manifest necessity to abort first trial (e.g. D has heart attack in the middle of trial). But watch out for mistrials that were NOT necessary. -D successfully appealed conviction (unless ground for reversal was insufficient evidence) -D breached plea bargain -D could have been tried for multiple charges in single trial but chose to have offenses tried separately. -Trials by separate sovereigns (state and federal gov't; two different states). But state and its municipalities = same sovereign. -Double jeopardy does not prohibit the imposition of cumulative sentences for two or more statutorily defined offenses specifically intended by the legislature to carry separate punishments, even though constituting the “same” crime under the Blockburger test (i.e., each offense does not require proof of some additional fact that the other does not) when the punishments are imposed at a single trial. Absent a clear intention, it is presumed that multiple punishments are not intended for offenses constituting the same crime under Blockburger. Two crimes are the same offense unless each crime requires proof of additional element that other does not. Lesser included offenses: -Attachment of jeopardy for greater offense bars retrial for lesser included offense -Attachment of jeopardy for lesser included offense bars retrial for greater offense -E.g. robbery = larceny + assault. Thus, if D tried for robbery, cannot be retried later for the lesser included offense of larceny. (All the elements of larceny are included in the elements of robbery!) -EXCEPTION: unlawful conduct that is subsequently used to prove the greater offense has not occurred at the time of the prosecution for the lesser offense OR has not been discovered despite due diligence. The Double Jeopardy Clause prohibits retrying a defendant whose conviction has been reversed on appeal for any offense more serious than that for which she was convicted at the first trial. This right is violated by retrial for a more serious offense, even if at the second trial the defendant is only convicted of an offense no more serious than that for which she was convicted at the first trial.

Answer 59

-Can be asserted by any person (not corp) in any type of case when answer to question might tend to incriminate them -Must claim in civil proceedings for statements to not later be used in criminal proceedings; otherwise you forfeit the privilege. Scope of protection: -Being required to give one's name after Terry stop does NOT violate 5A -Testimonial/communicative evidence protected, but not physical evidence (e.g. blood, DNA, hair, documents). Prosecutor may not comment on D's silence after receiving Miranda warnings or at trial. If suspect remains silent before Miranda warnings, silence can be used against them. -BUT prosecutor can comment on D's failure to take stand when in response to defense's assertion that D was not allowed to explain story.

Answer 60

Guarantees that witness's testimony and evidence located because of testimony will not be used against witness. If gov't prosecutes a person who was granted use and derivative use immunity, it can only use evidence obtained from an independent source - NOT any evidence derived from D's immunized testimony.

Answer 61

Testimony obtained by a promise of immunity is coerced and therefore involuntary. -May NOT be used for impeachment of D's testimony at trial. -But can be used in a trial for perjury.

Answer 62

-D waives by taking witness stand -Witness waives by disclosing incriminating information

Answer 63

5A = before formal charges have been filed against you. So once you exercise your attorney right, police can't question you in their absence at all. 6A = often specific, i.e. after formal charges and you have your attorney there, they can't question you about the SPECIFIC charge.

Answer 64

it would increase the statutorily imposed sentencing range (if proven). Therefore, when 6A right to a jury trial has been invoked, the factor can only be imposed if a jury finds that the prosecution has proven it beyond a reasonable doubt.

Answer 65

(1) would have justified the D's criminal act had the belief been true or (2) negates the requisite mens rea for the charged crime. But it is never a defense to strict liability crimes. Mistake of law, meanwhile, is almost never a criminal defense.

Answer 66

If a statute is intended to protect members of a limited class from exploitation or overbearing, members of that class are presumed to have been intended to be immune from liability, even if they participate in the crime in a manner that would otherwise make them liable. E.g. statute enacted with the express purpose of preventing public employees from taking advantage of the status of undocumented immigrants, making it a felony to accept money or other benefits in exchange for issuing a state identification card. -If undocumented immigrant offered a clerk $500 in exchange for a card, and the clerk accepted, the immigrant is not subject to conviction because of the legislative intent to exempt him.

Answer 67

Forbids imposing a sentence of life in prison without the possibility of parole on a juvenile defendant convicted of a nonhomicide offense. Death penalty cannot be imposed on an accomplice to felony murder who did not kill or intend to kill - UNLESS the accomplice significantly participated in the underlying felony and acted with reckless indifference to human life.

Answer 68

Require proof that the D (i) knowingly received an illegal item or (ii) exercised dominion and control over the item after learning of its illegal character.

Crim Law & Procedure Flashcards

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