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Flashcards in Crim Pro Tricky Deck (78):

What is permissible under a Terry stop and frisk?

The person must be stopped. That is, a reasonable person would believe that they cannot leave.

The frisk is a non exploratory frisk. It is a putdown of the body and outer clothing for weapons justified by the officer's belief that the person is armed and dangerous.

The officer can seize weapons. The officer can also seize contraband if it can be identified as such without being physically manipulated.


What is the scope of a search incident to arrest?

Anything without the suspects immediate control. This includes objects on the suspects person.


What is the standard for a terry stop?

Reasonable suspicion.


What is the standard for a terry frisk?

The officer's belief that the suspect is armed and dangerous.


Can police stop cars without individualized suspicion?

Yes. The police may stop automobiles for investigatory purposes even without reasonable suspicion if they make the stops on a neutral, articulable basis to investigate a problem closely related to the mobility of automobiles.

E.g., checkpoints set up on highways to interdict drunk drivers.


What are the elements of a warrantless seizure?

To make a warrantless seizure, the police (i) must be legitimately on the premises where the item is found; (ii) the item must be evidence, contraband, or a fruit or instrumentality of a crime; (iii) the item must be in plain view; and (iv) it must be immediately apparent (i.e., probable cause) that the item is evidence, contraband, or a fruit or instrumentality of a crime.


In most states, murder is of the second degree, but the murder is of the first degree when:

In most states, murder is of the second degree unless deliberation and premeditation can be shown, or the killing occurred during an enumerated felony, in which case the murder is of the first degree. If neither can be shown, the killing will usually be second degree murder (unless the killing is downgraded to manslaughter based on adequate provocation). Depraved heart murder would ordinarily be second degree murder in most states.


For the purposes of felony murder, the felony is deemed to terminate when:

The defendant reaches a place of temporary safety.


When a defendant has invoked his right to counsel under the 5th A and his right to counsel under the 6th has attached, what is the scope of the amendments' protections?

If a defendant invokes his right to counsel, under the Fifth Amendment the police cannot interrogate the defendant about any charge without counsel. But under the Sixth Amendment, the defendant can be interrogated regarding a different charge.


When can police reinitiate questioning a witness that has invoked his 5th Amendment right to silence?

The Supreme Court has allowed the police to reinitiate questioning where:

(i) the police ceased questioning immediately upon the detainee’s request and did not resume questioning for several hours;

(ii) the detainee was given a fresh set of Miranda warnings; and

(iii) the questioning was limited to a crime that was not the subject of the earlier questioning.


When a suspect makes a request for counsel, the request must be unambiguous. Is this a subjective or objective standard?

The test is objective—the request must be sufficiently clear that a reasonable police officer in the same situation would understand the statement to be a request for counsel.


How long do police have to wait to further attempt to question a defendant that requests counsel?

14 days after the end of the investigation.


When is mistake of fact available as a defense?

Mistake of fact is available as a defense to both specific intent and general intent crimes. However, note that a mistake of fact must be reasonable to be a defense to a general intent crime. An unreasonable mistake of fact is a defense to a specific intent crime only.


What distinguishes larceny by trick and false pretenses?

If a victim intends to convey only possession of the property to the defendant, the offense is larceny by trick. However, if the victim intends to convey title, the offense is false pretenses.


Can a landlord break into a building he owns and commit burglary?

Yes. In determining whether the dwelling is that of another, occupancy rather than ownership is material.


The Sixth Amendment is:

Offense specific.


The Fifth Amendment is:

Not offense specific.


What should happen when a defendant invokes the right to counsel?

All questioning must cease until the defendant is provided with counsel.


Does "magic aforethought" include reckless actions?

Yes. "Malice aforethought" can mean that the defendant is acting with reckless indifference to an unjustifiably high risk to human life.


Can the police execute an arrest warrant at the home of a third-party?

Yes. 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.


What are the kinds of malice aforethought?

1. Intent to kill

2. Intent to inflict serious bodily injury

3. Felony murder - must be a serious or inherently dangerous felonies.

4. Depraved heart


What felonies are seriously or inherently dangerous?


1. Burglary
2. Arson
3. Robbery
4. Rape
5. Kidnapping


What is misdemeanor manslaughter?

A death that occurs in conjunction with an assault or battery.


If a person is threatened with bodily harm, how can he respond?

In self-defense with reasonable force.


When a person is threatened with serious and imminent bodily harm or death, how can he respond?

In self-defense with deadly force.


What is the agency theory for felony murder?

Only deaths caused by the felon or his agents (accomplices) qualify for felony murder treatment.


What are the elements of insanity under M'Naghten?

1. a disease of the mind

2. causing a defect in reason

3. which left the defendant at the time of his actions lacking the ability to either (a) know the wrongfulness of his actions or (b) understand the nature and quality of his actions.


Define larceny by trick, false pretenses, and embezzlement:

Larceny by trick: the defendant uses fraud to obtain a possessory interest in property, but not title.

False Pretenses: defendant uses false pretenses (a lie or fraud) to obtain title to property.

Embezzlement: defendant is in rightful possession of the property, but misappropriates it. Think bailments and entrustments.


What is the requisite intent for accomplice liability?

The intent that the crime be committed.


What are the elements of accomplice liability?

A person acts with the intent that a crime be committed aids or encourages the principal before or during the commission of the crime.


Can merchants be held liable when they sell goods to a person knowing he will use the goods to commit crimes?

No. Mere knowledge that a crime might result from the sale of ordinary goods at ordinary prices is insufficient for accomplice liability.


What is a strong fact-signal for false pretenses?

The exchange of cash.


Can malice be reckless?

Yes. Depraved heart is reckless and wanton disregard for the value of human life.


Can a person rely on the intoxication defense when he forms the intent to commit a crime at T1 and then becomes voluntarily intoxicated at T2?

No. Intent prior to intoxication voids the defense.


When can a police officer use deadly force to prevent a suspects escape?

When (i) the defendant is a fleeing felon and (ii) the felon poses a threat of serious bodily harm to others.


Does the exclusionary rule apply to grand jury proceedings?

No. Motions based on the exclusionary rule are premature in Grand Jury proceedings.


Does a search incident to a lawful arrest of car's occupant extend to the trunk?



Do mere passangers have a legitimate expectation of privacy in cars?

No. As such, they lack standing to contest the search.


When does a person have a fourth amendment right?

1. When they have a reasonable expectation of privacy in the place searched or the item seized; or

2. When there is a physical intrusion into a constitutionally protected area (person, home, curtilage, affects).


Can a tip be sufficient to create reasonable suspicion?

Only when it is reliable. Reliability is corroborated by specific details or multiple tipsters.


What is the required level of suspicion to perform searches in special cases (public schools, government offices)?

Reasonable suspicion. Searches are justified by reasonable suspicion as opposed to probable cause.


What amounts to interrogation for purposes of the 5th Amendment?

Any conduct by police officers that they reasonably should know would likely elicit an incriminating response.


Is a post charge lineup a critical stage of prosecution?

Yes. Therefore D is entitled to counsel at the lineup.


Can a defendant's silence after Miranda warnings be used against him?

No. He has a right to silence.


Can people who are supposed to be protected by statutes be liable under those statutes?


Ex: minor prostitute cannot be an accomplice to statutory rape.


What is the model penal code test for insanity?

D must have a disease of the mind that causes him to either: (i) fail to appreciate the criminality of his conduct (ii) or that prevents him from conforming to the law.


When can testimonial evidence be submitted at trial without violating the confrontation clause?

1. When the evidence is the confession of the non testifying co-defendant and it is being used to rebut the defendant's claim that his confession was obtained coercively. This is only permissible when the jury is instructed as to the purpose of the evidence's admission.

2. All portions of the testimony referring to the defendant can successfully be eliminated.

3. The confessing defendant takes the stand and subjects himself to cross-examination with respect to the truth or falsity of what the statement asserts.


Can a parole officer search a parolee's house without probable cause?

Yes. As long as the search is authorized by a statute. This falls into the special needs category of searches.


A person that instructs or causes an innocent party to carry out a crime on that person's behalf is treated as _______.

the principal actor in the crime.


To be guilty of attempted murder, a person must always have ______.

The specific intent to kill.

The intent to cause serious bodily injury is not enough.


Can police enter a home to effectuate an arrest when they have probable cause to make the arrest but do not have a search warrant?

No. A forcible, warrantless entry into a home for the purpose of making an arrest is unconstitutional under the Fourth Amendment.


What is the scope of a consent search?

Anywhere reasonable person under the circumstances would assume the search extends.


How far does something have to be carried in order for a defendant to be liable for larceny, assuming every other element of larceny is satisfied?

Just one step.


How can the "intent to permanently deprive" be satisfied other than through an intent to take forever?

Intent to use something that posses a substantial risk of loss or destruction to the thing without consent to use it in that way.


A criminal assault is:

(i) the attempt to commit a battery, or (ii) the intentional creation, other than by mere words, of a reasonable apprehension in the mind of the victim of imminent bodily harm.


When can a private person use deadly force to apprehend someone?

When the person (i) committed (ii) a felon, and (iii) the use of deadly force is necessary to prevent the felon's escape.


What are the limits of co-occupant consent?

Areas exclusively controlled by the non-consenting co-occupant.


What is the Ostrich Doctrine?

D may not consciously avoid knowing or learning the true nature of an item possessed. Knowledge may be inferred from a combination of suspicion and indifference to the truth.


Can a defendant be guilty of a conspiracy if they did not know what they were agreeing to was illegal?

Yes. The majority rule is that parties to a conspiracy need not have been aware that their plan was an illegal one.


Define a misdemeanor:

Punishable by a fine or imprisonment up to one year.


Define a felony:

Punishable for more than one year up to death.


Where can a crime be prosecuted?

1. Where the act took place

2. Where the result took place


When must death occur for a person to be guilty of homicide under the common law?

Death must occur within a year-and-a-day of the homicidal act.


When must death occur for a person to be guilty of homicide under majority law?

Any time.


What is the deadly weapon rule?

The intentional use of a deadly weapon creates an inference of an intent to kill.


Can transferred intent apply to attempt?

No. It only applies to completed crimes.


What is the proximate cause theory of felony-murder?

In some states, if one of the co-felons proximately causes the victim's death, all of the other co-felons will be guilty of felony murder, even if the actual killing is committed by a third party.


What is the erroneous taking rule?

A taking under a claim of right is never larceny, even if the defendant erroneously believes the property is his.


Continuing Trespass

A person takes something without the intent to permanently deprive the owner of that thing, but later develops that intent. The person if guilty of a theft crime.


How can accomplice liability be repudiated?

Encourager: repudiate the comment

Aider: either neutralize the assistance or otherwise prevent the crime from happening


Pinkerton liability

A defendant is liable for other crimes committed by his co-conspirators, so long as those crimes (i) were committed in furtherance of the conspiracy's objective, and (ii) were foreseeable.



A defendant is incompetent if, at the time of trial the defendant cannot either (i) understand the nature of the proceeding against him or (ii) assist his lawyer in the preparation of his defense.

If either (i) or (ii) the trial is postponed under the defendant regains competency.


What are the two exceptions to the initial aggressor rule?

1. The defendant (i) withdraws from the fight and (ii) communicates that withdrawal to the other person.

2. The victim suddenly escalates a non deadly fight into a deadly one.


Define probable cause:

a "fair probability" that contraband or evidence of crime will be found in the area searched.


What must be alleged in order to satisfy the particularity requirements of a warrant?

(a) Place to be searched and (b) items to be seized.


Can a miranda violation result in excluding evidence as a fruit of the poisonous tree?

No. Miranda only allows the exclusion of the statement made during the custodial interrogation in which the police failed to give Miranda warnings. It does not warrant the exclusion of evidence later discovered as a result of the Miranda violation.


What is the proximate cause analysis in criminal law?

Whether the result was a natural and probable consequence of the defendant's actions.


When will an intervening act shield a defendant from liability?

When the intervening act was unforeseeable.