Crimes and Procedure - Bar Review

Question 1

Attempt

Answer 1

Requires intent to commit an offense and an overt act beyond mere preparation. MPC requires a “substantial step.” An attempt merges with the underlying crime.

Question 2

Solicitation

Answer 2

Solicitation consists of enticing, counseling, advising, inciting, urging, or commanding another to commit a crime with specific intent that the person solicited commits the crime. The offense is complete at the time the solicitation is made. It is not necessary that the person solicited agree to commit the crime or do anything in response.

Question 3

Forgery

Answer 3

Forgery is the creating or altering a document of legal significance to be false with intent to defraud.

Question 4

Kidnapping

Answer 4

Kidnapping is the unlawful confinement of a person against that person’s will, combined with either movement or hiding that person.

Question 5

Rape

Answer 5

The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person without their consent.

Question 6

Conspiracy

Answer 6

Any agreement between two or more persons with intent to commit an unlawful act. The MPC requires an overt act.

Question 7

Co-conspirator liability

Answer 7

Co-conspirators are liable for all crimes conspired, as well as future crimes if crimes were foreseeable and in furtherance of the objective (outgrowth).

Question 8

Co-conspirator withdrawal

Answer 8

a co-conspirator may withdraw from the conspiracy, but unless they withdraw prior to commission of the overt act, they will be guilty of conspiracy. They are only released from further crimes stemming from the conspiracy, and they are required to alert law enforcement

Question 9

Accomplice liability attachment

Answer 9

Liability may attached with only words of encouragement: 1) with the intent to assist the principal and the intent that the principal commits the crime; or 2) the accomplice actually aids, counsels, or encourages the principal before or during commission of the crime.

Question 10

Accessory after the fact

Answer 10

an accessory after the fact is one who receives, relieves, comforts, or assists another, knowing he has committed a felony, in order to help the felon escape arrest, trial, or conviction. The crime committed by the principal must be a felony and it must be completed at the time the aid is rendered. The liability ceases once the principal reaches refuge.

Question 11

Receiving stolen property

Answer 11

Occurs when a person receives property they know to be stolen and intends to determine we deprive the owner of this property.

Question 12

Embezzlement

Answer 12

Fraudulent conversion of personal property possessed by another by a person who is already in lawful possession it.

Question 13

Extortion

Answer 13

The use of that any threats to illegally obtain property. These threats could be two harm an individual or loved one, or to reveal information the victim would prefer to keep confidential.

Question 14

Fraud

Answer 14

Fraud occurs when a knowing misrepresentation is made by defendants who intended to induce a plaintiff’s reliance on the misrepresentation, the plaintiff did actually rely, it was justifiable, resulting in damages.

Question 15

Larceny

Answer 15

the trespassory taking and carrying away of the personal property of another, without consent or privilege, with intent to permanently deprive.

Question 16

False pretenses (larceny by)

Answer 16

Obtaining title to property by intentional misrepresentation of a material past or present fact. Omission where victim relies upon seller, such as in a special relationship, can suffice. E.g., soliciting money for a fake charity – they are obtaining title to the fraudulent donations.

Question 17

Larceny-by-trick

Answer 17

Obtaining possession of the property of another by a knowing false statement of fact with intent to defraud. No title, just possession. E.g., borrowing a car and driving across the country.

Question 18

Burglary

Answer 18

The breaking and entering of the dwelling house of another at night with intent to commit a felony therein. Does not merge with larceny, and MPC jurisdictions often waive the nighttime and dwelling house elements of the crime. (If the facts do not specify day or night, note the MPC distinctions. If retrieving property, even unreasonably, no crime.

Question 19

Robbery

Answer 19

Wrongful taking of another’s property from a person or their presence through force or threat of injury with the intent to permanently deprive.

Question 20

Arson

Answer 20

Willful and malicious setting of fire or burning or causing to be burned, or aiding, counseling, or procuring the burning of any structure, forest land, or property. CA Penal Code.

Question 21

Assault and battery (CA)

Answer 21

An unlawful attempt, coupled with present ability, to commit a violent injury on the person of another. Different than the tort of Assault.

Question 22

First-degree murder

Answer 22

Killing of another that is deliberate and premeditated.

Question 23

Second-degree murder

Answer 23

All other murders that do not meet the criteria for first-degree murder.

Question 24

Common law murder

Answer 24

Unlawful killing of another with malice aforethought.

Question 25

Malice aforethought

Answer 25

May be established 4 ways: intent to kill, intent to inflict grievous bodily injury, reckless disregard of an extreme risk to human life (depraved/malignant heart), and felony murder.

Question 26

Felony murder rule

Answer 26

Killing that is perpetrated during the commission of an inherently dangerous predicate felony, including burglary, arson, rape, robbery, and kidnapping. M1 in some jurisdictions.

Question 27

Death of co-felon Redline doctrine

Answer 27

An exception to the felony murder rule which provides that felons are not liable for the deaths of co-felons that occur during the commission of a crime, as long as the death occurs in furtherance of criminal activity.

Question 28

Voluntary manslaughter

Answer 28

Intentional killing in response to adequate provocation. Adequate provocation exists if the defendant was reasonably provoked (sudden intense passion), there was insufficient time to cool off, and the defendant did not cool off.

Question 29

Involuntary manslaughter

Answer 29

A killing caused by criminal negligence or recklessness. Criminal negligence is defined as an exceptional nonconformity from the reasonable person standard required for civil liability. It may also be caused by an unlawful act, including in the course of a misdemeanor or in the course of a felony that does not rise to the standard for felony murder.

Question 30

Legal impossibility

Answer 30

A legitimate defense to a crime, where it was impossible that the actions of the defendant could not have been criminal. E.g., receiving property that is not stolen; sex with an 18-year-old who says she is under 18.

Question 31

Factual impossibility

Answer 31

Not a legitimate defense to a crime, where it was impossible that the actions of the defendant could have been criminal. E.g., Shooting a gun at someone who is already dead, or the gun isn’t loaded, or attempting to deal cocaine that is actually sugar.

Question 32

Confession with mental disease

Answer 32

A confession will be deemed voluntary even if the defendant who confesses suffers from a mental disease. Mental illness does not render a confession involuntary under 14a.

Question 33

4a reasonable expectation of privacy

Answer 33

A person has a reasonable expectation of privacy where there is a physical intrusion by the government into a constitutionally protected area to obtain information. There is no reasonable expectation of privacy in things held out to the public, such as conversations. Persons have a REP in what they own or possess, including their homes and vehicles. Owners of highly-regulated industries have a lower expectation of privacy.

Question 34

Search and seizure

Answer 34

Under 4a, applicable to the states via 14a, government action shall not violate another person’s right to be secure against unreasonable searches and seizures. A search consists of a government action in a quest for evidence. A seizure occurs when a reasonable person believes they are not free to leave.

Question 35

Automobile checkpoints

Answer 35

Police may set up roadblocks to stop cars without reasonable suspicion when the stops are made based on neutral, articulable standard, and they are designed to serve purposes related to automobiles and their mobility. Workplace regulations, public safety, border crossings, etc.

Question 36

Government action

Answer 36

4a is limited to protection against government search actions, or a party acting as an instrument or agent of the government.

Question 37

Stop and frisk

Answer 37

A police officer may temporarily detain a person for questioning, without a warrant, if they have a reasonable suspicion that they are involved in some illegal activity. Additionally, the police officer may conduct a pat-down frisk of the person if they are suspected of having a weapon. A police officer may seize items he reasonably believes are contraband or a weapon during the frisk.

Question 38

Reasonable suspicion

Answer 38

The minimum level of justification for detention, where an officer can show articulable facts that a crime has been or is being committed.

Question 39

Probable cause

Answer 39

Sufficient facts to lead a reasonable person to believe that a crime was committed, and that the defendant committed the crime.

Question 40

Search warrants

Answer 40

4a of the US Constitution endures freedom from unreasonable searches and seizures. In order to conduct a search and seize individuals or evidence, the police are required to obtain a search warrant, unless a valid exception applies.

Question 41

Warrant requirements

Answer 41

Issue of a search warrant requires probable cause. The warrant must state with particularity the place to be search and the evidence to be seized, and it must have been issued by a neutral and detached magistrate. There is no warrant required when arresting someone in a public place.

Question 42

Search incident to lawful arrest

Answer 42

Police may search the person and area within their wingspan where a detaining could reach a weapon or destroy evidence.

Question 43

Plain view

Answer 43

Police may seize evidence if observed in plain view, from a place the officer is lawfully permitted to be, and that they believe is evidence of a crime or contraband. (e.g., office who hears a conversation on the sidewalk – is public, so admissible.)

Question 44

Automobile exception

Answer 44

4a does not require police to obtain a warrant to search any compartment of a vehicle if they have probable cause to believe it contains evidence of a criminal activity. Provided there is probable cause, there is no need for a warrant.

Question 45

Consent

Answer 45

A defendant’s voluntary and intelligent consent to a search allows the search to be conducted without a warrant or probable cause.

Question 46

Exigent circumstances

Answer 46

A warrantless search is authorized when there is reasonable apprehension the delay required to obtain a warrant will result in immediate danger of evidence destruction, there is immediate danger to an officer or another person, or a defendant is likely to flee before a warrant can be obtained. This allows for hot pursuit, where police can chase a suspect into a private dwelling.

Question 47

Administrative inventory search

Answer 47

A search of an arrestee’s property or impounded car after lawful arrest is valid as long as it is performed according to standardized criteria.

Question 48

Temporary detention

Answer 48

If the police have a reasonable suspicion of criminal activity or involvement in a completed crime, supported by articulable facts, they may stop a person for investigatory purposes.

Question 49

Frisk

Answer 49

If police have a reasonable suspicion a detainee is armed and dangerous, they may frisk the detainee for weapons.

Question 50

5a and Miranda

Answer 50

5a, applicable to the states via 14a, provides that no person shall be compelled in any criminal case to be a witness against themselves. A statement obtained during a custodial interrogation may not be used against a suspect unless the police inform the suspect of their Miranda rights.

Question 51

Miranda warnings

Answer 51

You have the right to remain silent. Anything you say can or will be used against you in a court of law. You have the right to an attorney present during questioning. If you cannot afford one, it will be provided for you.

Question 52

Police lineups

Answer 52

A suspect does not have a right to counsel at a pre-charge lineup. They do have the right to a lineup that is not unduly suggestive, where there is no bias or likelihood of misidentification.

Question 53

5a right to counsel

Answer 53

Once Miranda rights are invoked the police must stop interrogation. A custodial interrogation may be re-initiated only if the suspect waives their right to counsel, has been re-read their Miranda rights, if the suspect themselves initiates the conversation, or if they have counsel present.

Question 54

6a right to counsel

Answer 54

Once charged, all persons have a right to counsel in all criminal prosecutions where a defendant has a potential for custody, and during all critical stages of the proceedings. Police may not use deception to elicit statements related to a crime when counsel is not present. (Putting an informant in the same cell, even if they don’t ask questions, is a violation and evidence will be suppressed.)

Question 55

6a right to effective counsel

Answer 55

A claim of ineffective counsel requires the that the defendant show that their attorney’s performance was below an objective standard of reasonableness, and there is a reasonable probability that, but for their errors, the result of the proceeding would have been different.

Question 56

6a confrontation clause

Answer 56

6a, applicable to the states via 14a, gives a criminal defendant the right to confront witnesses against them. An out-of-court statement violates this right when a testimonial statement is offered from an unavailable declarant who the defendant was not afforded an opportunity to cross-examine. (E.g., 2 Ds charged with burglary. One D snitches out other D, then pleads 5a and doesn’t take the stand. Since 2nd D didn’t have opportunity to confront him, their testimony is inadmissible. Likewise, the cases should be severed.)

Question 57

6a right to a speedy trial

Answer 57

6a guarantees a speedy trial, post-accusation. Courts weigh the length and reason for the delay, and any material harm the defendant may have suffered when determining a violation of this right.

Question 58

Exclusionary rule

Answer 58

All evidence that is collected in violation of a defendant’s Constitutional rights will be inadmissible in court. Exceptions to this rule are when the police had an independent source, when there is an attenuation of the taint, when the discovery would be inevitable, or where the police relied in good faith on a facially valid but defective warrant.

Question 59

Fruit of the poisonous tree

Answer 59

Any evidence collected that is derived from illegally obtained evidence is also inadmissible in court. Wong Sun v. US; Weeks v. US.

Question 60

Massiah rule

Answer 60

Statements made in violation of 6a right to counsel are inadmissible.

Question 61

Terry stop

Answer 61

a police officer may stop a person with probable cause if they have an articulable and reasonable suspicion of criminal activity. In such circumstances, if the officer also reasonably believes the person may be armed and dangerous, they may conduct a protective frisk.

Question 62

Sensory enhancement

Answer 62

Police may not use electronic sensory enhancement equipment that is not available to the public to collect evidence unless they have a valid search warrant. (the “Walmart rule”)

Question 63

Transactional immunity

Answer 63

Protects a witness from future prosecution for crimes related to testimony. This immunity is more encompassing immunity that derivative use immunity, which may only provide limited protections.

Question 64

Qualified immunity

Answer 64

A protection for government officials (i.e., cops) from lawsuits alleging violations of a plaintiff’s rights, or only allowing suits where officials violated a clearly established statutory or constitutional right.

Question 65

Voir dire

Answer 65

The process of selecting jurors from a juror pool. Voter registration files are valid to use when selecting a jury pool. A juror that acts in bad faith in answering voir dire questions does not invalidate the jury verdict.

Question 66

Jury challenge for cause

Answer 66

During voir dire, a challenge for cause allows a party to remove a juror for a specific reason. E.g., if the case is vehicular manslaughter, a potential juror that had a close relative killed by a drunk driver may be removed for cause based on the potential bias.

Question 67

Peremptory challenges

Answer 67

Each side may use 10 peremptory challenges in a criminal case, increased to 20 if the case has a potential for life imprisonment or the death penalty, and decreased to 6 in civil cases or when the potential term of imprisonment is 90 days or less. Peremptory challenges shall not be used to remove a juror based on race or religion. Any attorney exercising peremptory strikes may be required to show clear and convincing evidence that they are not doing so because of the juror’s membership in a protected class.

Question 68

Murder change of heart

Answer 68

If a murder plants a bomb, then changes their mind and warns the victim, this does not negate the intent element. If someone dies, a first-degree murder charge is appropriate because at the time the bomb was planted the requisite intent was present. Look for transferred intent, where charges for the death of a bystander are possible.

Question 69

Transferred intent

Answer 69

When a perpetrator intends to harm one person, however, harms another inadvertently, the intent to harm will generally transfer to the person that was actually injured.

Question 70

Mandatory presumptions

Answer 70

Court-ordered presumptions are unconstitutional and forbidden. E.g., “If someone is gone 7 years, you must consider them dead.” This statement renders a required element a presumption, and therefore is not permissible in a murder trial.

Question 71

Self-defense

Answer 71

Complete defense to a crime and is justified when the defendant reasonably believes they are in imminent danger of harm and uses proportional force to dispel such harm.

Question 72

Defense of others

Answer 72

If self-defense is appropriate for an individual, a bystander employing defense of that individual will have the defense of self-defense available (majority). Minority, must be objectively reasonable.

Question 73

Deadly force

Answer 73

Such force is allowed when the defendant has a reasonable belief they are in imminent danger of death or grievous bodily harm, and deadly force is necessary to defend against danger. If any of the above beliefs are unreasonable, the imperfect self defense doctrine mitigates murder down to voluntary manslaughter. If a bystander is injured while employing self-defense, the defendant cannot e liable for battery if their actions are reasonable.

Question 74

Mistake

Answer 74

Batter and undercover copy while they are conducting an arrest? Valid defense. Sell alcohol to or have sex with a minor? Strict liability applies; mistake is no defense. Act on advice of an attorney? No defense.

Question 75

Retreat doctrine

Answer 75

A defendant must retreat prior to using deadly force, with exceptions. A defendant has no duty to retreat if in their own home, if a defendant had the opportunity to retreat or couldn’t have done so safely. There is no obligation to retreat if the aggressor is not using deadly force. Some jurisdictions have a “stand your ground” statute that eliminate the duty to retreat. Also, no duty to retreat in one’s own home under the castle doctrine.

Question 76

Voluntary intoxication

Answer 76

This may be a defense against specific intent crimes that require purpose or knowledge. Involuntary intoxication may be a defense to crimes that require the formation of intent.